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Divorce Hadith Style Lucas

Divorce Hadith Style Lucas

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  • SCOTT C. LUCAS
  • How did the major third/ninth century Aad;th scholars articulate Islamic
  • Western-trained academics have devoted greater attention to the
  • (d. 256/870) and Muslim (d. 261/875) remains largely unexplored in
  • This study analyzes the jurisprudence of six prominent third/ninth
  • This project originated with the simple plan of comparing the ‘Book
  • Musnad); 2) MuAammad b. Ism:6;l al-Bukh:r;’s al-J:mi6 al-BaA;A;5
  • It became apparent during my initial reading of these six books that
  • I do not consider any chapters that are not explicitly concerned with
  • My second task was to group the chapters into coherent legal topics in
  • 45 topics into which I have classified the legal material pertaining to
  • Once I had determined the precise portions of these six Aad;th books
  • Muwa33a8s of M:lik b. Anas (d. 179/795) and MuAammad b. al-Easan
  • Al-D:rim; and his contemporary Aad;th scholars composed their books
  • Yemeni 6Abd al-Razz:q covered over 250 divorce-related issues in his
  • This framework works very well with most of the early fiqh books that
  • (d. 264/878) decision to divide the divorce-related topics in his
  • This study demonstrates that the Aad;th scholars from al-D:rim; to
  • Only six legal topics concerning divorce can be found in all of the Aad;th
  • Divorce’ with the tale of 6Abd All:h b. 6Umar’s (d. 73 or 74/692–3)
  • (without mentioning the witnesses) as al-Bukh:r; and links it to ‘the
  • R:hawayh that restricts the sunna divorce to a single utterance of
  • Neither al-D:rim; nor Ab< D:w<d offers a precise definition of the
  • The story of Ibn 6Umar’s mistimed act of repudiation serves as crucial
  • The second topic relies upon the only story possessing a touch of sexual
  • In addition to casting an embarrassing light upon the anatomy of
  • The story of F:3ima bint Qays’ (d. before 60/679) divorce has
  • Emigrant Ibn Umm Makt<m. A few transmissions of this story
  • Ab< Jahm.43
  • This story would seem totally straightforward were it not for the
  • The impact of F:3ima’s report and its rejection by several prominent
  • F:3ima actually utters the prophetic decision that denies her lodging or
  • The story of F:3ima bint Qays and its ensuing controversy provide a
  • Unlike the irreconcilable legal opinions that emerged from F:3ima
  • This story resolves the question as to whether the Qur8:nic verse
  • (65. 6) declaring that a woman’s waiting period lasts until childbirth can
  • Only Muslim provides any sort of narrative in his discussion of
  • Muslim legal authorities:
  • All six books contain at least one Aad;th transmitted by the Kufan
  • Successor Masr<q b. al-Ajda6 (d. 63/682–3) from one of the immediate
  • (24. 6–7):
  • The various versions of the ‘first li6:n’ story can answer these
  • The second most popular version of this story is transmitted from the
  • Further complicating Sahl’s report is the narration of Ibn 6Uyayna from
  • This already tangled web of narrations is further complicated by
  • M:ja have as a common link the Basran Hish:m b. Eass:n al-Qurdus;
  • The clusters of reports that name or indicate 6Uwaymir as the first
  • M:ja, and Ab< D:w<d collect all of the contradictory versions of this
  • N:fi6 6Ubayd All:h transmission to indicate that the two parties are to
  • first li6:n is that the Aad;th scholars’three strategies consisted of reducing
  • It is remarkable that only six of the 45 divorce-related topics ad-
  • While we have seen some differences among our Aad;th scholars in their
  • (1892–1958) would seize upon as evidence in their opposition to the
  • Muslim touches briefly upon three additional topics. His section on the
  • Qur8:n 66. 4 and clarifies that the Prophet ended his month-long ;l:8
  • 73/692–3 and 78/697–8) reports that the Prophet permitted his divorced
  • Muslim’s chapters on divorce indicate the limited utility of Aad;ths of
  • Muslim is reported (as also is al-Bukh:r;) to have distrusted the
  • Although al-D:rim; only covers sixteen divorce-related topics in his
  • He also recounts the lengthy story of Salama al-Bay:@;’s act of breaking
  • final subject introduced by al-D:rim; is that the Prophet divorced EafBa
  • Al-D:rim; covers these additional legal topics through a mixture of
  • Al-D:rim; clarifies the nature of the ‘batta divorce’ and the divorce of
  • Despite the modest number of topics that both al-D:rim; and Muslim
  • Al-D:rim; reaches a broader array of legal topics than Muslim through a
  • Al-Tirmidh;’s inclusion of the legal opinions of the leading jurists who
  • A good example of al-Tirmidh;’s methodology can be seen in his
  • Al-Tirmidh; achieves a level of transparency and harmonization
  • Ab< D:w<d’s deep interest in Islamic law can be detected from the
  • Ab< D:w<d indicates in the Epistle his familiarity with the (untitled)
  • Ab< D:w<d also singles out Sufy:n al-Thawr;’s J:mi6 as being the finest
  • Ab< D:w<d’s boast in his Epistle to the Makkans about the utility of
  • M:ja’s Sunan. While Ibn M:ja’s book covers basically the same legal
  • The second Aad;th reports the Prophet’s clear prohibition of a master
  • Muslim and al-Bukh:r;
  • Fayr<z al-Daylam;’s marriage to two sisters prior to his conversion to
  • Al-Bukh:r;’s legal hermeneutics represent a sharp departure from those
  • One of the clearest cases of al-Bukh:r;’s reliance on post-prophetic
  • Al-Bukh:r; follows this verse with his observation that the opinion that a
  • A second case in which al-Bukh:r; discusses a topic without relating
  • Note the absence in this case of both prophetic and Companion
  • The second technique al-Bukh:r; uses is to include Aad;ths in chapters
  • chapter on the ‘missing husband’ (mafq<d), al-Bukh:r; presents the
  • (recording one’s bad deeds) is raised in three cases—the insane person
  • But this is not all. After touching on a variety of additional topics in
  • Prophet in the mosque of Madina that he committed fornication. In both
  • Al-Bukh:r;’s final effort to reach a broader array of legal topics
  • This project began as a simple comparative exercise between the books
  • I assembled a list of 45 legal topics that I derived from the six Aad;th
  • Two discoveries initially emerged from this analysis. The first was the
  • The most significant conclusion from this analysis is that the Aad;th
  • M:ja and Ab< D:w<d, although he only overlaps with either of them in
  • 23 cases
  • While it might be tempting to dismiss these six Aad;th-scholars as
  • Even if I have been conservative in my identification of only 45
  • This stunning paucity of divorce topics supported by Aad;ths raises
  • Islamic law in the wake of al-Sh:fi6;’s teachings. Is it now safe to propose
  • E-mail: sclucas@email.arizona.edu

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

325–368

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-five 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 fields 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 Eanbal’s Fiqh’, Journal of the American Oriental Society, 102/3 (1982): 461–5; id., ‘Ead;th in the Responses of IsA:q b. R:hawayh’, Islamic Law and Society, 8/3 (2001), 407–31. 3 Christopher Melchert, ‘Traditionist-Jurisprudents and the Framing of Islamic Law’, Islamic Law and Society 8/3 (2001): 383–406.
ß The Author (2008). Published by Oxford University Press on behalf of the Oxford Centre for Islamic Studies. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org
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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:j’s 4aA;A;6 4) Ibn M:ja’s (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 husband’s death, called iAd:d in Arabic. This finding 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 specific 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;.

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¯ D I V O R C E , E A D I T H - s ch o l a r

s t yl e

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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 qualification 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 fiqh 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 classified the legal material pertaining to divorce in these Aad;th books are somewhat arbitrary, just as the chapters of any fiqh 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 spouse’s 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 confines 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 first 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.
11 10

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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 final stage involved determining which transmitted materials—sound Aad;ths, weak Aad;ths, and post-prophetic reports—each 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), identifies 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
14

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N<r al-D;n 6Itr’s book, al-Im:m al-Tirmidh;, provides useful descriptions of the hermeneutics of al-Tirmidh; and al-Bukh:r; on pp. 355–8, and further suggestions for ascertaining al-Tirmidh;’s opinions on 358–74. 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’ (391–2). 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, 27–39. 16 This is ‘an oath of divorce that a man swears against his wife in which he compares her to his mother’s back’; Spectorsky, Chapters, 39. See also Qur8:n 58. 2–4. 17 Spectorsky, Chapters, 42–5; Qur8:n 2. 226–7. 18 Spectorsky, Chapters, 45–7; Qur8:n 24. 6–9. 19 Spectorsky, Chapters, 48–9; Qur8:n 33. 28–9.

r (Beirut: 62lam al-Kutub. covers all of these categories in some depth. 228. Qur8:n 2. covers all of them except the Cih:r oath. The Muwatta of Imam Muhammad.. 242–3. 25 Note that al-Muzan.24 Finally. 264/878) decision to divide the divorce-related topics in his MukhtaBar into the ‘Book on Female-initiated divorce’.oxfordjournals..A.’s book. Near the end of this section. discusses at some length takhy.’s recension. 1986). Anas. Abdel Haleem’s The Qur8:n: A New Translation (Oxford. Chapters. (All Qur8:nic citations in this article are from M. YaAy: al-Layth. Qur8:n 2. 24 While Spectorsky does not count the effects of conversion and apostasy among the seven major divorce topics.¯ D I V O R C E . The female-initiated divorce (khul6). E A D I T H . The text also reports that al-Shayb:n. . 2004). 234 (widow). allowed the couple to remarry after the li6:n procedure. 2011 20 Spectorsky.) 21 Spectorsky. al-J:mi6 al-Bagh. The waiting period (6idda).r and the oath of sexual abstinence in the ‘Book on Divorce’ and mutual imprecation in the ‘Book on Gih:r’. If he does so. ‘Book on Gih:r’. al-Muwatta of Imam Malik ibn Anas: The First Formulation of Islamic Law. Aisha Bewley (Inverness. al-J:mi6 al-Bagh. Scotland: Madina Press. states that the li6:n procedure does not result in the dissolution of the couple unless the q:@.ths with isn:ds pertaining to divorce are found in M:lik’s Muwa33a8 and only three are present in al-Shayb:n. 33. along with SaAn<n’s Mudawwana. ‘Book on Divorce’ (3al:q). 191–243. 2004). and devotes special attention to a dizzying array of divorce statements. Mohammed Abdurrahman and Abdassamad Clarke (London: Turath Publishing. Spectorsky. . al-Muzan.r.S. 23 MuAammad al-Shayb:n. fall into these seven categories. separates them. 229. 49.20 7. and MuAammad al-Shayb:n. with the exception of mutual imprecation. transl. it is no sin for either of them if the woman ransoms herself’.r.s ch o l a r s t yl e 329 6.’s (d. .21 This framework works very well with most of the early fiqh books that have survived. ‘ . 2001).’s recension of M:lik’s Muwa33a8 has at least two chapters on all seven of these categories. al-Shayb:n. whereas Ab< Y<suf denied such a possibility. and ‘Book on Waiting Periods’. 65. 4. while the recension of al-Shayb:n. 22 M:lik b. ‘Various other topics’.org at Princeton University on July 17. 242–72. ibid. Note that only five prophetic Aad. Chapters. 52–9. ma6a sharAih al-N:fi6 al-kab. Shayba. indicates the significance of these categories in his vision of Islamic law. 2.23 Most of the chapters on divorce in the aforementioned MuBannafs of 6Abd al-Razz:q and Ibn Ab.25 Downloaded from jis. Chapters. although these books also explore the effects on the marriage bond of conversion to and apostasy from Islam.22 Al-Shayb:n. transl. this counts as a single divorce in which the husband does not have the right to take back his wife during her waiting period. 50–2. 59. she mentions them under her subheading. 221–43.

Each of these topics is affiliated with a unique cluster of narrative Aad. This quality inevitably facilitated memorization and transmission of each episode. 73 or 74/692–3) poorly-executed divorce.ths that are often recounted through multiple channels of transmission. since Western scholars have long argued that Aad. were well aware of the major legal debates that had been brewing since the second/eighth century. S. while Ab< D:w<d places it in Chapter 4.ths report that Ibn 6Umar divorced his wife while she was menstruating. but also. resulted in divergent reports that correlate to juristic disagreements. M.. along with its concomitant legal implications.th scholars under discussion and then analyse the methodology of each scholar individually. all open their ‘Books on Divorce’ with the tale of 6Abd All:h b. l uc as This study demonstrates that the Aad. there were several contentious topics among the early jurists that none of the Aad. Chicago: George Allen and Unwin. These topics include the validity of conditional divorce statements. This finding is not unanticipated. Muslim. and the right of a woman whose husband has gone missing (al-mafq<d) to dissolve her marriage in order to remarry.. with one variant having the Prophet granting Ibn 6Umar the right to divorce her after she has purified herself from menstruation.27 These Aad.330 s co t t c . 27 Ibn M:ja puts it in the second and third chapters.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’.th scholars from al-D:rim. Ignaz Goldziher. and. The story fragments from here. Muslim Studies (ed. and that the Prophet ordered 6Umar to tell his son that he must take back his wife.. 19. and al-Tirmidh. postponing his right to divorce until the time when she has purified 26 ‘[The corpus of Aad. 6Umar’s (d.ths are repositories of the earliest Muslim debates.26 1 The Sunna Divorce: The story of Ibn 6Umar’s mistimed divorce Al-D:rim. We shall now examine the six legal topics addressed by all of the Aad. Despite this general awareness. that his father reported this action to the Prophet.org at Princeton University on July 17. 1971 (1889–90)).th books under analysis.oxfordjournals. in several cases. with the exception of al-Bukh:r. to al-Tirmidh. in a second variant. al-Bukh:r. Stern. 2011 Only six legal topics concerning divorce can be found in all of the Aad. 2 vols. . ii.th scholars under consideration. broached in their books. CASE STUDIES: UNIVERSAL TOPICS Downloaded from jis. the effect on inheritance of the man who divorces his wife during his terminal illness..

