27 Fixed Shares of Inheritance
27.1 Inheritance of Direct Descendants
Yahya related to me from Malik, "The generally agreed upon way of doing things among us and what I have seen the people of knowledge doing in our city about the fixed shares of inheritance (fara'id) of children from the mother or father when one or other of them dies is that if they leave male and female children, the male takes the portion of two females. If there are only females, and there are more than two, they get two thirds of what is left between them. If there is only one, she gets a half. If people with fixed shares share with the children and there are males among them, the reckoner begins with the ones with fixed shares. What remains after that is divided among the children according to their inheritance.
"When there are no children, grandchildren through sons have the same position as children, so that grandsons are like sons and grand-daughters are like daughters. They inherit as they inherit and they preclude as the children preclude. If there are both children and grandchildren through sons, and there is a male among the children, then the grandchildren through sons do not share in the inheritance with him.
"If there are no surviving males among the children, and there are two or more daughters, grand-daughters through a son do not share in the inheritance with them unless there is a male who is in the same position as them in relation to the deceased, or further than them. His presence gives access to whatever is left over: if any, to whoever is in his position and whoever is above him of the grand-daughters through sons. If something is left over, they divide it among them, and the male takes the portion of two females. If nothing is left over, they have nothing.
"If the only descendant is a daughter, she takes half, and if there are one or more grand-daughters through a son who are in the same position to the deceased, they share a sixth. If there is a male in the same position as the grand-daughters through a son in relation to the deceased, they have no share and no sixth.
"If there is a surplus after the allotting of shares to the people with fixed shares, the surplus goes to the male and whoever is in his position and whoever is above him of the female descendants through sons. The male receives the share of two females. The one who is more distant in relationship than grandchildren through sons has nothing. If there is no surplus, they receive nothing. That is because Allah, the Blessed, the Exalted, says in is Book, 'Allah instructs you regarding your children: A male gets the same as the share of two females. If there are more than two daughters they get two-thirds of what you leave. If she is one on her own she gets a half.'" (4:11)
27.2 Inheritance of Husbands from Wives and Wives from Husbands
Malik said, "The inheritance of a husband from a wife when she leaves no children or grandchildren through sons is a half. If she leaves children or grandchildren through sons, male or female, by her present or any previous husband, the husband has a quarter after bequests or debts. The inheritance of a wife from a husband who does not leave children or grandchildren through sons is a quarter. If he leaves children or grandchildren through sons, male or female, the wife has an eighth after bequests and debts. That is because Allah, the Blessed, the Exalted! says in His Book, 'You get half of what your wives leave if they are childless. If they have children you get a quarter of what they leave after any bequest they make or any debts. They get a quarter of what you leave if you are childless. If you have children they get an eighth of what you leave after any bequest you make or any debts.'" (4:12)
27.3 Inheritance of Fathers and Mothers from Children
Malik said, "The generally agreed-on way of doing things among us about which there is no dispute and what I have seen the people of knowledge in our city doing is that when a father inherits from a son or a daughter and the deceased leaves children or grandchildren through a son, the father has a fixed share of one sixth. If the deceased does leave any children or male grandchildren through a son, the apportioning begins with those with whom the father shares in the fixed shares. They are given their fixed shares. If a sixth or more is left over, the sixth and what is above it is given to the father, and if there is less than a sixth left, the father is given his sixth as a fixed share (i.e. the other shares are adjusted)."
"The inheritance of a mother from her child, if her son or daughter dies and leaves children, male or female, or grandchildren through a son, or leaves two or more full or half siblings is a sixth. If the deceased does not leave any children or grandchildren through a son, or two or more siblings, the mother has a whole third except in two cases. One of them is if a man dies and leaves a wife and both his parents. The wife has a fourth, the mother a third of what remains (which is a fourth of the capital). The other is if a wife dies and leaves a husband and both her parents. The husband gets half, and the mother a third of what remains, (which is a sixth of the capital). That is because Allah, the Blessed, the Exalted, says in His Book, 'Each of your parents get a sixth of what you leave if you have children. If you are childless and your heirs are your parents your mother gets a third. If you have brothers or sisters your mother gets a sixth.' (4:11) The sunna is that the siblings referred to be two or more."
