Divorce Hadith Style Lucas

Published online 19 March 2008 Journal of Islamic Studies 19:3 (2008) pp.
325368
doi:10.1093/jis/etn005
DIVORCE, EADITH-SCHOLAR STYLE: FROM AL-D2RIMI TO AL-TIRMIDHI

S C O T T C . LU C A S University of Arizona How did the major third/ninth century Aad;th scholars articulate Islamic law? Until recently, the majority of both traditional Muslim scholars and Western-trained academics have devoted greater attention to the contents of the canonical Aad;th books than to the legal hermeneutics of these books individual compilers. Despite the existence of important studies on third/ninth century Aad;th-scholar jurisprudence by N<r al-D;n 6Itr,1 Susan Spectorsky,2 and Christopher Melchert,3 the legal reasoning sequestered in the rich tomes of even the 4aA;As of al-Bukh:r; (d. 256/870) and Muslim (d. 261/875) remains largely unexplored in a systematic or comparative manner. This study analyzes the jurisprudence of six prominent third/ninth century Aad;th scholars. While forty-ve legal topics related to divorce are found in at least one of these scholars books, only six topics are discussed in all six of them. My close analysis of these texts yields three major conclusions: 1) Some Aad;th scholars were more open about expressing their personal legal opinions than others; 2) Ead;th scholars developed three distinct methodologies for determining the laws of divorce; and 3) Ead;ths were of limited utility to the task of constructing certain elds of Islamic law during the early 6Abbasid period.
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METHODOLOGY
This project originated with the simple plan of comparing the Book on Divorce (kit:b al-3al:q) in the major third/ninth-century collections
N<r al-D;n 6Itr, al-Im:m al-Tirmidh; wa-l-muw:zana bayna J:mi6ih wa-bayna al-BaA;Aayn (Ma3ba6at Lajnat al-Ta8l;f wa-l-Tarjama wa-l-Nashr, 1970). 2 Susan Spectorsky, Chapters on Marriage and Divorce: Responses of Ibn Eanbal and Ibn R:hawayh (Austin: University of Texas Press, 1993); id., AAmad ibn Eanbals Fiqh, Journal of the American Oriental Society, 102/3 (1982): 4615; id., Ead;th in the Responses of IsA:q b. R:hawayh, Islamic Law and Society, 8/3 (2001), 40731. 3 Christopher Melchert, Traditionist-Jurisprudents and the Framing of Islamic Law, Islamic Law and Society 8/3 (2001): 383406.
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of Sunni Aad;ths. I selected the following six books: 1) 6Abd All:h b. 6Abd al-RaAm:n al-D:rim;s (d. 255/869) Sunan4 (often called Musnad); 2) MuAammad b. Ism:6;l al-Bukh:r;s al-J:mi6 al-BaA;A;5 3) Muslim b. al-Eajj:js 4aA;A;6 4) Ibn M:jas (d. 273/887) Sunan;7 5) Ab< D:w<d al-Sijist:n;s (d. 275/889) Sunan;8 and Ab< 6Is: al-Tirmidh;s (d. 279/892) al-J:mi6 (also known as Sunan).9 All of these scholars travelled extensively throughout the Nile-to-Oxus region in order to collect Aad;ths and they shared many common teachers. Al-Bukh:r; and Muslim had a close relationship for several years in Nishapur, and al-Tirmidh; includes many of al-Bukh:r;s critical opinions concerning Aad;th transmitters and narrations in his J:mi6. All of these books, with the exception of al-D:rim;s Sunan, achieved inclusion into the six canonical Aad;th collections over the course of several centuries, a fact which should not obscure the methodological independence of each of their compilers that this article explores. It became apparent during my initial reading of these six books that they all contain some chapters in their Books on Divorce that lack a clear connection to the process of terminating a marriage. For example, all six books devote at least one chapter to the special restrictions imposed upon a widow during the waiting period (6idda) following her husbands death, called iAd:d in Arabic. This nding is not at all surprising since death and divorce are the only events that occasion a waiting period and so it is reasonable for both topics to be treated in close proximity to one another. However, for the purpose of this study,
4 I am using Sunan al-D:rim;, ed. Sayyid Ibr:h;m and 6Al; MuAammad 6Al; (Cairo: D:r al-Ead;th, 2 vols., 2000). All references to specic Aad;ths in this article will follow the Wensinck system of (kit:b: b:b number). 5 The primary edition of al-Bukh:r;s 4aA;A that I am using is the text included in Ibn Eajar al-6Asqal:n;s commentary, FatA al-b:r;, ed. Ibn B:z (Beirut: D:r al-Fikr, 15 vols., 1996). 6 I am using the text of 4aA;A Muslim found in al-Nawaw;, 4aA;A Muslim bi-sharA al-Nawaw;, ed. MuAammad Fu8:d 6Abd al-B:q; (Beirut: D:r al-Kutub al-6Ilmiyya, 18 vols., 2000). 7 Sunan Ibn M:ja, ed. MaAm<d MuAammad NaBB:r (Beirut: D:r al-Kutub al-6Ilmiyya, 5 vols., 1998). 8 Sunan Ab; D:w<d, ed. 6Izzat 6Ubayd al-Da66:s and 62dil al-Sayyid (Beirut: D:r Ibn Eazm, 5 vols., 1997). 9 al-Tirmidh;, al-J:mi6 al-BaA;A wa huwa Sunan al-Tirmidh;, ed. AAmad Sh:kir et al., (Beirut: D:r IAy:8 al-Tur:th al-6Arab;, 5 vols., nd.). The third volume, in which the Book on Divorce is located, was edited by MuAammad Fu8:d 6Abd al-B:q;.
D I V O R C E , E A D I T H - s ch o l a r
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I do not consider any chapters that are not explicitly concerned with legal topics pertaining to the termination of a marriage contract. This qualication also led me to disregard chapters on topics related to fornication,10 occasions for the revelation of certain Qur8:nic verses,11 and even al-Bukh:r;s recommendation (based on a statement attributed to Ibn 6Umar) against marrying non-Muslim women.12 My second task was to group the chapters into coherent legal topics in order to identify the breadth of Aad;th-scholar jurisprudence. Although there are certain legal topics that appear regularly in all qh books, there is no standard system of organization and one can always argue that certain legal topics should be parsed into multiple ones. Therefore, the 45 topics into which I have classied the legal material pertaining to divorce in these Aad;th books are somewhat arbitrary, just as the chapters of any qh book must be.13 Complications arose when I realized that several Aad;th scholars place divorce-related topics outside of the Book on Divorce. For example, Muslim has a distinct Book on Li6:n (mutual imprecation) immediately following the Book on Divorce, and al-D:rim; has a chapter on li6:n in his Book on Marriage. Likewise, Ibn M:ja and al-Tirmidh; discuss child custody in their Books on Rulings (aAk:m) and the impact on the marriage contract of a spouses conversion to Islam in their Books on Marriage. In light of this complex situation, I decided to include in my analysis the contents of divorce chapters outside the narrow connes of the Book on Divorce only if they were in unambiguously legal books; in practical terms, this means I did not consider material in the Book on Qur8:nic exegesis (tafs;r) in the works of al-Bukh:r;, Muslim and al-Tirmidh;, or Aad;ths located in the ethical, historical, and theological books in any of the six compilations under study. Once I had determined the precise portions of these six Aad;th books that merited inclusion in this project, I could proceed with my analysis. The rst stage consisted of reviewing early legal books, such as the Muwa33a8s of M:lik b. Anas (d. 179/795) and MuAammad b. al-Easan al-Shayb:n; (d. 189/805), the MuBannafs of 6Abd al-Razz:q al-4an6:n; (d. 211/827) and Ab< Bakr ibn Ab; Shayba (d. 235/849), and the Mudawwana of SaAn<n (d. 240/854), in order to determine which legal
For example, Ab< D:w<d, Sunan (3al:q: 30, 50). For example, Ab< D:w<d, Sunan (3al:q: 36); al-Tirmidh;, al-J:mi6 (3al:q: 16). 12 al-Bukh:r;, 4aA;A (3al:q: 18). See Table 1 in the Appendix for the chapters I have examined in this study. 13 See Table 2 at the end of the article for the list of all 45 topics and the books in which each one is found.
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topics pertaining to divorce were in circulation during the third/ninth century. The second stage was largely empirical, identifying which topics appeared in the six Aad;th books and their respective frequencies in them. The nal stage involved determining which transmitted materialssound Aad;ths, weak Aad;ths, and post-prophetic reportseach Aad;th scholar included in his chapters. This stage required close textual analysis, which in turn illuminated the individual hermeneutics of each compiler.14
DIVORCE IN THE LEGAL DISCOURSE OF THE THIRD/NINTH CENTURY

Al-D:rim; and his contemporary Aad;th scholars composed their books after more than a century of legal writing and argumentation had elapsed. For example, Ibn Ab; Shayba, a major source of transmitted materials for both Muslim and Ibn M:ja, discusses 281 topics in his Book on Divorce in his massive MuBannaf. A generation earlier, the Yemeni 6Abd al-Razz:q covered over 250 divorce-related issues in his equally voluminous MuBannaf. Susan Spectorsky, in the introduction to her translation of the legal opinions on marriage and divorce of Ibn Eanbal (d. 241/855) and Ibn R:hawayh (d. 238/853), identies the following seven broad categories into which most divorce topics fall:
1. 2. 3. 4. 5. Divorce proper (3al:q), especially statements that effect a divorce;15 The Cih:r oath;16 The oath of sexual abstinence (;l:8);17 The procedure of mutual imprecation (li6:n);18 The act of granting the woman the choice to divorce (takhy;r, khiy:r);19
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N<r al-D;n 6Itrs book, al-Im:m al-Tirmidh;, provides useful descriptions of the hermeneutics of al-Tirmidh; and al-Bukh:r; on pp. 3558, and further suggestions for ascertaining al-Tirmidh;s opinions on 35874. He concludes that al-Tirmidh; is a mujtahid murajjiA capable of determining the preponderant opinion on a legal topic who follows the method of the Aad;th scholars (ahl al-Aad;th), whereas al-Bukh:r; is more or less a fully-independent mujtahid, using the method (3ar;q) of Aad;th-scholar jurists (3912). 15 Spectorsky provides a helpful guide to ten categories of divorce statements that are prevalent in the legal literature, few of which appear in the Aad;th literature; Chapters on Marriage and Divorce, 2739. 16 This is an oath of divorce that a man swears against his wife in which he compares her to his mothers back; Spectorsky, Chapters, 39. See also Qur8:n 58. 24. 17 Spectorsky, Chapters, 425; Qur8:n 2. 2267. 18 Spectorsky, Chapters, 457; Qur8:n 24. 69. 19 Spectorsky, Chapters, 489; Qur8:n 33. 289.
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6. The female-initiated divorce (khul6);20 7. The waiting period (6idda);21
This framework works very well with most of the early qh books that have survived. YaAy: al-Layth;s recension of M:liks Muwa33a8 has at least two chapters on all seven of these categories, while the recension of al-Shayb:n; covers all of them except the Cih:r oath.22 Al-Shayb:n;s book, al-J:mi6 al-Bagh;r, covers all of these categories in some depth, with the exception of mutual imprecation, and devotes special attention to a dizzying array of divorce statements.23 Most of the chapters on divorce in the aforementioned MuBannafs of 6Abd al-Razz:q and Ibn Ab; Shayba, along with SaAn<ns Mudawwana, fall into these seven categories, although these books also explore the effects on the marriage bond of conversion to and apostasy from Islam.24 Finally, al-Muzan;s (d. 264/878) decision to divide the divorce-related topics in his MukhtaBar into the Book on Female-initiated divorce, Book on Divorce (3al:q), Book on Gih:r, and Book on Waiting Periods, indicates the signicance of these categories in his vision of Islamic law.25
20 Spectorsky, Chapters, 502; Qur8:n 2. 229; . . . it is no sin for either of them if the woman ransoms herself. (All Qur8:nic citations in this article are from M.A.S. Abdel Haleems The Qur8:n: A New Translation (Oxford, 2004).) 21 Spectorsky, Chapters, 529; Qur8:n 2. 228, 2. 234 (widow), 33. 49, 65. 4. 22 M:lik b. Anas, al-Muwatta of Imam Malik ibn Anas: The First Formulation of Islamic Law, transl. Aisha Bewley (Inverness, Scotland: Madina Press, 2001), 22143; and MuAammad al-Shayb:n;, The Muwatta of Imam Muhammad, transl. Mohammed Abdurrahman and Abdassamad Clarke (London: Turath Publishing, 2004), 24272. Note that only ve prophetic Aad;ths with isn:ds pertaining to divorce are found in M:liks Muwa33a8 and only three are present in al-Shayb:n;s recension. 23 MuAammad al-Shayb:n;, al-J:mi6 al-Bagh;r, ma6a sharAih al-N:6 al-kab;r (Beirut: 62lam al-Kutub, 1986), 191243. Near the end of this section, al-Shayb:n; states that the li6:n procedure does not result in the dissolution of the couple unless the q:@; separates them. If he does so, this counts as a single divorce in which the husband does not have the right to take back his wife during her waiting period. The text also reports that al-Shayb:n; allowed the couple to remarry after the li6:n procedure, whereas Ab< Y<suf denied such a possibility; ibid, 2423. 24 While Spectorsky does not count the effects of conversion and apostasy among the seven major divorce topics, she mentions them under her subheading, Various other topics; Spectorsky, Chapters, 59. 25 Note that al-Muzan; discusses at some length takhy;r and the oath of sexual abstinence in the Book on Divorce and mutual imprecation in the Book on Gih:r.
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This study demonstrates that the Aad;th scholars from al-D:rim; to al-Tirmidh; were well aware of the major legal debates that had been brewing since the second/eighth century. Despite this general awareness, there were several contentious topics among the early jurists that none of the Aad;th scholars under consideration, with the exception of al-Bukh:r;, broached in their books. These topics include the validity of conditional divorce statements, the effect on inheritance of the man who divorces his wife during his terminal illness, and the right of a woman whose husband has gone missing (al-mafq<d) to dissolve her marriage in order to remarry. We shall now examine the six legal topics addressed by all of the Aad;th scholars under discussion and then analyse the methodology of each scholar individually.
CASE STUDIES: UNIVERSAL TOPICS

Only six legal topics concerning divorce can be found in all of the Aad;th books under analysis. Each of these topics is afliated with a unique cluster of narrative Aad;ths that are often recounted through multiple channels of transmission. This quality inevitably facilitated memorization and transmission of each episode, along with its concomitant legal implications, but also, in several cases, resulted in divergent reports that correlate to juristic disagreements. This nding is not unanticipated, since Western scholars have long argued that Aad;ths are repositories of the earliest Muslim debates.26 1 The Sunna Divorce: The story of Ibn 6Umars mistimed divorce Al-D:rim;, al-Bukh:r;, Muslim, and al-Tirmidh; all open their Books on Divorce with the tale of 6Abd All:h b. 6Umars (d. 73 or 74/6923) poorly-executed divorce.27 These Aad;ths report that Ibn 6Umar divorced his wife while she was menstruating, that his father reported this action to the Prophet, and that the Prophet ordered 6Umar to tell his son that he must take back his wife. The story fragments from here, with one variant having the Prophet granting Ibn 6Umar the right to divorce her after she has puried herself from menstruation, and, in a second variant, postponing his right to divorce until the time when she has puried
26 [The corpus of Aad;th] contains invaluable evidence for the evolution of Islam during the years when it was forming itself into an organized whole from powerful mutually opposed forces; Ignaz Goldziher, Muslim Studies (ed. S. M. Stern; Chicago: George Allen and Unwin, 2 vols., 1971 (188990)), ii. 19. 27 Ibn M:ja puts it in the second and third chapters, while Ab< D:w<d places it in Chapter 4.
