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¯ 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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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.
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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
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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.
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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
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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.
(All Qur8:nic citations in this article are from M. al-J:mi6 al-Bagh. 191–243.) 21 Spectorsky. The female-initiated divorce (khul6).ths with isn:ds pertaining to divorce are found in M:lik’s Muwa33a8 and only three are present in al-Shayb:n. Abdel Haleem’s The Qur8:n: A New Translation (Oxford.20 7. Qur8:n 2. discusses at some length takhy. while the recension of al-Shayb:n. The waiting period (6idda). 25 Note that al-Muzan. al-Shayb:n. ‘Book on Gih:r’. If he does so.¯ D I V O R C E .’s (d. 229.21 This framework works very well with most of the early ﬁqh books that have survived. whereas Ab< Y<suf denied such a possibility.A. The text also reports that al-Shayb:n. Anas. Chapters. 2001). and devotes special attention to a dizzying array of divorce statements. . Spectorsky. 59. Near the end of this section. it is no sin for either of them if the woman ransoms herself’. 52–9. 242–72. 49. 2011 20 Spectorsky.. 33. 23 MuAammad al-Shayb:n. 4. 264/878) decision to divide the divorce-related topics in his MukhtaBar into the ‘Book on Female-initiated divorce’.oxfordjournals.’s recension. 2. Aisha Bewley (Inverness. al-J:mi6 al-Bagh.’s recension of M:lik’s Muwa33a8 has at least two chapters on all seven of these categories. transl. Shayba. 22 M:lik b. this counts as a single divorce in which the husband does not have the right to take back his wife during her waiting period. ‘ . separates them. Scotland: Madina Press. ma6a sharAih al-N:ﬁ6 al-kab.23 Most of the chapters on divorce in the aforementioned MuBannafs of 6Abd al-Razz:q and Ibn Ab. allowed the couple to remarry after the li6:n procedure. Mohammed Abdurrahman and Abdassamad Clarke (London: Turath Publishing. indicates the signiﬁcance of these categories in his vision of Islamic law.s ch o l a r s t yl e 329 6.r. 65..22 Al-Shayb:n. 221–43.r. Chapters. E A D I T H . she mentions them under her subheading. ‘Book on Divorce’ (3al:q). covers all of these categories in some depth. transl. along with SaAn<n’s Mudawwana.S. although these books also explore the effects on the marriage bond of conversion to and apostasy from Islam. and ‘Book on Waiting Periods’. 24 While Spectorsky does not count the effects of conversion and apostasy among the seven major divorce topics. fall into these seven categories. Chapters. YaAy: al-Layth. with the exception of mutual imprecation.’s book. The Muwatta of Imam Muhammad. 228. 242–3.org at Princeton University on July 17. 2004). Note that only ﬁve prophetic Aad. ibid. ‘Various other topics’. and MuAammad al-Shayb:n. covers all of them except the Cih:r oath. al-Muzan.r and the oath of sexual abstinence in the ‘Book on Divorce’ and mutual imprecation in the ‘Book on Gih:r’. Qur8:n 2.24 Finally. 234 (widow). al-Muwatta of Imam Malik ibn Anas: The First Formulation of Islamic Law.r (Beirut: 62lam al-Kutub. . 50–2.25 Downloaded from jis. states that the li6:n procedure does not result in the dissolution of the couple unless the q:@. 2004). . 1986).
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’. 1971 (1889–90)). ii.th scholars under discussion and then analyse the methodology of each scholar individually. Chicago: George Allen and Unwin. since Western scholars have long argued that Aad.330 s co t t c . and that the Prophet ordered 6Umar to tell his son that he must take back his wife.th books under analysis. there were several contentious topics among the early jurists that none of the Aad. Despite this general awareness. but also. were well aware of the major legal debates that had been brewing since the second/eighth century. CASE STUDIES: UNIVERSAL TOPICS Downloaded from jis. Stern. 19.. 2011 Only six legal topics concerning divorce can be found in all of the Aad.. This quality inevitably facilitated memorization and transmission of each episode. 6Umar’s (d.th scholars from al-D:rim. M.ths are repositories of the earliest Muslim debates.ths that are often recounted through multiple channels of transmission.27 These Aad. 2 vols. that his father reported this action to the Prophet..oxfordjournals.26 1 The Sunna Divorce: The story of Ibn 6Umar’s mistimed divorce Al-D:rim. The story fragments from here. with one variant having the Prophet granting Ibn 6Umar the right to divorce her after she has puriﬁed herself from menstruation. while Ab< D:w<d places it in Chapter 4. with the exception of al-Bukh:r. all open their ‘Books on Divorce’ with the tale of 6Abd All:h b.org at Princeton University on July 17. in several cases. 27 Ibn M:ja puts it in the second and third chapters. along with its concomitant legal implications. S. in a second variant. and.ths report that Ibn 6Umar divorced his wife while she was menstruating. postponing his right to divorce until the time when she has puriﬁed 26 ‘[The corpus of Aad. and al-Tirmidh. the effect on inheritance of the man who divorces his wife during his terminal illness. We shall now examine the six legal topics addressed by all of the Aad. Muslim. Ignaz Goldziher. al-Bukh:r. to al-Tirmidh.. 73 or 74/692–3) poorly-executed divorce. . Each of these topics is afﬁliated with a unique cluster of narrative Aad. broached in their books. This ﬁnding is not unanticipated. Muslim Studies (ed. and the right of a woman whose husband has gone missing (al-mafq<d) to dissolve her marriage in order to remarry. l uc as This study demonstrates that the Aad. These topics include the validity of conditional divorce statements.th scholars under consideration. resulted in divergent reports that correlate to juristic disagreements.
This is also the case of what MuAammad b. says that the Prophet ordered Ibn 6Umar to take her back until she was free from menstruation. Sa6. D:w<d.30 Muslim. namely that Ibn 6Umar’s divorce did not count as one of the two revocable divorces.29 and. then. Aslam.th compilations. Jubayr. if he wished. Jubayr. states. All of these Aad.r. 6Abd al-RaAm:n related from S:lim.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. Anas b. in the following chapter. 2011 Ibn 6Umar’s story became inseparable from the ‘sunna divorce’.org at Princeton University on July 17. he could keep her. 4aA. prior to making a decision whether to divorce her or keep her. he could divorce her.A (3al:q: 1). that the divorce counts as one of his (two) revocable divorces.d b. which is the title given to the chapters in which it initially appears in all six Aad. ‘It is unlawful to divorce a menstruating woman without her consent and if he disobeys this rule. 4aA.th was transmitted via Ibn 6Umar al-Easan 6A3:8 al-Khur:s:n. . says. The transmission from Ibn 6Umar (S:lim and N:ﬁ6) al-Zuhr. Al-Bukh:r. uses the identical deﬁnition of the sunna divorce (without mentioning the witnesses) as al-Bukh:r. Ab< l-Zubayr.oxfordjournals. on the authority of Ibn 6Umar.A (3al:q: 1). 31 Muslim. E A D I T H . ‘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). This story is further complicated by the question as to whether the inappropriate divorce attempted by Ibn 6Umar counted as one of the two Qur8:nically-permitted revocable divorces. in one of his rare legal opinions. Aad..28 Downloaded from jis. A similar report to the N:ﬁ6 al-Zuhr. 2:442 (3al:q: 4).¯ D I V O R C E . In his Sunan. and then was free from menstruation again. (3al:q: 2). Ab< D:w<d elucidates the tangled web of transmissions of this story: Y<nus b. al-Mu6tamir) via Ab< W:8il all relate this Aad.31 Al-Tirmidh. Zayd b. 30 Ibid.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. 29 al-Bukh:r. and links it to ‘the practice (6amal) of the scholars among the Companions of the Prophet and others’. He alone mentions and leaves unresolved the debate 28 Sunan Ab. and if he wished. The primary lesson from this story is that a man must take back his wife if he divorces her during her menstrual period. had another period. and that he has two witnesses’.ths contradict what Ab< l-Zubayr said. and ManB<r (b. S.n.. 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). his divorce counts and he is to be ordered to take back his wife’.
in the case of al-Bukh:r. Cairo: Maktabat al-Kh:nj. 2 The Marriage that allows a terminally divorced couple to remarry: The story of Rif:6a al-QuraC. Ibn Eajar.. like al-Sh:ﬁ6. who are of the opinion that the sunna divorce encompasses a triple divorce in one setting.th scholars understood this Aad. Sam<8al) al-QuraC. and they relate Aad.. 33 Ibn M:ja. 36 Nothing appears to be known about Rif:6a beyond this Aad. versus the opinion of Sufy:n al-Thawr.z al-BaA:ba.332 s co t t c . Nowhere does the Qur8:n indicate that a man cannot divorce his wife while she is menstruating and all six Aad.oxfordjournals.. 4aA.. They also all agreed that the divorce counted. i. 37). 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.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. 34 al-Bukh:r. (Beirut: D:r al-Fikr. al-Bukh:r. 11 vols. 4aA. Sunan (3al:q: 4). al-IB:ba f.A (3al:q: 2). or. 518.’s unsatisfied ex-wife35 The second topic relies upon the only story possessing a touch of sexual humour. (d. 2001). MuAammad 6Umar. 4aA. Ibn Sa6d. al-Tirmidh. Rif:6a (b.org at Princeton University on July 17.r (ed. 4 vols. 3). Sunan (3al:q: 2. ‘Tell (Ibn 6Umar) to take her back and then divorce her when she is free from menstruation or pregnant’.. 7.th.. but complicates matters in the following chapter by recounting a variant version in which the Prophet merely says to 6Umar.. nor Ab< D:w<d offers a precise deﬁnition of the sunna divorce. 32 Downloaded from jis. and the opinion that he must wait until after one additional period of menstruation prior to divorcing her again. tamy. l uc as between the jurists. 2011 . 204/820) and Ibn Eanbal. (d.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. al-J:mi6 (nik:A: 27)..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. Sunan (nik:A: 32). from a separate statement attributed to Ibn 6Umar himself. 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. 1978). al-J:mi6 (3al:q: 1). 35 al-D:rim. 6Al. 395. He also records the disagreement over the sunna divorce of a pregnant woman.A (nik:A: 17). Muslim. either on the basis of the preponderance of reports.36 divorced his wife triply and she al-Tirmidh. Ab< D:w<d.th as a limit upon the husband’s unfettered right to divorce. Kit:b al-Fabaq:t al-kab.32 Neither al-D:rim. Ibn M:ja.34 What the Aad. v.A (3al:q: 4.. Sunan (3al:q: 49).
d.. Rif:6a’s ex-wife. FatA al-b:r.. reports in the ‘Book on Marriage’ that this is the practice of the general mass of Companions and subsequent scholars.A (3al:q: 41. 2011 .. al-Zubayr al-QuraC.. 3 (nik:A: 17). ‘Can you believe what was said out loud in the Messenger of God’s presence!’ Sunan al-D:rim. has the longer version as. 42). 39 Qur8:n 2. 38 al-Bukh:r. 455 (3al:q: 4). il: Rif:6a? l: Aatt: yadh<qa 6usaylataki wa-tadh<q.n an tarji6. E A D I T H . In addition to casting an embarrassing light upon the anatomy of a certain 6Abd al-RaAm:n b. in several versions. l: Aatt: yadh<qa 6usaylatah: kam: dh:qa l-awwal. in some versions. 230. 7 (3al:q: 4).A (3al:q: 6). she had ‘tasted his sweet honey’. Sunan (3al:q: 39. since the verb 3allaqa is employed in this manner in Qur8:n 2. 40 al-Tirmidh.A Muslim. Ibn M:ja. 6usaylatahu.ths. ii.. Sunan (3al:q: 10). Sunan (3al:q: 10). 37 Downloaded from jis. x. al-Zubayr. Kh:lid remarked with astonishment.ths In the version from 628isha 6Urwa al-Zuhr. before 60/679) divorce has produced the most conﬂicted interpretations of any of the Aad. al-J:mi6 (nik:A: 27). al-Bukhari. x. went to the Prophet and. complained that her new husband’s manhood was akin to an eyelash or thread (hudba). 4aA. and the shorter one as just. 41 al-D:rim..oxfordjournals. whose name is never mentioned in the Aad.. Note that Ibn M:ja also uses this Aad.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. 40). Ab< Bakr was with the Prophet and Kh:lid b. la6allaki tur. 236–7.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). This memorable prophetic locution cemented the requirement of consummation with the new husband prior to the remarriage with the original one and al-Tirmidh.org at Princeton University on July 17. al-Tirmidh. 4aA. 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.d overheard the conversation outside the door of the Prophet’s residence.39 Theoretically. al-J:mi6 (3al:q: 5).¯ D I V O R C E . a woman could be divorced prior to consummation. 4aA. Ab< D:w<d. Muslim.38 The story ends abruptly with this euphemistic prophetic statement.s ch o l a r s t yl e 333 subsequently married 6Abd al-RaAm:n b. Sa6.40 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.