27.4 Inheritance of Maternal Half-Siblings
Malik said, "The generally agreed-upon way of doing things among us is that maternal half-siblings do not inherit anything when there are children or grandchildren through sons, male or female. They do not inherit anything when there is a father or the father's father. They inherit in what is outside of that. If there is only one male or female, they are given a sixth. If there are two, each of them has a sixth. If there are more than that, they share in a third which is divided among them. The male does not have the portion of two females. That is because Allah, the Blessed, the Exalted, says in His Book, 'If a man or woman has no direct heirs but has a brother or sister, each of them gets a sixth. If there are more than that they share in a third.'" (4:12) So males and females are alike in regard to this.
27.5 Inheritance of Full-Siblings
Malik said, "The generally agreed-on way of doing things among us is that full-siblings do not inherit anything with sons nor anything with grandsons through a son, nor anything with the father. They do inherit with the daughters and the grand-daughters through a son when the deceased does not leave a paternal grandfather. They are considered in any property that is left over as paternal relations. One begins with the people who are allotted fixed shares. They are given their shares. If there is anything left over after that, it belongs to the full-siblings. They divide it between themselves according to the Book of Allah, whether they are male or female. The male has a portion of two females. If there is nothing left over, they receive nothing.
"If the deceased does not leave a father or a paternal grandfather or children or male or female grandchildren through a son, a single full sister gets a half. If there are two or more full sisters, they get two-thirds. If there is a brother with them, sisters, whether one or more, do not have a fixed share. One begins with whoever shares in the fixed shares. They are given their shares. Whatever remains after that goes to the full-siblings. The male has the portion of two females except in one case, in which the full-siblings have nothing. They share in this case the third of the half-siblings by the mother. That case is when a woman dies and leaves a husband, a mother, half-siblings by her mother, and full-siblings. The husband has a half. The mother has one sixth. The half-siblings by the mother have a third. Nothing is left after that, so the full-siblings share in this case with the half-siblings by the mother in their third. The males have the portion of two females inasmuch as all of them are siblings of the deceased by the mother. They inherit by the mother. That is because Allah, the Blessed, the Exalted, says in His Book, 'If a man or a woman has no direct heir and he has a brother or sister, each one of the two gets a sixth. If there are more than that, they share equally in the third.' (4:12) They therefore share in this case because they all are siblings of the deceased by the mother."
27.6 Inheritance of Paternal Half-Siblings
Malik said, "The generally agreed-on way of doing things among us is that when there are no full-siblings with them, half-siblings by the father take the position of full-siblings. Their males are like the males of the full-siblings, and their females are like their females except in the case where the half-siblings by the mother and the full-siblings share, because they are not offspring of the mother who joins these."
Malik said, "If there are both full-siblings and half-siblings by the father and there is a male among the full-siblings, none of the half-siblings by the father have any inheritance. If there is one or more females in the full-siblings and there is no male with them, the one full-sister gets a half, and the half-sister by the father gets a sixth, completing the two-thirds. If there is a male with the half-sisters by the father, they have no share. The people of fixed shares are given their shares and if there is something left after that it is divided between the half-siblings by the father. The male gets the portion of two females. If there is nothing left over, they get nothing. Half-siblings by the mother, full-siblings, and half-siblings by the father, each have a sixth (when they are only one). Two and more share a third. The male has the same portion as the female. They are in the same position in this case."
27.7 Inheritance of Grandfathers
1 Yahya related to me from Malik from Yahya ibn Sa'id that he had heard that Mu'awiya ibn Abi Sufyan wrote to Zayd ibn Thabit asking him about the grandfather. Zayd ibn Thabit wrote to him. "You have written to me asking me about the grandfather. Allah knows best. This belongs to those matters left to the determination of the amirs, i.e. the khalifs. I was present with two khalifs before you who gave the grandfather a half with one sibling, and a third with two. If there were more siblings, they did not decrease his third."
2 Yahya related to me from Malik from Ibn Shihab from Qabisa ibn Dhu'ayba that 'Umar ibn al-Khattab gave the grandfather "what people him give today."
3 Yahya related to me from Malik that he had heard that Sulayman ibn Yasar said, "'Umar ibn al-Khattab, 'Uthman ibn 'Affan, and Zayd ibn Thabit gave the grandfather a third with full-siblings."
