Muwatta Imam Malik — Divorce

Yahya related to me from Malik that he had heard that Marwan ibn al-Hakam decided about a man who had made a vow to abstain from intercourse with his wife, that when four months had passed, it was a divorce and he could return to her as long as she was in her idda. Malik added, "That was also the opinion of Ibn Shihab." Malik said that if a man made a vow to abstain from intercourse with his wife and at the end of four months he declared his intent to continue to abstain, he was divorced. He could go back to his wife, but if he did not have intercourse with her before the end of her idda, he had no access to her and he could not go back to her unless he had an excuse - illness, imprisonment, or a similar excuse. His return to her maintained her as his wife. If her idda passed and then he married her after that and did not have intercourse with her until four months had passed and he declared his intent to continue to abstain, divorce was applied to him by the first vow. If four months passed, and he had not returned to her, he had no idda against her nor access because he had married her and then divorced her before touching her. Malik said that a man who made a vow to abstain from intercourse with his wife and continued to abstain after four months and so divorced her, but then returned and did not touch her and four months were completed before her idda was completed, did not have to declare his intent and divorce did not befall him. If he had intercourse with her before the end of her idda, he was entitled to her. If her idda passed before he had intercourse with her, he had no access to her. This is what Malik preferred of what he had heard on the subject. Malik said that if a man made a vow to abstain from intercourse with his wife and then divorced her, and the four months of the vow were completed before completion of the idda of the divorce, it counted as two pronouncements of divorce. If he declared his intention to continue to abstain and the idda of the divorce finished before the four months the vow of abstention was not a divorce. That was because the four months had passed and she was not his on that day. Malik said, "If someone makes a vow not to have intercourse with his wife for a day or a month and then waits until more than four months have passed, it is not ila. Ila only applies to someone who vows more than four months. As for the one who vows not to have intercourse with his wife for four months or less than that, I do not think that it is ila because when the term enters into it at which it stops, he comes out of his oath and he does not have to declare his intention." Malik said, "If someone vows to his wife not to have intercourse with her until her child has been weaned, that is not ila. I have heard that Ali ibn Abi Talib was asked about that and he did not think that it was ila

وحدثني عن مالك، انه بلغه ان مروان بن الحكم، كان يقضي في الرجل اذا الى من امراته انها اذا مضت الاربعة الاشهر فهي تطليقة وله عليها الرجعة ما دامت في عدتها . قال مالك وعلى ذلك كان راى ابن شهاب . قال مالك في الرجل يولي من امراته فيوقف فيطلق عند انقضاء الاربعة الاشهر ثم يراجع امراته انه ان لم يصبها حتى تنقضي عدتها فلا سبيل له اليها ولا رجعة له عليها الا ان يكون له عذر من مرض او سجن او ما اشبه ذلك من العذر فان ارتجاعه اياها ثابت عليها فان مضت عدتها ثم تزوجها بعد ذلك فانه ان لم يصبها حتى تنقضي الاربعة الاشهر وقف ايضا فان لم يفي دخل عليه الطلاق بالايلاء الاول اذا مضت الاربعة الاشهر ولم يكن له عليها رجعة لانه نكحها ثم طلقها قبل ان يمسها فلا عدة له عليها ولا رجعة . قال مالك في الرجل يولي من امراته فيوقف بعد الاربعة الاشهر فيطلق ثم يرتجع ولا يمسها فتنقضي اربعة اشهر قبل ان تنقضي عدتها انه لا يوقف ولا يقع عليه طلاق وانه ان اصابها قبل ان تنقضي عدتها كان احق بها وان مضت عدتها قبل ان يصيبها فلا سبيل له اليها وهذا احسن ما سمعت في ذلك . قال مالك في الرجل يولي من امراته ثم يطلقها فتنقضي الاربعة الاشهر قبل انقضاء عدة الطلاق قال هما تطليقتان ان هو وقف ولم يفي وان مضت عدة الطلاق قبل الاربعة الاشهر فليس الايلاء بطلاق وذلك ان الاربعة الاشهر التي كانت توقف بعدها مضت وليست له يوميذ بامراة . قال مالك ومن حلف ان لا يطا امراته يوما او شهرا ثم مكث حتى ينقضي اكثر من الاربعة الاشهر فلا يكون ذلك ايلاء وانما يوقف في الايلاء من حلف على اكثر من الاربعة الاشهر فاما من حلف ان لا يطا امراته اربعة اشهر او ادنى من ذلك فلا ارى عليه ايلاء لانه اذا دخل الاجل الذي يوقف عنده خرج من يمينه ولم يكن عليه وقف . قال مالك من حلف لامراته ان لا يطاها حتى تفطم ولدها فان ذلك لا يكون ايلاء

