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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.
2.25 Downloaded from jis.oxfordjournals. Spectorsky.23 Most of the chapters on divorce in the aforementioned MuBannafs of 6Abd al-Razz:q and Ibn Ab. discusses at some length takhy. covers all of them except the Cih:r oath. Scotland: Madina Press. E A D I T H . 228.. Shayba.24 Finally. 24 While Spectorsky does not count the effects of conversion and apostasy among the seven major divorce topics.20 7.r. Qur8:n 2. ‘Book on Gih:r’. 59. al-J:mi6 al-Bagh. The Muwatta of Imam Muhammad. .A. 2004). allowed the couple to remarry after the li6:n procedure. while the recension of al-Shayb:n.r and the oath of sexual abstinence in the ‘Book on Divorce’ and mutual imprecation in the ‘Book on Gih:r’.¯ D I V O R C E .’s recension of M:lik’s Muwa33a8 has at least two chapters on all seven of these categories. 49. 2011 20 Spectorsky.s ch o l a r s t yl e 329 6. 52–9. and devotes special attention to a dizzying array of divorce statements.org at Princeton University on July 17. Qur8:n 2. 33. 221–43. and ‘Book on Waiting Periods’. 22 M:lik b. 242–72.’s (d. al-Muzan.r.r (Beirut: 62lam al-Kutub. along with SaAn<n’s Mudawwana. 4. The text also reports that al-Shayb:n. ibid. . 2001). transl. 50–2. 25 Note that al-Muzan. Near the end of this section. ‘Book on Divorce’ (3al:q). YaAy: al-Layth. separates them. with the exception of mutual imprecation. states that the li6:n procedure does not result in the dissolution of the couple unless the q:@. Mohammed Abdurrahman and Abdassamad Clarke (London: Turath Publishing. covers all of these categories in some depth. 191–243. she mentions them under her subheading. 23 MuAammad al-Shayb:n.21 This framework works very well with most of the early ﬁqh books that have survived. al-J:mi6 al-Bagh. Chapters. ‘Various other topics’. ma6a sharAih al-N:ﬁ6 al-kab. If he does so. . whereas Ab< Y<suf denied such a possibility.S. ‘ . Chapters.22 Al-Shayb:n. fall into these seven categories.) 21 Spectorsky. Chapters. 264/878) decision to divide the divorce-related topics in his MukhtaBar into the ‘Book on Female-initiated divorce’. 234 (widow). indicates the signiﬁcance of these categories in his vision of Islamic law.ths with isn:ds pertaining to divorce are found in M:lik’s Muwa33a8 and only three are present in al-Shayb:n.. transl.’s recension. Anas. al-Shayb:n. Aisha Bewley (Inverness. 1986). this counts as a single divorce in which the husband does not have the right to take back his wife during her waiting period. 2004). The waiting period (6idda). 229. 242–3. al-Muwatta of Imam Malik ibn Anas: The First Formulation of Islamic Law. 65. and MuAammad al-Shayb:n. although these books also explore the effects on the marriage bond of conversion to and apostasy from Islam.’s book. The female-initiated divorce (khul6). Note that only ﬁve prophetic Aad. (All Qur8:nic citations in this article are from M. Abdel Haleem’s The Qur8:n: A New Translation (Oxford. it is no sin for either of them if the woman ransoms herself’.
ths are repositories of the earliest Muslim debates. S.330 s co t t c . broached in their books.th scholars under consideration.. there were several contentious topics among the early jurists that none of the Aad.27 These Aad.. This quality inevitably facilitated memorization and transmission of each episode. The story fragments from here. al-Bukh:r. postponing his right to divorce until the time when she has puriﬁed 26 ‘[The corpus of Aad. 27 Ibn M:ja puts it in the second and third chapters. since Western scholars have long argued that Aad. ii. and that the Prophet ordered 6Umar to tell his son that he must take back his wife. Muslim Studies (ed. with one variant having the Prophet granting Ibn 6Umar the right to divorce her after she has puriﬁed herself from menstruation.26 1 The Sunna Divorce: The story of Ibn 6Umar’s mistimed divorce Al-D:rim.. resulted in divergent reports that correlate to juristic disagreements. l uc as This study demonstrates that the Aad. Despite this general awareness. We shall now examine the six legal topics addressed by all of the Aad. in several cases. were well aware of the major legal debates that had been brewing since the second/eighth century. M.ths report that Ibn 6Umar divorced his wife while she was menstruating. 2011 Only six legal topics concerning divorce can be found in all of the Aad. Chicago: George Allen and Unwin. and al-Tirmidh. that his father reported this action to the Prophet. 19.oxfordjournals.. and the right of a woman whose husband has gone missing (al-mafq<d) to dissolve her marriage in order to remarry. with the exception of al-Bukh:r. Stern. 2 vols. and. This ﬁnding is not unanticipated. Each of these topics is afﬁliated with a unique cluster of narrative Aad. along with its concomitant legal implications. in a second variant. the effect on inheritance of the man who divorces his wife during his terminal illness. to al-Tirmidh. Ignaz Goldziher. CASE STUDIES: UNIVERSAL TOPICS Downloaded from jis.org at Princeton University on July 17.ths that are often recounted through multiple channels of transmission.th scholars under discussion and then analyse the methodology of each scholar individually. Muslim. but also.th] contains invaluable evidence for the evolution of Islam during the years when it was forming itself into an organized whole from powerful mutually opposed forces’. .th books under analysis. 1971 (1889–90)). These topics include the validity of conditional divorce statements. while Ab< D:w<d places it in Chapter 4. all open their ‘Books on Divorce’ with the tale of 6Abd All:h b. 73 or 74/692–3) poorly-executed divorce. 6Umar’s (d.th scholars from al-D:rim.
31 Muslim.ths contradict what Ab< l-Zubayr said. 4aA. 4aA. namely that Ibn 6Umar’s divorce did not count as one of the two revocable divorces. his divorce counts and he is to be ordered to take back his wife’. ‘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). ‘It is unlawful to divorce a menstruating woman without her consent and if he disobeys this rule. 30 Ibid. in the following chapter.A (3al:q: 1). The transmission from Ibn 6Umar (S:lim and N:ﬁ6) al-Zuhr..¯ D I V O R C E .r.th from Ibn 6Umar: The gist according to all of them is that the Prophet ordered (Ibn 6Umar) to take back his wife until she was free from menstruation. says that the Prophet ordered Ibn 6Umar to take her back until she was free from menstruation. The primary lesson from this story is that a man must take back his wife if he divorces her during her menstrual period. 6Abd al-RaAm:n related from S:lim. D:w<d. had another period. that the divorce counts as one of his (two) revocable divorces. S. 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. and then was free from menstruation again. and if he wished. 2011 Ibn 6Umar’s story became inseparable from the ‘sunna divorce’.org at Princeton University on July 17. states. (3al:q: 2).29 and. and links it to ‘the practice (6amal) of the scholars among the Companions of the Prophet and others’. in one of his rare legal opinions. if he wished. 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). he could divorce her. al-Mu6tamir) via Ab< W:8il all relate this Aad. Ab< D:w<d elucidates the tangled web of transmissions of this story: Y<nus b.n. . Sa6. All of these Aad.th compilations. 29 al-Bukh:r.30 Muslim. on the authority of Ibn 6Umar.. prior to making a decision whether to divorce her or keep her. Anas b. Al-Bukh:r. uses the identical deﬁnition of the sunna divorce (without mentioning the witnesses) as al-Bukh:r. Jubayr. Jubayr.31 Al-Tirmidh. which is the title given to the chapters in which it initially appears in all six Aad. says.d b. Aad. 2:442 (3al:q: 4). He alone mentions and leaves unresolved the debate 28 Sunan Ab. and that he has two witnesses’. Ab< l-Zubayr. he could keep her. This is also the case of what MuAammad b.28 Downloaded from jis.th was transmitted via Ibn 6Umar al-Easan 6A3:8 al-Khur:s:n.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. A similar report to the N:ﬁ6 al-Zuhr. Zayd b.A (3al:q: 1). and ManB<r (b. E A D I T H .oxfordjournals. Aslam. then. In his Sunan.
33 Ibn M:ja. 6Al.A (nik:A: 17). al-J:mi6 (nik:A: 27). MuAammad 6Umar. versus the opinion of Sufy:n al-Thawr.A (3al:q: 2). Ab< D:w<d.z al-BaA:ba. nor Ab< D:w<d offers a precise deﬁnition of the sunna divorce. 36 Nothing appears to be known about Rif:6a beyond this Aad. Rif:6a (b.th as a limit upon the husband’s unfettered right to divorce. and the opinion that he must wait until after one additional period of menstruation prior to divorcing her again.. Sunan (nik:A: 32). v. Ibn M:ja. 518. They also all agreed that the divorce counted. from a separate statement attributed to Ibn 6Umar himself.. (Beirut: D:r al-Fikr. 34 al-Bukh:r. Nowhere does the Qur8:n indicate that a man cannot divorce his wife while she is menstruating and all six Aad.th scholars understood this Aad..36 divorced his wife triply and she al-Tirmidh. Sunan (3al:q: 2. 32 Downloaded from jis. 3). Muslim. like al-Sh:ﬁ6. Kit:b al-Fabaq:t al-kab. who are of the opinion that the sunna divorce encompasses a triple divorce in one setting. Sunan (3al:q: 49). in the case of al-Bukh:r. 35 al-D:rim. 4aA.r (ed.. al-IB:ba f. 7.org at Princeton University on July 17.A (3al:q: 4.’s unsatisfied ex-wife35 The second topic relies upon the only story possessing a touch of sexual humour. l uc as between the jurists.oxfordjournals. 4 vols. 37). tamy. 395.. i. ‘Tell (Ibn 6Umar) to take her back and then divorce her when she is free from menstruation or pregnant’. Ibn Eajar. and they relate Aad. 2001). 204/820) and Ibn Eanbal.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. 1978). 11 vols. or. but complicates matters in the following chapter by recounting a variant version in which the Prophet merely says to 6Umar. either on the basis of the preponderance of reports. Sam<8al) al-QuraC. 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. al-Bukh:r. al-Tirmidh... He also records the disagreement over the sunna divorce of a pregnant woman...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. Cairo: Maktabat al-Kh:nj. Sunan (3al:q: 4).332 s co t t c . 4aA.32 Neither al-D:rim. 2 The Marriage that allows a terminally divorced couple to remarry: The story of Rif:6a al-QuraC. Ibn Sa6d.ths supporting both the opinion that a man can divorce his wife a second time immediately following her menstrual period when he ﬁrst divorced her. 4aA. 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. (d. 2011 .th. (d. al-J:mi6 (3al:q: 1).34 What the Aad.
A (3al:q: 41. 40).. x. al-Bukhari.. 236–7. al-Zubayr al-QuraC.d. 4aA. since the verb 3allaqa is employed in this manner in Qur8:n 2. Sunan (3al:q: 10). she had ‘tasted his sweet honey’.oxfordjournals. has the longer version as. Sunan (3al:q: 39. 455 (3al:q: 4). 41 al-D:rim. ii. 42). Kh:lid remarked with astonishment. Sunan (3al:q: 10). al-Zubayr. whose name is never mentioned in the Aad. 4aA.d overheard the conversation outside the door of the Prophet’s residence. Ibn M:ja. al-J:mi6 (3al:q: 5). a woman could be divorced prior to consummation.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.39 Theoretically. 4aA. before 60/679) divorce has produced the most conﬂicted interpretations of any of the Aad.A Muslim.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). 7 (3al:q: 4). Muslim. 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.38 The story ends abruptly with this euphemistic prophetic statement.org at Princeton University on July 17.¯ D I V O R C E . Rif:6a’s ex-wife. la6allaki tur.. and the shorter one as just. il: Rif:6a? l: Aatt: yadh<qa 6usaylataki wa-tadh<q... complained that her new husband’s manhood was akin to an eyelash or thread (hudba). E A D I T H . 37 Downloaded from jis. This memorable prophetic locution cemented the requirement of consummation with the new husband prior to the remarriage with the original one and al-Tirmidh.ths. Ab< Bakr was with the Prophet and Kh:lid b. went to the Prophet and. 39 Qur8:n 2. l: Aatt: yadh<qa 6usaylatah: kam: dh:qa l-awwal.A (3al:q: 6). Note that Ibn M:ja also uses this Aad.s ch o l a r s t yl e 333 subsequently married 6Abd al-RaAm:n b.n an tarji6. in some versions. al-Tirmidh.. 2011 . 6usaylatahu.ths In the version from 628isha 6Urwa al-Zuhr. 40 al-Tirmidh. reports in the ‘Book on Marriage’ that this is the practice of the general mass of Companions and subsequent scholars. FatA al-b:r.. 38 al-Bukh:r. Ab< D:w<d.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. 230. 3 (nik:A: 17). in several versions. In addition to casting an embarrassing light upon the anatomy of a certain 6Abd al-RaAm:n b. al-J:mi6 (nik:A: 27). ‘Can you believe what was said out loud in the Messenger of God’s presence!’ Sunan al-D:rim. Sa6. x.