See also Asma Sayeed. al-Eakam (d.334 s co t t c . al-Dhahab.D.oxfordjournals. A few transmissions of this story include the additional details that Marw:n b. in some versions. Harald Motzki argues that this is an early Aad. Tadhkirat al-Auff:C (Beirut: D:r al-Kutub al-6Ilmiyya. by Marion H. 52 (1989): 430–45. 45. 6Abd All:h b. i. ‘The Rights of a Divorced Woman’. 46 There exists great uncertainty over his precise death date. Jahm al-6Adaw.ths from the Madinans Ab< Salama b. all six Aad. the Aad. 158–67.43 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. Zayd after her waiting period instead of her two suitors. and Marw:n and the Madinan Successors Sa6. transl. Ab.th has been studied by G. ‘Shifting Fortunes: Women and Ead.. pace Joseph Schacht. 58/678) rejected vehemently the interpretation of F:3ima’s prophetic citation as a universal rule.th in the Legal Controversy about the Rights of a Divorced Woman during her ‘Waiting Period’ (6idda)’. l uc as under discussion. 6Ubayd All:h b. offers 107/725–6 and 104/722–3. Bulletin of the School of Oriental and African Studies. 107/725–6) 46 are Downloaded from jis. 2011 This Aad. 45 al-Dhabab. all claim to transmit the Prophet’s verdict from F:3ima herself. In fact. 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. 6Abd al-RaAm:n.d b. 436–7. 88–91 and 176–88. 6Utba. The Origins of Islamic Law.). 2005). see Hawting. 42 . Katz (Leiden: Brill. Jahm al-6Adaw. 6Abd All:h b. Yas:r (d.th books contain Companion reports that 6Umar and/or 628isha (d. EafB. divorced her irrevocably (triply) from afar and refused to provide her with either lodging (sukn:) or maintenance (nafaqa) during her waiting period. Sufy:n and Ab< Jahm.th that probably goes back to F:3ima herself. 70. dissertation. ordered her to spend her waiting period in the house of the blind Emigrant Ibn Umm Makt<m. and.th Transmission in Islamic History’ (Unpublished Ph. Ab. to which he purportedly replied that she was entitled to neither maintenance nor lodging. Mu6:wiya b. al-Musayyab45 and Sulaym:n b.42 The basic story is that F:3ima’s husband. identiﬁed in some narrations as Ab< 6Amr b. R. Hawting. However. Tadhkira. Harald Motzki. ‘The Role of the Qur8:n and Ead. 43 For a very similar description and additional references.org at Princeton University on July 17. Princeton University. and Ab< Bakr b. F:3ima informed the Prophet of this situation.44 and the Kufan al-Sha6b. 2002). Ab. 5 vols.. 65/685) inquired into F:3ima’s case during his governorship of Madina and that the Prophet encouraged her to marry Us:ma b. 44 His full name is Ab< Bakr b. i.
6Abd All:h b. See also. since God said. 4aA.’s argument with an anonymous explanation that F:3ima did not receive lodging because she was ‘abusive to her household’ (tabdh< 6al: ahlih:). interrupts the ﬂow of al-Sh:ﬁ6. which states that women cannot be evicted from their homes during their waiting periods unless ‘they commit a ﬂagrant indecency’. al-Layth b. Anas.¯ D I V O R C E .fa. . al-J:mi6 (3al:q: 5). 1] [. For the dismissive comments of Sa6. 114/732 or 115/733). 110/728). said. Hawting. ‘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. Another version adds. 49 al-Tirmidh. al-Tirmidh.th of the Messenger of God (peace be upon him).]50 and she does not receive maintenance on the basis of the Aad. concerning the story of F:3ima bint Qays. and al-Sh:ﬁ6. The impact of F:3ima’s report and its rejection by several prominent early religious authorities divided both jurists and Aad. 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). 47 Downloaded from jis. Muslim. ‘The Rights of the Divorced Woman’. 6Urwa Ibn Ab. 50 al-Tirmidh. This is the opinion of M:lik b. ‘We do not know if she memorized this properly’. such as al-Easan al-BaBr. (d. clearly presents the three major opinions in the following manner: Some scholars. 51 Ibid. (d. al-Sha6b. 6A3:8 b. Sunan (3al:q: 10).s ch o l a r s t yl e 335 depicted as being skeptical as to its validity. He appears less skeptical in the version transmitted by Hish:m b. This opinion is shared by Sufy:n al-Thawr. 438–40.. Ab< D:w<d.A (3al:q: 6) and Ab< D:w<d.. Ab. 6Utba. al-Tirmidh. 1. Sunan (3al:q: 40). and the Kufans. 2011 . Sa6d (d. ‘Do not drive them out of their homes’ nor should they themselves leave ‘unless they commit a ﬂagrant indecency’ [Qur8:n. are of the opinion that the triply divorced woman is to receive both lodging and maintenance. Al-Tirmidh. Sunan (3al:q: 39). .d and Sulaym:n. including 6Umar and Ibn Mas6<d..org at Princeton University on July 17. al-J:mi6 (3al:q: 6). 65.th scholars over the correct ruling concerning the rights of the triply divorced woman during her waiting period. between 103/721 and 110/728). Rab:A (d. 48 al-D:rim. 175/791). from 6Ubayd All:h b.. Some of the Companions of the Prophet. Al-Sh:ﬁ6. see Ab< D:w<d.. al-Zin:d in Sunan Ibn M:ja (3al:q: 10). Ibn Eanbal.47 A common formulation of 6Umar’s attitude toward this story is his statement.49 Some scholars grant her lodging but not maintenance. uses the expression ‘the Kufans’ as shorthand for Ab< Ean.oxfordjournals. ‘We grant her lodging on the basis of the Book of God.51 Marw:n’s skepticism is found in the narration transmitted by al-Zuhr. E A D I T H . Sunan (3al:q: 40). Ab< Y<suf and MuAammad al-Shayb:n.
al-D:rim. and Ibn M:ja support the ﬁrst position outlined by al-Tirmidh. nor 6Umar’s criticism. ’ 54 al-Bukh:r.. 4) 628isha says to 6Urwa.th)’. Ibn M:ja. In the showdown between F:3ima’s prophetic Aad. cites neither F:3ima’s Aad.336 s co t t c .53 along with ﬁve very different versions of 628isha’s rejection of the implications of F:3ima’s statement. x. 4aA.. provide clear evidence of their preferred positions on this topic. . and the Prophet made a special exception for her to move out of fear of her initial location’. even though she did not claim to be basing her opinion overtly on a prophetic teaching. al-D:rim. relates reports in which.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. 5) 6Urwa’s observation that 628isha rejected F:3ima’s claim that the Prophet allowed her to relocate during her waiting period.’s own opinion. 2011 . Al-Bukh:r. ‘The triply divorced woman does not 52 al-D:rim. 1 and 65. while al-Tirmidh.th scholar under consideration who refuses to include a single Aad. al-Bukh:r. ‘F:3ima was in an insecure place. Sunan (3al:q: 10).oxfordjournals. 1) 628isha tells Marw:n that ‘You will not be harmed for refraining from mentioning the statement (Aad. al-Bukh:r. 598.-maskan zawjih: an yuqtaAama 6alayh: aw tabdhuwa 6al: ahlih: bi-f:Aisha. champions the second one. ‘She receives no merit from mentioning this statement (Aad.org at Princeton University on July 17. he cites Qur8:n 65. al-Zubayr after he mentioned F:3ima. Ibn Eajar. 6. Muslim.th.52 Al-Bukh:r.th in which F:3ima actually utters the prophetic decision that denies her lodging or maintenance.54 Al-Bukh:r. is the only Aad. 2) 628isha says..th) of F:3ima’. l uc as Interestingly. rather. Both Muslim and Ab< D:w<d relay a wide array of variants of F:3ima’s prophetic Aad.A (3al:q: 6). Downloaded from jis. but. opinion. .A. 42). refuses to take sides and merely relates the three positions adopted by a handful of his illustrious predecessors. in the end.th along with the criticisms of 6Umar and 628isha.A (3al:q: 41. 42). and Muslim adopts the third one. al-mu3allaqa idh: khushiya 6alayh: f. and Muslim expresses his own opinion in the chapter title. Neither Ab< D:w<d nor al-Tirmidh. and Ibn M:ja side with F:3ima. 4aA. Ab< D:w<d refuses to adopt a transparent position. FatA al-b:r. 55 Ibid. Sunan (3al:q: 10).th scholars under consideration.. can be derived from the title of the forty-second chapter of his 4aA. although Ab< D:w<d does not provide any evidence in support of the hybrid M:lik/al-Layth/ al-Sh:ﬁ6. 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’. and instead elevates 628isha’s opinion to the highest authority on this issue.th and the critical remarks of 6Umar and 628isha. ‘What is F:3ima’s problem? Do you not fear God?’ and 3) 628isha says to 6Urwa b. 53 ‘House the wives you are divorcing .
the tale of Subay6a bint al-E:rith al-Aslamiyya58 provided a solution to a problem upon which Muslim jurists ultimately achieved consensus.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. since her waiting period had ended. Khawla. Sunan.A (3al:q: 39). 94/712–3 or 104/722–3)..¯ D I V O R C E . who happened to give birth a short time after the death of her husband.. Sunan (3al:q: 47). Ibn Eajar does not indicate Subay6a’s death date.. iv. x. Ba6kak. identiﬁed by one of al-Bukh:r. Muslim. Ibn M:ja. 6) declaring that a woman’s waiting period lasts until childbirth can shorten the prescribed waiting period of three courses.org at Princeton University on July 17. iii. 4aA.. 68/687–8). Sunan (3al:q: 7). 59 The death date of 61/680–1 is favoured by al-Dhahab. Sunan (3al:q: 7). three months.. ii. and Ab< Hurayra (d. 4aA. 11th imp. and that four of them even adopted precise positions on the topic of the triply-divorced woman’s rights during her waiting period. Ab< D:w<d. 60 This version is found in Sunan al-D:rim. Another version involving one Ab< al-San:bil b. Ibn M:ja.. Siyar a6l:m al-nubal:8. 4aA. One version of the story begins with a debate between Ibn 6Abb:s (d. 2011 . 93. 57 56 Downloaded from jis. 210. Muslim. 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. 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. 4aA..’s narrations as her suitor. and al-Tirmidh. x.A Muslim. Ab< Hurayra took the initiative to ask Umm Salama (d. al-D:rim.60 This story resolves the question as to whether the Qur8:nic verse (65. al-J:mi6 (3al:q: 17). 234. Sunan (3al:q: 47). and she in turn related to him the story of Subay6a. Sunan (3al:q: 11).A Muslim. Ab< D:w<d. her opinion..A (3al:q: 8). al-IB:ba.A (3al:q: 39).. 4aA. makes no mention of the legal dispute and is found in al-D:rim. al-J:mi6 al-BaA. al-Bukh:r. (3al:q: 11).A. E A D I T H . 11–2. Ab< Salama b. 499. al-J:mi6 (3al:q: 17). 61/680–1). 58 Her deceased husband’s name was Sa6d b.. al-Bukh:r. although he mentions that some scholars date it to 59/678–9. al-Tirmidh. al-Tirmidh.59 one of the Prophet’s widows. (Beirut: Mu8assasat al-Ris:la. 28 vols. 4aA. ii. 6Abd al-RaAm:n (d.. 2001). 80 (3al:q: 6). Subay6a told Umm Salama that the Prophet ordered her to get married immediately. or whether the widow is required to observe the full four months and ten days prescribed in Qur8:n 2. Ibn Eajar.s ch o l a r s t yl e 337 receive maintenance’. 324.A (3al:q: 8).oxfordjournals.
Ibn al-Mundhir. al-J:mi6 al-BaA.62 In short.61 Although technically this story addresses the widow’s waiting period.. Even though the story is transmitted from Subay6a through six different authorities in multiple formats.th scholars. and Ibn Eanbal.th concerning Umm Kulthum bint 6Uqba’s act of tricking her husband.org at Princeton University on July 17. all of our Aad. This consensus as to the Prophet’s command is also shared by the jurists. 62 For example. 257... 318/930) attributes the position that a woman’s waiting period should be the longer of the two durations to 6Al. as al-Tirmidh. with the exception of Ibn M:ja. iii.’s chapter heading is. The concept of takhy. or whether it can only extend the woman’s waiting period. extended the Prophet’s ruling to the divorce waiting period as well. 218–20. 3 vols.A. 5 The story of 628isha’s choice63 Unlike the previous four legal topics. l uc as or four months and ten days.th books. b:b f.. al-Sh:ﬁ6. Sunan (3al:q: 20). the story of Subay6a provided Aad. and Muslim’s reads.r. al-Tirmidh. all of the Aad. (Beirut: D:r al-Fikr..oxfordjournals. Muslim. i.r.A (3al:q: 4. al-Zubayr b. 4aA. although this story is also found in Umm Kulthum’s entry in Ibn Sa6d.. The isn:d has a lacuna (munqa3i6). not only reports that it is the opinion of ‘most of the scholarly Companions’. Ibn al-Mundhir (d. the common background story for takhy.r is largely unspoken in the numerous transmissions from 628isha found in the Aad. 498–9. in which a husband grants his wife (or wives) the choice (khiy:r) to either maintain or sever al-Tirmidh. either overtly through their choice of chapter headings. into offering her a single divorce just moments prior to her giving birth. Ibn M:ja uses a unique Aad. Kit:b al-Fabaq:t al-kab. b:b inqi@:8 6iddat al-mutawaff: 6anh: zawjuh: wa-ghayrih: bi-wa@6 al-Aaml (3al:q: 8). al-6Aww:m. 61 Downloaded from jis. thus denying him the opportunity to take her back during her waiting period. Sunan (3al:q: 12). al-Ishr:f 6al: madh:hib ahl al-6ilm. Sunan (3al:q: 5). 1993). Sunan (3al:q: 6). 2011 . along with al-Thawr.A (3al:q: 5). 63 al-D:rim. 4aA.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. or through their comments in the chapter. x. 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.. and Ibn 6Abb:s. 5).-6iddat al-A:mil al-mutawaff: 6anh: zawjuh: wa-l-mu3allaqa (3al:q: 11). al-D:rim. Ibn M:ja. al-Bukh:r. Ab< D:w<d.338 s co t t c . al-J:mi6 (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.
