(Continuation of Chapter 32)
[The discussion on divorce begins. Linguistically it means releasing, from your words, "I released the camel," and it is a technical term for undoing the bond of marriage. It has four pillars:
The shaykh divided divorce into two categories: innovated and sunna.]
If anyone divorces his wife by a triple divorce she is no longer halal for him either by right of ownership or marriage until she has married another husband.
[Free or slave, Muslim or Kitabi, consummated or not. This is based on the Qur'anic ayat. What is meant by marriage by the shaykh and in the ayat is intercourse which is indicated by the words of the Prophet in the hadith about the wife of Rifa'a, "Not until you taste his sweetness and he tastes yours."
A precondition for the husband is that he is a Muslim. If he had been a Muslim married to a Jew or Christian and he divorces his wife three times and then she then marries a Jew or a Christian who then divorces her, she is not lawful for the Muslim to marry.
He must be an adult and maturity in intercourse is considered. If the contract is made before maturity and there is no consummation until he is an adult, then it is lawful. Intercourse during menstruation or 'idda is not considered, nor is the intercourse of the one who makes lawful without mutual aversion in it and that there be a customary being alone together which is confirmed by two women.
The seclusion must be confirmed, Otherwise, she is not lawful. Ashhab said, "even if the second confirms the intercourse because they are suspected of doing this to allow re-marriage to the one who divorced her. " Intercourse with an unconscious woman or madwoman is not considered.]
It is an innovation (bid'a) to divorce a wife by a triple divorce said on one occasion but if it happens it is nevertheless binding.
[The command is contrary to that even though it did occur in the time of the Prophet. Part of that is that he heard that a man had divorced his wife with three divorces together. He got up in anger and then said, "Do you play with the Book of Allah Almighty while I am among you?" However it is binding when it is done all at once.]
A sunna divorce is acceptable, which is when a man divorces his wife by one pronouncement made while she is pure, having not had sexual intercourse with her since she became pure and does not make a second pronouncement until her 'idda period is over.
[A divorce allowed by the sunna which is permitted is is described. This has four rules. If one of them is missing it is not sunna.]
He can go back to her provided that she has not begun her third menstrual period since the pronouncement of divorce (assuming she has menstrual periods and is a free woman). If the wife is a slavegirl who has menstrual periods, he can go back to her provided she has not yet begun her second period.
[He can take her back because the marital ties continue between them except for intercourse. Taking her back is with the intention and the statement, like "I take her back," "I keep her," or things which take the place of word like intercourse and foreplay, but there must be an intention with the intercourse. Intercourse without the intention is not taking back.]
If the wife has not yet begun to have menstrual periods or has ceased to have them, he can divorce her at any time he wants and the same applies to a woman who is pregnant.
[Various ages are given for the menopause. About "any time," at-Tata'i said, "It can even be after intercourse with her because such a divorce is in months which would not entail lengthening the 'idda. It is the same with the wife with whom the marriage has not been consummated, even during the time of her menstruation, since the reason for the prohibition is to avoid prolonging 'idda.]
A man can go back to his pregnant wife up until the time she gives birth, in the same way that he can go back to a wife who is having periods before the end of her 'idda.
[He can take her back when the child is partially born. If it is completely born, then the 'idda is over and he cannot take her back. The 'idda ends by the miscarriage of a piece of flesh or a clot. If the matter is unclear, and it is not known whether it was the foetus or congealed blood, one considers the hot liquid. The 'idda of a woman with constant bleeding is a year: nine months are considered as freeing her and three are the 'idda. So the 'idda is actually three months. The 'idda of the post-menopausal woman is three months. There is no difference in the 'idda of months between the free woman and slave.
They disagree about whether "period" in the ayat means purity, as with us and ash-Shafi'i or menstruation with Abu Hanifa.]
It is forbidden for a man to divorce his wife while she is menstruating but if he does do so it is valid, but he is compelled to take her back if her 'idda period has not finished.