Yahya related to me from Malik that he had asked Ibn Shihab about the ila of the slave. He said that it was like the ila of the free man, and it put an obligation on him. The ila of the slave was two months

حدثني يحيى، عن مالك، انه سال ابن شهاب عن ايلاء العبد، فقال هو نحو ايلاء الحر وهو عليه واجب وايلاء العبد شهران

Yahya related to me from Malik from Said ibn Amr ibn Sulaym az- Zuraqi that he asked al-Qasim ibn Muhammad about a man who made divorce conditional on his marrying a woman i.e. if he married her he would automatically divorce her. Al-Qasim ibn Muhammad said, "If a man marries a woman whom he has made as his mother's back, i.e. has made haram for him, Umar ibn al-Khattab ordered him not to go near her if he married her until he had done the kaffara for pronouncing dhihar

حدثني يحيى، عن مالك، عن سعيد بن عمرو بن سليم الزرقي، انه سال القاسم بن محمد عن رجل، طلق امراة ان هو تزوجها فقال القاسم بن محمد ان رجلا جعل امراة عليه كظهر امه ان هو تزوجها فامره عمر بن الخطاب ان هو تزوجها ان لا يقربها حتى يكفر كفارة المتظاهر

Yahya related to me from Malik that he had heard that a man asked al-Qasim ibn Muhammad and Sulayman ibn Yasar about a man who pronounced dhihar from his wife before he had married her. They said, "If he marries her, he must not touch her until he has done the kaffara for pronouncing dhihar

وحدثني عن مالك، انه بلغه ان رجلا، سال القاسم بن محمد وسليمان بن يسار عن رجل تظاهر من امراته قبل ان ينكحها فقالا ان نكحها فلا يمسها حتى يكفر كفارة المتظاهر

Yahya related to me from Malik from Hisham ibn Urwa that his father said that a man who pronounced a dhihar from his four wives in one statement, had only to do one kaffara. Yahya related the same as that to me from Malik from Rabia ibn Abi Abd ar-Rahman. Malik said, "That is what is done among us. Allah, the Exalted said about the kaffara for pronouncing dhihar, 'It is to free a slave before they touch one another. If he does not find the means to do that, then fasting for two consecutive months before they touch one another. If he cannot do that, it is to feed sixty poor people. ' " (Sura 58 ayats 4,5). Malik said that a man who pronounced dhihar from his wife on various occasions had only to do one kaffara. If he pronounced dhihar, and then did kaffara, and then pronounced dhihar after he had done the kaffara, he had to do kaffara again. Malik said, "Some one who pronounces dhihar from his wife and then has intercourse with her before he has done kaffara, only has to do one kaffara. He must abstain from her until he does kaffara and ask forgiveness of Allah. That is the best of what I have heard. " Malik said, "It is the same with dhihar using any prohibited relations of fosterage and ancestry." Malik said, "Women have no dhihar." Malik said that he had heard that the commentary on the word of Allah, the Blessed, the Exalted, "Those of you who pronounce the dhihar about their wives, and then retract what they have said," (Sura 56 ayat 3), was that a man pronounced dhihar on his wife and then decided to keep her and have intercourse with her. If he decided on that, he must do kaffara. If he divorced her and did not decide to retract his dhihar of her and to keep her and have intercourse with her, there would be no kaffara incumbent on him. Maliksaid, "If he marries her after that, he does not touch her until he has completed the kaffara of pronouncing dhihar." Malik said that if a man who pronounced dhihar from his slave-girl wanted to have intercourse with her, he had to do the kaffara of the dhihar before he could sleep with her. Malik said, "There is no ila in a man's dhihar unless it is evident that he does not intend to retract his dhihar