A (3al:q: 1). S.. if he wished. 6Abd al-RaAm:n related from S:lim.. then. on the authority of Ibn 6Umar. and ManB<r (b. and if he wished. Al-Bukh:r. E A D I T H . states. that the divorce counts as one of his (two) revocable divorces.29 and. 4aA. Ab< l-Zubayr’s report is number 2185 and says that Ibn 6Umar’s divorce did not count as a divorce (wa lam yarah: shay8an). Zayd b. and that he has two witnesses’.28 Downloaded from jis. A similar report to the N:fi6 al-Zuhr.th was transmitted via Ibn 6Umar al-Easan 6A3:8 al-Khur:s:n. which is the title given to the chapters in which it initially appears in all six Aad. namely that Ibn 6Umar’s divorce did not count as one of the two revocable divorces.s ch o l a r s t yl e 331 herself from an additional period of menstruation after the one during which he initially divorced her. his divorce counts and he is to be ordered to take back his wife’. he could keep her.30 Muslim.oxfordjournals. The transmission from Ibn 6Umar (S:lim and N:fi6) al-Zuhr. in one of his rare legal opinions. Anas b. 2011 Ibn 6Umar’s story became inseparable from the ‘sunna divorce’. Aslam. 30 Ibid. 29 al-Bukh:r.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.r.¯ D I V O R C E . He alone mentions and leaves unresolved the debate 28 Sunan Ab. 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. Ab< l-Zubayr.d b. he could divorce her. In his Sunan. The primary lesson from this story is that a man must take back his wife if he divorces her during her menstrual period. in the following chapter. Aad. Sa6. .ths contradict what Ab< l-Zubayr said. 4aA. says that the Prophet ordered Ibn 6Umar to take her back until she was free from menstruation.th compilations. and links it to ‘the practice (6amal) of the scholars among the Companions of the Prophet and others’. Ab< D:w<d elucidates the tangled web of transmissions of this story: Y<nus b. Jubayr. (3al:q: 2). ‘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).A (3al:q: 1). D:w<d. 31 Muslim. had another period. says. prior to making a decision whether to divorce her or keep her. ‘It is unlawful to divorce a menstruating woman without her consent and if he disobeys this rule. and then was free from menstruation again. All of these Aad. 2:442 (3al:q: 4).n. al-Mu6tamir) via Ab< W:8il all relate this Aad. This is also the case of what MuAammad b. uses the identical definition of the sunna divorce (without mentioning the witnesses) as al-Bukh:r. Jubayr.31 Al-Tirmidh.org at Princeton University on July 17.

oxfordjournals. 3).36 divorced his wife triply and she al-Tirmidh. and the opinion that he must wait until after one additional period of menstruation prior to divorcing her again.th. They also all agreed that the divorce counted. 1978). 4aA. Cairo: Maktabat al-Kh:nj. 2001).332 s co t t c . Ab< D:w<d.A (nik:A: 17).. (d.. 2 The Marriage that allows a terminally divorced couple to remarry: The story of Rif:6a al-QuraC.r (ed. l uc as between the jurists. 6Al. or. 34 al-Bukh:r. 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. Sunan (3al:q: 2.33 The story of Ibn 6Umar’s mistimed act of repudiation serves as crucial evidence for a modification to the Qur8:nic laws of divorce. tamy. Sunan (nik:A: 32). Sunan (3al:q: 49). 395. al-J:mi6 (3al:q: 1). 2011 . al-J:mi6 (nik:A: 27). nor Ab< D:w<d offers a precise definition of the sunna divorce.’s unsatisfied ex-wife35 The second topic relies upon the only story possessing a touch of sexual humour. 4 vols. Ibn Eajar.org at Princeton University on July 17... MuAammad 6Umar. Muslim. Nowhere does the Qur8:n indicate that a man cannot divorce his wife while she is menstruating and all six Aad. and they relate Aad. but complicates matters in the following chapter by recounting a variant version in which the Prophet merely says to 6Umar.34 What the Aad.. al-IB:ba f.z al-BaA:ba. 36 Nothing appears to be known about Rif:6a beyond this Aad. Ibn M:ja. in the case of al-Bukh:r.. 518. either on the basis of the preponderance of reports. 32 Downloaded from jis..th as a limit upon the husband’s unfettered right to divorce. 204/820) and Ibn Eanbal. 11 vols. al-Tirmidh.. (Beirut: D:r al-Fikr. v.. 35 al-D:rim. Ibn Sa6d.ths supporting both the opinion that a man can divorce his wife a second time immediately following her menstrual period when he first divorced her. 4aA. Sunan (3al:q: 4). al-Bukh:r. versus the opinion of Sufy:n al-Thawr. (d. Rif:6a (b. He also records the disagreement over the sunna divorce of a pregnant woman. Sam<8al) al-QuraC. from a separate statement attributed to Ibn 6Umar himself. ‘Tell (Ibn 6Umar) to take her back and then divorce her when she is free from menstruation or pregnant’. Kit:b al-Fabaq:t al-kab. 37). 7.A (3al:q: 4.th scholars collectively demonstrate is that Ibn 6Umar’s 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.32 Neither al-D:rim.th scholars understood this Aad. 33 Ibn M:ja. who are of the opinion that the sunna divorce encompasses a triple divorce in one setting. i. Ibn M:ja only relates the version of this report in which Ibn 6Umar is ordered to wait until after his ex-wife’s second menstrual cycle to divorce her in his chapter on the sunna divorce.A (3al:q: 2). like al-Sh:fi6. 4aA.

has the longer version as. la6allaki tur.d overheard the conversation outside the door of the Prophet’s residence. al-J:mi6 (nik:A: 27). complained that her new husband’s manhood was akin to an eyelash or thread (hudba). E A D I T H . 230. since the verb 3allaqa is employed in this manner in Qur8:n 2. the story of Rif:6a’s ex-wife clarified 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.ths. al-Bukhari.n an tarji6.A (3al:q: 41. 4aA. 4aA. 2011 . il: Rif:6a? l: Aatt: yadh<qa 6usaylataki wa-tadh<q.A Muslim. reports in the ‘Book on Marriage’ that this is the practice of the general mass of Companions and subsequent scholars. x.¯ D I V O R C E . 41 al-D:rim. in some versions. 455 (3al:q: 4). a woman could be divorced prior to consummation.org at Princeton University on July 17..th to demonstrate the validity of a triple divorce in a single session (3al:q: 4) and on the topic of a woman’s right to leave her house during her waiting period (3al:q: 9). x. ‘Can you believe what was said out loud in the Messenger of God’s presence!’ Sunan al-D:rim. she had ‘tasted his sweet honey’. Sunan (3al:q: 39. Sunan (3al:q: 10). l: Aatt: yadh<qa 6usaylatah: kam: dh:qa l-awwal.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. 39 Qur8:n 2. Ab< D:w<d..oxfordjournals... In addition to casting an embarrassing light upon the anatomy of a certain 6Abd al-RaAm:n b. 37 Downloaded from jis.s ch o l a r s t yl e 333 subsequently married 6Abd al-RaAm:n b. and the shorter one as just.. Ibn M:ja. 3 (nik:A: 17). al-Tirmidh.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. Note that Ibn M:ja also uses this Aad. 4aA.39 Theoretically. 40 al-Tirmidh. 236–7.. 38 al-Bukh:r.A (3al:q: 6).ths In the version from 628isha 6Urwa al-Zuhr. Muslim.. al-Zubayr al-QuraC. before 60/679) divorce has produced the most conflicted interpretations of any of the Aad.38 The story ends abruptly with this euphemistic prophetic statement. ii. went to the Prophet and. 42). Rif:6a’s ex-wife. 6usaylatahu. This memorable prophetic locution cemented the requirement of consummation with the new husband prior to the remarriage with the original one and al-Tirmidh. 40). in several versions. al-Zubayr. Kh:lid remarked with astonishment. whose name is never mentioned in the Aad. Sunan (3al:q: 10).d. 7 (3al:q: 4). FatA al-b:r. al-J:mi6 (3al:q: 5). Sa6. Ab< Bakr was with the Prophet and Kh:lid b.

42 .org at Princeton University on July 17.th in the Legal Controversy about the Rights of a Divorced Woman during her ‘Waiting Period’ (6idda)’. Jahm al-6Adaw. see Hawting. Mu6:wiya b. 45 al-Dhabab. al-Eakam (d. identified in some narrations as Ab< 6Amr b. by Marion H.42 The basic story is that F:3ima’s husband. R. al-Dhahab.d b. 65/685) inquired into F:3ima’s case during his governorship of Madina and that the Prophet encouraged her to marry Us:ma b. Bulletin of the School of Oriental and African Studies. Yas:r (d. A few transmissions of this story include the additional details that Marw:n b.. Ab. See also Asma Sayeed. 88–91 and 176–88. Harald Motzki argues that this is an early Aad.. Ab. 52 (1989): 430–45. all six Aad. 6Abd al-RaAm:n. Katz (Leiden: Brill. al-Musayyab45 and Sulaym:n b. 2002). offers 107/725–6 and 104/722–3. 58/678) rejected vehemently the interpretation of F:3ima’s prophetic citation as a universal rule. Jahm al-6Adaw. and Ab< Bakr b. 158–67. ‘The Rights of a Divorced Woman’. the Aad. ‘Shifting Fortunes: Women and Ead. i. 43 For a very similar description and additional references. and.th books contain Companion reports that 6Umar and/or 628isha (d. all claim to transmit the Prophet’s verdict from F:3ima herself. 2011 This Aad.ths from the Madinans Ab< Salama b. ordered her to spend her waiting period in the house of the blind Emigrant Ibn Umm Makt<m. Ab.D.).th has been studied by G. 45. Tadhkirat al-Auff:C (Beirut: D:r al-Kutub al-6Ilmiyya. Hawting. 5 vols. ‘The Role of the Qur8:n and Ead. 70. Harald Motzki. in some versions. 6Ubayd All:h b. 46 There exists great uncertainty over his precise death date. 2005).th Transmission in Islamic History’ (Unpublished Ph.th that probably goes back to F:3ima herself. l uc as under discussion. However. EafB. 436–7. pace Joseph Schacht. F:3ima informed the Prophet of this situation. Tadhkira. Sufy:n and Ab< Jahm.oxfordjournals.44 and the Kufan al-Sha6b.334 s co t t c . 107/725–6) 46 are Downloaded from jis.43 This story would seem totally straightforward were it not for the existence of alternative versions and Companion statements that seek to discredit F:3ima’s testimony. and Marw:n and the Madinan Successors Sa6. 6Utba. i. 44 His full name is Ab< Bakr b. transl. dissertation. The Origins of Islamic Law. 6Abd All:h b. 6Abd All:h b. to which he purportedly replied that she was entitled to neither maintenance nor lodging. Zayd after her waiting period instead of her two suitors. In fact. divorced her irrevocably (triply) from afar and refused to provide her with either lodging (sukn:) or maintenance (nafaqa) during her waiting period. Princeton University. provides death dates ranging from 89/707–8 to 105/723–4 for Ibn al-Musayyab and declares 94/712–3 to be the most likely one.

Sunan (3al:q: 39). ‘The Rights of the Divorced Woman’. This is the opinion of M:lik b. including 6Umar and Ibn Mas6<d. 47 Downloaded from jis. since God said.’s argument with an anonymous explanation that F:3ima did not receive lodging because she was ‘abusive to her household’ (tabdh< 6al: ahlih:). Sunan (3al:q: 40). Al-Tirmidh. Sunan (3al:q: 10). 114/732 or 115/733). Al-Sh:fi6. 48 al-D:rim. which states that women cannot be evicted from their homes during their waiting periods unless ‘they commit a flagrant indecency’. Sa6d (d.fa. such as al-Easan al-BaBr. 6Utba. The impact of F:3ima’s report and its rejection by several prominent early religious authorities divided both jurists and Aad. al-Layth b. Another version adds. al-Sha6b. (d. He appears less skeptical in the version transmitted by Hish:m b. Hawting. see Ab< D:w<d. and the Kufans. al-J:mi6 (3al:q: 5).47 A common formulation of 6Umar’s attitude toward this story is his statement. al-J:mi6 (3al:q: 6). 2011 . E A D I T H . Sunan (3al:q: 40). Anas. Muslim. ‘We do not know if she memorized this properly’. ‘Do not drive them out of their homes’ nor should they themselves leave ‘unless they commit a flagrant indecency’ [Qur8:n. Ab< Y<suf and MuAammad al-Shayb:n.49 Some scholars grant her lodging but not maintenance.org at Princeton University on July 17. Ab. 1] [. 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).]50 and she does not receive maintenance on the basis of the Aad. Ab< D:w<d. 110/728). ‘We grant her lodging on the basis of the Book of God. See also. 175/791). al-Zin:d in Sunan Ibn M:ja (3al:q: 10). 6Urwa Ibn Ab.th scholars over the correct ruling concerning the rights of the triply divorced woman during her waiting period. 51 Ibid. 65. between 103/721 and 110/728). and al-Sh:fi6. .. clearly presents the three major opinions in the following manner: Some scholars.oxfordjournals. are of the opinion that the triply divorced woman is to receive both lodging and maintenance. uses the expression ‘the Kufans’ as shorthand for Ab< Ean. concerning the story of F:3ima bint Qays. 6A3:8 b. Ibn Eanbal. (d. interrupts the flow of al-Sh:fi6. said. al-Tirmidh.51 Marw:n’s skepticism is found in the narration transmitted by al-Zuhr. This opinion is shared by Sufy:n al-Thawr. 49 al-Tirmidh. Rab:A (d.A (3al:q: 6) and Ab< D:w<d.th of the Messenger of God (peace be upon him).¯ D I V O R C E . 50 al-Tirmidh. 6Abd All:h b. . 438–40... For the dismissive comments of Sa6... Some of the Companions of the Prophet. 4aA. al-Tirmidh. 1.s ch o l a r s t yl e 335 depicted as being skeptical as to its validity.d and Sulaym:n. ‘We do not abandon the Book of God and the sunna of his Prophet on the basis of an utterance from a woman!’48 6Umar’s reference to the Book of God is most likely an allusion to Qur8:n 65. from 6Ubayd All:h b.

. l uc as Interestingly.. he cites Qur8:n 65.oxfordjournals. 4) 628isha says to 6Urwa. although Ab< D:w<d does not provide any evidence in support of the hybrid M:lik/al-Layth/ al-Sh:fi6. al-Zubayr after he mentioned F:3ima.’s own opinion. In the showdown between F:3ima’s prophetic Aad. relates reports in which. refuses to take sides and merely relates the three positions adopted by a handful of his illustrious predecessors.th. and Muslim expresses his own opinion in the chapter title. even though she did not claim to be basing her opinion overtly on a prophetic teaching. Ibn Eajar. and the Prophet made a special exception for her to move out of fear of her initial location’. al-Bukh:r. 53 ‘House the wives you are divorcing . 5) 6Urwa’s observation that 628isha rejected F:3ima’s claim that the Prophet allowed her to relocate during her waiting period. Muslim. ‘What is F:3ima’s problem? Do you not fear God?’ and 3) 628isha says to 6Urwa b.53 along with five very different versions of 628isha’s rejection of the implications of F:3ima’s statement. 6. FatA al-b:r. Al-Bukh:r.th scholar under consideration who refuses to include a single Aad.th)’. that the divorced woman cannot relocate during her waiting period even if ‘it is feared that the husband’s residence will become hateful to her or she will verbally abuse her [alternate: his] household’. Both Muslim and Ab< D:w<d relay a wide array of variants of F:3ima’s prophetic Aad. .A (3al:q: 6). 2) 628isha says.th along with the criticisms of 6Umar and 628isha. al-D:rim. in the end. 4aA.-maskan zawjih: an yuqtaAama 6alayh: aw tabdhuwa 6al: ahlih: bi-f:Aisha. ‘She receives no merit from mentioning this statement (Aad. 2011 . Sunan (3al:q: 10).th) of F:3ima’.55 The story of F:3ima bint Qays and its ensuing controversy provide a useful window into the legal hermeneutics of the six Aad. 603 (3al:q: 41. ‘The triply divorced woman does not 52 al-D:rim. Downloaded from jis. 42). al-D:rim. nor 6Umar’s criticism. Ibn M:ja. x.A (3al:q: 41. 42).336 s co t t c . al-mu3allaqa idh: khushiya 6alayh: f. ’ 54 al-Bukh:r. ‘F:3ima was in an insecure place. 4aA.th in which F:3ima actually utters the prophetic decision that denies her lodging or maintenance. 55 Ibid.th and the critical remarks of 6Umar and 628isha.th scholars under consideration. . champions the second one. opinion. and Ibn M:ja side with F:3ima. provide clear evidence of their preferred positions on this topic. 1 and 65. can be derived from the title of the forty-second chapter of his 4aA.org at Princeton University on July 17.52 Al-Bukh:r. but. and Ibn M:ja support the first position outlined by al-Tirmidh.54 Al-Bukh:r.A. Sunan (3al:q: 10). al-Bukh:r. 1) 628isha tells Marw:n that ‘You will not be harmed for refraining from mentioning the statement (Aad. and instead elevates 628isha’s opinion to the highest authority on this issue. while al-Tirmidh. rather. Neither Ab< D:w<d nor al-Tirmidh. Ab< D:w<d refuses to adopt a transparent position. 598. and Muslim adopts the third one... cites neither F:3ima’s Aad. is the only Aad.