45. The Origins of Islamic Law. al-Dhahab. Jahm al-6Adaw.th that probably goes back to F:3ima herself. Tadhkira.44 and the Kufan al-Sha6b. Hawting. In fact.org at Princeton University on July 17. A few transmissions of this story include the additional details that Marw:n b. Princeton University. 5 vols. i. Ab.ths from the Madinans Ab< Salama b. to which he purportedly replied that she was entitled to neither maintenance nor lodging. 42 . 43 For a very similar description and additional references. 2002). Harald Motzki argues that this is an early Aad. all six Aad. all claim to transmit the Prophet’s verdict from F:3ima herself. Harald Motzki.th books contain Companion reports that 6Umar and/or 628isha (d. 2011 This Aad. in some versions. 6Abd All:h b.d b.th Transmission in Islamic History’ (Unpublished Ph. divorced her irrevocably (triply) from afar and refused to provide her with either lodging (sukn:) or maintenance (nafaqa) during her waiting period. ordered her to spend her waiting period in the house of the blind Emigrant Ibn Umm Makt<m. Yas:r (d.42 The basic story is that F:3ima’s husband. pace Joseph Schacht. 6Abd al-RaAm:n. ‘Shifting Fortunes: Women and Ead.334 s co t t c . Katz (Leiden: Brill. transl. ‘The Role of the Qur8:n and Ead.. Tadhkirat al-Auff:C (Beirut: D:r al-Kutub al-6Ilmiyya. 65/685) inquired into F:3ima’s case during his governorship of Madina and that the Prophet encouraged her to marry Us:ma b. Jahm al-6Adaw. i. 45 al-Dhabab. 70. and Ab< Bakr b. See also Asma Sayeed. However. Sufy:n and Ab< Jahm. Ab. dissertation. 58/678) rejected vehemently the interpretation of F:3ima’s prophetic citation as a universal rule. 88–91 and 176–88. Bulletin of the School of Oriental and African Studies. Zayd after her waiting period instead of her two suitors. F:3ima informed the Prophet of this situation.th has been studied by G. 436–7.. offers 107/725–6 and 104/722–3. 44 His full name is Ab< Bakr b. 6Abd All:h b. 158–67. and Marw:n and the Madinan Successors Sa6.D. Ab. Mu6:wiya b.oxfordjournals. 2005). ‘The Rights of a Divorced Woman’. EafB. 6Utba.th in the Legal Controversy about the Rights of a Divorced Woman during her ‘Waiting Period’ (6idda)’.43 This story would seem totally straightforward were it not for the existence of alternative versions and Companion statements that seek to discredit F:3ima’s testimony. and. 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. the Aad. al-Musayyab45 and Sulaym:n b.). by Marion H. 52 (1989): 430–45. see Hawting. al-Eakam (d. 107/725–6) 46 are Downloaded from jis. R. l uc as under discussion. identiﬁed in some narrations as Ab< 6Amr b. 46 There exists great uncertainty over his precise death date. 6Ubayd All:h b.
.. 114/732 or 115/733). This opinion is shared by Sufy:n al-Thawr.51 Marw:n’s skepticism is found in the narration transmitted by al-Zuhr. 6Utba. concerning the story of F:3ima bint Qays.]50 and she does not receive maintenance on the basis of the Aad. ‘The Rights of the Divorced Woman’. For the dismissive comments of Sa6. 50 al-Tirmidh. 1. (d. clearly presents the three major opinions in the following manner: Some scholars. and the Kufans.d and Sulaym:n. which states that women cannot be evicted from their homes during their waiting periods unless ‘they commit a ﬂagrant indecency’. Sunan (3al:q: 10). Ab< Y<suf and MuAammad al-Shayb:n. al-Layth b. al-Tirmidh. al-Zin:d in Sunan Ibn M:ja (3al:q: 10). E A D I T H . al-Sha6b. He appears less skeptical in the version transmitted by Hish:m b. see Ab< D:w<d.¯ D I V O R C E . uses the expression ‘the Kufans’ as shorthand for Ab< Ean. See also. Sa6d (d. including 6Umar and Ibn Mas6<d. such as al-Easan al-BaBr.fa. Al-Tirmidh.. Ibn Eanbal. Some of the Companions of the Prophet. from 6Ubayd All:h b. al-J:mi6 (3al:q: 5). Rab:A (d. are of the opinion that the triply divorced woman is to receive both lodging and maintenance. Sunan (3al:q: 40). 175/791). 6Abd All:h b.th scholars over the correct ruling concerning the rights of the triply divorced woman during her waiting period. 65. 48 al-D:rim. 110/728). 51 Ibid. ‘We grant her lodging on the basis of the Book of God.. between 103/721 and 110/728). Al-Sh:ﬁ6. 6Urwa Ibn Ab. said. since God said. Hawting.s ch o l a r s t yl e 335 depicted as being skeptical as to its validity.A (3al:q: 6) and Ab< D:w<d. al-Tirmidh. 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).’s argument with an anonymous explanation that F:3ima did not receive lodging because she was ‘abusive to her household’ (tabdh< 6al: ahlih:). ‘We do not know if she memorized this properly’.. . 4aA. The impact of F:3ima’s report and its rejection by several prominent early religious authorities divided both jurists and Aad. 49 al-Tirmidh. 6A3:8 b.. Ab. (d. and al-Sh:ﬁ6.49 Some scholars grant her lodging but not maintenance. 2011 . interrupts the ﬂow of al-Sh:ﬁ6. Ab< D:w<d. Sunan (3al:q: 39). al-J:mi6 (3al:q: 6). Sunan (3al:q: 40). This is the opinion of M:lik 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. Another version adds.oxfordjournals. 47 Downloaded from jis. 438–40. ‘Do not drive them out of their homes’ nor should they themselves leave ‘unless they commit a ﬂagrant indecency’ [Qur8:n.org at Princeton University on July 17.47 A common formulation of 6Umar’s attitude toward this story is his statement. Anas. Muslim.th of the Messenger of God (peace be upon him). 1] [.
th in which F:3ima actually utters the prophetic decision that denies her lodging or maintenance. Ab< D:w<d refuses to adopt a transparent position. 55 Ibid. and Muslim adopts the third one.oxfordjournals. al-Zubayr after he mentioned F:3ima.th scholar under consideration who refuses to include a single Aad. al-D:rim. .. but.A (3al:q: 6).A (3al:q: 41. champions the second one. al-Bukh:r. 1 and 65. although Ab< D:w<d does not provide any evidence in support of the hybrid M:lik/al-Layth/ al-Sh:ﬁ6.’s own opinion. 4aA. al-Bukh:r. nor 6Umar’s criticism. Neither Ab< D:w<d nor al-Tirmidh.A. Both Muslim and Ab< D:w<d relay a wide array of variants of F:3ima’s prophetic Aad. Al-Bukh:r.52 Al-Bukh:r. 2011 .th. and Ibn M:ja support the ﬁrst position outlined by al-Tirmidh. 1) 628isha tells Marw:n that ‘You will not be harmed for refraining from mentioning the statement (Aad. is the only Aad. and Muslim expresses his own opinion in the chapter title. 42).. rather. provide clear evidence of their preferred positions on this topic. and instead elevates 628isha’s opinion to the highest authority on this issue.th and the critical remarks of 6Umar and 628isha. Muslim. ‘The triply divorced woman does not 52 al-D:rim. Downloaded from jis. al-mu3allaqa idh: khushiya 6alayh: f. 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’... 42).org at Princeton University on July 17. . ’ 54 al-Bukh:r.-maskan zawjih: an yuqtaAama 6alayh: aw tabdhuwa 6al: ahlih: bi-f:Aisha. in the end. cites neither F:3ima’s Aad. and the Prophet made a special exception for her to move out of fear of her initial location’.th scholars under consideration. Sunan (3al:q: 10). x. he cites Qur8:n 65. ‘She receives no merit from mentioning this statement (Aad. 603 (3al:q: 41. In the showdown between F:3ima’s prophetic Aad. 598.th along with the criticisms of 6Umar and 628isha. FatA al-b:r. 4) 628isha says to 6Urwa. ‘What is F:3ima’s problem? Do you not fear God?’ and 3) 628isha says to 6Urwa b. and Ibn M:ja side with F:3ima. l uc as Interestingly. ‘F:3ima was in an insecure place. while al-Tirmidh. even though she did not claim to be basing her opinion overtly on a prophetic teaching. Ibn Eajar. Sunan (3al:q: 10). al-D:rim.336 s co t t c . relates reports in which. refuses to take sides and merely relates the three positions adopted by a handful of his illustrious predecessors. 2) 628isha says.53 along with ﬁve very different versions of 628isha’s rejection of the implications of F:3ima’s statement.th)’. Ibn M:ja.54 Al-Bukh:r. 4aA. 6. 5) 6Urwa’s observation that 628isha rejected F:3ima’s claim that the Prophet allowed her to relocate during her waiting period. 53 ‘House the wives you are divorcing .th) of F:3ima’.55 The story of F:3ima bint Qays and its ensuing controversy provide a useful window into the legal hermeneutics of the six Aad. can be derived from the title of the forty-second chapter of his 4aA. opinion.
although he mentions that some scholars date it to 59/678–9. who happened to give birth a short time after the death of her husband. and that four of them even adopted precise positions on the topic of the triply-divorced woman’s rights during her waiting period.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. Sunan (3al:q: 7).A (3al:q: 39). 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. E A D I T H .. Muslim.. 59 The death date of 61/680–1 is favoured by al-Dhahab.59 one of the Prophet’s widows. 68/687–8). 210. Sunan. ii. 57 56 Downloaded from jis. 11th imp. 61/680–1). Siyar a6l:m al-nubal:8. 6Abd al-RaAm:n (d.. since her waiting period had ended. 324. 4aA. Ab< D:w<d.. identiﬁed by one of al-Bukh:r. 28 vols. Ab< Salama b. Another version involving one Ab< al-San:bil b.s ch o l a r s t yl e 337 receive maintenance’. Muslim. 4aA. iv.A Muslim. ii. Sunan (3al:q: 7).’s narrations as her suitor. 499. 4aA.A. 58 Her deceased husband’s name was Sa6d b. three months. 80 (3al:q: 6).org at Princeton University on July 17. Ba6kak. Khawla. al-Bukh:r. her opinion. al-J:mi6 (3al:q: 17). 94/712–3 or 104/722–3). Sunan (3al:q: 47). Ibn Eajar does not indicate Subay6a’s death date. 4aA. al-J:mi6 al-BaA.A Muslim.. iii.A (3al:q: 39)..60 This story resolves the question as to whether the Qur8:nic verse (65. al-IB:ba. Ab< Hurayra took the initiative to ask Umm Salama (d. One version of the story begins with a debate between Ibn 6Abb:s (d.A (3al:q: 8). Ab< D:w<d.A (3al:q: 8)..¯ D I V O R C E .. 93. 4aA. and she in turn related to him the story of Subay6a. 2011 . (3al:q: 11). x. Ibn M:ja.oxfordjournals. al-D:rim. al-Tirmidh. Ibn M:ja. x. Sunan (3al:q: 47). and Ab< Hurayra (d.. al-J:mi6 (3al:q: 17). 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. Subay6a told Umm Salama that the Prophet ordered her to get married immediately. 11–2. 6) declaring that a woman’s waiting period lasts until childbirth can shorten the prescribed waiting period of three courses. 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. and al-Tirmidh. al-Bukh:r. al-Tirmidh. Ibn Eajar. 4aA. Sunan (3al:q: 11). makes no mention of the legal dispute and is found in al-D:rim.. 234. the tale of Subay6a bint al-E:rith al-Aslamiyya58 provided a solution to a problem upon which Muslim jurists ultimately achieved consensus.. 2001). (Beirut: Mu8assasat al-Ris:la.
al-6Aww:m. Sunan (3al:q: 6). 218–20.’s chapter heading is. 4aA. all of our Aad. or whether it can only extend the woman’s waiting period.th concerning Umm Kulthum bint 6Uqba’s act of tricking her husband. The concept of takhy. and Ibn 6Abb:s. the story of Subay6a provided Aad. or through their comments in the chapter. Sunan (3al:q: 12). al-D:rim.62 In short. the common background story for takhy. 61 Downloaded from jis. al-J:mi6 (3al:q: 4). 62 For example.A.-6iddat al-A:mil al-mutawaff: 6anh: zawjuh: wa-l-mu3allaqa (3al:q: 11).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. iii. l uc as or four months and ten days. 257. either overtly through their choice of chapter headings. Ibn al-Mundhir.338 s co t t c . This consensus as to the Prophet’s command is also shared by the jurists. Ibn M:ja.61 Although technically this story addresses the widow’s waiting period. i.. Ibn al-Mundhir (d. al-J:mi6 al-BaA. and Muslim’s reads. 4aA. and Ibn Eanbal. al-Sh:ﬁ6.th books. The isn:d has a lacuna (munqa3i6).r. b:b f. al-Tirmidh. Sunan (3al:q: 20). as al-Tirmidh. x. Ibn M:ja uses a unique Aad. 5). 3 vols. not only reports that it is the opinion of ‘most of the scholarly Companions’. al-Ishr:f 6al: madh:hib ahl al-6ilm. Sunan (3al:q: 5). in which a husband grants his wife (or wives) the choice (khiy:r) to either maintain or sever al-Tirmidh. Muslim..A (3al:q: 5).. although this story is also found in Umm Kulthum’s entry in Ibn Sa6d. with the exception of Ibn M:ja.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. al-Zubayr b. Even though the story is transmitted from Subay6a through six different authorities in multiple formats. 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. 498–9.. 2011 .A (3al:q: 4. into offering her a single divorce just moments prior to her giving birth. al-Bukh:r.. thus denying him the opportunity to take her back during her waiting period. along with al-Thawr. 1993). 5 The story of 628isha’s choice63 Unlike the previous four legal topics.r is largely unspoken in the numerous transmissions from 628isha found in the Aad. (Beirut: D:r al-Fikr. b:b inqi@:8 6iddat al-mutawaff: 6anh: zawjuh: wa-ghayrih: bi-wa@6 al-Aaml (3al:q: 8)..r.org at Princeton University on July 17. all of the Aad. Ab< D:w<d. extended the Prophet’s ruling to the divorce waiting period as well. 63 al-D:rim.th scholars. 318/930) attributes the position that a woman’s waiting period should be the longer of the two durations to 6Al.oxfordjournals.. Kit:b al-Fabaq:t al-kab.
