Yahya related to me from Malik from Rabia ibn Abd ar-Rahman that
al-Qasim ibn Muhammad and Urwa ibn az-Zubayr gave the same judgement
to al-Walid ibn Abd al-Malik in the year of his arrival in Madina
except that al-Qasim ibn Muhammad said that he divorced his wife on
various occasions. (i.e. not at one time).
Yahya related to me from Malik from Ibn Shihab that Rafi ibn
Khadij married the daughter of Muhammad ibn Maslama al-Ansari. She was
with him until she grew older, and then he married a young girl and
preferred the young girl to her. She begged him to divorce her, so he
divorced her and then he gave her time until she had almost finished
her idda period and then he returned and still preferred the young
girl. She therefore asked him to divorce her. He divorced her once,
and then returned to her, and still preferred the young girl, and she
asked him to divorce her. He said, "What do you want? There is only
one divorce left. If you like, continue and put up with what you see
of preference, and if you like, I will separate from you." She said,
"I will continue in spite of the preference." He kept her in spite of
that. Rafi did not see that he had done any wrong action when she
remained with him in spite of preference.
Yahya related to me from Malik that he had heard that a man said
to Abdullah ibn Abbas, "I have divorced my wife by saying I divorce
you a hundred times. What do you think my situation is?" Ibn Abbas
said to him, "She was divorced from you by three pronouncements, and
by the ninety-seven, you have mocked the ayat of Allah."
Yahya related to me from Malik that he had heard that a man came
to Abdullah ibn Masud and said, "I have divorced my wife by saying I
divorce you eight times." Ibn Masud said to him, "What have people
told you?" He replied, "I have been told that I have to part
absolutely from her." Ibn Masud said, "They have spoken the truth. A
person who divorces as Allah has commanded, Allah makes it clear for
him, and a person who obscures himself in error, we make stay by his
error. So do not confuse yourselves and pull us into your confusion.
It is as they have said."
Yahya related to me from Malik from Yahya ibn Said from Abu Bakr
ibn Hazm thatUmar ibn Abd al-Aziz had asked him what people said about
the 'irrevocable' divorce, and Abu Bakr had replied that Aban ibn
Uthman had clarified that it was declared only once. Umar ibn Abd al-
Aziz said, "Even if divorce had to be declared a thousand times,
the'irrevocable' would use them all up. A person who says,
'irrevocably' has cast the furthest limit."
Yahya related to me from Malik from Ibn Shihab that Marwan ibn
al-Hakam decided that if someone made three pronouncements of divorce,
he had divorced his wife irrevocably.
Malik said, "That is
what I like best of what I have heard on the subject."
29.2
Divorce by Euphemistic Statements
Yahya related to me from Malik that he had heard that Umar ibn
al-Khattab had heard in a letter from Iraq that a man said to his
wife, "Your rein is on your withers (i.e. you have free rein)." Umar
ibn al-Khattab wrote to his governor to order the man to come to him
at Makka at the time of hajj. While Umar was doing tawaf around the
House, a man met him and greeted him. Umar asked him who he was, and
he replied that he was the man that he had ordered to be brought to
him. Umar said to him, "I ask you by the Lord of this building, what
did you mean by your statement, 'Your rein is on your withers.'?" The
man replied, "Had you made me swear by other than this place, I would
not have told you the truth. I intended separation by that." Umar ibn
al- Khattab said, "It is what you intended."
Yahya related to me from Malik that he had heard that Ali ibn Abi
Talib used to say that if a man said to his wife, "You are haram for
me," it counted as three pronouncements of divorce.
Malik
said, "That is the best of what I have heard on the subject."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said that statements like "I cut myself off from you",or"You are
abandoned", were considered as three pronouncements of divorce.
