Divorce (Kitab Al-Talaq)

'Amr b. Shu'aib on his father's authority said that his grandfather reported: The Prophet (ﷺ) decided regarding one who was treated as a member of a family after the death of his father, to whom he was attributed when the heirs said he was one of them, that if he was the child of a slave-woman whom the father owned when he had intercourse with her, he was included among those who sought his inclusion, but received none of the inheritance which was previously divided; he, however, received his portion of the inheritance which had not already been divided; but if the father to whom he was attributed had disowned him, he was not joined to the heirs. If he was a child of a slave-woman whom the father did not possess or of a free woman with whom he had illicit intercourse, he was not joined to the heirs and did not inherit even if the one to whom he was attributed is the one who claimed paternity, since he was a child of fornication whether his mother was free or a slave.

The tradition mentioned above has also been transmitted by Muhammad bin Rashid through a different chain of narrators to the same effect. This version adds “he is the child of fornication for the people of his mother whether she was free or a slave. This attribution of a child to the parents was practiced in the beginning of Islam. The property divided before Islam will not be taken into account.

Narrated Aisha, Ummul Mu'minin: The Messenger of Allah (ﷺ) entered upon me. The version of Musaddad and Ibn as-Sarh has: one day looking pleased". The version of Uthman has: "The lines of his forehead were realised." He said: O Aisha, are you not surprised to hear that Mujazziz al-Mudlaji saw that Zayd and Usamah had a rug over them concerning their heads and letting their feet appear. He said: These feet are related.Abu Dawud: Usamah was black and Zaid was white.

The tradition mentioned above has also been transmitted by ibn Shihab through a different chain of narrators to the same effect. This version adds “She said “he entered upon me looking pleased with the lines of his face brightened. Abu Dawud said “Ibn ‘Uyainah did not remember the words “the lines of his face”.”Abu Dawud said “The words “the lines of his face” have been narrated by Ibn ‘Uyainah himself. He did not hear Al Zuhri say (these words). He heard some person other than Al Zuhri say these words. The words “the lines of his face” occur in the tradition narrated by Al Laith and others.Abu Dawud said “ I heard Ahmad bin Salih say “Usamah was very black like tar and Zaid was white like cotton.”

Narrated Zayd ibn Arqam: I was sitting with the Prophet (ﷺ). A man came from the Yemen, and said: Three men from the people of the Yemen came to Ali, quarrelling about a child, asking him to give a decision. They had had sexual intercourse with a woman during a single state of purity. He said to two of them: Give this child to this man (the third person) with pleasure. But they (refused and) cried loudly. Again he said to two of them: Give the child to the man (the third person) willingly. But they (refused and) cried loudly. He then said: You are quarrelsome partners. I shall cast lots among you; he who receives the lot, will acquire the child, and he shall pay two-thirds of the blood-money to both his companions. He then cast lots among them, and gave the child to the one who received the lot. The Messenger of Allah (ﷺ) laughed so much that his canine or molar teeth appeared.

Narrated Zayd ibn Arqam: Three persons were brought to Ali (Allah be pleased with him) when he was in the Yemen. They and sexual intercourse with a woman during a single state of purity. He asked two of them: Do you acknowledge this child for this (man)? They replied: No. He then put this (question) to all of them. Whenever he asked two of them, they replied in the negative. He, therefore, cast a lot among them, and attributed the child to the one who received the lot. He imposed two-third of the blood-money (i.e. the price of the mother) on him. This was then mentioned to the Prophet (ﷺ) and he laughed so much that his molar teeth appeared.

Khalil or Ibn Khalil said “A woman was brought to Ali bin Abi Talib(may Allaah be pleased with him). She bore a child from intercourse of three persons. The narrator transmitted the rest of the tradition similar to the previous one. But in this version he did not mention “Yemen” and the Prophet (ﷺ) and his words “give the child willingly.”