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herself from an additional period of menstruation after the one during which he initially divorced her. This story is further complicated by the question as to whether the inappropriate divorce attempted by Ibn 6Umar counted as one of the two Qur8:nically-permitted revocable divorces. In his Sunan, Ab< D:w<d elucidates the tangled web of transmissions of this story:
Y<nus b. Jubayr, Anas b. S;r;n, Sa6;d b. Jubayr, Zayd b. Aslam, Ab< l-Zubayr, and ManB<r (b. al-Mu6tamir) via Ab< W:8il all relate this Aad;th from Ibn 6Umar: The gist according to all of them is that the Prophet ordered (Ibn 6Umar) to take back his wife until she was free from menstruation, then, if he wished, he could divorce her, and if he wished, he could keep her. This is also the case of what MuAammad b. 6Abd al-RaAm:n related from S:lim, on the authority of Ibn 6Umar. The transmission from Ibn 6Umar (S:lim and N:6) al-Zuhr; says that the Prophet ordered Ibn 6Umar to take her back until she was free from menstruation, had another period, and then was free from menstruation again, prior to making a decision whether to divorce her or keep her. A similar report to the N:6 al-Zuhr; Aad;th was transmitted via Ibn 6Umar al-Easan 6A3:8 al-Khur:s:n;. All of these Aad;ths contradict what Ab< l-Zubayr said, namely that Ibn 6Umars divorce did not count as one of the two revocable divorces.28
Ibn 6Umars story became inseparable from the sunna divorce, which is the title given to the chapters in which it initially appears in all six Aad;th compilations. The primary lesson from this story is that a man must take back his wife if he divorces her during her menstrual period. Al-Bukh:r; states, The sunna divorce is one in which a man divorces his wife during her period of purity prior to having intercourse with her (after her period), and that he has two witnesses,29 and, in the following chapter, that the divorce counts as one of his (two) revocable divorces.30 Muslim, in one of his rare legal opinions, says, It is unlawful to divorce a menstruating woman without her consent and if he disobeys this rule, his divorce counts and he is to be ordered to take back his wife.31 Al-Tirmidh; uses the identical denition of the sunna divorce (without mentioning the witnesses) as al-Bukh:r; and links it to the practice (6amal) of the scholars among the Companions of the Prophet and others. He alone mentions and leaves unresolved the debate
28 Sunan Ab; D:w<d, 2:442 (3al:q: 4). Ab< l-Zubayrs report is number 2185 and says that Ibn 6Umars divorce did not count as a divorce (wa lam yarah: shay8an). 29 al-Bukh:r;, 4aA;A (3al:q: 1). 30 Ibid, (3al:q: 2). 31 Muslim, 4aA;A (3al:q: 1).
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between the jurists, like al-Sh:6; (d. 204/820) and Ibn Eanbal, who are of the opinion that the sunna divorce encompasses a triple divorce in one setting, versus the opinion of Sufy:n al-Thawr; (d. 161/778) and Ibn R:hawayh that restricts the sunna divorce to a single utterance of divorce in any period during which the wife is free from menstruation.32 Neither al-D:rim; nor Ab< D:w<d offers a precise denition of the sunna divorce, and they relate Aad;ths supporting both the opinion that a man can divorce his wife a second time immediately following her menstrual period when he rst divorced her, and the opinion that he must wait until after one additional period of menstruation prior to divorcing her again. Ibn M:ja only relates the version of this report in which Ibn 6Umar is ordered to wait until after his ex-wifes second menstrual cycle to divorce her in his chapter on the sunna divorce, but complicates matters in the following chapter by recounting a variant version in which the Prophet merely says to 6Umar, Tell (Ibn 6Umar) to take her back and then divorce her when she is free from menstruation or pregnant.33 The story of Ibn 6Umars mistimed act of repudiation serves as crucial evidence for a modication to the Qur8:nic laws of divorce. Nowhere does the Qur8:n indicate that a man cannot divorce his wife while she is menstruating and all six Aad;th scholars understood this Aad;th as a limit upon the husbands unfettered right to divorce. They also all agreed that the divorce counted, either on the basis of the preponderance of reports, or, in the case of al-Bukh:r;, from a separate statement attributed to Ibn 6Umar himself.34 What the Aad;th scholars collectively demonstrate is that Ibn 6Umars story spread rapidly among his Umayyad-era students and that the two inconsistencies among its multiple transmissions did not seriously affect its impact on Muslim jurisprudence. 2 The Marriage that allows a terminally divorced couple to remarry: The story of Rif:6a al-QuraC;s unsatisfied ex-wife35 The second topic relies upon the only story possessing a touch of sexual humour. Rif:6a (b. Sam<8al) al-QuraC;36 divorced his wife triply and she
al-Tirmidh;, al-J:mi6 (3al:q: 1). He also records the disagreement over the sunna divorce of a pregnant woman. 33 Ibn M:ja, Sunan (3al:q: 2, 3). 34 al-Bukh:r;, 4aA;A (3al:q: 2). 35 al-D:rim;, Sunan (3al:q: 4); al-Bukh:r;, 4aA;A (3al:q: 4, 7, 37); Muslim, 4aA;A (nik:A: 17); Ibn M:ja, Sunan (nik:A: 32); Ab< D:w<d, Sunan (3al:q: 49); al-Tirmidh;, al-J:mi6 (nik:A: 27). 36 Nothing appears to be known about Rif:6a beyond this Aad;th; Ibn Sa6d, Kit:b al-Fabaq:t al-kab;r (ed. 6Al; MuAammad 6Umar; Cairo: Maktabat al-Kh:nj;, 11 vols., 2001), v. 395; Ibn Eajar, al-IB:ba f; tamy;z al-BaA:ba, (Beirut: D:r al-Fikr, 4 vols., 1978), i. 518.
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subsequently married 6Abd al-RaAm:n b. al-Zubayr al-QuraC;. Rif:6as ex-wife, whose name is never mentioned in the Aad;ths, went to the Prophet and, in several versions, complained that her new husbands manhood was akin to an eyelash or thread (hudba).37 The Prophet surmised that she wished to return to the more satisfactory Rif:6a and informed her that she could not lawfully remarry him until her new husband had tasted her sweet honey (6usayla) and, in some versions, she had tasted his sweet honey.38 The story ends abruptly with this euphemistic prophetic statement. In addition to casting an embarrassing light upon the anatomy of a certain 6Abd al-RaAm:n b. al-Zubayr, the story of Rif:6as ex-wife claried the meaning of the Qur8:nic verse that requires the woman who has been divorced three times to marry another man and be divorced by him prior to remarrying her original husband.39 Theoretically, a woman could be divorced prior to consummation, since the verb 3allaqa is employed in this manner in Qur8:n 2. 2367. This memorable prophetic locution cemented the requirement of consummation with the new husband prior to the remarriage with the original one and al-Tirmidh; reports in the Book on Marriage that this is the practice of the general mass of Companions and subsequent scholars.40 3 The Rights of the irrevocably divorced woman during her waiting period: The story of F:3ima bint Qays peculiar waiting period41 The story of F:3ima bint Qays (d. before 60/679) divorce has produced the most conicted interpretations of any of the Aad;ths
In the version from 628isha 6Urwa al-Zuhr;, Ab< Bakr was with the Prophet and Kh:lid b. Sa6;d overheard the conversation outside the door of the Prophets residence. Kh:lid remarked with astonishment, Can you believe what was said out loud in the Messenger of Gods presence! Sunan al-D:rim;, ii. 7 (3al:q: 4); 4aA;A Muslim, x. 3 (nik:A: 17). 38 al-Bukh:r; has the longer version as, la6allaki tur;d;n an tarji6; il: Rif:6a? l: Aatt: yadh<qa 6usaylataki wa-tadh<q; 6usaylatahu, and the shorter one as just, l: Aatt: yadh<qa 6usaylatah: kam: dh:qa l-awwal; FatA al-b:r;, x. 455 (3al:q: 4). 39 Qur8:n 2. 230. 40 al-Tirmidh;, al-J:mi6 (nik:A: 27). 41 al-D:rim;, Sunan (3al:q: 10); al-Bukhari, 4aA;A (3al:q: 41, 42); Muslim, 4aA;A (3al:q: 6); Ibn M:ja, Sunan (3al:q: 10); Ab< D:w<d, Sunan (3al:q: 39, 40); al-Tirmidh;, al-J:mi6 (3al:q: 5). Note that Ibn M:ja also uses this Aad;th to demonstrate the validity of a triple divorce in a single session (3al:q: 4) and on the topic of a womans right to leave her house during her waiting period (3al:q: 9).
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under discussion.42 The basic story is that F:3imas husband, identied in some narrations as Ab< 6Amr b. EafB, divorced her irrevocably (triply) from afar and refused to provide her with either lodging (sukn:) or maintenance (nafaqa) during her waiting period. F:3ima informed the Prophet of this situation, to which he purportedly replied that she was entitled to neither maintenance nor lodging, and, in some versions, ordered her to spend her waiting period in the house of the blind Emigrant Ibn Umm Makt<m. A few transmissions of this story include the additional details that Marw:n b. al-Eakam (d. 65/685) inquired into F:3imas case during his governorship of Madina and that the Prophet encouraged her to marry Us:ma b. Zayd after her waiting period instead of her two suitors, Mu6:wiya b. Ab; Sufy:n and Ab< Jahm.43 This story would seem totally straightforward were it not for the existence of alternative versions and Companion statements that seek to discredit F:3imas testimony. In fact, the Aad;ths from the Madinans Ab< Salama b. 6Abd al-RaAm:n, 6Ubayd All:h b. 6Abd All:h b. 6Utba, and Ab< Bakr b. Ab; Jahm al-6Adaw;,44 and the Kufan al-Sha6b; all claim to transmit the Prophets verdict from F:3ima herself. However, all six Aad;th books contain Companion reports that 6Umar and/or 628isha (d. 58/678) rejected vehemently the interpretation of F:3imas prophetic citation as a universal rule, and Marw:n and the Madinan Successors Sa6;d b. al-Musayyab45 and Sulaym:n b. Yas:r (d. 107/7256) 46 are
This Aad;th has been studied by G. R. Hawting, The Role of the Qur8:n and Ead;th in the Legal Controversy about the Rights of a Divorced Woman during her Waiting Period (6idda), Bulletin of the School of Oriental and African Studies, 52 (1989): 43045. Harald Motzki argues that this is an early Aad;th that probably goes back to F:3ima herself, pace Joseph Schacht; Harald Motzki, The Origins of Islamic Law, transl. by Marion H. Katz (Leiden: Brill, 2002), 15867. See also Asma Sayeed, Shifting Fortunes: Women and Ead;th Transmission in Islamic History (Unpublished Ph.D. dissertation, Princeton University, 2005), 8891 and 17688. 43 For a very similar description and additional references, see Hawting, The Rights of a Divorced Woman, 4367. 44 His full name is Ab< Bakr b. 6Abd All:h b. Ab; Jahm al-6Adaw;. 45 al-Dhabab; provides death dates ranging from 89/7078 to 105/7234 for Ibn al-Musayyab and declares 94/7123 to be the most likely one; Tadhkirat al-Auff:C (Beirut: D:r al-Kutub al-6Ilmiyya, 5 vols.), i. 45. 46 There exists great uncertainty over his precise death date; al-Dhahab; offers 107/7256 and 104/7223; Tadhkira, i. 70.
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depicted as being skeptical as to its validity.47 A common formulation of 6Umars attitude toward this story is his statement, We do not abandon the Book of God and the sunna of his Prophet on the basis of an utterance from a woman!48 6Umars reference to the Book of God is most likely an allusion to Qur8:n 65. 1, which states that women cannot be evicted from their homes during their waiting periods unless they commit a agrant indecency. The impact of F:3imas report and its rejection by several prominent early religious authorities divided both jurists and Aad;th scholars over the correct ruling concerning the rights of the triply divorced woman during her waiting period. Al-Tirmidh; clearly presents the three major opinions in the following manner:
Some scholars, such as al-Easan al-BaBr; (d. 110/728), 6A3:8 b. Ab; Rab:A (d. 114/732 or 115/733), al-Sha6b; (d. between 103/721 and 110/728), Ibn Eanbal, and Ibn R:hawayh are of the opinion that the divorced women receives neither lodging nor maintenance if the husband does not possess the right to take her back (raj6a). Some of the Companions of the Prophet, including 6Umar and Ibn Mas6<d, are of the opinion that the triply divorced woman is to receive both lodging and maintenance. This opinion is shared by Sufy:n al-Thawr; and the Kufans.49 Some scholars grant her lodging but not maintenance. This is the opinion of M:lik b. Anas, al-Layth b. Sa6d (d. 175/791), and al-Sh:6;. Al-Sh:6; said, We grant her lodging on the basis of the Book of God, since God said, Do not drive them out of their homes nor should they themselves leave unless they commit a agrant indecency [Qur8:n, 65. 1] [. . .]50 and she does not receive maintenance on the basis of the Aad;th of the Messenger of God (peace be upon him), concerning the story of F:3ima bint Qays.51 Marw:ns skepticism is found in the narration transmitted by al-Zuhr; from 6Ubayd All:h b. 6Abd All:h b. 6Utba; Muslim, 4aA;A (3al:q: 6) and Ab< D:w<d, Sunan (3al:q: 39). He appears less skeptical in the version transmitted by Hish:m b. 6Urwa Ibn Ab; al-Zin:d in Sunan Ibn M:ja (3al:q: 10). For the dismissive comments of Sa6;d and Sulaym:n, see Ab< D:w<d, Sunan (3al:q: 40). See also, Hawting, The Rights of the Divorced Woman, 43840. 48 al-D:rim;, Sunan (3al:q: 10). Another version adds, We do not know if she memorized this properly; Ab< D:w<d, Sunan (3al:q: 40); al-Tirmidh;, al-J:mi6 (3al:q: 6). 49 al-Tirmidh; uses the expression the Kufans as shorthand for Ab< Ean;fa, Ab< Y<suf and MuAammad al-Shayb:n;. 50 al-Tirmidh; interrupts the ow of al-Sh:6;s argument with an anonymous explanation that F:3ima did not receive lodging because she was abusive to her household (tabdh< 6al: ahlih:); al-Tirmidh;, al-J:mi6 (3al:q: 5). 51 Ibid.
