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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.
ths with isn:ds pertaining to divorce are found in M:lik’s Muwa33a8 and only three are present in al-Shayb:n. 52–9. 65. Scotland: Madina Press. 242–72. Chapters. Qur8:n 2. transl.’s book. allowed the couple to remarry after the li6:n procedure. discusses at some length takhy.) 21 Spectorsky. Aisha Bewley (Inverness. Shayba. whereas Ab< Y<suf denied such a possibility. The Muwatta of Imam Muhammad. The text also reports that al-Shayb:n.24 Finally. 24 While Spectorsky does not count the effects of conversion and apostasy among the seven major divorce topics. ‘Book on Divorce’ (3al:q). Mohammed Abdurrahman and Abdassamad Clarke (London: Turath Publishing. ma6a sharAih al-N:ﬁ6 al-kab. with the exception of mutual imprecation. al-Muwatta of Imam Malik ibn Anas: The First Formulation of Islamic Law. and MuAammad al-Shayb:n. 59.oxfordjournals. 2011 20 Spectorsky. separates them. 49.’s (d. Note that only ﬁve prophetic Aad. ‘Various other topics’.22 Al-Shayb:n.r.r and the oath of sexual abstinence in the ‘Book on Divorce’ and mutual imprecation in the ‘Book on Gih:r’. 2004). al-J:mi6 al-Bagh. 191–243. Near the end of this section.org at Princeton University on July 17. 1986). 228. . (All Qur8:nic citations in this article are from M. and ‘Book on Waiting Periods’.S. 33. 242–3. al-Muzan. it is no sin for either of them if the woman ransoms herself’.r (Beirut: 62lam al-Kutub. YaAy: al-Layth. . 23 MuAammad al-Shayb:n. 50–2. Chapters.. while the recension of al-Shayb:n. 25 Note that al-Muzan. Chapters.¯ D I V O R C E . 264/878) decision to divide the divorce-related topics in his MukhtaBar into the ‘Book on Female-initiated divorce’.20 7. Spectorsky. she mentions them under her subheading.. al-J:mi6 al-Bagh.’s recension. . this counts as a single divorce in which the husband does not have the right to take back his wife during her waiting period. fall into these seven categories. covers all of these categories in some depth.A.s ch o l a r s t yl e 329 6. indicates the signiﬁcance of these categories in his vision of Islamic law. al-Shayb:n. 221–43.23 Most of the chapters on divorce in the aforementioned MuBannafs of 6Abd al-Razz:q and Ibn Ab. 22 M:lik b. although these books also explore the effects on the marriage bond of conversion to and apostasy from Islam. transl. The waiting period (6idda). along with SaAn<n’s Mudawwana. 4. ‘Book on Gih:r’. 2001). If he does so.r. states that the li6:n procedure does not result in the dissolution of the couple unless the q:@. ibid. Qur8:n 2. 2004).25 Downloaded from jis. The female-initiated divorce (khul6).’s recension of M:lik’s Muwa33a8 has at least two chapters on all seven of these categories. covers all of them except the Cih:r oath.21 This framework works very well with most of the early ﬁqh books that have survived. E A D I T H . 2. Anas. and devotes special attention to a dizzying array of divorce statements. ‘ . 234 (widow). 229. Abdel Haleem’s The Qur8:n: A New Translation (Oxford.
CASE STUDIES: UNIVERSAL TOPICS Downloaded from jis. M. the effect on inheritance of the man who divorces his wife during his terminal illness.ths report that Ibn 6Umar divorced his wife while she was menstruating. while Ab< D:w<d places it in Chapter 4. and the right of a woman whose husband has gone missing (al-mafq<d) to dissolve her marriage in order to remarry.org at Princeton University on July 17.ths are repositories of the earliest Muslim debates. The story fragments from here. and that the Prophet ordered 6Umar to tell his son that he must take back his wife. These topics include the validity of conditional divorce statements.27 These Aad. 6Umar’s (d. with one variant having the Prophet granting Ibn 6Umar the right to divorce her after she has puriﬁed herself from menstruation..330 s co t t c . Chicago: George Allen and Unwin. but also. 27 Ibn M:ja puts it in the second and third chapters.26 1 The Sunna Divorce: The story of Ibn 6Umar’s mistimed divorce Al-D:rim.ths that are often recounted through multiple channels of transmission. Muslim Studies (ed. al-Bukh:r. since Western scholars have long argued that Aad. This ﬁnding is not unanticipated. resulted in divergent reports that correlate to juristic disagreements. broached in their books. 1971 (1889–90)). Despite this general awareness. and. and al-Tirmidh. with the exception of al-Bukh:r.th scholars from al-D:rim. there were several contentious topics among the early jurists that none of the Aad. ii.. were well aware of the major legal debates that had been brewing since the second/eighth century.oxfordjournals. in several cases. S. We shall now examine the six legal topics addressed by all of the Aad. This quality inevitably facilitated memorization and transmission of each episode. 19. in a second variant. 73 or 74/692–3) poorly-executed divorce.. 2 vols.. that his father reported this action to the Prophet. to al-Tirmidh. along with its concomitant legal implications. Muslim. Stern. postponing his right to divorce until the time when she has puriﬁed 26 ‘[The corpus of Aad. all open their ‘Books on Divorce’ with the tale of 6Abd All:h b.th scholars under consideration. l uc as This study demonstrates that the Aad.th scholars under discussion and then analyse the methodology of each scholar individually.th books under analysis. Ignaz Goldziher. 2011 Only six legal topics concerning divorce can be found in all of the Aad.th] contains invaluable evidence for the evolution of Islam during the years when it was forming itself into an organized whole from powerful mutually opposed forces’. . Each of these topics is afﬁliated with a unique cluster of narrative Aad.
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. and if he wished.d b. ‘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). says.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. 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. ‘It is unlawful to divorce a menstruating woman without her consent and if he disobeys this rule. All of these Aad. 4aA. 31 Muslim.oxfordjournals.A (3al:q: 1). which is the title given to the chapters in which it initially appears in all six Aad.28 Downloaded from jis.ths contradict what Ab< l-Zubayr said. This is also the case of what MuAammad b. Aad. Zayd b. and that he has two witnesses’. Al-Bukh:r.org at Princeton University on July 17. He alone mentions and leaves unresolved the debate 28 Sunan Ab. his divorce counts and he is to be ordered to take back his wife’. Ab< l-Zubayr. 30 Ibid. Anas b. Aslam.n. he could divorce her. then. E A D I T H . had another period. A similar report to the N:ﬁ6 al-Zuhr. that the divorce counts as one of his (two) revocable divorces. in one of his rare legal opinions.31 Al-Tirmidh. ..¯ D I V O R C E . 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). The transmission from Ibn 6Umar (S:lim and N:ﬁ6) al-Zuhr.th compilations. S. al-Mu6tamir) via Ab< W:8il all relate this Aad. and links it to ‘the practice (6amal) of the scholars among the Companions of the Prophet and others’.. if he wished.r. prior to making a decision whether to divorce her or keep her. namely that Ibn 6Umar’s divorce did not count as one of the two revocable divorces. Ab< D:w<d elucidates the tangled web of transmissions of this story: Y<nus b. he could keep her. D:w<d. and ManB<r (b.th was transmitted via Ibn 6Umar al-Easan 6A3:8 al-Khur:s:n. on the authority of Ibn 6Umar. says that the Prophet ordered Ibn 6Umar to take her back until she was free from menstruation. (3al:q: 2). 29 al-Bukh:r. 2011 Ibn 6Umar’s story became inseparable from the ‘sunna divorce’. 2:442 (3al:q: 4). Sa6. uses the identical deﬁnition of the sunna divorce (without mentioning the witnesses) as al-Bukh:r. Jubayr. 4aA. Jubayr. 6Abd al-RaAm:n related from S:lim. and then was free from menstruation again.29 and. in the following chapter. states. The primary lesson from this story is that a man must take back his wife if he divorces her during her menstrual period. In his Sunan.30 Muslim.A (3al:q: 1).
Ibn Sa6d. 35 al-D:rim. 204/820) and Ibn Eanbal.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 (3al:q: 2.. ‘Tell (Ibn 6Umar) to take her back and then divorce her when she is free from menstruation or pregnant’. 4aA.z al-BaA:ba. 6Al.r (ed. 2001). Sam<8al) al-QuraC.th as a limit upon the husband’s unfettered right to divorce. 11 vols. 2011 . They also all agreed that the divorce counted. 32 Downloaded from jis. l uc as between the jurists. al-Bukh:r. 37). Nowhere does the Qur8:n indicate that a man cannot divorce his wife while she is menstruating and all six Aad. and the opinion that he must wait until after one additional period of menstruation prior to divorcing her again. but complicates matters in the following chapter by recounting a variant version in which the Prophet merely says to 6Umar. Ibn Eajar. (d. 34 al-Bukh:r. al-Tirmidh. al-IB:ba f. and they relate Aad. Sunan (3al:q: 49). Muslim.oxfordjournals. Sunan (3al:q: 4).. 4aA. MuAammad 6Umar.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.32 Neither al-D:rim. tamy. Kit:b al-Fabaq:t al-kab. or. al-J:mi6 (nik:A: 27). 36 Nothing appears to be known about Rif:6a beyond this Aad. who are of the opinion that the sunna divorce encompasses a triple divorce in one setting.. Cairo: Maktabat al-Kh:nj.th scholars understood this Aad. versus the opinion of Sufy:n al-Thawr. like al-Sh:ﬁ6. either on the basis of the preponderance of reports. v. (d.’s unsatisfied ex-wife35 The second topic relies upon the only story possessing a touch of sexual humour. (Beirut: D:r al-Fikr. 33 Ibn M:ja.36 divorced his wife triply and she al-Tirmidh. 4 vols. nor Ab< D:w<d offers a precise deﬁnition of the sunna divorce..A (nik:A: 17). 518. Rif:6a (b.A (3al:q: 2). Ibn M:ja.. al-J:mi6 (3al:q: 1).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.34 What the Aad. 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. Sunan (nik:A: 32). from a separate statement attributed to Ibn 6Umar himself. 4aA.. i. 395. in the case of al-Bukh:r. 3). 7.A (3al:q: 4..332 s co t t c . 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. Ab< D:w<d... 2 The Marriage that allows a terminally divorced couple to remarry: The story of Rif:6a al-QuraC.org at Princeton University on July 17. 1978). He also records the disagreement over the sunna divorce of a pregnant woman.th.
il: Rif:6a? l: Aatt: yadh<qa 6usaylataki wa-tadh<q. Sunan (3al:q: 10). FatA al-b:r. 4aA.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).. since the verb 3allaqa is employed in this manner in Qur8:n 2. Rif:6a’s ex-wife. x.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. 40 al-Tirmidh. 230. 2011 . Muslim. In addition to casting an embarrassing light upon the anatomy of a certain 6Abd al-RaAm:n b.38 The story ends abruptly with this euphemistic prophetic statement. ‘Can you believe what was said out loud in the Messenger of God’s presence!’ Sunan al-D:rim.¯ D I V O R C E . and the shorter one as just. in several versions... ii.d. 39 Qur8:n 2. al-Tirmidh.d overheard the conversation outside the door of the Prophet’s residence. al-Bukhari. E A D I T H .. whose name is never mentioned in the Aad. 236–7.ths. went to the Prophet and.39 Theoretically. This memorable prophetic locution cemented the requirement of consummation with the new husband prior to the remarriage with the original one and al-Tirmidh. 40). has the longer version as.ths In the version from 628isha 6Urwa al-Zuhr. Sunan (3al:q: 39. 41 al-D:rim.. 38 al-Bukh:r. al-J:mi6 (3al:q: 5). she had ‘tasted his sweet honey’. in some versions. Sunan (3al:q: 10). 42).n an tarji6. complained that her new husband’s manhood was akin to an eyelash or thread (hudba). x. 3 (nik:A: 17). al-J:mi6 (nik:A: 27). al-Zubayr.org at Princeton University on July 17. Ibn M:ja.A Muslim. reports in the ‘Book on Marriage’ that this is the practice of the general mass of Companions and subsequent scholars.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. 4aA.s ch o l a r s t yl e 333 subsequently married 6Abd al-RaAm:n b. 455 (3al:q: 4).A (3al:q: 41.. 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. 37 Downloaded from jis. a woman could be divorced prior to consummation. la6allaki tur. Sa6. 4aA. l: Aatt: yadh<qa 6usaylatah: kam: dh:qa l-awwal. Ab< Bakr was with the Prophet and Kh:lid b. Ab< D:w<d. al-Zubayr al-QuraC..oxfordjournals. Note that Ibn M:ja also uses this Aad. Kh:lid remarked with astonishment. 7 (3al:q: 4).A (3al:q: 6). before 60/679) divorce has produced the most conﬂicted interpretations of any of the Aad. 6usaylatahu.