A’ishah wife of the Prophet (ﷺ) said “Marriage in pre Islamic times was of four kinds.” One of them was the marriage contracted by the people today. A man asked another man to marry his relative (sister or daughter) to him. He fixed the dower and married her to him. Another kind of marriage was that a man asked his wife when she became pure from menstruation to send fro so and so and have sexual intercourse with him. Her husband kept himself aloof and did not have intercourse with her till It became apparent that she was pregnant from the man who had intercourse with her. When it was manifest that she was pregnant, her husband approached her if he liked. This marriage was called istibda’(to utilize man for intercourse for a noble birth). A third kind of marriage was that a group of people less than ten in number entered upon a woman and had intercourse with her. When she conceived gave birth to a child and a number of days passed after her delivery, she sent for them. No one of them could refuse to attend and they gathered before her. She said to them “You have realized your affair. I have now given birth to a child. And this is your son. O so and so. She called the name of anyone of them she liked and the child was attributed to him. A fourth kind of marriage was that many people gathered together and entered upon a woman who did not prevent anyone who came to her. They were prostitutes. They hoisted flags at their doors which served as a sign for the one who intended to enter upon them. When she became pregnant and delivered the child , they got together before her and called for the experts of tracing relationship from physical features. They attributed the child to whom they considered and it was given to him. The child was called his son and he could not deny. When Allah sent Muhammad (ﷺ) as a Prophet, he abolished all kinds of marriages prevalent among the people of the pre Islamic times except of the Muslims practiced today.

A’ishah said “Sa’d bin Abi Waqqas and ‘Abd bin Zamah disputed amongst themselves about the (relationship of the) son of the slave girl of Zam’ah and brought the case to the Apostle of Allaah(ﷺ). Sa’d said “My brother ‘Utbah enjoined me that when I came to Makkah I should see the son of the slave girl of Zam’ah and take his possession for that is his son”. ‘Abd bin Zam’ah said “He is my brother, the son of my father’s slave girl having been born on my father’s bed”. The Apostle of Allaah(ﷺ) saw his clear resemblance to ‘Utbah. So he said “The child is attributed to the one on whose bed it is born and the fornicator is deprived of any right (lit. the fornicator will have the stone). Veil yourself from him, Saudah. Musaddad added in his version “he is your brother ‘Abd”.

'Amr b. Shu'aib on his father's authority said that his grandfather reported: A man got up and said: Messenger of Allah, so-and-so is my son; I had illicit intercourse with his mother in the pre-Islamic period. The Messenger of Allah (ﷺ) said: There is no unlawful claiming of paternity in Islam. What was done in pre-Islamic times has been annulled. The child is attributed to the one on whose bed it is born, and the fornicator is deprived of any right.

Rabah said: My people married me to a Roman slave-girl of theirs. I had intercourse with her, and she gave birth to a black (male) child like me. I named it Abdullah. I again had intercourse with her, and she gave birth to a black (male) child like me. I named it Ubaydullah. Then a Roman slave of my people, called Yuhannah, incited her, and spoke to her in his own unintelligible language. She gave birth to a son like a chameleon (red). I asked her: What is this? She replied: This belongs to Yuhannah. We then brought the case to Uthman (for a decision). I think Mahdi said these words. He inquired from both of them, and they acknowledged (the facts). He then said to them: Do you agree that I take the decision about you, which the Messenger of Allah (ﷺ) had taken? The Messenger of Allah (ﷺ) decided that the child was to attributed to the one on whose bed it was born. And I think he said: He flogged her and flogged him, for they were slaves.

'Amr b. Shu'aib on his father's authority said that his grandfather (Abdullah ibn Amr ibn al-'As) reported: A woman said: Messenger of Allah, my womb is a vessel to this son of mine, my breasts, a water-skin for him, and my lap a guard for him, yet his father has divorced me, and wants to take him away from me. The Messenger of Allah (ﷺ) said: You have more right to him as long as you do not marry.

Hilal ibn Usamah quoted Abu Maimunah Salma, client of the people of Medina, as saying: While I was sitting with AbuHurayrah, a Persian woman came to him along with a son of hers. She had been divorced by her husband and they both claimed him. She said: AbuHurayrah, speaking to him in Persian, my husband wishes to take my son away. AbuHurayrah said: Cast lots for him, saying it to her in a foreign language. Then her husband came and asked: Who is disputing with me about my son? AbuHurayrah said: O Allah, I do not say this, except that I heard a woman who came to the Messenger of Allah (ﷺ) while I was sitting with him, and she said: My husband wishes to take away my son, Messenger of Allah, and he draws water for me from the well of AbuInabah, and he has been good to me. The Messenger of Allah (ﷺ) said: Cast lots for him. Her husband said: Who is disputing with me about my son? The Prophet (ﷺ) said: This is your father and this your mother, so take whichever of them you wish by the hand. So he took his mother's hand and she went away with him.