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Interestingly, al-D:rim; and Ibn M:ja support the rst position outlined by al-Tirmidh;, al-Bukh:r; champions the second one, and Muslim adopts the third one.52 Al-Bukh:r; is the only Aad;th scholar under consideration who refuses to include a single Aad;th in which F:3ima actually utters the prophetic decision that denies her lodging or maintenance; rather, he cites Qur8:n 65. 1 and 65. 6,53 along with ve very different versions of 628ishas rejection of the implications of F:3imas statement.54 Al-Bukh:r;s own opinion, that the divorced woman cannot relocate during her waiting period even if it is feared that the husbands residence will become hateful to her or she will verbally abuse her [alternate: his] household, can be derived from the title of the forty-second chapter of his 4aA;A.55 The story of F:3ima bint Qays and its ensuing controversy provide a useful window into the legal hermeneutics of the six Aad;th scholars under consideration. In the showdown between F:3imas prophetic Aad;th and the critical remarks of 6Umar and 628isha, al-D:rim; and Ibn M:ja side with F:3ima, while al-Tirmidh; refuses to take sides and merely relates the three positions adopted by a handful of his illustrious predecessors. Al-Bukh:r; cites neither F:3imas Aad;th, nor 6Umars criticism, and instead elevates 628ishas opinion to the highest authority on this issue, even though she did not claim to be basing her opinion overtly on a prophetic teaching. Both Muslim and Ab< D:w<d relay a wide array of variants of F:3imas prophetic Aad;th along with the criticisms of 6Umar and 628isha, but, in the end, Ab< D:w<d refuses to adopt a transparent position, and Muslim expresses his own opinion in the chapter title, The triply divorced woman does not
52 al-D:rim;, Sunan (3al:q: 10); Ibn M:ja, Sunan (3al:q: 10); al-Bukh:r;, 4aA;A (3al:q: 41, 42); Muslim, 4aA;A (3al:q: 6). Neither Ab< D:w<d nor al-Tirmidh; provide clear evidence of their preferred positions on this topic, although Ab< D:w<d does not provide any evidence in support of the hybrid M:lik/al-Layth/ al-Sh:6; opinion. 53 House the wives you are divorcing . . . 54 al-Bukh:r; relates reports in which, 1) 628isha tells Marw:n that You will not be harmed for refraining from mentioning the statement (Aad;th) of F:3ima; 2) 628isha says, What is F:3imas problem? Do you not fear God? and 3) 628isha says to 6Urwa b. al-Zubayr after he mentioned F:3ima, She receives no merit from mentioning this statement (Aad;th); 4) 628isha says to 6Urwa, F:3ima was in an insecure place, and the Prophet made a special exception for her to move out of fear of her initial location; 5) 6Urwas observation that 628isha rejected F:3imas claim that the Prophet allowed her to relocate during her waiting period; Ibn Eajar, FatA al-b:r;, x. 598, 603 (3al:q: 41, 42). 55 Ibid; al-mu3allaqa idh: khushiya 6alayh: f;-maskan zawjih: an yuqtaAama 6alayh: aw tabdhuwa 6al: ahlih: bi-f:Aisha.
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receive maintenance.56 This case study demonstrates that all six scholars immersed themselves in the legal issues associated with the multiple narrations of F:3ima bint Qays story, and that four of them even adopted precise positions on the topic of the triply-divorced womans rights during her waiting period. 4 Does childbirth always terminate a womans waiting period? The story of Subay6as brief waiting period57 Unlike the irreconcilable legal opinions that emerged from F:3ima bint Qays story, the tale of Subay6a bint al-E:rith al-Aslamiyya58 provided a solution to a problem upon which Muslim jurists ultimately achieved consensus. One version of the story begins with a debate between Ibn 6Abb:s (d. 68/6878), Ab< Salama b. 6Abd al-RaAm:n (d. 94/7123 or 104/7223), and Ab< Hurayra (d. between 57/6767 and 59/6789) over whether a pregnant widows waiting period ends at the time of childbirth if the child is born shortly after the husbands death, or whether the widow is required to observe the full four months and ten days prescribed in Qur8:n 2. 234. Ab< Hurayra took the initiative to ask Umm Salama (d. 61/6801),59 one of the Prophets widows, her opinion, and she in turn related to him the story of Subay6a, who happened to give birth a short time after the death of her husband. Subay6a told Umm Salama that the Prophet ordered her to get married immediately, since her waiting period had ended.60 This story resolves the question as to whether the Qur8:nic verse (65. 6) declaring that a womans waiting period lasts until childbirth can shorten the prescribed waiting period of three courses, three months,
4aA;A Muslim, x. 80 (3al:q: 6). al-D:rim;, Sunan (3al:q: 11); al-Bukh:r;, 4aA;A (3al:q: 39); Muslim, 4aA;A (3al:q: 8); Ibn M:ja, Sunan (3al:q: 7); Ab< D:w<d, Sunan (3al:q: 47); al-Tirmidh;, al-J:mi6 (3al:q: 17). 58 Her deceased husbands name was Sa6d b. Khawla; Ibn Eajar, al-IB:ba, iv. 324. Ibn Eajar does not indicate Subay6as death date. 59 The death date of 61/6801 is favoured by al-Dhahab;, although he mentions that some scholars date it to 59/6789; Siyar a6l:m al-nubal:8, (Beirut: Mu8assasat al-Ris:la, 11th imp., 28 vols., 2001), ii. 210. 60 This version is found in Sunan al-D:rim;, ii. 112; 4aA;A Muslim, x. 93; and al-Tirmidh;, al-J:mi6 al-BaA;A, iii. 499. Another version involving one Ab< al-San:bil b. Ba6kak, identied by one of al-Bukh:r;s narrations as her suitor, makes no mention of the legal dispute and is found in al-D:rim;, Sunan, (3al:q: 11); al-Bukh:r;, 4aA;A (3al:q: 39); Muslim, 4aA;A (3al:q: 8); Ibn M:ja, Sunan (3al:q: 7); Ab< D:w<d, Sunan (3al:q: 47); al-Tirmidh;, al-J:mi6 (3al:q: 17).
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or four months and ten days, or whether it can only extend the womans waiting period. Even though the story is transmitted from Subay6a through six different authorities in multiple formats, all of the Aad;ths report that the Prophet encouraged (or ordered) Subay6a to marry due to the conclusion of her waiting period with the birth of her child. This consensus as to the Prophets command is also shared by the jurists, as al-Tirmidh; not only reports that it is the opinion of most of the scholarly Companions, along with al-Thawr;, al-Sh:6;, and Ibn Eanbal, but adds his own view that this is the more correct position even though some unnamed Companions preferred the woman to fulll the longer of the two possible waiting periods in all cases.61 Although technically this story addresses the widows waiting period, all of our Aad;th scholars, with the exception of Ibn M:ja, extended the Prophets ruling to the divorce waiting period as well, either overtly through their choice of chapter headings, or through their comments in the chapter.62 In short, the story of Subay6a provided Aad;th scholars and jurists with a decisive argument that a womans waiting period does in fact terminate as soon as she gives birth even if this occurs shortly after she is widowed or divorced. 5 The story of 628ishas choice63 Unlike the previous four legal topics, the common background story for takhy;r is largely unspoken in the numerous transmissions from 628isha found in the Aad;th books. The concept of takhy;r, in which a husband grants his wife (or wives) the choice (khiy:r) to either maintain or sever
al-Tirmidh;, al-J:mi6 al-BaA;A, iii. 4989. Ibn al-Mundhir (d. 318/930) attributes the position that a womans waiting period should be the longer of the two durations to 6Al; and Ibn 6Abb:s; Ibn al-Mundhir, al-Ishr:f 6al: madh:hib ahl al-6ilm, (Beirut: D:r al-Fikr, 3 vols., 1993), i. 257. 62 For example, al-D:rim;s chapter heading is, b:b f;-6iddat al-A:mil al-mutawaff: 6anh: zawjuh: wa-l-mu3allaqa (3al:q: 11), and Muslims reads, b:b inqi@:8 6iddat al-mutawaff: 6anh: zawjuh: wa-ghayrih: bi-wa@6 al-Aaml (3al:q: 8). Ibn M:ja uses a unique Aad;th concerning Umm Kulthum bint 6Uqbas act of tricking her husband, al-Zubayr b. al-6Aww:m, into offering her a single divorce just moments prior to her giving birth, thus denying him the opportunity to take her back during her waiting period; Sunan (3al:q: 6). The isn:d has a lacuna (munqa3i6), although this story is also found in Umm Kulthums entry in Ibn Sa6d, Kit:b al-Fabaq:t al-kab;r, x. 21820. 63 al-D:rim;, Sunan (3al:q: 5); al-Bukh:r;, 4aA;A (3al:q: 5); Muslim, 4aA;A (3al:q: 4, 5); Ibn M:ja, Sunan (3al:q: 20); Ab< D:w<d, Sunan (3al:q: 12); al-Tirmidh;, al-J:mi6 (3al:q: 4).
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the marriage bond, derives from the Qur8:nic passage (33. 289) in which the Prophet is commanded:
Say to your wives, If your desire is for the present life and its nery, then come, I will make provision for you and release you with kindness, but if you desire God, His Messenger, and the Final Home, then remember that God has prepared great rewards for those of you who do good.
Only Muslim provides any sort of narrative in his discussion of granting the choice, and his lengthy accounts link it to additional Qur8:nic verses and topics, such as the episode of banning (taAr;m) in S<ra 66 and the oath of sexual abstinence (;l:8).64 Al-Tirmidh; describes succinctly the uncertainty over the nature of takhy;r among the early Muslim legal authorities:
The scholars disagree over khiy:r. It has been narrated from 6Umar and Ibn Mas6<d that if the woman chooses herself, it is a single divorce in which he cannot take her back during her waiting period (b:8ina). It has also been reported that they considered it to be a single revocable divorce and that if she chooses her husband, it does not count as anything. It has been narrated from 6Al; that if she chooses herself, it is a single irrevocable divorce, whereas if she chooses her husband, it is a single revocable divorce. Zayd b. Th:bit [d. between 42/6623 and 56/6756] said that it is a single divorce if she chooses her husband and a triple divorce if she chooses herself. Most of the scholars and jurists among the Companions and their successors adopted the position of 6Umar and Ibn Mas6<d. It is the opinion of Sufy:n al-Thawr; and the Kufans. Ibn Eanbal followed the position of 6Al;.65
All six books contain at least one Aad;th transmitted by the Kufan Successor Masr<q b. al-Ajda6 (d. 63/6823) from one of the immediate participants in the rst takhy;r, 628isha. Although the exact wording of nearly all of the narrations transmitted from Masr<q by his Kufan pupils al-Sha6b;, Muslim b. Kh:lid, and Ab< al-DuA:66 exhibit inconsistencies, all of them report 628ishas comment that, the Prophet granted us the choice (khayyaran:) and that it did not count
64 Chapter 5 of Muslims Book on Divorce is called, On ;l:8, withdrawing from ones wives, and granting them the choice; also the Qur8:nic verse if (the two of) you collaborate against him (66. 4); 4aA;A Muslim, x. 70. 65 al-Tirmidh;, al-J:mi6 al-BaA;A, iii. 4834. 66 His name is Muslim b. 4ubayA al-Hamd:n;.
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as a divorce.67 In one of al-Bukh:r;s two Aad;ths on this topic, Masr<q drives home the legal point by exclaiming, I do not care whether I offer her the choice once or a hundred times after she chooses me!68 Muslim includes two Madinan versions of 628ishas story with several more narrative details than Masr<qs succinct Kufan reports, but both of them conspicuously lack any indication as to whether the husbands act of granting his wife the choice counts as a divorce.69 Assuming that the Aad;ths found in the Sunans of al-D:rim;, Ibn M:ja, and Ab< D:w<d, which report that the Prophet divorced EafBa and then took her back, either refer to a different incident than the takhy;r episode or are inauthentic,70 628ishas story, in its Kufan manifestation, serves as a decisive proof in favour of the mainstream Sunni position that the act of granting ones wife the choice does not count as a divorce if she chooses to remain with her husband.
6 The Procedure for mutual imprecation: the story of the first li6:n71 The nal topic covered by all six Aad;th scholars under examination, mutual imprecation, contains the most tangled web of narratives that strive to answer questions left unanswered by the Qur8:n. The verses introducing li6:n provide a procedure by which a man can deny paternity of his wifes child by accusing his wife of indelity without the requisite four witnesses, as can be seen in the following Qur8:nic passage (24. 67):
As for those who accuse their own wives of adultery, but have no other witnesses, let each one four times call God to witness that he is telling the truth, and, the fth time, call God to reject him if he is lying; punishment shall be averted from his wife if she in turn four times calls God to witness that her husband is lying and, the fth time, calls God to reject her if she is telling the truth.
al-D:rim;, Sunan (3al:q: 5); al-Bukh:r;, 4aA;A (3al:q: 5); Muslim, 4aA;A (3al:q: 4, 5); Ibn M:ja, Sunan (3al:q: 20); Ab< D:w<d, Sunan (3al:q: 12); al-Tirmidh;, al-J:mi6 (3al:q: 4). 68 L: ub:l; a-khayyartuh: w:Aida aw mi8a ba6d an takht:ran;: FatA al-b:r;, x. 461 (3al:q: 5). 69 Muslim, 4aA;A (3al:q: 4). 70 al-D:rim;, Sunan (3al:q: 2); Ibn M:ja, Sunan (3al:q: 1); Ab< D:w<d, Sunan (3al:q: 38). 71 al-D:rim;, Sunan (nik:A: 39); al-Bukh:r;, 4aA;A (3al:q: 2530, 326); Muslim, 4aA;A (li6:n); Ibn M:ja, Sunan (3al:q: 27); Ab< D:w<d, Sunan (3al:q: 279); al-Tirmidh;, al-J:mi6 (3al:q: 22). See also Joseph Schachts extensive entry, li6:n in the EI2.