D. the Aad. 46 There exists great uncertainty over his precise death date. see Hawting. l uc as under discussion. 436–7. i. al-Eakam (d. 6Abd al-RaAm:n..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. 107/725–6) 46 are Downloaded from jis. al-Dhahab. and Marw:n and the Madinan Successors Sa6.th Transmission in Islamic History’ (Unpublished Ph. Harald Motzki argues that this is an early Aad. divorced her irrevocably (triply) from afar and refused to provide her with either lodging (sukn:) or maintenance (nafaqa) during her waiting period. al-Musayyab45 and Sulaym:n b. 158–67. by Marion H.th in the Legal Controversy about the Rights of a Divorced Woman during her ‘Waiting Period’ (6idda)’. 6Abd All:h b. EafB. Mu6:wiya b. Hawting. Ab.th books contain Companion reports that 6Umar and/or 628isha (d. 42 . identiﬁed in some narrations as Ab< 6Amr b. 65/685) inquired into F:3ima’s case during his governorship of Madina and that the Prophet encouraged her to marry Us:ma b. Ab. Bulletin of the School of Oriental and African Studies. Princeton University. However. 70. Sufy:n and Ab< Jahm. Katz (Leiden: Brill. 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. i. ‘The Role of the Qur8:n and Ead. to which he purportedly replied that she was entitled to neither maintenance nor lodging. Tadhkirat al-Auff:C (Beirut: D:r al-Kutub al-6Ilmiyya. 6Ubayd All:h b. 6Abd All:h b. Yas:r (d.334 s co t t c . In fact. ordered her to spend her waiting period in the house of the blind Emigrant Ibn Umm Makt<m. transl. See also Asma Sayeed. Tadhkira. ‘Shifting Fortunes: Women and Ead. Jahm al-6Adaw.42 The basic story is that F:3ima’s husband. 52 (1989): 430–45. and Ab< Bakr b. all six Aad. 44 His full name is Ab< Bakr b..org at Princeton University on July 17. 2005).th has been studied by G. Harald Motzki. all claim to transmit the Prophet’s verdict from F:3ima herself.th that probably goes back to F:3ima herself. ‘The Rights of a Divorced Woman’. Jahm al-6Adaw. 2011 This Aad.d b. Zayd after her waiting period instead of her two suitors. 88–91 and 176–88. 45 al-Dhabab. in some versions. dissertation. 43 For a very similar description and additional references. The Origins of Islamic Law. 45. offers 107/725–6 and 104/722–3.oxfordjournals.ths from the Madinans Ab< Salama b. R. pace Joseph Schacht. 58/678) rejected vehemently the interpretation of F:3ima’s prophetic citation as a universal rule. Ab. 6Utba.). 5 vols. 2002). F:3ima informed the Prophet of this situation. A few transmissions of this story include the additional details that Marw:n b.44 and the Kufan al-Sha6b. and.
Sunan (3al:q: 40). al-Zin:d in Sunan Ibn M:ja (3al:q: 10). uses the expression ‘the Kufans’ as shorthand for Ab< Ean.. This opinion is shared by Sufy:n al-Thawr. For the dismissive comments of Sa6. al-Tirmidh.. Anas. al-J:mi6 (3al:q: 6). ‘We do not know if she memorized this properly’. between 103/721 and 110/728).th scholars over the correct ruling concerning the rights of the triply divorced woman during her waiting period. al-Tirmidh. ‘The Rights of the Divorced Woman’. Muslim. 50 al-Tirmidh. 4aA. 51 Ibid. 6Utba.org at Princeton University on July 17. (d. al-Layth b.. ‘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.d and Sulaym:n. 47 Downloaded from jis. He appears less skeptical in the version transmitted by Hish:m b. Rab:A (d. Hawting. See also. including 6Umar and Ibn Mas6<d. which states that women cannot be evicted from their homes during their waiting periods unless ‘they commit a ﬂagrant indecency’. Sunan (3al:q: 40). from 6Ubayd All:h b. 1] [. said.A (3al:q: 6) and Ab< D:w<d.th of the Messenger of God (peace be upon him). Ab< Y<suf and MuAammad al-Shayb:n. such as al-Easan al-BaBr.. 438–40. This is the opinion of M:lik b.¯ D I V O R C E . Ab< D:w<d. E A D I T H . 6A3:8 b.’s argument with an anonymous explanation that F:3ima did not receive lodging because she was ‘abusive to her household’ (tabdh< 6al: ahlih:). 6Urwa Ibn Ab.47 A common formulation of 6Umar’s attitude toward this story is his statement. Al-Sh:ﬁ6. concerning the story of F:3ima bint Qays. ‘We grant her lodging on the basis of the Book of God. Another version adds. ‘Do not drive them out of their homes’ nor should they themselves leave ‘unless they commit a ﬂagrant indecency’ [Qur8:n.. 49 al-Tirmidh. 6Abd All:h b. Ab.oxfordjournals.fa. 48 al-D:rim. and al-Sh:ﬁ6. Ibn Eanbal. The impact of F:3ima’s report and its rejection by several prominent early religious authorities divided both jurists and Aad. 110/728). Sunan (3al:q: 10). 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). clearly presents the three major opinions in the following manner: Some scholars. and the Kufans. al-Sha6b. interrupts the ﬂow of al-Sh:ﬁ6. . 2011 . 1.]50 and she does not receive maintenance on the basis of the Aad. 65. . Sa6d (d. Al-Tirmidh. see Ab< D:w<d.s ch o l a r s t yl e 335 depicted as being skeptical as to its validity. al-J:mi6 (3al:q: 5). 175/791). (d. are of the opinion that the triply divorced woman is to receive both lodging and maintenance. 114/732 or 115/733).49 Some scholars grant her lodging but not maintenance.51 Marw:n’s skepticism is found in the narration transmitted by al-Zuhr. Sunan (3al:q: 39). Some of the Companions of the Prophet. since God said.
and Muslim expresses his own opinion in the chapter title. al-D:rim. nor 6Umar’s criticism. 4aA. refuses to take sides and merely relates the three positions adopted by a handful of his illustrious predecessors.. 55 Ibid.A (3al:q: 6). 42). although Ab< D:w<d does not provide any evidence in support of the hybrid M:lik/al-Layth/ al-Sh:ﬁ6.53 along with ﬁve very different versions of 628isha’s rejection of the implications of F:3ima’s statement. can be derived from the title of the forty-second chapter of his 4aA. Muslim. while al-Tirmidh. he cites Qur8:n 65. Al-Bukh:r. Ab< D:w<d refuses to adopt a transparent position. 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’..th scholar under consideration who refuses to include a single Aad.th) of F:3ima’. 603 (3al:q: 41. Ibn Eajar. al-mu3allaqa idh: khushiya 6alayh: f. Ibn M:ja. and instead elevates 628isha’s opinion to the highest authority on this issue. al-Bukh:r. l uc as Interestingly. al-D:rim. 2) 628isha says. champions the second one. and Ibn M:ja support the ﬁrst position outlined by al-Tirmidh.-maskan zawjih: an yuqtaAama 6alayh: aw tabdhuwa 6al: ahlih: bi-f:Aisha. 6. Sunan (3al:q: 10). but.’s own opinion. 42). and the Prophet made a special exception for her to move out of fear of her initial location’..oxfordjournals. ‘What is F:3ima’s problem? Do you not fear God?’ and 3) 628isha says to 6Urwa b. ‘She receives no merit from mentioning this statement (Aad.52 Al-Bukh:r.th along with the criticisms of 6Umar and 628isha. even though she did not claim to be basing her opinion overtly on a prophetic teaching. ‘F:3ima was in an insecure place. 4aA. al-Zubayr after he mentioned F:3ima. FatA al-b:r.54 Al-Bukh:r. In the showdown between F:3ima’s prophetic Aad.th in which F:3ima actually utters the prophetic decision that denies her lodging or maintenance.th scholars under consideration.th)’. x.A. . cites neither F:3ima’s Aad.th. 2011 . rather.336 s co t t c . 598. is the only Aad. 1) 628isha tells Marw:n that ‘You will not be harmed for refraining from mentioning the statement (Aad. al-Bukh:r.. 4) 628isha says to 6Urwa.55 The story of F:3ima bint Qays and its ensuing controversy provide a useful window into the legal hermeneutics of the six Aad. ‘The triply divorced woman does not 52 al-D:rim. ’ 54 al-Bukh:r. 53 ‘House the wives you are divorcing . and Ibn M:ja side with F:3ima. provide clear evidence of their preferred positions on this topic. Sunan (3al:q: 10).A (3al:q: 41. Neither Ab< D:w<d nor al-Tirmidh. Both Muslim and Ab< D:w<d relay a wide array of variants of F:3ima’s prophetic Aad. Downloaded from jis. 5) 6Urwa’s observation that 628isha rejected F:3ima’s claim that the Prophet allowed her to relocate during her waiting period.th and the critical remarks of 6Umar and 628isha. in the end. . relates reports in which. and Muslim adopts the third one.org at Princeton University on July 17. opinion. 1 and 65.
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... 11–2. since her waiting period had ended.. her opinion. 4aA. Ibn M:ja. 11th imp.59 one of the Prophet’s widows. al-Tirmidh. 80 (3al:q: 6). 93. al-Tirmidh. Ibn Eajar does not indicate Subay6a’s death date.A Muslim. One version of the story begins with a debate between Ibn 6Abb:s (d. Ab< D:w<d.oxfordjournals.60 This story resolves the question as to whether the Qur8:nic verse (65. 57 56 Downloaded from jis. 4aA..A. al-Bukh:r. ii. 234. Ab< D:w<d. Ibn Eajar. 28 vols. al-D:rim.. al-Bukh:r.org at Princeton University on July 17. E A D I T H . Ab< Salama b. 4aA. 68/687–8). x. 59 The death date of 61/680–1 is favoured by al-Dhahab. 60 This version is found in Sunan al-D:rim. or whether the widow is required to observe the full four months and ten days prescribed in Qur8:n 2. Sunan (3al:q: 47).. 58 Her deceased husband’s name was Sa6d b. 2011 . and Ab< Hurayra (d. 94/712–3 or 104/722–3).A (3al:q: 8).¯ D I V O R C E . iii. iv. 4aA.. the tale of Subay6a bint al-E:rith al-Aslamiyya58 provided a solution to a problem upon which Muslim jurists ultimately achieved consensus. al-J:mi6 (3al:q: 17).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. Muslim. Sunan (3al:q: 7)..A (3al:q: 39). (Beirut: Mu8assasat al-Ris:la. ii. 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. identiﬁed by one of al-Bukh:r. Siyar a6l:m al-nubal:8. Sunan. (3al:q: 11). three months. 2001). Ba6kak. Another version involving one Ab< al-San:bil b.. 499.’s narrations as her suitor. Ab< Hurayra took the initiative to ask Umm Salama (d. al-J:mi6 (3al:q: 17)... and al-Tirmidh.s ch o l a r s t yl e 337 receive maintenance’. and that four of them even adopted precise positions on the topic of the triply-divorced woman’s rights during her waiting period. 324. Muslim. al-IB:ba. al-J:mi6 al-BaA. and she in turn related to him the story of Subay6a. x. 61/680–1). 6) declaring that a woman’s waiting period lasts until childbirth can shorten the prescribed waiting period of three courses. makes no mention of the legal dispute and is found in al-D:rim. 4aA. Khawla. although he mentions that some scholars date it to 59/678–9.A (3al:q: 8). Ibn M:ja. Subay6a told Umm Salama that the Prophet ordered her to get married immediately. Sunan (3al:q: 11).A (3al:q: 39). Sunan (3al:q: 47). who happened to give birth a short time after the death of her husband. Sunan (3al:q: 7). 4aA. 210.A Muslim. 6Abd al-RaAm:n (d.
x. not only reports that it is the opinion of ‘most of the scholarly Companions’. in which a husband grants his wife (or wives) the choice (khiy:r) to either maintain or sever al-Tirmidh.r. along with al-Thawr. and Ibn Eanbal. 62 For example. Sunan (3al:q: 12). 5). 1993). (Beirut: D:r al-Fikr. although this story is also found in Umm Kulthum’s entry in Ibn Sa6d.th concerning Umm Kulthum bint 6Uqba’s act of tricking her husband. all of the Aad. Ibn al-Mundhir. This consensus as to the Prophet’s command is also shared by the jurists.oxfordjournals. Ab< D:w<d. al-Bukh:r.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. Ibn M:ja.A (3al:q: 4. al-6Aww:m.-6iddat al-A:mil al-mutawaff: 6anh: zawjuh: wa-l-mu3allaqa (3al:q: 11).org at Princeton University on July 17. either overtly through their choice of chapter headings.A (3al:q: 5).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.th scholars.th books. as al-Tirmidh. 63 al-D:rim. and Ibn 6Abb:s.338 s co t t c . Even though the story is transmitted from Subay6a through six different authorities in multiple formats. thus denying him the opportunity to take her back during her waiting period.. Kit:b al-Fabaq:t al-kab.’s chapter heading is. extended the Prophet’s ruling to the divorce waiting period as well. 498–9.r... al-J:mi6 (3al:q: 4). al-D:rim.r is largely unspoken in the numerous transmissions from 628isha found in the Aad. the common background story for takhy. 5 The story of 628isha’s choice63 Unlike the previous four legal topics. b:b f. 2011 . iii. al-Sh:ﬁ6. Ibn al-Mundhir (d. Sunan (3al:q: 20). Sunan (3al:q: 5).62 In short. b:b inqi@:8 6iddat al-mutawaff: 6anh: zawjuh: wa-ghayrih: bi-wa@6 al-Aaml (3al:q: 8). all of our Aad. al-Ishr:f 6al: madh:hib ahl al-6ilm. and Muslim’s reads. 4aA.. or through their comments in the chapter.A. 318/930) attributes the position that a woman’s waiting period should be the longer of the two durations to 6Al. 4aA. al-Tirmidh. Muslim. into offering her a single divorce just moments prior to her giving birth. with the exception of Ibn M:ja. or whether it can only extend the woman’s waiting period.61 Although technically this story addresses the widow’s waiting period.. l uc as or four months and ten days. The concept of takhy. 218–20. the story of Subay6a provided Aad. 257... Sunan (3al:q: 6). 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. i. 61 Downloaded from jis. Ibn M:ja uses a unique Aad. al-Zubayr b. al-J:mi6 al-BaA. The isn:d has a lacuna (munqa3i6). 3 vols.