Narrated Ali ibn AbuTalib: Zayd ibn Harithah went out to Mecca and brought the daughter of Hamzah with him. Then Ja'far said: I shall take her; I have more right to her; she is my uncle's daughter and her maternal aunt is my wife; the maternal aunt is like mother. Ali said: I am more entitled to take her. She is my uncle's daughter. The daughter of the Messenger of Allah (ﷺ) is my wife, and she has more right to her. Zayd said: I have more right to her. I went out and journeyed to her, and brought her with me. The Prophet (ﷺ) came out. The narrator mentioned the rest of the tradition. He (i.e. the Prophet) said: As for the girl, I decided in favour of Ja'far. She will live with her maternal aunt. The maternal aunt is like mother.

This tradition has been narrated by ‘Abd Al Rahman bin Abi Laila through a different chain of narrators. This version has “He decided that she would be given to Ja’far and said “Her maternal aunt is with him(i.e., his wife).

Narrated Ali ibn AbuTalib: When we came out from Mecca, Hamzah's daughter pursued us crying: My uncle. Ali lifted her and took her by the hand. (Addressing Fatimah he said:) Take your uncle's daughter. She then lifted her. The narrator then transmitted the rest of the tradition. Ja'far said: She is my uncle's daughter. Her maternal aunt is my wife. The Prophet (ﷺ) decided in favour of her maternal aunt, and said: The maternal aunt is like mother.

Amr ibn Muhajir reported on the authority of his father: Asma', daughter of Yazid ibn as-Sakan al-Ansariyyah, was divorced in the time of the Messenger of Allah (ﷺ). No waiting period was prescribed for a divorced woman (at that time). When Asma' was divorced, Allah, the Exalted, sent down the injunction of waiting period for divorce. She is the first of the divorced women about whom the verse relating to waiting period was sent down.

Narrated Abdullah ibn Abbas: Women who are divorced shall wait, keeping themselves apart, three monthly courses; and then said: And for such of your women as despair of menstruation, if ye doubt, their period (of waiting) shall be three months. This was abrogated from the former verse. Again he said: (O ye who believe, if ye wed believing women) and divorce them before ye have touched them, then there is no period that ye should reckon."

Narrated Umar ibn al-Khattab: The Prophet (ﷺ) divorced Hafsah, but he took her back in marriage.

Abu Salamah bin ‘Abd Al Rahman reported on the authority of Fatimah daughter of Qais Abu ‘Amr bin Hafs divorced her (Fathima daughter of Qais) absolutely when he was away from home and his agent sent her home barely. She was displeased with it. He said “I swear by Allaah, you have no claim on us. She then came to Apostle of Allaah(ﷺ) and mentioned that to him. He said to her “No maintenance is due to you for from him. He ordered her to spend the waiting period in the house of Umm Sharik but he said afterwards “that is a woman whom my Companions visits spend the waiting period in the house of Ibn Umm Maktum for he is blind and you can undress. Then when you are in a position of being remarried, tell me.” She said “When I was in a position to remarry, I mentioned to him that Mu’awiyah bin Abi Sufyan and Abu Jahm had asked me in marriage. The Apostle of Allaah(ﷺ)said “As for Abu Jahm, he does not put down his stick from his shoulder, and as for Mu’awiyah he is a poor man who has no property; marry Usamah bin Zaid. I disliked him but he said “Maary Usamah bin Zaid. So, I married him. And Allaah prospered him very much and I was envied.”

Abu Salamah bin ‘Abd Al Rahman said that Fatimah daughter of Qais told him that Abu Hafs Al Mughirah divorced her three times. He then narrated the rest of the tradition. The version has Khalid bin Walid and some people of Banu Makhzum came to the Prophet (ﷺ) and said Prophet of Allaah (ﷺ) Abu Hafs Al Mughirah divorced his wife three times and he has left a little for her. He said “No maintenance is necessary for her. He then transmitted the rest of the tradition. The tradition narrated by Malik is more perfect.

Abu Salamah reported on the authority of Fatimah daughter of Qais that Abu ‘Amr bin Hafs Al Makhzumi divorced her three times. He then narrated the rest of the tradition. He then mentioned about Khalid bin Walid and said that the Prophet (ﷺ) said “There are no maintenance and dwelling for her.” This version has “The Apostle of Allaah(ﷺ) sent a message to her “Do not give her consent for marriage without my permission.””