Malik said, "The generally agreed-on way of doing things among us and what I have seen the people of knowledge in our city doing is that the paternal grandfather does not inherit anything at all with the father. He is given a sixth as a fixed share with the son and the grandson through a son. Other than that, when the deceased does not leave a mother or a paternal aunt, one begins with whoever has a fixed share, and they are given their shares. If there is a sixth of the property left over, the grandfather is given a sixth as a fixed share."
Malik said, "When someone shares with the grandfather and the full siblings in a specified share, one begins with whoever shares with them of the people of fixed shares. They are given their shares. What is left over after that belongs to the grandfather and the full-siblings. Then one sees which is the more favourable of two alternatives for the portion of the grandfather. Either a third is allotted to him and the siblings to divide between them, and he gets a share as if he were one of the siblings, or else he takes a sixth from all the capital. Whichever is the best portion for the grandfather is given to him. What is left after that goes to the full-siblings. The male gets the portion of two females except in one particular case. The division in this case is different from the preceding one. This case is when a woman dies and leaves a husband, mother, full sister and grandfather. The husband gets a half, the mother gets a third, the grandfather gets a sixth, and the full sister gets a half. The sixth of the grandfather and the half of the sister are joined and divided into thirds. The male gets the share of two females. Therefore, the grandfather has two thirds, and the sister has one share."
Malik said, "The inheritance of the half-siblings by the father with the grandfather when there are no full-siblings with them is like the inheritance of the full-siblings (in the same situation). The males are the same as their males and the females are the same as their females. When there are both full-siblings and half-siblings by the father, the full-siblings include in their number the half-siblings by the father in order to limit the inheritance of the grandfather, i.e. if there was only one full-sibling with the grandfather, they would share, after the allotting of the fixed shares, the remainder of the inheritance between them equally. If there were also two half-siblings by the father, their number is added to the division of the sum, which would then be divided four ways. A quarter going to the grandfather and three-quarters going to the full-siblings who annex the shares technically allotted to the half-siblings by the father. They do not include the number of half-siblings by the mother because if there were only half-siblings by the father they would not inherit anything after the portion of the grandfather.
"It belongs to the full-siblings more than the half-siblings by the father, and the half-siblings by the father do not get anything with them unless the full-siblings consist of one sister. If there is one full sister, she includes the grandfather with the half-siblings by her father in the division, however many. Whatever remains for her and these half-siblings by the father goes to her rather than them until she has had her complete share, which is half of the total capital. If there is surplus beyond half of all the capital in what she and the half-siblings by the father acquire, it goes to them. The male receives the portion of two females. If there is nothing left over, they get nothing."
27.8 Inheritance of Grandmothers
4 Yahya related to me from Malik from Ibn Shihab from 'Uthman ibn Ishaq ibn Kharasha that Qabisa ibn Dhu'ayb said, "A grandmother came to Abu Bakr as-Siddiq and asked him for her inheritance. Abu Bakr said to her, 'You have nothing in the Book of Allah, and I do not know that you have anything in the sunna of the Messenger of Allah, may Allah bless him and grant him peace. Go away therefore, until I have questioned the people (i.e. the Companions).' He questioned the people, and al-Mughira ibn Shu'ba said, 'I was present with the Messenger of Allah, may Allah bless him and grant him peace, when he gave the grandmother a sixth.' Abu Bakr asked, 'Was there anybody else with you?' Muhammad ibn Maslama al-Ansari stood up and said the like of what al-Mughira had said. Abu Bakr as-Siddiq gave it to her. Then the other grandmother came to 'Umar ibn al-Khattab and asked him for her inheritance. He said to her, 'You have nothing in the Book of Allah, and what has been decided is only for other than you, and I am not one to add to the fixed shares, other than that sixth. If there are two of you together, it is between you. If either of you is left alone with it, it is hers.' "
[In Abu Dawud, at-Tirmidhi and Ibn Majah]
5 Yahya related to me from Malik from Yahya ibn Sa'id that al-Qasim ibn Muhammad said, "Two grandmothers came to Abu Bakr as-Siddiq, and he wanted to give the sixth to the one who was from the mother's side, and a man of the Ansar said, 'What? Are you omitting the one from whom he would inherit if she died while he was still alive?' Abu Bakr divided the sixth between them."