. Subay6a told Umm Salama that the Prophet ordered her to get married immediately. al-D:rim. 6) declaring that a woman’s waiting period lasts until childbirth can shorten the prescribed waiting period of three courses. 80 (3al:q: 6).oxfordjournals. Ab< Hurayra took the initiative to ask Umm Salama (d.. Muslim. and al-Tirmidh. the tale of Subay6a bint al-E:rith al-Aslamiyya58 provided a solution to a problem upon which Muslim jurists ultimately achieved consensus.. 93.A Muslim. 4aA. 61/680–1).s ch o l a r s t yl e 337 receive maintenance’. Ab< D:w<d. 28 vols. al-Tirmidh.. 210. 2001). Ab< D:w<d. since her waiting period had ended.. and that four of them even adopted precise positions on the topic of the triply-divorced woman’s rights during her waiting period.. E A D I T H . Ab< Salama b. Sunan (3al:q: 7). iv. al-J:mi6 (3al:q: 17). 4aA. identified by one of al-Bukh:r. her opinion. Ibn M:ja. 58 Her deceased husband’s name was Sa6d b. al-Bukh:r. 57 56 Downloaded from jis. 4aA.60 This story resolves the question as to whether the Qur8:nic verse (65.A (3al:q: 8).. x. x.A.59 one of the Prophet’s widows. ii. Ibn M:ja. 499. 6Abd al-RaAm:n (d.A (3al:q: 8). 2011 .¯ D I V O R C E . 234. (Beirut: Mu8assasat al-Ris:la. Siyar a6l:m al-nubal:8. Ba6kak. Sunan (3al:q: 47). 4aA.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. Ibn Eajar. 4aA. between 57/676–7 and 59/678–9) over whether a pregnant widow’s waiting period ends at the time of childbirth if the child is born shortly after the husband’s death. three months. Sunan. (3al:q: 11). 60 This version is found in Sunan al-D:rim.. Sunan (3al:q: 11). 11–2. One version of the story begins with a debate between Ibn 6Abb:s (d. Another version involving one Ab< al-San:bil b.. 94/712–3 or 104/722–3). 4 Does childbirth always terminate a woman’s waiting period? The story of Subay6a’s brief waiting period57 Unlike the irreconcilable legal opinions that emerged from F:3ima bint Qays’ story. al-IB:ba.A (3al:q: 39). although he mentions that some scholars date it to 59/678–9. Muslim. or whether the widow is required to observe the full four months and ten days prescribed in Qur8:n 2. who happened to give birth a short time after the death of her husband. makes no mention of the legal dispute and is found in al-D:rim. 324. and she in turn related to him the story of Subay6a. 59 The death date of 61/680–1 is favoured by al-Dhahab.. 11th imp. and Ab< Hurayra (d.org at Princeton University on July 17. 68/687–8).A (3al:q: 39). 4aA.A Muslim. al-J:mi6 (3al:q: 17). Ibn Eajar does not indicate Subay6a’s death date.. al-Bukh:r. ii. al-J:mi6 al-BaA.’s narrations as her suitor. iii. Sunan (3al:q: 47). Sunan (3al:q: 7). al-Tirmidh. Khawla.

.A (3al:q: 5).. extended the Prophet’s ruling to the divorce waiting period as well.. Kit:b al-Fabaq:t al-kab.th concerning Umm Kulthum bint 6Uqba’s act of tricking her husband. al-Ishr:f 6al: madh:hib ahl al-6ilm. 3 vols. 63 al-D:rim.oxfordjournals. 4aA. either overtly through their choice of chapter headings. all of the Aad.th scholars. 2011 . Muslim. the common background story for takhy. along with al-Thawr.. al-Zubayr b.. 1993). not only reports that it is the opinion of ‘most of the scholarly Companions’. Sunan (3al:q: 6).A. but adds his own view that this ‘is the more correct position’ even though some unnamed Companions preferred the woman to fulfill the longer of the two possible waiting periods in all cases. l uc as or four months and ten days. and Ibn 6Abb:s. 62 For example. Ab< D:w<d.338 s co t t c .62 In short. The isn:d has a lacuna (munqa3i6). Ibn al-Mundhir (d.61 Although technically this story addresses the widow’s waiting period. 257. This consensus as to the Prophet’s command is also shared by the jurists. 61 Downloaded from jis. and Muslim’s reads. 318/930) attributes the position that a woman’s waiting period should be the longer of the two durations to 6Al. thus denying him the opportunity to take her back during her waiting period. Ibn al-Mundhir.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. al-Sh:fi6. the story of Subay6a provided Aad.r is largely unspoken in the numerous transmissions from 628isha found in the Aad. al-J:mi6 al-BaA.th books. The concept of takhy. al-Bukh:r. in which a husband grants his wife (or wives) the choice (khiy:r) to either maintain or sever al-Tirmidh. al-D:rim.r. as al-Tirmidh. al-Tirmidh. Sunan (3al:q: 12). 4aA. with the exception of Ibn M:ja. Ibn M:ja uses a unique Aad. Even though the story is transmitted from Subay6a through six different authorities in multiple formats. b:b f. 498–9. or whether it can only extend the woman’s waiting period. b:b inqi@:8 6iddat al-mutawaff: 6anh: zawjuh: wa-ghayrih: bi-wa@6 al-Aaml (3al:q: 8).. Sunan (3al:q: 20). 5 The story of 628isha’s choice63 Unlike the previous four legal topics. or through their comments in the chapter. al-J:mi6 (3al:q: 4).org at Princeton University on July 17. all of our Aad.A (3al:q: 4.th scholars and jurists with a decisive argument that a woman’s waiting period does in fact terminate as soon as she gives birth even if this occurs shortly after she is widowed or divorced.. into offering her a single divorce just moments prior to her giving birth. and Ibn Eanbal. 5). al-6Aww:m. 218–20. Sunan (3al:q: 5). Ibn M:ja. although this story is also found in Umm Kulthum’s entry in Ibn Sa6d. iii.r.-6iddat al-A:mil al-mutawaff: 6anh: zawjuh: wa-l-mu3allaqa (3al:q: 11).’s chapter heading is. (Beirut: D:r al-Fikr. x. i.

th transmitted by the Kufan Successor Masr<q b. Zayd b. 483–4. such as the episode of banning (taAr. withdrawing from one’s wives. It is the opinion of Sufy:n al-Thawr.r. that if she chooses herself. 66 His name is Muslim b. and his lengthy accounts link it to additional Qur8:nic verses and topics. Most of the scholars and jurists among the Companions and their successors adopted the position of 6Umar and Ibn Mas6<d. 4ubayA al-Hamd:n.l:8). I will make provision for you and release you with kindness.¯ D I V O R C E . It has also been reported that they considered it to be a single revocable divorce and that if she chooses her husband. 70. iii. also the Qur8:nic verse ‘if (the two of) you collaborate against him’ (66. derives from the Qur8:nic passage (33. . between 42/662–3 and 56/675–6] said that it is a single divorce if she chooses her husband and a triple divorce if she chooses herself.org at Princeton University on July 17.65 Downloaded from jis.r among the early Muslim legal authorities: The scholars disagree over khiy:r. Ibn Eanbal followed the position of 6Al. 628isha.. 28–9) in which the Prophet is commanded: Say to your wives.s ch o l a r s t yl e 339 the marriage bond.. it is a single divorce in which he cannot take her back during her waiting period (b:8ina). His Messenger. ‘If your desire is for the present life and its finery. 4aA. and Ab< al-DuA:66 exhibit inconsistencies. al-Ajda6 (d. x. ‘On . and the Final Home.m) in S<ra 66 and the oath of sexual abstinence (. but if you desire God.A Muslim. describes succinctly the uncertainty over the nature of takhy. 65 al-Tirmidh. It has been narrated from 6Al. and granting them the choice. Th:bit [d.l:8. it is a single irrevocable divorce. it does not count as anything. 63/682–3) from one of the immediate participants in the first takhy. then come.. ‘the Prophet granted us ‘the choice’ (khayyaran:)’ and that it did not count 64 Chapter 5 of Muslim’s ‘Book on Divorce’ is called. whereas if she chooses her husband. Muslim b. all of them report 628isha’s comment that. E A D I T H .. then remember that God has prepared great rewards for those of you who do good’. al-J:mi6 al-BaA.oxfordjournals. 4)’. it is a single revocable divorce.64 Al-Tirmidh. Only Muslim provides any sort of narrative in his discussion of ‘granting the choice’. It has been narrated from 6Umar and Ibn Mas6<d that if the woman chooses herself. Kh:lid. and the Kufans. 2011 All six books contain at least one Aad.A. Although the exact wording of nearly all of the narrations transmitted from Masr<q by his Kufan pupils al-Sha6b.

See also Joseph Schacht’s extensive entry. Masr<q drives home the legal point by exclaiming. but both of them conspicuously lack any indication as to whether the husband’s act of granting his wife ‘the choice’ counts as a divorce.. a-khayyartuh: w:Aida aw mi8a ba6d an takht:ran. l uc as as a divorce. 32–6). 461 (3al:q: 5). Sunan (3al:q: 38). ‘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 628isha’s story with several more narrative details than Masr<q’s succinct Kufan reports. call God to reject him if he is lying.A (3al:q: 5).: FatA al-b:r. al-D:rim. 2011 6 The Procedure for mutual imprecation: the story of the first li6:n71 The final topic covered by all six Aad. 69 Muslim.70 628isha’s story.oxfordjournals. Sunan (3al:q: 27). Sunan (3al:q: 20).340 s co t t c .67 In one of al-Bukh:r. 71 al-D:rim..’s two Aad. Ab< D:w<d.A (3al:q: 4). Sunan (3al:q: 27–9). 68 L: ub:l.. as can be seen in the following Qur8:nic passage (24. Ab< D:w<d. Ibn M:ja. ‘li6:n’ in the EI2. contains the most tangled web of narratives that strive to answer questions left unanswered by the Qur8:n. 6–7): As for those who accuse their own wives of adultery. 4aA. the fifth time. Muslim. Muslim. al-J:mi6 (3al:q: 4). Ibn M:ja. 67 . either refer to a different incident than the takhy... al-Tirmidh. Downloaded from jis. in its Kufan manifestation.. al-Tirmidh. 4aA. which report that the Prophet divorced EafBa and then took her back. al-J:mi6 (3al:q: 22).. Ibn M:ja.A (3al:q: 25–30. 4aA. 4aA.. Sunan (3al:q: 1). and. Sunan (3al:q: 12). Ibn M:ja.org at Princeton University on July 17. 70 al-D:rim. and Ab< D:w<d. x.. mutual imprecation. 4aA.ths found in the Sunans of al-D:rim. Sunan (3al:q: 2). The verses introducing li6:n provide a procedure by which a man can deny paternity of his wife’s child by accusing his wife of infidelity without the requisite four witnesses. al-Bukh:r. Sunan (nik:A: 39).th scholars under examination. al-Bukh:r. let each one four times call God to witness that he is telling the truth. Ab< D:w<d.A (3al:q: 4.A (li6:n). Sunan (3al:q: 5). calls God to reject her if she is telling the truth.ths on this topic. 5). serves as a decisive proof in favour of the mainstream Sunni position that the act of granting one’s wife ‘the choice’ does not count as a divorce if she chooses to remain with her husband.69 Assuming that the Aad. punishment shall be averted from his wife if she in turn four times calls God to witness that her husband is lying and. the fifth time.r episode or are inauthentic. but have no other witnesses.

al-J:mi6 (3al:q: 22). Sunan (3al:q: 28). 4aA. told by Ab< Hurayra on the authority of the Prophet. 6Umar. 4aA. 73 For Ibn 6Umar Sa6. 52. A fifth story. Sunan (nik:A: 58).. 432.A (Aud<d: 42).73 The second most popular version of this story is transmitted from the long-lived Companion Sahl b. Sunan (3al:q: 27). 35). or Sa6. 45/665–6). 124/742). It includes the names of the two primary characters.A (3al:q 32.. . Fabaq:t.A (li6:n). he indicates in most versions that it was either ‘an AnB:r.. 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.org at Princeton University on July 17. in the case of N:fi6’s narrations. Sunan (nik:A: 37). al-J:mi6 (3al:q: 22).A (3al:q: 34. Muslim. al-Tirmidh. 6Ad. al-D:rim. and.¯ D I V O R C E . see al-D:rim.ths on this topic—Does li6:n actually lead to the termination of the marriage. Sunan (3al:q: 27).A (li6:n). Jubayr. Ab< D:w<d..A (3al:q: 26). Ab< D:w<d. 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. ‘What does a man do if he finds someone Downloaded from jis.th books is transmitted by either N:fi6. 6Ub:da’s jealousy were he to find a man in bed with his wife and segues into the jealousy (ghayra) of the Prophet and God. Sunan (nik:A: 39). see al-Bukh:r. al-Bukh:r. Ibn Jubayr’s story begins with a dispute in Iraq during the reign of MuB6ab b... 4aA. 53. For Ibn 6Umar N:fi6. Ibn M:ja. but rather the information that the Prophet separated the parties.d b. 4aA.74 to whom the Prophet refused to answer the question. 4aA. (d. Muslim. 4aA. with little to say about the li6:n process. iii.th-scholars’ chapters devoted to li6:n and the three major stories72 found among the Aad.’ or ‘someone from Ban< al-6Ajl:n’. The only report found in all six Aad.q) is part of the li6:n procedure and involves Ibn Jubayr visiting a fatigued Ibn 6Umar in the Hijaz. (d. according to Ibn Sa6d. al-Bukh:r. al-Tirmidh. Muslim 4aA. He lived 105 years.oxfordjournals. and. even though they are contradictory concerning the name of the first man who executed this procedure. Ab< D:w<d.. 4aA. 95/714) from 6Abd All:h b. 91/709–10 or 88/706–7) directly to al-Zuhr. Sunan (3al:q: 27). al-J:mi6 (al-wal:8 wa-l-hiba: 4). between 117/735 and 120/738). The significance of Ibn 6Umar’s story is not the identity of the involved parties. Sa6d al-Sa6:d.A (li6:n). al-Zubayr (686–91) over whether termination of the marriage (tafr. E A D I T H . Ibn M:ja. 62sim b.. (d. al-Bukh:r. see al-D:rim. Sunan (nik:A: 39)... al-Tirmidh. 33. Jubayr (d. 2011 72 A fourth story reports Sa6d b. granted custody of the baby to the mother.A (li6:n).d b. mawl: of Ibn 6Umar (d. if it does.s ch o l a r s t yl e 341 These verses raise two major questions that are reflected both in the Aad. Muslim. While Ibn 6Umar does not reveal the precise name of the first man to perform li6:n. which parent gains custody of the child? The various versions of the ‘first li6:n’ story can answer these questions.