Fatimah daughter of Qais said “I was married to a man of Banu Makhzum. He divorced me absolutely. The narrator then transmitted the rest of the tradition like that of Malik. This version has “Do not marry yourself without my permission.”Abu Dawud said Al Sha’bi, Al Bahiyy and ata from abd Al Rahman bin asim and Abu Bakr bin Abi Al Jahm all narrated on the authority of Fatimah daughter of Qais that her husband had divorced her three times.

The tradition mentioned above has also been transmitted by Al Sha’bi through a different chain of narrators. This version has “The husband of Fathima daughter of Qais pronounced her triple divorce. The Prophet (ﷺ) did not allow her to have maintenance and dwelling.”

‘Ubaid Allah said “Marwan sent someone (Qabisah) to Fatimah and asked her (about the case). She said that she was the wife of Abu Hafs. The Prophet (ﷺ) appointed ‘Ali as governor in a certain part of Yemen. Her husband also proceeded with him. From there he sent a message to her pronouncing one divorce that had yet remained. He commanded ‘Ayyash bin Abi Rabi’ah and Al Harith bin Hisham to provide maintenance to her. They said “By Allah there is no sustenance for her except in case she is pregnant.” She came to the Prophet(ﷺ) who said “There is no sustenance for you except in case you are pregnant. She then asked permission to shift (from her house) and he gave her permission.” She asked “Where should I shift. Apostle of Allaah(ﷺ)? The Apostle of Allaah(ﷺ) said to Ibn Umm Maktum . He was blind. She would undress herself and he could not see her. She lived there till her waiting period passed. The Prophet (ﷺ) married her to Usamah. Qabisah then returned to Marwan and narrated that to him. Marwan said “We did not hear this tradition except from a woman, so we shall follow the reliable practice on which we found the people”. When this reached Fatimah she said “between me and you is the Book of Allah”. Allaah the exalted said “Divorce them for their waiting period...” Thou knowest not it may be that Allaah will afterward bring some new thing to pass. She said “What a new thing will emerge after triple divorce.”Abu Dawud said “A similar tradition has been narrated by Yunus on the authority of Al Zuhri. As for Al Zubaidi he narrated both traditions, the tradition of ‘Ubaid Allah in the version of Ma’mar and the tradition of Abu Salamah in the version of ‘Aqil.”Abu Dawud said “Muhammad bin Ishaq narrated on the authority of Al Zuhri that Qabisah bin Dhuwaib transmitted to him the version which was narrated by ‘Ubaid Allah bin ‘Abd Allaah which has Qabisah then returned to Marwan and informed him about that.”

Abu Ishaq said “I was with Al Aswad in the congregational mosque. He said “Fathimah daughter of Qais came to ‘Umar bin Al Khattab(may Allaah be pleased with him). (When she narrated the tradition about her divorce) he said “We are not to leave the Book of our Lord and the Sunnah of our Prophet (ﷺ) for the statement of a woman, we do not know whether she remembered it or not.”

Urwah said: Aisha (Allah be pleased with her) severely objected to the tradition of Fatimah daughter of Qays. She said: Fatimah lived in a desolate house and she feared for her loneliness there. Hence the Messenger of Allah (ﷺ) accorded permission to her (to leave the place).

Urwah ibn az-Zubayr said: Aisha was asked: Did you not see (i.e. known) the statement of Fatimah? She replied: It is not good for her to mention it (to others).

Sulaimah bin Yasar said about leaving the house by Fathimah “That was due to her bad manners.”

Al-Qasim ibn Muhammad and Sulayman ibn Yasar reported: Yahya ibn Sa'id ibn al-'As divorced the daughter of 'Abd al-Rahman ibn al-Hakam absolutely. 'Abd al-Rahman shifted her (from there). Aisha sent a message to Marwan ibn al-Hakam who was the governor of Medina, and said to him: Fear Allah, and return the woman to her home. Marwan said (according to Sulayman's version): 'Abd al-Rahman forced me. Marwan said (according to the version of al-Qasim): Did not the case of Fatimah daughter of Qays reach you? Aisha replied: There would be no harm to you if you did not make mention of the tradition of Fatimah. Marwan said: If you think that it was due to some evil (i.e. reason), then it is sufficient for you to see that there is also an evil between the two.