6 Yahya related to me from Malik from 'Abdu Rabbih ibn Sa'id that Abu Bakr ibn 'Abd ar-Rahman ibn al-Harith ibn Hisham only gave a fixed share to two grandmothers (together).
Malik said, "The generally agreed-on way of doing things among us in which there is no dispute and which I saw the people of knowledge in our city doing is that the maternal grandmother does not inherit anything at all with the mother. Outside of that, she is given a sixth as a fixed share. The paternal grandmother does not inherit anything along with the mother of the father. Outside of that she is given a sixth as a fixed share."
If both the paternal grandmother and maternal grandmother are alive, and the deceased does not have a father or a mother other than them, Malik said, "I have heard that if the maternal grandmother is the nearest of the two of them, then she has a sixth instead of the paternal grandmother. If the paternal grandmother is nearer, or they are in the same position in relation to the deceased, the sixth is divided equally between them."
Malik said, "None of the female grandrelations except for these two has any inheritance because I have heard that the Messenger of Allah, may Allah bless him and grant him peace, gave the grandmother inheritance, and then Abu Bakr asked about that until someone reliable related from the Messenger of Allah, may Allah bless him and grant him peace, that he had made the grandmother an heir and given a share to her. Another grandmother came to 'Umar ibn al-Khattab, and he said, 'I am not one to add to the fixed shares. If there are two of you together, it is between you. If either of you is left alone with it, it is hers.'" Malik said, "We do not know of anyone who made other than the two grandmothers heirs from the beginning of Islam to this day."
27.9 Inheritance of Persons without Parents or Offspring
7 Yahya related to me from Malik from Zayd ibn Aslam that 'Umar ibn al-Khattab asked the Messenger of Allah, may Allah bless him and grant him peace, about someone who died without parents or offspring (i.e. he asked about "kalala") and the Messenger of Allah, may Allah bless him and grant him peace, said to him, "The ayat which was sent down in the summer at the end of the Surat an-Nisa' (4) is enough for you."
[In Muslim]
Malik said, "The generally agreed-on way of doing things among us, in which there is no dispute, and which I saw the people of knowledge in our city doing, is that the person who leaves neither parent or offspring can be of two types. As for the kind described in the ayat which was sent down at the beginning of Surat an-Nisa' in which Allah, the Blessed, the Exalted, says, 'If a man or a woman has no direct heir and he has a brother or sister, each one of the two gets a sixth. If there are more than that, they share equally in the third.' (4:12) This heirless one does not have heirs among his mother's siblings since there are no children or parents. As for the other kind described in the ayat which comes at the end of the Surat an-Nisa', Allah, the Blessed, the Exalted, says in it, 'They will ask you for a definitive ruling. Say: "Allah gives you a definitive ruling about people who die without direct heirs: If a man dies childless but has a sister she gets half of what he leaves. And he is her heir if she dies childless. If there are two sisters they get two-thirds of what he leaves. If there are brothers and sisters the males get the share of two females. Allah makes things clear to you so you will not go astray. Allah has knowledge of all things.'" (4:176)
Malik said, "If this person without direct heirs (parents) or children has siblings by the father, they inherit with the grandfather from this person without direct heirs. The grandfather inherits with the siblings because he is more entitled to the inheritance than them. That is because he inherits a sixth with the male children of the deceased when the siblings do not inherit anything with the male children of the deceased. How can he not be like one of them when he takes a sixth with the children of the deceased? How can he not take a third with the siblings while the brother's sons take a third with them? The grandfather is the one who overshadows the half-siblings by the mother and keeps them from inheriting. He is more entitled to what they have because they are omitted for his sake. If the grandfather did not take that third, the half-siblings by the mother would take it and would take what does not return to the half-siblings by the father. The half-siblings by the mother are more entitled to that third than the half-siblings by the father while the grandfather is not less entitled to that than the half-siblings by the mother."
27.10 Paternal Aunts
8 Yahya related to me from Malik from Muhammad ibn Abi Bakr ibn Muhammad ibn 'Amr ibn Hazm that 'Abd ar-Rahman ibn Handhala az-Zuraqi was informed by a mawla of Quraysh, who used to be known as Ibn Mirsa, that he was sitting with 'Umar ibn al-Khattab, and when they had prayed Dhuhr, he said, "Yarfa! Bring that letter! (A letter which he had written about the paternal aunt). We asked about her and asked for information about her." Yarfa brought it to him. He called for a small vessel or drinking-bowl in which there was water. He erased the letter in it. Then he said, "Had Allah approved of you as an heir, we would have confirmed you. Had Allah approved of you, He would have confirmed you."