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These verses raise two major questions that are reected both in the Aad;th-scholars chapters devoted to li6:n and the three major stories72 found among the Aad;ths on this topicDoes li6:n actually lead to the termination of the marriage, and, if it does, which parent gains custody of the child? The various versions of the rst li6:n story can answer these questions, even though they are contradictory concerning the name of the rst man who executed this procedure. The only report found in all six Aad;th books is transmitted by either N:6, mawl: of Ibn 6Umar (d. between 117/735 and 120/738), or Sa6;d b. Jubayr (d. 95/714) from 6Abd All:h b. 6Umar. While Ibn 6Umar does not reveal the precise name of the rst man to perform li6:n, he indicates in most versions that it was either an AnB:r; or someone from Ban< al-6Ajl:n. The signicance of Ibn 6Umars story is not the identity of the involved parties, but rather the information that the Prophet separated the parties, and, in the case of N:6s narrations, granted custody of the baby to the mother.73 The second most popular version of this story is transmitted from the long-lived Companion Sahl b. Sa6d al-Sa6:d; (d. 91/70910 or 88/7067) directly to al-Zuhr; (d. 124/742). It includes the names of the two primary characters, 62sim b. 6Ad; (d. 45/6656),74 to whom the Prophet refused to answer the question, What does a man do if he nds someone
72 A fourth story reports Sa6d b. 6Ub:das jealousy were he to nd a man in bed with his wife and segues into the jealousy (ghayra) of the Prophet and God, with little to say about the li6:n process; al-D:rim;, Sunan (nik:A: 37); Muslim, 4aA;A (li6:n); al-Bukh:r;, 4aA;A (Aud<d: 42). A fth story, told by Ab< Hurayra on the authority of the Prophet, concerns a Bedouin who denies paternity of a dark skin baby borne by his wife and is more of a warning against the hasty denial of paternity than an elucidation of li6:n procedure; see al-Bukh:r;, 4aA;A (3al:q: 26); Muslim 4aA;A (li6:n); Ibn M:ja, Sunan (nik:A: 58); Ab< D:w<d, Sunan (3al:q: 28); al-Tirmidh;, al-J:mi6 (al-wal:8 wa-l-hiba: 4). 73 For Ibn 6Umar Sa6;d b. Jubayr, see al-D:rim;, Sunan (nik:A: 39); al-Bukh:r;, 4aA;A (3al:q 32, 33, 52, 53; Muslim, 4aA;A (li6:n); Ab< D:w<d, Sunan (3al:q: 27); al-Tirmidh;, al-J:mi6 (3al:q: 22). For Ibn 6Umar N:6, see al-D:rim;, Sunan (nik:A: 39); al-Bukh:r;, 4aA;A (3al:q: 34, 35); Muslim, 4aA;A (li6:n); Ibn M:ja, Sunan (3al:q: 27); Ab< D:w<d, Sunan (3al:q: 27); al-Tirmidh;, al-J:mi6 (3al:q: 22). Ibn Jubayrs story begins with a dispute in Iraq during the reign of MuB6ab b. al-Zubayr (68691) over whether termination of the marriage (tafr;q) is part of the li6:n procedure and involves Ibn Jubayr visiting a fatigued Ibn 6Umar in the Hijaz. 74 62Bim was ordered by the Prophet not to attend Badr but was present at all of the battles from UAud through T:b<k; He lived 105 years, according to Ibn Sa6d, Fabaq:t, iii. 432.
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in bed with his wife? and 6Uwaymir al-6Ajl:n;,75 the unfortunate fellow who found himself in this situation, who is also one of the candidates for whom the li6:n verses were revealed. While these narrations provide names to this event, the Aad;ths of M:lik, Ibn Jurayj, Y<nus, Ibr:h;m b. Sa6d and 6Iy:@ b. 6Abd All:h al-Fihr; from al-Zuhr; have 6Uwaymir confessing that he lied during the li6:n procedure and quickly proceeded to divorce triply his wife before the Prophet commanded him (to do so), whereas al-Awz:6;s narration does not mention the triple divorce.76 Further complicating Sahls report is the narration of Ibn 6Uyayna from al-Zuhr;, which, according to Ab< D:w<d, is the only report on the authority of Sahl in which the Prophet himself terminated 6Uwaymirs marriage.77 Another Aad;th, transmitted from Ibn 6Abb:s, that almost certainly relates to this same event, mentions 62Bim b. 6Ad; and his anonymous kinsman, whom Ibn Eajar (d. 852/1449) identies as 6Uwaymir.78 Ibn 6Abb:s recounting of the story, like the majority of the Aad;ths transmitted from Sahl, provides no evidence for the termination of the marriage at the end of the li6:n process, and instead narrates that the li6:n occurred after the wife gave birth and the Prophet saw that the infant bore a strong resemblance to the man who was accused of adultery. This already tangled web of narrations is further complicated by reports that the rst man to perform li6:n was Hil:l b. Umayya,79 who
Nothing much appears to be known about him outside of this Aad;th, other than that he was present at UAud; ibid, iv. 2945. 76 For al-Zuhr; M:lik, see al-D:rim;, Sunan (nik:A: 39); al-Bukh:r;, 4aA;A (3al:q: 29); Muslim, 4aA;A (li6:n), Ab< D:w<d, Sunan (3al:q: 27). For al-Zuhr; Ibn Jurayj, see al-Bukh:r;, 4aA;A (3al:q: 30); Muslim, 4aA;A (li6:n). For al-Zuhr; Y<nus, see Muslim, 4aA;A (li6:n). For al-Zuhr; Ibr:h;m b. Sa6d, see Ibn M:ja, Sunan (3al:q: 27). For al-Zuhr; 6Iy:@ b. 6Abd All:h, see Ab< D:w<d, Sunan (3al:q: 27). For al-Zuhr; al-Awz:6;, see al-D:rim;, Sunan (nik:A: 39), Ab< D:w<d, Sunan (3al:q: 27). The only scholar under examination not to include Sahls story is al-Tirmidh;. 77 Literally, separated (farraqa) the couple. Ab< D:w<ds comment is found following Ibn 6Uyaynas narration in Sunan Ab; D:w<d, ii.475 (3al:q: 27). This Aad;th is not found in the other four collections. 78 FatA al-b:r;, x. 569, 578 (3al:q: 31, 36); Muslim, 4aA;A (li6:n). 79 Hil:l was an early convert to Islam who does not appear to have been present at UAud. He achieved some notoriety for being among the three men criticized and forgiven in the Qur8:n (9. 118) for staying behind in Madina during the raid to T:b<k; Ibn Sa6d, Fabaq:t, iv. 31516. Note that Ibn Sa6d does not associate Hil:l with the rst li6:n.
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accused Shar;k b. SaAm:880 of having committed adultery with his wife without any witnesses. This story is found in the books of al-Bukh:r;, Muslim, Ibn M:ja, and Ab< D:w<d on the authority of Anas b. M:lik or Ibn 6Abb:s. Interestingly, the versions in al-Bukh:r;, Muslim, and Ibn M:ja have as a common link the Basran Hish:m b. Eass:n al-Qurdus; (d. 147/7645 or 148/7656),81 who claimed to have heard it from 6Ikrima Ibn 6Abb:s and Ibn S;r;n Anas.82 These reports make no mention of separating the spouses and focus instead upon Hil:ls status as the rst person in Islam to perform li6:n, along with the practice of determining paternity on the basis of physiognomy. The clusters of reports that name or indicate 6Uwaymir as the rst practitioner of li6:n and those that award Hil:l this dubious distinction defy satisfactory reconciliation and forced Aad;th scholars to adopt certain strategies for dealing with them.83 Al-D:rim; and al-Tirmidh; avoid this confusion by only citing narrations that relate to the 6Uwaymir story, and al-Tirmidh; goes one step further by limiting his chapter to the two recensions of Ibn 6Umars account of li6:n afrming the legal point that the arbiter must separate the couple at its conclusion.84 Muslim, Ibn M:ja, and Ab< D:w<d collect all of the contradictory versions of this story in a single chapter (or book) simply labelled as, What has reached us concerning li6:n and leave it for the reader to sort out the legal implications of this knot of Aad;ths.85 Al-Bukh:r; demonstrates his legal
SaAm:8 is Shar;ks mothers name; his fathers name is 6Abda b. Mugh;th and, like 6Uwaymir, he belongs to the Ban< 6Ajl:n. It is unclear as to whether he was present at UAud and he may have been among the military commanders in Syria during the caliphates of Ab< Bakr and 6Umar; Ibn Sa6d, Fabaq:t, iv. 295; Ibn Eajar, IB:ba, ii. 150. Ibn Sa6d, interestingly, combines the stories so that 6Uwaymir accuses his fellow tribesman Shar;k of commiting adultery with his wife. 81 For more on Hish:m, see Ibn Sa6d, Fabaq:t, ix. 271. Note that the great Basran Aad;th critic, YaAy: b. Sa6;d al-Qa33:n (d. 198/813), cautiously graded Hish:m as reliable (thiqa), God willing. 82 Ab< D:w<d does have a lengthy additional transmission from Ibn 6Abb:s 6Ikrima 6Abb:d b. ManB<r that does not involve Hish:m; Ab< D:w<d, Sunan (3al:q: 27). 83 Another self-identied witness to an act of li6:n, Ibn Mas6<d, merely identies the male imprecator as an AnB:r;, which could refer to either 6Uwaymir or Hil:l. 84 al-Tirmidh; states after Ibn Jubayrs version of the Ibn 6Umar narration that, the practice of the scholars is in accordance with this Aad;th; al-Tirmidh;, al-J:mi6 (3al:q: 22). 85 al-D:rim; and al-Tirmidh; use the same chapter heading as Muslim and Ab< D:w<d, but include fewer contradictory reports. Ibn M:ja includes a couple of additional unique Aad;ths in his chapter on li6:n that have nothing to do with the story of the rst li6:n; Sunan (3al:q: 27).
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acumen by employing the various versions of these stories to tease out multiple legal details in ten chapters of his Book on Divorce.86 He wields the transmission of Sahl Zuhr; Ibn Jurayj as proof that the li6:n procedure can (or should?) be done in a mosque,87 the Ibn 6Umar N:6 6Ubayd All:h transmission to indicate that the two parties are to N:6 M:lik version to show be separated,88 and the Ibn 6Umar that the mother receives custody of the child.89 Al-Bukh:r; only uses the version in which Hil:l is named as the rst imprecator in his chapter stating that the man goes rst in the li6:n procedure90 and does not include the Anas narration of this report in his 4aA;h. The lesson we derive from our analysis of the pile of contradictory Aad;ths about the rst li6:n is that the Aad;th scholars three strategies consisted of reducing or eliminating the contradictions through: 1) selective inclusion; 2) faithfully recording all of the variations without providing legal opinions; or, in the case of al-Bukh:r;, 3) ignoring the contradictions while simultaneously exploiting the variations in order to derive multiple legal rulings. It is remarkable that only six of the 45 divorce-related topics addressed by at least one of the third/ninth-century Aad;th scholars under consideration are found in all of the major Aad;th collections from this period. These topics appear at rst sight to be highly random, ranging from the prohibition of divorcing ones wife while she is menstruating, to the clarication that a woman who, when granted the choice, chooses to stay with her husband has not expended one of her two revocable divorces, and to the crucial role of the q:@; in separating the couple that has performed the very public procedure of mutual imprecation. The two topics concerning the waiting period are surprising, since Subay6as story merely reafrms the declaration in Qur8:n 65. 6 that a womans waiting period is completed at the moment of childbirth, whereas F:3imas report that triply-divorced women receive neither maintenance nor lodging seemed incorrect in the eyes of 628isha and 6Umar. What is more striking
There are actually twelve chapters in al-Bukh:r;s 4aA;A that deal with li6:n, but Chapter 25 (the validity of indicating li6:n by writing or pointing) does not include any Aad;ths related to the rst li6:n stories, and Chapter 31, which includes the rst Ibn 6Abb:s story, relates to the identity of the woman to whom the Prophet was referring when he supposedly said, Were I to have stoned anyone without evidence, I would have stoned her; FatA al-b:r;, x. 550 and 569. 87 al-Bukh:r;, 4aA;A (3al:q: 30). 88 Ibid, 4aA;A (3al:q: 34). He also cites Sahls narration as evidence for One who divorces (his wife) after the li6:n process; (3al:q: 29). 89 Ibid, 4aA;A (3al:q: 35). 90 Ibid, 4aA;A (3al:q: 28).
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is that all six topics consist primarily of short narratives involving an unusual selection of Companions of the Prophet, ranging from the famous Ibn 6Umar and 628isha to the more obscure F:3ima bint Qays, Subay6a, 6Uwaymir al-6Ajl:n;, and the unnamed wife of Rif:6a al-QuraC;. While we have seen some differences among our Aad;th scholars in their presentations of these six topics, their individual legal methodologies emerge most clearly when we compare their overall articulations of the laws of divorce to each other, the summary presentation of which will occupy the remainder of this article.
INDIVIDUAL PROFILES
Now that the six core topics have been elucidated, we can identify which legal issues al-D:rim;, al-Bukh:r;, Muslim, Ibn M:ja, Ab< D:w<d, and al-Tirmidh; chose to address and analyse their sources. Each Aad;th scholar will be introduced in the order of the ascending quantity of legal topics pertaining to divorce he addresses, with the exception of al-Bukh:r;, whom I shall consider after Ibn M:ja, due to the former scholars unique hermeneutics. 1 Ab< l-Eusayn Muslim b. al-Eajj:j al-Nays:b<r; Muslim covers a mere twelve legal topics related to divorce in his 4aA;A, half of which we just examined in the previous section. These topics are found in four different sections of his Aad;th compilation in addition to the Book on Divorce and generally consist solely of prophetic Aad;ths with complicated transmission histories. He shows little concern for procedural issues surrounding divorce proper (3al:q), beyond his assertion that a man who declares his wife unlawful (Aar:m) has merely issued an oath that must be expiated if he wishes to have intercourse with her if he did not intend to divorce her,91 along with a large cluster of Aad;ths that include the prophetic prohibition against a woman stipulating that her suitor must divorce his existing wives prior to marrying her.92 While he recounts Ibn 6Abb:s Aad;th that a triple divorce counted merely as a single one at the time of the Prophet, Ab< Bakr, and the early years of 6Umars caliphate, a report which centuries later Ibn Taymiyya (d. 728/1328) and AAmad MuAammad Sh:kir
Muslim, 4aA;A (3al:q: 3). This topic is also found in al-Bukh:r;, 4aA;A (3al:q: 7, 8) and Ibn M:ja, Sunan (3al:q: 28). 92 Muslim, 4aA;A (buy<6: 4). This topic is also discussed by al-Bukh:r;, 4aA;A (nik:A: 54), Ab< D:w<d, Sunan (3al:q: 2), and al-Tirmidh;, al-J:mi6 (3al:q: 14).
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(18921958) would seize upon as evidence in their opposition to the triple divorce,93 Muslim merely labels this chapter the triple divorce without comment.94 Muslim touches briey upon three additional topics. His section on the oath of forswearing sexual intercourse with ones wives consists largely of lengthy narratives of the dramatic episodes surrounding the identities of the two wives who collaborated against (the Prophet) mentioned in Qur8:n 66. 4 and claries that the Prophet ended his month-long ;l:8 after only 29 days, instead of the expected 30-day month.95 He relates a single narration of a Aad;th in which J:bir b. 6Abd All:h (d. between 73/6923 and 78/6978) reports that the Prophet permitted his divorced mother to attend to her date palms away from her house during the daytime of her waiting period, a report which al-D:rim;, Ibn M:ja, and Ab< D:w<d also employ in support of this position.96 Finally, Muslim presents the widely reported Aad;th about 628ishas act of manumitting Bar;ra, which all of the Aad;th scholars under consideration, save al-Tirmidh;, use to demonstrate the right of the married slave woman to chose whether to remain married to her husband or divorce him at the time she gains her freedom.97
See MuAammad Ab< Zahr:, Ibn Taymiyya (Cairo: D:r al-Fikr al-6Arab;, n.d.), 4201; AAmad Sh:kir, NiC:m al-3al:q f;-l-Isl:m (Cairo: D:r al-Fib:6a al-Qawmiyya, 2nd edn., 1969), 43 (references), 5760. In addition to this Aad;th, Ibn Taymiyya and AAmad Sh:kir also relied upon a version of the Ruk:na Aad;th (described below), their reading of Qur8:n 2. 229, and qiy:s. 94 Muslim, 4aA;A (3al:q: 2). This Aad;th is also found in Ab< D:w<d, Sunan (3al:q: 10). I assume that the fact Muslim does not declare the triple divorce to be unlawful means that he at least tacitly approves its practice. 95 Muslim, 4aA;A (3al:q: 5). Ibn M:ja also reports that the Prophet performed a one-month ;l:8 that was only twenty-nine days; Sunan (3al:q: 24). Al-Bukh:r;, as we shall see below, links the month-long ;l:8 to a separate incident in the Prophets life involving a broken leg; al-Bukh:r;, 4aA;A (3al:q: 21). 96 Muslim, 4aA;A (3al:q: 7); al-D:rim;, Sunan (3al:q: 14); Ibn M:ja, Sunan (3al:q: 9); and Ab< D:w<d, Sunan (3al:q: 41). Al-Bukh:r; probably did not include this Aad;th since the only version narrated by these four scholars contains the isn:d J:bir Ab< l-Zubayr, and, according to al-Dhahab;, al-Bukh:r; (along with Ab< Zur6a and Ab< E:tim) considered Ab< l-Zubayr to be nonauthoritative (l: yuAtajju bi-hi); Siyar a6l:m al-nubal:8, v. 381. 97 Muslim, 4aA;A (6itq: 2); al-D:rim;, Sunan (3al:q: 15); al-Bukh:r;, 4aA;A (3al:q: 1517); Ibn M:ja, Sunan (3al:q: 29); Ab< D:w<d, Sunan (3al:q: 1922). Note that al-Tirmidh; relates a highly abbreviated narration of Bar;ras story that does not mention her right to chose to end her marriage; al-J:mi6 (al-wal:8 wa-l-hiba: 1).