l:8. and the Kufans. ‘On .64 Al-Tirmidh.A Muslim. Zayd b. 2011 All six books contain at least one Aad. Kh:lid.. ‘If your desire is for the present life and its ﬁnery. al-J:mi6 al-BaA. 483–4.65 Downloaded from jis. then come. al-Ajda6 (d.l:8).m) in S<ra 66 and the oath of sexual abstinence (. 4aA. that if she chooses herself. all of them report 628isha’s comment that. derives from the Qur8:nic passage (33. Muslim b. whereas if she chooses her husband. 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. E A D I T H .¯ D I V O R C E . ‘the Prophet granted us ‘the choice’ (khayyaran:)’ and that it did not count 64 Chapter 5 of Muslim’s ‘Book on Divorce’ is called. Ibn Eanbal followed the position of 6Al.. It has also been reported that they considered it to be a single revocable divorce and that if she chooses her husband. It has been narrated from 6Umar and Ibn Mas6<d that if the woman chooses herself. 65 al-Tirmidh. and his lengthy accounts link it to additional Qur8:nic verses and topics. It is the opinion of Sufy:n al-Thawr. Th:bit [d. such as the episode of banning (taAr. and granting them the choice. and Ab< al-DuA:66 exhibit inconsistencies. 628isha. and the Final Home. Only Muslim provides any sort of narrative in his discussion of ‘granting the choice’. 4ubayA al-Hamd:n. It has been narrated from 6Al. I will make provision for you and release you with kindness. Although the exact wording of nearly all of the narrations transmitted from Masr<q by his Kufan pupils al-Sha6b.oxfordjournals. 4)’.r among the early Muslim legal authorities: The scholars disagree over khiy:r. . x. iii. it does not count as anything. it is a single irrevocable divorce. withdrawing from one’s wives. 28–9) in which the Prophet is commanded: Say to your wives. also the Qur8:nic verse ‘if (the two of) you collaborate against him’ (66. then remember that God has prepared great rewards for those of you who do good’... Most of the scholars and jurists among the Companions and their successors adopted the position of 6Umar and Ibn Mas6<d. His Messenger. 66 His name is Muslim b.s ch o l a r s t yl e 339 the marriage bond. 70.r. it is a single divorce in which he cannot take her back during her waiting period (b:8ina). describes succinctly the uncertainty over the nature of takhy.org at Princeton University on July 17. 63/682–3) from one of the immediate participants in the ﬁrst takhy. but if you desire God.th transmitted by the Kufan Successor Masr<q b. it is a single revocable divorce.A.
Ibn M:ja. Sunan (3al:q: 27)..67 In one of al-Bukh:r. Masr<q drives home the legal point by exclaiming.A (3al:q: 4). 4aA. ‘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. 68 L: ub:l.. either refer to a different incident than the takhy. 71 al-D:rim. al-Bukh:r. Ab< D:w<d. Sunan (3al:q: 5). Sunan (3al:q: 38).. 70 al-D:rim. Sunan (3al:q: 27–9). a-khayyartuh: w:Aida aw mi8a ba6d an takht:ran. Muslim. ‘li6:n’ in the EI2. Sunan (3al:q: 12). Ibn M:ja. Ibn M:ja. al-D:rim. Ibn M:ja. Sunan (3al:q: 20). Sunan (nik:A: 39).th scholars under examination. and Ab< D:w<d. contains the most tangled web of narratives that strive to answer questions left unanswered by the Qur8:n. al-Bukh:r. l uc as as a divorce.. 461 (3al:q: 5).. the ﬁfth time.r episode or are inauthentic.. Downloaded from jis.340 s co t t c . and. in its Kufan manifestation. 32–6). 67 . 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. al-J:mi6 (3al:q: 4). al-Tirmidh. the ﬁfth time. let each one four times call God to witness that he is telling the truth. 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. x. as can be seen in the following Qur8:nic passage (24. al-J:mi6 (3al:q: 22). Ab< D:w<d. Muslim. Ab< D:w<d..ths found in the Sunans of al-D:rim.: FatA al-b:r.A (li6:n). 4aA. calls God to reject her if she is telling the truth. mutual imprecation. call God to reject him if he is lying. See also Joseph Schacht’s extensive entry. Sunan (3al:q: 1). 69 Muslim. 6–7): As for those who accuse their own wives of adultery.ths on this topic.. 5). which report that the Prophet divorced EafBa and then took her back. 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. 2011 6 The Procedure for mutual imprecation: the story of the first li6:n71 The ﬁnal topic covered by all six Aad..’s two Aad. 4aA. Sunan (3al:q: 2). punishment shall be averted from his wife if she in turn four times calls God to witness that her husband is lying and.69 Assuming that the Aad. but have no other witnesses. 4aA.oxfordjournals. al-Tirmidh.org at Princeton University on July 17.A (3al:q: 5).A (3al:q: 4.A (3al:q: 25–30. 4aA.70 628isha’s story.
or Sa6. al-Bukh:r..q) is part of the li6:n procedure and involves Ibn Jubayr visiting a fatigued Ibn 6Umar in the Hijaz. 33. 73 For Ibn 6Umar Sa6. . Ibn Jubayr’s story begins with a dispute in Iraq during the reign of MuB6ab b. A ﬁfth story. Jubayr (d.th-scholars’ chapters devoted to li6:n and the three major stories72 found among the Aad. Sunan (nik:A: 39). Ibn M:ja. al-Bukh:r. which parent gains custody of the child? The various versions of the ‘ﬁrst li6:n’ story can answer these questions. but rather the information that the Prophet separated the parties. 4aA. iii.. in the case of N:ﬁ6’s narrations.ths on this topic—Does li6:n actually lead to the termination of the marriage.A (li6:n). Ab< D:w<d.. see al-D:rim. (d. 4aA.A (Aud<d: 42). al-J:mi6 (3al:q: 22). he indicates in most versions that it was either ‘an AnB:r. 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.s ch o l a r s t yl e 341 These verses raise two major questions that are reﬂected both in the Aad.¯ D I V O R C E .73 The second most popular version of this story is transmitted from the long-lived Companion Sahl b.A (li6:n). The only report found in all six Aad. Fabaq:t. 53.A (li6:n). see al-D:rim. Jubayr. 62sim b. Ab< D:w<d. For Ibn 6Umar N:ﬁ6. 35).org at Princeton University on July 17. granted custody of the baby to the mother. Sunan (nik:A: 58). 52.d b. The signiﬁcance of Ibn 6Umar’s story is not the identity of the involved parties. al-D:rim. and. 6Ad. Sunan (3al:q: 27). told by Ab< Hurayra on the authority of the Prophet. 6Umar. 4aA. al-J:mi6 (al-wal:8 wa-l-hiba: 4). and. It includes the names of the two primary characters. Muslim.A (3al:q: 26). 4aA. 432.d b.74 to whom the Prophet refused to answer the question.. While Ibn 6Umar does not reveal the precise name of the ﬁrst man to perform li6:n. al-Tirmidh. Ab< D:w<d. Sunan (3al:q: 28). al-Zubayr (686–91) over whether termination of the marriage (tafr.A (3al:q 32. ‘What does a man do if he ﬁnds someone Downloaded from jis.A (li6:n). see al-Bukh:r. 4aA. Muslim. even though they are contradictory concerning the name of the ﬁrst man who executed this procedure. with little to say about the li6:n process. Sunan (nik:A: 39). 4aA. 2011 72 A fourth story reports Sa6d b. al-Bukh:r. between 117/735 and 120/738). according to Ibn Sa6d. 4aA. 91/709–10 or 88/706–7) directly to al-Zuhr. 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. 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. Sa6d al-Sa6:d. Ibn M:ja. Muslim 4aA.. (d.th books is transmitted by either N:ﬁ6.. E A D I T H . He lived 105 years. mawl: of Ibn 6Umar (d... 124/742)..A (3al:q: 34. Sunan (3al:q: 27).oxfordjournals. al-Tirmidh. Muslim. al-Tirmidh. al-J:mi6 (3al:q: 22). if it does. Sunan (3al:q: 27).’ or ‘someone from Ban< al-6Ajl:n’. Sunan (nik:A: 37). 45/665–6). (d. 95/714) from 6Abd All:h b..
ths transmitted from Sahl. other than that he was present at UAud.org at Princeton University on July 17. 6Abd All:h. Sa6d.th is not found in the other four collections.342 s co t t c . Ab< D:w<d. ii. l uc as in bed with his wife?’ and 6Uwaymir al-6Ajl:n. provides no evidence for the termination of the marriage at the end of the li6:n process. For al-Zuhr. Note that Ibn Sa6d does not associate Hil:l with the ﬁrst li6:n. see al-D:rim. transmitted from Ibn 6Abb:s.A (li6:n).’s narration does not mention the triple divorce. While these narrations provide names to this event. 852/1449) identiﬁes as 6Uwaymir. Ibr:h. Muslim. ‘separated (farraqa) the couple’. see Ab< D:w<d. 78 FatA al-b:r. Sunan (3al:q: 27). Ibn Jurayj. 77 Literally. 2011 Nothing much appears to be known about him outside of this Aad. M:lik. 578 (3al:q: 31. For al-Zuhr. whom Ibn Eajar (d. see al-Bukh:r.. 76 For al-Zuhr. from al-Zuhr.77 Another Aad. like the majority of the Aad. Ab< D:w<d’s comment is found following Ibn 6Uyayna’s narration in Sunan Ab. the Aad. 4aA. 4aA. D:w<d. Sunan (3al:q: 27). The only scholar under examination not to include Sahl’s story is al-Tirmidh. 75 . Sunan (nik:A: 39). 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)’. This already tangled web of narrations is further complicated by reports that the ﬁrst man to perform li6:n was Hil:l b. Sunan (3al:q: 27). 36). al-Awz:6. 118) for staying behind in Madina during the raid to T:b<k.A (3al:q: 29). Y<nus.75 the unfortunate fellow who found himself in this situation. 79 Hil:l was an early convert to Islam who does not appear to have been present at UAud. Ab< D:w<d. 6Iy:@ b. For al-Zuhr. Fabaq:t. 294–5. Muslim.76 Further complicating Sahl’s report is the narration of Ibn 6Uyayna from al-Zuhr. Sunan (3al:q: 27).A (li6:n). Umayya. x. 4aA. mentions 62Bim b.. ibid.. al-Bukh:r.475 (3al:q: 27). 315–16. whereas al-Awz:6. see al-D:rim.th.78 Ibn 6Abb:s’ recounting of the story.. Ibn Sa6d.A (li6:n).m b. For al-Zuhr. Sunan (nik:A: 39). iv. Ibn Jurayj.A (3al:q: 30). 6Abd All:h al-Fihr.. 4aA. and his anonymous kinsman.A (li6:n). which. that almost certainly relates to this same event. Muslim. This Aad. Ibr:h.. 4aA.oxfordjournals.. is the only report on the authority of Sahl in which the Prophet himself terminated 6Uwaymir’s marriage.ths of M:lik. according to Ab< D:w<d. Sa6d and 6Iy:@ b. 4aA.. see Muslim. iv. 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. 6Ad.79 who Downloaded from jis. He achieved some notoriety for being among the three men criticized and forgiven in the Qur8:n (9. For al-Zuhr. Y<nus.m b.. who is also one of the candidates for whom the li6:n verses were revealed. see Ibn M:ja. 569.th.
avoid this confusion by only citing narrations that relate to the 6Uwaymir story. ManB<r that does not involve Hish:m. Ibn Sa6d. the versions in al-Bukh:r. 198/813). 84 al-Tirmidh. Muslim. E A D I T H .ths in his chapter on li6:n that have nothing to do with the story of the ﬁrst li6:n. cautiously graded Hish:m as ‘reliable (thiqa). 80 Downloaded from jis..81 who claimed to have heard it from 6Ikrima Ibn 6Abb:s and Ibn S. iv. and al-Tirmidh. like 6Uwaymir. Ibn Mas6<d. see Ibn Sa6d. God willing’. interestingly.oxfordjournals.83 Al-D:rim.’.n Anas. 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. Ibn Sa6d. 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. and Ibn M:ja have as a common link the Basran Hish:m b.84 Muslim. Note that the great Basran Aad. ‘What has reached us concerning li6:n’ and leave it for the reader to sort out the legal implications of this knot of Aad.th critic. 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.r. 2011 . ii. SaAm:880 of having committed adultery with his wife without any witnesses. and al-Tirmidh. his father’s name is 6Abda b. Fabaq:t.d al-Qa33:n (d. combines the stories so that 6Uwaymir accuses his fellow tribesman Shar. 295. Muslim. ix. This story is found in the books of al-Bukh:r. Ab< D:w<d.th and.s ch o l a r s t yl e 343 accused Shar. ‘the practice of the scholars is in accordance with this Aad. 271. along with the practice of determining paternity on the basis of physiognomy. states after Ibn Jubayr’s version of the Ibn 6Umar narration that.. Sunan (3al:q: 27). but include fewer contradictory reports. Ibn M:ja.. M:lik or Ibn 6Abb:s. Sa6. Ibn M:ja.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. and Ab< D:w<d on the authority of Anas b. al-Tirmidh.k’s mother’s name. 150. Fabaq:t. Ibn M:ja includes a couple of additional unique Aad. 81 For more on Hish:m.k of commiting adultery with his wife. which could refer to either 6Uwaymir or Hil:l. (d.ths. al-J:mi6 (3al:q: 22). merely identiﬁes the male imprecator as ‘an AnB:r.th’. 85 al-D:rim.k b. and Ab< D:w<d collect all of the contradictory versions of this story in a single chapter (or book) simply labelled as. Eass:n al-Qurdus. 83 Another self-identiﬁed witness to an act of li6:n. Interestingly. and al-Tirmidh.85 Al-Bukh:r. YaAy: b. Sunan (3al:q: 27). Ibn Eajar.th scholars to adopt certain strategies for dealing with them. IB:ba. 147/764–5 or 148/765–6). he belongs to the Ban< 6Ajl:n.¯ D I V O R C E . Mugh. 82 Ab< D:w<d does have a lengthy additional transmission from Ibn 6Abb:s 6Ikrima 6Abb:d b. demonstrates his legal SaAm:8 is Shar. use the same chapter heading as Muslim and Ab< D:w<d.org at Princeton University on July 17.