9 Yahya related to me from Malik that Muhammad ibn Abi Bakr ibn Hazm heard his father say many times, "'Umar ibn al-Khattab used to remark, 'It is a wonder that the paternal aunt is inherited from but does not inherit.'"
27.11 Inheritance of Paternal Relations ('asaba)
Malik said, "The generally agreed-on way of doing things among us, in which there is no dispute and which I saw the people of knowledge in our city doing, about paternal relations is that full-brothers are more entitled to inherit than half-brothers by the father and half-brothers by the father are more entitled to inherit than the children of the full-brothers. The sons of the full-brothers are more entitled to inherit than the sons of the half-brothers by the father. The sons of the half-brothers by the father are more entitled to inherit than the sons of the sons of the full-brothers. The sons of the sons of the half-brothers by the father's side are more entitled to inherit than the paternal uncle, the full brother of the father. The paternal uncle, the full brother of the father, is more entitled to inherit than the paternal uncle, the half-brother of the father on the father's side. The paternal uncle, the half-brother of the father on the father's side, is more entitled to inherit than the sons of the paternal uncle, the full-brother of the father. The son of the paternal uncle on the father's side is more entitled to inherit than the paternal great uncle, the full-brother of the paternal grandfather."
Malik said, "Everything about which you are questioned concerning the inheritance of the paternal relations is like this. Trace the genealogy of the deceased and whoever among the paternal relations contends for inheritance. If you find that one of them reaches the deceased by a father and none of them except him reaches him by a father, then grant the inheritance to the one who reaches him by the nearest father, rather than the one who reaches him by what is above that. If you find that they all reach him by the same father who joins them, then see who is the nearest of kin. If there is only one half-brother by the father, give him the inheritance rather than more distant paternal relations. If there is a full-brother and you find them equally related from a number of fathers or to one particular father so that they all reach the genealogy of the deceased and they are all half-brothers by the father or full-brothers, then divide the inheritance equally among them. If the parent of one of them is an uncle (the full-brother of the father of the deceased) and whoever is with him is an uncle (the paternal half-brother of the father of the deceased), the inheritance goes to the sons of the full brother of the father rather than the sons of the paternal half-brother of the father. That is because Allah, the Blessed, the Exalted, says, 'But blood relations are closer to one another in Allah's Book. Allah has knowledge of all things.' (8:75)"
Malik said, "The paternal grandfather is more entitled to inherit than the sons of the full-brother, and more entitled than the uncle, the full brother of the father. The son of the father's brother is more entitled to inherit from mawali retainers (freed slaves) than the grandfathers."
27.12 People Who Do Not Inherit
Malik said, "The generally agreed-on way of doing things among us in which there is no dispute and which I saw the people of knowledge in our city doing, is that the child of the half-sibling by the mother, the paternal grandfather, the paternal uncle who is the maternal half-brother of the father, the maternal uncle, the great grandmother who is the mother of the mother's father, the daughter of the full-brother, the paternal aunt, and the maternal aunt do not inherit anything by their kinship."
Malik said, "Any woman who more distantly related to the deceased than those who were named in this Book, does not inherit anything by her kinship, and women do not inherit anything apart from those that are named in the Qur'an. Allah, the Blessed, the Exalted, mentions in His Book the inheritance of the mother from her children, the inheritance of the daughters from their father, the inheritance of the wife from her husband, the inheritance of the full-sisters, the inheritance of the half-sisters by the father and the inheritance of the half-sisters by the mother. The grandmother is made an heir by the example of the Prophet, may Allah bless him and grant him peace, made about her. A woman inherits from a slave she frees herself because Allah, the Blessed, the Exalted, says in His Book, 'They are your brothers in the deen and people under your patronage.' (33:5)"
27.12 Inheritance from People of Other Religions
10 Yahya related to me from Malik from Ibn Shihab from 'Ali ibn Husayn ibn 'Ali from 'Umar ibn 'Uthman ibn 'Affan from Usama ibn Zayhya related to me from Malik from Ibn Shihab from 'Ali ibn Husayn ibn 'Ali from 'Umar ibn 'Uthman ibn 'Affan from Usama ibn Zayd that the Messenger of Allah, may Allah bless him and grant him peace, said, "A Muslim does not inherit from a unbeliever."