A. 70.m) in S<ra 66 and the oath of sexual abstinence (.. but if you desire God.. It has been narrated from 6Umar and Ibn Mas6<d that if the woman chooses herself..l:8. 2011 All six books contain at least one Aad. and the Final Home.s ch o l a r s t yl e 339 the marriage bond. I will make provision for you and release you with kindness.r. 4)’. it is a single revocable divorce. ‘On . 628isha. 28–9) in which the Prophet is commanded: Say to your wives. Kh:lid.64 Al-Tirmidh. derives from the Qur8:nic passage (33. 66 His name is Muslim b. it is a single irrevocable divorce. such as the episode of banning (taAr. describes succinctly the uncertainty over the nature of takhy. that if she chooses herself. 63/682–3) from one of the immediate participants in the ﬁrst takhy. Th:bit [d. then remember that God has prepared great rewards for those of you who do good’. Zayd b.65 Downloaded from jis. ‘If your desire is for the present life and its ﬁnery. withdrawing from one’s wives. Only Muslim provides any sort of narrative in his discussion of ‘granting the choice’.th transmitted by the Kufan Successor Masr<q b. 65 al-Tirmidh. Although the exact wording of nearly all of the narrations transmitted from Masr<q by his Kufan pupils al-Sha6b. It has been narrated from 6Al. 483–4. 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. it is a single divorce in which he cannot take her back during her waiting period (b:8ina).oxfordjournals. Most of the scholars and jurists among the Companions and their successors adopted the position of 6Umar and Ibn Mas6<d. It is the opinion of Sufy:n al-Thawr. His Messenger. 4aA.l:8). al-J:mi6 al-BaA. Muslim b. . it does not count as anything. Ibn Eanbal followed the position of 6Al. and the Kufans. ‘the Prophet granted us ‘the choice’ (khayyaran:)’ and that it did not count 64 Chapter 5 of Muslim’s ‘Book on Divorce’ is called. whereas if she chooses her husband. also the Qur8:nic verse ‘if (the two of) you collaborate against him’ (66. and his lengthy accounts link it to additional Qur8:nic verses and topics. all of them report 628isha’s comment that.r among the early Muslim legal authorities: The scholars disagree over khiy:r. x. iii. It has also been reported that they considered it to be a single revocable divorce and that if she chooses her husband. 4ubayA al-Hamd:n. and granting them the choice. E A D I T H . al-Ajda6 (d. then come. and Ab< al-DuA:66 exhibit inconsistencies.A Muslim.org at Princeton University on July 17.¯ D I V O R C E ..
Sunan (3al:q: 12). 4aA. a-khayyartuh: w:Aida aw mi8a ba6d an takht:ran. and Ab< D:w<d. punishment shall be averted from his wife if she in turn four times calls God to witness that her husband is lying and. See also Joseph Schacht’s extensive entry. 4aA. 70 al-D:rim.340 s co t t c . Sunan (3al:q: 27). Muslim. Muslim. let each one four times call God to witness that he is telling the truth. the ﬁfth time. call God to reject him if he is lying.r episode or are inauthentic. 4aA. 461 (3al:q: 5).67 In one of al-Bukh:r.A (li6:n). ‘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. Sunan (3al:q: 5). 32–6). Ibn M:ja. ‘li6:n’ in the EI2..oxfordjournals. al-Bukh:r. Ibn M:ja.. Ab< D:w<d. 68 L: ub:l. Masr<q drives home the legal point by exclaiming. but have no other witnesses. al-D:rim.. al-J:mi6 (3al:q: 22). al-J:mi6 (3al:q: 4). in its Kufan manifestation.. 4aA.org at Princeton University on July 17. Ibn M:ja. as can be seen in the following Qur8:nic passage (24. al-Tirmidh. Sunan (3al:q: 1). Ab< D:w<d. Sunan (nik:A: 39).ths on this topic. l uc as as a divorce.ths found in the Sunans of al-D:rim. al-Bukh:r. 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. al-Tirmidh.. 67 . 71 al-D:rim.’s two Aad. 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.70 628isha’s story. x. 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.th scholars under examination. Sunan (3al:q: 20). 5). which report that the Prophet divorced EafBa and then took her back. Sunan (3al:q: 38).A (3al:q: 25–30. Ab< D:w<d.A (3al:q: 4. Sunan (3al:q: 2). mutual imprecation. either refer to a different incident than the takhy.69 Assuming that the Aad. and. 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.: FatA al-b:r. Ibn M:ja. contains the most tangled web of narratives that strive to answer questions left unanswered by the Qur8:n. 69 Muslim. Downloaded from jis. 4aA.. Sunan (3al:q: 27–9). 6–7): As for those who accuse their own wives of adultery. calls God to reject her if she is telling the truth..A (3al:q: 5).A (3al:q: 4)..
and. al-Tirmidh. The signiﬁcance of Ibn 6Umar’s story is not the identity of the involved parties.A (3al:q: 26)...A (li6:n). 95/714) from 6Abd All:h b. A ﬁfth story.A (li6:n). 432. 124/742). between 117/735 and 120/738). 4aA. Sunan (nik:A: 39). Ibn M:ja. Sunan (nik:A: 58).th-scholars’ chapters devoted to li6:n and the three major stories72 found among the Aad.org at Princeton University on July 17. see al-D:rim. Jubayr.73 The second most popular version of this story is transmitted from the long-lived Companion Sahl b. and.d b. Sunan (3al:q: 27). see al-Bukh:r. It includes the names of the two primary characters.. even though they are contradictory concerning the name of the ﬁrst man who executed this procedure. Sunan (3al:q: 27). according to Ibn Sa6d. Ab< D:w<d. al-J:mi6 (3al:q: 22). al-J:mi6 (3al:q: 22). 4aA.74 to whom the Prophet refused to answer the question.A (li6:n).oxfordjournals. 4aA. or Sa6. .A (li6:n). (d.. Sunan (3al:q: 28).¯ D I V O R C E . 4aA. 2011 72 A fourth story reports Sa6d b. Muslim. he indicates in most versions that it was either ‘an AnB:r. He lived 105 years.q) is part of the li6:n procedure and involves Ibn Jubayr visiting a fatigued Ibn 6Umar in the Hijaz. 6Umar. 35).A (3al:q 32. iii. Ibn Jubayr’s story begins with a dispute in Iraq during the reign of MuB6ab b. Ab< D:w<d.. While Ibn 6Umar does not reveal the precise name of the ﬁrst man to perform li6:n. 45/665–6).. Muslim 4aA. Muslim. with little to say about the li6:n process. 53. 4aA.ths on this topic—Does li6:n actually lead to the termination of the marriage. 4aA.s ch o l a r s t yl e 341 These verses raise two major questions that are reﬂected both in the Aad. which parent gains custody of the child? The various versions of the ‘ﬁrst li6:n’ story can answer these questions. but rather the information that the Prophet separated the parties. The only report found in all six Aad. E A D I T H . al-Tirmidh. 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. Ibn M:ja. in the case of N:ﬁ6’s narrations. Ab< D:w<d. told by Ab< Hurayra on the authority of the Prophet. (d. Muslim. Fabaq:t. 73 For Ibn 6Umar Sa6. 62sim b. 4aA.. al-D:rim. mawl: of Ibn 6Umar (d. al-Bukh:r. al-Bukh:r..A (3al:q: 34. see al-D:rim. al-Tirmidh. 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.. 91/709–10 or 88/706–7) directly to al-Zuhr.d b. Sunan (nik:A: 39). al-Bukh:r. (d. ‘What does a man do if he ﬁnds someone Downloaded from jis. granted custody of the baby to the mother. al-Zubayr (686–91) over whether termination of the marriage (tafr. 6Ad. Sa6d al-Sa6:d. 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. Jubayr (d. if it does. 33. 52. Sunan (3al:q: 27). al-J:mi6 (al-wal:8 wa-l-hiba: 4)..A (Aud<d: 42). Sunan (nik:A: 37). For Ibn 6Umar N:ﬁ6.th books is transmitted by either N:ﬁ6.’ or ‘someone from Ban< al-6Ajl:n’.
A (3al:q: 30). 4aA... Ibn Jurayj.79 who Downloaded from jis. D:w<d. Ibn Sa6d. Muslim. transmitted from Ibn 6Abb:s.342 s co t t c .475 (3al:q: 27). Fabaq:t. 4aA. see Muslim. see Ibn M:ja.th. mentions 62Bim b. Ibr:h. 4aA. Y<nus. For al-Zuhr. 852/1449) identiﬁes as 6Uwaymir. Note that Ibn Sa6d does not associate Hil:l with the ﬁrst li6:n. see Ab< D:w<d.m b.A (li6:n). Sunan (nik:A: 39). Ibn Jurayj. For al-Zuhr. Muslim. Umayya. Y<nus. 78 FatA al-b:r. that almost certainly relates to this same event. This Aad. 118) for staying behind in Madina during the raid to T:b<k. While these narrations provide names to this event.. ‘separated (farraqa) the couple’. 76 For al-Zuhr. 6Abd All:h.’s narration does not mention the triple divorce.th. who is also one of the candidates for whom the li6:n verses were revealed.78 Ibn 6Abb:s’ recounting of the story.A (3al:q: 29). other than that he was present at UAud. like the majority of the Aad.m b. 4aA.A (li6:n). M:lik. Sunan (3al:q: 27). 578 (3al:q: 31. ii. provides no evidence for the termination of the marriage at the end of the li6:n process.77 Another Aad. the Aad. 75 .A (li6:n). For al-Zuhr. which. al-Awz:6. Ibr:h.th is not found in the other four collections. The only scholar under examination not to include Sahl’s story is al-Tirmidh. 79 Hil:l was an early convert to Islam who does not appear to have been present at UAud.ths transmitted from Sahl. 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)’..oxfordjournals. 6Abd All:h al-Fihr.. ibid. iv.75 the unfortunate fellow who found himself in this situation. 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. Ab< D:w<d. see al-Bukh:r. see al-D:rim. iv.. Sunan (nik:A: 39). 77 Literally. is the only report on the authority of Sahl in which the Prophet himself terminated 6Uwaymir’s marriage. see al-D:rim.ths of M:lik.76 Further complicating Sahl’s report is the narration of Ibn 6Uyayna from al-Zuhr. Sunan (3al:q: 27). 4aA. 569. Sa6d. Ab< D:w<d’s comment is found following Ibn 6Uyayna’s narration in Sunan Ab. 2011 Nothing much appears to be known about him outside of this Aad.. Sunan (3al:q: 27). Sa6d and 6Iy:@ b. from al-Zuhr.org at Princeton University on July 17. according to Ab< D:w<d... whom Ibn Eajar (d. Sunan (3al:q: 27). whereas al-Awz:6. l uc as in bed with his wife?’ and 6Uwaymir al-6Ajl:n. 6Iy:@ b. For al-Zuhr. and his anonymous kinsman.A (li6:n). 315–16. x. Muslim. 4aA. 294–5. al-Bukh:r. He achieved some notoriety for being among the three men criticized and forgiven in the Qur8:n (9. For al-Zuhr. This already tangled web of narrations is further complicated by reports that the ﬁrst man to perform li6:n was Hil:l b. 36). Ab< D:w<d. 6Ad.