A (li6:n). Ab< D:w<d. Sunan (3al:q: 27). Sunan (nik:A: 39).m b. other than that he was present at UAud. 75 .. mentions 62Bim b. Ibr:h. 578 (3al:q: 31..th.. 4aA. This Aad. see Muslim. 4aA. 118) for staying behind in Madina during the raid to T:b<k.A (li6:n). Y<nus. Muslim.ths transmitted from Sahl. ii. like the majority of the Aad. Y<nus. 2011 Nothing much appears to be known about him outside of this Aad.org at Princeton University on July 17. Sunan (3al:q: 27).. Ab< D:w<d. 294–5. The only scholar under examination not to include Sahl’s story is al-Tirmidh.. 79 Hil:l was an early convert to Islam who does not appear to have been present at UAud.75 the unfortunate fellow who found himself in this situation.. 6Ad.th is not found in the other four collections.’s narration does not mention the triple divorce. 36). For al-Zuhr.77 Another Aad. 569. 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.. whereas al-Awz:6. 6Abd All:h. iv. see al-D:rim. 4aA. Sunan (nik:A: 39). l uc as in bed with his wife?’ and 6Uwaymir al-6Ajl:n.342 s co t t c . Sunan (3al:q: 27). according to Ab< D:w<d.475 (3al:q: 27). Muslim.th. Ibn Jurayj. who is also one of the candidates for whom the li6:n verses were revealed.. whom Ibn Eajar (d.A (3al:q: 29).76 Further complicating Sahl’s report is the narration of Ibn 6Uyayna from al-Zuhr. Ab< D:w<d’s comment is found following Ibn 6Uyayna’s narration in Sunan Ab. see Ab< D:w<d. which. provides no evidence for the termination of the marriage at the end of the li6:n process. 852/1449) identifies as 6Uwaymir. 4aA..79 who Downloaded from jis. Ibn Sa6d. Note that Ibn Sa6d does not associate Hil:l with the first li6:n. 6Abd All:h al-Fihr. that almost certainly relates to this same event. Ibr:h. Sa6d and 6Iy:@ b.A (3al:q: 30). see al-D:rim. and his anonymous kinsman. is the only report on the authority of Sahl in which the Prophet himself terminated 6Uwaymir’s marriage. see Ibn M:ja. 6Iy:@ b. Sunan (3al:q: 27). 76 For al-Zuhr. While these narrations provide names to this event. x. D:w<d.oxfordjournals. 315–16. He achieved some notoriety for being among the three men criticized and forgiven in the Qur8:n (9. 4aA.78 Ibn 6Abb:s’ recounting of the story.ths of M:lik. Fabaq:t. For al-Zuhr. For al-Zuhr. ‘separated (farraqa) the couple’.A (li6:n). 4aA. M:lik. This already tangled web of narrations is further complicated by reports that the first man to perform li6:n was Hil:l b. ibid. For al-Zuhr. al-Awz:6. from al-Zuhr. Umayya.m b. 77 Literally. For al-Zuhr. Sa6d. iv. see al-Bukh:r. Muslim. 78 FatA al-b:r. al-Bukh:r. 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)’. the Aad. transmitted from Ibn 6Abb:s.A (li6:n). Ibn Jurayj.

Sa6. and Ab< D:w<d collect all of the contradictory versions of this story in a single chapter (or book) simply labelled as. and al-Tirmidh.. ‘the practice of the scholars is in accordance with this Aad. 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.83 Al-D:rim. and al-Tirmidh. Fabaq:t. which could refer to either 6Uwaymir or Hil:l. combines the stories so that 6Uwaymir accuses his fellow tribesman Shar.ths in his chapter on li6:n that have nothing to do with the story of the first li6:n. goes one step further by limiting his chapter to the two recensions of Ibn 6Umar’s account of li6:n affirming the legal point that the arbiter must separate the couple at its conclusion.82 These reports make no mention of separating the spouses and focus instead upon Hil:l’s status as the ‘first person in Islam’ to perform li6:n. 85 al-D:rim. 147/764–5 or 148/765–6). 150. This story is found in the books of al-Bukh:r. (d. ‘What has reached us concerning li6:n’ and leave it for the reader to sort out the legal implications of this knot of Aad. demonstrates his legal SaAm:8 is Shar. his father’s name is 6Abda b. 80 Downloaded from jis. cautiously graded Hish:m as ‘reliable (thiqa). YaAy: b. Mugh. Sunan (3al:q: 27). ii. Ibn Sa6d. 81 For more on Hish:m. he belongs to the Ban< 6Ajl:n. Ibn M:ja includes a couple of additional unique Aad. use the same chapter heading as Muslim and Ab< D:w<d. states after Ibn Jubayr’s version of the Ibn 6Umar narration that. and Ibn M:ja have as a common link the Basran Hish:m b. Interestingly. merely identifies the male imprecator as ‘an AnB:r. along with the practice of determining paternity on the basis of physiognomy. Ibn M:ja.ths.th and.¯ D I V O R C E .oxfordjournals. 83 Another self-identified witness to an act of li6:n.r.k b. Muslim. The clusters of reports that name or indicate 6Uwaymir as the first practitioner of li6:n and those that award Hil:l this dubious distinction defy satisfactory reconciliation and forced Aad. Note that the great Basran Aad. interestingly. Ibn M:ja. Eass:n al-Qurdus. SaAm:880 of having committed adultery with his wife without any witnesses. 198/813). Muslim.. the versions in al-Bukh:r. 271.s ch o l a r s t yl e 343 accused Shar.th’. IB:ba. God willing’. but include fewer contradictory reports. and al-Tirmidh. Ab< D:w<d. like 6Uwaymir. 82 Ab< D:w<d does have a lengthy additional transmission from Ibn 6Abb:s 6Ikrima 6Abb:d b. Ibn Mas6<d.k of commiting adultery with his wife. M:lik or Ibn 6Abb:s. 295.k’s mother’s name.d al-Qa33:n (d.n Anas.’. Fabaq:t. 2011 .85 Al-Bukh:r. al-Tirmidh.. iv. Ibn Sa6d.81 who claimed to have heard it from 6Ikrima Ibn 6Abb:s and Ibn S.th scholars to adopt certain strategies for dealing with them. ix. avoid this confusion by only citing narrations that relate to the 6Uwaymir story. ManB<r that does not involve Hish:m. Ibn Eajar. Sunan (3al:q: 27).org at Princeton University on July 17.84 Muslim. E A D I T H . al-J:mi6 (3al:q: 22). 84 al-Tirmidh. and Ab< D:w<d on the authority of Anas b. see Ibn Sa6d.th critic.

oxfordjournals. 550 and 569.ths related to the ‘first li6:n’ stories.ths about the first li6:n is that the Aad. x. Ibn Jurayj as proof that the li6:n procedure can (or should?) be done in a mosque. ‘Were I to have stoned anyone without evidence. when granted ‘the choice’. What is more striking There are actually twelve chapters in al-Bukh:r. or. The two topics concerning the waiting period are surprising.A (3al:q: 34). 2) faithfully recording all of the variations without providing legal opinions. in separating the couple that has performed the very public procedure of mutual imprecation. He also cites Sahl’s narration as evidence for ‘One who divorces (his wife) after the li6:n process’.th collections from this period. 4aA. but Chapter 25 (the validity of indicating li6:n by writing or pointing) does not include any Aad. 4aA. in the case of al-Bukh:r. It is remarkable that only six of the 45 divorce-related topics addressed by at least one of the third/ninth-century Aad.87 the Ibn 6Umar N:fi6 6Ubayd All:h transmission to indicate that the two parties are to N:fi6 M:lik version to show be separated. to the clarification that a woman who. relates to the identity of the woman to whom the Prophet was referring when he supposedly said.th scholars’ three strategies consisted of reducing or eliminating the contradictions through: 1) selective inclusion. 2011 . and to the crucial role of the q:@. ranging from the prohibition of divorcing one’s wife while she is menstruating.89 Al-Bukh:r. FatA al-b:r. and Chapter 31. 4aA. 89 Ibid.’s 4aA. since Subay6a’s story merely reaffirms the declaration in Qur8:n 65.A (3al:q: 30). which includes the first Ibn 6Abb:s story. I would have stoned her’. The lesson we derive from our analysis of the pile of contradictory Aad. 3) ignoring the contradictions while simultaneously exploiting the variations in order to derive multiple legal rulings. 4aA. 90 Ibid. chooses to stay with her husband has not expended one of her two revocable divorces. 6 that a woman’s waiting period is completed at the moment of childbirth. 88 Ibid. These topics appear at first sight to be highly random..A that deal with li6:n.th scholars under consideration are found in all of the major Aad.88 and the Ibn 6Umar that the mother receives custody of the child.344 s co t t c . 86 Downloaded from jis. only uses the version in which Hil:l is named as the first imprecator in his chapter stating that the man goes first in the li6:n procedure90 and does not include the Anas narration of this report in his 4aA.h.86 He wields the transmission of Sahl Zuhr. l uc as acumen by employing the various versions of these stories to tease out multiple legal details in ten chapters of his ‘Book on Divorce’.. whereas F:3ima’s report that triply-divorced women receive neither maintenance nor lodging seemed incorrect in the eyes of 628isha and 6Umar.. 87 al-Bukh:r.org at Princeton University on July 17.A (3al:q: 28).A (3al:q: 35). (3al:q: 29).

4aA. a report which centuries later Ibn Taymiyya (d. Muslim.92 While he recounts Ibn 6Abb:s’ Aad. half of which we just examined in the previous section.A (3al:q: 3). He shows little concern for procedural issues surrounding divorce proper (3al:q).¯ D I V O R C E .A (3al:q: 7. 92 Muslim. al-J:mi6 (3al:q: 14). 4aA.ths with complicated transmission histories. with the exception of al-Bukh:r. 1 Ab< l-Eusayn Muslim b.th compilation in addition to the ‘Book on Divorce’ and generally consist solely of prophetic Aad. Sunan (3al:q: 28). and al-Tirmidh.... ranging from the famous Ibn 6Umar and 628isha to the more obscure F:3ima bint Qays.. al-Bukh:r.A.91 along with a large cluster of Aad. we can identify which legal issues al-D:rim. Subay6a.org at Princeton University on July 17. Sunan (3al:q: 2).A (nik:A: 54). 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. and the early years of 6Umar’s caliphate.. their individual legal methodologies emerge most clearly when we compare their overall articulations of the laws of divorce to each other.. 2011 . 6Uwaymir al-6Ajl:n. This topic is also found in al-Bukh:r.oxfordjournals. the summary presentation of which will occupy the remainder of this article.. whom I shall consider after Ibn M:ja.th scholars in their presentations of these six topics. E A D I T H . These topics are found in four different sections of his Aad. Ab< Bakr. due to the former scholar’s unique hermeneutics.ths that include the prophetic prohibition against a woman stipulating that her suitor must divorce his existing wives prior to marrying her. Ab< D:w<d. This topic is also discussed by al-Bukh:r. and al-Tirmidh. Ibn M:ja. 4aA. Muslim covers a mere twelve legal topics related to divorce in his 4aA.s ch o l a r s t yl e 345 is that all six topics consist primarily of short narratives involving an unusual selection of Companions of the Prophet. INDIVIDUAL PROFILES Now that the six core topics have been elucidated. al-Eajj:j al-Nays:b<r. While we have seen some differences among our Aad. 4aA.th scholar will be introduced in the order of the ascending quantity of legal topics pertaining to divorce he addresses.. Each Aad. and the unnamed wife of Rif:6a al-QuraC.th that a triple divorce counted merely as a single one at the time of the Prophet.A (buy<6: 4). 8) and Ibn M:ja. 91 Downloaded from jis. Ab< D:w<d. chose to address and analyse their sources. 728/1328) and AAmad MuAammad Sh:kir Muslim.

between 73/692–3 and 78/697–8) 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. al-Bukh:r.). 57–60.A (3al:q: 5). which all of the Aad.93 Muslim merely labels this chapter ‘the triple divorce’ without comment. Al-Bukh:r. Sunan (3al:q: 24).96 Finally. 4aA.org at Princeton University on July 17.95 He relates a single narration of a Aad..A (3al:q: 7). links the ‘month-long . 2nd edn. Al-Bukh:r. al-Bukh:r. This Aad.. relates a highly abbreviated narration of Bar. and Ab< D:w<d. and.ra. 381. Ibn Taymiyya (Cairo: D:r al-Fikr al-6Arab. I assume that the fact Muslim does not declare the triple divorce to be unlawful means that he at least tacitly approves its practice.. a report which al-D:rim. AAmad Sh:kir. n.97 Downloaded from jis. as we shall see below. Ibn M:ja.ra’s story that does not mention her right to chose to end her marriage. 229. 94 Muslim. according to al-Dhahab. 4aA.. NiC:m al-3al:q f.A (6itq: 2).94 Muslim touches briefly upon three additional topics.th. Siyar a6l:m al-nubal:8. 96 Muslim. Ibn M:ja.. 4aA. Sunan (3al:q: 19–22). probably did not include this Aad. 4aA. 4aA..d.l:8’ to a separate incident in the Prophet’s life involving a broken leg.l:8 after only 29 days. 420–1. 43 (references). al-J:mi6 (al-wal:8 wa-l-hiba: 1). 4aA.th about 628isha’s act of manumitting Bar. 1969).A (3al:q: 15–17).. Sunan (3al:q: 10). al-Bukh:r. Ibn Taymiyya and AAmad Sh:kir also relied upon a version of the Ruk:na Aad.th scholars under consideration.th since the only version narrated by these four scholars contains the isn:d J:bir Ab< l-Zubayr. l uc as (1892–1958) would seize upon as evidence in their opposition to the triple divorce.l:8 that was only twenty-nine days.-l-Isl:m (Cairo: D:r al-Fib:6a al-Qawmiyya.th in which J:bir b. Sunan (3al:q: 15). Muslim presents the widely reported Aad. Sunan (3al:q: 14). Ibn M:ja also reports that the Prophet performed a one-month . instead of the expected 30-day month.. Ab< D:w<d.oxfordjournals..A (3al:q: 21). 4 and clarifies that the Prophet ended his month-long . al-D:rim. and Ab< D:w<d also employ in support of this position.th (described below). their reading of Qur8:n 2. Ibn M:ja. save al-Tirmidh..A (3al:q: 2). Sunan (3al:q: 9). 93 . (along with Ab< Zur6a and Ab< E:tim) considered Ab< l-Zubayr to be nonauthoritative (l: yuAtajju bi-hi). Sunan (3al:q: 41). 95 Muslim. 6Abd All:h (d. and qiy:s.346 s co t t c . al-D:rim. In addition to this Aad. 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. His section on the oath of forswearing sexual intercourse with one’s 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. 97 Muslim. Note that al-Tirmidh. v.th is also found in Ab< D:w<d. 2011 See MuAammad Ab< Zahr:. Sunan (3al:q: 29).