[In Muslim]
11 Yahya related to me from Malik from Ibn Shihab that 'Ali ibn Husayn in 'Ali ibn Abi Talib told him that 'Aqil and Talib inherited from Abu Talib, and 'Ali did not inherit from him. 'Ali said, "Because of that, we have given up our portion of ash-Shi'b (a house belonging to the Banu Hashim)."
12 Yahya related to me from Malik from Yahya ibn Sa'id from Sulayman ibn Yasar that Muhammad ibn al-Ash'ath told him that he had a Christian or Jewish paternal aunt who died. Muhammad ibn al-Ash'ath mentioned that to 'Umar ibn al-Khattab and asked him, "Who inherits from her?" 'Umar ibn al-Khattab said to him, "The people of her deen inherit from her." Then he went to 'Umar ibn 'Affan, and asked him about that. 'Uthman told him, "Do you think that I have forgotten what 'Umar ibn al-Khattab said to you? The people of her deen inherit from her."
13 Yahya related to me from Malik from Yahya ibn Sa'id from Isma'il ibn Abi Hakim that 'Umar ibn 'Abd al-'Aziz freed a Christian who then died. Isma'il said, "'Umar ibn 'Abd al-'Aziz ordered me to put his property in the Bayt al-Mal."
14 Yahya related to me from Malik from a reliable source of his who had heard Sa'id ibn al-Musayyab say, "'Umar ibn al-Khattab refused to let anyone inherit from the non-Arabs except for one who was born among the Arabs."
Malik said, "If a pregnant woman comes from the land of the enemy and gives birth in Arab land then he is considered to be her child. He inherits from her if she dies, and she inherits from him if he dies, by the Book of Allah."
Malik said, "The generally agreed-on way of doing things among us and the sunna in which there is no dispute, and what I saw the people of knowledge in our city doing, is that a Muslim does not inherit from a unbeliever by kinship, clientage (wala'), or maternal relationship, nor does he (the Muslim) bar any (of the unbelievers) from his inheritance."
Malik said, "Similarly, someone who forgoes his inheritance when he is the chief heir does not bar anyone from his inheritance."
27.14 People Killed in Battle or Otherwise whose Situation in Inheritance is Not Known
15 Yahya related to me from Malik from Rabi'a ibn Abi 'Abd ar-Rahman from more than one of the people of knowledge of that time, that those who were killed on the Day of the Camel, the Day of Siffin, the Day of al-Harra, and the Day of Qudayd did not inherit from each other. None of them inherited anything from his companion unless it was known that he had been killed before his companion.
Malik said, "That is the way of doing things about which there is no dispute, and which none of the people of knowledge in our city doubt. The procedure with two mutual heirs who are drowned, or killed in another way, when it is not known which of them died first is the same - neither of them inherits anything from his companion. Their inheritance goes to whoever remains of their heirs. They are inherited from by the living."
Malik said, "No one should inherit from anyone else when there is doubt, and one should only inherit from the other when there is certainty of knowledge and witnesses. That is because a man and his mawla whom his father has freed might die at the same time. The sons of the free man could say, 'Our father inherited from the mawla.' They should not inherit from the mawla without knowledge or testimony that he died first. The living people most entitled to his wala' inherit from him."
Malik said, "Another example is two full brothers who die. One of them has children and the other does not. They have a half-brother by their father. It is not known which of them died first, so the inheritance of the childless one goes to his half-brother by the father. The children of the full-brother get nothing."
Malik said, "Another example is when a paternal aunt and the son of her brother die, or else the daughter of the brother and her paternal uncle. It is not known which of them died first. The paternal uncle does not inherit anything from the daughter of his brother, and the son of the brother does not inherit anything from his paternal aunt."
27.15 The Inheritance of the Child of Li'an and the Child of Fornication
16 Yahya related to me from Malik that he had heard that 'Urwa ibn az-Zubayr said about the child of li'an and the child of fornication, that, if they died, the mother inherited her right from them according to the Book of Allah, the Mighty, the Majestic! The siblings by the mother had their rights. The rest was inherited by the former masters of the mother if she was a freed slave. If she was a free woman by origin, she inherited her due and the siblings by the mother inherited their due, and the rest went to the Muslims.