Fabaq:t. Sunan (3al:q: 27).83 Al-D:rim. he belongs to the Ban< 6Ajl:n.ths in his chapter on li6:n that have nothing to do with the story of the ﬁrst li6:n.¯ D I V O R C E ..n Anas. IB:ba.. E A D I T H . Muslim. like 6Uwaymir. merely identiﬁes the male imprecator as ‘an AnB:r.81 who claimed to have heard it from 6Ikrima Ibn 6Abb:s and Ibn S. ii. Sunan (3al:q: 27). al-J:mi6 (3al:q: 22).th and. Ibn M:ja.ths. 84 al-Tirmidh. This story is found in the books of al-Bukh:r. Ibn M:ja. ‘the practice of the scholars is in accordance with this Aad. ix. and al-Tirmidh. Ibn Sa6d. and al-Tirmidh. 85 al-D:rim. Ab< D:w<d. 295.th critic.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. which could refer to either 6Uwaymir or Hil:l. Ibn Sa6d. 82 Ab< D:w<d does have a lengthy additional transmission from Ibn 6Abb:s 6Ikrima 6Abb:d b.d al-Qa33:n (d. Ibn Mas6<d. and Ibn M:ja have as a common link the Basran Hish:m b. Ibn M:ja includes a couple of additional unique Aad.s ch o l a r s t yl e 343 accused Shar.85 Al-Bukh:r. Sa6. YaAy: b.oxfordjournals. Eass:n al-Qurdus. Note that the great Basran Aad.k b. ManB<r that does not involve Hish:m.84 Muslim. 81 For more on Hish:m. SaAm:880 of having committed adultery with his wife without any witnesses. and Ab< D:w<d on the authority of Anas b. Ibn Eajar. 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.org at Princeton University on July 17. 150. combines the stories so that 6Uwaymir accuses his fellow tribesman Shar. and Ab< D:w<d collect all of the contradictory versions of this story in a single chapter (or book) simply labelled as. states after Ibn Jubayr’s version of the Ibn 6Umar narration that.th’.th scholars to adopt certain strategies for dealing with them. avoid this confusion by only citing narrations that relate to the 6Uwaymir story. cautiously graded Hish:m as ‘reliable (thiqa). along with the practice of determining paternity on the basis of physiognomy. demonstrates his legal SaAm:8 is Shar. Interestingly. interestingly. God willing’. Mugh. 147/764–5 or 148/765–6).k’s mother’s name. 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. ‘What has reached us concerning li6:n’ and leave it for the reader to sort out the legal implications of this knot of Aad. his father’s name is 6Abda b. Muslim.’. al-Tirmidh. 271. M:lik or Ibn 6Abb:s. 83 Another self-identiﬁed witness to an act of li6:n. use the same chapter heading as Muslim and Ab< D:w<d. 80 Downloaded from jis. 2011 .k of commiting adultery with his wife. 198/813).r. see Ibn Sa6d. Fabaq:t. 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. but include fewer contradictory reports. iv.. (d. and al-Tirmidh. the versions in al-Bukh:r.
th collections from this period. 88 Ibid.A that deal with li6:n. These topics appear at ﬁrst sight to be highly random. 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. whereas F:3ima’s report that triply-divorced women receive neither maintenance nor lodging seemed incorrect in the eyes of 628isha and 6Umar. Ibn Jurayj as proof that the li6:n procedure can (or should?) be done in a mosque. relates to the identity of the woman to whom the Prophet was referring when he supposedly said. He also cites Sahl’s narration as evidence for ‘One who divorces (his wife) after the li6:n process’.86 He wields the transmission of Sahl Zuhr.88 and the Ibn 6Umar that the mother receives custody of the child. 2) faithfully recording all of the variations without providing legal opinions.89 Al-Bukh:r. 90 Ibid. It is remarkable that only six of the 45 divorce-related topics addressed by at least one of the third/ninth-century Aad. FatA al-b:r. 87 al-Bukh:r.th scholars’ three strategies consisted of reducing or eliminating the contradictions through: 1) selective inclusion.A (3al:q: 35).344 s co t t c ... and to the crucial role of the q:@.’s 4aA.org at Princeton University on July 17. 86 Downloaded from jis. The lesson we derive from our analysis of the pile of contradictory Aad.th scholars under consideration are found in all of the major Aad. 4aA. 550 and 569. chooses to stay with her husband has not expended one of her two revocable divorces. ranging from the prohibition of divorcing one’s wife while she is menstruating. The two topics concerning the waiting period are surprising. (3al:q: 29). 2011 . 89 Ibid. 4aA.A (3al:q: 30). 3) ignoring the contradictions while simultaneously exploiting the variations in order to derive multiple legal rulings. ‘Were I to have stoned anyone without evidence. 6 that a woman’s waiting period is completed at the moment of childbirth. to the clariﬁcation that a woman who. 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’. when granted ‘the choice’.oxfordjournals.ths related to the ‘ﬁrst li6:n’ stories. which includes the ﬁrst Ibn 6Abb:s story. in the case of al-Bukh:r.. 4aA. 4aA.A (3al:q: 28). since Subay6a’s story merely reafﬁrms the declaration in Qur8:n 65. I would have stoned her’. x.A (3al:q: 34). in separating the couple that has performed the very public procedure of mutual imprecation.ths about the ﬁrst li6:n is that the Aad. What is more striking There are actually twelve chapters in al-Bukh:r. but Chapter 25 (the validity of indicating li6:n by writing or pointing) does not include any Aad. or.h. and Chapter 31.87 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.
th that a triple divorce counted merely as a single one at the time of the Prophet. and al-Tirmidh. and al-Tirmidh. 91 Downloaded from jis. with the exception of al-Bukh:r.th compilation in addition to the ‘Book on Divorce’ and generally consist solely of prophetic Aad. 92 Muslim.91 along with a large cluster of Aad. This topic is also discussed by al-Bukh:r.ths with complicated transmission histories. INDIVIDUAL PROFILES Now that the six core topics have been elucidated. due to the former scholar’s unique hermeneutics. 4aA. Ibn M:ja. a report which centuries later Ibn Taymiyya (d. 728/1328) and AAmad MuAammad Sh:kir Muslim. E A D I T H .A (3al:q: 7.A (nik:A: 54). and the early years of 6Umar’s caliphate.. al-Eajj:j al-Nays:b<r. ranging from the famous Ibn 6Umar and 628isha to the more obscure F:3ima bint Qays.A (3al:q: 3). al-Bukh:r. 1 Ab< l-Eusayn Muslim b.. 4aA. 6Uwaymir al-6Ajl:n. This topic is also found in al-Bukh:r. 4aA. Each Aad. 4aA. 2011 . 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. we can identify which legal issues al-D:rim..A..th scholars in their presentations of these six topics. Subay6a. Ab< Bakr.ths that include the prophetic prohibition against a woman stipulating that her suitor must divorce his existing wives prior to marrying her. 8) and Ibn M:ja. chose to address and analyse their sources. Muslim.. al-J:mi6 (3al:q: 14).org at Princeton University on July 17. half of which we just examined in the previous section.th scholar will be introduced in the order of the ascending quantity of legal topics pertaining to divorce he addresses.¯ D I V O R C E . He shows little concern for procedural issues surrounding divorce proper (3al:q). Sunan (3al:q: 28). Ab< D:w<d. While we have seen some differences among our Aad. Muslim covers a mere twelve legal topics related to divorce in his 4aA.oxfordjournals.. the summary presentation of which will occupy the remainder of this article. Ab< D:w<d.A (buy<6: 4). and the unnamed wife of Rif:6a al-QuraC. Sunan (3al:q: 2).92 While he recounts Ibn 6Abb:s’ Aad. These topics are found in four different sections of his Aad. their individual legal methodologies emerge most clearly when we compare their overall articulations of the laws of divorce to each other..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. whom I shall consider after Ibn M:ja..
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. In addition to this Aad. Muslim presents the widely reported Aad. 2nd edn. Ibn Taymiyya and AAmad Sh:kir also relied upon a version of the Ruk:na Aad. al-Bukh:r. Al-Bukh:r. Ibn M:ja. 1969). Al-Bukh:r. 2011 See MuAammad Ab< Zahr:.l:8 after only 29 days. a report which al-D:rim.97 Downloaded from jis. Sunan (3al:q: 41). 95 Muslim.A (6itq: 2)..A (3al:q: 15–17). 97 Muslim. al-D:rim. 4aA..95 He relates a single narration of a Aad. 43 (references). 57–60.th since the only version narrated by these four scholars contains the isn:d J:bir Ab< l-Zubayr. 4aA.94 Muslim touches brieﬂy upon three additional topics. Sunan (3al:q: 14).A (3al:q: 7). I assume that the fact Muslim does not declare the triple divorce to be unlawful means that he at least tacitly approves its practice.. 4aA.). instead of the expected 30-day month. probably did not include this Aad. 4aA. Ibn Taymiyya (Cairo: D:r al-Fikr al-6Arab.th scholars under consideration.A (3al:q: 2).d. 6Abd All:h (d. links the ‘month-long .th in which J:bir b.th about 628isha’s act of manumitting Bar. Siyar a6l:m al-nubal:8. l uc as (1892–1958) would seize upon as evidence in their opposition to the triple divorce.th. Ab< D:w<d. Ibn M:ja.oxfordjournals.ra’s story that does not mention her right to chose to end her marriage. (along with Ab< Zur6a and Ab< E:tim) considered Ab< l-Zubayr to be nonauthoritative (l: yuAtajju bi-hi). AAmad Sh:kir.-l-Isl:m (Cairo: D:r al-Fib:6a al-Qawmiyya. 229. 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.. 420–1.. NiC:m al-3al:q f. Sunan (3al:q: 24). Sunan (3al:q: 29).ra. 93 . Sunan (3al:q: 15).l:8’ to a separate incident in the Prophet’s life involving a broken leg. Sunan (3al:q: 9).. n.org at Princeton University on July 17. 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. 94 Muslim. al-Bukh:r. al-J:mi6 (al-wal:8 wa-l-hiba: 1). according to al-Dhahab. Ibn M:ja also reports that the Prophet performed a one-month . and Ab< D:w<d also employ in support of this position.. and Ab< D:w<d.. Sunan (3al:q: 19–22). and qiy:s.l:8 that was only twenty-nine days. 96 Muslim. al-Bukh:r. save al-Tirmidh. 381. This Aad. their reading of Qur8:n 2. and. Sunan (3al:q: 10). v. 4aA.th (described below). Note that al-Tirmidh.96 Finally.A (3al:q: 5).93 Muslim merely labels this chapter ‘the triple divorce’ without comment.th is also found in Ab< D:w<d. relates a highly abbreviated narration of Bar. 4 and clariﬁes that the Prophet ended his month-long . 4aA.A (3al:q: 21).. Ibn M:ja. al-D:rim.346 s co t t c . as we shall see below.. which all of the Aad.
al-J:mi6 (3al:q: 6). Ab< D:w<d. a more likely explanation for their absence are his critical standards. Slight variants of this statement are found in Ibn M:ja. 5 (1984). .. 30. Tadhkira. 98 Downloaded from jis. He cites a different Aad. Sunan (3al:q: 8). in its isn:d.ths that he evaluated as sound. ‘6Ikrima’.100 led him to restrict the contents of his 4aA.A to prophetic Aad. 107/ 725–6). Sunan (3al:q: 17) and al-Tirmidh. and she cites Lane’s deﬁnitions of b-t-t.A.101 the ﬂexibility of the ‘batta divorce’.. Ab< D:w<d.. the Cih:r oath. For example. adverse circumstances at the time of divorce. 6Abd al-RaAm:n al-D:rim.th from the one found in the books of Ibn M:ja.ths in the course of his studies. as he informs us in the introduction of his book. 101 al-D:rim. 2011 . (d. 100 For a translation of this introduction. While it is possible that he simply missed some of these Aad. E A D I T H .99 In short. and al-Dhahab. Qays’ khul6 divorce that al-Bukh:r. 2 Ab< MuAammad 6Abd All:h b. 74.-m: tamlik . Chapters. ‘Muslim’s introduction to his 4aA. only covers sixteen divorce-related topics in his Sunan. and others cite has 6Ikrima. Muslim is reported (as also is al-Bukh:r.103 child al-Dhahab. which is a popular proof that divorce prior to marriage is invalid.¯ D I V O R C E . mawl: of Ibn 6Abb:s (d. . 103 al-D:rim. These topics include the afﬁrmation that a divorce uttered prior to marriage is invalid. H. Although al-D:rim. child custody.. such as divorce. Jerusalem Studies in Arabic and Islam.oxfordjournals.98 Likewise. A. translated and annotated with an excursus on the chronology of ﬁtna and bid6a’. EI2. see G. 263–311. Muslim is silent on the topics of the female-initiated divorce. Sunan (3al:q: 7). i.ths of the highest level of authenticity in early Muslim jurisprudence..s ch o l a r s t yl e 347 Muslim’s chapters on divorce indicate the limited utility of Aad. the widely-circulated story about the wife of Th:bit b.org at Princeton University on July 17. 99 L: 3al:q ill: f. or ‘separate’. own) the woman’. he discusses eight issues ignored by Muslim.102 the female-initiated divorce. 6Amr. Sunan (3al:q: 3). Muslim’s methodology. 102 Ibid. he could only address a tiny fraction of the relevant issues. Sunan (3al:q: 7). ‘sever’.) to have distrusted the controversial family isn:d related by Shu6ayb b. Juynboll. The Arabic expression al-batta is translated by Susan Spectorsky as ‘deﬁnitely’ or ‘decisively’. despite the consequence that for certain legal ﬁelds.. . ‘to cut off’. Spectorsky. ‘divorce is only valid if you are married to (lit. which happens to be the primary chain of transmission for the report. and the impacts of conversion upon marriage. Schacht says that the ‘best attested date’ for his death is 105/723–4. 748/1348) states that Muslim shunned 6Ikrima on account of his alledged Khariji beliefs. The death date of 107 is provided by al-Dhahab. and al-Tirmidh..