then remember that God has prepared great rewards for those of you who do good’. withdrawing from one’s wives. 4aA.r among the early Muslim legal authorities: The scholars disagree over khiy:r. ‘the Prophet granted us ‘the choice’ (khayyaran:)’ and that it did not count 64 Chapter 5 of Muslim’s ‘Book on Divorce’ is called. 483–4. 4)’. 628isha. and granting them the choice. ‘On . 4ubayA al-Hamd:n. it is a single irrevocable divorce. It is the opinion of Sufy:n al-Thawr. al-Ajda6 (d. it does not count as anything. Th:bit [d. and the Final Home. derives from the Qur8:nic passage (33.. whereas if she chooses her husband. His Messenger. describes succinctly the uncertainty over the nature of takhy. Zayd b. al-J:mi6 al-BaA. 28–9) in which the Prophet is commanded: Say to your wives.A. E A D I T H .. 66 His name is Muslim b.s ch o l a r s t yl e 339 the marriage bond. 65 al-Tirmidh. then come. 70.th transmitted by the Kufan Successor Masr<q b. I will make provision for you and release you with kindness.65 Downloaded from jis. Most of the scholars and jurists among the Companions and their successors adopted the position of 6Umar and Ibn Mas6<d.r.m) in S<ra 66 and the oath of sexual abstinence (. and the Kufans.org at Princeton University on July 17. 63/682–3) from one of the immediate participants in the ﬁrst takhy. . Muslim b. Ibn Eanbal followed the position of 6Al.oxfordjournals. It has also been reported that they considered it to be a single revocable divorce and that if she chooses her husband. x. and Ab< al-DuA:66 exhibit inconsistencies. 2011 All six books contain at least one Aad. It has been narrated from 6Umar and Ibn Mas6<d that if the woman chooses herself.. also the Qur8:nic verse ‘if (the two of) you collaborate against him’ (66. 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.¯ D I V O R C E .. It has been narrated from 6Al. that if she chooses herself. all of them report 628isha’s comment that. such as the episode of banning (taAr. but if you desire God. iii. it is a single revocable divorce.A Muslim. Only Muslim provides any sort of narrative in his discussion of ‘granting the choice’. ‘If your desire is for the present life and its ﬁnery.l:8). it is a single divorce in which he cannot take her back during her waiting period (b:8ina).64 Al-Tirmidh. and his lengthy accounts link it to additional Qur8:nic verses and topics. Kh:lid. Although the exact wording of nearly all of the narrations transmitted from Masr<q by his Kufan pupils al-Sha6b.l:8.
A (li6:n). Sunan (3al:q: 2).. The verses introducing li6:n provide a procedure by which a man can deny paternity of his wife’s child by accusing his wife of inﬁdelity without the requisite four witnesses.. al-Tirmidh.’s two Aad. a-khayyartuh: w:Aida aw mi8a ba6d an takht:ran.. Muslim. 70 al-D:rim.A (3al:q: 4). 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: 22). Sunan (3al:q: 1). Sunan (3al:q: 27). ‘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.70 628isha’s story.th scholars under examination. Ibn M:ja. ‘li6:n’ in the EI2..ths on this topic. 67 . Downloaded from jis. 4aA. Sunan (3al:q: 38).A (3al:q: 4. al-Bukh:r. punishment shall be averted from his wife if she in turn four times calls God to witness that her husband is lying and. al-Tirmidh. Ab< D:w<d. Ab< D:w<d. but have no other witnesses. Ab< D:w<d. l uc as as a divorce. 71 al-D:rim. call God to reject him if he is lying. Ibn M:ja. See also Joseph Schacht’s extensive entry. let each one four times call God to witness that he is telling the truth. and. 5). Sunan (3al:q: 27–9). 4aA.ths found in the Sunans of al-D:rim.r episode or are inauthentic. 2011 6 The Procedure for mutual imprecation: the story of the first li6:n71 The ﬁnal topic covered by all six Aad. the ﬁfth time. 69 Muslim. 4aA. Ibn M:ja. mutual imprecation. Sunan (nik:A: 39). Sunan (3al:q: 12). in its Kufan manifestation. 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. the ﬁfth time. Sunan (3al:q: 5). al-J:mi6 (3al:q: 4).. either refer to a different incident than the takhy. 4aA. al-D:rim.org at Princeton University on July 17.oxfordjournals. 461 (3al:q: 5).A (3al:q: 5). Muslim... 6–7): As for those who accuse their own wives of adultery. Sunan (3al:q: 20).. as can be seen in the following Qur8:nic passage (24.340 s co t t c .. 32–6). Masr<q drives home the legal point by exclaiming. al-Bukh:r. Ibn M:ja.67 In one of al-Bukh:r. contains the most tangled web of narratives that strive to answer questions left unanswered by the Qur8:n. calls God to reject her if she is telling the truth. 68 L: ub:l. 4aA.69 Assuming that the Aad.: FatA al-b:r.A (3al:q: 25–30. which report that the Prophet divorced EafBa and then took her back. x. and Ab< D:w<d.
Ibn Jubayr’s story begins with a dispute in Iraq during the reign of MuB6ab b. Ab< D:w<d. according to Ibn Sa6d.q) is part of the li6:n procedure and involves Ibn Jubayr visiting a fatigued Ibn 6Umar in the Hijaz. 4aA. Ibn M:ja. 62sim b. Muslim 4aA. 52. 95/714) from 6Abd All:h b.. even though they are contradictory concerning the name of the ﬁrst man who executed this procedure. 91/709–10 or 88/706–7) directly to al-Zuhr. 432... with little to say about the li6:n process. Jubayr (d.org at Princeton University on July 17.oxfordjournals.A (li6:n). al-Tirmidh. He lived 105 years. al-Bukh:r. 4aA. 4aA. al-Tirmidh. (d. 33.. 2011 72 A fourth story reports Sa6d b. Sa6d al-Sa6:d. Sunan (nik:A: 39). 6Umar.A (li6:n).th books is transmitted by either N:ﬁ6. in the case of N:ﬁ6’s narrations. if it does. between 117/735 and 120/738). iii. or Sa6. told by Ab< Hurayra on the authority of the Prophet. E A D I T H . see al-D:rim.73 The second most popular version of this story is transmitted from the long-lived Companion Sahl b. While Ibn 6Umar does not reveal the precise name of the ﬁrst man to perform li6:n. Ab< D:w<d.A (Aud<d: 42).A (li6:n). al-Bukh:r.. al-Zubayr (686–91) over whether termination of the marriage (tafr. al-Bukh:r. 6Ub:da’s jealousy were he to ﬁnd a man in bed with his wife and segues into the jealousy (ghayra) of the Prophet and God. Sunan (3al:q: 27).74 to whom the Prophet refused to answer the question. (d.ths on this topic—Does li6:n actually lead to the termination of the marriage. The only report found in all six Aad.A (li6:n). Sunan (nik:A: 39). granted custody of the baby to the mother. see al-D:rim. Ab< D:w<d. For Ibn 6Umar N:ﬁ6. Sunan (nik:A: 37). 53.’ or ‘someone from Ban< al-6Ajl:n’. Muslim. (d. ‘What does a man do if he ﬁnds someone Downloaded from jis. 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. 4aA.d b. Sunan (3al:q: 27). 4aA. al-J:mi6 (al-wal:8 wa-l-hiba: 4). Muslim. Fabaq:t. and. Sunan (3al:q: 27). The signiﬁcance of Ibn 6Umar’s story is not the identity of the involved parties.. 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. mawl: of Ibn 6Umar (d.¯ D I V O R C E .. Sunan (nik:A: 58). Ibn M:ja.A (3al:q 32. Muslim. 35). Sunan (3al:q: 28). al-Tirmidh.. al-J:mi6 (3al:q: 22).th-scholars’ chapters devoted to li6:n and the three major stories72 found among the Aad. he indicates in most versions that it was either ‘an AnB:r.s ch o l a r s t yl e 341 These verses raise two major questions that are reﬂected both in the Aad. 6Ad. al-J:mi6 (3al:q: 22). al-D:rim. but rather the information that the Prophet separated the parties. Jubayr. 4aA. It includes the names of the two primary characters. 73 For Ibn 6Umar Sa6. 4aA. 45/665–6).A (3al:q: 26).. see al-Bukh:r. which parent gains custody of the child? The various versions of the ‘ﬁrst li6:n’ story can answer these questions.A (3al:q: 34.d b. 124/742). and.. A ﬁfth story. .
M:lik. Ab< D:w<d. the Aad. l uc as in bed with his wife?’ and 6Uwaymir al-6Ajl:n.77 Another Aad. Sunan (nik:A: 39).A (3al:q: 30). which.’s narration does not mention the triple divorce.75 the unfortunate fellow who found himself in this situation. Y<nus. 79 Hil:l was an early convert to Islam who does not appear to have been present at UAud. 4aA.475 (3al:q: 27).. 569. 78 FatA al-b:r. see al-D:rim. see Ibn M:ja. 315–16. D:w<d. 4aA. iv. 6Abd All:h. Sunan (3al:q: 27). is the only report on the authority of Sahl in which the Prophet himself terminated 6Uwaymir’s marriage. Sa6d. 852/1449) identiﬁes as 6Uwaymir. who is also one of the candidates for whom the li6:n verses were revealed. 4aA. This already tangled web of narrations is further complicated by reports that the ﬁrst man to perform li6:n was Hil:l b. x. see al-D:rim. Umayya. that almost certainly relates to this same event. 76 For al-Zuhr. 4aA.ths of M:lik. Muslim.. iv. Muslim. The only scholar under examination not to include Sahl’s story is al-Tirmidh. 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. For al-Zuhr.m b. He achieved some notoriety for being among the three men criticized and forgiven in the Qur8:n (9. see Muslim..78 Ibn 6Abb:s’ recounting of the story. whereas al-Awz:6. Sunan (nik:A: 39).. Fabaq:t.org at Princeton University on July 17. Sunan (3al:q: 27). according to Ab< D:w<d. 578 (3al:q: 31. Ab< D:w<d. Sunan (3al:q: 27).A (li6:n). Ibr:h. other than that he was present at UAud. 6Iy:@ b. Ibn Sa6d. For al-Zuhr. 4aA.A (li6:n). Sa6d and 6Iy:@ b..A (li6:n). 2011 Nothing much appears to be known about him outside of this Aad. provides no evidence for the termination of the marriage at the end of the li6:n process.A (li6:n). whom Ibn Eajar (d.342 s co t t c .. 75 .th. This Aad.A (3al:q: 29). al-Awz:6.. 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)’. from al-Zuhr.th.ths transmitted from Sahl. 36).79 who Downloaded from jis. Ibn Jurayj. 6Abd All:h al-Fihr. mentions 62Bim b. Ab< D:w<d’s comment is found following Ibn 6Uyayna’s narration in Sunan Ab. ii. 294–5. al-Bukh:r.. 6Ad. 118) for staying behind in Madina during the raid to T:b<k.m b. ‘separated (farraqa) the couple’. Ibn Jurayj. Muslim. transmitted from Ibn 6Abb:s. 4aA.th is not found in the other four collections. For al-Zuhr. see al-Bukh:r. Ibr:h. 77 Literally. like the majority of the Aad. Y<nus.76 Further complicating Sahl’s report is the narration of Ibn 6Uyayna from al-Zuhr. see Ab< D:w<d.. For al-Zuhr. ibid. and his anonymous kinsman. Sunan (3al:q: 27). While these narrations provide names to this event.oxfordjournals. For al-Zuhr. Note that Ibn Sa6d does not associate Hil:l with the ﬁrst li6:n.