Malik said, "I heard the same as that from Sulayman ibn Yasar."
Malik said, "That is what I have seen the people of knowledge in our city doing."
28.1 Asking for Someone's Hand in Marriage
1 Yahya related to me from Malik from Muhammad ibn Yahya ibn Habban from al-A'raj from Abu Hurayra 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."
[In Bukhari and ash-Shafi'i]
2 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."
[In Bukhari and ash-Shafi'i]
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, the Blessed, the Exalted, 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 and are mutually satisfied (with the arrangement), and she has made any conditions for herself, 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."
3 Yahya related to me from Malik from 'Abd ar-Rahman ibn al-Qasim that his father said about the words of Allah, the Blessed, the Exalted, "Nor is there anything wrong in any allusion to marriage you make to a woman, nor for any you keep to yourself. Allah knows that you will say things to them. But do not make secret arrangements with them, rather only speak with correctness and courtesy," (2:235) that it referred to a man saying to a woman while she was still in her 'idda after the death of her husband, "You are dear to me, and I desire you, and Allah brings provision and blessing to you," and such words as these.
28.2 Asking the Consent of Virgins and Women Previously Married
4 Malik related to me from 'Abdullah ibn al-Fadl from Nafi' ibn Jubayr ibn Mut'im from 'Abdullah ibn 'Abbas that the Messenger of Allah, may Allah bless him and grant him peace, said, "A woman who has been previously married is more entitled to her person than her guardian, and a virgin must be asked for her consent and her silence is her consent."
[In Muslim]
5 Yahya related to me from Malik that he had heard that Sa'id ibn al-Musayyab had said that 'Umar ibn al-Khattab said, "A woman is only married with the consent of either her guardian or someone of her family with sound judgment or the ruler."
6 Yahya related to me from Malik that he had heard that al-Qasim ibn Muhammad and Salim ibn 'Abdullah would marry off their virgin daughters without consulting them.
Malik said, "That is what is done among us about the marriage of virgins."
Malik said, "A virgin has no right to her property until she enters her house and her state (competence, maturity, etc.) is known for sure."
7 Yahya related to me from Malik that he had heard that al-Qasim ibn Muhammad and Salim ibn 'Abdullah and Sulayman ibn Yasar said about the virgin given by her father in marriage without her permission, "It is binding on her."
28.3 The Bride-Price and Unreturnable Gifts
8 Yahya related to me from Malik from Malik from Abu Hazim ibn Dinar from Sahl ibn Sa'd as-Sa'idi 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 Messenger of 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."
[In Bukhari and Muslim]
9 Yahya related to me from Malik from Yahya ibn Sa'id that Sa'id 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 in entitled to damages against her guardian."
Malik said, "The husband is entitled to damages against her guardian hwen 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."
10 Yahya related to me from Malik from Nafi' that the daughter of 'Ubaydullah ibn 'Umar whose mother was the daughter of Zayd ibn al-Khattab, married the son of 'Abdullah ibn 'Umar. He died and had not yet consummated the marriage or specified her bride-price. Her mother wanted the bride-price and 'Abdullah ibn 'Umar said, "She is not entitled to a bride-price. Had she been entitled to a bride-price, we would not have kept it and we would not do her an injustice." The mother refused to accept that. Zayd ibn Thabit was brought to adjudicate between them and he decided that she had no bride-price, but that she did inherit.
11 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, giving someone in marriage, makes a condition in the way of unreturnable gift or 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 himself. The marriage was affirmed for the son if he was a minor and was under the guardianship of his father.
Malik said this 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 was because Allah, the Blessed, the Exalted, says in His Book, "unless they (women with whom he had not consummated marriage) forgo it or the one in charge of the marriage contract forgoes it." (2:237) (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 was not owed any 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."
28.4 Consummating the Marriage
12 Yahya related to me from Malik from Yahya ibn Sa'd from Sa'id ibn al-Musayyab that 'Umar ibn al-Khattab decided in the case of a woman who was married by a man and the marriage had been consummated that the bride-price was obligatory.
13 Yahya related to me from Malik from Ibn Shihab that Zayd ibn Thabit said, "When a man takes his wife to his house and cohabits with her, then the bride-price is obliged."