108 Al-D:rim. Ibid. Sunan (3al:q: 16). reports that Th:bit took a portion of what he had given her and then Eab. Sunan (3al:q: 9).ba because she told him that the Ibid. 107 Ayyum: imra8a sa8alat zawjah: 3al:qan f. 105 104 Downloaded from jis. Ubayy.. is that the Prophet divorced EafBa and took her back during her waiting period. Sunan (3al:q: 18).ba settled into her father’s home. met the Prophet outdoors and said. 108 al-D:rim. and al-Tirmidh. This Aad.’s transmissions identiﬁes the wife of Th:bit b. Note that one of al-Bukh:r. Ibn M:ja includes unique narrations in which her name appears as Eab. covers these additional legal topics through a mixture of sound and weak transmissions of prophetic Aad.104 and the rules concerning the divorce of a slave girl.ba bint Sahl who.A. ‘Take from her what you wish.. a report which possibly indicates the desirability of taking back one’s wife during her 6idda. 106 Ibid. ‘Neither me. Sunan (3al:q: 21). and then Jam. Ab< D:w<d.’s act of breaking the Cih:r oath during Rama@:n106 and the Prophet’s purported statement that.la followed suit at a later date. Furthermore.oxfordjournals.A (3al:q: 12. Sunan (3al:q: 1) and Ab< D:w<d..la and a second one as Bint 6Abd All:h b. 4aA. Upon Th:bit’s arrival. x. 58/1 (1994).110 al-D:rim. which Ibn M:ja. 6Amra bint 6Abd al-RaAm:n (d. the Prophet said. l uc as custody. Sunan (3al:q: 6). except for Muslim’s 4aA. Ibn M:ja. Ibn Eajar’s solution is that these are two discrete stories and that Eab.l:8 and Cih:r in Muslim Law’. Sunan (3al:q: 21–3). ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’. FatA al-b:r.la bint Ubayy while the Madinans call her Eab.109 While the gist of this core khul6 story is found in all of the Aad.’s version adds the twist that Th:bit was initially angry with Eab.105 He also recounts the lengthy story of Salama al-Bay:@. Qays as Jam. al-J:mi6 (3al:q: 11).th.ba said.ba bint Sahl and Jam. 98/717 or 106/724). al-Tirmidh. see Ibn Eajar.. Sunan (3al:q: 18)..th is mentioned in Gerald Hawting. al-Tirmidh. This report is also cited by Ibn M:ja.ba ﬁrst performed the khul6 divorce on Th:bit. For example.th books under consideration. al-D:rim.org at Princeton University on July 17. 109 al-D:rim. Ab< D:w<d.. Ibn 6Abd al-Barr observes that the Basrans call her Jam. 2011 . nor Th:bit’. all use to discourage this practice.348 s co t t c . 501 (3al:q: 12). 113–25. Sunan (3al:q: 17). al-J:mi6 (3al:q: 10).ths. Sunan (3al:q: 38). one morning. ‘An Ascetic Vow or an Unseemly Oath?: . and the narrator of the Aad. Sunan (3al:q: 2). 13). 110 al-Bukh:r. he introduces the topic of the female-initiated divorce through the widely transmitted story of Eab. Ab< D:w<d.107 The ﬁnal subject introduced by al-D:rim. Ibn M:ja.ba bint Sahl. Bulletin of the School of Oriental and African Studies.la bint Sal<l (3al:q: 22).. and set her free’.-ghayr ba8s fa-Aar:m 6alayh: r:8iAat al-janna. ‘I have everything he has given me right here’. Sunan (3al:q: 7). Eab. at 118.
‘What did you want it to be?’ to which Ruk:na replies. only considered the khul6 divorce valid in cases of an abusive husband. about which. and that Th:bit subsequently struck her. In some of the other versions.. as we saw above. Ibn M:ja. 2011 Ab< D:w<d also includes one narration in which Th:bit ‘struck her and broke part of her’.ths that Muslim did not deem worthy to disseminate or of which he was unaware. because al-Tirmidh. ‘Any woman who asks her nonabusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’.. 111 Downloaded from jis. E A D I T H .. 114 The only category for which al-D:rim. 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. and al-Tirmidh.A (nik:A: 17).ths with weak isn:ds. which does not appear in his 4aA..’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’.¯ D I V O R C E . .oxfordjournals.111 This detail suggests that al-D:rim. Ab< D:w<d. also found in the books of Ibn M:ja.th. al-Bukh:r. ‘a single divorce’.A. 113 al-D:rim. Ab< D:w<d.113 Despite the modest number of topics that both al-D:rim. clariﬁes the nature of the ‘batta divorce’ and the divorce of a slave girl through the use of Aad. Note that the expression ‘batta3al:q. Ab< D:w<d. the Prophet just sends him back to his ex-wife. 112 al-D:rim. Sunan (3al:q: 18).. ‘I did a batta divorce!’ The Prophet asks. Al-D:rim. Sunan (3al:q: 19). and Muslim address. The ﬁrst Aad. informs us that when he asked him about it. reaches a broader array of legal topics than Muslim through a combination of both sound and weak prophetic Aad. recounts the story of a conversation between the Prophet and a distraught man named Ruk:na who exclaims.org at Princeton University on July 17.s ch o l a r s t yl e 349 Prophet..112 The second weak Aad. 4aA. Muslim has practically nothing to say as well. Al-D:rim. wanted to marry her.hi i@3ir:b) since it was transmitted in a version in which the word ‘triply’ was substituted for ‘al-batta’. and al-Tirmidh. al-J:mi6 (3al:q: 2). The Prophet then tells him. Sunan (3al:q: 8).114 Al-D:rim. 4aA.’ appears in some of the narrations of the story of ‘Rif:6a’s unsatisﬁed ex-wife’ (discussed above) in al-Bukh:r. especially when we read this chapter in conjunction with his previously mentioned prophetic statement that. ‘It is what you intended’.A (3al:q: 4) and Muslim. deﬁnitely knew of this Aad. merely reports that the Prophet said. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’. has nothing to say is the oath of abstinence.th. al-Tirmidh. variants of which are found in the books of Ibn M:ja.th. Sunan (3al:q: 17). Al-Bukh:r. declared it to be ‘inconsistent’ (f. who was their neighbour. Sunan (3al:q: 14).
. 2011 The only topics that al-D:rim. 6Is: al-Tirmidh. al-J:mi6 (nik:A: 43). l uc as This strategy is essentially the same as that of Ibn M:ja. covers upon which al-Tirmidh. including the eponyms of the four Sunni schools of law. Sunan (nik:A: 60) and Ab< D:w<d. 24)..’s legal topics related to divorce and most of his Aad. as well as the category of the impact of conversion to Islam upon preexisting marriage bonds. and it is perhaps for this reason that all of al-D:rim. Sunan (3al:q: 9).. and 3) The right of a manumitted married slave woman to takhy. 117 al-Tirmidh. al-Bukh:r.120 and stipulated that when a woman converts to Islam. Ibn M:ja. Ibn M:ja. Sunan (3al:q: 13).r. Sunan (nik:A: 40) and Ab< D:w<d. and al-Tirmidh. Ibn M:ja. 4aA. and Ab< D:w<d. 121 al-Tirmidh.. 119 al-Tirmidh. ‘Your 115 Downloaded from jis.350 s co t t c .. 116 al-Tirmidh. ¯ ¯ 3 Ab< 6Is: MuAammad b. Sunan (3al:q: 25).. 118 al-Tirmidh.A (3al:q: 11). such as the validity of a divorce that one utters in jest. demonstrates his awareness of the vibrant legal discourse in which he was composing his J:mi6. Sunan (nik:A: 39) and Ab< D:w<d.’s methodology can be seen in his discussion of the takhy. 120 al-Tirmidh. Sunan (3al:q: 15).. her non-Muslim husband is automatically divorced a single divorce that is only revocable if he converts to Islam during her waiting period.’s J:mi6 on issues concerning the divorce procedure. al-J:mi6 (3al:q: 9). reports that the Prophet approved 6Umar’s act of forcing his son to divorce one of his wives whom 6Umar disliked.oxfordjournals. al-Bukh:r.. 2) A woman can leave her house during the daylight hours of her waiting period. Sunan (3al:q: 25).119 ordered another convert to choose one of the two sisters whom he married prior to becoming Muslim.A (3al:q: 20). al-J:mi6 (3al:q: 13). In addition to covering the majority of topics found in al-D:rim. al-J:mi6 (3al:q: 8.org at Princeton University on July 17.r statement in which a man says to his wife. Ibn M:ja. is silent are: 1) Taking one’s wife back after a revocable divorce.’s inclusion of the legal opinions of the leading jurists who preceded him. Ab< D:w<d.117 Al-Tirmidh.121 A good example of al-Tirmidh. Ibn M:ja. Al-Tirmidh. He addresses 24 legal topics surrounding divorce which touch upon all of Spectorsky’s categories.116 but the invalidity of the divorce uttered only to oneself or by an insane man.’s ‘Book on Divorce’. Ibn M:ja.ths are found in the books of these three men.115 there is an elevated focus in al-Tirmidh. 15). al-J:mi6 (nik:A: 34).. al-J:mi6 (nik:A: 33). 4aA. Sunan (3al:q: 36).118 obliged a man who converted to Islam to divorce six of his ten wives. . Sunan (3al:q: 23.
’ Ayy<b continued. two luminaries of Aad. Some scholars said that it depends on the man’s al-Tirmidh. Then [Ayy<b] said. who considers the expression. 2011 In a similar vein. al-Tirmidh.¯ D I V O R C E . al-J:mi6 al-BaA. 123 al-Tirmidh. ‘God forgive me! There is the report which Qat:da related to me from Kath.oxfordjournals.’ he must take an oath.org at Princeton University on July 17. M:lik and Ibn Eanbal agree with the position of 6Uthm:n and Zayd. Earb’. ‘Your matter is in your hand’ and the husband says. Zayd Sulaym:n b. E A D I T H .A. dwarfs the actual statement of the Prophet and does little to instil conﬁdence that anyone other than al-Easan al-BaBr. to which he said.’122 This conversation between Eamm:d and Ayy<b.th pertinent to this topic is the following: Eamm:d b.123 He includes al-Bukh:r. who said.A.th as ‘poorly attested’ (ghar. while 6Al.’s verdict that the report really communicates Ab< Hurayra’s opinion rather than that of the Prophet. and his statement with the oath is what stands.r mawl: Ban< Samura and when I asked him about [this Aad. from Ab< Salama. Sufy:n al-Thawr. 481 (3al:q: 3). 122 .r] forgot. ‘No. ‘I only put your matter in your hand for a single divorce. The sole prophetic Aad. from the Prophet (peace be upon him). before recounting the following juristic disagreement on this topic: 6Umar and Ibn Mas6<d say. from Ab< Hurayra. ‘[Kath. Ibn 6Umar: If she divorces him three times after he says. d. Then I returned to Qat:da and informed him of all this. mawl: of Ban< Samura.r.’s Sunan: It is reported that 6Umar made the ‘batta’ a single divorce. Sunan (3al:q: 13). ‘I met up with Kath. ‘Three. al-J:mi6 al-BaA. iii.. ‘your matter is in your hand’ to count as three [divorces]?’ Ayy<b said. 482. provides a concise summary of the batta divorce that we encountered in our recent discussion of al-D:rim. 179/795] said to Ayy<b [al-Sakhtiy:n. ‘Do you know of anyone other than al-Easan al-BaBr. and the Kufans agree with 6Umar and Ibn Mas6<d. 131/748–9]. counted the ‘batta’ as a triple divorce. candidly describes this Aad. iii. al-J:mi6 (3al:q: 3). (‘Your matter is in your hand’) is a single divorce. only al-Easan’. considered the expression ‘Your matter is in your hand’ as a potential triple divorce.th scholarship in late-Umayyad Basra.. 6Uthm:n and Zayd b. Th:bit say it is for as many divorces as she wishes (al-qa@:8 m: qa@at).th] he did not recognize it. Al-Tirmidh.s ch o l a r s t yl e 351 matter is in your hand’ (amruki bi-yadiki).b) and ‘known only from Eamm:d b.124 Downloaded from jis.. Ibn R:hawayh follows the opinion of Ibn 6Umar. Ab< D:w<d. Zayd [d. 124 Ibid.
th scholars through his use of the expression Aasan BaA. Even though his inclusion of fragments of the discourse of juristic disagreement (ikhtil:f al-fuqah:8) sets al-Tirmidh. 2011 Ibid.th and the emerging schools of law that is unparalleled among his third/ninth-century peers.126 Al-Tirmidh. 17–23. it is triple. so the reader learns.th. it is a triple. 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.125 Al-Tirmidh. and if he intends a triple batta divorce. if he intends a double batta divorce. by Eerik Dickinson (Reading. 60–90. apart from his cohorts. the batta divorce counts as a triple divorce. 127 Note that al-Tirmidh.oxfordjournals. Aslam.. This is the opinion of Sufy:n al-Thawr.d Ri@:. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’. and if he intends a double divorce. achieves a level of transparency and harmonization between Aad. Each Aad.352 s co t t c . 126 125 . see Ibn al-4al:A al-Shahraz<r.org at Princeton University on July 17. 4 Ab< D:w<d Sulaym:n b. who did not transmit any Aad.A. restricts his discussion to topics for which he has a prophetic Aad. 128 Ab< D:w<d.th and he rarely presents multiple narrations of the same report. (3al:q: 7). An Introduction to the Science of Ead.th. along with his other short surviving books. invented the grade of ‘fair’ (Aasan) and confounded generations of Aad. UK: Garnet. M:lik says that if he has consummated the marriage. Cairo. 480-1 (3al:q: 2). fair. hardly an evaluation that inspires conﬁdence in its veracity. iii. for an effort at elucidation. Rash. Al-Sh:ﬁ6. it is singular. it is a double divorce. Mas:8il al-Im:m AAmad (ed.127 or weak Aad. 1934 or 5). his methodology is ultimately the same as that of al-D:rim. it is only one divorce and he possesses the right to take her back.ths other than this one’. Ibid. and the Kufans. transl. namely the discussion of only those legal topics connected to a sound. says that if he intends a single batta divorce. such as his collection of Ibn Eanbal’s legal opinions128 and especially his Epistle to the Makkans. A portion of this text was translated on the basis of the superior G:hiriyya manuscript by Susan Spectorsky in Chapters. for example. and if he intends a triple divorce. 2005).. al-Ash6ath al-Sijist:n. it can only be a single divorce. that 628isha’s report that the Prophet said. l uc as intention: if he intends a single divorce.th is graded. in which he Downloaded from jis. is ‘poorly attested and only attributed to the Prophet by MuC:hir b.