th critic. ‘What has reached us concerning li6:n’ and leave it for the reader to sort out the legal implications of this knot of Aad.org at Princeton University on July 17. Fabaq:t.ths. and al-Tirmidh. cautiously graded Hish:m as ‘reliable (thiqa). IB:ba. and Ab< D:w<d on the authority of Anas b. and al-Tirmidh. merely identiﬁes the male imprecator as ‘an AnB:r.s ch o l a r s t yl e 343 accused Shar. al-J:mi6 (3al:q: 22).ths in his chapter on li6:n that have nothing to do with the story of the ﬁrst li6:n. 82 Ab< D:w<d does have a lengthy additional transmission from Ibn 6Abb:s 6Ikrima 6Abb:d b.th’. YaAy: b. but include fewer contradictory reports. 198/813). see Ibn Sa6d. Sa6. ii. 271. ‘the practice of the scholars is in accordance with this Aad. states after Ibn Jubayr’s version of the Ibn 6Umar narration that. 147/764–5 or 148/765–6). like 6Uwaymir. Ibn Eajar. ManB<r that does not involve Hish:m. and Ab< D:w<d collect all of the contradictory versions of this story in a single chapter (or book) simply labelled as.. Muslim. Ibn M:ja.¯ D I V O R C E . 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. avoid this confusion by only citing narrations that relate to the 6Uwaymir story. Sunan (3al:q: 27). Ibn Sa6d. 80 Downloaded from jis. he belongs to the Ban< 6Ajl:n. Ibn M:ja includes a couple of additional unique Aad. 2011 . and Ibn M:ja have as a common link the Basran Hish:m b.oxfordjournals. 150..k’s mother’s name. 295. This story is found in the books of al-Bukh:r.k of commiting adultery with his wife. use the same chapter heading as Muslim and Ab< D:w<d. al-Tirmidh. combines the stories so that 6Uwaymir accuses his fellow tribesman Shar.k b. Sunan (3al:q: 27). Muslim.n Anas.85 Al-Bukh:r.r. Note that the great Basran Aad.th scholars to adopt certain strategies for dealing with them.. E A D I T H . Ibn M:ja. 83 Another self-identiﬁed witness to an act of li6:n.d al-Qa33:n (d. interestingly. ix. Fabaq:t.83 Al-D:rim. Mugh. 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.th and. along with the practice of determining paternity on the basis of physiognomy. and al-Tirmidh. which could refer to either 6Uwaymir or Hil:l.’. iv. Ibn Sa6d. Eass:n al-Qurdus. Interestingly. (d. God willing’. 84 al-Tirmidh. the versions in al-Bukh:r. 81 For more on Hish:m. 85 al-D:rim. 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.84 Muslim.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. Ibn Mas6<d. demonstrates his legal SaAm:8 is Shar. his father’s name is 6Abda b. M:lik or Ibn 6Abb:s.81 who claimed to have heard it from 6Ikrima Ibn 6Abb:s and Ibn S. Ab< D:w<d. SaAm:880 of having committed adultery with his wife without any witnesses.
but Chapter 25 (the validity of indicating li6:n by writing or pointing) does not include any Aad.. ranging from the prohibition of divorcing one’s wife while she is menstruating..86 He wields the transmission of Sahl Zuhr. 550 and 569.87 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.. I would have stoned her’.A (3al:q: 35). 86 Downloaded from jis. FatA al-b:r.org at Princeton University on July 17. or. x. 2011 .A (3al:q: 28).th collections from this period.A (3al:q: 34). in the case of al-Bukh:r.’s 4aA. 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. 89 Ibid. 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’.ths related to the ‘ﬁrst li6:n’ stories.89 Al-Bukh:r. and to the crucial role of the q:@. He also cites Sahl’s narration as evidence for ‘One who divorces (his wife) after the li6:n process’. It is remarkable that only six of the 45 divorce-related topics addressed by at least one of the third/ninth-century Aad. 90 Ibid.A (3al:q: 30).ths about the ﬁrst li6:n is that the Aad. when granted ‘the choice’. chooses to stay with her husband has not expended one of her two revocable divorces. which includes the ﬁrst Ibn 6Abb:s story.A that deal with li6:n. 4aA. 4aA. 4aA. 6 that a woman’s waiting period is completed at the moment of childbirth.h.88 and the Ibn 6Umar that the mother receives custody of the child. The two topics concerning the waiting period are surprising.oxfordjournals. since Subay6a’s story merely reafﬁrms the declaration in Qur8:n 65.th scholars under consideration are found in all of the major Aad. (3al:q: 29). ‘Were I to have stoned anyone without evidence. to the clariﬁcation that a woman who. What is more striking There are actually twelve chapters in al-Bukh:r. relates to the identity of the woman to whom the Prophet was referring when he supposedly said. 4aA. 88 Ibid.344 s co t t c . in separating the couple that has performed the very public procedure of mutual imprecation. 3) ignoring the contradictions while simultaneously exploiting the variations in order to derive multiple legal rulings. and Chapter 31. 87 al-Bukh:r. These topics appear at ﬁrst sight to be highly random.th scholars’ three strategies consisted of reducing or eliminating the contradictions through: 1) selective inclusion. whereas F:3ima’s report that triply-divorced women receive neither maintenance nor lodging seemed incorrect in the eyes of 628isha and 6Umar. 2) faithfully recording all of the variations without providing legal opinions. Ibn Jurayj as proof that the li6:n procedure can (or should?) be done in a mosque. The lesson we derive from our analysis of the pile of contradictory Aad.
4aA.A.. ranging from the famous Ibn 6Umar and 628isha to the more obscure F:3ima bint Qays. Sunan (3al:q: 28). 4aA. Ab< Bakr. He shows little concern for procedural issues surrounding divorce proper (3al:q).th scholar will be introduced in the order of the ascending quantity of legal topics pertaining to divorce he addresses. Muslim covers a mere twelve legal topics related to divorce in his 4aA. al-Bukh:r. al-J:mi6 (3al:q: 14).th that a triple divorce counted merely as a single one at the time of the Prophet. and al-Tirmidh.org at Princeton University on July 17. These topics are found in four different sections of his Aad.. 4aA. Subay6a.A (3al:q: 3)..91 along with a large cluster of Aad. 8) and Ibn M:ja. al-Eajj:j al-Nays:b<r. 2011 . While we have seen some differences among our Aad. 4aA. whom I shall consider after Ibn M:ja. Sunan (3al:q: 2). This topic is also discussed by al-Bukh:r.A (3al:q: 7.92 While he recounts Ibn 6Abb:s’ Aad.ths with complicated transmission histories. half of which we just examined in the previous section. 91 Downloaded from jis. Ab< D:w<d. chose to address and analyse their sources.. their individual legal methodologies emerge most clearly when we compare their overall articulations of the laws of divorce to each other. INDIVIDUAL PROFILES Now that the six core topics have been elucidated. the summary presentation of which will occupy the remainder of this article. and the early years of 6Umar’s caliphate.th scholars in their presentations of these six topics.¯ D I V O R C E .. and al-Tirmidh. E A D I T H .oxfordjournals. 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.A (buy<6: 4).ths that include the prophetic prohibition against a woman stipulating that her suitor must divorce his existing wives prior to marrying her. 728/1328) and AAmad MuAammad Sh:kir Muslim.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. and the unnamed wife of Rif:6a al-QuraC. a report which centuries later Ibn Taymiyya (d. with the exception of al-Bukh:r. Each Aad. due to the former scholar’s unique hermeneutics. Muslim. we can identify which legal issues al-D:rim. 1 Ab< l-Eusayn Muslim b.th compilation in addition to the ‘Book on Divorce’ and generally consist solely of prophetic Aad.A (nik:A: 54).. This topic is also found in al-Bukh:r. 6Uwaymir al-6Ajl:n... Ab< D:w<d. 92 Muslim. Ibn M:ja.
relates a highly abbreviated narration of Bar. Sunan (3al:q: 24). In addition to this Aad. Ibn M:ja also reports that the Prophet performed a one-month . al-D:rim.A (6itq: 2).d. 4aA. 94 Muslim. 229. Sunan (3al:q: 10).. save al-Tirmidh..ra.A (3al:q: 21). al-Bukh:r.A (3al:q: 7). This Aad. 4aA. Muslim presents the widely reported Aad. al-D:rim. 57–60. 96 Muslim. 1969). instead of the expected 30-day month.A (3al:q: 5).l:8 after only 29 days.th since the only version narrated by these four scholars contains the isn:d J:bir Ab< l-Zubayr. and. al-J:mi6 (al-wal:8 wa-l-hiba: 1).l:8 that was only twenty-nine days.95 He relates a single narration of a Aad. 4aA. l uc as (1892–1958) would seize upon as evidence in their opposition to the triple divorce. 2011 See MuAammad Ab< Zahr:.oxfordjournals. 420–1. and Ab< D:w<d also employ in support of this position. 381. v.346 s co t t c . Al-Bukh:r. which all of the Aad.th (described below).-l-Isl:m (Cairo: D:r al-Fib:6a al-Qawmiyya. 6Abd All:h (d.. NiC:m al-3al:q f. Ibn M:ja. 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. Sunan (3al:q: 29).). Ibn Taymiyya (Cairo: D:r al-Fikr al-6Arab.ra’s story that does not mention her right to chose to end her marriage. Sunan (3al:q: 19–22).97 Downloaded from jis. Ibn M:ja. Sunan (3al:q: 9).l:8’ to a separate incident in the Prophet’s life involving a broken leg. I assume that the fact Muslim does not declare the triple divorce to be unlawful means that he at least tacitly approves its practice.th about 628isha’s act of manumitting Bar.94 Muslim touches brieﬂy upon three additional topics. and Ab< D:w<d. as we shall see below. Note that al-Tirmidh. and qiy:s.th in which J:bir b..th. 4aA. 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). 4aA.. 2nd edn.. Sunan (3al:q: 15). 95 Muslim. al-Bukh:r.93 Muslim merely labels this chapter ‘the triple divorce’ without comment. according to al-Dhahab. links the ‘month-long .A (3al:q: 15–17). 43 (references).org at Princeton University on July 17..th is also found in Ab< D:w<d. Ibn M:ja.. probably did not include this Aad.th scholars under consideration. n. 4aA. Siyar a6l:m al-nubal:8. their reading of Qur8:n 2. 97 Muslim. Sunan (3al:q: 14). Al-Bukh:r.96 Finally.A (3al:q: 2). (along with Ab< Zur6a and Ab< E:tim) considered Ab< l-Zubayr to be nonauthoritative (l: yuAtajju bi-hi). 93 .. AAmad Sh:kir. Ab< D:w<d. a report which al-D:rim.. 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. 4 and clariﬁes that the Prophet ended his month-long . Ibn Taymiyya and AAmad Sh:kir also relied upon a version of the Ruk:na Aad. al-Bukh:r.
adverse circumstances at the time of divorce. 6Abd al-RaAm:n al-D:rim.) to have distrusted the controversial family isn:d related by Shu6ayb b.A. ‘Muslim’s introduction to his 4aA. 107/ 725–6).¯ D I V O R C E .ths in the course of his studies. 100 For a translation of this introduction. ‘sever’. and the impacts of conversion upon marriage.th from the one found in the books of Ibn M:ja. he discusses eight issues ignored by Muslim. Although al-D:rim.-m: tamlik . H.. Juynboll. Sunan (3al:q: 7).. see G. 2 Ab< MuAammad 6Abd All:h b. despite the consequence that for certain legal ﬁelds. While it is possible that he simply missed some of these Aad. 102 Ibid. the widely-circulated story about the wife of Th:bit b..oxfordjournals. own) the woman’. . . Tadhkira. 2011 . E A D I T H . Chapters.A to prophetic Aad. 748/1348) states that Muslim shunned 6Ikrima on account of his alledged Khariji beliefs.. 263–311. 98 Downloaded from jis. and al-Tirmidh.ths of the highest level of authenticity in early Muslim jurisprudence.98 Likewise. He cites a different Aad.. (d. 99 L: 3al:q ill: f. 74. a more likely explanation for their absence are his critical standards. The Arabic expression al-batta is translated by Susan Spectorsky as ‘deﬁnitely’ or ‘decisively’. Sunan (3al:q: 17) and al-Tirmidh.. mawl: of Ibn 6Abb:s (d. Muslim’s methodology.org at Princeton University on July 17. Sunan (3al:q: 7).102 the female-initiated divorce. child custody. Slight variants of this statement are found in Ibn M:ja. . 103 al-D:rim. Spectorsky. such as divorce. Ab< D:w<d. 30. and others cite has 6Ikrima. al-J:mi6 (3al:q: 6). Sunan (3al:q: 3). i.. Sunan (3al:q: 8). ‘divorce is only valid if you are married to (lit. A. 6Amr. and she cites Lane’s deﬁnitions of b-t-t. For example. the Cih:r oath. Qays’ khul6 divorce that al-Bukh:r. EI2. in its isn:d. or ‘separate’. The death date of 107 is provided by al-Dhahab. which is a popular proof that divorce prior to marriage is invalid. translated and annotated with an excursus on the chronology of ﬁtna and bid6a’. as he informs us in the introduction of his book. These topics include the afﬁrmation that a divorce uttered prior to marriage is invalid. Schacht says that the ‘best attested date’ for his death is 105/723–4.100 led him to restrict the contents of his 4aA. only covers sixteen divorce-related topics in his Sunan. Ab< D:w<d. which happens to be the primary chain of transmission for the report.s ch o l a r s t yl e 347 Muslim’s chapters on divorce indicate the limited utility of Aad. ‘6Ikrima’.103 child al-Dhahab.101 the ﬂexibility of the ‘batta divorce’. Jerusalem Studies in Arabic and Islam. Muslim is silent on the topics of the female-initiated divorce.99 In short. Muslim is reported (as also is al-Bukh:r. 5 (1984).ths that he evaluated as sound. and al-Dhahab. 101 al-D:rim. he could only address a tiny fraction of the relevant issues. ‘to cut off’.