وحدثني عن مالك، عن هشام بن عروة، عن ابيه، انه قال في رجل تظاهر من اربعة نسوة له بكلمة واحدة انه ليس عليه الا كفارة واحدة . وحدثني عن مالك، عن ربيعة بن ابي عبد الرحمن، مثل ذلك . قال مالك وعلى ذلك الامر عندنا قال الله تعالى في كفارة المتظاهر {فتحرير رقبة من قبل ان يتماسا }. {فمن لم يجد فصيام شهرين متتابعين من قبل ان يتماسا فمن لم يستطع فاطعام ستين مسكينا} . قال مالك في الرجل يتظاهر من امراته في مجالس متفرقة قال ليس عليه الا كفارة واحدة فان تظاهر ثم كفر ثم تظاهر بعد ان يكفر فعليه الكفارة ايضا . قال مالك ومن تظاهر من امراته ثم مسها قبل ان يكفر ليس عليه الا كفارة واحدة ويكف عنها حتى يكفر وليستغفر الله وذلك احسن ما سمعت . قال مالك والظهار من ذوات المحارم من الرضاعة والنسب سواء . قال مالك وليس على النساء ظهار . قال مالك في قول الله تبارك وتعالى {والذين يظاهرون من نسايهم ثم يعودون لما قالوا}. قال سمعت ان تفسير ذلك ان يتظاهر الرجل من امراته ثم يجمع على امساكها واصابتها فان اجمع على ذلك فقد وجبت عليه الكفارة وان طلقها ولم يجمع بعد تظاهره منها على امساكها واصابتها فلا كفارة عليه . قال مالك فان تزوجها بعد ذلك لم يمسها حتى يكفر كفارة المتظاهر . قال مالك في الرجل يتظاهر من امته انه ان اراد ان يصيبها فعليه كفارة الظهار قبل ان يطاها . قال مالك لا يدخل على الرجل ايلاء في تظاهره الا ان يكون مضارا لا يريد ان يفيء من تظاهره

Yahya related to me from Malik from Hisham ibn Urwa that he heard a man ask Urwa ibn az-Zubayr about a man who said to his wife, "Any woman I marry along with you as long as you live will be like my mother's back to me." Urwa ibn az-Zubayr said, "The freeing of slaves is enough to release him from that

وحدثني عن مالك، عن هشام بن عروة، انه سمع رجلا، يسال عروة بن الزبير عن رجل، قال لامراته كل امراة انكحها عليك ما عشت فهي على كظهر امي . فقال عروة بن الزبير يجزيه عن ذلك عتق رقبة

ahya related to me from Malik that he asked Ibn Shihab about the dhihar of a slave. He said, "It is like the dhihar of a free man." Malik said, "He meant that the same conditions were applied in both cases." Malik said, "The dhihar of the slave is incumbent on him, and the fasting of the slave in the dhihar is two months. " Malik said that there was no ila for a slave who pronounced a dhihar from his wife. That was because if he were to fast the kaffara for pronouncing a dhihar, the divorce of the ila would come to him before he had finished the fast

حدثني يحيى، عن مالك، انه سال ابن شهاب عن ظهار العبد، فقال نحو ظهار الحر . قال مالك يريد انه يقع عليه كما يقع على الحر . قال مالك وظهار العبد عليه واجب وصيام العبد في الظهار شهران . قال مالك في العبد يتظاهر من امراته انه لا يدخل عليه ايلاء وذلك انه لو ذهب يصوم صيام كفارة المتظاهر دخل عليه طلاق الايلاء قبل ان يفرغ من صيامه

