A woman said: Messenger of Allah, my womb is a vessel to this son of mine, my breasts, a water-skin for him, and my lap a guard for him, yet his father has divorced me, and wants to take him away from me. The Messenger of Allah (ﷺ) said: You have more right to him as long as you do not marry.
While I was sitting with AbuHurayrah, a Persian woman came to him along with a son of hers. She had been divorced by her husband and they both claimed him.
She said: AbuHurayrah, speaking to him in Persian, my husband wishes to take my son away.
AbuHurayrah said: Cast lots for him, saying it to her in a foreign language.
Then her husband came and asked: Who is disputing with me about my son?
AbuHurayrah said: O Allah, I do not say this, except that I heard a woman who came to the Messenger of Allah (ﷺ) while I was sitting with him, and she said: My husband wishes to take away my son, Messenger of Allah, and he draws water for me from the well of AbuInabah, and he has been good to me.
The Messenger of Allah (ﷺ) said: Cast lots for him. Her husband said: Who is disputing with me about my son? The Prophet (ﷺ) said: This is your father and this your mother, so take whichever of them you wish by the hand. So he took his mother's hand and she went away with him.
Zayd ibn Harithah went out to Mecca and brought the daughter of Hamzah with him. Then Ja'far said: I shall take her; I have more right to her; she is my uncle's daughter and her maternal aunt is my wife; the maternal aunt is like mother. Ali said: I am more entitled to take her. She is my uncle's daughter. The daughter of the Messenger of Allah (ﷺ) is my wife, and she has more right to her. Zayd said: I have more right to her. I went out and journeyed to her, and brought her with me. The Prophet (ﷺ) came out.
The narrator mentioned the rest of the tradition. He (i.e. the Prophet) said: As for the girl, I decided in favour of Ja'far. She will live with her maternal aunt. The maternal aunt is like mother.
This tradition has been narrated by ‘Abd Al Rahman bin Abi Laila through a different chain of narrators. This version has “He decided that she would be given to Ja’far and said “Her maternal aunt is with him(i.e., his wife).
When we came out from Mecca, Hamzah's daughter pursued us crying: My uncle. Ali lifted her and took her by the hand. (Addressing Fatimah he said:) Take your uncle's daughter. She then lifted her. The narrator then transmitted the rest of the tradition. Ja'far said: She is my uncle's daughter. Her maternal aunt is my wife. The Prophet (ﷺ) decided in favour of her maternal aunt, and said: The maternal aunt is like mother.
Asma', daughter of Yazid ibn as-Sakan al-Ansariyyah, was divorced in the time of the Messenger of Allah (ﷺ). No waiting period was prescribed for a divorced woman (at that time). When Asma' was divorced, Allah, the Exalted, sent down the injunction of waiting period for divorce. She is the first of the divorced women about whom the verse relating to waiting period was sent down.
Women who are divorced shall wait, keeping themselves apart, three monthly courses; and then said: And for such of your women as despair of menstruation, if ye doubt, their period (of waiting) shall be three months. This was abrogated from the former verse. Again he said: (O ye who believe, if ye wed believing women) and divorce them before ye have touched them, then there is no period that ye should reckon."
Abu Salamah bin ‘Abd Al Rahman reported on the authority of Fatimah daughter of Qais Abu ‘Amr bin Hafs divorced her (Fatimah daughter of Qais) absolutely when he was away from home and his agent sent her home barley. She was displeased with it. He said “I swear by Allah, you have no claim on us. She then came to Apostle of Allah (ﷺ) and mentioned that to him. He said to her “No maintenance is due to you from him. He ordered her to spend the waiting period in the house of Umm Sharik but he said afterwards “that is a woman whom my Companions visit. Spend the waiting period in the house of Ibn Umm Maktum for he is blind and you can undress. Then when you are in a position of being remarried, tell me.” She said “When I was in a position to remarry, I mentioned to him that Mu’awiyah bin Abi Sufyan and Abu Jahm had asked me in marriage. The Apostle of Allah (ﷺ)said “As for Abu Jahm, he does not put down his stick from his shoulder, and as for Mu’awiyah he is a poor man who has no property; marry Usamah bin Zaid. I disliked him but he said “Marry Usamah bin Zaid. So, I married him. And Allah prospered him very much and I was envied.”