-ghayr ba8s fa-Aar:m 6alayh: r:8iAat al-janna.ba ﬁrst performed the khul6 divorce on Th:bit.110 al-D:rim. met the Prophet outdoors and said. This Aad..A.th is mentioned in Gerald Hawting.105 He also recounts the lengthy story of Salama al-Bay:@.ba bint Sahl who.104 and the rules concerning the divorce of a slave girl. 105 104 Downloaded from jis. covers these additional legal topics through a mixture of sound and weak transmissions of prophetic Aad. nor Th:bit’.l:8 and Cih:r in Muslim Law’.’s transmissions identiﬁes the wife of Th:bit b. 6Amra bint 6Abd al-RaAm:n (d. ‘An Ascetic Vow or an Unseemly Oath?: . Sunan (3al:q: 1) and Ab< D:w<d.la followed suit at a later date.la and a second one as Bint 6Abd All:h b. Sunan (3al:q: 17).ba bint Sahl and Jam.107 The ﬁnal subject introduced by al-D:rim. Sunan (3al:q: 9). Sunan (3al:q: 18). which Ibn M:ja. For example.348 s co t t c . reports that Th:bit took a portion of what he had given her and then Eab. Sunan (3al:q: 18). 109 al-D:rim. and al-Tirmidh. ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’.la bint Sal<l (3al:q: 22). Upon Th:bit’s arrival. and set her free’.. al-Tirmidh. al-J:mi6 (3al:q: 11). 58/1 (1994). 2011 . Sunan (3al:q: 21–3). and the narrator of the Aad.’s version adds the twist that Th:bit was initially angry with Eab. 108 al-D:rim.ba because she told him that the Ibid. l uc as custody. al-Tirmidh. Bulletin of the School of Oriental and African Studies. except for Muslim’s 4aA. see Ibn Eajar.org at Princeton University on July 17. and then Jam. al-D:rim.’s act of breaking the Cih:r oath during Rama@:n106 and the Prophet’s purported statement that.ba said. Sunan (3al:q: 21). Sunan (3al:q: 6). Ibn Eajar’s solution is that these are two discrete stories and that Eab. Sunan (3al:q: 2). Ubayy. ‘Neither me. a report which possibly indicates the desirability of taking back one’s wife during her 6idda.th books under consideration. FatA al-b:r. Ibid. Ibn M:ja includes unique narrations in which her name appears as Eab. al-J:mi6 (3al:q: 10). Sunan (3al:q: 7).. x. is that the Prophet divorced EafBa and took her back during her waiting period. 113–25. 98/717 or 106/724). Ab< D:w<d.108 Al-D:rim. Sunan (3al:q: 16).ba settled into her father’s home.109 While the gist of this core khul6 story is found in all of the Aad.. one morning.ths. Ibn M:ja. Note that one of al-Bukh:r. Furthermore. at 118.. 4aA.A (3al:q: 12.ba bint Sahl. Ibn 6Abd al-Barr observes that the Basrans call her Jam.la bint Ubayy while the Madinans call her Eab. he introduces the topic of the female-initiated divorce through the widely transmitted story of Eab. ‘I have everything he has given me right here’. ‘Take from her what you wish. 107 Ayyum: imra8a sa8alat zawjah: 3al:qan f.. 13).oxfordjournals. Eab. 106 Ibid. Sunan (3al:q: 38). Ibn M:ja.. 110 al-Bukh:r. all use to discourage this practice. 501 (3al:q: 12). Qays as Jam. Ab< D:w<d. Ab< D:w<d. the Prophet said.th. This report is also cited by Ibn M:ja.
reaches a broader array of legal topics than Muslim through a combination of both sound and weak prophetic Aad. . which does not appear in his 4aA.. 111 Downloaded from jis. about which. and al-Tirmidh. because al-Tirmidh. 4aA. has nothing to say is the oath of abstinence. informs us that when he asked him about it. only considered the khul6 divorce valid in cases of an abusive husband. Muslim has practically nothing to say as well.. In some of the other versions. merely reports that the Prophet said. 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. Ab< D:w<d. ‘Any woman who asks her nonabusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’. especially when we read this chapter in conjunction with his previously mentioned prophetic statement that.. Al-Bukh:r. 113 al-D:rim. clariﬁes the nature of the ‘batta divorce’ and the divorce of a slave girl through the use of Aad. 2011 Ab< D:w<d also includes one narration in which Th:bit ‘struck her and broke part of her’. deﬁnitely knew of this Aad. al-Bukh:r. The ﬁrst Aad. al-J:mi6 (3al:q: 2). ‘It is what you intended’.. Ibn M:ja. 114 The only category for which al-D:rim. ‘What did you want it to be?’ to which Ruk:na replies. 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’. and Muslim address. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’. Sunan (3al:q: 14). Al-D:rim. wanted to marry her.A (3al:q: 4) and Muslim. The Prophet then tells him.s ch o l a r s t yl e 349 Prophet. Al-D:rim.111 This detail suggests that al-D:rim.th. al-Tirmidh. who was their neighbour. Sunan (3al:q: 8).th.hi i@3ir:b) since it was transmitted in a version in which the word ‘triply’ was substituted for ‘al-batta’.ths that Muslim did not deem worthy to disseminate or of which he was unaware. declared it to be ‘inconsistent’ (f.. and al-Tirmidh.. Sunan (3al:q: 18).114 Al-D:rim. as we saw above.A (nik:A: 17). 4aA.A.¯ D I V O R C E . ‘a single divorce’. Note that the expression ‘batta3al:q.th.112 The second weak Aad.ths with weak isn:ds. the Prophet just sends him back to his ex-wife. also found in the books of Ibn M:ja.’ appears in some of the narrations of the story of ‘Rif:6a’s unsatisﬁed ex-wife’ (discussed above) in al-Bukh:r. Sunan (3al:q: 19). Ab< D:w<d. and that Th:bit subsequently struck her. ‘I did a batta divorce!’ The Prophet asks.org at Princeton University on July 17. variants of which are found in the books of Ibn M:ja.oxfordjournals. recounts the story of a conversation between the Prophet and a distraught man named Ruk:na who exclaims. Ab< D:w<d. Sunan (3al:q: 17).113 Despite the modest number of topics that both al-D:rim. E A D I T H .
A (3al:q: 20)... al-Bukh:r.A (3al:q: 11).. 121 al-Tirmidh. 116 al-Tirmidh.’s methodology can be seen in his discussion of the takhy. Ibn M:ja. al-J:mi6 (nik:A: 43). 6Is: al-Tirmidh. 24).. 4aA. and al-Tirmidh.117 Al-Tirmidh. reports that the Prophet approved 6Umar’s act of forcing his son to divorce one of his wives whom 6Umar disliked.350 s co t t c .r. covers upon which al-Tirmidh. Ibn M:ja. Ibn M:ja. demonstrates his awareness of the vibrant legal discourse in which he was composing his J:mi6. Sunan (3al:q: 25).’s ‘Book on Divorce’. 117 al-Tirmidh. and Ab< D:w<d.119 ordered another convert to choose one of the two sisters whom he married prior to becoming Muslim..r statement in which a man says to his wife. . Sunan (3al:q: 9). al-Bukh:r.121 A good example of al-Tirmidh. such as the validity of a divorce that one utters in jest. Sunan (3al:q: 15).oxfordjournals. al-J:mi6 (3al:q: 9).120 and stipulated that when a woman converts to Islam.. ‘Your 115 Downloaded from jis. 4aA. and 3) The right of a manumitted married slave woman to takhy. ¯ ¯ 3 Ab< 6Is: MuAammad b. In addition to covering the majority of topics found in al-D:rim. Sunan (3al:q: 23.’s inclusion of the legal opinions of the leading jurists who preceded him. al-J:mi6 (3al:q: 13).115 there is an elevated focus in al-Tirmidh. 120 al-Tirmidh. 15). Sunan (3al:q: 36).118 obliged a man who converted to Islam to divorce six of his ten wives. 2011 The only topics that al-D:rim. Sunan (nik:A: 39) and Ab< D:w<d. is silent are: 1) Taking one’s wife back after a revocable divorce.org at Princeton University on July 17. Sunan (3al:q: 25). Al-Tirmidh. her non-Muslim husband is automatically divorced a single divorce that is only revocable if he converts to Islam during her waiting period.ths are found in the books of these three men. Sunan (nik:A: 40) and Ab< D:w<d. Ab< D:w<d. Sunan (nik:A: 60) and Ab< D:w<d. Sunan (3al:q: 13). and it is perhaps for this reason that all of al-D:rim. Ibn M:ja. al-J:mi6 (nik:A: 33). al-J:mi6 (3al:q: 8. 2) A woman can leave her house during the daylight hours of her waiting period.116 but the invalidity of the divorce uttered only to oneself or by an insane man.’s J:mi6 on issues concerning the divorce procedure. Ibn M:ja. Ibn M:ja.. as well as the category of the impact of conversion to Islam upon preexisting marriage bonds. including the eponyms of the four Sunni schools of law.. He addresses 24 legal topics surrounding divorce which touch upon all of Spectorsky’s categories. al-J:mi6 (nik:A: 34). l uc as This strategy is essentially the same as that of Ibn M:ja. 119 al-Tirmidh.’s legal topics related to divorce and most of his Aad. 118 al-Tirmidh..
counted the ‘batta’ as a triple divorce.A. 482. and the Kufans agree with 6Umar and Ibn Mas6<d.A. ‘[Kath. Al-Tirmidh.¯ D I V O R C E . from Ab< Salama. 124 Ibid. 122 .124 Downloaded from jis. provides a concise summary of the batta divorce that we encountered in our recent discussion of al-D:rim. 481 (3al:q: 3). Sufy:n al-Thawr.r. Earb’. ‘your matter is in your hand’ to count as three [divorces]?’ Ayy<b said. Then [Ayy<b] said. d. 6Uthm:n and Zayd b.’s Sunan: It is reported that 6Umar made the ‘batta’ a single divorce.b) and ‘known only from Eamm:d b.r] forgot. ‘No.th pertinent to this topic is the following: Eamm:d b.th scholarship in late-Umayyad Basra.’s verdict that the report really communicates Ab< Hurayra’s opinion rather than that of the Prophet.th as ‘poorly attested’ (ghar.. who said.123 He includes al-Bukh:r. Th:bit say it is for as many divorces as she wishes (al-qa@:8 m: qa@at). Some scholars said that it depends on the man’s al-Tirmidh.org at Princeton University on July 17. al-J:mi6 al-BaA. candidly describes this Aad. ‘Do you know of anyone other than al-Easan al-BaBr. and his statement with the oath is what stands. al-J:mi6 (3al:q: 3). The sole prophetic Aad. ‘I only put your matter in your hand for a single divorce. mawl: of Ban< Samura.r mawl: Ban< Samura and when I asked him about [this Aad. only al-Easan’. ‘Three. iii. considered the expression ‘Your matter is in your hand’ as a potential triple divorce. iii. 123 al-Tirmidh. dwarfs the actual statement of the Prophet and does little to instil conﬁdence that anyone other than al-Easan al-BaBr. ‘I met up with Kath.. 2011 In a similar vein. Zayd Sulaym:n b. Then I returned to Qat:da and informed him of all this.oxfordjournals. Ibn R:hawayh follows the opinion of Ibn 6Umar. Ibn 6Umar: If she divorces him three times after he says. ‘God forgive me! There is the report which Qat:da related to me from Kath. (‘Your matter is in your hand’) is a single divorce. to which he said. 179/795] said to Ayy<b [al-Sakhtiy:n. Sunan (3al:q: 13). 131/748–9]. two luminaries of Aad. who considers the expression.’ Ayy<b continued. before recounting the following juristic disagreement on this topic: 6Umar and Ibn Mas6<d say. from the Prophet (peace be upon him). al-Tirmidh. al-J:mi6 al-BaA.’ he must take an oath. ‘Your matter is in your hand’ and the husband says. Ab< D:w<d. Zayd [d. E A D I T H .s ch o l a r s t yl e 351 matter is in your hand’ (amruki bi-yadiki). from Ab< Hurayra. M:lik and Ibn Eanbal agree with the position of 6Uthm:n and Zayd. while 6Al.’122 This conversation between Eamm:d and Ayy<b.th] he did not recognize it..
. fair.org at Princeton University on July 17. for example. 127 Note that al-Tirmidh.th. achieves a level of transparency and harmonization between Aad.127 or weak Aad. it can only be a single divorce. 4 Ab< D:w<d Sulaym:n b. 2011 Ibid. such as his collection of Ibn Eanbal’s legal opinions128 and especially his Epistle to the Makkans. his methodology is ultimately the same as that of al-D:rim. in which he Downloaded from jis. and if he intends a triple divorce. invented the grade of ‘fair’ (Aasan) and confounded generations of Aad. UK: Garnet. namely the discussion of only those legal topics connected to a sound. hardly an evaluation that inspires conﬁdence in its veracity. 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. 128 Ab< D:w<d. restricts his discussion to topics for which he has a prophetic Aad. who did not transmit any Aad. Rash. 60–90. the batta divorce counts as a triple divorce. it is singular.126 Al-Tirmidh. iii. Al-Sh:ﬁ6. and the Kufans. by Eerik Dickinson (Reading. An Introduction to the Science of Ead. Aslam.th. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’. 1934 or 5). transl. says that if he intends a single batta divorce. and if he intends a double divorce.125 Al-Tirmidh. M:lik says that if he has consummated the marriage. This is the opinion of Sufy:n al-Thawr.th scholars through his use of the expression Aasan BaA. it is only one divorce and he possesses the right to take her back. it is a double divorce. it is triple. 480-1 (3al:q: 2).th and the emerging schools of law that is unparalleled among his third/ninth-century peers. and if he intends a triple batta divorce. 17–23. (3al:q: 7).ths other than this one’. 126 125 .. it is a triple. Each Aad. if he intends a double batta divorce. see Ibn al-4al:A al-Shahraz<r. Ibid.th and he rarely presents multiple narrations of the same report. that 628isha’s report that the Prophet said.th is graded.A.oxfordjournals. 2005). al-Ash6ath al-Sijist:n. A portion of this text was translated on the basis of the superior G:hiriyya manuscript by Susan Spectorsky in Chapters. apart from his cohorts. along with his other short surviving books. Even though his inclusion of fragments of the discourse of juristic disagreement (ikhtil:f al-fuqah:8) sets al-Tirmidh. for an effort at elucidation.d Ri@:. Cairo. so the reader learns. is ‘poorly attested and only attributed to the Prophet by MuC:hir b. l uc as intention: if he intends a single divorce.352 s co t t c . Mas:8il al-Im:m AAmad (ed.