Yahya related to me from Malik from Rabia ibn Abi Abd ar-Rahman from al-Qasim ibn Muhammad that A'isha umm al-muminin, said, "There were three sunnas established in connection with Barira:firstly was that when she was set free she was given her choice about her husband, secondly, the Messenger of Allah, may Allah bless him and grant him peace, said about her, 'The right of inheritance belongs to the person who has set a person free,' thirdly, the Messenger of Allah, may Allah bless him and grant him peace, came in and there was a pot with meat on the boil. Bread and condiments were brought to him from the stock of the house. The Messenger of Allah, may Allah bless him and grant him peace, said, 'Didn't I see a pot with meat in it?' They said, 'Yes, Messenger of Allah. That is meat which was given as sadaqa for Barira, and you do not eat sadaqa.' The Messenger of Allah, may Allah bless him and grant him peace, said, 'It is sadaqa for her, and it is a gift for us

حدثني يحيى، عن مالك، عن ربيعة بن ابي عبد الرحمن، عن القاسم بن محمد، عن عايشة ام المومنين، انها قالت كان في بريرة ثلاث سنن فكانت احدى السنن الثلاث انها اعتقت فخيرت في زوجها وقال رسول الله صلى الله عليه وسلم " الولاء لمن اعتق " . ودخل رسول الله صلى الله عليه وسلم والبرمة تفور بلحم فقرب اليه خبز وادم من ادم البيت فقال رسول الله صلى الله عليه وسلم " الم ار برمة فيها لحم " . فقالوا بلى يا رسول الله ولكن ذلك لحم تصدق به على بريرة وانت لا تاكل الصدقة . فقال رسول الله صلى الله عليه وسلم " هو عليها صدقة وهو لنا هدية

ahya related to me from Malik from Nafi that Abdullah ibn Umar said that a female slave who was the wife of a slave and then was set free, had the right of choice as long as he did not have intercourse with her. Malik said, "If her husband has intercourse with her and she claims that she did not know, she still has the right of choice. If she is suspect and one does not believe her claim of ignorance, then she has no choice after he has had intercourse with her

وحدثني عن مالك، عن نافع، عن عبد الله بن عمر، انه كان يقول في الامة تكون تحت العبد فتعتق ان الامة لها الخيار ما لم يمسها . قال مالك وان مسها زوجها فزعمت انها جهلت ان لها الخيار فانها تتهم ولا تصدق بما ادعت من الجهالة ولا خيار لها بعد ان يمسها

Yahya related to me from Malik from Ibn Shihab from Urwa ibn az- Zubayr that a mawla of the tribe of Banu Adi called Zabra told him that she had been the wife of a slave when she was a slave-girl. Then she was set free and she sent a message to Hafsa, the wife of the Prophet, may Allah bless him and grant him peace. Hafsa called her and said, "I will tell you something., but I would prefer that you did not act upon it. You have authority over yourself as long as your husband does not have intercourse with you. If he has intercourse with you, you have no authority at all." Therefore she pronounced her divorce from him three times

وحدثني عن مالك، عن ابن شهاب، عن عروة بن الزبير، ان مولاة، لبني عدي يقال لها زبراء اخبرته انها كانت تحت عبد وهي امة يوميذ فعتقت قالت فارسلت الى حفصة زوج النبي صلى الله عليه وسلم فدعتني فقالت اني مخبرتك خبرا ولا احب ان تصنعي شييا ان امرك بيدك ما لم يمسسك زوجك فان مسك فليس لك من الامر شىء . قالت فقلت هو الطلاق ثم الطلاق ثم الطلاق . ففارقته ثلاثا

Yahya related to me from Malik that he had heard that Said ibn al-Musayyab said that if a man married a woman, and he was insane or had a physical defect, she had the right of choice. If she wished she could stay, and if she wished she could separate from him