[i.e. she is not pregnant. If he does, it is binding because Ibn 'Umar divorced his wife while she was menstruating and as 'Umar asked the Messenger of Allah about that and he said, "Tell him to take her back and then keep her until she is pure and then menstruates and then is pure. Then if he wishes he can keep her, or if he wishes he can divorce her before touching her. That is the 'idda which Allah has commanded for the divorce of women." The ruler commands him to take her back. If he refuses, he threatens him with prison. If he refuses, he is imprisoned. If he refuses he is beaten.]
[Mukhtasar: The same applies if he divorces her during lochia.]
If a man has not yet consummated his marriage he can divorce his wife at any time.
[He is permitted to do this in the famous position since she has no 'idda, but Ashhab forbids it in menstruation because he considers the reason behind the ruling to be an act of worship.]
One pronouncement of divorce ends the marriage and three makes her haram for him until she has been married to someone else.
[Without consummation because she has no 'idda. It is final. Three in one statement or what is like it is like the final or by repeating the expression one after another.]
If a man says, "You are divorced," to his wife that is considered one pronouncement unless he intended more than that.
[It is a clear explicit statement, and counts, even if it is a joke. If he uses an indirect term ("You are free"), divorce is only obliged by intention because it is an allusion. If he intends more, it is binding. ]
Khul' is a type of divorce which precludes any possibility of remarriage, even though it is not technically called a divorce, and it takes place when the husband accepts something from his wife in return for her release.
["It is a divorce" refutes the one who says that it is invalidation. Accordingly to the first, if he divorced her before, the khul' is two divorces and is she is only lawful after another marriage. According to the second, he can take her back before she married. The words "no possibility of remarriage" indicates the position of someone who thinks it is revocable and not final. He said, "not technically a divorce" indicates the one who says the khul' is not divorce even though it is called divorce.]
If anyone says to his wife, "You are divorced once and for all," it is as if he had pronounced the triple divorce, regardless of whether the marriage has been consummated or not.
Similarly, if anyone says, "You are no longer my responsibility," or "You are on your own," or "You are haram for me," or "Your rein is on your hump" (i.e. you can go wherever you like) that is also considered as a triple divorce if the marriage has been consummated. If the marriage has not been consummated the husband is asked to specify what he intended.
(One takes note of custom in all this.)
When a woman who has been previously married is divorced before the marriage has been consummated she receives half her dowry unless she chooses of her own free will to forgo it. If she is a virgin the decision is left to her father and in the case of a slavegirl it is left to her master.
[Which has been named for her by the words of the Almighty "If you divorce them before you have touched them but have already allotted them a dowry, they should have half the amount you allotted, unless they forgo it," meaning non-virgin sane women, "or the one in charge of the marriage contract forgoes it.,"(2:237) which is the father in his virgin daughter and the master in his slavegirl. This applies when the divorce is final or revocable, and she is free or a Kitabi or a Muslim slave, consummated or not.]
When a man divorces his wife it is recommended for him to give her something by way of consolation although this is not obligatory.
[A gift according to his situation, wealthy or not. He is not compelled to do it, but it is recommended.]
If the marriage has not been consummated but the dowry has been paid, nothing need be given by way of consolation.
[She has no gift because she takes half of the dowry while her goods remain. It is understood that this is when she has no allotment, she has a gift, as we said.]
The same thing applies when a woman asks or a khul' divorce.
[Because she paid some of her property to separate from her husband, disliked or not.]
If a man dies without having either paid over the dowry or consummated his marriage, his wife receives her share of his estate but does not receive any dowry.
[This is agreed because us the contract of marriage if sound, it makes inheritance between them sound. But she has no dowry in the famous position. What is understood is that it is the same if he has allotted her a dowry.]
If the marriage has been consummated she should receive a dowry appropriate for someone of her status if no particular amount has been agreed beforehand.
[When he has not allotted her any dowry. She also inherits. This is because her goods are sold and so she has a suitable dowry. This is when she is sane and it permitted to agree to less than a suitable dowry.]