It is remarkable that only six of the 45 divorce-related topics addressed by at least one of the third/ninth-century Aad.86 He wields the transmission of Sahl Zuhr. since Subay6a’s story merely reafﬁrms the declaration in Qur8:n 65. 4aA.’s 4aA.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.89 Al-Bukh:r. 86 Downloaded from jis.th collections from this period. chooses to stay with her husband has not expended one of her two revocable divorces.org at Princeton University on July 17.A (3al:q: 30).. 2011 . 6 that a woman’s waiting period is completed at the moment of childbirth.A that deal with li6:n.ths related to the ‘ﬁrst li6:n’ stories.. 2) faithfully recording all of the variations without providing legal opinions. or. in separating the couple that has performed the very public procedure of mutual imprecation. 4aA. 4aA. (3al:q: 29).h.A (3al:q: 28). 3) ignoring the contradictions while simultaneously exploiting the variations in order to derive multiple legal rulings.th scholars under consideration are found in all of the major Aad. ‘Were I to have stoned anyone without evidence. 87 al-Bukh:r. which includes the ﬁrst Ibn 6Abb:s story.ths about the ﬁrst li6:n is that the Aad. x. The two topics concerning the waiting period are surprising. The lesson we derive from our analysis of the pile of contradictory Aad. Ibn Jurayj as proof that the li6:n procedure can (or should?) be done in a mosque. when granted ‘the choice’.88 and the Ibn 6Umar that the mother receives custody of the child. These topics appear at ﬁrst sight to be highly random. but Chapter 25 (the validity of indicating li6:n by writing or pointing) does not include any Aad.. to the clariﬁcation that a woman who. I would have stoned her’. in the case of al-Bukh:r. 89 Ibid.A (3al:q: 35). 4aA. He also cites Sahl’s narration as evidence for ‘One who divorces (his wife) after the li6:n process’.oxfordjournals. 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’. 90 Ibid.A (3al:q: 34). ranging from the prohibition of divorcing one’s wife while she is menstruating. and to the crucial role of the q:@. 88 Ibid. relates to the identity of the woman to whom the Prophet was referring when he supposedly said. 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.th scholars’ three strategies consisted of reducing or eliminating the contradictions through: 1) selective inclusion. and Chapter 31.344 s co t t c . 550 and 569. FatA al-b:r. What is more striking There are actually twelve chapters in al-Bukh:r. whereas F:3ima’s report that triply-divorced women receive neither maintenance nor lodging seemed incorrect in the eyes of 628isha and 6Umar.
ths that include the prophetic prohibition against a woman stipulating that her suitor must divorce his existing wives prior to marrying her. E A D I T H . INDIVIDUAL PROFILES Now that the six core topics have been elucidated. 4aA. Ibn M:ja. their individual legal methodologies emerge most clearly when we compare their overall articulations of the laws of divorce to each other.org at Princeton University on July 17.. This topic is also found in al-Bukh:r.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.A (3al:q: 7. whom I shall consider after Ibn M:ja. 6Uwaymir al-6Ajl:n. 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. with the exception of al-Bukh:r.. 4aA.th that a triple divorce counted merely as a single one at the time of the Prophet.th scholar will be introduced in the order of the ascending quantity of legal topics pertaining to divorce he addresses. Subay6a. half of which we just examined in the previous section.ths with complicated transmission histories. 4aA. al-J:mi6 (3al:q: 14). Ab< Bakr.th scholars in their presentations of these six topics..A (3al:q: 3).A (buy<6: 4). we can identify which legal issues al-D:rim.. Muslim.92 While he recounts Ibn 6Abb:s’ Aad. These topics are found in four different sections of his Aad. 91 Downloaded from jis. Muslim covers a mere twelve legal topics related to divorce in his 4aA. This topic is also discussed by al-Bukh:r.th compilation in addition to the ‘Book on Divorce’ and generally consist solely of prophetic Aad. He shows little concern for procedural issues surrounding divorce proper (3al:q). 2011 . Sunan (3al:q: 28). a report which centuries later Ibn Taymiyya (d. the summary presentation of which will occupy the remainder of this article. al-Eajj:j al-Nays:b<r. 728/1328) and AAmad MuAammad Sh:kir Muslim.91 along with a large cluster of Aad. and al-Tirmidh. and the unnamed wife of Rif:6a al-QuraC. Ab< D:w<d. 1 Ab< l-Eusayn Muslim b.. and al-Tirmidh. chose to address and analyse their sources. due to the former scholar’s unique hermeneutics. 92 Muslim. al-Bukh:r.¯ D I V O R C E .. While we have seen some differences among our Aad. Ab< D:w<d. 4aA.. and the early years of 6Umar’s caliphate.A.oxfordjournals. Each Aad. Sunan (3al:q: 2). ranging from the famous Ibn 6Umar and 628isha to the more obscure F:3ima bint Qays.A (nik:A: 54).. 8) and Ibn M:ja.
.. I assume that the fact Muslim does not declare the triple divorce to be unlawful means that he at least tacitly approves its practice.d. 95 Muslim. 6Abd All:h (d. 2011 See MuAammad Ab< Zahr:. 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. Sunan (3al:q: 41). n. 2nd edn. al-Bukh:r. AAmad Sh:kir.. Note that al-Tirmidh. Sunan (3al:q: 10). 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. In addition to this Aad. Sunan (3al:q: 29). Siyar a6l:m al-nubal:8. 1969). 94 Muslim.95 He relates a single narration of a Aad. Sunan (3al:q: 19–22). l uc as (1892–1958) would seize upon as evidence in their opposition to the triple divorce. 381.ra’s story that does not mention her right to chose to end her marriage. al-J:mi6 (al-wal:8 wa-l-hiba: 1). Ibn Taymiyya (Cairo: D:r al-Fikr al-6Arab.. Ab< D:w<d.l:8 after only 29 days. and Ab< D:w<d. which all of the Aad. 96 Muslim.A (3al:q: 2). and qiy:s.A (3al:q: 5).96 Finally. 43 (references). as we shall see below. 4 and clariﬁes that the Prophet ended his month-long . Sunan (3al:q: 24). al-Bukh:r. Muslim presents the widely reported Aad. and. and Ab< D:w<d also employ in support of this position.A (6itq: 2). v.ra.A (3al:q: 21). al-Bukh:r. 4aA. (along with Ab< Zur6a and Ab< E:tim) considered Ab< l-Zubayr to be nonauthoritative (l: yuAtajju bi-hi).l:8 that was only twenty-nine days. Sunan (3al:q: 15).th about 628isha’s act of manumitting Bar. Ibn M:ja.oxfordjournals.A (3al:q: 7).th. 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.-l-Isl:m (Cairo: D:r al-Fib:6a al-Qawmiyya. save al-Tirmidh.th in which J:bir b.93 Muslim merely labels this chapter ‘the triple divorce’ without comment.94 Muslim touches brieﬂy upon three additional topics.. Al-Bukh:r.). 4aA. links the ‘month-long . 97 Muslim. their reading of Qur8:n 2.. This Aad. probably did not include this Aad.th since the only version narrated by these four scholars contains the isn:d J:bir Ab< l-Zubayr. 420–1. Ibn M:ja also reports that the Prophet performed a one-month . Sunan (3al:q: 9).. Al-Bukh:r.A (3al:q: 15–17).th (described below).l:8’ to a separate incident in the Prophet’s life involving a broken leg.th scholars under consideration. Ibn M:ja. Ibn Taymiyya and AAmad Sh:kir also relied upon a version of the Ruk:na Aad.346 s co t t c . 57–60. NiC:m al-3al:q f. al-D:rim. instead of the expected 30-day month.. a report which al-D:rim. 4aA. 93 .97 Downloaded from jis. Ibn M:ja. relates a highly abbreviated narration of Bar.. according to al-Dhahab. 229. 4aA.. Sunan (3al:q: 14). 4aA. al-D:rim. 4aA.org at Princeton University on July 17.th is also found in Ab< D:w<d.
(d. i. Jerusalem Studies in Arabic and Islam. The death date of 107 is provided by al-Dhahab.. and others cite has 6Ikrima.100 led him to restrict the contents of his 4aA. Ab< D:w<d.ths in the course of his studies.98 Likewise. Tadhkira. mawl: of Ibn 6Abb:s (d. he discusses eight issues ignored by Muslim. only covers sixteen divorce-related topics in his Sunan. Spectorsky. E A D I T H . . Juynboll. in its isn:d. child custody. the Cih:r oath. 99 L: 3al:q ill: f.99 In short. 101 al-D:rim.. ‘6Ikrima’. For example. Sunan (3al:q: 17) and al-Tirmidh. own) the woman’. Qays’ khul6 divorce that al-Bukh:r.. H. the widely-circulated story about the wife of Th:bit b.oxfordjournals.ths that he evaluated as sound. Sunan (3al:q: 7). 30. 263–311. ‘divorce is only valid if you are married to (lit. which is a popular proof that divorce prior to marriage is invalid. and al-Tirmidh. Schacht says that the ‘best attested date’ for his death is 105/723–4.) to have distrusted the controversial family isn:d related by Shu6ayb b. 2 Ab< MuAammad 6Abd All:h b. ‘Muslim’s introduction to his 4aA. 748/1348) states that Muslim shunned 6Ikrima on account of his alledged Khariji beliefs. Sunan (3al:q: 8). A. and she cites Lane’s deﬁnitions of b-t-t. see G.101 the ﬂexibility of the ‘batta divorce’.A.. EI2. he could only address a tiny fraction of the relevant issues. These topics include the afﬁrmation that a divorce uttered prior to marriage is invalid. 6Amr. 107/ 725–6). Muslim is silent on the topics of the female-initiated divorce. ‘to cut off’. Although al-D:rim. such as divorce. ‘sever’.ths of the highest level of authenticity in early Muslim jurisprudence. 6Abd al-RaAm:n al-D:rim. a more likely explanation for their absence are his critical standards. al-J:mi6 (3al:q: 6). Ab< D:w<d.th from the one found in the books of Ibn M:ja. 2011 . as he informs us in the introduction of his book. . adverse circumstances at the time of divorce.. and the impacts of conversion upon marriage.. Muslim’s methodology. and al-Dhahab. The Arabic expression al-batta is translated by Susan Spectorsky as ‘deﬁnitely’ or ‘decisively’. or ‘separate’.s ch o l a r s t yl e 347 Muslim’s chapters on divorce indicate the limited utility of Aad. Sunan (3al:q: 7).103 child al-Dhahab. Chapters. . 102 Ibid.¯ D I V O R C E . Muslim is reported (as also is al-Bukh:r.A to prophetic Aad. 100 For a translation of this introduction. Slight variants of this statement are found in Ibn M:ja.-m: tamlik . 103 al-D:rim.. 74.org at Princeton University on July 17. which happens to be the primary chain of transmission for the report. Sunan (3al:q: 3). 98 Downloaded from jis. translated and annotated with an excursus on the chronology of ﬁtna and bid6a’. While it is possible that he simply missed some of these Aad. He cites a different Aad. despite the consequence that for certain legal ﬁelds. 5 (1984).102 the female-initiated divorce.