وحدثني عن مالك، انه بلغه عن سعيد بن المسيب، انه قال ايما رجل تزوج امراة وبه جنون او ضرر فانها تخير فان شاءت قرت وان شاءت فارقت . قال مالك في الامة تكون تحت العبد ثم تعتق قبل ان يدخل بها او يمسها انها ان اختارت نفسها فلا صداق لها وهي تطليقة وذلك الامر عندنا

Malik said that if a slave-girl, who was the wife of a slave, was set free before he had consummated the marriage, and she chose herself, then she had no bride-price and it was a pronouncement of divorce. That was what was done among them. Yahya related to me that Malik heard Ibn Shihab say, "When a man gives his wife the right of choice, and she chooses him, that is not divorce." Malik added, "That is the best of what I have heard." Malik said that if a woman who had been given the right of choice by her husband chose herself, she was divorced trebly. If her husband said, "But I only gave her the right of choice in one," he had none of that. That was the best of what he had heard. Malik said, "If the man gives his wife the right of choice and she says, 'I accept one', and he says, 'I did not mean that, I have given the right of choice in all three together,' then if she only accepts one, she remains with him in her marriage, and that is not separation if Allah, the Exalted wills

وحدثني عن مالك، عن ابن شهاب، انه سمعه يقول اذا خير الرجل امراته فاختارته فليس ذلك بطلاق . قال مالك وذلك احسن ما سمعت . قال مالك في المخيرة اذا خيرها زوجها فاختارت نفسها فقد طلقت ثلاثا وان قال زوجها لم اخيرك الا واحدة فليس له ذلك . وذلك احسن ما سمعته . قال مالك وان خيرها فقالت قد قبلت واحدة وقال لم ارد هذا وانما خيرتك في الثلاث جميعا انها ان لم تقبل الا واحدة اقامت عنده على نكاحها ولم يكن ذلك فراقا ان شاء الله تعالى

Yahya related. to me from Malik from Yahya ibn Said that Amra bint Abd ar-Rahman told him from Habiba bint Sahl al-Ansari that she had been the wife of Thabit ibn Qays ibn Shammas. The Messenger of Allah, may Allah bless him and grant him peace, went out for the dawn prayer, and found Habiba bint Sahl at his door in the darkness. The Messenger of Allah, may Allah bless him and grant him peace, said to her, "Who is this?" She said, "I am Habiba bint Sahl, Messenger of Allah." He said, "What do you want?" She said, "That Thabit ibn Qays and I separate." When her husband, Thabit ibn Qays came, the Messenger of Allah, may Allah bless him and grant him peace, said to him, "This is Habiba bint Sahl. She mentioned what Allah willed that she mention." Habiba said, "Messenger of Allah, all that he has given me is with me!" The Messenger of Allah, may Allah bless him and grant him peace, said to Thabit ibn Qays, "Take it from her," and he took it from her, and she stayed in the house of her family

حدثني يحيى، عن مالك، عن يحيى بن سعيد، عن عمرة بنت عبد الرحمن، انها اخبرته عن حبيبة بنت سهل الانصاري، انها كانت تحت ثابت بن قيس بن شماس وان رسول الله صلى الله عليه وسلم خرج الى الصبح فوجد حبيبة بنت سهل عند بابه في الغلس فقال لها رسول الله صلى الله عليه وسلم " من هذه " . فقالت انا حبيبة بنت سهل يا رسول الله . قال " ما شانك " . قالت لا انا ولا ثابت بن قيس . لزوجها فلما جاء زوجها ثابت بن قيس قال له رسول الله صلى الله عليه وسلم " هذه حبيبة بنت سهل قد ذكرت ما شاء الله ان تذكر " . فقالت حبيبة يا رسول الله كل ما اعطاني عندي . فقال رسول الله صلى الله عليه وسلم لثابت بن قيس " خذ منها " . فاخذ منها وجلست في بيت اهلها