The marriage contract can be annulled if a bride is found to be mad or suffering from leprosy or a disease of the vagina. If the man consummates his marriage to such a woman in ignorance he must pay her her dowry and then claim it back from her father. The same applies if it was the bride's brother who acted as her marriage guardian.
[These are faults. A disease of the vagina is a blockage which prevents intercourse. There are various forms of this. It includes constant vaginal bleeds which prevent full intercourse. A bad smell from the vagina is another cause. If the marriage is consummated, then he pays her dowry and seeks it from the father.]
If the marriage guardian is not one of her close relatives, the man does not have to pay any previously agreed dowry, but instead the bride receives only a quarter of a dinar (i.e. the minimum possible dowry).
[If he is a cousin, and does not know about the fault and the marriage is consummated, he owes nothing. If he knows about the fault, then he is liable for it like the relative. He does not have any comeback against the distant relative, but the woman only has a quarter of a dinar.]
An impotent man is allowed one year and if he is still not capable of having intercourse the marriage can be dissolved if the wife so wishes.
[If he has not had intercourse because the impediment preceded and followed the contract. If he has had intercourse, and then that impediment occurs and he manages intercourse there is no divorce. If he claims intercourse and she denies it, his statement is taken when he swears to it. If he refuses, she swears and her word is taken. This is if she wishes a final divorce because every divorce made by the qadi is final except in the case of someone who is unable to provide for his wife.]
If a man disappears his wife should wait four years from the day she brings the matter to the notice of the appropriate authority.
[This is when he is missing in the land of Islam, and has no known place in a place of famine or wildness when he has a wife and she refers her business to the ruler to investigate his news for him. If he is free, then the period is four years. If he is a slave, it is two years. The time begins from when the case is presented to the authorities.]
When this period of time has elapsed she should observe the same 'idda period as a woman whose husband has died. Then she may remarry if she wishes to.
[And she must observe mourning according to the famous position. After that she can marry and does not require the permission of the ruler to marry.]
The wealth of such a man is not distributed as inheritance until such a time has passed that he could no longer be reasonably supposed to be alive.
[Generally this is the age of 80. The author and al-Qabisi choose it. 'Abdu'l-Wahhab chose 70.]
A woman may not be asked for in marriage during her 'idda period although there is no harm in an indirect suggestion being made provided it is done in an acceptable way.
[No matter the reason for the 'idda. This means it is haram. When she is in 'idda not from divorce, it is not haram since it is not three. It is also unlawful to promise marriage from one of two sides so that she is certain of it. It is permissible to allude it so that an intention is known.]
A man who marries a virgin can spend seven consecutive nights with her, overriding the rights of any other wives for that period. If the woman has previously been married the period is three nights.
[Young or old, Muslim, Kitabi or slave. After this period the division begins.]
If a man has two slavegirls who are sisters he may not have sexual intercourse with both of them. If, having had sexual intercourse with one of them, he desires to have sexual intercourse with the other, he must separate himself from the first, making her haram for himself, by either selling her or making an arrangement with her to buy her freedom (kitaba) or by setting her free or by any other means by which she would become haram for him.
[Or any other forms of sexual pleasure. If he owns both, he has intercourse with one but refrains from other. If he wants to have intercourse with the other, he must made the first unlawful for himself, either after the istibra' by selling her. If the sale is not final, like the sell with an option, the first woman is not unlawful to him until the end of the days of the option. Other possibilites are kitaba.]
If a man has had sexual intercourse with one of his slave girls, her mother and daughters become haram for him and she also becomes haram for his father and sons as is the case in marriage.
[This is based on analogy.]
A slave can divorce without getting his master's permission. A child, however, cannot divorce.
A woman whose husband has given her the authority to divorce or the option to do so as long as the two are in the same meeting.
[In the meeting she must clearly state her choice. The woman with authority may have authority for one or more divorce.]
The husband may deny the right of other than a single divorce. If she has the option, it can only be a triple divorce and he does not have the night to deny it.