32–3.s ch o l a r s t yl e 353 describes the methodology behind his Sunan..6 b. he had taken their juridical opinions and collected the Aad. ‘some of which are more sound than others’...6 have few prophetic Aad. 2011 . al-Jarr:A (d. 1997).135 that are well known (mashh<r).. Ab< D:w<d provides the number 4800 on pp.oxfordjournals.th that has a serious defect (wahn shad. 157/774) all relied upon this type of report. and al-Sh:ﬁ6. he also says that 600 of these Aad.ths are mar:s.org at Princeton University on July 17. waBf Sunanih in 6Abd al-Fatt:A Ab< Ghudda (ed.ths in which the Companion link is missing (mursal) with the argument that al-Thawr. 47. 132 Ibid. Salama (d. and the MuBannafs of Eamm:d b. defending the use of Aad... He observes that the books of Ibn al-Mub:rak and Wak.134 As for the calibre of the Aad. D:w<d il: ahl Makka f. Ab< D:w<d also singles out Sufy:n al-Thawr. 137 Ibid.ths that form the basis of the opinions of al-Thawr. 130 Ibid. 181/797) and Wak. and al-Sh:ﬁ6. (d.b) Aad.138 129 The existence of this short work was brought to my attention by Christopher Melchert’s article.. Ab< D:w<d claims to have included approximately 4800 mostly good (B:liA) Aad.th (Aleppo: Maktab al-Ma3b<6:t al-Isl:miyya.th to back them up’.. 33–4. 135 Ibid. 197/ 812).¯ D I V O R C E . after citing Ab< D:w<d’s claim in this epistle to have included the Aad. 395–6. M:lik. M:lik.l.. 133 Ibid. 134 Ibid. and collected the Aad.ths137 and claims to have identiﬁed in his Sunan any Aad.ths in his Sunan. Thal:th ras:8il f.. E A D I T H .130 While this may be true in many or even most cases. 6ilm muBtalaA al-Aad. ‘Traditionist-jurisprudents and the Framing of Islamic Law’. 52 and 54. 138 Ibid.d) in its isn:d. the Muwa33a8 of M:lik.ths worthy of inclusion is his Sunan and that most of their (prophetic) material is mursal.131 After boasting that his Sunan is the most necessary book for students to learn after the Qur8:n. 46. Ab< D:w<d indicates in the Epistle his familiarity with the (untitled) books of Ibn al-Mub:rak (d. rather. 38.133 and he also encourages students to supplement their study of his Sunan by copying Companion opinions.’s J:mi6 as being the ﬁnest work of its genre. presumably from books like those of Wak. 46–7.th quoted there. 167/784) and 6Abd al-Razz:q al-4an6:n.132 He clariﬁes his legal methodology in this epistle. 131 Ris:lat Ab. M:lik. asserts that ‘Ab< D:w<d had [not] gone through the books of al-Thawr.136 He is highly critical of reliance upon poorlyattested (ghar. 37.. and al-Awz:6. Downloaded from jis.ths. 136 Ibid.129 Christopher Melchert.).6 and 6Abd al-Razz:q.
. Many of his Aad. Sunan (3al:q: 3). to whom he replied. who quoted the Prophet as saying. on the authority of 628isha.143 and the implications of referring to one’s wife as ‘my sister’.354 s co t t c .140 and the episode of an anonymous woman who pleaded eloquently with the Prophet for custody of her child. Sunan (3al:q: 16). Ibn M:ja. Sunan (3al:q: 11). and the story of Salama al-Bay:@.139 He occasionally provides unique Aad. l uc as Despite his passion for Aad. 139 Downloaded from jis. which clariﬁes the volume of wheat needed to feed the Qur8:nically-prescribed ‘sixty poor-folk’ for the expiation of Cih:r. 4aA. to be justiﬁed. Ab< D:w<d acknowledges that he is not certain what the word ghal:q (angry) in the Prophet’s statement means. 4aA. .th scholars under consideration. with the exception of ‘Three [actions . al-Tirmidh. such as the story of Khuwayla bint M:lik and Aws b. Sunan (3al:q: 1). Ab< D:w<d is the only Aad. 19). al-J:mi6 (3al:q: 9).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.’s broken Cih:r oath. Sunan (3al:q: 17). such as ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from [enjoying] the scent of Paradise’. ‘A slave girl can only be divorced twice and her waiting period is two menstrual cycles’. 141 Anti aAaqqu bi-hi m: lam tankaA.141 He also ventures beyond the books of Muslim.. covers and all thirty of his topics are discussed by at least one of the ﬁve other Aad.ths have been discussed in the previous two sections. Ibn M:ja. Sunan (3al:q: 13). D:w<d.]’ which is found in Ab< D:w<d. Ab< D:w<d only manages to expand modestly the scope of legal topics on divorce that al-Tirmidh. in large part.A (3al:q: 6).’s Sunan and al-Tirmidh. ‘Divorce or manumission while angry is invalid’.’s J:mi6.A (3al:q: 10). al-D:rim. 143 Ab< D:w<d. he argues for the invalidity of divorce while in a state of anger... 145 Sunan Ab. must be taken earnestly: marriage. by touching on the topics of the reprehensible nature of divorce. Ibn M:ja. if done earnestly or jokingly. a feature that greatly facilitates All of these Aad. Sunan (3al:q: 16). Sunan (3al:q: 18. 2011 .oxfordjournals.th scholar in this survey to include all of his divorcerelated topics in his ‘Book on Divorce’. 140 Ab< D:w<d. and taking back one’s divorced wife’.ths that address more precise legal points. ii. ‘Three [actions]. al-Bukh:r. Sunan (3al:q: 35). 446 (3al:q: 8). . 142 Ibid.144 Furthermore. including those with inferior or even defective isn:ds.. Ibn M:ja.142 words other than 3al:q that can effect a divorce. and al-Tirmidh. From a purely organizational perspective. divorce. al-Bukh:r.ths are identical to those found in al-D:rim. Sunan (3al:q: 9).org at Princeton University on July 17.th collection. Ab< D:w<d. 144 Ab< D:w<d. ‘You have a greater right to [your child] as long as you do not remarry’. 6Ub:da.
148 Ibn M:ja.th books. many of which are quite obscure. and Ab< D:w<d.ths that are absent from the other canonical Aad.¯ D I V O R C E .146 He addresses the same or a greater number of legal topics on divorce than all of his contemporaries.oxfordjournals..org at Princeton University on July 17. Thanks to his concise Epistle to the Makkans. his act of refraining counts as a second witness against him and the divorce is valid. MaAm<d MuAammad NaBB:r.ths are unique to the Sunan and which are weak in his edition of this book. 2011 5 Ab< 6Abd All:h MuAammad b. Twentyseven of these topics.s ch o l a r s t yl e 355 its use. Ab< D:w<d follows essentially the same methodology as al-D:rim.ths that only he narrates.d Ibn M:ja al-Qazw. are found in the compilations of al-Tirmidh.ths on the topic of the oath of abstinence. Ibn M:ja’s two unique legal topics are both grounded upon weak Aad. 147 I am grateful for the labours of the editor. the witness’ testimony is invalid. in contrast to the 18 chapters in the ‘Book on Divorce’ in Sunan al-D:rim. for identifying which Aad.ths than any of them.148 Ab< D:w<d’s ‘Book on Divorce’ has a total of 50 chapters. save Ibn M:ja and al-Bukh:r. it distinguishes itself by its presentation of a surprisingly large percentage of unique and frequently weak Aad. At 32 topics. Most of the topics he ignores fall under the category of the divorce procedure. 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. 23 in al-Tirmidh.. relates in his J:mi6. or Ab< D:w<d and only two of them are unique to Ibn M:ja’s Sunan. however. the husband must issue an oath. While Ibn M:ja’s book covers basically the same legal territory as the works of al-Tirmidh. 146 .147 For example. Ibn Maj:’s Sunan earns the prize for the greatest number of divorce-related issues among the books under consideration. If he refrains from swearing the oath. In conclusion. E A D I T H . and probably knew all of the information about juristic disagreements that al-Tirmidh.n. like the Muwa33a8 of M:lik and 6Abd al-Razz:q’s MuBannaf. and 36 in Sunan Ibn M:ja. Yaz. although he also refrains from relating any Aad. and appears to relate a greater variety of Aad.: limiting discussion to legal topics that can be supported by sound or fair Aad.ths.’s J:mi6. If he swears [that he did not divorce her]. The ﬁrst of these Aad. and al-Tirmidh. Downloaded from jis. acquainted with the earliest law books. Sunan (3al:q: 12). while not shying away from a few weak and even poorly-attested ones when the only alternative is reliance upon post-prophetic authorities.
While this is not the appropriate place to review his chapters on legal methodology in his 4aA. like al-Tirmidh. Ibr:h. 152 Ibn M:ja.ths in Ibn M:ja’s Sunan. Sunan (3al:q: 25).356 s co t t c . Al-Bukh:r. Ab< D:w<d has one narration with Qays b. and al-Bukh:r.153 Overall.ths found in the 4aA. Ibn M:ja. 13/3 (2006): 289–324. 11–13. which revolve around the anecdotes of Fayr<z al-Daylam. 246/860–1) as saying that the correct form is Qays b.. d.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. al-E:rith’s eight pre-Islamic wives. ‘The Legal Principles of MuAammad b.154 al-Bukh:r. Salama’s ten-wife household. Sunan (nik:A: 40). At least one weak Aad.151 Qays b.l al-Bukh:r. although he has a special penchant for relating material that most major Aad. 6 Ab< 6Abd All:h MuAammad b. 16. thigh]’. and Ab< D:w<d. Sunan (nik:A: 40).. 19. Qays.oxfordjournals. Ism:6. 21. see Scott C. and Ab< D:w<d by endeavouring to derive rulings almost exclusively from prophetic Aad. and Their Relationship to Classical Salaﬁ Islam’. 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. Ism:6.149 Like so many weak Aad. 17.. al-E:rith. 30–32. Islamic Law and Society. 36.th critics refrained from including in their books.m (al-Dawraq.A.. Sunan (nik:A: 39).. 7. 27. He also addresses the three topics pertaining to conversion to Islam that are broached by al-Tirmidh.. He quotes AAmad b. l uc as The second Aad. 22.th is found in each of the following chapters of Ibn M:ja’s ‘Book on Divorce’ in his Sunan: 1. al-J:mi6 (nik:A: 33). 153 Ibn M:ja. Sunan (3al:q: 31).As of Muslim and al-Bukh:r. al-E:rith and another with al-E:rith b. Ibn M:ja follows the same basic methodology of al-D:rim.’s legal hermeneutics represent a sharp departure from those of his contemporary Aad. Ab< D:w<d.th scholars. al-J:mi6 (nik:A: 34). al-Tirmidh.org at Princeton University on July 17. 151 Ibn M:ja.’s techniques become apparent from a close reading of his Innam: l-3al:q li-man akhadha bi-l-s:q.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. 24. Lucas.’s marriage to two sisters prior to his conversion to Islam. al-Tirmidh. Sunan (3al:q: 25).l al-Bukh:r. Ibn M:ja. 150 149 Downloaded from jis.152 and Ghayl:n b. 154 For a detailed analysis of this topic. 6.. 2011 . al-Tirmidh..ths of variable degrees of reliability.