is that the Prophet divorced EafBa and took her back during her waiting period. Sunan (3al:q: 21). Upon Th:bit’s arrival.ba ﬁrst performed the khul6 divorce on Th:bit.ba said. Qays as Jam. ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’. a report which possibly indicates the desirability of taking back one’s wife during her 6idda.’s act of breaking the Cih:r oath during Rama@:n106 and the Prophet’s purported statement that. all use to discourage this practice. 98/717 or 106/724). and al-Tirmidh. Ibn M:ja.oxfordjournals. This Aad. Sunan (3al:q: 18). ‘Neither me.. Sunan (3al:q: 38).348 s co t t c .la bint Sal<l (3al:q: 22). he introduces the topic of the female-initiated divorce through the widely transmitted story of Eab...ba because she told him that the Ibid.’s transmissions identiﬁes the wife of Th:bit b. l uc as custody. the Prophet said. al-D:rim. Sunan (3al:q: 17). 58/1 (1994).la followed suit at a later date. 105 104 Downloaded from jis. nor Th:bit’. 6Amra bint 6Abd al-RaAm:n (d. and the narrator of the Aad. Ubayy. FatA al-b:r.ba bint Sahl who. Note that one of al-Bukh:r.A. 109 al-D:rim. Ibn Eajar’s solution is that these are two discrete stories and that Eab. Ibn 6Abd al-Barr observes that the Basrans call her Jam.108 Al-D:rim.-ghayr ba8s fa-Aar:m 6alayh: r:8iAat al-janna. 110 al-Bukh:r..la and a second one as Bint 6Abd All:h b. Sunan (3al:q: 2). Ab< D:w<d. al-J:mi6 (3al:q: 11). Ibn M:ja. x. 113–25. Sunan (3al:q: 18). 108 al-D:rim. Sunan (3al:q: 9). see Ibn Eajar. Ibn M:ja includes unique narrations in which her name appears as Eab. al-Tirmidh. ‘Take from her what you wish.org at Princeton University on July 17. Sunan (3al:q: 21–3). 4aA. Eab. Bulletin of the School of Oriental and African Studies.110 al-D:rim. and set her free’. Ibid. 106 Ibid.th books under consideration.107 The ﬁnal subject introduced by al-D:rim. and then Jam. one morning. Sunan (3al:q: 7). 2011 .. Sunan (3al:q: 16).la bint Ubayy while the Madinans call her Eab. except for Muslim’s 4aA. met the Prophet outdoors and said.105 He also recounts the lengthy story of Salama al-Bay:@.’s version adds the twist that Th:bit was initially angry with Eab. which Ibn M:ja.ths. 501 (3al:q: 12). Sunan (3al:q: 6). ‘An Ascetic Vow or an Unseemly Oath?: . al-Tirmidh.. This report is also cited by Ibn M:ja. Sunan (3al:q: 1) and Ab< D:w<d. al-J:mi6 (3al:q: 10).ba bint Sahl and Jam. Furthermore. 13). For example.l:8 and Cih:r in Muslim Law’. reports that Th:bit took a portion of what he had given her and then Eab.th. Ab< D:w<d.109 While the gist of this core khul6 story is found in all of the Aad. covers these additional legal topics through a mixture of sound and weak transmissions of prophetic Aad. ‘I have everything he has given me right here’.104 and the rules concerning the divorce of a slave girl. at 118. 107 Ayyum: imra8a sa8alat zawjah: 3al:qan f.A (3al:q: 12.. Ab< D:w<d.th is mentioned in Gerald Hawting.ba bint Sahl.ba settled into her father’s home.
al-J:mi6 (3al:q: 2). Al-D:rim. al-Tirmidh. the Prophet just sends him back to his ex-wife. and that Th:bit subsequently struck her. also found in the books of Ibn M:ja. al-Bukh:r. ‘I did a batta divorce!’ The Prophet asks. and al-Tirmidh. reaches a broader array of legal topics than Muslim through a combination of both sound and weak prophetic Aad. Sunan (3al:q: 8). 2011 Ab< D:w<d also includes one narration in which Th:bit ‘struck her and broke part of her’. In some of the other versions. Ab< D:w<d. clariﬁes the nature of the ‘batta divorce’ and the divorce of a slave girl through the use of Aad. 113 al-D:rim. 114 The only category for which al-D:rim. as we saw above. Ibn M:ja. merely reports that the Prophet said. informs us that when he asked him about it. ‘It is what you intended’.org at Princeton University on July 17.hi i@3ir:b) since it was transmitted in a version in which the word ‘triply’ was substituted for ‘al-batta’. ‘a single divorce’. Al-Bukh:r. Muslim has practically nothing to say as well.th.. 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. deﬁnitely knew of this Aad.112 The second weak Aad. which does not appear in his 4aA. 4aA. E A D I T H .113 Despite the modest number of topics that both al-D:rim. The ﬁrst Aad.ths with weak isn:ds.114 Al-D:rim.th. Note that the expression ‘batta3al:q. because al-Tirmidh. especially when we read this chapter in conjunction with his previously mentioned prophetic statement that.’ appears in some of the narrations of the story of ‘Rif:6a’s unsatisﬁed ex-wife’ (discussed above) in al-Bukh:r. ‘What did you want it to be?’ to which Ruk:na replies. declared it to be ‘inconsistent’ (f.ths that Muslim did not deem worthy to disseminate or of which he was unaware.. Sunan (3al:q: 19).A (3al:q: 4) and Muslim. and al-Tirmidh.A. variants of which are found in the books of Ibn M:ja.. has nothing to say is the oath of abstinence.s ch o l a r s t yl e 349 Prophet. .. Sunan (3al:q: 18). Sunan (3al:q: 17). and Muslim address. ‘Any woman who asks her nonabusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’.. 4aA. The Prophet then tells him. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’. 112 al-D:rim.’s version is unique in that it reports that the Prophet made Ruk:na swear ‘By All:h’ prior to telling him ‘It is what you intended’. Ab< D:w<d. 111 Downloaded from jis. who was their neighbour.A (nik:A: 17). Al-D:rim. Sunan (3al:q: 14). wanted to marry her.oxfordjournals.¯ D I V O R C E . recounts the story of a conversation between the Prophet and a distraught man named Ruk:na who exclaims.th.. about which.111 This detail suggests that al-D:rim. Ab< D:w<d. only considered the khul6 divorce valid in cases of an abusive husband.
In addition to covering the majority of topics found in al-D:rim. ¯ ¯ 3 Ab< 6Is: MuAammad b.org at Princeton University on July 17.. 120 al-Tirmidh. 121 al-Tirmidh.’s inclusion of the legal opinions of the leading jurists who preceded him.A (3al:q: 11). Sunan (nik:A: 40) and Ab< D:w<d. Sunan (nik:A: 60) and Ab< D:w<d. reports that the Prophet approved 6Umar’s act of forcing his son to divorce one of his wives whom 6Umar disliked. al-J:mi6 (3al:q: 8. and 3) The right of a manumitted married slave woman to takhy. and al-Tirmidh. Sunan (nik:A: 39) and Ab< D:w<d. as well as the category of the impact of conversion to Islam upon preexisting marriage bonds.. al-Bukh:r. 15). al-Bukh:r. demonstrates his awareness of the vibrant legal discourse in which he was composing his J:mi6. Ab< D:w<d. al-J:mi6 (nik:A: 33). and Ab< D:w<d. Sunan (3al:q: 36). Sunan (3al:q: 25).350 s co t t c . 6Is: al-Tirmidh. Ibn M:ja. such as the validity of a divorce that one utters in jest. 2011 The only topics that al-D:rim. al-J:mi6 (3al:q: 9).’s ‘Book on Divorce’. 117 al-Tirmidh.. covers upon which al-Tirmidh. 2) A woman can leave her house during the daylight hours of her waiting period. 4aA. and it is perhaps for this reason that all of al-D:rim. Sunan (3al:q: 9). Ibn M:ja. Al-Tirmidh.121 A good example of al-Tirmidh...r. 118 al-Tirmidh. ..ths are found in the books of these three men. 4aA.115 there is an elevated focus in al-Tirmidh. Ibn M:ja.119 ordered another convert to choose one of the two sisters whom he married prior to becoming Muslim. 24). Ibn M:ja. ‘Your 115 Downloaded from jis. Sunan (3al:q: 13).’s methodology can be seen in his discussion of the takhy..118 obliged a man who converted to Islam to divorce six of his ten wives.A (3al:q: 20).120 and stipulated that when a woman converts to Islam. He addresses 24 legal topics surrounding divorce which touch upon all of Spectorsky’s categories..’s legal topics related to divorce and most of his Aad. al-J:mi6 (3al:q: 13).’s J:mi6 on issues concerning the divorce procedure. al-J:mi6 (nik:A: 34).. 119 al-Tirmidh.r statement in which a man says to his wife. al-J:mi6 (nik:A: 43).oxfordjournals. Ibn M:ja. Ibn M:ja. 116 al-Tirmidh.117 Al-Tirmidh. Sunan (3al:q: 15).116 but the invalidity of the divorce uttered only to oneself or by an insane man. her non-Muslim husband is automatically divorced a single divorce that is only revocable if he converts to Islam during her waiting period. l uc as This strategy is essentially the same as that of Ibn M:ja. including the eponyms of the four Sunni schools of law. Sunan (3al:q: 25). Sunan (3al:q: 23. is silent are: 1) Taking one’s wife back after a revocable divorce.
M:lik and Ibn Eanbal agree with the position of 6Uthm:n and Zayd. ‘your matter is in your hand’ to count as three [divorces]?’ Ayy<b said. ‘God forgive me! There is the report which Qat:da related to me from Kath. considered the expression ‘Your matter is in your hand’ as a potential triple divorce. before recounting the following juristic disagreement on this topic: 6Umar and Ibn Mas6<d say. 122 . ‘I only put your matter in your hand for a single divorce. al-J:mi6 al-BaA.r mawl: Ban< Samura and when I asked him about [this Aad.oxfordjournals.. al-J:mi6 al-BaA. iii.124 Downloaded from jis.123 He includes al-Bukh:r. who considers the expression.th as ‘poorly attested’ (ghar. from the Prophet (peace be upon him).r..th pertinent to this topic is the following: Eamm:d b.’s Sunan: It is reported that 6Umar made the ‘batta’ a single divorce. iii. Then I returned to Qat:da and informed him of all this. while 6Al. ‘[Kath. to which he said. 124 Ibid. who said. Ab< D:w<d.th] he did not recognize it.b) and ‘known only from Eamm:d b.org at Princeton University on July 17. 481 (3al:q: 3). 123 al-Tirmidh.’ he must take an oath. d. ‘I met up with Kath. mawl: of Ban< Samura.th scholarship in late-Umayyad Basra.r] forgot. ‘Three. Zayd [d. The sole prophetic Aad. ‘Do you know of anyone other than al-Easan al-BaBr. al-Tirmidh. from Ab< Hurayra. Sufy:n al-Thawr.¯ D I V O R C E . Ibn R:hawayh follows the opinion of Ibn 6Umar. 179/795] said to Ayy<b [al-Sakhtiy:n. two luminaries of Aad. Sunan (3al:q: 13). and the Kufans agree with 6Umar and Ibn Mas6<d. 482. Earb’..’ Ayy<b continued. dwarfs the actual statement of the Prophet and does little to instil conﬁdence that anyone other than al-Easan al-BaBr. Then [Ayy<b] said.s ch o l a r s t yl e 351 matter is in your hand’ (amruki bi-yadiki). 6Uthm:n and Zayd b. from Ab< Salama. candidly describes this Aad. Al-Tirmidh.A. ‘Your matter is in your hand’ and the husband says. counted the ‘batta’ as a triple divorce. Zayd Sulaym:n b.’s verdict that the report really communicates Ab< Hurayra’s opinion rather than that of the Prophet. Some scholars said that it depends on the man’s al-Tirmidh.’122 This conversation between Eamm:d and Ayy<b. 2011 In a similar vein. Th:bit say it is for as many divorces as she wishes (al-qa@:8 m: qa@at). only al-Easan’. E A D I T H . Ibn 6Umar: If she divorces him three times after he says.A. (‘Your matter is in your hand’) is a single divorce. and his statement with the oath is what stands. provides a concise summary of the batta divorce that we encountered in our recent discussion of al-D:rim. 131/748–9]. al-J:mi6 (3al:q: 3). ‘No.
Even though his inclusion of fragments of the discourse of juristic disagreement (ikhtil:f al-fuqah:8) sets al-Tirmidh. and if he intends a double divorce. A portion of this text was translated on the basis of the superior G:hiriyya manuscript by Susan Spectorsky in Chapters. such as his collection of Ibn Eanbal’s legal opinions128 and especially his Epistle to the Makkans.. by Eerik Dickinson (Reading. al-Ash6ath al-Sijist:n. 127 Note that al-Tirmidh. if he intends a double batta divorce.th is graded. his methodology is ultimately the same as that of al-D:rim. see Ibn al-4al:A al-Shahraz<r. invented the grade of ‘fair’ (Aasan) and confounded generations of Aad. Al-Sh:ﬁ6. fair. who did not transmit any Aad. This is the opinion of Sufy:n al-Thawr. 17–23. restricts his discussion to topics for which he has a prophetic Aad. 2011 Ibid. Ibid. transl. that 628isha’s report that the Prophet said. Aslam. it is a triple. it is only one divorce and he possesses the right to take her back. Each Aad. Rash. 128 Ab< D:w<d. Cairo. 480-1 (3al:q: 2).ths other than this one’. iii. 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.127 or weak Aad. for example. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’.th and the emerging schools of law that is unparalleled among his third/ninth-century peers. says that if he intends a single batta divorce. so the reader learns. namely the discussion of only those legal topics connected to a sound. along with his other short surviving books. it is singular. M:lik says that if he has consummated the marriage.A. it is triple. UK: Garnet. it is a double divorce.126 Al-Tirmidh. 60–90. Mas:8il al-Im:m AAmad (ed. the batta divorce counts as a triple divorce. 2005). is ‘poorly attested and only attributed to the Prophet by MuC:hir b. 1934 or 5). 4 Ab< D:w<d Sulaym:n b. and if he intends a triple batta divorce. in which he Downloaded from jis.352 s co t t c .th and he rarely presents multiple narrations of the same report.th. it can only be a single divorce. apart from his cohorts. (3al:q: 7). l uc as intention: if he intends a single divorce.125 Al-Tirmidh. hardly an evaluation that inspires conﬁdence in its veracity. achieves a level of transparency and harmonization between Aad. An Introduction to the Science of Ead.d Ri@:. for an effort at elucidation. and the Kufans.org at Princeton University on July 17.th scholars through his use of the expression Aasan BaA. 126 125 .. and if he intends a triple divorce.oxfordjournals.th.