M:lik.6 b.134 As for the calibre of the Aad. 38. 6ilm muBtalaA al-Aad. 47.131 After boasting that his Sunan is the most necessary book for students to learn after the Qur8:n. 2011 . 131 Ris:lat Ab.138 129 The existence of this short work was brought to my attention by Christopher Melchert’s article.. 167/784) and 6Abd al-Razz:q al-4an6:n. He observes that the books of Ibn al-Mub:rak and Wak.. and al-Awz:6. 138 Ibid. he also says that 600 of these Aad.th to back them up’. 395–6.133 and he also encourages students to supplement their study of his Sunan by copying Companion opinions. M:lik.ths in his Sunan.th that has a serious defect (wahn shad. Ab< D:w<d also singles out Sufy:n al-Thawr.. al-Jarr:A (d. he had taken their juridical opinions and collected the Aad.. Ab< D:w<d provides the number 4800 on pp.. waBf Sunanih in 6Abd al-Fatt:A Ab< Ghudda (ed. 197/ 812). 52 and 54. and collected the Aad. 1997).. Downloaded from jis. the Muwa33a8 of M:lik. ‘Traditionist-jurisprudents and the Framing of Islamic Law’. 32–3. 130 Ibid.org at Princeton University on July 17. 133 Ibid.l.ths137 and claims to have identiﬁed in his Sunan any Aad.6 and 6Abd al-Razz:q.b) Aad.ths worthy of inclusion is his Sunan and that most of their (prophetic) material is mursal. D:w<d il: ahl Makka f. 33–4.s ch o l a r s t yl e 353 describes the methodology behind his Sunan..130 While this may be true in many or even most cases.¯ D I V O R C E . (d.ths that form the basis of the opinions of al-Thawr. defending the use of Aad. 136 Ibid. E A D I T H .th (Aleppo: Maktab al-Ma3b<6:t al-Isl:miyya. asserts that ‘Ab< D:w<d had [not] gone through the books of al-Thawr. 46. 137 Ibid.. 46–7. 37.. rather. after citing Ab< D:w<d’s claim in this epistle to have included the Aad.d) in its isn:d.). 132 Ibid.’s J:mi6 as being the ﬁnest work of its genre. 135 Ibid. Thal:th ras:8il f.129 Christopher Melchert.. 134 Ibid. and al-Sh:ﬁ6. presumably from books like those of Wak.ths are mar:s.oxfordjournals. Ab< D:w<d indicates in the Epistle his familiarity with the (untitled) books of Ibn al-Mub:rak (d. 181/797) and Wak.135 that are well known (mashh<r).132 He clariﬁes his legal methodology in this epistle.6 have few prophetic Aad. and al-Sh:ﬁ6. M:lik. and the MuBannafs of Eamm:d b.136 He is highly critical of reliance upon poorlyattested (ghar..ths in which the Companion link is missing (mursal) with the argument that al-Thawr.ths. Ab< D:w<d claims to have included approximately 4800 mostly good (B:liA) Aad. 157/774) all relied upon this type of report.th quoted there. ‘some of which are more sound than others’. Salama (d.
ths are identical to those found in al-D:rim. by touching on the topics of the reprehensible nature of divorce. to be justiﬁed.141 He also ventures beyond the books of Muslim. in large part.144 Furthermore.. 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.139 He occasionally provides unique Aad. and al-Tirmidh. 140 Ab< D:w<d. and taking back one’s divorced wife’. who quoted the Prophet as saying.’s Sunan and al-Tirmidh.142 words other than 3al:q that can effect a divorce. must be taken earnestly: marriage.]’ which is found in Ab< D:w<d. Ibn M:ja. Sunan (3al:q: 16). Sunan (3al:q: 17).’s J:mi6. 6Ub:da. al-J:mi6 (3al:q: 9)..org at Princeton University on July 17. divorce. 139 Downloaded from jis. Sunan (3al:q: 3). he argues for the invalidity of divorce while in a state of anger. 19). 446 (3al:q: 8). Sunan (3al:q: 16). ii. on the authority of 628isha.. if done earnestly or jokingly. Sunan (3al:q: 18. l uc as Despite his passion for Aad. such as ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’.ths have been discussed in the previous two sections.A (3al:q: 6). 143 Ab< D:w<d. and the story of Salama al-Bay:@.ths that address more precise legal points.th collection.143 and the implications of referring to one’s wife as ‘my sister’.. Ibn M:ja. Ibn M:ja. 145 Sunan Ab. al-Bukh:r. 4aA.354 s co t t c .. Sunan (3al:q: 1). Sunan (3al:q: 35). such as the story of Khuwayla bint M:lik and Aws b. 144 Ab< D:w<d. al-Tirmidh.th scholar in this survey to include all of his divorcerelated topics in his ‘Book on Divorce’. ‘You have a greater right to [your child] as long as you do not remarry’. 142 Ibid. . al-D:rim.140 and the episode of an anonymous woman who pleaded eloquently with the Prophet for custody of her child. 2011 . covers and all thirty of his topics are discussed by at least one of the ﬁve other Aad. Ab< D:w<d acknowledges that he is not certain what the word ghal:q (angry) in the Prophet’s statement means. D:w<d. Sunan (3al:q: 13). including those with inferior or even defective isn:ds.th scholars under consideration.’s broken Cih:r oath.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. Many of his Aad. to whom he replied. Ab< D:w<d.oxfordjournals. Ab< D:w<d is the only Aad. ‘Three [actions]. Ab< D:w<d only manages to expand modestly the scope of legal topics on divorce that al-Tirmidh. From a purely organizational perspective. 4aA. . 141 Anti aAaqqu bi-hi m: lam tankaA.A (3al:q: 10). Sunan (3al:q: 9). a feature that greatly facilitates All of these Aad. al-Bukh:r. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’. with the exception of ‘Three [actions . Ibn M:ja. ‘Divorce or manumission while angry is invalid’.
ths on the topic of the oath of abstinence. save Ibn M:ja and al-Bukh:r. the husband must issue an oath. however.¯ D I V O R C E . or Ab< D:w<d and only two of them are unique to Ibn M:ja’s Sunan. the witness’ testimony is invalid. relates in his J:mi6. and al-Tirmidh. and probably knew all of the information about juristic disagreements that al-Tirmidh.. Sunan (3al:q: 12). If he swears [that he did not divorce her].ths. 146 . Twentyseven of these topics. acquainted with the earliest law books. and 36 in Sunan Ibn M:ja. Ab< D:w<d follows essentially the same methodology as al-D:rim. Ibn Maj:’s Sunan earns the prize for the greatest number of divorce-related issues among the books under consideration. In conclusion. 148 Ibn M:ja. MaAm<d MuAammad NaBB:r.ths are unique to the Sunan and which are weak in his edition of this book.ths that only he narrates. Most of the topics he ignores fall under the category of the divorce procedure.146 He addresses the same or a greater number of legal topics on divorce than all of his contemporaries. E A D I T H .ths that are absent from the other canonical Aad.org at Princeton University on July 17.oxfordjournals. Thanks to his concise Epistle to the Makkans. while not shying away from a few weak and even poorly-attested ones when the only alternative is reliance upon post-prophetic authorities.148 Ab< D:w<d’s ‘Book on Divorce’ has a total of 50 chapters. At 32 topics.th books. 23 in al-Tirmidh. we can be conﬁdent that Ab< D:w<d was ﬂuent in the legal discourse of his day.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.’s J:mi6. If he refrains from swearing the oath. and Ab< D:w<d. Ibn M:ja’s two unique legal topics are both grounded upon weak Aad.d Ibn M:ja al-Qazw. The ﬁrst of these Aad.ths than any of them. and appears to relate a greater variety of Aad. 2011 5 Ab< 6Abd All:h MuAammad b. like the Muwa33a8 of M:lik and 6Abd al-Razz:q’s MuBannaf.n.: limiting discussion to legal topics that can be supported by sound or fair Aad. for identifying which Aad.. many of which are quite obscure. 147 I am grateful for the labours of the editor. Yaz.147 For example. are found in the compilations of al-Tirmidh. it distinguishes itself by its presentation of a surprisingly large percentage of unique and frequently weak Aad. Downloaded from jis. While Ibn M:ja’s book covers basically the same legal territory as the works of al-Tirmidh. although he also refrains from relating any Aad.s ch o l a r s t yl e 355 its use. his act of refraining counts as a second witness against him and the divorce is valid. in contrast to the 18 chapters in the ‘Book on Divorce’ in Sunan al-D:rim.
ths found in the 4aA.oxfordjournals. Ab< D:w<d has one narration with Qays b.. 24. Ibn M:ja follows the same basic methodology of al-D:rim. Ab< D:w<d. Ibn M:ja. Ibr:h. al-E:rith’s eight pre-Islamic wives.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. Sunan (nik:A: 40). Qays. 7. 246/860–1) as saying that the correct form is Qays b.th critics refrained from including in their books.. al-E:rith..A.’s techniques become apparent from a close reading of his Innam: l-3al:q li-man akhadha bi-l-s:q. which revolve around the anecdotes of Fayr<z al-Daylam. 16. thigh]’. 13/3 (2006): 289–324.’s marriage to two sisters prior to his conversion to Islam. Ism:6.l al-Bukh:r. Ism:6. 152 Ibn M:ja. al-E:rith and another with al-E:rith b.th scholars. Lucas. Salama’s ten-wife household. 17..153 Overall. Sunan (nik:A: 39). Al-Bukh:r. Islamic Law and Society. Sunan (nik:A: 40). 27. 151 Ibn M:ja.org at Princeton University on July 17. 153 Ibn M:ja.. al-Tirmidh.m (al-Dawraq. 6 Ab< 6Abd All:h MuAammad b.151 Qays b.th is found in each of the following chapters of Ibn M:ja’s ‘Book on Divorce’ in his Sunan: 1. He also addresses the three topics pertaining to conversion to Islam that are broached by al-Tirmidh. 22. 11–13. ‘The Legal Principles of MuAammad b. Sunan (3al:q: 25). At least one weak Aad. Sunan (3al:q: 25). and Their Relationship to Classical Salaﬁ Islam’. al-J:mi6 (nik:A: 34).149 Like so many weak Aad.’s legal hermeneutics represent a sharp departure from those of his contemporary Aad..356 s co t t c . 36. and al-Bukh:r. al-J:mi6 (nik:A: 33). l uc as The second Aad.152 and Ghayl:n b. see Scott C. 21.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. 6. and Ab< D:w<d by endeavouring to derive rulings almost exclusively from prophetic Aad. Sunan (3al:q: 31). and Ab< D:w<d. He quotes AAmad b. 30–32. 150 149 Downloaded from jis. Ibn M:ja..154 al-Bukh:r.ths in Ibn M:ja’s Sunan. 154 For a detailed analysis of this topic.As of Muslim and al-Bukh:r. 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. al-Tirmidh. al-Tirmidh. d.l al-Bukh:r. 19. like al-Tirmidh.. 2011 . While this is not the appropriate place to review his chapters on legal methodology in his 4aA. although he has a special penchant for relating material that most major Aad.ths of variable degrees of reliability.
all of whom narrated a prophetic Aad. J:bir b. 6Utba. ‘It is like the Cih:r of a Qur8:n 33. 2) shedding light on a divorcerelated topic by means of Aad. MuAammad b. Mas6<d). Al-Zuhr.). 2011 . 6Abd All:h b. 6Abd al-RaAm:n (b.¯ D I V O R C E . 6A3:8 b.156 While al-Bukh:r. 6Abd All:h b. al-Q:sim b. avoids it and instead begins his chapter by reminding the reader of the Cih:r verses in the Qur8:n (58.155 Al-Bukh:r. 4aA. al-Eusayn (Zayn al-62bid. al-Zubayr. ‘divorce is only valid if you are married to (lit. Unlike al-Tirmidh. 62mir b.ths that have no obvious connection to divorce. Bakr). ‘Believers..th and grades them as Aasan ghar. 158 al-Tirmidh. 4aA. Ab. own) the woman’. al-Musayyab. and 3) relating Aad.oxfordjournals. al-Bukh:r. N:ﬁ6 b. Sulaym:n b. Jubayr (b. about the Cih:r oath executed by a slave. F:w<s. FatA al-b:r. 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’.A. Ab. and al-Sha6b.). He also reports that the protagonist’s name is Salm:n in one version and Salama in the other two. narrates three variants of this Aad.A (3al:q: 9). Yas:r. 49.org at Princeton University on July 17. S:lim (b. Ab:n b. 478 (3al:q: 9). 1–4) before writing: Ism:6. and 6Amr b.b. al-Bukh:r. al-J:mi6 (3al:q: 19. discusses a topic without relating a single prophetic Aad. Ab< D:w<d. including Sa6.. al-Easan al-BaBr. Sa6.s ch o l a r s t yl e 357 ‘Book on Divorce’.A (3al:q: 23).b BaA.th is the Cih:r oath. 20). b. follows this verse with his observation that the opinion that a woman cannot be divorced prior to marriage is afﬁrmed by narrations from 6Al. does not explicitly claim that consensus exists on this issue. x. Rab:A. 6Umar).ths that none of his fellow compilers narrate. Uways) said to me: M:lik related to me that he asked al-Zuhr.158 al-Bukh:r. 6Uthm:n. E:rim (al-Azdi). Mu36im). names in support of this position are 6Urwa b.d b.d b. Ab.th that clearly states. 156 155 Downloaded from jis.n). The remaining Successors whom al-Bukh:r. and Aasan. Jubayr.. 6Abd All:h b. and Ibn M:ja. Muj:hid.. and an impressive list of twenty-three Successors. One of the clearest cases of al-Bukh:r. 6Ikrima. Zayd. A second case in which al-Bukh:r. begins his discussion of this topic with Ibn 6Abb:s’ observation that God puts divorce after marriage in the Qur8:nic verse. Sa6d (al-Bajal. E A D I T H .. 6Ubayd All:h b. 6Al. 6Abd al-RaAm:n (b. Aasan ghar. 157 Ibid. al-E:rith b. al-Q:sim (b.l (b. Hish:m). MuAammad b. Ka6b (al-QuraC. These techniques include: 1) relying solely upon postprophetic authorities for certain topics.’s story. ShurayA. 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..157 Perhaps due to the lessthan-sterling isn:d of Salama al-Bay:@. said.’s reliance on post-prophetic authorities is the topic of premarital divorce. Ab< Bakr b.
