Référencé par
61 entrant▸
Yahya related to me from Malik from more than one source that
when Abdullah ibn Masud was in Kufa, he was asked for an opinion about
marrying the mother after marrying the daughter when the marriage with
the daughter had not been consummated. He permitted it. When Ibn Masud
came to Madina, he asked about it and was told that it was not as he
had said, and that this condition referred to foster-mothers. Ibn
Masud returnedto Kufa,and he had just reached his dwelling when the
man who had asked him for the opinion came to visit and he ordered him
to separate from his wife.
Malik said that if a man married
the mother of a woman who was his wife and he had sexual relations
with the mother then his wife was haram for him, and he had to
separate from both of them. They were both haram to him forever, if he
had had sexual relations with the mother. If he had not had relations
with the mcther, his wife was not haram for him, and he separated from
the mother.
Malik explained further about the man who married
a woman, and then married her mother and cohabited with her, "The
mother will never be halal for him, and she is not halal for his
father or his son, and any daughters of hers are not halal for him and
so his wife is haram for him."
Malik said, "Fornication
however, does not make any of that haram because Allah, the Blessed,
the Exalted, mentioned 'the mothers of your wives,' as one whom
marriage made haram, and he didn't mention the making haram by
fornication. Every marriage in a halal manner in which a man cohabits
with his wife, is a halal marriage. This is what I have heard, and
this is how things are done among us."
Yahya related to me from Malik from Ibn Shihab, and he had heard
from al-Qasim ibn Muhammad that they said, "When a free man marries a
slave-girl and consummates the marriage, she makes him muhsan."
Malik said, "All (of the people of knowledge) I have seen said
that a slave-girl makes a free man muhsan when he marries her and
consummates the marriage."
Malik said, "A slave makes a free
woman muhsana when he consummates a marriage with her and a free woman
only makes a slave muhsan when he is freed and he is her husband and
has had sexual relations with her after he has been set free. If he
parts from her before he is free, he is not a muhsan unless he marries
her after having been set free and he consummates the marriage."
Malik said, "When a slave-girl is married to a free man and then
he separates from her before she is set free, his marriage to her does
not make her muhsana. She is not muhsana until she has married after
she has been set free and she has had intercourse with her husband.
That gives her ihsan. If she is the wife of a freeman and then she is
set free while she is his wife before he separates from her, the man
makes her muhsana if he has intercourse with her after she has been
set free."
Malik said, "The christian and jewish free women
and the muslim slave-girl all make a muslim free man muhsan when he
marries one of them and has intercourse with her."
Malik related to me from Ibn Shihab that he had heard that in the
time of the Messenger of Allah, may Allah bless him and grant him
peace, women were becoming muslim in their own lands and they did not
do hijra while their husbands were still kafirun although they
themselves had become muslim. Among them was the daughter of al-Walid
ibn al-Mughira and she was the wife of Safwan ibn Umayya. She became
muslim on the day of the conquest (of Makka), and her husband, Safwan
ibn Umayya fled from Islam. The Messenger of Allah, may Allah bless
him and grant him peace, sent Safwan's paternal cousin, Wahb ibn Umayr
with the cloak of the Messenger of Allah, may Allah bless him and
grant him peace, as a safe-conduct for Safwan ibn Umayya, and the
Messenger of Allah, may Allah bless him and grant him peace, called
him to Islam and asked for him to come to him and if he was pleased
with the matter to accept it. If not he would have a respite for two
months.
When Safwan came to the Messenger of Allah, may Allah
bless him and grant him peace, with his cloak, he called out to him
over the heads of the people, "Muhammad! Wahb ibn Umayr brought me
your cloak and claimed that you had summoned me to come to you and if
I was pleased with the matter, I should accept it and if not, you
would give me a respite for two months. "The Messenger of Allah, may
Allah bless him and grant him peace, said, "Come down, Abu Wahb." He
said, "No, by Allah! I will not come down until you make it clear to
me." The Messenger of Allah, may Allah bless him and grant him peace,
said, "You have a respite of four months." The Messenger of Allah, may
Allah bless him and grant him peace, went out toward Hawazin at
Hunayn. He sent to Safwan ibn Umayya to borrow some equipment and arms
that he had. Safwan said, "Willingly or unwillingly?" He said,
"Willingly." Therefore he lent him the equipment and arms which he
had. Then Safwan went out with the Messenger of Allah, may Allah bless
him and grant him peace, while he was still a kafir. He was present at
the battles of Hunayn and at-Ta'if while he was still a kafir and his
wife was a muslim. The Messenger of Allah, may Allah bless him and
grant him peace, did not separate Safwan and his wife until he had
become muslim, and his wife was settled with him by that marriage.