181/797) and Wak.132 He clariﬁes his legal methodology in this epistle.ths that form the basis of the opinions of al-Thawr. 46–7. 46. defending the use of Aad. ‘some of which are more sound than others’.th that has a serious defect (wahn shad. 137 Ibid. and al-Sh:ﬁ6.. al-Jarr:A (d. 37.ths in his Sunan. 197/ 812). the Muwa33a8 of M:lik. 52 and 54. D:w<d il: ahl Makka f.¯ D I V O R C E .d) in its isn:d. Ab< D:w<d indicates in the Epistle his familiarity with the (untitled) books of Ibn al-Mub:rak (d. Thal:th ras:8il f.oxfordjournals..134 As for the calibre of the Aad.129 Christopher Melchert. waBf Sunanih in 6Abd al-Fatt:A Ab< Ghudda (ed. 38.136 He is highly critical of reliance upon poorlyattested (ghar. and the MuBannafs of Eamm:d b. 33–4. rather. presumably from books like those of Wak. he also says that 600 of these Aad.. 135 Ibid. Ab< D:w<d provides the number 4800 on pp. ‘Traditionist-jurisprudents and the Framing of Islamic Law’. 134 Ibid.ths are mar:s.org at Princeton University on July 17...133 and he also encourages students to supplement their study of his Sunan by copying Companion opinions. 32–3.ths. 157/774) all relied upon this type of report.. he had taken their juridical opinions and collected the Aad. 133 Ibid. and al-Sh:ﬁ6.6 b. (d. 395–6.6 and 6Abd al-Razz:q.b) Aad.131 After boasting that his Sunan is the most necessary book for students to learn after the Qur8:n. Salama (d. asserts that ‘Ab< D:w<d had [not] gone through the books of al-Thawr.l.). 167/784) and 6Abd al-Razz:q al-4an6:n. He observes that the books of Ibn al-Mub:rak and Wak.138 129 The existence of this short work was brought to my attention by Christopher Melchert’s article.ths in which the Companion link is missing (mursal) with the argument that al-Thawr. 132 Ibid. and collected the Aad. 47. 131 Ris:lat Ab. M:lik. Downloaded from jis.... 2011 . E A D I T H .ths worthy of inclusion is his Sunan and that most of their (prophetic) material is mursal. 6ilm muBtalaA al-Aad.6 have few prophetic Aad. and al-Awz:6.th quoted there.ths137 and claims to have identiﬁed in his Sunan any Aad.135 that are well known (mashh<r).130 While this may be true in many or even most cases. Ab< D:w<d also singles out Sufy:n al-Thawr. after citing Ab< D:w<d’s claim in this epistle to have included the Aad..th (Aleppo: Maktab al-Ma3b<6:t al-Isl:miyya. M:lik. Ab< D:w<d claims to have included approximately 4800 mostly good (B:liA) Aad. M:lik.s ch o l a r s t yl e 353 describes the methodology behind his Sunan.th to back them up’. 130 Ibid. 136 Ibid.’s J:mi6 as being the ﬁnest work of its genre.. 138 Ibid. 1997).
‘You have a greater right to [your child] as long as you do not remarry’. Sunan (3al:q: 9). 140 Ab< D:w<d. Many of his Aad. al-J:mi6 (3al:q: 9). such as ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’. covers and all thirty of his topics are discussed by at least one of the ﬁve other Aad. al-Tirmidh.. Sunan (3al:q: 17). 144 Ab< D:w<d. Sunan (3al:q: 18. and the story of Salama al-Bay:@. a feature that greatly facilitates All of these Aad. 4aA.. al-D:rim. Ibn M:ja.ths have been discussed in the previous two sections. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’. al-Bukh:r.144 Furthermore. he argues for the invalidity of divorce while in a state of anger.oxfordjournals. by touching on the topics of the reprehensible nature of divorce. 141 Anti aAaqqu bi-hi m: lam tankaA. 143 Ab< D:w<d.th collection. Sunan (3al:q: 11). which clariﬁes the volume of wheat needed to feed the Qur8:nically-prescribed ‘sixty poor-folk’ for the expiation of Cih:r. 446 (3al:q: 8). and taking back one’s divorced wife’.142 words other than 3al:q that can effect a divorce. 142 Ibid. 6Ub:da. such as the story of Khuwayla bint M:lik and Aws b. to be justiﬁed. From a purely organizational perspective. divorce. Sunan (3al:q: 1).ths are identical to those found in al-D:rim. in large part. Sunan (3al:q: 13).’s Sunan and al-Tirmidh.143 and the implications of referring to one’s wife as ‘my sister’.. Ibn M:ja. 19). D:w<d. 2011 .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. . 4aA. Sunan (3al:q: 16). and al-Tirmidh.141 He also ventures beyond the books of Muslim.ths that address more precise legal points. Sunan (3al:q: 16). to whom he replied. Ibn M:ja. Sunan (3al:q: 35). ‘Divorce or manumission while angry is invalid’. must be taken earnestly: marriage. 145 Sunan Ab. Sunan (3al:q: 3). Ab< D:w<d is the only Aad. al-Bukh:r. with the exception of ‘Three [actions . Ab< D:w<d. including those with inferior or even defective isn:ds.org at Princeton University on July 17. if done earnestly or jokingly.th scholar in this survey to include all of his divorcerelated topics in his ‘Book on Divorce’. Ab< D:w<d only manages to expand modestly the scope of legal topics on divorce that al-Tirmidh. ii.354 s co t t c .A (3al:q: 10). ‘Three [actions]. 139 Downloaded from jis. Ab< D:w<d acknowledges that he is not certain what the word ghal:q (angry) in the Prophet’s statement means. l uc as Despite his passion for Aad.’s J:mi6. . Ibn M:ja.th scholars under consideration.139 He occasionally provides unique Aad.’s broken Cih:r oath.140 and the episode of an anonymous woman who pleaded eloquently with the Prophet for custody of her child... who quoted the Prophet as saying.]’ which is found in Ab< D:w<d. on the authority of 628isha.A (3al:q: 6).
for identifying which Aad.s ch o l a r s t yl e 355 its use. like the Muwa33a8 of M:lik and 6Abd al-Razz:q’s MuBannaf. however. although he also refrains from relating any Aad. If he swears [that he did not divorce her]. While Ibn M:ja’s book covers basically the same legal territory as the works of al-Tirmidh. Thanks to his concise Epistle to the Makkans.ths that are absent from the other canonical Aad. the witness’ testimony is invalid. 147 I am grateful for the labours of the editor. MaAm<d MuAammad NaBB:r.148 Ab< D:w<d’s ‘Book on Divorce’ has a total of 50 chapters. his act of refraining counts as a second witness against him and the divorce is valid. 148 Ibn M:ja. At 32 topics. In conclusion. Most of the topics he ignores fall under the category of the divorce procedure. Ab< D:w<d follows essentially the same methodology as al-D:rim. in contrast to the 18 chapters in the ‘Book on Divorce’ in Sunan al-D:rim. Downloaded from jis. Ibn M:ja’s two unique legal topics are both grounded upon weak Aad. acquainted with the earliest law books. 2011 5 Ab< 6Abd All:h MuAammad b.th books.d Ibn M:ja al-Qazw. If he refrains from swearing the oath. and 36 in Sunan Ibn M:ja. and probably knew all of the information about juristic disagreements that al-Tirmidh.. Twentyseven of these topics. we can be conﬁdent that Ab< D:w<d was ﬂuent in the legal discourse of his day. the husband must issue an oath.ths.n.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. or Ab< D:w<d and only two of them are unique to Ibn M:ja’s Sunan.’s J:mi6.oxfordjournals.. E A D I T H . Ibn Maj:’s Sunan earns the prize for the greatest number of divorce-related issues among the books under consideration.ths that only he narrates.: limiting discussion to legal topics that can be supported by sound or fair Aad. while not shying away from a few weak and even poorly-attested ones when the only alternative is reliance upon post-prophetic authorities. relates in his J:mi6.146 He addresses the same or a greater number of legal topics on divorce than all of his contemporaries. it distinguishes itself by its presentation of a surprisingly large percentage of unique and frequently weak Aad. save Ibn M:ja and al-Bukh:r.ths on the topic of the oath of abstinence.ths are unique to the Sunan and which are weak in his edition of this book.org at Princeton University on July 17. Yaz.147 For example. and Ab< D:w<d. The ﬁrst of these Aad. Sunan (3al:q: 12). many of which are quite obscure. 146 . 23 in al-Tirmidh. and al-Tirmidh.ths than any of them. and appears to relate a greater variety of Aad.¯ D I V O R C E . are found in the compilations of al-Tirmidh.
Qays. d. While this is not the appropriate place to review his chapters on legal methodology in his 4aA. Sunan (nik:A: 40).’s marriage to two sisters prior to his conversion to Islam. al-Tirmidh. thigh]’. 7. al-Tirmidh. Ibn M:ja. and Ab< D:w<d by endeavouring to derive rulings almost exclusively from prophetic Aad. 21.ths of variable degrees of reliability..’s legal hermeneutics represent a sharp departure from those of his contemporary Aad. al-E:rith and another with al-E:rith b.’s techniques become apparent from a close reading of his Innam: l-3al:q li-man akhadha bi-l-s:q. Sunan (3al:q: 31).A. 2011 . Lucas. 27. He also addresses the three topics pertaining to conversion to Islam that are broached by al-Tirmidh. although he has a special penchant for relating material that most major Aad. 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 al-Bukh:r.356 s co t t c .th is found in each of the following chapters of Ibn M:ja’s ‘Book on Divorce’ in his Sunan: 1. al-E:rith’s eight pre-Islamic wives. 151 Ibn M:ja.oxfordjournals. Sunan (3al:q: 25).th scholars.ths found in the 4aA. see Scott C.l al-Bukh:r.As of Muslim and al-Bukh:r. al-J:mi6 (nik:A: 33). 154 For a detailed analysis of this topic.. Ibn M:ja. 17. Ibr:h. and al-Bukh:r. Sunan (3al:q: 25).. 150 149 Downloaded from jis. Sunan (nik:A: 40). Sunan (nik:A: 39). 22. 152 Ibn M:ja. He quotes AAmad b. Ism:6.org at Princeton University on July 17. 36. 246/860–1) as saying that the correct form is Qays b. al-J:mi6 (nik:A: 34).151 Qays b.ths in Ibn M:ja’s Sunan.. like al-Tirmidh.. l uc as The second Aad.149 Like so many weak Aad. Salama’s ten-wife household. 13/3 (2006): 289–324. 6 Ab< 6Abd All:h MuAammad b. ‘The Legal Principles of MuAammad b. al-Tirmidh.152 and Ghayl:n b. Ab< D:w<d has one narration with Qays b. and Their Relationship to Classical Salaﬁ Islam’. Ab< D:w<d..m (al-Dawraq. which revolve around the anecdotes of Fayr<z al-Daylam. 30–32.153 Overall. At least one weak Aad.. 19. al-E:rith. and Ab< D:w<d.th critics refrained from including in their books. 11–13. Al-Bukh:r. 24. Ism:6. 153 Ibn M:ja.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. Islamic Law and Society. 6. 16. Ibn M:ja follows the same basic methodology of al-D:rim.l al-Bukh:r.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.