157 Ibid. Ab. al-Q:sim (b.A (3al:q: 9).155 Al-Bukh:r. 158 al-Tirmidh. al-Bukh:r. ‘divorce is only valid if you are married to (lit. 6Uthm:n. Ab. Muj:hid. E A D I T H .n). and an impressive list of twenty-three Successors. Jubayr..th and grades them as Aasan ghar.. A second case in which al-Bukh:r. said.. narrates three variants of this Aad. 6Abd All:h b. own) the woman’. all of whom narrated a prophetic Aad. including Sa6. 6Abd al-RaAm:n (b.th is the Cih:r oath. 2) shedding light on a divorcerelated topic by means of Aad. 6Ikrima. Sa6d (al-Bajal. 478 (3al:q: 9). al-E:rith b. and Aasan. J:bir b. Hish:m). 6Abd al-RaAm:n (b. discusses a topic without relating a single prophetic Aad.org at Princeton University on July 17. and al-Sha6b.158 al-Bukh:r. ShurayA. ‘It is like the Cih:r of a Qur8:n 33. names in support of this position are 6Urwa b.oxfordjournals. Unlike al-Tirmidh.¯ D I V O R C E . and Ibn M:ja.).b BaA. does not explicitly claim that consensus exists on this issue. Rab:A. x. avoids it and instead begins his chapter by reminding the reader of the Cih:r verses in the Qur8:n (58. 6A3:8 b. ‘Believers. Ab:n b. 49. 6Abd All:h b.th that clearly states. The remaining Successors whom al-Bukh:r. 2011 .A (3al:q: 23). al-Bukh:r. N:ﬁ6 b. al-Zubayr. Mas6<d).b. Al-Zuhr.’s story. Yas:r.). F:w<s.A. Ab< Bakr b. Uways) said to me: M:lik related to me that he asked al-Zuhr. 4aA. 6Utba. follows this verse with his observation that the opinion that a woman cannot be divorced prior to marriage is afﬁrmed by narrations from 6Al.. 156 155 Downloaded from jis.. 1–4) before writing: Ism:6. MuAammad b.d b. his impressive roster of pious advocates for the invalidity of premarital divorce can be read as an effort to overwhelm anyone who dares to challenge this ruling. Sulaym:n b. Aasan ghar. 20). 6Abd All:h b.. al-Easan al-BaBr.l (b. begins his discussion of this topic with Ibn 6Abb:s’ observation that God puts divorce after marriage in the Qur8:nic verse. and 6Amr b. 6Umar). Jubayr (b. 6Al. al-Eusayn (Zayn al-62bid. Bakr). One of the clearest cases of al-Bukh:r. al-Musayyab. 6Ubayd All:h b. 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’. FatA al-b:r.d b. He also reports that the protagonist’s name is Salm:n in one version and Salama in the other two. S:lim (b. 4aA.’s reliance on post-prophetic authorities is the topic of premarital divorce. and 3) relating Aad. Zayd.s ch o l a r s t yl e 357 ‘Book on Divorce’. Ab< D:w<d. Ka6b (al-QuraC. 62mir b.156 While al-Bukh:r. al-J:mi6 (3al:q: 19. about the Cih:r oath executed by a slave.ths that have no obvious connection to divorce. E:rim (al-Azdi). b. Mu36im).ths that none of his fellow compilers narrate. Sa6. These techniques include: 1) relying solely upon postprophetic authorities for certain topics. Ab. MuAammad b. al-Q:sim b.157 Perhaps due to the lessthan-sterling isn:d of Salama al-Bay:@.
instead of his preferred reading of ‘and then if they violate what they said’ (i. but that others have Easan b. Ab.358 s co t t c . The second technique al-Bukh:r. Their Doctrines and Their History (Leiden: Brill. 544 (3al:q: 23).163 Likewise. wa-l-l:dh.ru raqaba (58.. 304–8. 1971). ‘(those men) who violate what they said’.A (al-i6tiB:m bi-l-kit:b wa-l-sunna: 12). but which al-Bukh:r.na yuC:hir<n min nis:8ihim thumma ya6<d<na li-m: q:l< fa-taAr.e. occasionally puts front and centre in his 4aA. quoting Ignaz Goldziher.. l uc as free person’. Sulaym:n) in support of this position. FatA al-b:r.-m: q:l<’.. see Hawting. break the Cih:r oath they uttered).). al-Eurr159 said. calls this technique ‘comparison’ (tashb. Ibn Eajar notes that all three men share the same opinion concerning the Cih:r of a slave.. 3]160 means the same as ‘f. Easan b. 2011 .. 6Ikrima said. ‘The Cih:r oaths of a free man and a slave against a free woman and a slave woman are identical’.’s exegesis on the meaning of one of the crucial Qur8:nic verses on the Cih:r oath—material that al-Tirmidh. uses is to include Aad. x.A. Al-Bukh:r. regularly interjects between Aad. 545 (3al:q: 23). 4aA. ‘The fast [of expiation] is two months’. in his Ibn Eajar reports that most manuscripts of al-Bukh:r. Ibr:h.ths in chapters on divorce topics that have no transparent relationship to this topic but share a common similarity that renders them useful. it is meaningless. 162 al-Bukh:r. 160 al-Bukh:r.ths that have nothing to do with 3al:q or li6:n in support of his position that a mute man can perform the act of divorce or mutual imprecation by means of writing and pointing. He also includes the opinions of al-Sha6b. 161 Ibn Eajar explains that al-Bukh:r.h.162 For example. 4aA. ‘If a man issues a Cih:r oath on his slave girl. see Lucas.s.’s 4aA. 163 al-Bukh:r.161 Note the absence in this case of both prophetic and Companion reports and the presence of al-Bukh:r. Eayy and still others have just Easan (which by convention would be al-Easan al-BaBr. This reading is superior since God (Exalted) does not lead (His creatures) to wrongdoing (munkar) and false speech (qawl z<r). The G:hir. 25). ‘An Ascetic Vow or an Unseemly Oath?’ 117. [al-Bukh:r. The G:hir.ths in his J:mi6. 3). the expression ‘li-m: q:l<’ [Qur8:n 58. x. al-Bukh:r. who does not appear anywhere else in the text. is providing his interpretation of the verse. 159 Downloaded from jis...s held that one only had to perform the expiation for every other Cih:r oath.A have Easan b. ‘Legal Principles’. is refuting the reading adopted by the G:hir. and (in the case of this verse). al-Eurr.h) in his book on legal methodology and some Muslim scholars have argued that ‘comparison’ is just another word for analogy (qiy:s). and M:lik said. the best understanding is. because Cih:r is only for (free) women’. 50–2.oxfordjournals.:] In the Arabic language.A (3al:q: 24.org at Princeton University on July 17. relates twelve Aad. and Eamm:d (b. Qat:da.m al-Nakha6.s of the verse thumma ya6<d<na li-m: q:l< as ‘and then they utter the Cih:r oath again’. FatA al-b:r. For a discussion of the controversy over the term tashb.
4aA.. This expression can also be found in a report about the episode of the ‘woman who sought refuge from the Prophet’ in Ibn M:ja. under compulsion.A. considered the expression.A (tawba: 9). with which he inaugurates his entire 4aA. Sunan (luq3a: 2). Ibn Mas6<d. intoxicated or insane..A (3al:q: 22). None of these scholars links this Aad. 32–4. Ab< D:w<d..th concerning ‘lost and found’ (luq3a) property in which the Prophet told a petitioner that one can take ownership of a stray beast after a year of searching for its proper owner.th is found in Muslim. that Ibn 6Umar. 4aA. to count as a divorce if that is what the husband intended. divorce.A (3al:q: 11). as a divorce. Chapters. apostasy. ‘If you leave the house.’s mouth that are elevated to the Prophet in other books: ‘The Pen al-Bukh:r. before narrating a Aad. also reports that al-Easan al-BaBr. you are decisively divorced’.s ch o l a r s t yl e 359 chapter on the ‘missing husband’ (mafq<d). The complete story can be found in extra-legal chapters of al-Bukh:r. Sunan (3al:q: 18). This same expression appears in a very long story about Ka6b b. if that is what the man intended.-l-ighl:q wa-l-kurh wa-l-sakr:n wa-l-majn<n—wa amrihim:—wa-l-ghala3 wa-l-nisy:n f.th.A (luq3a: 1). See also Spectorsky. al-Bukh:r. 164 Downloaded from jis. Sunan (3al:q: 11). 4aA. Ibn M:ja.164 Frequently.: 80) and Muslim. considered the expression ‘You are not my wife’. Al-Bukh:r. Rab:A. 2011 . Ab. and the Basran Qat:da b.A (magh:z.’s string of adverse conditions under which a divorce can occur prepares the reader for multiple opinions from a variety of authorities.org at Princeton University on July 17. 165 B:b al-3al:q f. Sunan (luq3a: 1). 167 al-Bukh:r.m al-Nakha6. and other things done accidentally or in a state of forgetfulness’. also places two statements in 6Al.167 Al-Bukh:r.¯ D I V O R C E .165 Al-Bukh:r. A vivid example of this practice is his chapter on ‘Divorce while angry. al-J:mi6 (aAk:m: 35). and al-Zuhr. 4aA. 166 The example Ibn 6Umar provides is a man who says. We learn that 6Uthm:n and Ibn 6Abb:s considered the divorce enunciated by a drunken man to be valid. a fragment of which is cited by Ab< D:w<d. al-Bukh:r. and his wife leaves the house. presents the opinions of Ibn al-Musayyab. E A D I T H .oxfordjournals. uses both strategies of citing post-prophetic reports and unexpected prophetic Aad. al-Tirmidh. there is no divorce. After his citation of a fragment of the famous Aad. Ibn 6Abb:s. This Aad. 4aA. ‘Go stay with your family’..-l-3al:q wa-l-shirk wa-ghayrih. ‘Actions are by intentions’. the Makkan 6A3:8 b.166 that the Kufan Ibr:h. M:lik’s repentance for avoiding the T:b<k campaign.ths in the same chapter. recounts a string of opinions and stories from a small group of Companions and Successors without any isn:ds. and that al-Zuhr. Di6:ma considered a conditional divorce valid if the condition was fulﬁlled. considered valid the divorce utterance issued in one’s (non-Arabic) native tongue.th to the topic of the missing husband. she is divorced decisively. but if she does not. al-Bukh:r.
Sunan (3al:q: 14). suggests that divorce committed while intoxicated or insane would likewise be invalid.l.ths. al-J:mi6 (3al:q: 8). al-J:mi6 (Aud<d: 1). Sunan (3al:q: 15). Al-Bukh:r.360 s co t t c .th is the prophetic statement that. 171 This man is named as M:6iz b. none of which has anything explicitly to do with divorce. al-Tirmidh. M:lik al-Aslam. 168 Downloaded from jis. Ibn Eajar. insanity. xiv. puts this sentence in the mouth of the Prophet. In both versions cited here. 81 (Aud<d: 22). This is a good example in which ‘comparison’ really is qiy:s. 487 (3al:q: 11).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. Al-Tirmidh. al-Bukh:r. Sunan (3al:q: 15).org at Princeton University on July 17.’s ﬁnal effort to reach a broader array of legal topics without relying upon Aad.ths with inferior transmission histories is simply to narrate reports that few of his contemporaries seem to have acquired. 4aA. since it is based on a Aad. FatA al-b:r.. ‘God disregards that which [members of] my community say to themselves and refrain from acting upon or divulging to anyone else’.. in his commentary. Even though it appears in three of the additional books under consideration in this article.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. 169 Ibn Eajar. that can be applied by jurists beyond the immediate case in which it appears.th in which the Prophet identiﬁes a ‘ruleoccasioning factor’ (6illa)..169 But this is not all.th is found in chapters concerning the invalidity of a divorce which a man utters only to himself in Ibn M:ja. Sunan (Aud<d: 1). l uc as (recording one’s bad deeds) is raised in three cases—the insane person prior to the return of his reason.’s 4aA. and the third as Umayma bint Shar:A.. After touching on a variety of additional topics in this chapter.A.A (3al:q: 3). ‘Are you insane?’ Since these Aad.ths indicate that the Prophet would not have stoned the fornicator from Ban< Aslam had he lacked his rational capacity. Sunan (Aud<d: 16). 170 This Aad. ‘Every type of divorce is permissible. there is no indication that the compilers of these books consciously linked it to the topic of divorce uttered by an insane man.l. He appears to have had special access to reports about the story of Umayma bint Shar:A. another as al-Jawniyya. FatA al-b:r.168 and. and the sleeper prior to his awakening’. al-Bukh:r. see al-D:rim. in versions of this story outside of al-Bukh:r. the ﬁnal question that the Prophet asks prior to implementing the punishment of stoning is. in one report she is described as Bint al-Jawn. al-Bukh:r. Ab< D:w<d. 2011 . The ﬁrst Aad. the youth prior to discernment.th in Ibn M:ja. and al-Tirmidh. except that of the insane person (ma6t<h)’. proceeds to recount three Aad. 172 There is considerable confusion as to this woman’s name... x. Ab< D:w<d. al-J:mi6 (3al:q: 15).oxfordjournals. explicitly identiﬁes ‘the man from Aslam’ as M:6iz.
Al-Bukh:r.A (3al:q: 52). 4aA.ths..th scholars investigate.. and he is silent on the topics of child custody.179 In other words. J.. i.. Sunan (3al:q: 16). 4aA. E A D I T H . ‘baghiyyun’.A (3al:q: 21. Ab< D:w<d. Concordance et Indices de la Tradition Musulmane (Leiden: E. 4aA. presumably since it is only for one month rather than the fourmonth . Ab< D:w<d. (3al:q: 43). Muslim and al-Bukh:r. a woman’s right to leave the house during al-Bukh:r.l:8 regulated by the Qur8:n. Wensinck.oxfordjournals.s ch o l a r s t yl e 361 whom the Prophet subsequently divorced via a messenger rather than face-to-face. 8 vols.¯ D I V O R C E . 174 al-Bukh:r. enabled him to transcend the limits dictated by purely sound Aad. See A.176 It is paradoxical that the two strictest Aad. 4aA. discuss the least and second-greatest number of legal topics on divorce in their respective 4aA. 204.. Sunan (3al:q: 18). but they are not linked in any manner to the topic of the invalid marriage that results in an automatic divorce. and al-Tirmidh. appears to distinguish between the dower in the case of adultery or prostitution (baght) and an invalid marriage (nik:A f:sid).173 Al-Bukh:r. since he alone among his contemporaries addresses eight topics. which he recounts in numerous places throughout his 4aA.l:8 ‘the jurists discuss’.. Brill. 177 al-Bukh:r.A (3al:q: 3). J.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.. 173 Downloaded from jis.th does not actually refer to the .th scholars.l:8 to the story of the Prophet falling off of his horse and breaking his leg. 4aA. 175 al-Bukh:r. eight) categories of divorce law. 1936).ths addressing the seven (or. 176 al-Bukh:r.ths in which the dower for adultery and prostitution is unambiguously prohibited with al-Easan al-BaBr. 178 Ibid.A. Note that Ibn Eajar declares that this Aad. largely on the basis of juxtaposing three prophetic Aad.’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.th initially appears in Bal:t: 18). such as divorce prior to consummation. I may have unintentionally inﬂated the number of divorce topics covered by al-Bukh:r. Ibn M:ja includes a variant of this story. he actually covers only 23 topics that his fellow Aad.177 divorce by pointing. this Aad.A (3al:q: 51). Muslim.’s willingness to use post-prophetic material and ‘comparison’.A (3al:q: 24).. counting conversion.A (3al:q: 10).org at Princeton University on July 17.178 and the ruling that women are not allowed to conceal that they are pregnant at the time of divorce. However. is unique in linking the oath of .ths are found in the books of al-D:rim...175 Finally.As. These Aad. 179 Ibid. 2011 . as well as his vast collection of Aad. only al-Bukh:r. 4aA.