[Except for the the option. This cannot be denied whether the marriage is consummated or not.]
A man who swears not to have intercourse for more than four months is considered to have pronounced an ila'.
[This is whether the woman is Muslim, Kitabi or slave, intending harm by that. The period begins from the date of the oath, if it is explicit, or from the day of stopping, and the judgement is that it is an oath which applies to less than the term, like the "I will not have intercourse with you until Zayd comes," and if it four months or less, it is not an ila'.]
The divorce is only implemented after the end of the ila': which is four months if the man is free and two months if he is a slave. Then the ruler gives him an ultimatum. If he resumes marital relations, then the ila' is cancelled.
[This is the famous position that there is no divorce until the end of the term of ila'. It is the famous position that the ruler gives him an ultimatum to resume relations or divorce. If he resumes, then the judgement of the 'ila' is removed by the words of the Almighty, "If they resume Allah is Ever-Forgiving, Merciful," (2:226) and resumption is achieved by the glans disappearing into the vagina. If he does not resume, then the ruler commands him to divorce. If he refuses, then the divorce is forced on him by the ruler.]
If someone pronounces a dhihar (a statement that sex with her is tantamount to incest) then he may not have intercourse with her until he expiates that by freeing a believing slave free of faults who is not partially owned by others or in the process of obtaining freedom. If he cannot do that, then he must fast two consecutive months. If he is unable to do that, he should feed sixty poor people two mudds each.
[Free or slave Muslim. He cannot have intercourse with her or kiss or touch her or look at her hair until he expiates for it. The months are lunar months which are counted by the moon. If he breaks it, he starts anew because it must be continuous. If he cannot do that, then he feeds free Muslims. The slave is not fed for expiation unless his master gives permission.]
He may not have intercourse with her night or day until the end of the expiation. If does so, he must repent to Allah Almighty.
[However he does not have any other expiation.]
If he has intercourse after doing part of the expiation by feeding or fasting, he starts it over again.
There is no harm in freeing a one-eyed slave in the dhihar or a bastard. A child is sufficient, but we think it better to free someone who fasts and prays.
[Or any other slave. The Malikis think it better, as opposed to a nursing child. He should support the freed child until he is able to earn.]
The li'an divorce between a couple is when the man denies paternity provided that he claims that he has been apart from her since her last menstrual period or by actually witnessing adultery, like a kohl stick in its case.
[The li'an is an allowance made by the Book and Sunna. There is no disagreement about it among the Imams. It takes place between a couple, even if their marriage is void, consummated or not, or rather they are iniquitous as Ibn al-Mawwaz states. If someone marries a relative or his sister unknowingly and she becomes pregnant and he denies the child, they curse each other because it appeared to be a marriage. If she refuses, she receives the hadd. If he refuses, he receives the hadd for slander and the child is connected to him. It is a precondition that the husband be a legally responsible Muslim who can have intercourse. For the wife, there is a precondition that she be one who can become pregnant. Neither Islam nor freedom are preconditions. There can be a li'an from a Kitabi or slavegirl.
She must have menstruated, even once. A similar case is when he claims that he has not had intercourse with her after she had given birth previously this denied pregnancy. There must be a period between the two pregnancies which would make them separate: that is six months or more. Or it is actually witnessing adultery. A precondition for the li'an in denying paternity is immediacy. If he sees it and is silent and then takes a stand after that, there is no li'an. A precondition for the li'an is actual and not having intercourse with her afterwards. If there is a delay there is no li'an for adultery.]
There is disagreement about whether li'an in the case of slander is allowed.
[Without the claim of seeing intercourse or denying peternaity in two famous positions, One is that he enacts the li'an and the other is that he receives the hadd and cannot enact the li'an.
Four rulings are connected to the li'an. He indicates one of them:]
If they divorce by li'an, they can never remarry.
[The other three judgements is that there is no hadd punishment, paternity is denied and the marriage is ended. The separation between them occurs when the li'an is finished. It does not require the judgement of a judge. It is abrogation, not divorce in the famous position.]