Malik said that any strong statements such as these or others were
considered as three pronouncements of divorce for a woman whose
marriage had been consummated. In the case of a woman whose marriage
had not been consummated, the man was asked to make an oath on his
deen, as to whether he had intended one or three pronouncements of
divorce. If he had intended one pronouncement, he was asked to make an
oath by Allah to confirm it, and he became a suitor among other
suitors, because a woman whose marriage had been consummated, required
three pronouncements of divorce to make her inaccessible for the
husband, whilst only one pronouncement was needed to make a woman
whose marriage had not been consummated inaccessible.
Malik
added, "That is the best of what I have heard about the matter."
Yahya related to me from Malik from Yahya ibn Said from al-Qasim
ibn Muhammad that a certain man had taken a slave-girl belonging to
somebody else as a wife. He said to her people, "She is your concern,"
and people considered that to be one pronouncement of divorce.
Yahya related to me from Malik that he heard Ibn Shihab say that
if a man said to his wife, "You are free of me, and I am free of you,
" it counted as three pronouncements of divorce as if it were an
'irrevocable' divorce.
Malik said that if a man made any
strong statement such as these to his wife, it counted as three
pronouncements of divorce for a woman whose marriage had been
consummated, or it was written as one of three for a woman whose
marriage had not been consummated, whichever the man wished. If he
said he intended only one divorce he swore to it and he became one of
the suitors because, whereas a woman whose marriage had been
consummated was made inaccessible by three pronouncements of divorce,
the woman whose marriage had not been consummated was made
inaccessible by only one pronouncement.
Malik said, "That is
the best of what I have heard."
Yahya related to me from Malik that he had heard that a man came
to Abdullah ibn Umar, and said, "Abu Abd ar-Rahman! I placed the
command of my wife in her hand, and she divorced herself, what do you
think?" Abdullah ibn Umar said, "I think that it is as she said." The
man said, "Don't do it, Abu Abd ar-Rahman!" Ibn Umar said, "You did
it, it has nothing to do with me."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said, "When a man gives a woman command over herself, then the result
is as she decides unless he denies it and says that he only meant to
give her one divorce and he swears to it - then he has access to her
while she is in her idda."
Yahya related to me from Malik from Said ibn Sulayman ibn Zayd
ibn Thabit that Kharija ibn Zayd ibn Thabit told him that he was
sitting with Zayd ibn Thabit when Muhammad ibn Abi Atiq came to him
with his eyes brimming with tears. Zayd asked him what the matter was.
He said, "I gave my wife command of herself, and she separated from
me." Zayd said to him, "What made you do that?" He said, "The Decree."
Zayd said, "Return to her if you wish for it is only one
pronouncement, and you have access to her."
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim
from his father that a man of Thaqif gave his wife command over
herself, and she said, "You are divorced." He was silent. She said,
"You are divorced." He said, "May a stone be in your mouth." She said,
"You are divorced." He said, "May a stone be in your mouth." They
argued and went to Marwan ibn al-Hakam. He took an oath that he had
only given her control over one pronouncement, and then she returned
to him.
Malik said that Abd ar-Rahman declared that this
decision had amazed al-Qasim, who thought it the best that he had
heard on the subject.
Malik added, "That is also the best of
what I have heard on the subject."
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim
from his father that A'isha, umm al-muminin, proposed to Qurayba bint
Abi Umayya on behalf of Abd ar-Rahman ibn Abi Bakr. They married her
to him and her people found fault with Abd ar-Rahman and said, "We
only gave in marriage because of A'isha." A'isha therefore sent for
Abd ar-Rahman and told him about it. He gave Qurayba authority over
herself and she chose her husband and so there was no divorce.
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim
from his father that A'isha, the wife of the Prophet, may Allah bless
him and grant him peace, gave Hafsa bint Abd arRahman in marriage to
al-Mundhir ibn az-Zubayr while Abd ar-Rahman was away in Syria. When
Abd ar-Rahman arrived, he said, "Shall someone like me have this done
to him? Am I the kind of man to have something done to him without his
consent?" A'isha spoke to al-Mundhir ibn az-Zubayr, and al-Mundhir
said, "It is in the hands of Abd ar-Rahman." Abd ar-Rahman said, "I
won't oppose something that you have already completed." Hafsa was
confirmed with al-Mundhir, and there was no divorce.