Yahya related to me from Malik from Ibn Shihab from Said ibn al-
Musayyab and from Sulayman ibn Yasar that Tulayha al-Asadiya was the
wife of Rushayd ath-Thaqafi. He divorced her, and she got married in
her idda-period. Umar ibn al-Khattab beat her and her husband with a
stick several times, and separated them. Then Umar ibn al-Khattab
said, "If a woman marries in her idda-period, and the new husband has
not consummated the marriage, then separate them, and when she has
completed the idda of her first husband, the other becomes a suitor.
If he has consummated the marriage then separate them. Then she must
complete her idda from her first husband, and then the idda from the
other one, and they are never to be reunited."
Malik added,
''Said ibn al-Musayyab said that she had her dowry because he had
consummated the marriage."
Malik said,"The practice with us
concerning a free woman whose husband dies, is that she does an idda
of four months and ten days and she does not marry if she doubts her
period until she is free of any doubt or if she fears that she is
pregnant."
Yahya related to me from Malik from Humayd at-Tawil from Anas ibn
Malik that Abd ar-Rahman ibn Awf came to the Messenger of Allah, may
Allah bless him and grant him peace, and he had a traceof yellow on
him. The Messenger of Allah, may Allah bless him and grant him peace,
asked about it. He told him that he had just been married. The
Messenger of Allah, may Allah bless him and grant him peace, said,
"How much did you hand over to her?" He said, "The weight of a date
pit in gold." The Messenger of Allah, may Allah bless him and grant
him peace, said to him, "Hold a feast, even if it is only with a
sheep.
Yahya related to me from Malik that he had heard that Umar ibn
Abd al-Aziz during his khalifate, wrote to one of his governors,
"Whatever a father, or guardian, who gives someone in marriage, makes
a condition in the way of unreturnable gift or of favour, belongs to
the woman if she wants it."
Malik spoke about a woman whose
father gave her in marriage and made an unreturnable gift a condition
of the bride-price which was to be given. He said, "Whatever is given
as a condition by which marriage occurs belongs to the woman if she
wants it. If the husband parts from her before the marriage is
consummated, the husband has half of the unreturnable gift by which
the marriage occurred."
Malik said about a man who married
off his young son and the son had no wealth at all, that the bride-
price was obliged of the father if the young man had no property on
the day of marriage. If the young man did have property the bride-
price was taken from his property unless the father stipulated that he
would pay the bride-price. The marriage was affirmed for the son if he
was a minor only if he was under the guardianship of his father.
Malik said that if a man divorced his wife before he had
consummated the marriage and she was a virgin, her father returned
half of the bride-price to him. That half was permitted to the husband
from the father to compensate him for his expenses.
Malik
said that that was because Allah, the Blessed, the Exalted, said in
His Book, "Unless they (women with whom he had not consummated
marriage) make remission or he makes remission to him in whose hand is
the knot of marriage." (Sura 2 ayat 237). (He being the father of a
virgin daughter or the master of a female slave.)
Malik said,
"That is what I have heard about the matter, and that is how things
are done among us."
Malik said that a jewish or christian
woman who was married to a jew or christian and then became muslim
before the marriage had been consummated, did not keep anything from
the bride-price.
Malik said, "I do not think that women
should be married for less than a quarter of a dinar. That is the
lowest amount for which cutting off the hand is obliged ."