Yahya related to me from Malik from Nafi from a mawla of Safiyya bint Abi Ubayd that she gave all that she possessed to her husband as compensation for her divorce from him, and Abdullah ibn Umar did not disapprove of that. Malik said that divorce was ratified for a woman who ransomed herself from her husband, when it was known that her husband was detrimental to her and was oppressive for her, and it was known that he wronged her, and he had to return her property to her. Malik added, "This is what I have heard, and it is what is done among us." Malik said, "There is no harm if a woman ransoms herself from her husband for more than he gave her

وحدثني عن مالك، عن نافع، عن مولاة، لصفية بنت ابي عبيد . انها اختلعت من زوجها بكل شىء لها فلم ينكر ذلك عبد الله بن عمر . قال مالك في المفتدية التي تفتدي من زوجها انه اذا علم ان زوجها اضر بها وضيق عليها وعلم انه ظالم لها مضى الطلاق ورد عليها مالها . قال فهذا الذي كنت اسمع والذي عليه امر الناس عندنا . قال مالك لا باس بان تفتدي المراة من زوجها باكثر مما اعطاها

Yahya related to me from Malik from Nafi that Rubayyi bint Muawwidh ibn Afra came with her paternal uncle to Abdullah ibn Umar and told him that she had divorced her husband for a compensation in the time of Uthman ibn Affan, and he heard about it and did not disapprove. Abdullah ibn Umar said, "Her idda is the idda of a divorced woman

حدثني يحيى، عن مالك، عن نافع، ان ربيع بنت معوذ بن عفراء، جاءت هي وعمها الى عبد الله بن عمر فاخبرته انها اختلعت من زوجها في زمان عثمان بن عفان فبلغ ذلك عثمان بن عفان فلم ينكره . وقال عبد الله بن عمر عدتها عدة المطلقة

Yahya related to me from Malik that he had heard that Said ibn al-Musayyab and Sulayman ibn Yasar and Ibn Shihab all said that a woman who divorced for a compensation had the same idda as a divorced woman - three periods. Malik said that a woman who ransomed herself could not return to her husband except by a new marriage. If someone married her and then separated from her before he had intercourse with her, there was no idda against her from the recent marriage, and she rested on her first idda. Malik said, "That is the best that I have heard on the matter." Malik said, "If, when a woman offers to compensate her husband, he divorces her straightaway, then that compensation is confirmed for him. If he makes no response, and then at a later date, does divorce her, he is not entitled to that compensation

وحدثني عن مالك، انه بلغه ان سعيد بن المسيب، وسليمان بن يسار، وابن، شهاب كانوا يقولون عدة المختلعة مثل عدة المطلقة ثلاثة قروء . قال مالك في المفتدية انها لا ترجع الى زوجها الا بنكاح جديد فان هو نكحها ففارقها قبل ان يمسها لم يكن له عليها عدة من الطلاق الاخر وتبني على عدتها الاولى . قال مالك وهذا احسن ما سمعت في ذلك . قال مالك اذا افتدت المراة من زوجها بشىء على ان يطلقها فطلقها طلاقا متتابعا نسقا فذلك ثابت عليه فان كان بين ذلك صمات فما اتبعه بعد الصمات فليس بشىء