Ab< D:w<d. CONCLUSIONS This project began as a simple comparative exercise between the books of six famous Aad.A is distinguished by its diversity of topics.th scholars under examination. etc.. under compulsion.th books in order to evaluate the range of topics each Aad. a task facilitated by the modern editors of these books. 2011 . in consultation with the early proto-madhhab law books of the third/ninth century and Susan Spectorsky’s Chapters on Marriage and Divorce.oxfordjournals. his 4aA. Muslim.ths among al-D:rim. I assembled a list of 45 legal topics that I derived from the six Aad. several of which are unaddressed in the other ﬁve books under consideration. ‘I don’t have a wife’. Ibn M:ja. Then I had to track down topics related to divorce found outside of the six scholars’ ‘Books on Divorce’. as well as its compiler’s creative utility of narrations that bear little explicit relationship to the legal topic under discussion. the validity of conditional divorces. It is also possible that I undercounted al-Bukh:r. none of the other ﬁve books addresses the topics of divorce while intoxicated. insane. Two discoveries initially emerged from this analysis.th scholars of the third/ninth century in order to learn more about their compilers’ methods of jurisprudence. 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.ths. several factors made a comparison of their books complicated. since his ‘Chapter on divorce while angry.th scholar addressed. intoxicated. The ﬁrst was the surprising fact that only six legal topics were covered by all of the Aad. l uc as the daylight hours of her waiting period.. and whether a man with ten wives must divorce six of them upon his conversion. and early postprophetic authorities.’s breadth of legal topics. shies away from both sub-par Aad. al-Bukh:r. Finally.’ actually covers numerous topics. Aad. All of these topics can be found in the early ﬁqh books. Despite the common allegiance to and profound knowledge of Aad. 180 Downloaded from jis.180 Even though al-Bukh:r. the validity of divorce uttered in a language other than Arabic. or the consequences of the husband’s expression. These topics seemed highly random and each one appeared to derive from a tangled web of narrations For example..ths and the legal opinions of most of the eponyms of the Sunni schools of law.org at Princeton University on July 17.362 s co t t c . and al-Tirmidh.
.182 Likewise. Secondly. The most signiﬁcant conclusion from this analysis is that the Aad.ths.b.181 but. is there any practical difference whether 6Al. especially the episode of F:3ima bint Qays. Muslim restricted his 4aA. al-D:rim. al-J:mi6 (3al:q: 14). except that of the insane Only al-Tirmidh. 2011 . Ab< D:w<d. and his skill at ﬁnding obscure Aad. appeared more reticent to do so. This strategy enabled all of them.’s method of relying upon Companion and Successor reports instead of prophetic Aad. allowed him to address approximately the same number of topics as Ibn M:ja and Ab< D:w<d. ‘Any woman who asks her non-abusive husband for a divorce will be forbidden from (enjoying) the scent of Paradise’. E A D I T H . his technique of ‘comparison’.¯ D I V O R C E .A (buy<6: 4). Ab< D:w<d. with the exceptions of al-D:rim. All of them. one searches in vain for dramatic differences between their personal legal opinions.A (nik:A: 54). whereas Ab< D:w<d and al-Tirmidh.th scholars adopted three methodological approaches to the articulation of Islamic law in their books.oxfordjournals. and Muslim may have been more khul6-friendly than their contemporaries. Muslim and Ibn M:ja were frequently willing to state their personal legal opinions. Sunan (3al:q: 2). freedom from overt madhhab loyalty.org at Princeton University on July 17. most of whose protagonists were named women and men. al-Bukh:r. laysa isn:duhu bi-qaw. then again. Muslim.A solely to what he considered to be sound prophetic Aad. Despite these six scholars’ distinct methodological differences. ‘Every type of divorce is permissible. four of which do not even appear in the ‘Book on Divorce’. He evaluates its isn:d as ghar.ths and subsequently limited himself to a mere twelve topics on divorce.A. and their accumulation of a massive trove of transmitted materials. to double the number of divorce-related topics addressed by Muslim.s ch o l a r s t yl e 363 of a discrete episode during the Prophet’s lifetime.ths that met his critical standards. and al-Tirmidh. 181 Downloaded from jis.ths. was that al-D:rim. all endeavoured to base their legal rulings upon sound prophetic Aad. based on the analysis of the presentations of these six universal topics. 4aA.. True.th. Muslim does not even mention the topic of khul6 in his 4aA. al-Bukh:r. al-J:mi6 (3al:q: 11). First. Finally. Ibn M:ja. al-Tirmidh. for they do not claim that the Prophet said. or the Prophet said... save al-D:rim. or ‘The women who perform khul6 are hypocrites’.. but were willing to supplement their meagre ﬁndings with useful prophetic material related through inferior chains of transmission.. narrates this weak Aad. 182 al-Bukh:r.. 4aA. al-Bukh:r. although he only overlaps with either of them in 23 cases. The second discovery. and Ibn M:ja. also advocate the impermissibility of a woman to demand that her suitor divorce his current wives as a stipulation in her marriage contract.
Shayba’s MuBannaf.184 One could argue that the six Aad.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.183 Only al-Bukh:r. 1–49. al-D:rim. ‘The Question of the Authenticity of Muslim Traditions Reconsidered: A Review Article’. Herbert Berg. l uc as person’? With the notable exception of the topic of the waiting period of the triply-divorced woman. The classic statement on the massive forgery of Aad. Successors and. Origins of Islamic Jurisprudence. Lucas. Ab< D:w<d mentions 30. 211–58. see Scott C.ths raises new questions concerning the widely-accepted thesis in the West of a massive forgery of Aad. 2003). is also indispensable. His essay. 185 A most useful summary of Western scholarship on this topic is found in Motzki.oxfordjournals. the classic reference works of Aad.ths remains Joseph Schacht. while his junior contemporaries perform the service of carefully organizing. evaluating. this aggregate remains signiﬁcantly smaller than the 250–300 topics covered by 6Abd al-Razz:q and Ibn Ab.th-scholars as uninspiring jurists. forthcoming. See also Motzki. if we shift our gaze from their personal jurisprudence to the actual Aad.. 184 For a quantitative analysis of Ibn Ab. Leiden: Brill. Ibn M:ja comments on 32. and in the case of al-Tirmidh.th scholars as a modestly sophisticated jurist.ths that have adorned the bookshelves of Sunni jurists for the past millennium.ths they relate. The two MuBannafs and Mudawwana rely primarily on post-prophetic authorities and include thousands of reports attributed to Companions. This stunning paucity of divorce topics supported by Aad.ths?’ in Islamic Law and Society.ths acceptable to critical Aad. emerges from this group of Aad. 2011 . The Origins of Muhammadan 183 Downloaded from jis. Muslim only discusses 12 topics related to divorce.org at Princeton University on July 17. The Origins of Islamic Jurisprudence.th scholars under consideration for this article were simply attempting to articulate Islamic law with the wrong materials.364 s co t t c . we may.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. the hallmarks of Aad. touches on 16. the second/eighth-century jurist M:lik. considers 31. covers 24. While it might be tempting to dismiss these six Aad. al-Tirmidh. in the case of the latter book. in Method and Theory in the Study of Islamic Origins (ed.185 There must Only 29 topics on divorce are addressed by three or more of the Aad.ths in the early centuries of Islam. Shayba in their MuBannafs and the approximately 125 topics in SaAn<n’s Mudawwana.th scholars in this study. ‘Where Are All the Legal Ead. advance a bold claim: prophetic Aad. Even if I have been conservative in my identiﬁcation of only 45 divorce topics among these six books.
th scholars truly were such critical compilers that each one of them was left with materials covering barely two dozen legal topics on divorce. Islamic Methodology in History (Islamabad: Islamic Research Institute. Is it now safe to propose that al-Shayb:n. 187 Many of the Aad.ths that shed light on the difference between the statements.ths not primarily because early Eanaf.’s al-J:mi6 al-Bagh. 186 A similar argument is advanced by Motzki. apocalyptic. The fact that al-D:rim.oxfordjournals.ths and Aad. 2011 Jurisprudence (London: Oxford.ths for articulating Islamic law in the wake of al-Sh:ﬁ6.th books if the early 6Abbasid period was awash in Aad. al-Bukh:r. ‘You are divorced whenever you wish’ and ‘You are divorced however you wish’.r.. Muslim. along with most Successor reports. see Goldziher.187 Another possibility is that all six Aad.org at Princeton University on July 17.s may have disliked them on principle. address such a modest and random array of divorce topics in their Aad.. and al-Tirmidh.th scholars and exaggerating the utility of prophetic Aad.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 forgers.th compilations should caution us against the twin errors of underestimating the critical selectivity of these Aad..r is devoid of Aad. 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. al-J:mi6 al-Bagh. 188 al-Shayb:n. Ibn M:ja. and sectarian topics rather than legal ones.ths from which to choose.ths with inferior and at times outright defective isn:ds appear in these canonical books. to be ﬁctitious (p. Schacht considers all prophetic Aad. 213.¯ D I V O R C E .ths discussed theological.edu Downloaded from jis. 189 Ibid. 199. see Origins. .’s teachings.. and Fazlur Rahman. 178). Ab< D:w<d. 27–84.arizona. and claims that ‘the bulk of the legal traditions from the Prophet known to M:lik originated in the generation preceding him.ths criticized by Goldziher and Fazlur Rahman fall under extra-legal classiﬁcations. 240–4. Muslim Studies. d. 1975 (1950)). although Ibn M:ja’s relaxed standards would seem to contradict this hypothesis. There must also be a reason why so many Aad. 149). E A D I T H . 89–125. but rather due to the sheer absence of Aad.). ii. leaving our six compilers with relatively few divorce Aad.186 One possibility is that most of the forged Aad.ths and Companion reports.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. since the compilers possessed the requisite skills to make forgeries with sound isn:ds. n.
just the chapter number is provided.366 s co t t c ..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’. B: al-Bukh:r.51–53. 32–45. 43. Nik:A: 17. l uc as APPENDIX Table 1: Chapters on Divorce Used in this Study Book Sunan al-D:rim.17. M: Muslim..19–30.19–22..oxfordjournals.A Muslim Sunan Ibn M:ja Sunan Ab.47.2) (M:1) (IM:2. 191 190 . 39. 40.3) (AD:4) (T:1) (D:4) (B:4. Buy<6: 4.16) (AD:8) (T:15) (D:1) (B:1. 60. 6Itq: 2. 36. IM: Ibn M:ja. Nik:A: 27. If it is in any other book. 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. Nik:A: 32.35. 34. AD: Ab< D:w<d. that book’s title will be included in the citation. Nik:A: 39 Fal:q: 1–17..49 Fal:q: 1–11. al-J:mi6 al-4aA. 14–17. al-Bukh:r. so the ﬁfth chapter of al-Tirmidh. If the indicated chapter is found in the ‘Book on Divorce’. AAk:m: 21 Total(172) 16 47 12 37 36 24 Downloaded from jis.A 4aA. Li6:n190 Fal:q: 1–7.A Divorce chapters Fal:q: 1–11. al-J:mi6 al-4aA.37–41. T: al-Tirmidh.’s ‘Book on Marriage’ would read (T: nik:A: 5). 9–32.33. AAk:m: 22 Fal:q: 2–29.7.13–15.. Nik:A: 54 Fal:q: 1–8. D:w<d al-Tirmidh.org at Princeton University on July 17. Abbreviations: D: al-D:rim.
19) (AD:11) A divorce issued in jest counts (IM:13) (AD:9) (T:9) Implications of calling one’s wife ‘unlawful’ (B:7.8) (M:3) (IM:28) (Aar:m) Implications of referring to one’s wife as (B:10) (AD:16) ‘my sister’.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:1.5) divorce (AD:5. E A D I T H .42) (M:6) (IM: 10) (AD:39.s ch o l a r s t yl e 367 8 If a man does not inform anyone about his divorce.org at Princeton University on July 17.7) (AD:47) (T:17) (D:14) (M:7) (IM:9) (AD:41) Downloaded from jis. 38) Words other than 3al:q that can cause divorce (B:6) (IM:18.oxfordjournals.35) (T:aAk:m:21) Taking one’s wife back after a revocable (D:2) (B:44. 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. 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) . 40) (T:5) (D:11) (B:39) (M:8) (IM: 6.
r does not count as a divorce if the woman chooses her husband 38 A manumitted married slave woman has the right to takhy.368 s co t t c .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.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 .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. 32–36) (M:li6:n) (IM:27) (AD:27–29) (T:22) (D:9) (B:23) (IM:25–6) (AD:17) (T:19. 2011 (D:nik:A:39) (B:25–30. 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.oxfordjournals.20) (B:21) (M:5) (IM:24) (T:21) (B:19.24) (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 .r 37 Takhy.r 39 Does ‘Your matter is in your hand’ count as a triple or single divorce? E) Mutual imprecation 40 The li6:n procedure (D:7) (B:12.org at Princeton University on July 17.20) (IM: nik:A:60) (AD:23.
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