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Muslims chapters on divorce indicate the limited utility of Aad;ths of the highest level of authenticity in early Muslim jurisprudence. Muslim is silent on the topics of the female-initiated divorce, child custody, adverse circumstances at the time of divorce, the Cih:r oath, and the impacts of conversion upon marriage. While it is possible that he simply missed some of these Aad;ths in the course of his studies, a more likely explanation for their absence are his critical standards. For example, the widely-circulated story about the wife of Th:bit b. Qays khul6 divorce that al-Bukh:r; and others cite has 6Ikrima, mawl: of Ibn 6Abb:s (d. 107/ 7256), in its isn:d, and al-Dhahab; (d. 748/1348) states that Muslim shunned 6Ikrima on account of his alledged Khariji beliefs.98 Likewise, Muslim is reported (as also is al-Bukh:r;) to have distrusted the controversial family isn:d related by Shu6ayb b. 6Amr, which happens to be the primary chain of transmission for the report, divorce is only valid if you are married to (lit., own) the woman, which is a popular proof that divorce prior to marriage is invalid.99 In short, Muslims methodology, as he informs us in the introduction of his book,100 led him to restrict the contents of his 4aA;A to prophetic Aad;ths that he evaluated as sound, despite the consequence that for certain legal elds, such as divorce, he could only address a tiny fraction of the relevant issues. 2 Ab< MuAammad 6Abd All:h b. 6Abd al-RaAm:n al-D:rim; Although al-D:rim; only covers sixteen divorce-related topics in his Sunan, he discusses eight issues ignored by Muslim. These topics include the afrmation that a divorce uttered prior to marriage is invalid,101 the exibility of the batta divorce,102 the female-initiated divorce,103 child
al-Dhahab;, Tadhkira, i. 74. The death date of 107 is provided by al-Dhahab;. Schacht says that the best attested date for his death is 105/7234; 6Ikrima, EI2. 99 L: 3al:q ill: f;-m: tamlik . . . ; Ab< D:w<d, Sunan (3al:q: 7). Slight variants of this statement are found in Ibn M:ja, Sunan (3al:q: 17) and al-Tirmidh;, al-J:mi6 (3al:q: 6). 100 For a translation of this introduction, see G. H. A. Juynboll, Muslims introduction to his 4aA;A, translated and annotated with an excursus on the chronology of tna and bid6a, Jerusalem Studies in Arabic and Islam, 5 (1984), 263311. 101 al-D:rim;, Sunan (3al:q: 3). He cites a different Aad;th from the one found in the books of Ibn M:ja, Ab< D:w<d, and al-Tirmidh;. 102 Ibid, Sunan (3al:q: 8). The Arabic expression al-batta is translated by Susan Spectorsky as denitely or decisively, and she cites Lanes denitions of b-t-t, to cut off, sever, or separate; Spectorsky, Chapters, 30. 103 al-D:rim;, Sunan (3al:q: 7).
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custody,104 and the rules concerning the divorce of a slave girl.105 He also recounts the lengthy story of Salama al-Bay:@;s act of breaking the Cih:r oath during Rama@:n106 and the Prophets purported statement that, Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise, which Ibn M:ja, Ab< D:w<d, and al-Tirmidh; all use to discourage this practice.107 The nal subject introduced by al-D:rim; is that the Prophet divorced EafBa and took her back during her waiting period, a report which possibly indicates the desirability of taking back ones wife during her 6idda.108 Al-D:rim; covers these additional legal topics through a mixture of sound and weak transmissions of prophetic Aad;ths. For example, he introduces the topic of the female-initiated divorce through the widely transmitted story of Eab;ba bint Sahl who, one morning, met the Prophet outdoors and said, Neither me, nor Th:bit. Upon Th:bits arrival, the Prophet said, Take from her what you wish, and set her free. Eab;ba said, I have everything he has given me right here, and the narrator of the Aad;th, 6Amra bint 6Abd al-RaAm:n (d. 98/717 or 106/724), reports that Th:bit took a portion of what he had given her and then Eab;ba settled into her fathers home.109 While the gist of this core khul6 story is found in all of the Aad;th books under consideration, except for Muslims 4aA;A,110 al-D:rim;s version adds the twist that Th:bit was initially angry with Eab;ba because she told him that the
Ibid, Sunan (3al:q: 16). Ibid, Sunan (3al:q: 17). 106 Ibid, Sunan (3al:q: 9). This Aad;th is mentioned in Gerald Hawting, An Ascetic Vow or an Unseemly Oath?: ;l:8 and Cih:r in Muslim Law, Bulletin of the School of Oriental and African Studies, 58/1 (1994), 11325, at 118. 107 Ayyum: imra8a sa8alat zawjah: 3al:qan f;-ghayr ba8s fa-Aar:m 6alayh: r:8iAat al-janna; al-D:rim;, Sunan (3al:q: 6); Ibn M:ja, Sunan (3al:q: 21); Ab< D:w<d, Sunan (3al:q: 18); al-Tirmidh;, al-J:mi6 (3al:q: 11). 108 al-D:rim;, Sunan (3al:q: 2). This report is also cited by Ibn M:ja, Sunan (3al:q: 1) and Ab< D:w<d, Sunan (3al:q: 38). 109 al-D:rim;, Sunan (3al:q: 7). 110 al-Bukh:r;, 4aA;A (3al:q: 12, 13); Ibn M:ja, Sunan (3al:q: 213); Ab< D:w<d, Sunan (3al:q: 18); al-Tirmidh;, al-J:mi6 (3al:q: 10). Note that one of al-Bukh:r;s transmissions identies the wife of Th:bit b. Qays as Jam;la and a second one as Bint 6Abd All:h b. Ubayy. Furthermore, Ibn M:ja includes unique narrations in which her name appears as Eab;ba bint Sahl and Jam;la bint Sal<l (3al:q: 22). Ibn 6Abd al-Barr observes that the Basrans call her Jam;la bint Ubayy while the Madinans call her Eab;ba bint Sahl; see Ibn Eajar, FatA al-b:r;, x. 501 (3al:q: 12). Ibn Eajars solution is that these are two discrete stories and that Eab;ba rst performed the khul6 divorce on Th:bit, and then Jam;la followed suit at a later date.
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Prophet, who was their neighbour, wanted to marry her, and that Th:bit subsequently struck her.111 This detail suggests that al-D:rim; only considered the khul6 divorce valid in cases of an abusive husband, especially when we read this chapter in conjunction with his previously mentioned prophetic statement that, Any woman who asks her nonabusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise. Al-D:rim; claries the nature of the batta divorce and the divorce of a slave girl through the use of Aad;ths with weak isn:ds. The rst Aad;th, variants of which are found in the books of Ibn M:ja, Ab< D:w<d, and al-Tirmidh;, recounts the story of a conversation between the Prophet and a distraught man named Ruk:na who exclaims, I did a batta divorce! The Prophet asks, What did you want it to be? to which Ruk:na replies, a single divorce. The Prophet then tells him, It is what you intended.112 The second weak Aad;th, also found in the books of Ibn M:ja, Ab< D:w<d, and al-Tirmidh;, merely reports that the Prophet said, A slave girl can only be divorced twice and her waiting period is two menstrual cycles.113 Despite the modest number of topics that both al-D:rim; and Muslim address, it is striking that only the former provides useful information for six of the seven classications of divorce topics that Spectorsky identied in her previously cited study of Ibn Eanbal and Ibn R:hawayh.114 Al-D:rim; reaches a broader array of legal topics than Muslim through a combination of both sound and weak prophetic Aad;ths that Muslim did not deem worthy to disseminate or of which he was unaware.
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Ab< D:w<d also includes one narration in which Th:bit struck her and broke part of her; Sunan (3al:q: 18). 112 al-D:rim;, Sunan (3al:q: 8); Ibn M:ja, Sunan (3al:q: 19); Ab< D:w<d, Sunan (3al:q: 14); al-Tirmidh;, al-J:mi6 (3al:q: 2). Al-D:rim;s version is unique in that it reports that the Prophet made Ruk:na swear By All:h prior to telling him It is what you intended. In some of the other versions, the Prophet just sends him back to his ex-wife. Al-Bukh:r; denitely knew of this Aad;th, which does not appear in his 4aA;A, because al-Tirmidh; informs us that when he asked him about it, al-Bukh:r; declared it to be inconsistent (f;hi i@3ir:b) since it was transmitted in a version in which the word triply was substituted for al-batta. Note that the expression batta3al:q; appears in some of the narrations of the story of Rif:6as unsatised ex-wife (discussed above) in al-Bukh:r;, 4aA;A (3al:q: 4) and Muslim, 4aA;A (nik:A: 17). 113 al-D:rim;, Sunan (3al:q: 17). 114 The only category for which al-D:rim; has nothing to say is the oath of abstinence, about which, as we saw above, Muslim has practically nothing to say as well.
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This strategy is essentially the same as that of Ibn M:ja, Ab< D:w<d, and al-Tirmidh;, and it is perhaps for this reason that all of al-D:rim;s legal topics related to divorce and most of his Aad;ths are found in the books of these three men. 3 Ab< 6Is: MuAammad b. 6Is: al-Tirmidh; Al-Tirmidh;s inclusion of the legal opinions of the leading jurists who preceded him, including the eponyms of the four Sunni schools of law, demonstrates his awareness of the vibrant legal discourse in which he was composing his J:mi6. He addresses 24 legal topics surrounding divorce which touch upon all of Spectorskys categories, as well as the category of the impact of conversion to Islam upon preexisting marriage bonds. In addition to covering the majority of topics found in al-D:rim;s Book on Divorce,115 there is an elevated focus in al-Tirmidh;s J:mi6 on issues concerning the divorce procedure, such as the validity of a divorce that one utters in jest,116 but the invalidity of the divorce uttered only to oneself or by an insane man.117 Al-Tirmidh; reports that the Prophet approved 6Umars act of forcing his son to divorce one of his wives whom 6Umar disliked,118 obliged a man who converted to Islam to divorce six of his ten wives,119 ordered another convert to choose one of the two sisters whom he married prior to becoming Muslim,120 and stipulated that when a woman converts to Islam, her non-Muslim husband is automatically divorced a single divorce that is only revocable if he converts to Islam during her waiting period.121 A good example of al-Tirmidh;s methodology can be seen in his discussion of the takhy;r statement in which a man says to his wife, Your
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The only topics that al-D:rim; covers upon which al-Tirmidh; is silent are: 1) Taking ones wife back after a revocable divorce; 2) A woman can leave her house during the daylight hours of her waiting period; and 3) The right of a manumitted married slave woman to takhy;r. 116 al-Tirmidh;, al-J:mi6 (3al:q: 9); Ibn M:ja, Sunan (3al:q: 13); and Ab< D:w<d, Sunan (3al:q: 9). 117 al-Tirmidh;, al-J:mi6 (3al:q: 8, 15); al-Bukh:r;, 4aA;A (3al:q: 11); Ibn M:ja, Sunan (3al:q: 15). 118 al-Tirmidh;, al-J:mi6 (3al:q: 13); Ibn M:ja, Sunan (3al:q: 36). 119 al-Tirmidh;, al-J:mi6 (nik:A: 33); Ibn M:ja, Sunan (nik:A: 40) and Ab< D:w<d, Sunan (3al:q: 25). 120 al-Tirmidh;, al-J:mi6 (nik:A: 34); Ibn M:ja, Sunan (nik:A: 39) and Ab< D:w<d, Sunan (3al:q: 25). 121 al-Tirmidh;, al-J:mi6 (nik:A: 43); al-Bukh:r;, 4aA;A (3al:q: 20); Ibn M:ja, Sunan (nik:A: 60) and Ab< D:w<d, Sunan (3al:q: 23, 24).
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matter is in your hand (amruki bi-yadiki). The sole prophetic Aad;th pertinent to this topic is the following:
Eamm:d b. Zayd [d. 179/795] said to Ayy<b [al-Sakhtiy:n;, d. 131/7489], Do you know of anyone other than al-Easan al-BaBr; who considers the expression, your matter is in your hand to count as three [divorces]? Ayy<b said, No, only al-Easan. Then [Ayy<b] said, God forgive me! There is the report which Qat:da related to me from Kath;r, mawl: of Ban< Samura, from Ab< Salama, from Ab< Hurayra, from the Prophet (peace be upon him), who said, Three. Ayy<b continued, I met up with Kath;r mawl: Ban< Samura and when I asked him about [this Aad;th] he did not recognize it. Then I returned to Qat:da and informed him of all this, to which he said, [Kath;r] forgot.122
This conversation between Eamm:d and Ayy<b, two luminaries of Aad;th scholarship in late-Umayyad Basra, dwarfs the actual statement of the Prophet and does little to instil condence that anyone other than al-Easan al-BaBr; considered the expression Your matter is in your hand as a potential triple divorce. Al-Tirmidh; candidly describes this Aad;th as poorly attested (ghar;b) and known only from Eamm:d b. Zayd Sulaym:n b. Earb.123 He includes al-Bukh:r;s verdict that the report really communicates Ab< Hurayras opinion rather than that of the Prophet, before recounting the following juristic disagreement on this topic:
6Umar and Ibn Mas6<d say, (Your matter is in your hand) is a single divorce. 6Uthm:n and Zayd b. Th:bit say it is for as many divorces as she wishes (al-qa@:8 m: qa@at). Ibn 6Umar: If she divorces him three times after he says, Your matter is in your hand and the husband says, I only put your matter in your hand for a single divorce, he must take an oath, and his statement with the oath is what stands. Sufy:n al-Thawr; and the Kufans agree with 6Umar and Ibn Mas6<d. M:lik and Ibn Eanbal agree with the position of 6Uthm:n and Zayd. Ibn R:hawayh follows the opinion of Ibn 6Umar.124
In a similar vein, al-Tirmidh; provides a concise summary of the batta divorce that we encountered in our recent discussion of al-D:rim;s Sunan:
It is reported that 6Umar made the batta a single divorce, while 6Al; counted the batta as a triple divorce. Some scholars said that it depends on the mans al-Tirmidh;, al-J:mi6 al-BaA;A, iii. 481 (3al:q: 3); Ab< D:w<d, Sunan (3al:q: 13). 123 al-Tirmidh;, al-J:mi6 al-BaA;A, iii. 482. 124 Ibid, al-J:mi6 (3al:q: 3).