Yahya related to me from Malik from Ibn Shihab that Sahl ibn Sad as-Saidi told him that Uwaymir al-Ajlani came to Asim ibn Adi al- Ansari and said to him, "Asim! What do you think a man who finds another man with his wife should do? Should he kill him and then be killed himself, or what should .he do? Asim! ask the Messenger of Allah, may Allah bless him and grant him peace, about that for me." Asim asked the Messenger of Allah, may Allah bless him and grant him peace, about it. The Messenger of Allah, may Allah bless him and grant him peace, was revolted by the questions and reproved them until what he heard from the Messenger of Allah, may Allah bless him and grant him peace. was intolerable for Asim. When Asim returned to his people, Uwaymir came to him and said, " Asim! what did the Messenger of Allah, may Allah bless him and grant him peace, say to you?" Asim said to Uwaymir, "You didn't bring me any good. The Messenger of Allah, may Allah bless him and grant him peace, was revolted by the question which I asked him." Uwaymir said, "By Allah! I will not stop until I ask him about it!" Uwaymir stood up and went to the Messenger of Allah, may Allah bless him and grant him peace, in the middle of the people and said, "Messenger of Allah! What do you think a man who finds another man with his wife should do? Should he kill him and then be killed himself, or what should he do?" The Messenger of Allah, may Allah bless him and grant him peace, said, "Something has been sent down about you and your wife, so go and bring her." Sahl continued, "They mutually cursed one another in the presence of the Messenger, may Allah bless him and grant him peace, and I was present with the people. When they finished cursing each other, Uwaymir said, 'I shall have lied about her, Messenger of Allah, if I keep her,' and pronounced the divorce three times before the Messenger of Allah, may Allah bless him and grant him peace, ordered him to do it." Malik said that Ibn Shihab said, "That was how the sunna of a couple mutually cursing each other was established (lian)

حدثني يحيى، عن مالك، عن ابن شهاب، ان سهل بن سعد الساعدي، اخبره ان عويمرا العجلاني جاء الى عاصم بن عدي الانصاري فقال له يا عاصم ارايت رجلا وجد مع امراته رجلا ايقتله فتقتلونه ام كيف يفعل سل لي يا عاصم عن ذلك رسول الله صلى الله عليه وسلم . فسال عاصم رسول الله صلى الله عليه وسلم عن ذلك فكره رسول الله صلى الله عليه وسلم المسايل وعابها حتى كبر على عاصم ما سمع من رسول الله صلى الله عليه وسلم فلما رجع عاصم الى اهله جاءه عويمر فقال يا عاصم ماذا قال لك رسول الله صلى الله عليه وسلم فقال عاصم لعويمر لم تاتني بخير قد كره رسول الله صلى الله عليه وسلم المسالة التي سالته عنها . فقال عويمر والله لا انتهي حتى اساله عنها . فاقبل عويمر حتى اتى رسول الله صلى الله عليه وسلم وسط الناس فقال يا رسول الله ارايت رجلا وجد مع امراته رجلا ايقتله فتقتلونه ام كيف يفعل فقال رسول الله صلى الله عليه وسلم " قد انزل فيك وفي صاحبتك فاذهب فات بها " . قال سهل فتلاعنا وانا مع الناس عند رسول الله صلى الله عليه وسلم فلما فرغا من تلاعنهما قال عويمر كذبت عليها يا رسول الله ان امسكتها . فطلقها ثلاثا قبل ان يامره رسول الله . وقال مالك قال ابن شهاب فكانت تلك بعد سنة المتلاعنين