Although al-D:rim. 103 al-D:rim. only covers sixteen divorce-related topics in his Sunan. ‘divorce is only valid if you are married to (lit. mawl: of Ibn 6Abb:s (d. 2011 . 30. Tadhkira. . . the widely-circulated story about the wife of Th:bit b. A. ‘Muslim’s introduction to his 4aA.¯ D I V O R C E . 748/1348) states that Muslim shunned 6Ikrima on account of his alledged Khariji beliefs. 99 L: 3al:q ill: f.103 child al-Dhahab. 100 For a translation of this introduction. 6Amr. he discusses eight issues ignored by Muslim.102 the female-initiated divorce. which happens to be the primary chain of transmission for the report.th from the one found in the books of Ibn M:ja.. (d. E A D I T H . He cites a different Aad... Muslim is reported (as also is al-Bukh:r. 102 Ibid. as he informs us in the introduction of his book. 5 (1984). EI2. Sunan (3al:q: 7). Spectorsky. al-J:mi6 (3al:q: 6).) to have distrusted the controversial family isn:d related by Shu6ayb b. ‘to cut off’.ths that he evaluated as sound. Muslim is silent on the topics of the female-initiated divorce. he could only address a tiny fraction of the relevant issues. translated and annotated with an excursus on the chronology of fitna and bid6a’.A.. or ‘separate’. child custody.. Sunan (3al:q: 3).98 Likewise. The death date of 107 is provided by al-Dhahab.-m: tamlik .s ch o l a r s t yl e 347 Muslim’s chapters on divorce indicate the limited utility of Aad. and others cite has 6Ikrima. 6Abd al-RaAm:n al-D:rim.ths of the highest level of authenticity in early Muslim jurisprudence. Chapters.ths in the course of his studies.100 led him to restrict the contents of his 4aA. adverse circumstances at the time of divorce. and al-Dhahab. Sunan (3al:q: 8).oxfordjournals. own) the woman’. Ab< D:w<d. which is a popular proof that divorce prior to marriage is invalid. in its isn:d. Jerusalem Studies in Arabic and Islam. Muslim’s methodology. a more likely explanation for their absence are his critical standards. Juynboll. Qays’ khul6 divorce that al-Bukh:r. 98 Downloaded from jis. despite the consequence that for certain legal fields. 101 al-D:rim.A to prophetic Aad. 107/ 725–6). see G. The Arabic expression al-batta is translated by Susan Spectorsky as ‘definitely’ or ‘decisively’.org at Princeton University on July 17. These topics include the affirmation that a divorce uttered prior to marriage is invalid.99 In short. and the impacts of conversion upon marriage. . Ab< D:w<d. Slight variants of this statement are found in Ibn M:ja.. the Cih:r oath. 74.101 the flexibility of the ‘batta divorce’. ‘6Ikrima’. For example. ‘sever’. 263–311. and al-Tirmidh. Sunan (3al:q: 17) and al-Tirmidh. While it is possible that he simply missed some of these Aad. Schacht says that the ‘best attested date’ for his death is 105/723–4. and she cites Lane’s definitions of b-t-t. Sunan (3al:q: 7).. i. H. 2 Ab< MuAammad 6Abd All:h b. such as divorce.

58/1 (1994). at 118. 501 (3al:q: 12).. is that the Prophet divorced EafBa and took her back during her waiting period. and then Jam.ba bint Sahl and Jam.’s act of breaking the Cih:r oath during Rama@:n106 and the Prophet’s purported statement that. and set her free’. al-J:mi6 (3al:q: 11). Ibn Eajar’s solution is that these are two discrete stories and that Eab. al-J:mi6 (3al:q: 10). met the Prophet outdoors and said.l:8 and Cih:r in Muslim Law’. Upon Th:bit’s arrival. a report which possibly indicates the desirability of taking back one’s wife during her 6idda.A. Sunan (3al:q: 7).ba because she told him that the Ibid. 109 al-D:rim. Sunan (3al:q: 1) and Ab< D:w<d. Ibn 6Abd al-Barr observes that the Basrans call her Jam. and al-Tirmidh.ba settled into her father’s home.. al-D:rim. Ibid. l uc as custody. Furthermore. ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’. al-Tirmidh.. nor Th:bit’. Note that one of al-Bukh:r.la followed suit at a later date.348 s co t t c .oxfordjournals.ba bint Sahl. Sunan (3al:q: 18). Sunan (3al:q: 17). Qays as Jam.ba said. Ubayy. ‘I have everything he has given me right here’. reports that Th:bit took a portion of what he had given her and then Eab.104 and the rules concerning the divorce of a slave girl.la and a second one as Bint 6Abd All:h b. Ab< D:w<d.. Ab< D:w<d. 107 Ayyum: imra8a sa8alat zawjah: 3al:qan f. the Prophet said. Sunan (3al:q: 21).109 While the gist of this core khul6 story is found in all of the Aad. 6Amra bint 6Abd al-RaAm:n (d. Sunan (3al:q: 6).. all use to discourage this practice. x. Sunan (3al:q: 2).la bint Sal<l (3al:q: 22). Ibn M:ja.. except for Muslim’s 4aA.’s transmissions identifies the wife of Th:bit b. covers these additional legal topics through a mixture of sound and weak transmissions of prophetic Aad. one morning.th. 105 104 Downloaded from jis. al-Tirmidh. see Ibn Eajar. This Aad.-ghayr ba8s fa-Aar:m 6alayh: r:8iAat al-janna. he introduces the topic of the female-initiated divorce through the widely transmitted story of Eab. For example. 2011 .th is mentioned in Gerald Hawting. 98/717 or 106/724). 13).105 He also recounts the lengthy story of Salama al-Bay:@.’s version adds the twist that Th:bit was initially angry with Eab.ba bint Sahl who. Ibn M:ja includes unique narrations in which her name appears as Eab.A (3al:q: 12.107 The final subject introduced by al-D:rim. which Ibn M:ja. Sunan (3al:q: 21–3). 108 al-D:rim. Eab.la bint Ubayy while the Madinans call her Eab. 110 al-Bukh:r.110 al-D:rim..org at Princeton University on July 17. Sunan (3al:q: 38). ‘Take from her what you wish. Sunan (3al:q: 9). Sunan (3al:q: 18). This report is also cited by Ibn M:ja.th books under consideration. 4aA.ba first performed the khul6 divorce on Th:bit. 113–25. ‘An Ascetic Vow or an Unseemly Oath?: . Bulletin of the School of Oriental and African Studies. ‘Neither me. 106 Ibid. Ab< D:w<d.108 Al-D:rim. Ibn M:ja. and the narrator of the Aad. FatA al-b:r. Sunan (3al:q: 16).ths.

111 Downloaded from jis. variants of which are found in the books of Ibn M:ja. and al-Tirmidh. Sunan (3al:q: 18). definitely knew of this Aad. al-Tirmidh. Al-D:rim. Note that the expression ‘batta3al:q. about which. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’.oxfordjournals. and al-Tirmidh... Ab< D:w<d..112 The second weak Aad.s ch o l a r s t yl e 349 Prophet. and Muslim address. merely reports that the Prophet said.ths that Muslim did not deem worthy to disseminate or of which he was unaware.. Al-Bukh:r. Sunan (3al:q: 8). declared it to be ‘inconsistent’ (f. Ab< D:w<d. ‘What did you want it to be?’ to which Ruk:na replies. 113 al-D:rim. 4aA. In some of the other versions. 4aA. the Prophet just sends him back to his ex-wife. al-Bukh:r. ‘I did a batta divorce!’ The Prophet asks.113 Despite the modest number of topics that both al-D:rim. which does not appear in his 4aA. it is striking that only the former provides useful information for six of the seven classifications of divorce topics that Spectorsky identified in her previously cited study of Ibn Eanbal and Ibn R:hawayh. E A D I T H . Muslim has practically nothing to say as well. wanted to marry her. who was their neighbour.th. The first Aad. al-J:mi6 (3al:q: 2).th.111 This detail suggests that al-D:rim..ths with weak isn:ds.114 Al-D:rim. Al-D:rim. clarifies the nature of the ‘batta divorce’ and the divorce of a slave girl through the use of Aad. informs us that when he asked him about it.. The Prophet then tells him.A (3al:q: 4) and Muslim. 114 The only category for which al-D:rim.th.org at Princeton University on July 17. 112 al-D:rim. ‘a single divorce’. especially when we read this chapter in conjunction with his previously mentioned prophetic statement that. Sunan (3al:q: 19).¯ D I V O R C E . 2011 Ab< D:w<d also includes one narration in which Th:bit ‘struck her and broke part of her’.’ appears in some of the narrations of the story of ‘Rif:6a’s unsatisfied ex-wife’ (discussed above) in al-Bukh:r.hi i@3ir:b) since it was transmitted in a version in which the word ‘triply’ was substituted for ‘al-batta’. Ab< D:w<d. ‘Any woman who asks her nonabusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’. as we saw above. has nothing to say is the oath of abstinence. reaches a broader array of legal topics than Muslim through a combination of both sound and weak prophetic Aad. recounts the story of a conversation between the Prophet and a distraught man named Ruk:na who exclaims. and that Th:bit subsequently struck her. .A (nik:A: 17).’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’. only considered the khul6 divorce valid in cases of an abusive husband. also found in the books of Ibn M:ja.A. because al-Tirmidh. ‘It is what you intended’. Ibn M:ja. Sunan (3al:q: 17). Sunan (3al:q: 14).

’s inclusion of the legal opinions of the leading jurists who preceded him. al-J:mi6 (nik:A: 33).. 4aA. al-J:mi6 (3al:q: 13). ¯ ¯ 3 Ab< 6Is: MuAammad b.A (3al:q: 20).. and al-Tirmidh. 118 al-Tirmidh. al-J:mi6 (3al:q: 8.. Sunan (3al:q: 36).. her non-Muslim husband is automatically divorced a single divorce that is only revocable if he converts to Islam during her waiting period.. Sunan (3al:q: 13). Ibn M:ja. al-Bukh:r. al-J:mi6 (3al:q: 9). and it is perhaps for this reason that all of al-D:rim. 6Is: al-Tirmidh. is silent are: 1) Taking one’s wife back after a revocable divorce. reports that the Prophet approved 6Umar’s act of forcing his son to divorce one of his wives whom 6Umar disliked. as well as the category of the impact of conversion to Islam upon preexisting marriage bonds. 121 al-Tirmidh. Ibn M:ja.120 and stipulated that when a woman converts to Islam.’s legal topics related to divorce and most of his Aad. 119 al-Tirmidh.117 Al-Tirmidh.350 s co t t c .A (3al:q: 11).r. 15).r statement in which a man says to his wife. ‘Your 115 Downloaded from jis. such as the validity of a divorce that one utters in jest.. Ibn M:ja.119 ordered another convert to choose one of the two sisters whom he married prior to becoming Muslim. and 3) The right of a manumitted married slave woman to takhy. . Sunan (3al:q: 23. demonstrates his awareness of the vibrant legal discourse in which he was composing his J:mi6..121 A good example of al-Tirmidh. Sunan (3al:q: 25). Al-Tirmidh. 24). 117 al-Tirmidh. Sunan (nik:A: 60) and Ab< D:w<d. Sunan (3al:q: 9).115 there is an elevated focus in al-Tirmidh. Sunan (nik:A: 40) and Ab< D:w<d. al-J:mi6 (nik:A: 43). Ab< D:w<d. and Ab< D:w<d.’s J:mi6 on issues concerning the divorce procedure.118 obliged a man who converted to Islam to divorce six of his ten wives. 2011 The only topics that al-D:rim. al-Bukh:r. He addresses 24 legal topics surrounding divorce which touch upon all of Spectorsky’s categories. 116 al-Tirmidh. Sunan (nik:A: 39) and Ab< D:w<d. Ibn M:ja. 2) A woman can leave her house during the daylight hours of her waiting period.116 but the invalidity of the divorce uttered only to oneself or by an insane man. including the eponyms of the four Sunni schools of law. In addition to covering the majority of topics found in al-D:rim.ths are found in the books of these three men. covers upon which al-Tirmidh.’s methodology can be seen in his discussion of the takhy. Ibn M:ja. Sunan (3al:q: 25).oxfordjournals.org at Princeton University on July 17. Sunan (3al:q: 15). l uc as This strategy is essentially the same as that of Ibn M:ja.. al-J:mi6 (nik:A: 34).’s ‘Book on Divorce’. 120 al-Tirmidh. Ibn M:ja. 4aA..