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intention: if he intends a single divorce, it is singular, and if he intends a triple divorce, it is triple, and if he intends a double divorce, it can only be a single divorce. This is the opinion of Sufy:n al-Thawr; and the Kufans. M:lik says that if he has consummated the marriage, the batta divorce counts as a triple divorce. Al-Sh:6; says that if he intends a single batta divorce, it is only one divorce and he possesses the right to take her back; if he intends a double batta divorce, it is a double divorce; and if he intends a triple batta divorce, it is a triple.125
Al-Tirmidh; achieves a level of transparency and harmonization between Aad;th and the emerging schools of law that is unparalleled among his third/ninth-century peers. Each Aad;th is graded, so the reader learns, for example, that 628ishas report that the Prophet said, A slave girl can only be divorced twice and her waiting period is two menstrual cycles, is poorly attested and only attributed to the Prophet by MuC:hir b. Aslam, who did not transmit any Aad;ths other than this one, hardly an evaluation that inspires condence in its veracity.126 Al-Tirmidh; restricts his discussion to topics for which he has a prophetic Aad;th and he rarely presents multiple narrations of the same report. Even though his inclusion of fragments of the discourse of juristic disagreement (ikhtil:f al-fuqah:8) sets al-Tirmidh; apart from his cohorts, his methodology is ultimately the same as that of al-D:rim;, namely the discussion of only those legal topics connected to a sound, fair,127 or weak Aad;th. 4 Ab< D:w<d Sulaym:n b. al-Ash6ath al-Sijist:n; Ab< D:w<ds deep interest in Islamic law can be detected from the relatively large number of legal topics presented in his Sunan, along with his other short surviving books, such as his collection of Ibn Eanbals legal opinions128 and especially his Epistle to the Makkans, in which he
Ibid, iii. 480-1 (3al:q: 2). Ibid, (3al:q: 7). 127 Note that al-Tirmidh; invented the grade of fair (Aasan) and confounded generations of Aad;th scholars through his use of the expression Aasan BaA;A; for an effort at elucidation, see Ibn al-4al:A al-Shahraz<r;, An Introduction to the Science of Ead;th, transl. by Eerik Dickinson (Reading, UK: Garnet, 2005), 1723. 128 Ab< D:w<d, Mas:8il al-Im:m AAmad (ed. Rash;d Ri@:; Cairo, 1934 or 5). A portion of this text was translated on the basis of the superior G:hiriyya manuscript by Susan Spectorsky in Chapters, 6090.
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describes the methodology behind his Sunan.129 Christopher Melchert, after citing Ab< D:w<ds claim in this epistle to have included the Aad;ths that form the basis of the opinions of al-Thawr;, M:lik, and al-Sh:6;, asserts that Ab< D:w<d had [not] gone through the books of al-Thawr;, M:lik, and al-Sh:6; and collected the Aad;th quoted there; rather, he had taken their juridical opinions and collected the Aad;th to back them up.130 While this may be true in many or even most cases, Ab< D:w<d indicates in the Epistle his familiarity with the (untitled) books of Ibn al-Mub:rak (d. 181/797) and Wak;6 b. al-Jarr:A (d. 197/ 812), the Muwa33a8 of M:lik, and the MuBannafs of Eamm:d b. Salama (d. 167/784) and 6Abd al-Razz:q al-4an6:n;.131 After boasting that his Sunan is the most necessary book for students to learn after the Qur8:n, Ab< D:w<d also singles out Sufy:n al-Thawr;s J:mi6 as being the nest work of its genre.132 He claries his legal methodology in this epistle, defending the use of Aad;ths in which the Companion link is missing (mursal) with the argument that al-Thawr;, M:lik, and al-Awz:6; (d. 157/774) all relied upon this type of report,133 and he also encourages students to supplement their study of his Sunan by copying Companion opinions, presumably from books like those of Wak;6 and 6Abd al-Razz:q.134 As for the calibre of the Aad;ths in his Sunan, Ab< D:w<d claims to have included approximately 4800 mostly good (B:liA) Aad;ths, some of which are more sound than others,135 that are well known (mashh<r).136 He is highly critical of reliance upon poorlyattested (ghar;b) Aad;ths137 and claims to have identied in his Sunan any Aad;th that has a serious defect (wahn shad;d) in its isn:d.138
129 The existence of this short work was brought to my attention by Christopher Melcherts article, Traditionist-jurisprudents and the Framing of Islamic Law, 3956. 130 Ibid. 131 Ris:lat Ab; D:w<d il: ahl Makka f; waBf Sunanih in 6Abd al-Fatt:A Ab< Ghudda (ed.), Thal:th ras:8il f; 6ilm muBtalaA al-Aad;th (Aleppo: Maktab al-Ma3b<6:t al-Isl:miyya, 1997), 334. He observes that the books of Ibn al-Mub:rak and Wak;6 have few prophetic Aad;ths worthy of inclusion is his Sunan and that most of their (prophetic) material is mursal. 132 Ibid., 467. 133 Ibid., 323. 134 Ibid., 46. 135 Ibid., 38. Ab< D:w<d provides the number 4800 on pp. 52 and 54; he also says that 600 of these Aad;ths are mar:s;l. 136 Ibid., 47. 137 Ibid. 138 Ibid., 37.
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Despite his passion for Aad;th collection, Ab< D:w<d only manages to expand modestly the scope of legal topics on divorce that al-Tirmidh; covers and all thirty of his topics are discussed by at least one of the ve other Aad;th scholars under consideration. Many of his Aad;ths are identical to those found in al-D:rim;s Sunan and al-Tirmidh;s J:mi6, including those with inferior or even defective isn:ds, such as Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise, A slave girl can only be divorced twice and her waiting period is two menstrual cycles, Three [actions], if done earnestly or jokingly, must be taken earnestly: marriage, divorce, and taking back ones divorced wife, and the story of Salama al-Bay:@;s broken Cih:r oath.139 He occasionally provides unique Aad;ths that address more precise legal points, such as the story of Khuwayla bint M:lik and Aws b. 6Ub:da, which claries the volume of wheat needed to feed the Qur8:nically-prescribed sixty poor-folk for the expiation of Cih:r,140 and the episode of an anonymous woman who pleaded eloquently with the Prophet for custody of her child, to whom he replied, You have a greater right to [your child] as long as you do not remarry.141 He also ventures beyond the books of Muslim, al-D:rim;, and al-Tirmidh; by touching on the topics of the reprehensible nature of divorce,142 words other than 3al:q that can effect a divorce,143 and the implications of referring to ones wife as my sister.144 Furthermore, he argues for the invalidity of divorce while in a state of anger, on the authority of 628isha, who quoted the Prophet as saying, Divorce or manumission while angry is invalid.145 Ab< D:w<ds boast in his Epistle to the Makkans about the utility of his Sunan for the student of jurisprudence appears, in large part, to be justied. From a purely organizational perspective, Ab< D:w<d is the only Aad;th scholar in this survey to include all of his divorcerelated topics in his Book on Divorce, a feature that greatly facilitates
All of these Aad;ths have been discussed in the previous two sections, with the exception of Three [actions . . .] which is found in Ab< D:w<d, Sunan (3al:q: 9); Ibn M:ja, Sunan (3al:q: 13); al-Tirmidh;, al-J:mi6 (3al:q: 9). 140 Ab< D:w<d, Sunan (3al:q: 17). 141 Anti aAaqqu bi-hi m: lam tankaA;; Ab< D:w<d, Sunan (3al:q: 35). 142 Ibid, Sunan (3al:q: 3); Ibn M:ja, Sunan (3al:q: 1). 143 Ab< D:w<d, Sunan (3al:q: 11); al-Bukh:r;, 4aA;A (3al:q: 6); Ibn M:ja, Sunan (3al:q: 18, 19). 144 Ab< D:w<d, Sunan (3al:q: 16); al-Bukh:r;, 4aA;A (3al:q: 10). 145 Sunan Ab; D:w<d, ii. 446 (3al:q: 8); Ibn M:ja, Sunan (3al:q: 16). Ab< D:w<d acknowledges that he is not certain what the word ghal:q (angry) in the Prophets statement means.
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its use.146 He addresses the same or a greater number of legal topics on divorce than all of his contemporaries, save Ibn M:ja and al-Bukh:r;, and appears to relate a greater variety of Aad;ths than any of them. Most of the topics he ignores fall under the category of the divorce procedure, many of which are quite obscure, although he also refrains from relating any Aad;ths on the topic of the oath of abstinence. Thanks to his concise Epistle to the Makkans, we can be condent that Ab< D:w<d was uent in the legal discourse of his day, acquainted with the earliest law books, like the Muwa33a8 of M:lik and 6Abd al-Razz:qs MuBannaf, and probably knew all of the information about juristic disagreements that al-Tirmidh; relates in his J:mi6. In conclusion, Ab< D:w<d follows essentially the same methodology as al-D:rim; and al-Tirmidh;: limiting discussion to legal topics that can be supported by sound or fair Aad;ths, while not shying away from a few weak and even poorly-attested ones when the only alternative is reliance upon post-prophetic authorities.
5 Ab< 6Abd All:h MuAammad b. Yaz;d Ibn M:ja al-Qazw;n; At 32 topics, Ibn Maj:s Sunan earns the prize for the greatest number of divorce-related issues among the books under consideration. Twentyseven of these topics, however, are found in the compilations of al-Tirmidh; or Ab< D:w<d and only two of them are unique to Ibn M:jas Sunan. While Ibn M:jas book covers basically the same legal territory as the works of al-Tirmidh; and Ab< D:w<d, it distinguishes itself by its presentation of a surprisingly large percentage of unique and frequently weak Aad;ths that are absent from the other canonical Aad;th books.147 For example, Ibn M:jas two unique legal topics are both grounded upon weak Aad;ths that only he narrates. The rst of these Aad;ths reports that the Prophet said:
If a woman claims that her husband divorced her and brings forth an upright witness to testify on her behalf, the husband must issue an oath. If he swears [that he did not divorce her], the witness testimony is invalid. If he refrains from swearing the oath, his act of refraining counts as a second witness against him and the divorce is valid.148 Ab< D:w<ds Book on Divorce has a total of 50 chapters, in contrast to the 18 chapters in the Book on Divorce in Sunan al-D:rim;, 23 in al-Tirmidh;s J:mi6, and 36 in Sunan Ibn M:ja. 147 I am grateful for the labours of the editor, MaAm<d MuAammad NaBB:r, for identifying which Aad;ths are unique to the Sunan and which are weak in his edition of this book. 148 Ibn M:ja, Sunan (3al:q: 12).
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The second Aad;th reports the Prophets clear prohibition of a master forcing his slave to divorce one of his female slaves: O People! How can any of you marry one of your male slaves to one of your female slaves and then try and separate them? The right of divorce belongs exclusively to the one [who has the right] to her body [lit., thigh].149 Like so many weak Aad;ths in Ibn M:jas Sunan,150 these two reports provide decisive answers for specic legal questions and are far removed from the complex narrations of so many of the Aad;ths found in the 4aA;As of Muslim and al-Bukh:r;. Ibn M:ja, like al-Tirmidh; and al-Bukh:r;, addresses at least one topic that falls into Susan Spectorskys paradigm of seven categories of divorce laws that we have been using throughout this article. He also addresses the three topics pertaining to conversion to Islam that are broached by al-Tirmidh; and Ab< D:w<d, which revolve around the anecdotes of Fayr<z al-Daylam;s marriage to two sisters prior to his conversion to Islam,151 Qays b. al-E:riths eight pre-Islamic wives,152 and Ghayl:n b. Salamas ten-wife household.153 Overall, Ibn M:ja follows the same basic methodology of al-D:rim;, al-Tirmidh;, and Ab< D:w<d by endeavouring to derive rulings almost exclusively from prophetic Aad;ths of variable degrees of reliability, although he has a special penchant for relating material that most major Aad;th critics refrained from including in their books. 6 Ab< 6Abd All:h MuAammad b. Ism:6;l al-Bukh:r; Al-Bukh:r;s legal hermeneutics represent a sharp departure from those of his contemporary Aad;th scholars. While this is not the appropriate place to review his chapters on legal methodology in his 4aA;A,154 al-Bukh:r;s techniques become apparent from a close reading of his
Innam: l-3al:q li-man akhadha bi-l-s:q; Ibn M:ja, Sunan (3al:q: 31). At least one weak Aad;th is found in each of the following chapters of Ibn M:jas Book on Divorce in his Sunan: 1, 6, 7, 1113, 16, 17, 19, 21, 22, 24, 27, 3032, 36. 151 Ibn M:ja, Sunan (nik:A: 39); Ab< D:w<d, Sunan (3al:q: 25); al-Tirmidh;, al-J:mi6 (nik:A: 34). 152 Ibn M:ja, Sunan (nik:A: 40). Ab< D:w<d has one narration with Qays b. al-E:rith and another with al-E:rith b. Qays; Sunan (3al:q: 25). He quotes AAmad b. Ibr:h;m (al-Dawraq;, d. 246/8601) as saying that the correct form is Qays b. al-E:rith. 153 Ibn M:ja, Sunan (nik:A: 40); al-Tirmidh;, al-J:mi6 (nik:A: 33). 154 For a detailed analysis of this topic, see Scott C. Lucas, The Legal Principles of MuAammad b. Ism:6;l al-Bukh:r; and Their Relationship to Classical Sala Islam, Islamic Law and Society, 13/3 (2006): 289324.