Yahya related to me from Malik that he had heard that Abdullah
ibn Umar and Abu Hurayra were asked about a man who gave his wife
power over herself, and she returned it to him without doing anything
with it. They said that there was no divorce. (i.e. The man's giving
his wife power over herself was not interpreted as a desire for
divorce on his part.)
Yahya related to me from Malik from
Yahya ibn Said that Said ibn al-Musayyab said, "If a man gives his
wife authority over herself, and she does not separate from him and
remains with him, there is no divorce."
Malik said that a
woman whose husband gave her power over herself and they separated
while she was unwilling, had no power to revoke the divorce. She only
had power over herself as long as they remained together.
Yahya related to me from Malik from Jafar ibn Muhammad from his
father that Ali ibn Abi Talib said, "When a man takes a vow to abstain
from intercourse, divorce does not occur immediately. If four months
pass, he must declare his intent and either he is divorced or he
revokes his vow . "
Malik said, "That is what is done among
us."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said, "When a man makes a vow to abstain from intercourse with his
wife and four months have passed he must declare his intent and either
he is divorced or he revokes his vow. Divorce does not occur until
four months have passed and he continues to abstain."
Yahya
related to me from Malik from Ibn Shihab that Said al-Musayyab and Abu
Bakr ibn Abd ar-Rahman said about a man who made a vow to abstain from
intercourse with his wife, "If four months pass it is a divorce. The
husband can go back to his wife as long as she is in her idda."
Yahya related to me from Malik that he had heard that Marwan ibn
al-Hakam decided about a man who had made a vow to abstain from
intercourse with his wife, that when four months had passed, it was a
divorce and he could return to her as long as she was in her idda.
Malik added, "That was also the opinion of Ibn Shihab."
Malik said that if a man made a vow to abstain from intercourse
with his wife and at the end of four months he declared his intent to
continue to abstain, he was divorced. He could go back to his wife,
but if he did not have intercourse with her before the end of her
idda, he had no access to her and he could not go back to her unless
he had an excuse - illness, imprisonment, or a similar excuse. His
return to her maintained her as his wife. If her idda passed and then
he married her after that and did not have intercourse with her until
four months had passed and he declared his intent to continue to
abstain, divorce was applied to him by the first vow. If four months
passed, and he had not returned to her, he had no idda against her nor
access because he had married her and then divorced her before
touching her.
Malik said that a man who made a vow to abstain
from intercourse with his wife and continued to abstain after four
months and so divorced her, but then returned and did not touch her
and four months were completed before her idda was completed, did not
have to declare his intent and divorce did not befall him. If he had
intercourse with her before the end of her idda, he was entitled to
her. If her idda passed before he had intercourse with her, he had no
access to her. This is what Malik preferred of what he had heard on
the subject.
Malik said that if a man made a vow to abstain
from intercourse with his wife and then divorced her, and the four
months of the vow were completed before completion of the idda of the
divorce, it counted as two pronouncements of divorce. If he declared
his intention to continue to abstain and the idda of the divorce
finished before the four months the vow of abstention was not a
divorce. That was because the four months had passed and she was not
his on that day.
Malik said, "If someone makes a vow not to
have intercourse with his wife for a day or a month and then waits
until more than four months have passed, it is not ila. Ila only
applies to someone who vows more than four months. As for the one who
vows not to have intercourse with his wife for four months or less
than that, I do not think that it is ila because when the term enters
into it at which it stops, he comes out of his oath and he does not
have to declare his intention."
Malik said, "If someone vows
to his wife not to have intercourse with her until her child has been
weaned, that is not ila. I have heard that Ali ibn Abi Talib was asked
about that and he did not think that it was ila."
Yahya related to me from Malik that he had asked Ibn Shihab about
the ila of the slave. He said that it was like the ila of the free
man, and it put an obligation on him. The ila of the slave was two
months.