Abu Salamah bin ‘Abd Al Rahman said that Fatimah daughter of Qais told him that Abu Hafs Al Mughirah divorced her three times. He then narrated the rest of the tradition. The version has Khalid bin Walid and some people of Banu Makhzum came to the Prophet (ﷺ) and said Prophet of Allaah (ﷺ) Abu Hafs Al Mughirah divorced his wife three times and he has left a little for her. He said “No maintenance is necessary for her. He then transmitted the rest of the tradition. The tradition narrated by Malik is more perfect.
Chapter 755: Regarding The Maintenance Of One Who Has Been Irrevocably Divorced - كتاب الطلاق
حَدَّثَنَا مَحْمُودُ بْنُ خَالِدٍ، حَدَّثَنَا الْوَلِيدُ، حَدَّثَنَا أَبُو عَمْرٍو، عَنْ يَحْيَى، حَدَّثَنِي أَبُو سَلَمَةَ، حَدَّثَتْنِي فَاطِمَةُ بِنْتُ قَيْسٍ، أَنَّ أَبَا عَمْرِو بْنَ حَفْصٍ الْمَخْزُومِيَّ، طَلَّقَهَا ثَلاَثًا وَسَاقَ الْحَدِيثَ وَخَبَرَ خَالِدِ بْنِ الْوَلِيدِ قَالَ فَقَالَ النَّبِيُّ صلى الله عليه وسلم
" لَيْسَتْ لَهَا نَفَقَةٌ وَلاَ مَسْكَنٌ " . قَالَ فِيهِ وَأَرْسَلَ إِلَيْهَا النَّبِيُّ صلى الله عليه وسلم أَنْ لاَ تَسْبِقِينِي بِنَفْسِكِ .
Abu Salamah reported on the authority of Fatimah daughter of Qais that Abu ‘Amr bin Hafs Al Makhzumi divorced her three times. He then narrated the rest of the tradition. He then mentioned about Khalid bin Walid and said that the Prophet (ﷺ) said “There are no maintenance and dwelling for her.” This version has “The Apostle of Allaah(ﷺ) sent a message to her “Do not give her consent for marriage without my permission.””
Fatimah daughter of Qais said “I was married to a man of Banu Makhzum. He divorced me absolutely. The narrator then transmitted the rest of the tradition like that of Malik. This version has “Do not marry yourself without my permission.”
Abu Dawud said Al Sha’bi, Al Bahiyy and ata from abd Al Rahman bin asim and Abu Bakr bin Abi Al Jahm all narrated on the authority of Fatimah daughter of Qais that her husband had divorced her three times.
Chapter 755: Regarding The Maintenance Of One Who Has Been Irrevocably Divorced - كتاب الطلاق
حَدَّثَنَا مُحَمَّدُ بْنُ كَثِيرٍ، أَخْبَرَنَا سُفْيَانُ، حَدَّثَنَا سَلَمَةُ بْنُ كُهَيْلٍ، عَنِ الشَّعْبِيِّ، عَنْ فَاطِمَةَ بِنْتِ قَيْسٍ، أَنَّ زَوْجَهَا، طَلَّقَهَا ثَلاَثًا فَلَمْ يَجْعَلْ لَهَا النَّبِيُّ صلى الله عليه وسلم نَفَقَةً وَلاَ سُكْنَى .
The tradition mentioned above has also been transmitted by Al Sha’bi through a different chain of narrators. This version has “The husband of Fathima daughter of Qais pronounced her triple divorce. The Prophet (ﷺ) did not allow her to have maintenance and dwelling.”
Chapter 755: Regarding The Maintenance Of One Who Has Been Irrevocably Divorced - كتاب الطلاق
Abu Salamah reported on the authority of Fatimah daughter of Qays who said to him that she was the wife of AbuHafs ibn al-Mughirah who divorced her by three pronouncements. She said that she came to the Messenger of Allah (ﷺ) and sought his opinion about her going out from her house. He commanded her to shift to (the house of )Ibn Umm Maktum who was blind. Marwan denied to confirm the tradition of Fatimah about the going out of a divorced woman from her house. Urwah said:
Aisha objected to Fatimah daughter of Qays.
Abu Dawud said: Salih b. Kaisan, Ibn Juraij, and Shu'aib b. Abi Hamzah -- all of them narrated on the authority of al-Zuhru in a similar way.
Abu Dawud said: Shu'aibn b. Abi Hamzah the name of Abu Hamzah is Dinar. He is a client of Ziyad.