Malik said, "It is not halal to marry a christian or jewish
slave-girl because Allah the Blessed, the Exalted, said in His Book,
'Believing women who are muhsanat and women of those who were given
the Book before you who are muhsanat', (sura 5 ayat 6) and they are
free women from the Christians and Jews. Allah, the Blessed, the
Exalted, said in His Book, 'If you are not affluent enough to marry
believing women who are muhsanat, take believing slave-girls whom your
right hands own.' " (Sura 4 ayat 24)
Malik said, "In our
opinion, Allah made marriage to believing slave-girls halal, and He
did not make halal marriage to christian and jewish slave-girls from
the People of the Book."
Malik said, "The christian and
jewish slave-girl are halal for their master by right of possession,
but intercourse with a magian slave-girl is not halal by the right of
possession."
Yahya related to me from Malik from Ibn Shihab that Rafi ibn
Khadij married the daughter of Muhammad ibn Maslama al-Ansari. She was
with him until she grew older, and then he married a young girl and
preferred the young girl to her. She begged him to divorce her, so he
divorced her and then he gave her time until she had almost finished
her idda period and then he returned and still preferred the young
girl. She therefore asked him to divorce her. He divorced her once,
and then returned to her, and still preferred the young girl, and she
asked him to divorce her. He said, "What do you want? There is only
one divorce left. If you like, continue and put up with what you see
of preference, and if you like, I will separate from you." She said,
"I will continue in spite of the preference." He kept her in spite of
that. Rafi did not see that he had done any wrong action when she
remained with him in spite of preference.
Yahya related to me from Malik that he heard Rabia ibn Abd ar-
Rahman say that a slave could marry four women.
Malik said,
"This is the best of what I have heard about the matter."
Malik said, "The slave differs with the muhallil if the slave is given
permission by his master for his ex-wife. If his master does not give
him permission, he separates them. The muhallil is separated in any
case if he intends to make the woman halal by marriage."
Malik said, "When a slave is owned by his wife or a husband owns his
wife, the possession of each of them is rendered void without divorce.
If a man, for instance, is married to a slave-girl, and then he buys
her, he must divorce her as a matter of course. They can then re-
marry. If they re-marry afterwards, that separation was not divorce."
Malik said, "When a slave is freed by his wife who owns him
and she is in the idda-period from him, they can only return to each
other after she has made another marriage."
Yahya related to me from Malik that he had asked Ibn Shihab about
a man who had a slave-girl as a wife, and then he bought her, and
divorced her once. He said, "She is halal for him by the possession of
the right hand as long as he does not make his divorce irrevocable. If
he irrevocably divorces her, she is not halal for him by the
possession of the right hand until she has married another husband."
Malik said that if a man rnarried a female slave and then she
had a child by him, and then he bought her, she was not an umm walad
for him because of the child born to him while she belonged to
another, until she had had a child by him while she was in his
possession after he had purchased her.
Malik said, "If he
buys her and she is pregnant by him and she then gives birth while she
belongs to him, she is his umm walad by that pregnancy, according to
what we think, and Allah knows best."
Yahya related to me from Malik from Ibn Shihab that Umm Hakim
bint al-Harith ibn Hisham who was the wife of Ikrima ibn Abi Jahl
became muslim on the day of the conquest of Makka, and her husband
Ikrima fled from Islam as far as the Yemen. Umm Hakim set out after
him until she came to him in the Yemen and she called him to Islam,
and he became muslim. He went to the Messenger of Allah, may Allah
bless him and grant him peace, in the year of the conquest. When the
Messenger of Allah, may Allah bless him and grant him peace, saw him,
he rushed to him in joy and did not bother to put on his cloak until
he had made the pledge with him. They were confirmed in their
marriage.
Malik said, "If a man becomes muslim before his
wife, a separation occurs between them when he presents Islam to her
and she does not become muslim, because Allah, the Blessed, the
Exalted, said in His Book, 'Do not hold fast to the ties of women who
are kafirun.' "
Malik said that a man who had committed fornication with a woman
and the hadd-punishment had been applied to him for it, could marry
that woman's daughter and his son could marry the woman herself if he
wished. That was because he had haram relations with her, and the
relations Allah had made haram were from the relations made in a halal
manner or in a manner resembling marriage. Allah, the Blessed, the
Exalted, said, "Do not marry the women your fathers have married. "
(Sura 4 ayat 21)
Malik said, "If a man were to marry a woman
in her idda-period in a halal marriage and have relations with her, it
would be haram for his son to marry the woman. That is because the
father married her in a halal manner, and the hadd-punishment would
not have been applied to him. Any child who was born to him would be
attached to him as the father. Just as it would be haram for the son
to marry a woman whom his father had married in her idda-period and
had relations with, so the woman's daughter would be haram for the
father if he had had sexual relations with her."