candidly describes this Aad. iii. 124 Ibid..’ he must take an oath. mawl: of Ban< Samura. d. who considers the expression. ‘God forgive me! There is the report which Qat:da related to me from Kath. iii. 179/795] said to Ayy<b [al-Sakhtiy:n. to which he said.th as ‘poorly attested’ (ghar.r] forgot. 482. while 6Al. (‘Your matter is in your hand’) is a single divorce. counted the ‘batta’ as a triple divorce. Some scholars said that it depends on the man’s al-Tirmidh. al-J:mi6 al-BaA. from the Prophet (peace be upon him). ‘Your matter is in your hand’ and the husband says. ‘I only put your matter in your hand for a single divorce. ‘your matter is in your hand’ to count as three [divorces]?’ Ayy<b said. al-Tirmidh. 481 (3al:q: 3).’s Sunan: It is reported that 6Umar made the ‘batta’ a single divorce. Al-Tirmidh.¯ D I V O R C E . and the Kufans agree with 6Umar and Ibn Mas6<d.r. 122 .r mawl: Ban< Samura and when I asked him about [this Aad. Then I returned to Qat:da and informed him of all this.oxfordjournals.th] he did not recognize it. ‘I met up with Kath. dwarfs the actual statement of the Prophet and does little to instil confidence that anyone other than al-Easan al-BaBr. The sole prophetic Aad. who said.. 6Uthm:n and Zayd b. ‘No. considered the expression ‘Your matter is in your hand’ as a potential triple divorce. Ab< D:w<d.’122 This conversation between Eamm:d and Ayy<b.A. ‘[Kath. Earb’. Ibn R:hawayh follows the opinion of Ibn 6Umar. ‘Do you know of anyone other than al-Easan al-BaBr. Sunan (3al:q: 13).b) and ‘known only from Eamm:d b.. Then [Ayy<b] said.’ Ayy<b continued. and his statement with the oath is what stands. before recounting the following juristic disagreement on this topic: 6Umar and Ibn Mas6<d say. al-J:mi6 (3al:q: 3). Ibn 6Umar: If she divorces him three times after he says.A. provides a concise summary of the batta divorce that we encountered in our recent discussion of al-D:rim. 2011 In a similar vein. E A D I T H .s ch o l a r s t yl e 351 matter is in your hand’ (amruki bi-yadiki). from Ab< Hurayra. Sufy:n al-Thawr.’s verdict that the report really communicates Ab< Hurayra’s opinion rather than that of the Prophet. M:lik and Ibn Eanbal agree with the position of 6Uthm:n and Zayd.124 Downloaded from jis.org at Princeton University on July 17. Th:bit say it is for as many divorces as she wishes (al-qa@:8 m: qa@at). al-J:mi6 al-BaA.th scholarship in late-Umayyad Basra. two luminaries of Aad. 131/748–9]. 123 al-Tirmidh. ‘Three. Zayd [d.123 He includes al-Bukh:r.th pertinent to this topic is the following: Eamm:d b. only al-Easan’. from Ab< Salama. Zayd Sulaym:n b.

see Ibn al-4al:A al-Shahraz<r. iii.ths other than this one’. his methodology is ultimately the same as that of al-D:rim. invented the grade of ‘fair’ (Aasan) and confounded generations of Aad. namely the discussion of only those legal topics connected to a sound.th and the emerging schools of law that is unparalleled among his third/ninth-century peers. the batta divorce counts as a triple divorce. Rash. restricts his discussion to topics for which he has a prophetic Aad.A. Ab< D:w<d’s deep interest in Islamic law can be detected from the relatively large number of legal topics presented in his Sunan. 480-1 (3al:q: 2). it is a double divorce. transl. and the Kufans. so the reader learns. Each Aad.th scholars through his use of the expression Aasan BaA. achieves a level of transparency and harmonization between Aad. 4 Ab< D:w<d Sulaym:n b.th. that 628isha’s report that the Prophet said. M:lik says that if he has consummated the marriage. such as his collection of Ibn Eanbal’s legal opinions128 and especially his Epistle to the Makkans. along with his other short surviving books. and if he intends a triple divorce. for example.. UK: Garnet. Mas:8il al-Im:m AAmad (ed. who did not transmit any Aad. Ibid.352 s co t t c . it is triple. Cairo. for an effort at elucidation. fair.127 or weak Aad. An Introduction to the Science of Ead.th is graded. 126 125 .125 Al-Tirmidh. Even though his inclusion of fragments of the discourse of juristic disagreement (ikhtil:f al-fuqah:8) sets al-Tirmidh. it can only be a single divorce. it is only one divorce and he possesses the right to take her back. l uc as intention: if he intends a single divorce. in which he Downloaded from jis. Aslam. A portion of this text was translated on the basis of the superior G:hiriyya manuscript by Susan Spectorsky in Chapters. apart from his cohorts. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’.oxfordjournals. 60–90.th.. by Eerik Dickinson (Reading.126 Al-Tirmidh. 127 Note that al-Tirmidh. al-Ash6ath al-Sijist:n. it is singular. and if he intends a triple batta divorce. says that if he intends a single batta divorce. 2011 Ibid. This is the opinion of Sufy:n al-Thawr. (3al:q: 7). 2005). is ‘poorly attested and only attributed to the Prophet by MuC:hir b. if he intends a double batta divorce. 17–23.d Ri@:. and if he intends a double divorce. it is a triple. 1934 or 5). 128 Ab< D:w<d. Al-Sh:fi6. hardly an evaluation that inspires confidence in its veracity.org at Princeton University on July 17.th and he rarely presents multiple narrations of the same report.

and collected the Aad.ths are mar:s. 46. 167/784) and 6Abd al-Razz:q al-4an6:n.oxfordjournals. Thal:th ras:8il f... 47. 138 Ibid. (d.136 He is highly critical of reliance upon poorlyattested (ghar. and the MuBannafs of Eamm:d b.6 and 6Abd al-Razz:q. Salama (d.’s J:mi6 as being the finest work of its genre. He observes that the books of Ibn al-Mub:rak and Wak. and al-Sh:fi6. 132 Ibid. Ab< D:w<d indicates in the Epistle his familiarity with the (untitled) books of Ibn al-Mub:rak (d.. waBf Sunanih in 6Abd al-Fatt:A Ab< Ghudda (ed. 52 and 54.d) in its isn:d.org at Princeton University on July 17. after citing Ab< D:w<d’s claim in this epistle to have included the Aad. he also says that 600 of these Aad. D:w<d il: ahl Makka f.. defending the use of Aad.ths worthy of inclusion is his Sunan and that most of their (prophetic) material is mursal. 395–6. 136 Ibid. and al-Awz:6.135 that are well known (mashh<r). he had taken their juridical opinions and collected the Aad.. 134 Ibid. Downloaded from jis.130 While this may be true in many or even most cases.6 b.131 After boasting that his Sunan is the most necessary book for students to learn after the Qur8:n. 133 Ibid. M:lik. asserts that ‘Ab< D:w<d had [not] gone through the books of al-Thawr..).133 and he also encourages students to supplement their study of his Sunan by copying Companion opinions..ths. E A D I T H .ths that form the basis of the opinions of al-Thawr. 32–3. 137 Ibid. ‘some of which are more sound than others’.th quoted there. 6ilm muBtalaA al-Aad. M:lik. Ab< D:w<d also singles out Sufy:n al-Thawr.ths in his Sunan. 38. the Muwa33a8 of M:lik.th (Aleppo: Maktab al-Ma3b<6:t al-Isl:miyya. 46–7.132 He clarifies his legal methodology in this epistle. 157/774) all relied upon this type of report. 33–4. Ab< D:w<d claims to have included approximately 4800 mostly good (B:liA) Aad.129 Christopher Melchert. ‘Traditionist-jurisprudents and the Framing of Islamic Law’. 181/797) and Wak. presumably from books like those of Wak.6 have few prophetic Aad.. rather. 130 Ibid.s ch o l a r s t yl e 353 describes the methodology behind his Sunan. and al-Sh:fi6.th that has a serious defect (wahn shad..th to back them up’.134 As for the calibre of the Aad..l.. M:lik.¯ D I V O R C E . al-Jarr:A (d. 135 Ibid. 131 Ris:lat Ab. 2011 . Ab< D:w<d provides the number 4800 on pp.b) Aad.ths in which the Companion link is missing (mursal) with the argument that al-Thawr.138 129 The existence of this short work was brought to my attention by Christopher Melchert’s article. 1997).ths137 and claims to have identified in his Sunan any Aad. 197/ 812). 37.

such as ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’. Sunan (3al:q: 9). 145 Sunan Ab. and al-Tirmidh. Sunan (3al:q: 35). al-Bukh:r.. 142 Ibid. Many of his Aad. ‘You have a greater right to [your child] as long as you do not remarry’.A (3al:q: 10). divorce.]’ which is found in Ab< D:w<d.140 and the episode of an anonymous woman who pleaded eloquently with the Prophet for custody of her child. ‘Divorce or manumission while angry is invalid’. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’. From a purely organizational perspective.th collection. .354 s co t t c . Sunan (3al:q: 13).141 He also ventures beyond the books of Muslim. 446 (3al:q: 8).oxfordjournals. and taking back one’s divorced wife’. l uc as Despite his passion for Aad.144 Furthermore.142 words other than 3al:q that can effect a divorce. 144 Ab< D:w<d. . al-Tirmidh. Ibn M:ja. Ibn M:ja.’s broken Cih:r oath. 140 Ab< D:w<d. such as the story of Khuwayla bint M:lik and Aws b. al-J:mi6 (3al:q: 9). by touching on the topics of the reprehensible nature of divorce. Sunan (3al:q: 17). Sunan (3al:q: 3).ths that address more precise legal points. he argues for the invalidity of divorce while in a state of anger. on the authority of 628isha.A (3al:q: 6). who quoted the Prophet as saying.145 Ab< D:w<d’s boast in his Epistle to the Makkans about the utility of his Sunan for the student of jurisprudence appears. Sunan (3al:q: 16). 6Ub:da. ii. if done earnestly or jokingly.143 and the implications of referring to one’s wife as ‘my sister’. 143 Ab< D:w<d. to be justified. Sunan (3al:q: 1).ths are identical to those found in al-D:rim. must be taken earnestly: marriage. to whom he replied. including those with inferior or even defective isn:ds.th scholar in this survey to include all of his divorcerelated topics in his ‘Book on Divorce’.’s J:mi6.. a feature that greatly facilitates All of these Aad.th scholars under consideration. Sunan (3al:q: 18. D:w<d.org at Princeton University on July 17.’s Sunan and al-Tirmidh.. in large part. 2011 . Ab< D:w<d acknowledges that he is not certain what the word ghal:q (angry) in the Prophet’s statement means. which clarifies the volume of wheat needed to feed the Qur8:nically-prescribed ‘sixty poor-folk’ for the expiation of Cih:r. 139 Downloaded from jis. Ibn M:ja.139 He occasionally provides unique Aad. ‘Three [actions]. Ibn M:ja. Sunan (3al:q: 16). with the exception of ‘Three [actions . covers and all thirty of his topics are discussed by at least one of the five other Aad. 4aA. al-Bukh:r. and the story of Salama al-Bay:@. 4aA. Ab< D:w<d only manages to expand modestly the scope of legal topics on divorce that al-Tirmidh. Sunan (3al:q: 11). Ab< D:w<d is the only Aad. al-D:rim.. Ab< D:w<d.ths have been discussed in the previous two sections.. 19). 141 Anti aAaqqu bi-hi m: lam tankaA.

in contrast to the 18 chapters in the ‘Book on Divorce’ in Sunan al-D:rim.ths that only he narrates. while not shying away from a few weak and even poorly-attested ones when the only alternative is reliance upon post-prophetic authorities. for identifying which Aad. Ibn M:ja’s two unique legal topics are both grounded upon weak Aad. the witness’ testimony is invalid. like the Muwa33a8 of M:lik and 6Abd al-Razz:q’s MuBannaf. In conclusion. Yaz. save Ibn M:ja and al-Bukh:r.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. If he refrains from swearing the oath.oxfordjournals. his act of refraining counts as a second witness against him and the divorce is valid. Sunan (3al:q: 12). relates in his J:mi6. or Ab< D:w<d and only two of them are unique to Ibn M:ja’s Sunan.. and appears to relate a greater variety of Aad. Ab< D:w<d follows essentially the same methodology as al-D:rim.’s J:mi6. If he swears [that he did not divorce her]. it distinguishes itself by its presentation of a surprisingly large percentage of unique and frequently weak Aad. and probably knew all of the information about juristic disagreements that al-Tirmidh. many of which are quite obscure. Ibn Maj:’s Sunan earns the prize for the greatest number of divorce-related issues among the books under consideration. although he also refrains from relating any Aad.th books.ths than any of them. 148 Ibn M:ja. and al-Tirmidh. and Ab< D:w<d. Thanks to his concise Epistle to the Makkans.. The first of these Aad. Most of the topics he ignores fall under the category of the divorce procedure. the husband must issue an oath.: limiting discussion to legal topics that can be supported by sound or fair Aad.¯ D I V O R C E . 147 I am grateful for the labours of the editor.d Ibn M:ja al-Qazw. E A D I T H . At 32 topics.s ch o l a r s t yl e 355 its use. 23 in al-Tirmidh.ths on the topic of the oath of abstinence.147 For example. 2011 5 Ab< 6Abd All:h MuAammad b. Twentyseven of these topics.146 He addresses the same or a greater number of legal topics on divorce than all of his contemporaries. While Ibn M:ja’s book covers basically the same legal territory as the works of al-Tirmidh. MaAm<d MuAammad NaBB:r. and 36 in Sunan Ibn M:ja.148 Ab< D:w<d’s ‘Book on Divorce’ has a total of 50 chapters.org at Princeton University on July 17.ths that are absent from the other canonical Aad. we can be confident that Ab< D:w<d was fluent in the legal discourse of his day.ths. acquainted with the earliest law books. are found in the compilations of al-Tirmidh. Downloaded from jis. however.n.ths are unique to the Sunan and which are weak in his edition of this book. 146 .

thigh]’. Sunan (nik:A: 40).th reports the Prophet’s 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.org at Princeton University on July 17. Ism:6. While this is not the appropriate place to review his chapters on legal methodology in his 4aA. and Their Relationship to Classical Salafi Islam’. Ibr:h. Sunan (nik:A: 40).. al-E:rith’s eight pre-Islamic wives. although he has a special penchant for relating material that most major Aad.l al-Bukh:r.A. 153 Ibn M:ja. 21.. He also addresses the three topics pertaining to conversion to Islam that are broached by al-Tirmidh. addresses at least one topic that falls into Susan Spectorsky’s paradigm of seven categories of divorce laws that we have been using throughout this article. 154 For a detailed analysis of this topic. Sunan (3al:q: 25). He quotes AAmad b.154 al-Bukh:r. al-E:rith. Sunan (3al:q: 31). Al-Bukh:r. 152 Ibn M:ja. 150 149 Downloaded from jis.’s techniques become apparent from a close reading of his Innam: l-3al:q li-man akhadha bi-l-s:q. Ibn M:ja.. which revolve around the anecdotes of Fayr<z al-Daylam.th scholars.ths found in the 4aA. Sunan (3al:q: 25).356 s co t t c . 246/860–1) as saying that the correct form is Qays b. l uc as The second Aad.As of Muslim and al-Bukh:r.m (al-Dawraq. Sunan (nik:A: 39). Ism:6. 19. 36. Lucas. see Scott C.. like al-Tirmidh.th is found in each of the following chapters of Ibn M:ja’s ‘Book on Divorce’ in his Sunan: 1.th critics refrained from including in their books. al-E:rith and another with al-E:rith b. 151 Ibn M:ja.149 Like so many weak Aad. al-Tirmidh.153 Overall..’s legal hermeneutics represent a sharp departure from those of his contemporary Aad. 11–13. and Ab< D:w<d by endeavouring to derive rulings almost exclusively from prophetic Aad. 7. 30–32.ths in Ibn M:ja’s Sunan. ‘The Legal Principles of MuAammad b. Islamic Law and Society. and al-Bukh:r. 27.150 these two reports provide decisive answers for specific legal questions and are far removed from the complex narrations of so many of the Aad. al-J:mi6 (nik:A: 33). 16.l al-Bukh:r. Ab< D:w<d has one narration with Qays b..152 and Ghayl:n b. Ab< D:w<d. At least one weak Aad. 24. 6 Ab< 6Abd All:h MuAammad b. Ibn M:ja.ths of variable degrees of reliability.151 Qays b. 13/3 (2006): 289–324. 22. Salama’s ten-wife household. and Ab< D:w<d. 17.’s marriage to two sisters prior to his conversion to Islam. Ibn M:ja follows the same basic methodology of al-D:rim. 2011 .. al-Tirmidh. Qays.oxfordjournals. 6. al-J:mi6 (nik:A: 34). al-Tirmidh.. d.