‘Ubaid Allah said “Marwan sent someone (Qabisah) to Fatimah and asked her (about the case). She said that she was the wife of Abu Hafs. The Prophet (ﷺ) appointed ‘Ali as governor in a certain part of Yemen. Her husband also proceeded with him. From there he sent a message to her pronouncing one divorce that had yet remained. He commanded ‘Ayyash bin Abi Rabi’ah and Al Harith bin Hisham to provide maintenance to her. They said “By Allah there is no sustenance for her except in case she is pregnant.” She came to the Prophet(ﷺ) who said “There is no sustenance for you except in case you are pregnant. She then asked permission to shift (from her house) and he gave her permission.” She asked “Where should I shift. Apostle of Allaah(ﷺ)? The Apostle of Allaah(ﷺ) said to Ibn Umm Maktum . He was blind. She would undress herself and he could not see her. She lived there till her waiting period passed. The Prophet (ﷺ) married her to Usamah. Qabisah then returned to Marwan and narrated that to him. Marwan said “We did not hear this tradition except from a woman, so we shall follow the reliable practice on which we found the people”. When this reached Fatimah she said “between me and you is the Book of Allah”. Allaah the exalted said “Divorce them for their waiting period...” Thou knowest not it may be that Allaah will afterward bring some new thing to pass. She said “What a new thing will emerge after triple divorce.”
Abu Dawud said “A similar tradition has been narrated by Yunus on the authority of Al Zuhri. As for Al Zubaidi he narrated both traditions, the tradition of ‘Ubaid Allah in the version of Ma’mar and the tradition of Abu
Salamah in the version of ‘Aqil.”
Abu Dawud said “Muhammad bin Ishaq narrated on the authority of Al Zuhri that Qabisah bin Dhuwaib transmitted to him the version which was narrated by ‘Ubaid Allah bin ‘Abd Allaah which has Qabisah then returned to Marwan and informed him about that.”
Chapter 756: Whoever Rejected What Fatimah Bint Qais Said - كتاب الطلاق
حَدَّثَنَا نَصْرُ بْنُ عَلِيٍّ، أَخْبَرَنِي أَبُو أَحْمَدَ، حَدَّثَنَا عَمَّارُ بْنُ رُزَيْقٍ، عَنْ أَبِي إِسْحَاقَ، قَالَ كُنْتُ فِي الْمَسْجِدِ الْجَامِعِ مَعَ الأَسْوَدِ فَقَالَ أَتَتْ فَاطِمَةُ بِنْتُ قَيْسٍ عُمَرَ بْنَ الْخَطَّابِ - رضى الله عنه - فَقَالَ مَا كُنَّا لِنَدَعَ كِتَابَ رَبِّنَا وَسُنَّةَ نَبِيِّنَا صلى الله عليه وسلم لِقَوْلِ امْرَأَةٍ لاَ نَدْرِي أَحَفِظَتْ ذَلِكَ أَمْ لاَ .
Abu Ishaq said “I was with Al Aswad in the congregational mosque. He said “Fathimah daughter of Qais came to ‘Umar bin Al Khattab(may Allaah be pleased with him). (When she narrated the tradition about her divorce) he said “We are not to leave the Book of our Lord and the Sunnah of our Prophet (ﷺ) for the statement of a woman, we do not know whether she remembered it or not.”
Chapter 756: Whoever Rejected What Fatimah Bint Qais Said - كتاب الطلاق
Urwah said:
حَدَّثَنَا سُلَيْمَانُ بْنُ دَاوُدَ، حَدَّثَنَا ابْنُ وَهْبٍ، حَدَّثَنَا عَبْدُ الرَّحْمَنِ بْنُ أَبِي الزِّنَادِ، عَنْ هِشَامِ بْنِ عُرْوَةَ، عَنْ أَبِيهِ، قَالَ لَقَدْ عَابَتْ ذَلِكَ عَائِشَةُ - رضى الله عنها - أَشَدَّ الْعَيْبِ يَعْنِي حَدِيثَ فَاطِمَةَ بِنْتِ قَيْسٍ وَقَالَتْ إِنَّ فَاطِمَةَ كَانَتْ فِي مَكَانٍ وَحْشٍ فَخِيفَ عَلَى نَاحِيَتِهَا فَلِذَلِكَ رَخَّصَ لَهَا رَسُولُ اللَّهِ صلى الله عليه وسلم .
Aisha (Allah be pleased with her) severely objected to the tradition of Fatimah daughter of Qays. She said: Fatimah lived in a desolate house and she feared for her loneliness there. Hence the Messenger of Allah (ﷺ) accorded permission to her (to leave the place).
