Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh [1 ed.] 0292776683, 9780292776685

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Chapters on

Marriage and Divorce Responses of Ibn Hanbal and — Ibn Rahwayh

TRANSLATED WITH INTRODUCTION AND NOTES BY SUSAN A. SPECTORSKY

The Library of Claremont School of

Theology

1325 North College Avenue Claremont, CA 91711-3199

(909) 447-2589

CHAPTERS

ON

MARRIAGE

AND

DIVORCE

}2.5

653 53 a3

CHAPTERS ON MARRIAGE AND DIVORCE Responses of Ibn Hanbal and

Ibn Rahwayh TRANSLATED WITH

INTRODUCTION

AND

SUSAN

NOTES

BY

A. SPECTORSKY

+> UNIVERSITY OF TEXAS AUSTIN

PRESS

Copyright © 1993 by the University of Texas Press All rights reserved Printed in the United States of America First edition, 1993 Requests for permission to reproduce material from this work

should be sent to Permissions, University of Texas Press, Box 7819, Austin, TX 78713-7819.

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials,

ANSI Z39.48-1984. Library of Congress Cataloging-in-Publication Data Ibn Hanbal, Ahmad ibn Muhammad,

780—855.

[Selections. English. 1993]

Chapters on marriage and divorce : responses of Ibn Hanbal and Ibn Rahwayh / translated with introduction and notes by Susan A. Spectorsky. — Ist ed. : cm. Includes bibliographical references (p. ) and indexes. ISBN 0-292-77668-3; ISBN 0-292-77672-1 (pbk.) 1. Marriage (Islamic law)—Early works to 1800.

(Islamic law)—FEarly works to 1800. 1800.

2. Divorce

3. Hanbalites—Early works to

I. Spectorsky, Susan A. (Susan Ann)

ibn Ibrahim, 778?—852? Selections. English.

II. Ibn Rahwayh, Ishaq 1993.

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“ He said, “Yes.” Ishaq said, “It is as he said.” I said,’ “Who has the right to his wife, the impotent husband

or the mafqud?” Ishaq said, “Each in accordance with the term specified for him, four years for the mafqud and one year for the impotent husband.” Ahmad said, “If a woman cannot find her husband, she waits

four years, then four months

and ten days; then she can

remarry.”

I said, “Even if she does not bring [her husband’s absence to the attention of] the judge (sultan)?” Ahmad said, “Yes, although I prefer that she bring [it to the

attention of] the judge. It says in the hadith of “Ubaid b. ‘Umair, - 176-

Compilation of Ishaq b. Mansur al-Kausaj

a woman waits four years, then waits an “dda of four months and ten days, then calls on the wali of her missing husband to divorce her, then waits the “dda of a divorcée, and then remarries. This is the longest [period of time that has ever been] mentioned, and it is a weak hadith.”

Ishaq said, “The matter is in accordance with he hadith of ‘Ubaid b. ‘Umair, whenever it has escaped [the attention of] the judge (sultan).” [But he said this] giving [the hadith] a meaning

usually not included in its transmission (‘ald ma‘nd la yariina $105

dhaltka). I said, “Does nursing forbid what birth does?”

Ahmad said, “Yes. And the same holds true for [relationships established through] laban al-fahl.” §106

Ishaq said, “It is as he said.” I said, “What about a man who owns a female slave who is a

Muslim and a male slave who is an unbeliever? Can he give them in marriage to each other?” Ahmad said, “No, the unbeliever Muslim.” Ishaq said, “It is as he said.”

is not the equal of the

8107

I said, “When does the waiting period for the impotent hus-

§108

band start?” Ahmad said, “On the day the matter is brought to the attention [of the judge].” Ishaq said, “As he said.” I said, “[What if] a man marries a woman without knowing

that she has previously committed fornication?” Ahmad said, “She is his wife (i.e., their marriage is valid). If he separates from her (i.e., before having intercourse with her), she is entitled to half her dower.”

Ishaq said, “It is as he said.” $109

§110

I said, “What if a man has intercourse with one of his female slaves who does not menstruate, and then he wants to sell her?” Ahmad said, “He waits an istibrad? of three months on her behalf.” Ishaq said, “It is as he said.”

I said, “A man divorces his wife singly or doubly before having intercourse with her. Then another man marries her and also

- divorces her before having intercourse with her. Can she then return to the first husband?” Ahmad said, “Yes, she can return to him and be his wife in a

otWithe

Chapters on Marriage and Divorce

marriage that has one baquya).” ?”

or two

divorces

behind

it (‘ala mda

Ishaq said, “As he said.” §111

I said, “[What if] a man swears to divorce his wife without knowing [whether he means a] single or a triple divorce?” Ahmad

said, “It certainly counts as a single divorce, but his

wife stays with him until he ascertains [whether he meant a single or triple divorce].” 8112

Ishaq said, “As he said.” I said, “A woman is divorced, and then her husband dies during her “dda. Does she inherit from him and wait a widow’s “idda

starting on the day he died?” Ahmad said, “Whenever the divorce is not final, mutual rights

of inheritance prevail between the spouses if one of them dies. [In this case,] because she is in the position of inheriting from her late husband, the wife starts and completes a new “dda, four

months and ten days. “However, if the wife was in the middle of an “dda after a final

divorce, then mutual rights of inheritance do not prevail between her and her husband, unless he divorced her during his terminal illness. In that case, she inherits from him both during and after her “dda, as long as she has not remarried, in accordance with the way ‘“Uthman made Tumadir inherit from ‘Abd al-Rahman b. ‘Auf.”

Ishaq said, “It is the way he said.” §113

I said, “A man

has a female slave with whom

he has inter-

course. Then he wants to give her in marriage to another man. Should he wait an istibra@ on her behalf?” Ahmad said, “Yes. If he sells her, he should also wait an istibra? on her behalf.” Ishaq said, “As he said.” Ahmad said, “But whenever he has not been having inter-

course with her, he can sell her before waiting an istibra?. The sunna concerning istébr@ applies to the buyer. It concerns the seller only as a precaution for himself if he has been having intercourse with her. That hadith of Ibn ‘Umar—that there need

be no istibr@ if the slave being sold is a virgin—is weak.