‘An Ascetic Vow or an Unseemly Oath?’ 117. relates twelve Aad. 50–2. 160 al-Bukh:r.s of the verse thumma ya6<d<na li-m: q:l< as ‘and then they utter the Cih:r oath again’. ‘The Cih:r oaths of a free man and a slave against a free woman and a slave woman are identical’.. ‘The fast [of expiation] is two months’..h) in his book on legal methodology and some Muslim scholars have argued that ‘comparison’ is just another word for analogy (qiy:s). 4aA. 3). Ab.s held that one only had to perform the expiation for every other Cih:r oath. occasionally puts front and centre in his 4aA.162 For example. The G:hir. it is meaningless.oxfordjournals.. Al-Bukh:r. 545 (3al:q: 23). calls this technique ‘comparison’ (tashb.A.358 s co t t c .). Qat:da.161 Note the absence in this case of both prophetic and Companion reports and the presence of al-Bukh:r. He also includes the opinions of al-Sha6b. 1971). ‘If a man issues a Cih:r oath on his slave girl. 6Ikrima said.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. Sulaym:n) in support of this position.A (al-i6tiB:m bi-l-kit:b wa-l-sunna: 12). Easan b.. Ibn Eajar notes that all three men share the same opinion concerning the Cih:r of a slave. 4aA. who does not appear anywhere else in the text. in his Ibn Eajar reports that most manuscripts of al-Bukh:r. [al-Bukh:r. the expression ‘li-m: q:l<’ [Qur8:n 58. is refuting the reading adopted by the G:hir. l uc as free person’. ‘Legal Principles’. and Eamm:d (b.163 Likewise. because Cih:r is only for (free) women’. FatA al-b:r.m al-Nakha6.’s exegesis on the meaning of one of the crucial Qur8:nic verses on the Cih:r oath—material that al-Tirmidh. but that others have Easan b. see Hawting. 159 Downloaded from jis. 544 (3al:q: 23). The G:hir. regularly interjects between Aad. al-Bukh:r.:] In the Arabic language. ‘(those men) who violate what they said’.. 161 Ibn Eajar explains that al-Bukh:r. but which al-Bukh:r. 2011 ..ths in chapters on divorce topics that have no transparent relationship to this topic but share a common similarity that renders them useful. x.A have Easan b.ths in his J:mi6.na yuC:hir<n min nis:8ihim thumma ya6<d<na li-m: q:l< fa-taAr. al-Eurr159 said. and M:lik said. 25).e. This reading is superior since God (Exalted) does not lead (His creatures) to wrongdoing (munkar) and false speech (qawl z<r). The second technique al-Bukh:r. 3]160 means the same as ‘f.ru raqaba (58. Their Doctrines and Their History (Leiden: Brill. x.-m: q:l<’. see Lucas.’s 4aA. al-Eurr.s.A (3al:q: 24. quoting Ignaz Goldziher. is providing his interpretation of the verse. the best understanding is. 162 al-Bukh:r. 304–8. Ibr:h. Eayy and still others have just Easan (which by convention would be al-Easan al-BaBr. For a discussion of the controversy over the term tashb. 163 al-Bukh:r.h. break the Cih:r oath they uttered). uses is to include Aad. FatA al-b:r.. instead of his preferred reading of ‘and then if they violate what they said’ (i.org at Princeton University on July 17. wa-l-l:dh. and (in the case of this verse).
166 that the Kufan Ibr:h. but if she does not. al-Bukh:r. before narrating a Aad. 4aA. and other things done accidentally or in a state of forgetfulness’. and that al-Zuhr.. also places two statements in 6Al. al-Bukh:r. M:lik’s repentance for avoiding the T:b<k campaign. as a divorce. Ibn M:ja. Al-Bukh:r.m al-Nakha6. a fragment of which is cited by Ab< D:w<d. that Ibn 6Umar. 4aA. This same expression appears in a very long story about Ka6b b.-l-ighl:q wa-l-kurh wa-l-sakr:n wa-l-majn<n—wa amrihim:—wa-l-ghala3 wa-l-nisy:n f. recounts a string of opinions and stories from a small group of Companions and Successors without any isn:ds. None of these scholars links this Aad. Ab. considered valid the divorce utterance issued in one’s (non-Arabic) native tongue. ‘If you leave the house. al-Bukh:r.org at Princeton University on July 17. and his wife leaves the house. ‘Go stay with your family’. Rab:A. This Aad. Chapters. considered the expression. Di6:ma considered a conditional divorce valid if the condition was fulﬁlled.A (magh:z.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. you are decisively divorced’. 4aA. E A D I T H . 166 The example Ibn 6Umar provides is a man who says.: 80) and Muslim. considered the expression ‘You are not my wife’.A (3al:q: 22). uses both strategies of citing post-prophetic reports and unexpected prophetic Aad.A (3al:q: 11). al-J:mi6 (aAk:m: 35).th to the topic of the missing husband.164 Frequently. apostasy.ths in the same chapter. After his citation of a fragment of the famous Aad.A (tawba: 9).’s mouth that are elevated to the Prophet in other books: ‘The Pen al-Bukh:r.A (luq3a: 1). to count as a divorce if that is what the husband intended. Sunan (luq3a: 2). This expression can also be found in a report about the episode of the ‘woman who sought refuge from the Prophet’ in Ibn M:ja.. Sunan (3al:q: 18)..¯ D I V O R C E . See also Spectorsky. Ibn Mas6<d.A. al-Tirmidh.167 Al-Bukh:r. 32–4. 165 B:b al-3al:q f. Sunan (3al:q: 11).th is found in Muslim. 2011 .. A vivid example of this practice is his chapter on ‘Divorce while angry. and the Basran Qat:da b. Ibn 6Abb:s. 4aA.165 Al-Bukh:r. intoxicated or insane. The complete story can be found in extra-legal chapters of al-Bukh:r. and al-Zuhr.oxfordjournals. 164 Downloaded from jis. the Makkan 6A3:8 b.th. if that is what the man intended. 167 al-Bukh:r. with which he inaugurates his entire 4aA. under compulsion.’s string of adverse conditions under which a divorce can occur prepares the reader for multiple opinions from a variety of authorities. Ab< D:w<d.-l-3al:q wa-l-shirk wa-ghayrih. divorce. Sunan (luq3a: 1). We learn that 6Uthm:n and Ibn 6Abb:s considered the divorce enunciated by a drunken man to be valid. 4aA. she is divorced decisively. also reports that al-Easan al-BaBr.s ch o l a r s t yl e 359 chapter on the ‘missing husband’ (mafq<d). ‘Actions are by intentions’. there is no divorce. presents the opinions of Ibn al-Musayyab.
none of which has anything explicitly to do with divorce. 81 (Aud<d: 22). In both versions cited here. there is no indication that the compilers of these books consciously linked it to the topic of divorce uttered by an insane man. al-J:mi6 (3al:q: 8). Ibn Eajar. explicitly identiﬁes ‘the man from Aslam’ as M:6iz. Sunan (Aud<d: 1). Sunan (3al:q: 15).. l uc as (recording one’s bad deeds) is raised in three cases—the insane person prior to the return of his reason.th in Ibn M:ja. The ﬁrst Aad.168 and.’s ﬁnal effort to reach a broader array of legal topics without relying upon Aad.A.l.l.360 s co t t c .ths. insanity. Al-Tirmidh. Al-Bukh:r.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..A (3al:q: 3). al-Bukh:r. that can be applied by jurists beyond the immediate case in which it appears. and al-Tirmidh. the ﬁnal question that the Prophet asks prior to implementing the punishment of stoning is. another as al-Jawniyya. in his commentary..th in which the Prophet identiﬁes a ‘ruleoccasioning factor’ (6illa). 487 (3al:q: 11). ‘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.. see al-D:rim. Sunan (3al:q: 14). Sunan (Aud<d: 16). M:lik al-Aslam.th is the prophetic statement that. al-Bukh:r. xiv. 170 This Aad. 168 Downloaded from jis. al-J:mi6 (3al:q: 15).. Ab< D:w<d. Sunan (3al:q: 15). He appears to have had special access to reports about the story of Umayma bint Shar:A. and the third as Umayma bint Shar:A. al-Bukh:r. ‘God disregards that which [members of] my community say to themselves and refrain from acting upon or divulging to anyone else’. After touching on a variety of additional topics in this chapter.oxfordjournals. the youth prior to discernment. proceeds to recount three Aad. Even though it appears in three of the additional books under consideration in this article. x.. FatA al-b:r.ths indicate that the Prophet would not have stoned the fornicator from Ban< Aslam had he lacked his rational capacity.org at Princeton University on July 17. 4aA.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. ‘Every type of divorce is permissible.169 But this is not all. in versions of this story outside of al-Bukh:r. 172 There is considerable confusion as to this woman’s name. 171 This man is named as M:6iz b. puts this sentence in the mouth of the Prophet.th is found in chapters concerning the invalidity of a divorce which a man utters only to himself in Ibn M:ja. al-Tirmidh. and the sleeper prior to his awakening’.’s 4aA. in one report she is described as Bint al-Jawn. suggests that divorce committed while intoxicated or insane would likewise be invalid. This is a good example in which ‘comparison’ really is qiy:s. 2011 . al-J:mi6 (Aud<d: 1). except that of the insane person (ma6t<h)’. FatA al-b:r. since it is based on a Aad. 169 Ibn Eajar. Ab< D:w<d.
s ch o l a r s t yl e 361 whom the Prophet subsequently divorced via a messenger rather than face-to-face.173 Al-Bukh:r.A (3al:q: 24).¯ D I V O R C E . largely on the basis of juxtaposing three prophetic Aad.. 4aA. a woman’s right to leave the house during al-Bukh:r. appears to distinguish between the dower in the case of adultery or prostitution (baght) and an invalid marriage (nik:A f:sid). but they are not linked in any manner to the topic of the invalid marriage that results in an automatic divorce.’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. enabled him to transcend the limits dictated by purely sound Aad. this Aad. Ibn M:ja includes a variant of this story. 173 Downloaded from jis.175 Finally.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.A (3al:q: 51). 1936). 175 al-Bukh:r. I may have unintentionally inﬂated the number of divorce topics covered by al-Bukh:r.oxfordjournals.’s willingness to use post-prophetic material and ‘comparison’. 4aA. eight) categories of divorce law. 4aA.A (3al:q: 52)..ths are found in the books of al-D:rim.179 In other words. Brill. is unique in linking the oath of . 4aA.th does not actually refer to the . 204. i.A. discuss the least and second-greatest number of legal topics on divorce in their respective 4aA.l:8 ‘the jurists discuss’.177 divorce by pointing. Concordance et Indices de la Tradition Musulmane (Leiden: E. J. Sunan (3al:q: 16). (3al:q: 43).th initially appears in Bal:t: 18). Ab< D:w<d..As..l:8 regulated by the Qur8:n. 174 al-Bukh:r. such as divorce prior to consummation. 179 Ibid. ‘baghiyyun’. 178 Ibid. Sunan (3al:q: 18).l:8 to the story of the Prophet falling off of his horse and breaking his leg. and al-Tirmidh. 177 al-Bukh:r.th scholars investigate.178 and the ruling that women are not allowed to conceal that they are pregnant at the time of divorce. However. J.ths in which the dower for adultery and prostitution is unambiguously prohibited with al-Easan al-BaBr. Muslim. 2011 . 4aA. presumably since it is only for one month rather than the fourmonth ..th scholars.org at Princeton University on July 17. Wensinck.. 4aA.176 It is paradoxical that the two strictest Aad. since he alone among his contemporaries addresses eight topics. 8 vols. See A.. and he is silent on the topics of child custody. These Aad. counting conversion. only al-Bukh:r.ths.A (3al:q: 3).. Muslim and al-Bukh:r. Al-Bukh:r.A (3al:q: 21. he actually covers only 23 topics that his fellow Aad.ths addressing the seven (or. which he recounts in numerous places throughout his 4aA. Note that Ibn Eajar declares that this Aad. Ab< D:w<d. E A D I T H . 176 al-Bukh:r.. as well as his vast collection of Aad.A (3al:q: 10)..