Yahya related to me from Malik from Nafic from Abdullah ibn Umar that a man cursed his wife in the time of the Messenger of Allah, may Allah bless him and grant him peace, and disowned her child. The Messenger of Allah, may Allah bless him and grant him peace, separated them and gave the child to the woman. Malik said, "Allah the Blessed, the Exalted, said, 'The testimony of men who accuse their wives but do not have any witnesses except themselves is to testify by Allah four times that he is being truthful, and a fifth time, that the curse of Allah will be upon him, if he should be a liar. She will avoid punishment if she testifies by Allah four times that he is a liar, and a fifth time, that the wrath of Allah shall be upon her, if he should be telling the truth. ' "(Sura 24 ayat 6). Malik said, "The sunna with us is that those who curse each other are never to be remarried. If the man calls himself a liar, (i.e. takes back his accusation), he is flogged with the hadd-punishment, and the child is given to him, and his wife can never return to him. There is no doubt or dispute about this sunna among us. " Malik said, "If a man separates from his wife by an irrevocable divorce by which he cannot return to her, and then he denies the paternity of the child she is carrying, whilst she claims that he is the father, and it is possible by the timing, that he be so, he must curse her, and the child is not recognised as his." Malik said, "That is what is done among us, and it is what I have heard from the people of knowledge." Malik said that a man who accused his wife after he had divorced her trebly while she was pregnant, and he had at first accepted being the father but then claimed that he had seen her committing adultery before he separated from her, was flogged with the hadd-punishment, and did not curse her. If he denied the paternity of her child after he had divorced her trebly, and he had not previously accepted it, then he cursed her. Malik said, "This is what I have heard." Malik said, "The slave is in the same position as the free man as regards making accusations and invoking mutual curses (lian). He acts in the lian as the free man acts although there is no hadd applied for slandering a female-slave." Malik said, "The muslim slave-girl and the christian and jewish free woman also do lian when a free muslim marries one of them and has intercourse with her. That is because Allah - may He be blessed and Exalted, said in His Book, 'As for those who accuse their wives,' and they are their wives. This is what is done among us. Malik said that a man who did the lian with his wife, and then stopped and called himself a liar after one or two oaths and he had not cursed himself in the fifth one, had to be flogged with the hadd-punishment, but they did not have to be separated. Malik said that if a man divorced his wife and then after three months the woman said, "I am pregnant," and he denied paternity, then he had to do lian. Malik said that the husband of a female slave who pronounced the lian on her and then bought her, was not to have intercourse with her, even if he owned her. The sunna which had been handed down about a couple who mutually cursed each other in the lian was that they were never to return to each other. Malik said that when a man pronounced the lian against his wife before he had consummated the marriage, she only had half of the bride price

Yahya related to me from Malik that he had heard that `Urwa ibn az-Zubayr said that if the child of the woman against whom li`an had been pronounced or the child of fornication, died, his mother inherited from him her right in the Book of Allah the Exalted, and his maternal half-brothers had their rights. The rest was inherited by the owners of his mother's wala' if she was a freed slave. If she was an ordinary free woman, she inherited her right, his maternal brothers inherited their rights, and the rest went to the Muslims. Malik said,"I heard the same as that from Sulayman ibn Yasar, and it is what I saw the people of knowledge in our city doing

حدثني يحيى، عن مالك، انه بلغه ان عروة بن الزبير، كان يقول في ولد الملاعنة وولد الزنا انه اذا مات ورثته امه حقها في كتاب الله تعالى واخوته لامه حقوقهم ويرث البقية موالي امه ان كانت مولاة وان كانت عربية ورثت حقها وورث اخوته لامه حقوقهم وكان ما بقي للمسلمين . قال مالك وبلغني عن سليمان بن يسار، مثل ذلك . وعلى ذلك ادركت اهل العلم ببلدنا

Yahya related to me from Malik from Ibn Shihab from Muhammad ibn Abd ar-Rahman ibn Thawban that Muhammad ibn Iyas ibn al-Bukayr said, "A man divorced his wife three times before he had consummated the marriage, and then it seemed good to him to marry her. Therefore, he wanted an opinion, and I went with him to ask Abdullah ibn Abbas and Abu Hurayra on his behalf about it, and they said, 'We do not think that you should marry her until she has married another husband.' He protested that his divorcing her had been only once. Ibn Abbas said, 'You threw away what you had of blessing

حدثني يحيى، عن مالك، عن ابن شهاب، عن محمد بن عبد الرحمن بن ثوبان، عن محمد بن اياس بن البكير، انه قال طلق رجل امراته ثلاثا قبل ان يدخل بها ثم بدا له ان ينكحها فجاء يستفتي فذهبت معه اسال له فسال عبد الله بن عباس وابا هريرة عن ذلك فقالا لا نرى ان تنكحها حتى تنكح زوجا غيرك . قال فانما طلاقي اياها واحدة . قال ابن عباس انك ارسلت من يدك ما كان لك من فضل