156 While al-Bukh:r. al-Easan al-BaBr. 6Ikrima.d b. said. 6Utba. about the Cih:r oath executed by a slave. Ab. Jubayr (b.n). MuAammad b. 156 155 Downloaded from jis. discusses a topic without relating a single prophetic Aad.oxfordjournals. and an impressive list of twenty-three Successors.ths that have no obvious connection to divorce. 6Umar). al-Q:sim (b. al-Q:sim b. b.155 Al-Bukh:r. al-Bukh:r. including Sa6.s ch o l a r s t yl e 357 ‘Book on Divorce’. x. al-Bukh:r. One of the clearest cases of al-Bukh:r.l (b. and 6Amr b. al-J:mi6 (3al:q: 19.org at Princeton University on July 17. E A D I T H .¯ D I V O R C E . 6Abd All:h b. Ab. Jubayr.. 2) shedding light on a divorcerelated topic by means of Aad. al-Musayyab. and Ibn M:ja.th and grades them as Aasan ghar.158 al-Bukh:r.th is the Cih:r oath. Bakr). and al-Sha6b. F:w<s. Uways) said to me: M:lik related to me that he asked al-Zuhr. 157 Ibid.A (3al:q: 9).ths that none of his fellow compilers narrate.b. 6Abd al-RaAm:n (b.. Yas:r. al-E:rith b. and Aasan.th that clearly states. He also reports that the protagonist’s name is Salm:n in one version and Salama in the other two. 6Uthm:n. Hish:m).. follows this verse with his observation that the opinion that a woman cannot be divorced prior to marriage is afﬁrmed by narrations from 6Al. MuAammad b. ‘divorce is only valid if you are married to (lit. 20). FatA al-b:r. Mu36im). E:rim (al-Azdi). 6Abd All:h b. 62mir b. and 3) relating Aad. A second case in which al-Bukh:r. Sa6. J:bir b. Ab< Bakr 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. 1–4) before writing: Ism:6. al-Zubayr. all of whom narrated a prophetic Aad. 4aA. Aasan ghar. ShurayA.b BaA. al-Eusayn (Zayn al-62bid. 4aA.. Sulaym:n b..). names in support of this position are 6Urwa b. ‘It is like the Cih:r of a Qur8:n 33. does not explicitly claim that consensus exists on this issue.. Sa6d (al-Bajal. narrates three variants of this Aad.A (3al:q: 23). Unlike al-Tirmidh. 158 al-Tirmidh.d b. Muj:hid. N:ﬁ6 b. Ab:n b. These techniques include: 1) relying solely upon postprophetic authorities for certain topics. Ab< D:w<d. begins his discussion of this topic with Ibn 6Abb:s’ observation that God puts divorce after marriage in the Qur8:nic verse. 6Abd All:h b.A.157 Perhaps due to the lessthan-sterling isn:d of Salama al-Bay:@. 478 (3al:q: 9).). avoids it and instead begins his chapter by reminding the reader of the Cih:r verses in the Qur8:n (58. 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’. Al-Zuhr. 6A3:8 b. The remaining Successors whom al-Bukh:r. 6Al.’s story. Ab. 6Ubayd All:h b. Rab:A.’s reliance on post-prophetic authorities is the topic of premarital divorce. Ka6b (al-QuraC. own) the woman’. Mas6<d). 6Abd al-RaAm:n (b. ‘Believers. S:lim (b. 2011 . Zayd. 49.
e. 2011 .’s exegesis on the meaning of one of the crucial Qur8:nic verses on the Cih:r oath—material that al-Tirmidh.161 Note the absence in this case of both prophetic and Companion reports and the presence of al-Bukh:r..na yuC:hir<n min nis:8ihim thumma ya6<d<na li-m: q:l< fa-taAr.. is refuting the reading adopted by the G:hir.162 For example. quoting Ignaz Goldziher.org at Princeton University on July 17. The second technique al-Bukh:r.ths in chapters on divorce topics that have no transparent relationship to this topic but share a common similarity that renders them useful. This reading is superior since God (Exalted) does not lead (His creatures) to wrongdoing (munkar) and false speech (qawl z<r).A have Easan b. ‘The fast [of expiation] is two months’.h. but that others have Easan b. is providing his interpretation of the verse. ‘An Ascetic Vow or an Unseemly Oath?’ 117. He also includes the opinions of al-Sha6b.358 s co t t c . 4aA. al-Bukh:r..163 Likewise.A (al-i6tiB:m bi-l-kit:b wa-l-sunna: 12). ‘Legal Principles’.. Ibn Eajar notes that all three men share the same opinion concerning the Cih:r of a slave. 25).s held that one only had to perform the expiation for every other Cih:r oath. 304–8.ths in his J:mi6. and Eamm:d (b. Easan b. instead of his preferred reading of ‘and then if they violate what they said’ (i. uses is to include Aad. x. Qat:da. but which al-Bukh:r. Al-Bukh:r.. FatA al-b:r. 159 Downloaded from jis. who does not appear anywhere else in the text. 162 al-Bukh:r. see Hawting. regularly interjects between Aad. x. 4aA.A. 3]160 means the same as ‘f. and (in the case of this verse). The G:hir. l uc as free person’. 3). al-Eurr159 said. For a discussion of the controversy over the term tashb. Eayy and still others have just Easan (which by convention would be al-Easan al-BaBr. The G:hir. in his Ibn Eajar reports that most manuscripts of al-Bukh:r. al-Eurr. 50–2. it is meaningless.s.oxfordjournals.:] In the Arabic language. Sulaym:n) in support of this position. 545 (3al:q: 23). occasionally puts front and centre in his 4aA. ‘(those men) who violate what they said’. 1971). Ibr:h. wa-l-l:dh. 163 al-Bukh:r.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. 160 al-Bukh:r.’s 4aA. relates twelve Aad. break the Cih:r oath they uttered).ru raqaba (58. ‘The Cih:r oaths of a free man and a slave against a free woman and a slave woman are identical’. the expression ‘li-m: q:l<’ [Qur8:n 58.. [al-Bukh:r. Their Doctrines and Their History (Leiden: Brill.-m: q:l<’.. Ab.m al-Nakha6. see Lucas. the best understanding is. calls this technique ‘comparison’ (tashb. 6Ikrima said.s of the verse thumma ya6<d<na li-m: q:l< as ‘and then they utter the Cih:r oath again’.A (3al:q: 24.h) in his book on legal methodology and some Muslim scholars have argued that ‘comparison’ is just another word for analogy (qiy:s).). because Cih:r is only for (free) women’. and M:lik said. 161 Ibn Eajar explains that al-Bukh:r. ‘If a man issues a Cih:r oath on his slave girl. 544 (3al:q: 23). FatA al-b:r.
165 Al-Bukh:r. also places two statements in 6Al. After his citation of a fragment of the famous Aad..-l-ighl:q wa-l-kurh wa-l-sakr:n wa-l-majn<n—wa amrihim:—wa-l-ghala3 wa-l-nisy:n f.th.th to the topic of the missing husband. Rab:A.’s string of adverse conditions under which a divorce can occur prepares the reader for multiple opinions from a variety of authorities. Ab.oxfordjournals.s ch o l a r s t yl e 359 chapter on the ‘missing husband’ (mafq<d).org at Princeton University on July 17. 2011 .ths in the same chapter.167 Al-Bukh:r. and his wife leaves the house.164 Frequently. but if she does not. divorce. al-J:mi6 (aAk:m: 35). al-Bukh:r. you are decisively divorced’. The complete story can be found in extra-legal chapters of al-Bukh:r. considered the expression. This Aad.. Sunan (luq3a: 2). ‘Actions are by intentions’. under compulsion.166 that the Kufan Ibr:h.A (magh:z. and that al-Zuhr. See also Spectorsky. 4aA. to count as a divorce if that is what the husband intended. al-Bukh:r. We learn that 6Uthm:n and Ibn 6Abb:s considered the divorce enunciated by a drunken man to be valid. Di6:ma considered a conditional divorce valid if the condition was fulﬁlled. she is divorced decisively. Sunan (luq3a: 1).th is found in Muslim.¯ D I V O R C E . apostasy. ‘If you leave the house. Chapters. Ibn M:ja. the Makkan 6A3:8 b.m al-Nakha6. uses both strategies of citing post-prophetic reports and unexpected prophetic Aad. Ibn Mas6<d. 4aA. intoxicated or insane. Al-Bukh:r.: 80) and Muslim. E A D I T H .. if that is what the man intended. presents the opinions of Ibn al-Musayyab. and al-Zuhr.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. 32–4. and other things done accidentally or in a state of forgetfulness’. al-Bukh:r. 4aA. considered valid the divorce utterance issued in one’s (non-Arabic) native tongue. al-Tirmidh.A (3al:q: 11). None of these scholars links this Aad.A (tawba: 9). Ab< D:w<d. 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 Downloaded from jis. there is no divorce. 4aA. with which he inaugurates his entire 4aA. Sunan (3al:q: 18). This same expression appears in a very long story about Ka6b b.-l-3al:q wa-l-shirk wa-ghayrih. also reports that al-Easan al-BaBr.A. 165 B:b al-3al:q f. 166 The example Ibn 6Umar provides is a man who says. Ibn 6Abb:s.A (3al:q: 22). recounts a string of opinions and stories from a small group of Companions and Successors without any isn:ds. M:lik’s repentance for avoiding the T:b<k campaign.’s mouth that are elevated to the Prophet in other books: ‘The Pen al-Bukh:r. 4aA. as a divorce. ‘Go stay with your family’. considered the expression ‘You are not my wife’.. A vivid example of this practice is his chapter on ‘Divorce while angry. before narrating a Aad. 167 al-Bukh:r. Sunan (3al:q: 11). a fragment of which is cited by Ab< D:w<d. that Ibn 6Umar.A (luq3a: 1). and the Basran Qat:da b.
Sunan (3al:q: 15). al-Bukh:r.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.l. al-J:mi6 (3al:q: 15).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 (3al:q: 8). puts this sentence in the mouth of the Prophet. another as al-Jawniyya. l uc as (recording one’s bad deeds) is raised in three cases—the insane person prior to the return of his reason. Even though it appears in three of the additional books under consideration in this article.oxfordjournals.’s ﬁnal effort to reach a broader array of legal topics without relying upon Aad. Al-Tirmidh...th in which the Prophet identiﬁes a ‘ruleoccasioning factor’ (6illa).ths. Sunan (3al:q: 15). FatA al-b:r.A. there is no indication that the compilers of these books consciously linked it to the topic of divorce uttered by an insane man. explicitly identiﬁes ‘the man from Aslam’ as M:6iz.. Ab< D:w<d. ‘Every type of divorce is permissible. and the sleeper prior to his awakening’. Al-Bukh:r. 171 This man is named as M:6iz b. suggests that divorce committed while intoxicated or insane would likewise be invalid. Sunan (3al:q: 14). ‘Are you insane?’ Since these Aad.ths with inferior transmission histories is simply to narrate reports that few of his contemporaries seem to have acquired. In both versions cited here. Sunan (Aud<d: 1). FatA al-b:r. 170 This Aad. M:lik al-Aslam. The ﬁrst Aad.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.360 s co t t c .A (3al:q: 3). xiv. that can be applied by jurists beyond the immediate case in which it appears.. al-Bukh:r.168 and. in versions of this story outside of al-Bukh:r.. and al-Tirmidh. 2011 . since it is based on a Aad. 81 (Aud<d: 22). al-Bukh:r. ‘God disregards that which [members of] my community say to themselves and refrain from acting upon or divulging to anyone else’. the youth prior to discernment.ths indicate that the Prophet would not have stoned the fornicator from Ban< Aslam had he lacked his rational capacity. x. He appears to have had special access to reports about the story of Umayma bint Shar:A. 487 (3al:q: 11). Sunan (Aud<d: 16). This is a good example in which ‘comparison’ really is qiy:s. 168 Downloaded from jis. insanity.. 169 Ibn Eajar. al-J:mi6 (Aud<d: 1).l. al-Tirmidh. 4aA. and the third as Umayma bint Shar:A.org at Princeton University on July 17.’s 4aA. none of which has anything explicitly to do with divorce. 172 There is considerable confusion as to this woman’s name. the ﬁnal question that the Prophet asks prior to implementing the punishment of stoning is. Ab< D:w<d.th is the prophetic statement that.169 But this is not all. Ibn Eajar.th in Ibn M:ja. in his commentary. in one report she is described as Bint al-Jawn. proceeds to recount three Aad. After touching on a variety of additional topics in this chapter. see al-D:rim. except that of the insane person (ma6t<h)’.
. 4aA. i. However. Sunan (3al:q: 16).th initially appears in Bal:t: 18).ths. largely on the basis of juxtaposing three prophetic Aad. J. 178 Ibid. and he is silent on the topics of child custody.ths are found in the books of al-D:rim. he actually covers only 23 topics that his fellow Aad. I may have unintentionally inﬂated the number of divorce topics covered by al-Bukh:r.. 204. 173 Downloaded from jis.th does not actually refer to the . 8 vols. presumably since it is only for one month rather than the fourmonth . as well as his vast collection of Aad.. Ibn M:ja includes a variant of this story.l:8 to the story of the Prophet falling off of his horse and breaking his leg.A (3al:q: 3). counting conversion. Sunan (3al:q: 18).179 In other words. See A. (3al:q: 43). appears to distinguish between the dower in the case of adultery or prostitution (baght) and an invalid marriage (nik:A f:sid).A (3al:q: 21.173 Al-Bukh:r. this Aad. ‘baghiyyun’.177 divorce by pointing. Muslim and al-Bukh:r.As.178 and the ruling that women are not allowed to conceal that they are pregnant at the time of divorce. Note that Ibn Eajar declares that this Aad.A (3al:q: 52). which he recounts in numerous places throughout his 4aA.A (3al:q: 24).org at Princeton University on July 17.l:8 ‘the jurists discuss’.’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. J.176 It is paradoxical that the two strictest Aad... 1936). Muslim. 179 Ibid. a woman’s right to leave the house during al-Bukh:r.¯ D I V O R C E . Ab< D:w<d.A (3al:q: 51). discuss the least and second-greatest number of legal topics on divorce in their respective 4aA.oxfordjournals. 4aA. but they are not linked in any manner to the topic of the invalid marriage that results in an automatic divorce. 174 al-Bukh:r..th scholars. 4aA.A.’s willingness to use post-prophetic material and ‘comparison’. Ab< D:w<d. 4aA. Brill. enabled him to transcend the limits dictated by purely sound Aad. Al-Bukh:r. only al-Bukh:r.l:8 regulated by the Qur8:n. is unique in linking the oath of . Concordance et Indices de la Tradition Musulmane (Leiden: E. E A D I T H ... such as divorce prior to consummation.A (3al:q: 10). 176 al-Bukh:r.ths addressing the seven (or.th scholars investigate.s ch o l a r s t yl e 361 whom the Prophet subsequently divorced via a messenger rather than face-to-face. 175 al-Bukh:r.. 2011 . 4aA..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. 4aA. Wensinck.175 Finally.ths in which the dower for adultery and prostitution is unambiguously prohibited with al-Easan al-BaBr. since he alone among his contemporaries addresses eight topics. These Aad. eight) categories of divorce law. 177 al-Bukh:r. and al-Tirmidh.