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Book on Divorce. These techniques include: 1) relying solely upon postprophetic authorities for certain topics; 2) shedding light on a divorcerelated topic by means of Aad;ths that have no obvious connection to divorce; and 3) relating Aad;ths that none of his fellow compilers narrate. One of the clearest cases of al-Bukh:r;s reliance on post-prophetic authorities is the topic of premarital divorce. Unlike al-Tirmidh;, Ab< D:w<d, and Ibn M:ja, all of whom narrated a prophetic Aad;th that clearly states, divorce is only valid if you are married to (lit., own) the woman, al-Bukh:r; begins his discussion of this topic with Ibn 6Abb:s observation that God puts divorce after marriage in the Qur8:nic verse, Believers, you have no right to expect a waiting period when you marry believing women and then divorce them before you have touched them: make provision for them and release them in an honorable way.155 Al-Bukh:r; follows this verse with his observation that the opinion that a woman cannot be divorced prior to marriage is afrmed by narrations from 6Al; and an impressive list of twenty-three Successors, including Sa6;d b. al-Musayyab, 6Al; b. al-Eusayn (Zayn al-62bid;n), F:w<s, al-Easan al-BaBr;, 6Ikrima, 6A3:8 b. Ab; Rab:A, and al-Sha6b;.156 While al-Bukh:r; does not explicitly claim that consensus exists on this issue, his impressive roster of pious advocates for the invalidity of premarital divorce can be read as an effort to overwhelm anyone who dares to challenge this ruling. A second case in which al-Bukh:r; discusses a topic without relating a single prophetic Aad;th is the Cih:r oath.157 Perhaps due to the lessthan-sterling isn:d of Salama al-Bay:@;s story,158 al-Bukh:r; avoids it and instead begins his chapter by reminding the reader of the Cih:r verses in the Qur8:n (58. 14) before writing:
Ism:6;l (b. Ab; Uways) said to me: M:lik related to me that he asked al-Zuhr; about the Cih:r oath executed by a slave. Al-Zuhr; said, It is like the Cih:r of a Qur8:n 33. 49; FatA al-b:r;, x. 478 (3al:q: 9). al-Bukh:r;, 4aA;A (3al:q: 9). The remaining Successors whom al-Bukh:r; names in support of this position are 6Urwa b. al-Zubayr, Ab< Bakr b. 6Abd al-RaAm:n (b. al-E:rith b. Hish:m), 6Ubayd All:h b. 6Abd All:h b. 6Utba, Ab:n b. 6Uthm:n, ShurayA, Sa6;d b. Jubayr, al-Q:sim (b. MuAammad b. Ab; Bakr), S:lim (b. 6Abd All:h b. 6Umar), 62mir b. Sa6d (al-Bajal;), J:bir b. Zayd, N:6 b. Jubayr (b. Mu36im), MuAammad b. Ka6b (al-QuraC;), Sulaym:n b. Yas:r, Muj:hid, al-Q:sim b. 6Abd al-RaAm:n (b. 6Abd All:h b. Mas6<d), and 6Amr b. E:rim (al-Azdi). 157 Ibid, 4aA;A (3al:q: 23). 158 al-Tirmidh; narrates three variants of this Aad;th and grades them as Aasan ghar;b, Aasan ghar;b BaA;A, and Aasan; al-J:mi6 (3al:q: 19, 20). He also reports that the protagonists name is Salm:n in one version and Salama in the other two.
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free person, and M:lik said, The fast [of expiation] is two months. Easan b. al-Eurr159 said, The Cih:r oaths of a free man and a slave against a free woman and a slave woman are identical. 6Ikrima said, If a man issues a Cih:r oath on his slave girl, it is meaningless, because Cih:r is only for (free) women. [al-Bukh:r;:] In the Arabic language, the expression li-m: q:l< [Qur8:n 58. 3]160 means the same as f;-m: q:l<, and (in the case of this verse), the best understanding is, (those men) who violate what they said. This reading is superior since God (Exalted) does not lead (His creatures) to wrongdoing (munkar) and false speech (qawl z<r).161
Note the absence in this case of both prophetic and Companion reports and the presence of al-Bukh:r;s exegesis on the meaning of one of the crucial Qur8:nic verses on the Cih:r oathmaterial that al-Tirmidh; regularly interjects between Aad;ths in his J:mi6, but which al-Bukh:r; occasionally puts front and centre in his 4aA;A. The second technique al-Bukh:r; uses is to include Aad;ths in chapters on divorce topics that have no transparent relationship to this topic but share a common similarity that renders them useful. Al-Bukh:r; calls this technique comparison (tashb;h) in his book on legal methodology and some Muslim scholars have argued that comparison is just another word for analogy (qiy:s).162 For example, al-Bukh:r; relates twelve Aad;ths that have nothing to do with 3al:q or li6:n in support of his position that a mute man can perform the act of divorce or mutual imprecation by means of writing and pointing.163 Likewise, in his
Ibn Eajar reports that most manuscripts of al-Bukh:r;s 4aA;A have Easan b. al-Eurr, who does not appear anywhere else in the text, but that others have Easan b. Eayy and still others have just Easan (which by convention would be al-Easan al-BaBr;); FatA al-b:r;, x. 544 (3al:q: 23). Ibn Eajar notes that all three men share the same opinion concerning the Cih:r of a slave. 160 al-Bukh:r; is providing his interpretation of the verse, wa-l-l:dh;na yuC:hir<n min nis:8ihim thumma ya6<d<na li-m: q:l< fa-taAr;ru raqaba (58. 3). 161 Ibn Eajar explains that al-Bukh:r; is refuting the reading adopted by the G:hir;s of the verse thumma ya6<d<na li-m: q:l< as and then they utter the Cih:r oath again, instead of his preferred reading of and then if they violate what they said (i.e., break the Cih:r oath they uttered); FatA al-b:r;, x. 545 (3al:q: 23). The G:hir;s held that one only had to perform the expiation for every other Cih:r oath; see Hawting, An Ascetic Vow or an Unseemly Oath? 117, quoting Ignaz Goldziher, The G:hir;s, Their Doctrines and Their History (Leiden: Brill, 1971), 502. 162 al-Bukh:r;, 4aA;A (al-i6tiB:m bi-l-kit:b wa-l-sunna: 12). For a discussion of the controversy over the term tashb;h, see Lucas, Legal Principles, 3048. 163 al-Bukh:r;, 4aA;A (3al:q: 24, 25). He also includes the opinions of al-Sha6b;, Qat:da, Ibr:h;m al-Nakha6;, and Eamm:d (b. Ab; Sulaym:n) in support of this position.
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chapter on the missing husband (mafq<d), al-Bukh:r; presents the opinions of Ibn al-Musayyab, Ibn Mas6<d, Ibn 6Abb:s, and al-Zuhr; before narrating a Aad;th concerning lost and found (luq3a) property in which the Prophet told a petitioner that one can take ownership of a stray beast after a year of searching for its proper owner.164 Frequently, al-Bukh:r; uses both strategies of citing post-prophetic reports and unexpected prophetic Aad;ths in the same chapter. A vivid example of this practice is his chapter on Divorce while angry, under compulsion, intoxicated or insane; divorce, apostasy, and other things done accidentally or in a state of forgetfulness.165 Al-Bukh:r;s string of adverse conditions under which a divorce can occur prepares the reader for multiple opinions from a variety of authorities. After his citation of a fragment of the famous Aad;th, Actions are by intentions, with which he inaugurates his entire 4aA;A, al-Bukh:r; recounts a string of opinions and stories from a small group of Companions and Successors without any isn:ds. We learn that 6Uthm:n and Ibn 6Abb:s considered the divorce enunciated by a drunken man to be valid, that Ibn 6Umar, the Makkan 6A3:8 b. Ab; Rab:A, and the Basran Qat:da b. Di6:ma considered a conditional divorce valid if the condition was fullled,166 that the Kufan Ibr:h;m al-Nakha6; considered valid the divorce utterance issued in ones (non-Arabic) native tongue, and that al-Zuhr; considered the expression You are not my wife, to count as a divorce if that is what the husband intended.167 Al-Bukh:r; also places two statements in 6Al;s mouth that are elevated to the Prophet in other books: The Pen
al-Bukh:r;, 4aA;A (3al:q: 22). This Aad;th is found in Muslim, 4aA;A (luq3a: 1); Ibn M:ja, Sunan (luq3a: 2); Ab< D:w<d, Sunan (luq3a: 1); al-Tirmidh;, al-J:mi6 (aAk:m: 35). None of these scholars links this Aad;th to the topic of the missing husband. 165 B:b al-3al:q f;-l-ighl:q wa-l-kurh wa-l-sakr:n wa-l-majn<nwa amrihim:wa-l-ghala3 wa-l-nisy:n f;-l-3al:q wa-l-shirk wa-ghayrih. Al-Bukh:r;, 4aA;A (3al:q: 11). 166 The example Ibn 6Umar provides is a man who says, If you leave the house, you are decisively divorced, and his wife leaves the house, she is divorced decisively, but if she does not, there is no divorce. See also Spectorsky, Chapters, 324. 167 al-Bukh:r; also reports that al-Easan al-BaBr; considered the expression, Go stay with your family, as a divorce, if that is what the man intended. This same expression appears in a very long story about Ka6b b. M:liks repentance for avoiding the T:b<k campaign, a fragment of which is cited by Ab< D:w<d, Sunan (3al:q: 11). The complete story can be found in extra-legal chapters of al-Bukh:r;, 4aA;A (magh:z;: 80) and Muslim, 4aA;A (tawba: 9). This expression can also be found in a report about the episode of the woman who sought refuge from the Prophet in Ibn M:ja, Sunan (3al:q: 18).
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(recording ones bad deeds) is raised in three casesthe insane person prior to the return of his reason, the youth prior to discernment, and the sleeper prior to his awakening;168 and, Every type of divorce is permissible, except that of the insane person (ma6t<h).169 But this is not all. After touching on a variety of additional topics in this chapter, al-Bukh:r; proceeds to recount three Aad;ths, none of which has anything explicitly to do with divorce. The rst Aad;th is the prophetic statement that, God disregards that which [members of] my community say to themselves and refrain from acting upon or divulging to anyone else.170 The second two are reports of the story of the Fornicator from Ban< Aslam171 who confessed four times to the Prophet in the mosque of Madina that he committed fornication. In both versions cited here, the nal question that the Prophet asks prior to implementing the punishment of stoning is, Are you insane? Since these Aad;ths indicate that the Prophet would not have stoned the fornicator from Ban< Aslam had he lacked his rational capacity, al-Bukh:r; suggests that divorce committed while intoxicated or insane would likewise be invalid. This is a good example in which comparison really is qiy:s, since it is based on a Aad;th in which the Prophet identies a ruleoccasioning factor (6illa), insanity, that can be applied by jurists beyond the immediate case in which it appears. Al-Bukh:r;s nal effort to reach a broader array of legal topics without relying upon Aad;ths with inferior transmission histories is simply to narrate reports that few of his contemporaries seem to have acquired. He appears to have had special access to reports about the story of Umayma bint Shar:A;l,172 the woman who sought refuge from the Prophet after their marriage contract but prior to consummation and
This expression appears as a prophetic Aad;th in Ibn M:ja, Sunan (3al:q: 15). Even though it appears in three of the additional books under consideration in this article, there is no indication that the compilers of these books consciously linked it to the topic of divorce uttered by an insane man; see al-D:rim;, Sunan (Aud<d: 1); Ab< D:w<d, Sunan (Aud<d: 16); al-Tirmidh;, al-J:mi6 (Aud<d: 1). 169 Ibn Eajar, FatA al-b:r;, x. 487 (3al:q: 11). Al-Tirmidh; puts this sentence in the mouth of the Prophet; al-J:mi6 (3al:q: 15). 170 This Aad;th is found in chapters concerning the invalidity of a divorce which a man utters only to himself in Ibn M:ja, Sunan (3al:q: 14); Ab< D:w<d, Sunan (3al:q: 15); and al-Tirmidh;, al-J:mi6 (3al:q: 8). 171 This man is named as M:6iz b. M:lik al-Aslam; in versions of this story outside of al-Bukh:r;s 4aA;A. Ibn Eajar, in his commentary, explicitly identies the man from Aslam as M:6iz; FatA al-b:r;, xiv. 81 (Aud<d: 22). 172 There is considerable confusion as to this womans name; in one report she is described as Bint al-Jawn, another as al-Jawniyya, and the third as Umayma bint Shar:A;l; al-Bukh:r;, 4aA;A (3al:q: 3).
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whom the Prophet subsequently divorced via a messenger rather than face-to-face.173 Al-Bukh:r; is unique in linking the oath of ;l:8 to the story of the Prophet falling off of his horse and breaking his leg, which he recounts in numerous places throughout his 4aA;A.174 He is joined only by Ab< D:w<d in discussing the implications of calling ones wife my sister by means of the story of the Prophet Abrahams three lies during his time in Egypt.175 Finally, only al-Bukh:r; appears to distinguish between the dower in the case of adultery or prostitution (baght) and an invalid marriage (nik:A f:sid), largely on the basis of juxtaposing three prophetic Aad;ths in which the dower for adultery and prostitution is unambiguously prohibited with al-Easan al-BaBr;s opinion concerning the validity of the dower of a couple that is forced to divorce due to a prohibitive condition of which they were unaware at the time of marriage.176 It is paradoxical that the two strictest Aad;th scholars, Muslim and al-Bukh:r;, discuss the least and second-greatest number of legal topics on divorce in their respective 4aA;As. Al-Bukh:r;s willingness to use post-prophetic material and comparison, as well as his vast collection of Aad;ths, enabled him to transcend the limits dictated by purely sound Aad;ths addressing the seven (or, counting conversion, eight) categories of divorce law. However, I may have unintentionally inated the number of divorce topics covered by al-Bukh:r;, since he alone among his contemporaries addresses eight topics, such as divorce prior to consummation,177 divorce by pointing,178 and the ruling that women are not allowed to conceal that they are pregnant at the time of divorce.179 In other words, he actually covers only 23 topics that his fellow Aad;th scholars investigate, and he is silent on the topics of child custody, a womans right to leave the house during
al-Bukh:r;, 4aA;A (3al:q: 3). Ibn M:ja includes a variant of this story; Sunan (3al:q: 18). 174 al-Bukh:r;, 4aA;A (3al:q: 21; this Aad;th initially appears in Bal:t: 18). Note that Ibn Eajar declares that this Aad;th does not actually refer to the ;l:8 the jurists discuss, presumably since it is only for one month rather than the fourmonth ;l:8 regulated by the Qur8:n. 175 al-Bukh:r;, 4aA;A (3al:q: 10); Ab< D:w<d, Sunan (3al:q: 16). 176 al-Bukh:r;, 4aA;A (3al:q: 51). These Aad;ths are found in the books of al-D:rim;, Muslim, Ab< D:w<d, and al-Tirmidh;, but they are not linked in any manner to the topic of the invalid marriage that results in an automatic divorce. See A. J. Wensinck, Concordance et Indices de la Tradition Musulmane (Leiden: E. J. Brill, 8 vols., 1936), i. 204, baghiyyun. 177 al-Bukh:r;, 4aA;A (3al:q: 52). 178 Ibid, 4aA;A (3al:q: 24). 179 Ibid, (3al:q: 43).
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the daylight hours of her waiting period, and whether a man with ten wives must divorce six of them upon his conversion. It is also possible that I undercounted al-Bukh:r;s breadth of legal topics, since his Chapter on divorce while angry, under compulsion, intoxicated, insane, etc. actually covers numerous topics, several of which are unaddressed in the other ve books under consideration.180 Even though al-Bukh:r; shies away from both sub-par Aad;ths and the legal opinions of most of the eponyms of the Sunni schools of law, his 4aA;A is distinguished by its diversity of topics, Aad;ths, and early postprophetic authorities, as well as its compilers creative utility of narrations that bear little explicit relationship to the legal topic under discussion.