Yahya related to me from Malik from Yahya ibn Said that Said ibn
al-Musayyab said, "The slave girl is not married when there is a free
woman who is a wife unless the free woman wishes it. If the free woman
complies, she has two-thirds of the division of time."
Malik
said, "A free man must not marry a slave-girl when he can afford to
marry a free-woman, and he should not marry a slave-girl when he
cannot afford a free woman unless he fears fornication. That is
because Allah, may he be Blessed and Exalted, says in His Book, 'If
you are not affluent enough to marry believing women, who are
muhsanat, take slave-girls who are believing women that your right
hands own.' (Sura 4 ayat 24) He says, 'That is for those of you who
fear al-anat.' "
Malik said, "Al-anat is fornication."
Yahya related to
me from Malik that he had heard that Said ibn al-Musayyab said, "When
a man comes to his wife in her room, he is believed. When she comes to
him in his room, she is believed."
Malik commented, "I think
that this refers to sexual intercourse. When he comes in to her in her
room and she says, 'He has had intercourse with me' and he says, 'I
have not touched her', he is believed. When she comes in to him in his
room and he says, 'I have not had intercourse with her' and she says,
'He had intercourse with me', she is believed."
Yahya related to me from Malik from Yahya ibn Said that Said ibn
al-Musayyab had said that Umar ibn al-Khattab said, "If a man marries
a woman who is insane, or has leprosy or white leprosy, without being
told of her condition by her guardian, and he has sexual relations
with her, she keeps her bride-price in its entirety. Her husband has
damages against her guardian."
Malik said, "The husband has
damages against her guardian when the guardian is her father, brother,
or one who is deemed to have knowledge of her condition. If the
guardian who gives her in marriage is a nephew, a mawla or a member of
her tribe who is not deemed to have knowledge of her condition, there
are no damages against him, and the woman returns what she has taken
of her bride-price, and the husband leaves her whatever amount is
thought to be fair."
Yahya related to me from Malik from Malik from Abu Hazim ibn
Dinar from Sahl ibn Sad as-Saidi that a woman came to the Messenger of
Allah, may Allah bless him and grant him peace, and said, "Messenger
of Allah! I have given myself to you." She stood for a long time, and
then a man got up and said, "Messenger of Allah, marry her to me if
you have no need of her." The Messenger of Allah, may Allah bless him
and grant him peace, said, "Do you have anything to give her as a
bride-price?" He said, "I possess only this lower garment of mine."
The Messenger of Allah, may Allah bless him and grant him peace, said,
"If you give it to her you will not have a garment to wear so look for
something else." He said, "I have nothing else." He said, "Look for
something else, even if it is only an iron ring." He looked, and found
that he had nothing. The Messenger of Allah, may Allah bless him and
grant him peace, said, "Do you know any of the Qur'an?" He said, "Yes.
I know such-and-such a sura and such-and-such a sura," which he named.
The Messengerof Allah, may Allah bless him and grant him peace, said
to him, "I have married her to you for what you know of the Qur'an."
Yahya related to me from Malik from Nafi from Abdullah ibn Umar
that the Messenger of Allah, may Allah bless him and grant him peace,
said, "Do not ask for a woman in marriage when another muslim has
already done so."
Malik said, "The explanation of the
statement of the Messenger of Allah, may Allah bless him and grant him
peace, according to what we think - and Allah knows best - is that 'Do
not ask for a woman in marriage when another muslim has already done
so' means that when a man has asked for a woman in marriage, and she
has inclined to him and they have agreed on a bride-price, which she
has suggested and with which they are mutually satisfied, it is
forbidden for another man to ask for that woman in marriage. It does
not mean that when a man has asked for a woman in marriage, and his
suit does not agree with her and she does not incline to him that no
one else can ask for her in marriage. That is a door to misery for
people."