since his ‘Chapter on divorce while angry. The ﬁrst was the surprising fact that only six legal topics were covered by all of the Aad. etc. 180 Downloaded from jis. insane. and early postprophetic authorities. Despite the common allegiance to and profound knowledge of Aad. Aad. shies away from both sub-par Aad.oxfordjournals. intoxicated. as well as its compiler’s creative utility of narrations that bear little explicit relationship to the legal topic under discussion.A is distinguished by its diversity of topics.. These topics seemed highly random and each one appeared to derive from a tangled web of narrations For example.. none of the other ﬁve books addresses the topics of divorce while intoxicated.’s breadth of legal topics.th scholars under examination. I assembled a list of 45 legal topics that I derived from the six Aad. l uc as the daylight hours of her waiting period.org at Princeton University on July 17. Then I had to track down topics related to divorce found outside of the six scholars’ ‘Books on Divorce’.180 Even though al-Bukh:r.’ actually covers numerous topics.th scholars of the third/ninth century in order to learn more about their compilers’ methods of jurisprudence. the validity of conditional divorces. al-Bukh:r. ‘I don’t have a wife’. Ab< D:w<d.ths.ths and the legal opinions of most of the eponyms of the Sunni schools of law. All of these topics can be found in the early ﬁqh books. or the consequences of the husband’s expression.. Ibn M:ja. and al-Tirmidh. under compulsion. in consultation with the early proto-madhhab law books of the third/ninth century and Susan Spectorsky’s Chapters on Marriage and Divorce. several of which are unaddressed in the other ﬁve books under consideration. the validity of divorce uttered in a language other than Arabic.th scholar addressed. Muslim. Two discoveries initially emerged from this analysis. a task facilitated by the modern editors of these books. and whether a man with ten wives must divorce six of them upon his conversion. 2011 . It is also possible that I undercounted al-Bukh:r.ths among al-D:rim. Finally. several factors made a comparison of their books complicated.362 s co t t c . It was necessary initially to ﬁlter out the chapters in the scholars’ respective ‘Books on Divorce’ that bore no clear relationship to the legal processes by which a marriage can be terminated.th books in order to evaluate the range of topics each Aad. his 4aA. CONCLUSIONS This project began as a simple comparative exercise between the books of six famous Aad.
. his technique of ‘comparison’. The most signiﬁcant conclusion from this analysis is that the Aad. Muslim. This strategy enabled all of them. appeared more reticent to do so.th scholars adopted three methodological approaches to the articulation of Islamic law in their books. but were willing to supplement their meagre ﬁndings with useful prophetic material related through inferior chains of transmission. ‘Every type of divorce is permissible.182 Likewise. al-Bukh:r. based on the analysis of the presentations of these six universal topics.oxfordjournals. and Ibn M:ja. 4aA. freedom from overt madhhab loyalty.s ch o l a r s t yl e 363 of a discrete episode during the Prophet’s lifetime. also advocate the impermissibility of a woman to demand that her suitor divorce his current wives as a stipulation in her marriage contract. with the exceptions of al-D:rim. E A D I T H . or ‘The women who perform khul6 are hypocrites’. He evaluates its isn:d as ghar.¯ D I V O R C E .. and his skill at ﬁnding obscure Aad. The second discovery. except that of the insane Only al-Tirmidh. True.org at Princeton University on July 17. and their accumulation of a massive trove of transmitted materials. and Muslim may have been more khul6-friendly than their contemporaries. Finally. save al-D:rim. Sunan (3al:q: 2). especially the episode of F:3ima bint Qays. all endeavoured to base their legal rulings upon sound prophetic Aad. al-Bukh:r.. First.A (nik:A: 54). narrates this weak Aad.’s method of relying upon Companion and Successor reports instead of prophetic Aad. Ibn M:ja. al-J:mi6 (3al:q: 14). 182 al-Bukh:r. Despite these six scholars’ distinct methodological differences. al-J:mi6 (3al:q: 11)... Ab< D:w<d. al-Tirmidh.b.th. then again. Muslim and Ibn M:ja were frequently willing to state their personal legal opinions. ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from (enjoying) the scent of Paradise’. is there any practical difference whether 6Al. was that al-D:rim. to double the number of divorce-related topics addressed by Muslim. for they do not claim that the Prophet said.ths. 4aA.. Secondly. Ab< D:w<d. most of whose protagonists were named women and men. al-Bukh:r.ths that met his critical standards.A. 2011 . laysa isn:duhu bi-qaw. Muslim restricted his 4aA. whereas Ab< D:w<d and al-Tirmidh.ths and subsequently limited himself to a mere twelve topics on divorce. or the Prophet said. four of which do not even appear in the ‘Book on Divorce’. one searches in vain for dramatic differences between their personal legal opinions. 181 Downloaded from jis.A (buy<6: 4).. and al-Tirmidh. al-D:rim. allowed him to address approximately the same number of topics as Ibn M:ja and Ab< D:w<d.181 but. although he only overlaps with either of them in 23 cases. All of them.ths. Muslim does not even mention the topic of khul6 in his 4aA.A solely to what he considered to be sound prophetic Aad.
211–58. 185 A most useful summary of Western scholarship on this topic is found in Motzki. Origins of Islamic Jurisprudence.183 Only al-Bukh:r. if we shift our gaze from their personal jurisprudence to the actual Aad.th scholars were of very limited utility for the articulation of certain ﬁelds of Islamic law in the third/ninth century. and al-Bukh:r. Herbert Berg. touches on 16. this aggregate remains signiﬁcantly smaller than the 250–300 topics covered by 6Abd al-Razz:q and Ibn Ab. Ibn M:ja comments on 32. While it might be tempting to dismiss these six Aad.ths in the early centuries of Islam. Lucas.org at Princeton University on July 17. is also indispensable.th scholars in this study. al-D:rim. al-Tirmidh. The Origins of Muhammadan 183 Downloaded from jis. 2011 . evaluating.th-scholars as uninspiring jurists. 1–49. 184 For a quantitative analysis of Ibn Ab. Successors and. Even if I have been conservative in my identiﬁcation of only 45 divorce topics among these six books.364 s co t t c . See also Motzki.ths acceptable to critical Aad. Muslim only discusses 12 topics related to divorce. while his junior contemporaries perform the service of carefully organizing.. 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. The Origins of Islamic Jurisprudence. in the case of the latter book. 2003). Ab< D:w<d mentions 30. Shayba in their MuBannafs and the approximately 125 topics in SaAn<n’s Mudawwana.oxfordjournals. and in the case of al-Tirmidh. we may. This stunning paucity of divorce topics supported by Aad. The classic statement on the massive forgery of Aad. Shayba’s MuBannaf. the classic reference works of Aad.ths remains Joseph Schacht.185 There must Only 29 topics on divorce are addressed by three or more of the Aad. advance a bold claim: prophetic Aad. ‘Where Are All the Legal Ead. ‘The Question of the Authenticity of Muslim Traditions Reconsidered: A Review Article’.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.184 One could argue that the six Aad. His essay.ths that have adorned the bookshelves of Sunni jurists for the past millennium. Leiden: Brill. considers 31. in Method and Theory in the Study of Islamic Origins (ed. see Scott C.th scholars under consideration for this article were simply attempting to articulate Islamic law with the wrong materials.ths they relate. l uc as person’? With the notable exception of the topic of the waiting period of the triply-divorced woman. the hallmarks of Aad. forthcoming.th scholars as a modestly sophisticated jurist. emerges from this group of Aad.ths?’ in Islamic Law and Society. The two MuBannafs and Mudawwana rely primarily on post-prophetic authorities and include thousands of reports attributed to Companions. covers 24.
since the compilers possessed the requisite skills to make forgeries with sound isn:ds. 189 Ibid. 27–84. along with most Successor reports. Schacht considers all prophetic Aad. and claims that ‘the bulk of the legal traditions from the Prophet known to M:lik originated in the generation preceding him. Islamic Methodology in History (Islamabad: Islamic Research Institute.ths for articulating Islamic law in the wake of al-Sh:ﬁ6. 240–4. Is it now safe to propose that al-Shayb:n.¯ D I V O R C E . 199. to be ﬁctitious (p.ths not primarily because early Eanaf. 2011 Jurisprudence (London: Oxford.186 One possibility is that most of the forged Aad.. al-J:mi6 al-Bagh.ths and Aad.187 Another possibility is that all six Aad. 187 Many of the Aad. ii. The fact that al-D:rim. although Ibn M:ja’s relaxed standards would seem to contradict this hypothesis.oxfordjournals.188 or the legal consequences of a virgin woman dying midway through her husband’s utterance of ‘You are divorced singly’?189 E-mail: firstname.lastname@example.org scholars truly were such critical compilers that each one of them was left with materials covering barely two dozen legal topics on divorce. 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. 89–125. .arizona. ‘You are divorced whenever you wish’ and ‘You are divorced however you wish’.th compilations should caution us against the twin errors of underestimating the critical selectivity of these Aad. E A D I T H .’s al-J:mi6 al-Bagh.r is devoid of Aad.r. and Fazlur Rahman.ths from which to choose. Ibn M:ja. n. 149). apocalyptic. 188 al-Shayb:n. There must also be a reason why so many Aad. 178).ths with inferior and at times outright defective isn:ds appear in these canonical books.ths and Companion reports..th scholars and exaggerating the utility of prophetic Aad.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. al-Bukh:r. and sectarian topics rather than legal ones. Muslim. and al-Tirmidh. d. Ab< D:w<d..’s teachings.th books if the early 6Abbasid period was awash in Aad. leaving our six compilers with relatively few divorce Aad. see Origins. 213. address such a modest and random array of divorce topics in their Aad.ths discussed theological.th forgers.. see Goldziher. Muslim Studies. 186 A similar argument is advanced by Motzki.org at Princeton University on July 17.s may have disliked them on principle. 1975 (1950)). but rather due to the sheer absence of Aad.ths that shed light on the difference between the statements.ths criticized by Goldziher and Fazlur Rahman fall under extra-legal classiﬁcations.edu Downloaded from jis.).
7. al-J:mi6 al-4aA. 60.. al-Bukh:r. 32–45.3) (AD:4) (T:1) (D:4) (B:4.. D:w<d al-Tirmidh..19–22. 9–32. Nik:A: 54 Fal:q: 1–8. B: al-Bukh:r. al-J:mi6 al-4aA.org at Princeton University on July 17.17. l uc as APPENDIX Table 1: Chapters on Divorce Used in this Study Book Sunan al-D:rim. AAk:m: 21 Total(172) 16 47 12 37 36 24 Downloaded from jis. Abbreviations: D: al-D:rim.37–41. so the ﬁfth chapter of al-Tirmidh. 14–17.33.A Divorce chapters Fal:q: 1–11. that book’s title will be included in the citation. Nik:A: 32. AAk:m: 22 Fal:q: 2–29. If it is in any other book. T: al-Tirmidh. 43..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’. 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:15.16) (AD:8) (T:15) (D:1) (B:1. Nik:A: 17. 36. Nik:A: 39 Fal:q: 1–17. Buy<6: 4. M: Muslim.oxfordjournals. If the indicated chapter is found in the ‘Book on Divorce’. IM: Ibn M:ja.49 Fal:q: 1–11.47. Li6:n190 Fal:q: 1–7. AD: Ab< D:w<d.366 s co t t c . 191 190 . 39. 34. just the chapter number is provided.A Muslim Sunan Ibn M:ja Sunan Ab.51–53.A 4aA.13–15.’s ‘Book on Marriage’ would read (T: nik:A: 5).35. 6Itq: 2.19–30.2) (M:1) (IM:2.. Nik:A: 27. 40.
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. E A D I T H .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. 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) .org at Princeton University on July 17.32) (AD:6) (T:7) (D:16) (IM:aAk:m:22) (AD:26.¯ D I V O R C E . 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:41.45) (IM:1.42) (M:6) (IM: 10) (AD:39. 40) (T:5) (D:11) (B:39) (M:8) (IM: 6.7) (AD:47) (T:17) (D:14) (M:7) (IM:9) (AD:41) Downloaded from jis.35) (T:aAk:m:21) Taking one’s wife back after a revocable (D:2) (B:44. 38) Words other than 3al:q that can cause divorce (B:6) (IM:18.oxfordjournals.5) divorce (AD:5.8) (M:3) (IM:28) (Aar:m) Implications of referring to one’s wife as (B:10) (AD:16) ‘my sister’.
org at Princeton University on July 17.20) (B:21) (M:5) (IM:24) (T:21) (B:19.368 s co t t c . 32–36) (M:li6:n) (IM:27) (AD:27–29) (T:22) (D:9) (B:23) (IM:25–6) (AD:17) (T:19.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.r does not count as a divorce if the woman chooses her husband 38 A manumitted married slave woman has the right to takhy. 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.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 . 2011 (D:nik:A:39) (B:25–30.20) (IM: nik:A:60) (AD:23.r 37 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.l:8 H) Conversion issues 43 Impact of conversion to Islam upon married non-Muslims 44 A man with more than four wives must reduce his number of wives to four upon conversion to Islam 45 Convert must choose one of two sisters whom he married prior to beoming Muslim .oxfordjournals.5) (IM:20) (AD:12) (T:4) (D:15) (B:15–17) (M:6itq:2) (IM:29) (AD:19–22) (AD:13) (T:3) Downloaded from jis.
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