The husband begins the li'an by testifying four times by Allah and then the fifth time he curses himself.
[In the li'an. To deny paternity, he says, "I testify by Allah that this child is not mine" four times. Al-Mawwaz said that it is what is in the Mudawwana. It is the well-known position that he says, "I testify by Allah that she has committed adultery." If saw her, he says, "I testify by Allah that I saw her commit adultery." The fifth time he says that the curse of Allah is on him if he is one of the liars.]
Then she does the same four times, and the fifth invokes Allah's anger, as Allah Almighty has mentioned (in the Qur'an 24:6-9).
[She denies the husband's oath, and when he states that he denies paternity and testifies by Allah that she commited adultery, she rejects that and says four times, "I testify by Allah that I have not committed fornication." When he says that he saw her and swears by Allah that he saw her fornicate, she refutes that and say four times, "He did not see me fornicate." The fifth time she invokes the anger of Allah on her if he is telling the truth.
Tbe li'an must take place in the presence of a group of people, with a minimum of four and be in the highest place in the land. It only takes place in the mosque. It is recommended that it be after the 'Asr prayer and it is recommended to alarm them both, particularly at the fifth oath and ]to tell them. "This fifth oath will oblige the punishment for you."
If the wife refuses to testify, she is stoned if she is free and muhsana by intercourse with her husband or another husband. Otherwise, she receives a hundred lashes.
[This is after the husband's curse. There is half the punishment for a dhimmi.]
If the husband refuses to testify, he is flogged eighty lashes for slander and the child is considered to be his.
A woman may ransom herself from her husband by her dower or a sum more or less unless it is due to some injury to her. If there was an injury to her, she may reclaim what she gave him and the khul' is still binding. The khul' is a divorce which cannot be retracted except by a new marriage contracted of her own accord.
[She can do this if she is adult and sane and he is adult and sane. If he is a child or mad, she cannot do that. If it is due to an injury, like not paying maintenance nor making her do inappropriate work and the harm is established by evidence, and the woman has already obtained a khul' and then says it was only due to harm and presents the evidence for that, then the husband must return the payment to her and the khul' is a final divorce. They cannot marry again unless she has married again.]
A woman freed from slavery who married to a slave can choose between remaining married to him or separating from him. If someone buys his wife, then his marriage is void.
A slave is allowed only two divorces and the 'idda of a slavegirl consists of two menstrual periods. The expiations of the slave are the same as the free man except for the differences in the hudud punishments and divorce.
Any milk which reaches the stomach of a nursing child in the first two years, even one suck, makes marriage unlawful.
[This is in accordance with the words of Allah, "and your mothers who nursed you." (4:23) It is applies, even if only on one occasion."
There are certain preconditions necessary to cause the legal consequences of suckling.]
Nursing after the age of two years does not cause these prohibitions, unless it is close to it, like a month or so, or some say two months.
[After the age of two years, even if a lot of milk reaches his stomach, it does not create marriage barriers. This is based on the words of Allah, "Mothers shall suckle their children for two full years," (2:233) and His words, "his carrying and weaning is 30 months." (46:15) So He informs us about the minimum period of pregnancy and full period of nursing. A little over two years does not matter. Ibn 'Abdu'l-Hakam says a month and Ibn al-Qasim two months.]
If the child is weaned before the age of two so that it eats food without milk, any nursing which happens after that does not create these prohibitions.
[This is according to what is in at-Tirmidhi and an-Nasa'i report that the Prophet said, "Nursing does not create prohibitions except what splits the intestines," and that is before weaning. If a child eats food rather than milk, his intestines are opened.]
Nursing by pouring milk into the mouth or nose creates the same prohibitions.
[Even if it is not definite that it reached the stomach. That is what Ibn Habib reports from Malik. Ibn al-Qasim says that if it reaches the stomach, it creates prohibition but otherwise not.]
If a woman nurses a boy, her daughters and her husband's daughters, whether born before or after the boy, are his sisters. However the boy's brother may marry them.
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