Al-Zuhr.155 Al-Bukh:r. 6Abd All:h b. FatA al-b:r. al-J:mi6 (3al:q: 19.).th and grades them as Aasan ghar. own) the woman’. all of whom narrated a prophetic Aad.’s story. Bakr).org at Princeton University on July 17. al-Eusayn (Zayn al-62bid. 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’. Hish:m). Aasan ghar. 4aA. 156 155 Downloaded from jis. 6Abd All:h b. Jubayr.d b.ths that none of his fellow compilers narrate. b. and al-Sha6b.l (b.b BaA. and an impressive list of twenty-three Successors. Ab< D:w<d. Zayd. ‘Believers. discusses a topic without relating a single prophetic Aad. al-Q:sim b. 2) shedding light on a divorcerelated topic by means of Aad. x..158 al-Bukh:r.A (3al:q: 23). 2011 . ‘It is like the Cih:r of a Qur8:n 33.’s reliance on post-prophetic authorities is the topic of premarital divorce. ‘divorce is only valid if you are married to (lit. Sa6. does not explicitly claim that consensus exists on this issue. Unlike al-Tirmidh. 6Abd al-RaAm:n (b. E:rim (al-Azdi).. al-Zubayr. He also reports that the protagonist’s name is Salm:n in one version and Salama in the other two. 20). al-Easan al-BaBr.n). and Aasan. MuAammad b. Sulaym:n b.A. E A D I T H . Yas:r. said. 6Utba.). about the Cih:r oath executed by a slave. Uways) said to me: M:lik related to me that he asked al-Zuhr. A second case in which al-Bukh:r. S:lim (b. Ab:n b. 478 (3al:q: 9). 4aA. Sa6d (al-Bajal.th is the Cih:r oath. 49.. MuAammad b. J:bir b.b. 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. including Sa6. 6Abd All:h b... F:w<s. Mu36im). al-Bukh:r. follows this verse with his observation that the opinion that a woman cannot be divorced prior to marriage is affirmed by narrations from 6Al.A (3al:q: 9). Jubayr (b. The remaining Successors whom al-Bukh:r.. 62mir b. and Ibn M:ja. 157 Ibid. ShurayA. 6Al. names in support of this position are 6Urwa b. Ab< Bakr b.oxfordjournals. These techniques include: 1) relying solely upon postprophetic authorities for certain topics. Ka6b (al-QuraC. Muj:hid. and 3) relating Aad. 6A3:8 b. al-Bukh:r. al-Musayyab. 158 al-Tirmidh.d b. al-Q:sim (b. 6Abd al-RaAm:n (b. 6Ikrima. begins his discussion of this topic with Ibn 6Abb:s’ observation that God puts divorce after marriage in the Qur8:nic verse. 6Umar). 6Ubayd All:h b. 1–4) before writing: Ism:6.156 While al-Bukh:r. One of the clearest cases of al-Bukh:r.s ch o l a r s t yl e 357 ‘Book on Divorce’. narrates three variants of this Aad. and 6Amr b.¯ D I V O R C E .157 Perhaps due to the lessthan-sterling isn:d of Salama al-Bay:@. Ab. Rab:A.th that clearly states.ths that have no obvious connection to divorce. N:fi6 b. Ab. al-E:rith b. Ab. Mas6<d). 6Uthm:n. avoids it and instead begins his chapter by reminding the reader of the Cih:r verses in the Qur8:n (58.

162 al-Bukh:r. wa-l-l:dh. 4aA.. 544 (3al:q: 23). the expression ‘li-m: q:l<’ [Qur8:n 58. ‘The Cih:r oaths of a free man and a slave against a free woman and a slave woman are identical’.s held that one only had to perform the expiation for every other Cih:r oath.. FatA al-b:r. Ab. Their Doctrines and Their History (Leiden: Brill. occasionally puts front and centre in his 4aA..h) in his book on legal methodology and some Muslim scholars have argued that ‘comparison’ is just another word for analogy (qiy:s). instead of his preferred reading of ‘and then if they violate what they said’ (i. see Lucas. FatA al-b:r..A have Easan b. The second technique al-Bukh:r. For a discussion of the controversy over the term tashb.m al-Nakha6. 4aA.ru raqaba (58.s of the verse thumma ya6<d<na li-m: q:l< as ‘and then they utter the Cih:r oath again’. The G:hir. see Hawting. 163 al-Bukh:r. ‘(those men) who violate what they said’. 50–2. quoting Ignaz Goldziher. 3). relates twelve Aad. regularly interjects between Aad.. 304–8. and (in the case of this verse). ‘If a man issues a Cih:r oath on his slave girl. because Cih:r is only for (free) women’.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. 2011 . the best understanding is. l uc as free person’. Sulaym:n) in support of this position. break the Cih:r oath they uttered). is providing his interpretation of the verse.358 s co t t c .h. 6Ikrima said.’s 4aA. Al-Bukh:r. Ibn Eajar notes that all three men share the same opinion concerning the Cih:r of a slave.e.).na yuC:hir<n min nis:8ihim thumma ya6<d<na li-m: q:l< fa-taAr. 160 al-Bukh:r. al-Eurr159 said. and M:lik said. x. in his Ibn Eajar reports that most manuscripts of al-Bukh:r.A (al-i6tiB:m bi-l-kit:b wa-l-sunna: 12). Eayy and still others have just Easan (which by convention would be al-Easan al-BaBr. The G:hir. calls this technique ‘comparison’ (tashb.org at Princeton University on July 17.163 Likewise.’s exegesis on the meaning of one of the crucial Qur8:nic verses on the Cih:r oath—material that al-Tirmidh. 25).ths in his J:mi6. Qat:da. ‘Legal Principles’.oxfordjournals. x. who does not appear anywhere else in the text.A. but which al-Bukh:r. He also includes the opinions of al-Sha6b.. 1971).-m: q:l<’. and Eamm:d (b. Easan b.162 For example. 545 (3al:q: 23). 161 Ibn Eajar explains that al-Bukh:r. is refuting the reading adopted by the G:hir. ‘An Ascetic Vow or an Unseemly Oath?’ 117. it is meaningless. 3]160 means the same as ‘f.s. ‘The fast [of expiation] is two months’. al-Eurr. uses is to include Aad. [al-Bukh:r.A (3al:q: 24.. Ibr:h.:] In the Arabic language. but that others have Easan b. This reading is superior since God (Exalted) does not lead (His creatures) to wrongdoing (munkar) and false speech (qawl z<r).ths in chapters on divorce topics that have no transparent relationship to this topic but share a common similarity that renders them useful.161 Note the absence in this case of both prophetic and Companion reports and the presence of al-Bukh:r. 159 Downloaded from jis. al-Bukh:r.

divorce. 166 The example Ibn 6Umar provides is a man who says. as a divorce. 4aA. recounts a string of opinions and stories from a small group of Companions and Successors without any isn:ds. 32–4.¯ D I V O R C E . Al-Bukh:r. Ab. considered the expression ‘You are not my wife’. apostasy. al-Tirmidh.th. Sunan (luq3a: 1). ‘Go stay with your family’.: 80) and Muslim. ‘If you leave the house. Ab< D:w<d. and al-Zuhr. Ibn M:ja.m al-Nakha6. considered valid the divorce utterance issued in one’s (non-Arabic) native tongue. ‘Actions are by intentions’. also reports that al-Easan al-BaBr. Sunan (luq3a: 2). al-Bukh:r. M:lik’s repentance for avoiding the T:b<k campaign. if that is what the man intended. and the Basran Qat:da b.oxfordjournals. Chapters. E A D I T H . the Makkan 6A3:8 b. and his wife leaves the house. Rab:A. that Ibn 6Umar. she is divorced decisively.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.th is found in Muslim. The complete story can be found in extra-legal chapters of al-Bukh:r. there is no divorce.A. with which he inaugurates his entire 4aA. al-Bukh:r. also places two statements in 6Al. We learn that 6Uthm:n and Ibn 6Abb:s considered the divorce enunciated by a drunken man to be valid. A vivid example of this practice is his chapter on ‘Divorce while angry. 4aA. 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.164 Frequently.A (3al:q: 11). Di6:ma considered a conditional divorce valid if the condition was fulfilled.166 that the Kufan Ibr:h. Sunan (3al:q: 18). After his citation of a fragment of the famous Aad. intoxicated or insane. 2011 ..167 Al-Bukh:r. Sunan (3al:q: 11). This Aad. 4aA. under compulsion. and that al-Zuhr. al-Bukh:r.165 Al-Bukh:r..s ch o l a r s t yl e 359 chapter on the ‘missing husband’ (mafq<d). None of these scholars links this Aad.ths in the same chapter. Ibn 6Abb:s.A (luq3a: 1)...A (tawba: 9). uses both strategies of citing post-prophetic reports and unexpected prophetic Aad. you are decisively divorced’.’s mouth that are elevated to the Prophet in other books: ‘The Pen al-Bukh:r. al-J:mi6 (aAk:m: 35).’s string of adverse conditions under which a divorce can occur prepares the reader for multiple opinions from a variety of authorities. 165 B:b al-3al:q f. and other things done accidentally or in a state of forgetfulness’. 167 al-Bukh:r. to count as a divorce if that is what the husband intended. but if she does not.th to the topic of the missing husband. 4aA.org at Princeton University on July 17. presents the opinions of Ibn al-Musayyab.A (3al:q: 22).-l-ighl:q wa-l-kurh wa-l-sakr:n wa-l-majn<n—wa amrihim:—wa-l-ghala3 wa-l-nisy:n f.-l-3al:q wa-l-shirk wa-ghayrih. This same expression appears in a very long story about Ka6b b. Ibn Mas6<d.A (magh:z. before narrating a Aad. a fragment of which is cited by Ab< D:w<d. 4aA. See also Spectorsky. considered the expression. 164 Downloaded from jis.

171 This man is named as M:6iz b. 172 There is considerable confusion as to this woman’s name. Ibn Eajar.ths indicate that the Prophet would not have stoned the fornicator from Ban< Aslam had he lacked his rational capacity. Sunan (Aud<d: 16).l. al-Bukh:r.th in which the Prophet identifies a ‘ruleoccasioning factor’ (6illa)..th in Ibn M:ja.ths.168 and. Sunan (3al:q: 15). Sunan (3al:q: 14). in one report she is described as Bint al-Jawn. insanity. The first Aad. Al-Tirmidh.’s 4aA.169 But this is not all.. al-Bukh:r. puts this sentence in the mouth of the Prophet. 81 (Aud<d: 22). Ab< D:w<d. ‘Are you insane?’ Since these Aad.. that can be applied by jurists beyond the immediate case in which it appears. xiv.ths with inferior transmission histories is simply to narrate reports that few of his contemporaries seem to have acquired. the youth prior to discernment. and the third as Umayma bint Shar:A.A. in versions of this story outside of al-Bukh:r.th is found in chapters concerning the invalidity of a divorce which a man utters only to himself in Ibn M:ja. al-J:mi6 (Aud<d: 1). Ab< D:w<d. 169 Ibn Eajar. proceeds to recount three Aad. al-J:mi6 (3al:q: 15). in his commentary. al-J:mi6 (3al:q: 8). FatA al-b:r. 168 Downloaded from jis. Sunan (3al:q: 15).360 s co t t c . M:lik al-Aslam. except that of the insane person (ma6t<h)’.170 The second two are reports of the story of the ‘Fornicator from Ban< Aslam’171 who confessed four times to the Prophet in the mosque of Madina that he committed fornication. al-Tirmidh. ‘Every type of divorce is permissible. He appears to have had special access to reports about the story of Umayma bint Shar:A.A (3al:q: 3).’s final effort to reach a broader array of legal topics without relying upon Aad.. 170 This Aad. explicitly identifies ‘the man from Aslam’ as M:6iz. and the sleeper prior to his awakening’. This is a good example in which ‘comparison’ really is qiy:s. Sunan (Aud<d: 1). l uc as (recording one’s bad deeds) is raised in three cases—the insane person prior to the return of his reason. Al-Bukh:r. since it is based on a Aad. FatA al-b:r.th is the prophetic statement that. In both versions cited here.org at Princeton University on July 17. al-Bukh:r. there is no indication that the compilers of these books consciously linked it to the topic of divorce uttered by an insane man. ‘God disregards that which [members of] my community say to themselves and refrain from acting upon or divulging to anyone else’. Even though it appears in three of the additional books under consideration in this article. suggests that divorce committed while intoxicated or insane would likewise be invalid.oxfordjournals. and al-Tirmidh. 2011 . 4aA. 487 (3al:q: 11). After touching on a variety of additional topics in this chapter.. another as al-Jawniyya..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.l. see al-D:rim. the final question that the Prophet asks prior to implementing the punishment of stoning is. none of which has anything explicitly to do with divorce. x.

Ab< D:w<d. 4aA. largely on the basis of juxtaposing three prophetic Aad. Muslim and al-Bukh:r.178 and the ruling that women are not allowed to conceal that they are pregnant at the time of divorce. 178 Ibid.A. J. Concordance et Indices de la Tradition Musulmane (Leiden: E.179 In other words. eight) categories of divorce law.¯ D I V O R C E . Brill.175 Finally.A (3al:q: 10). 177 al-Bukh:r... 1936). E A D I T H . Note that Ibn Eajar declares that this Aad. 4aA. such as divorce prior to consummation. 176 al-Bukh:r. counting conversion.A (3al:q: 24)... These Aad.177 divorce by pointing. i.th initially appears in Bal:t: 18).176 It is paradoxical that the two strictest Aad.th scholars.ths addressing the seven (or..’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. only al-Bukh:r. is unique in linking the oath of . and al-Tirmidh.As. which he recounts in numerous places throughout his 4aA. I may have unintentionally inflated the number of divorce topics covered by al-Bukh:r. 204. 8 vols. However. Sunan (3al:q: 18).l:8 regulated by the Qur8:n.173 Al-Bukh:r.th does not actually refer to the . presumably since it is only for one month rather than the fourmonth . (3al:q: 43). 4aA.A (3al:q: 52).ths in which the dower for adultery and prostitution is unambiguously prohibited with al-Easan al-BaBr.th scholars investigate. Ibn M:ja includes a variant of this story. 173 Downloaded from jis. enabled him to transcend the limits dictated by purely sound Aad... Wensinck. 179 Ibid. discuss the least and second-greatest number of legal topics on divorce in their respective 4aA.oxfordjournals. since he alone among his contemporaries addresses eight topics. 4aA..A (3al:q: 3). 2011 . Sunan (3al:q: 16).s ch o l a r s t yl e 361 whom the Prophet subsequently divorced via a messenger rather than face-to-face. a woman’s right to leave the house during al-Bukh:r.l:8 ‘the jurists discuss’. as well as his vast collection of Aad. 175 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). and he is silent on the topics of child custody. Ab< D:w<d. J. ‘baghiyyun’. he actually covers only 23 topics that his fellow Aad. this Aad.. See A.174 He is joined only by Ab< D:w<d in discussing the implications of calling one’s wife ‘my sister’ by means of the story of the Prophet Abraham’s three lies during his time in Egypt.l:8 to the story of the Prophet falling off of his horse and breaking his leg.’s willingness to use post-prophetic material and ‘comparison’. but they are not linked in any manner to the topic of the invalid marriage that results in an automatic divorce. Al-Bukh:r.org at Princeton University on July 17. 4aA.A (3al:q: 51).ths are found in the books of al-D:rim. 4aA.ths.A (3al:q: 21. 174 al-Bukh:r. Muslim..