CONCLUSIONS
This project began as a simple comparative exercise between the books of six famous Aad;th scholars of the third/ninth century in order to learn more about their compilers methods of jurisprudence. Despite the common allegiance to and profound knowledge of Aad;ths among al-D:rim;, al-Bukh:r;, Muslim, Ibn M:ja, Ab< D:w<d, and al-Tirmidh;, several factors made a comparison of their books complicated. It was necessary initially to lter out the chapters in the scholars respective Books on Divorce that bore no clear relationship to the legal processes by which a marriage can be terminated. Then I had to track down topics related to divorce found outside of the six scholars Books on Divorce, a task facilitated by the modern editors of these books. Finally, in consultation with the early proto-madhhab law books of the third/ninth century and Susan Spectorskys Chapters on Marriage and Divorce, I assembled a list of 45 legal topics that I derived from the six Aad;th books in order to evaluate the range of topics each Aad;th scholar addressed. Two discoveries initially emerged from this analysis. The rst was the surprising fact that only six legal topics were covered by all of the Aad;th scholars under examination. These topics seemed highly random and each one appeared to derive from a tangled web of narrations
For example, none of the other ve books addresses the topics of divorce while intoxicated, the validity of conditional divorces, the validity of divorce uttered in a language other than Arabic, or the consequences of the husbands expression, I dont have a wife. All of these topics can be found in the early qh books.
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of a discrete episode during the Prophets lifetime, most of whose protagonists were named women and men. The second discovery, based on the analysis of the presentations of these six universal topics, especially the episode of F:3ima bint Qays, was that al-D:rim;, al-Bukh:r;, Muslim and Ibn M:ja were frequently willing to state their personal legal opinions, whereas Ab< D:w<d and al-Tirmidh; appeared more reticent to do so. The most signicant conclusion from this analysis is that the Aad;th scholars adopted three methodological approaches to the articulation of Islamic law in their books. First, Muslim restricted his 4aA;A solely to what he considered to be sound prophetic Aad;ths and subsequently limited himself to a mere twelve topics on divorce, four of which do not even appear in the Book on Divorce. Secondly, al-D:rim;, Ibn M:ja, Ab< D:w<d, and al-Tirmidh; all endeavoured to base their legal rulings upon sound prophetic Aad;ths, but were willing to supplement their meagre ndings with useful prophetic material related through inferior chains of transmission. This strategy enabled all of them, save al-D:rim;, to double the number of divorce-related topics addressed by Muslim. Finally, al-Bukh:r;s method of relying upon Companion and Successor reports instead of prophetic Aad;ths, his technique of comparison, and his skill at nding obscure Aad;ths that met his critical standards, allowed him to address approximately the same number of topics as Ibn M:ja and Ab< D:w<d, although he only overlaps with either of them in 23 cases. Despite these six scholars distinct methodological differences, freedom from overt madhhab loyalty, and their accumulation of a massive trove of transmitted materials, one searches in vain for dramatic differences between their personal legal opinions. True, al-Bukh:r; and Muslim may have been more khul6-friendly than their contemporaries, for they do not claim that the Prophet said, Any woman who asks her non-abusive husband for a divorce will be forbidden from (enjoying) the scent of Paradise, or The women who perform khul6 are hypocrites,181 but, then again, Muslim does not even mention the topic of khul6 in his 4aA;A. All of them, with the exceptions of al-D:rim; and Ibn M:ja, also advocate the impermissibility of a woman to demand that her suitor divorce his current wives as a stipulation in her marriage contract.182 Likewise, is there any practical difference whether 6Al; or the Prophet said, Every type of divorce is permissible, except that of the insane
Only al-Tirmidh; narrates this weak Aad;th; al-J:mi6 (3al:q: 11). He evaluates its isn:d as ghar;b, laysa isn:duhu bi-qaw;. 182 al-Bukh:r;, 4aA;A (nik:A: 54); Muslim, 4aA;A (buy<6: 4); Ab< D:w<d, Sunan (3al:q: 2); al-Tirmidh;, al-J:mi6 (3al:q: 14).
181
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person? With the notable exception of the topic of the waiting period of the triply-divorced woman, the hallmarks of Aad;th-scholar jurisprudence on divorce are its state of consensus on 2030 topics and its silence on the vast majority of the remaining issues.183 Only al-Bukh:r; emerges from this group of Aad;th scholars as a modestly sophisticated jurist, while his junior contemporaries perform the service of carefully organizing, and in the case of al-Tirmidh;, evaluating, the classic reference works of Aad;ths that have adorned the bookshelves of Sunni jurists for the past millennium. While it might be tempting to dismiss these six Aad;th-scholars as uninspiring jurists, we may, if we shift our gaze from their personal jurisprudence to the actual Aad;ths they relate, advance a bold claim: prophetic Aad;ths acceptable to critical Aad;th scholars were of very limited utility for the articulation of certain elds of Islamic law in the third/ninth century. Muslim only discusses 12 topics related to divorce, al-D:rim; touches on 16, al-Tirmidh; covers 24, Ab< D:w<d mentions 30, Ibn M:ja comments on 32, and al-Bukh:r; considers 31. Even if I have been conservative in my identication of only 45 divorce topics among these six books, this aggregate remains signicantly smaller than the 250300 topics covered by 6Abd al-Razz:q and Ibn Ab; Shayba in their MuBannafs and the approximately 125 topics in SaAn<ns Mudawwana. The two MuBannafs and Mudawwana rely primarily on post-prophetic authorities and include thousands of reports attributed to Companions, Successors and, in the case of the latter book, the second/eighth-century jurist M:lik.184 One could argue that the six Aad;th scholars under consideration for this article were simply attempting to articulate Islamic law with the wrong materials. This stunning paucity of divorce topics supported by Aad;ths raises new questions concerning the widely-accepted thesis in the West of a massive forgery of Aad;ths in the early centuries of Islam.185 There must
Only 29 topics on divorce are addressed by three or more of the Aad;th scholars in this study. 184 For a quantitative analysis of Ibn Ab; Shaybas MuBannaf, see Scott C. Lucas, Where Are All the Legal Ead;ths? in Islamic Law and Society, forthcoming. See also Motzki, The Origins of Islamic Jurisprudence. 185 A most useful summary of Western scholarship on this topic is found in Motzki, Origins of Islamic Jurisprudence, 149. His essay, The Question of the Authenticity of Muslim Traditions Reconsidered: A Review Article, in Method and Theory in the Study of Islamic Origins (ed. Herbert Berg; Leiden: Brill, 2003), 21158, is also indispensable. The classic statement on the massive forgery of Aad;ths remains Joseph Schacht, The Origins of Muhammadan
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be a reason why so few topics on divorce appear in these mostly canonical Aad;th books if the early 6Abbasid period was awash in Aad;ths and Aad;th forgers. There must also be a reason why so many Aad;ths with inferior and at times outright defective isn:ds appear in these canonical books, since the compilers possessed the requisite skills to make forgeries with sound isn:ds.186 One possibility is that most of the forged Aad;ths discussed theological, apocalyptic, and sectarian topics rather than legal ones, leaving our six compilers with relatively few divorce Aad;ths from which to choose.187 Another possibility is that all six Aad;th scholars truly were such critical compilers that each one of them was left with materials covering barely two dozen legal topics on divorce, although Ibn M:jas relaxed standards would seem to contradict this hypothesis. The fact that al-D:rim;, al-Bukh:r;, Muslim, Ibn M:ja, Ab< D:w<d, and al-Tirmidh; address such a modest and random array of divorce topics in their Aad;th compilations should caution us against the twin errors of underestimating the critical selectivity of these Aad;th scholars and exaggerating the utility of prophetic Aad;ths for articulating Islamic law in the wake of al-Sh:6;s teachings. Is it now safe to propose that al-Shayb:n;s al-J:mi6 al-Bagh;r is devoid of Aad;ths not primarily because early Eanaf;s may have disliked them on principle, but rather due to the sheer absence of Aad;ths that shed light on the difference between the statements, You are divorced whenever you wish and You are divorced however you wish,188 or the legal consequences of a virgin woman dying midway through her husbands utterance of You are divorced singly?189 E-mail: sclucas@email.arizona.edu
Jurisprudence (London: Oxford, 1975 (1950)). Schacht considers all prophetic Aad;ths and Companion reports, along with most Successor reports, to be ctitious (p. 178), and claims that the bulk of the legal traditions from the Prophet known to M:lik originated in the generation preceding him, that is in the second quarter of the second century ah (approximately 74065 ce) and that we shall not meet any legal tradition from the Prophet which can be considered authentic (p. 149). 186 A similar argument is advanced by Motzki; see Origins, 2404. 187 Many of the Aad;ths criticized by Goldziher and Fazlur Rahman fall under extra-legal classications; see Goldziher, Muslim Studies, ii. 89125; and Fazlur Rahman, Islamic Methodology in History (Islamabad: Islamic Research Institute, n. d.), 2784. 188 al-Shayb:n;, al-J:mi6 al-Bagh;r, 213. 189 Ibid., 199.
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APPENDIX
Table 1: Chapters on Divorce Used in this Study Book Sunan al-D:rim; al-Bukh:r;, al-J:mi6 al-4aA;A 4aA;A Muslim Sunan Ibn M:ja Sunan Ab; D:w<d al-Tirmidh;, al-J:mi6 al-4aA;A Divorce chapters Fal:q: 111, 1417; Nik:A: 39 Fal:q: 117,1930, 3245,5153; Nik:A: 54 Fal:q: 18; Nik:A: 17; 6Itq: 2; Buy<6: 4; Li6:n190 Fal:q: 17, 932, 36; Nik:A: 32, 39, 40, 60; AAk:m: 22 Fal:q: 229,35,3741,47,49 Fal:q: 111,1315,17,1922; Nik:A: 27,33, 34, 43; AAk:m: 21 Total(172) 16 47 12 37 36 24
Table 2: Eadith-Scholar Jurisprudence: Legal Topics on Divorce191 A) Divorce procedure 1 The sunna divorce 2 The marriage that allows a triply-divorced woman to return to her ex-husband must be consummated Divorce prior to marriage is invalid
3 4 5 6
Validity of the triple divorce Batta divorce A woman cannot stipulate that her suitor divorce his existing wives prior to marrying her Adverse circumstances at the time of divorce (B:11) (IM:15,16) (AD:8) (T:15)
(D:1) (B:1,2) (M:1) (IM:2,3) (AD:4) (T:1) (D:4) (B:4,7,37) (M: nik:A:17) (IM: nik:A:32) (AD:49) (T:nik:A:27) (D:3) (B:9) (IM:17) (AD:7) (T:6) (B:4) (M:2) (IM:19) (AD:10) (D:8) (IM:19) (AD:14) (T:2) (B:nik:A:54) (M:buy<6:4) (AD:2) (T:14)
There are no chapters divisions in Muslims Book on Li6:n. Abbreviations: D: al-D:rim;; B: al-Bukh:r;; M: Muslim; IM: Ibn M:ja; AD: Ab< D:w<d; T: al-Tirmidh;. If the indicated chapter is found in the Book on Divorce, just the chapter number is provided. If it is in any other book, that books title will be included in the citation, so the fth chapter of al-Tirmidh;s Book on Marriage would read (T: nik:A: 5).
191
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8 If a man does not inform anyone about his divorce, it is invalid 9 The second divorce of a slave woman is nal 10 Child custody 11 12 13 14 15 16 17 18
(B:11) (IM:14) (AD:15) (T:8)
19 20 21 22 23 24 25 26 27
(D:17) (IM:30,32) (AD:6) (T:7) (D:16) (IM:aAk:m:22) (AD:26,35) (T:aAk:m:21) Taking ones wife back after a revocable (D:2) (B:44,45) (IM:1,5) divorce (AD:5, 38) Words other than 3al:q that can cause divorce (B:6) (IM:18,19) (AD:11) A divorce issued in jest counts (IM:13) (AD:9) (T:9) Implications of calling ones wife unlawful (B:7,8) (M:3) (IM:28) (Aar:m) Implications of referring to ones wife as (B:10) (AD:16) my sister, under compulsion or freely A fathers command to his son to divorce (IM:36) (T:13) should be heeded Divorce is lawful but reprehensible (IM:1) (AD:3) (B:53) (IM:11) The divorce gift (mut6a) is only for the divorced woman whose dower had not been xed Dower in the case of an invalid marriage (B:51) Divorce prior to consummation (B:52) A man does not need to divorce his wife (B:3) face-to-face Divorce can be performed by pointing (ish:ra)(B:24) The missing husband (al-mafq<d) (B:22) The sale of a slave girl does not cause an (B:14) automatic divorce Does the woman who is divorced while her (B:4) husband is terminally ill inherit from him? What if a man denies he divorced his wife? (IM:12) The master who married his slave to a (IM:31) woman cannot force him to divorce her (D:10) (B:41,42) (M:6) (IM: 10) (AD:39, 40) (T:5) (D:11) (B:39) (M:8) (IM: 6,7) (AD:47) (T:17) (D:14) (M:7) (IM:9) (AD:41)
B) Waiting period 28 Lodging and maintenance during a triply divorced womans waiting period 29 A pregnant womans waiting period ends upon childbirth 30 A woman can leave her house during the daylight hours of her waiting period to take care of her daily affairs 31 The waiting period of the non-menstruating woman
(B:38) (AD:37)
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32 The meaning of the word qur8 (B:40) 33 Women are not allowed to conceal that they (B:43) are pregnant C) Female-initiated divorce 34 The khul6 procedurehow much can the husband take? 35 A woman cannot ask her non-abusive husband for a divorce 36 6Idda for the woman who executes a khul6 is one menstrual cycle D) Takhy;r 37 Takhy;r does not count as a divorce if the woman chooses her husband 38 A manumitted married slave woman has the right to takhy;r 39 Does Your matter is in your hand count as a triple or single divorce? E) Mutual imprecation 40 The li6:n procedure (D:7) (B:12,13) (IM:22) (AD:18) (T:10) (D:6) (IM:21) (AD:18) (T:11) (IM:23) (AD:18) (T:10)
(D:5) (B:5) (M:4,5) (IM:20) (AD:12) (T:4) (D:15) (B:1517) (M:6itq:2) (IM:29) (AD:1922) (AD:13) (T:3)
(D:nik:A:39) (B:2530, 3236) (M:li6:n) (IM:27) (AD:2729) (T:22) (D:9) (B:23) (IM:256) (AD:17) (T:19,20) (B:21) (M:5) (IM:24) (T:21) (B:19,20) (IM: nik:A:60) (AD:23,24) (T: nik:A:43) IM: nik:A:40) (AD:25) (T: nik:A:33) (IM: nik:A:39) (AD:25) (T: nik:A:34)
F) Gih:r 41 The expiation of the Cih:r oath G) Oath of sexual abstinence 42 The oath of ;l:8 H) Conversion issues 43 Impact of conversion to Islam upon married non-Muslims 44 A man with more than four wives must reduce his number of wives to four upon conversion to Islam 45 Convert must choose one of two sisters whom he married prior to beoming Muslim

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Published online 19 March 2008 Journal of Islamic Studies 19:3 (2008) pp.

DIVORCE, EADITH-SCHOLAR STYLE: FROM AL-D2RIMI TO AL-TIRMIDHI

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DIVORCE IN THE LEGAL DISCOURSE OF THE THIRD/NINTH CENTURY

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6. The female-initiated divorce (khul6);20 7. The waiting period (6idda);21

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CASE STUDIES: UNIVERSAL TOPICS

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(B:11) (IM:14) (AD:15) (T:8)

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