A is distinguished by its diversity of topics. since his ‘Chapter on divorce while angry.’ actually covers numerous topics.. the validity of divorce uttered in a language other than Arabic. several of which are unaddressed in the other ﬁve books under consideration. or the consequences of the husband’s expression.’s breadth of legal topics.362 s co t t c . Ibn M:ja. shies away from both sub-par Aad.ths. a task facilitated by the modern editors of these books.. ‘I don’t have a wife’.org at Princeton University on July 17. intoxicated. These topics seemed highly random and each one appeared to derive from a tangled web of narrations For example.. I assembled a list of 45 legal topics that I derived from the six Aad. in consultation with the early proto-madhhab law books of the third/ninth century and Susan Spectorsky’s Chapters on Marriage and Divorce. etc. Muslim. none of the other ﬁve books addresses the topics of divorce while intoxicated. The ﬁrst was the surprising fact that only six legal topics were covered by all of the Aad. Ab< D:w<d.180 Even though al-Bukh:r. and whether a man with ten wives must divorce six of them upon his conversion. l uc as the daylight hours of her waiting period.ths among al-D:rim. Two discoveries initially emerged from this analysis. and al-Tirmidh.th scholars of the third/ninth century in order to learn more about their compilers’ methods of jurisprudence. several factors made a comparison of their books complicated. his 4aA. Then I had to track down topics related to divorce found outside of the six scholars’ ‘Books on Divorce’.th scholar addressed. 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. under compulsion. All of these topics can be found in the early ﬁqh books.th scholars under examination.oxfordjournals.th books in order to evaluate the range of topics each Aad. as well as its compiler’s creative utility of narrations that bear little explicit relationship to the legal topic under discussion.ths and the legal opinions of most of the eponyms of the Sunni schools of law. and early postprophetic authorities. Finally. CONCLUSIONS This project began as a simple comparative exercise between the books of six famous Aad. It is also possible that I undercounted al-Bukh:r. insane. 180 Downloaded from jis. the validity of conditional divorces. al-Bukh:r. Despite the common allegiance to and profound knowledge of Aad. 2011 . Aad.
. whereas Ab< D:w<d and al-Tirmidh. ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from (enjoying) the scent of Paradise’.ths. except that of the insane Only al-Tirmidh.b.ths that met his critical standards. al-Bukh:r. narrates this weak Aad. and his skill at ﬁnding obscure Aad.¯ D I V O R C E . his technique of ‘comparison’. save al-D:rim. and their accumulation of a massive trove of transmitted materials. True. with the exceptions of al-D:rim. all endeavoured to base their legal rulings upon sound prophetic Aad. He evaluates its isn:d as ghar. Secondly..ths. 182 al-Bukh:r.th scholars adopted three methodological approaches to the articulation of Islamic law in their books. Muslim does not even mention the topic of khul6 in his 4aA. laysa isn:duhu bi-qaw. Ab< D:w<d. or ‘The women who perform khul6 are hypocrites’.’s method of relying upon Companion and Successor reports instead of prophetic Aad. to double the number of divorce-related topics addressed by Muslim. Ibn M:ja. 181 Downloaded from jis..A (buy<6: 4). and Muslim may have been more khul6-friendly than their contemporaries. 4aA. one searches in vain for dramatic differences between their personal legal opinions.A (nik:A: 54).182 Likewise. al-J:mi6 (3al:q: 14).. also advocate the impermissibility of a woman to demand that her suitor divorce his current wives as a stipulation in her marriage contract. al-J:mi6 (3al:q: 11).ths and subsequently limited himself to a mere twelve topics on divorce. based on the analysis of the presentations of these six universal topics. Muslim restricted his 4aA.org at Princeton University on July 17.s ch o l a r s t yl e 363 of a discrete episode during the Prophet’s lifetime..181 but. Ab< D:w<d. The second discovery. Muslim and Ibn M:ja were frequently willing to state their personal legal opinions. especially the episode of F:3ima bint Qays.A. al-Bukh:r. Despite these six scholars’ distinct methodological differences. is there any practical difference whether 6Al.oxfordjournals. allowed him to address approximately the same number of topics as Ibn M:ja and Ab< D:w<d. Finally. First. 4aA. E A D I T H . 2011 . was that al-D:rim. most of whose protagonists were named women and men. four of which do not even appear in the ‘Book on Divorce’. for they do not claim that the Prophet said. and Ibn M:ja. or the Prophet said. ‘Every type of divorce is permissible. then again. and al-Tirmidh. This strategy enabled all of them.. Muslim. appeared more reticent to do so. al-Tirmidh.A solely to what he considered to be sound prophetic Aad. All of them. freedom from overt madhhab loyalty. al-Bukh:r.th. although he only overlaps with either of them in 23 cases. but were willing to supplement their meagre ﬁndings with useful prophetic material related through inferior chains of transmission. al-D:rim.. Sunan (3al:q: 2). The most signiﬁcant conclusion from this analysis is that the Aad.
emerges from this group of Aad. the classic reference works of Aad. 184 For a quantitative analysis of Ibn Ab.ths they relate. The Origins of Islamic Jurisprudence. and in the case of al-Tirmidh. Herbert Berg. is also indispensable.185 There must Only 29 topics on divorce are addressed by three or more of the Aad.org at Princeton University on July 17.ths in the early centuries of Islam. 185 A most useful summary of Western scholarship on this topic is found in Motzki. al-D:rim. This stunning paucity of divorce topics supported by Aad. Shayba in their MuBannafs and the approximately 125 topics in SaAn<n’s Mudawwana.th scholars in this study. the hallmarks of Aad. Leiden: Brill. See also Motzki. Muslim only discusses 12 topics related to divorce. His essay. The two MuBannafs and Mudawwana rely primarily on post-prophetic authorities and include thousands of reports attributed to Companions. ‘Where Are All the Legal Ead. 2011 . while his junior contemporaries perform the service of carefully organizing.ths acceptable to critical Aad.364 s co t t c . 1–49. Shayba’s MuBannaf. Origins of Islamic Jurisprudence. ‘The Question of the Authenticity of Muslim Traditions Reconsidered: A Review Article’. this aggregate remains signiﬁcantly smaller than the 250–300 topics covered by 6Abd al-Razz:q and Ibn Ab.ths remains Joseph Schacht. 2003).th scholars as a modestly sophisticated jurist.oxfordjournals.th scholars under consideration for this article were simply attempting to articulate Islamic law with the wrong materials.th-scholars as uninspiring jurists. in Method and Theory in the Study of Islamic Origins (ed.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. 211–58. Lucas.. if we shift our gaze from their personal jurisprudence to the actual Aad. The Origins of Muhammadan 183 Downloaded from jis. Ibn M:ja comments on 32. Even if I have been conservative in my identiﬁcation of only 45 divorce topics among these six books. in the case of the latter book. al-Tirmidh.184 One could argue that the six Aad. touches on 16.ths?’ in Islamic Law and Society. the second/eighth-century jurist M:lik.ths raises new questions concerning the widely-accepted thesis in the West of a massive forgery of Aad. considers 31. we may.183 Only al-Bukh:r. While it might be tempting to dismiss these six Aad.th scholars were of very limited utility for the articulation of certain ﬁelds of Islamic law in the third/ninth century.ths that have adorned the bookshelves of Sunni jurists for the past millennium. and al-Bukh:r. l uc as person’? With the notable exception of the topic of the waiting period of the triply-divorced woman. covers 24. The classic statement on the massive forgery of Aad. Successors and. evaluating. forthcoming. Ab< D:w<d mentions 30. see Scott C. advance a bold claim: prophetic Aad.
199. al-J:mi6 al-Bagh..187 Another possibility is that all six Aad. Muslim Studies. The fact that al-D:rim. 149). 188 al-Shayb:n.. Islamic Methodology in History (Islamabad: Islamic Research Institute. 27–84. apocalyptic. ii.s may have disliked them on principle. 2011 Jurisprudence (London: Oxford. There must also be a reason why so many Aad. see Origins. E A D I T H .ths criticized by Goldziher and Fazlur Rahman fall under extra-legal classiﬁcations.r. since the compilers possessed the requisite skills to make forgeries with sound isn:ds. al-Bukh:r.¯ D I V O R C E . and al-Tirmidh. 213. Schacht considers all prophetic Aad. see Goldziher. 187 Many of the Aad.th compilations should caution us against the twin errors of underestimating the critical selectivity of these Aad.r is devoid of Aad.)..ths not primarily because early Eanaf.ths discussed theological.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. leaving our six compilers with relatively few divorce Aad.edu Downloaded from jis.th scholars and exaggerating the utility of prophetic Aad.’s teachings. 89–125.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. and claims that ‘the bulk of the legal traditions from the Prophet known to M:lik originated in the generation preceding him.. Is it now safe to propose that al-Shayb:n. Ibn M:ja. along with most Successor reports.ths for articulating Islamic law in the wake of al-Sh:ﬁ6.186 One possibility is that most of the forged Aad. d.’s al-J:mi6 al-Bagh.ths and Companion reports. 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. and Fazlur Rahman. .ths from which to choose. 186 A similar argument is advanced by Motzki. Ab< D:w<d.oxfordjournals. n. Muslim.th scholars truly were such critical compilers that each one of them was left with materials covering barely two dozen legal topics on divorce. to be ﬁctitious (p. ‘You are divorced whenever you wish’ and ‘You are divorced however you wish’.ths with inferior and at times outright defective isn:ds appear in these canonical books.arizona. 178). but rather due to the sheer absence of Aad.org at Princeton University on July 17. 1975 (1950)).th books if the early 6Abbasid period was awash in Aad. although Ibn M:ja’s relaxed standards would seem to contradict this hypothesis. address such a modest and random array of divorce topics in their Aad.th forgers.ths and Aad. 240–4. and sectarian topics rather than legal ones.ths that shed light on the difference between the statements. 189 Ibid.
37–41. 60. 14–17. just the chapter number is provided. D:w<d al-Tirmidh. AAk:m: 21 Total(172) 16 47 12 37 36 24 Downloaded from jis.47.A 4aA. Nik:A: 32.oxfordjournals. T: al-Tirmidh. Nik:A: 27. 36.. Buy<6: 4..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’.A Divorce chapters Fal:q: 1–11. 43. If the indicated chapter is found in the ‘Book on Divorce’. Li6:n190 Fal:q: 1–7.A Muslim Sunan Ibn M:ja Sunan Ab. al-Bukh:r.51–53. 39. al-J:mi6 al-4aA. Nik:A: 39 Fal:q: 1–17. that book’s title will be included in the citation. l uc as APPENDIX Table 1: Chapters on Divorce Used in this Study Book Sunan al-D:rim. If it is in any other book. Abbreviations: D: al-D:rim.16) (AD:8) (T:15) (D:1) (B:1. 40. M: Muslim. al-J:mi6 al-4aA. Nik:A: 54 Fal:q: 1–8.org at Princeton University on July 17. 9–32. 32–45.33. so the ﬁfth chapter of al-Tirmidh. 6Itq: 2. 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..13–15.3) (AD:4) (T:1) (D:4) (B:4.35. 34.2) (M:1) (IM:184.108.40.206–22.’s ‘Book on Marriage’ would read (T: nik:A: 5).366 s co t t c . 191 190 .19–30. Nik:A: 17... AD: Ab< D:w<d. B: al-Bukh:r. IM: Ibn M:ja. AAk:m: 22 Fal:q: 2–29.49 Fal:q: 1–11.
s ch o l a r s t yl e 367 8 If a man does not inform anyone about his divorce.19) (AD:11) A divorce issued in jest counts (IM:13) (AD:9) (T:9) Implications of calling one’s wife ‘unlawful’ (B:7.42) (M:6) (IM: 10) (AD:39.oxfordjournals.45) (IM:1. 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. 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) .¯ D I V O R C E .8) (M:3) (IM:28) (Aar:m) Implications of referring to one’s wife as (B:10) (AD:16) ‘my sister’. E A D I T H . 40) (T:5) (D:11) (B:39) (M:8) (IM: 6.7) (AD:47) (T:17) (D:14) (M:7) (IM:9) (AD:41) Downloaded from jis. 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.org at Princeton University on July 17.32) (AD:6) (T:7) (D:16) (IM:aAk:m:22) (AD:26.5) divorce (AD:5. 38) Words other than 3al:q that can cause divorce (B:6) (IM:18.35) (T:aAk:m:21) Taking one’s wife back after a revocable (D:2) (B:44.
org at Princeton University on July 17.r does not count as a divorce if the woman chooses her husband 38 A manumitted married slave woman has the right to takhy.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.oxfordjournals.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.20) (B:21) (M:5) (IM:24) (T:21) (B: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.r 37 Takhy. 32–36) (M:li6:n) (IM:27) (AD:27–29) (T:22) (D:9) (B:23) (IM:25–6) (AD:17) (T:19.20) (IM: nik:A:60) (AD:23. 2011 (D:nik:A:39) (B:25–30.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 .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 .368 s co t t c .
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