. 2011 . Then I had to track down topics related to divorce found outside of the six scholars’ ‘Books on Divorce’. Despite the common allegiance to and profound knowledge of Aad.362 s co t t c . etc.th scholar addressed. several factors made a comparison of their books complicated. shies away from both sub-par Aad.ths..org at Princeton University on July 17. 180 Downloaded from jis. or the consequences of the husband’s expression. Ibn M:ja. CONCLUSIONS This project began as a simple comparative exercise between the books of six famous Aad. It was necessary initially to filter 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.th scholars of the third/ninth century in order to learn more about their compilers’ methods of jurisprudence. Aad.th scholars under examination.ths and the legal opinions of most of the eponyms of the Sunni schools of law.oxfordjournals. the validity of conditional divorces. ‘I don’t have a wife’. as well as its compiler’s creative utility of narrations that bear little explicit relationship to the legal topic under discussion. since his ‘Chapter on divorce while angry. a task facilitated by the modern editors of these books.180 Even though al-Bukh:r. and early postprophetic authorities.ths among al-D:rim.’ actually covers numerous topics. I assembled a list of 45 legal topics that I derived from the six Aad. his 4aA. l uc as the daylight hours of her waiting period.th books in order to evaluate the range of topics each Aad. the validity of divorce uttered in a language other than Arabic. al-Bukh:r. Two discoveries initially emerged from this analysis. It is also possible that I undercounted al-Bukh:r. under compulsion. These topics seemed highly random and each one appeared to derive from a tangled web of narrations For example.’s breadth of legal topics. and al-Tirmidh. Muslim.. and whether a man with ten wives must divorce six of them upon his conversion. The first was the surprising fact that only six legal topics were covered by all of the Aad. in consultation with the early proto-madhhab law books of the third/ninth century and Susan Spectorsky’s Chapters on Marriage and Divorce.A is distinguished by its diversity of topics. none of the other five books addresses the topics of divorce while intoxicated. Finally. several of which are unaddressed in the other five books under consideration. insane. intoxicated. All of these topics can be found in the early fiqh books. Ab< D:w<d.

but were willing to supplement their meagre findings with useful prophetic material related through inferior chains of transmission.ths.s ch o l a r s t yl e 363 of a discrete episode during the Prophet’s lifetime.A (nik:A: 54). E A D I T H .. Muslim. al-J:mi6 (3al:q: 11).¯ D I V O R C E . ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from (enjoying) the scent of Paradise’. freedom from overt madhhab loyalty. or the Prophet said. al-Tirmidh. based on the analysis of the presentations of these six universal topics.ths. al-Bukh:r. narrates this weak Aad. Sunan (3al:q: 2). one searches in vain for dramatic differences between their personal legal opinions. and Muslim may have been more khul6-friendly than their contemporaries. The most significant conclusion from this analysis is that the Aad. for they do not claim that the Prophet said. 182 al-Bukh:r. and al-Tirmidh. al-D:rim. Secondly. al-J:mi6 (3al:q: 14). Despite these six scholars’ distinct methodological differences. The second discovery. Ab< D:w<d. with the exceptions of al-D:rim. most of whose protagonists were named women and men. Ab< D:w<d.. Muslim does not even mention the topic of khul6 in his 4aA. his technique of ‘comparison’. 4aA.th scholars adopted three methodological approaches to the articulation of Islamic law in their books. 2011 . whereas Ab< D:w<d and al-Tirmidh. al-Bukh:r. to double the number of divorce-related topics addressed by Muslim.181 but.A.ths that met his critical standards. ‘Every type of divorce is permissible... especially the episode of F:3ima bint Qays.. save al-D:rim. This strategy enabled all of them.. Finally.ths and subsequently limited himself to a mere twelve topics on divorce.A solely to what he considered to be sound prophetic Aad.org at Princeton University on July 17. Muslim restricted his 4aA.’s method of relying upon Companion and Successor reports instead of prophetic Aad.182 Likewise. True.. laysa isn:duhu bi-qaw.th. 4aA. is there any practical difference whether 6Al. then again.oxfordjournals. and his skill at finding obscure Aad. appeared more reticent to do so. All of them. was that al-D:rim. all endeavoured to base their legal rulings upon sound prophetic Aad. allowed him to address approximately the same number of topics as Ibn M:ja and Ab< D:w<d. Muslim and Ibn M:ja were frequently willing to state their personal legal opinions. al-Bukh:r. although he only overlaps with either of them in 23 cases. First.b. and their accumulation of a massive trove of transmitted materials. He evaluates its isn:d as ghar. and Ibn M:ja. 181 Downloaded from jis.A (buy<6: 4). 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. four of which do not even appear in the ‘Book on Divorce’. except that of the insane Only al-Tirmidh. or ‘The women who perform khul6 are hypocrites’.

Origins of Islamic Jurisprudence.183 Only al-Bukh:r. Leiden: Brill. this aggregate remains significantly smaller than the 250–300 topics covered by 6Abd al-Razz:q and Ibn Ab. in the case of the latter book. 2003).185 There must Only 29 topics on divorce are addressed by three or more of the Aad. see Scott C. While it might be tempting to dismiss these six Aad.ths raises new questions concerning the widely-accepted thesis in the West of a massive forgery of Aad. if we shift our gaze from their personal jurisprudence to the actual Aad.oxfordjournals.th scholars as a modestly sophisticated jurist. the classic reference works of Aad. Ab< D:w<d mentions 30. ‘The Question of the Authenticity of Muslim Traditions Reconsidered: A Review Article’. Muslim only discusses 12 topics related to divorce. 185 A most useful summary of Western scholarship on this topic is found in Motzki. covers 24. the second/eighth-century jurist M:lik. and in the case of al-Tirmidh.ths acceptable to critical Aad. 1–49. Shayba in their MuBannafs and the approximately 125 topics in SaAn<n’s Mudawwana. Lucas. 184 For a quantitative analysis of Ibn Ab. emerges from this group of Aad. The classic statement on the massive forgery of Aad. evaluating.ths?’ in Islamic Law and Society. Ibn M:ja comments on 32. l uc as person’? With the notable exception of the topic of the waiting period of the triply-divorced woman.th scholars under consideration for this article were simply attempting to articulate Islamic law with the wrong materials. is also indispensable. His essay. The Origins of Muhammadan 183 Downloaded from jis. Successors and. the hallmarks of Aad. al-D:rim.ths in the early centuries of Islam. ‘Where Are All the Legal Ead. 2011 . advance a bold claim: prophetic Aad.ths that have adorned the bookshelves of Sunni jurists for the past millennium.ths remains Joseph Schacht. we may. Even if I have been conservative in my identification of only 45 divorce topics among these six books. The Origins of Islamic Jurisprudence. The two MuBannafs and Mudawwana rely primarily on post-prophetic authorities and include thousands of reports attributed to Companions. al-Tirmidh. while his junior contemporaries perform the service of carefully organizing.184 One could argue that the six Aad. and al-Bukh:r.org at Princeton University on July 17. This stunning paucity of divorce topics supported by Aad. Herbert Berg. Shayba’s MuBannaf. touches on 16. See also Motzki.th-scholars as uninspiring jurists.364 s co t t c . considers 31.th scholars in this study. 211–58.th scholars were of very limited utility for the articulation of certain fields of Islamic law in the third/ninth century. in Method and Theory in the Study of Islamic Origins (ed..ths they relate. forthcoming.th-scholar jurisprudence on divorce are its state of consensus on 20–30 topics and its silence on the vast majority of the remaining issues.

ths discussed theological.ths and Companion reports. but rather due to the sheer absence of Aad.187 Another possibility is that all six Aad.ths with inferior and at times outright defective isn:ds appear in these canonical books.ths from which to choose.th compilations should caution us against the twin errors of underestimating the critical selectivity of these Aad.ths not primarily because early Eanaf. and sectarian topics rather than legal ones. Islamic Methodology in History (Islamabad: Islamic Research Institute.oxfordjournals. that is in the second quarter of the second century ah (approximately 740–65 ce) and that ‘we shall not meet any legal tradition from the Prophet which can be considered authentic’ (p. leaving our six compilers with relatively few divorce Aad.). 149).ths criticized by Goldziher and Fazlur Rahman fall under extra-legal classifications.188 or the legal consequences of a virgin woman dying midway through her husband’s utterance of ‘You are divorced singly’?189 E-mail: sclucas@email. see Goldziher. Is it now safe to propose that al-Shayb:n.. Muslim Studies. apocalyptic. and Fazlur Rahman. 240–4. . 189 Ibid.th scholars and exaggerating the utility of prophetic Aad.org at Princeton University on July 17.’s al-J:mi6 al-Bagh.’s teachings.s ch o l a r s t yl e 365 be a reason why so few topics on divorce appear in these mostly canonical Aad.s may have disliked them on principle. 213. to be fictitious (p. 187 Many of the Aad. The fact that al-D:rim. 89–125. Ab< D:w<d. 1975 (1950)). see Origins. 188 al-Shayb:n.. and claims that ‘the bulk of the legal traditions from the Prophet known to M:lik originated in the generation preceding him.ths and Aad. 186 A similar argument is advanced by Motzki. There must also be a reason why so many Aad.r is devoid of Aad. al-Bukh:r. address such a modest and random array of divorce topics in their Aad.ths that shed light on the difference between the statements.r.. 27–84. since the compilers possessed the requisite skills to make forgeries with sound isn:ds. 199. d.ths for articulating Islamic law in the wake of al-Sh:fi6.th forgers. Ibn M:ja. 178). although Ibn M:ja’s relaxed standards would seem to contradict this hypothesis. n.186 One possibility is that most of the forged Aad. ‘You are divorced whenever you wish’ and ‘You are divorced however you wish’.. al-J:mi6 al-Bagh.edu Downloaded from jis.th books if the early 6Abbasid period was awash in 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. along with most Successor reports. ii. E A D I T H . 2011 Jurisprudence (London: Oxford.arizona. Schacht considers all prophetic Aad.¯ D I V O R C E . and al-Tirmidh. Muslim.

191 190 .3) (AD:4) (T:1) (D:4) (B:4.13–15. D:w<d al-Tirmidh. al-J:mi6 al-4aA.A Divorce chapters Fal:q: 1–11. AAk:m: 21 Total(172) 16 47 12 37 36 24 Downloaded from jis.37–41. 40. IM: Ibn M:ja.oxfordjournals. 6Itq: 2. Li6:n190 Fal:q: 1–7.33..19–22. al-J:mi6 al-4aA. l uc as APPENDIX Table 1: Chapters on Divorce Used in this Study Book Sunan al-D:rim.. 39.. M: Muslim. 9–32. 2011 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 7 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. Abbreviations: D: al-D:rim.2) (M:1) (IM:2. If the indicated chapter is found in the ‘Book on Divorce’.47.51–53. Nik:A: 39 Fal:q: 1–17.. B: al-Bukh:r.19–30. 60. 34. Nik:A: 27.A 4aA.’s ‘Book on Marriage’ would read (T: nik:A: 5). AD: Ab< D:w<d. 43. AAk:m: 22 Fal:q: 2–29.366 s co t t c .7.org at Princeton University on July 17.35. 32–45.17. Nik:A: 32. that book’s title will be included in the citation. 36. just the chapter number is provided.A Muslim Sunan Ibn M:ja Sunan Ab.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 Muslim’s ‘Book on Li6:n’. Nik:A: 54 Fal:q: 1–8. If it is in any other book.16) (AD:8) (T:15) (D:1) (B:1. so the fifth chapter of al-Tirmidh. T: al-Tirmidh. Nik:A: 17.49 Fal:q: 1–11. Buy<6: 4. 14–17. al-Bukh:r..

38) Words other than 3al:q that can cause divorce (B:6) (IM:18. 2011 B) Waiting period 28 Lodging and maintenance during a triply divorced woman’s waiting period 29 A pregnant woman’s 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) .35) (T:aAk:m:21) Taking one’s wife back after a revocable (D:2) (B:44.45) (IM:1.5) divorce (AD:5. 40) (T:5) (D:11) (B:39) (M:8) (IM: 6.org at Princeton University on July 17.¯ D I V O R C E .19) (AD:11) A divorce issued in jest counts (IM:13) (AD:9) (T:9) Implications of calling one’s wife ‘unlawful’ (B:7. under compulsion or freely A father’s 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 fixed 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. E A D I T H .8) (M:3) (IM:28) (Aar:m) Implications of referring to one’s wife as (B:10) (AD:16) ‘my sister’.42) (M:6) (IM: 10) (AD:39.oxfordjournals.7) (AD:47) (T:17) (D:14) (M:7) (IM:9) (AD:41) Downloaded from jis.32) (AD:6) (T:7) (D:16) (IM:aAk:m:22) (AD:26.s ch o l a r s t yl e 367 8 If a man does not inform anyone about his divorce. it is invalid 9 The second divorce of a slave woman is final 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.

20) (IM: nik:A:60) (AD:23.13) (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:4.368 s co t t c .r does not count as a divorce if the woman chooses her husband 38 A manumitted married slave woman has the right to takhy. 32–36) (M:li6:n) (IM:27) (AD:27–29) (T:22) (D:9) (B:23) (IM:25–6) (AD:17) (T:19. l uc as 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 procedure—how 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. 2011 (D:nik:A:39) (B:25–30.24) (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 .20) (B:21) (M:5) (IM:24) (T:21) (B:19.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 .oxfordjournals.org at Princeton University on July 17.r 37 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:12.5) (IM:20) (AD:12) (T:4) (D:15) (B:15–17) (M:6itq:2) (IM:29) (AD:19–22) (AD:13) (T:3) Downloaded from jis.

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