Yahya ibn Sa'id ibn al-'As divorced the daughter of 'Abd al-Rahman ibn al-Hakam absolutely. 'Abd al-Rahman shifted her (from there). Aisha sent a message to Marwan ibn al-Hakam who was the governor of Medina, and said to him: Fear Allah, and return the woman to her home. Marwan said (according to Sulayman's version): 'Abd al-Rahman forced me. Marwan said (according to the version of al-Qasim): Did not the case of Fatimah daughter of Qays reach you? Aisha replied: There would be no harm to you if you did not make mention of the tradition of Fatimah. Marwan said: If you think that it was due to some evil (i.e. reason), then it is sufficient for you to see that there is also an evil between the two.
Maimun bin Mihram said “I came to Median and went to Sa’id bin Al Musayyab”. I said (to him) Fathimah daughter of Qais was divorced and she shifted from her house. Sa’id said “This woman has perverted people. She was arrogant so she was placed with Ibn Umm Makhtum, the blind.”
Jabir said “My maternal aunt was divorced by three pronouncements and she went out to cut down fruit from her palm trees. A man met her and forbade her (to go out). So she went to the Prophet (ﷺ) and mentioned it to him. He said “Go out, and cut down fruit from your palm trees for perhaps you may give alms (sadaqah) or do an act of kindness.
The Qur’anic verse “Those of you who die and leave widows should bequeath for their widows a year’s maintenance and residence was abrogated by the verse containing the laws of succession, as one-fourth or one-eighth share was prescribed for them (i.e., the widows). The waiting period for one year was also repealed as a period of four months ten days was prescribed for them.
Zainab said: I visited Umm Habibah when her father AbuSufyan, died. She asked for some yellow perfume containing saffron (khaluq) or something else. Then she applied it to a girl and touched her cheeks.
She said: I have no need of perfume, but I heard the Messenger of Allah (ﷺ) say: It is not lawful for a woman who believes in Allah and the Last Day to observe mourning for one who has died, more than three nights, except for four months and ten days in the case of a husband.
Zaynab said: I also visited Zaynab, daughter of Jahsh, when her brother died. She asked for some perfume and used it upon herself.
She then said: I have no need of perfume, but I heard the Messenger of Allah (ﷺ) say when he was on the pulpit: It is not lawful for a woman who believes in Allah and the Last Day to observe mourning for one who has died, more than three nights, except for four months and ten days in the case of a husband.
Zaynab said: I heard my mother, Umm Salamah, say: A woman came to the Messenger of Allah (ﷺ) and said: Messenger of Allah, the husband of my daughter has died, and she is suffering from sore eyes; may we put antimony in her eyes?
The Messenger of Allah (ﷺ) said: No. He said this twice or thrice. Each time he said: No. The Messenger of Allah (ﷺ) said: The waiting period is now four months and ten days. In pre-Islamic days one of you used to throw away a piece of dung at the end of a year.
Humayd said: I asked Zaynab: What do you mean by throwing away a piece of dung at the end of a year.
Zaynab replied: When the husband of a woman died, she entered a small cell and put on shabby clothes, not touching perfume or any other thing until a year passed. Then an animal such as donkey or sheep or bird was provided for her. She rubbed herself with it. The animal with which she rubbed herself rarely survived. She then came out and was given a piece of dung which she threw away. She then used perfume or something else which she desired.
Abu Dawud said: The Arabic word "hafsh" means a small cell.
Chapter 760: Regarding Such A Woman Moving To Another Residence - كتاب الطلاق
Zaynab, daughter of Ka'b ibn Ujrah narrated that Furay'ah daughter of Malik ibn Sinan, told her that she came to the Messenger of Allah (ﷺ) and asked him whether she could return to her people, Banu Khidrah, for her husband went out seeking his slaves who ran away. When they met him at al-Qudum, they murdered him.
So I asked the Messenger of Allah (ﷺ):
"Should I return to my people, for he did not leave any dwelling house of his own and maintenance for me?
She said: The Messenger of Allah (ﷺ) replied: Yes. She said: I came out, and when I was in the apartment or in the mosque, he called for me, or he commanded (someone to call me) and, therefore, I was called.
He said: what did you say? So I repeated my story which I had already mentioned about my husband. Thereupon he said: Stay in your house till the term lapses. She said:
So I passed my waiting period in it (her house) for four months and ten days. When Uthman ibn Affan became caliph, he sent for me and asked me about that; so I informed him, and he followed it and decided cases accordingly.