Yahya related to me from Malik that he had heard that Sa'id 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 into 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 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."
28.5 Wedding Nights of Virgins and Women Previously Married
14 Yahya related to me from Malik from 'Abdullah ibn Abi Bakr ibn Muhammad ibn 'Amr ibn Hazim from 'Abd al-Malik ibn Abi Bakr ibn 'Abd ar-Rahman ibn al-Harith ibn Hisham al-Makhzumi from his father that when the Messenger of Allah, may Allah bless him and grant him peace, married Umm Salama and then spent the night with her, he said to her, "You are not being humbled in your right. If you wish, I will stay with you for seven nights and stay seven nights (each) with the others. If you wish, I will stay with you for three nights, and then visit the others in turn." She said, "Stay three nights."
[In Muslim]
15 Yahya related to me from Malik from Humayd at-Tawil that Anas ibn Malik said, "A virgin has seven nights, and a woman who has been previously married has three nights."
[In Bukhari and Muslim]
Malik affirmed, "That is what is done among us."
Malik said, "If a man takes another wife, he divides his time equally between them after the wedding nights. He does not count the wedding nights against the one he has just married."
28.6 Stipulations Not Permitted in Marriage
16 Yahya related to me from Malik that he had heard that Sa'id ibn al-Musayyab was asked about a woman who made a stipulation on her husband not to take her away from her town. Sa'id ibn al-Musayyab said, "He takes her away if she wishes."
Malik said, "The custom among us is that when a man marries a woman, and he makes a condition in the marriage contract that he will not marry after her or take a concubine, it means nothing unless there is an oath of divorce or setting-free attached to it. Then it is obliged and required of him."
28.7 Marriage of the Muhallil and its Like
17 Yahya related to me from Malik from al-Miswar ibn Rifa'a al-Quradhi from az-Zubayr ibn 'Abd ar-Rahman ibn az-Zubayr that Rifa'a ibn Simwal divorced his wife, Tamima bint Wahb, in the time of the Messenger of Allah, may Allah bless him and grant him peace, three times. She then married 'Abd ar-Rahman ibn az-Zubayr and he turned from her and could not consummate the marriage and so he parted from her. Rifa'a wanted to marry her again and it was mentioned to the Messenger of Allah, may Allah bless him and grant him peace, and he forbade him to marry her. He said, "She is not halal for you until she has tasted the sweetness of intercourse."
[In Bukhari and Muslim]
18 Yahya related to me from Malik from Yahya ibn Sa'id from al-Qasim ibn Muhammad that 'A'isha, the wife of the Prophet, may Allah bless him and grant him peace, said when asked whether it was permissible for a man to marry again a wife he had divorced irrevocably if she had married another man who divorced her before consummating the marriage, "Not until she has tasted the sweetness of intercourse."
19 Yahya related to me from Malik that he had heard that when asked whether it was permissible for a man to return to his wife if he had divorced her irrevocably and then another man had married her after him and had died before consummating the marriage, al-Qasim ibn Muhammad said, "It is not halal for the first husband to return to her."
Malik said that the muhallil could not remain in such a marriage so as to allow a new marriage. If he had intercourse with her in that marriage, she kept her dowry.
28.8 Combinations of Women Not to be Married Together
20 Yahya related to me from Malik from Abu'z-Zinad from al-A'raj from Abu Hurayra that the Messenger of Allah, may Allah bless him and grant him peace, said, "One can not be married to a woman and her paternal aunt, or a woman and her maternal aunt at the same time."
[In Bukhari and Muslim]
21 Yahya related to me from Malik from Yahya ibn Sa'id that Sa'id ibn al-Musayyab said, "It is forbidden to be married to a woman and her paternal or maternal aunt at the same time, and for a man to have intercourse with a female slave who is carrying another man's child."
28.9 Prohibition against Marrying Mothers of Wives
22 Yahya related to me from Malik from Yahya ibn Sa'id that Zayd ibn Thabit asked whether it was halal for a man who married a woman and then separated from her before he had cohabited with her, to marry her mother. Zayd ibn Thabit said, "No. The mother is prohibited unconditionally. There are conditions, however, about foster-mothers."
23 Yahya related to me from Malik from more than one source that when 'Abdullah ibn Mas'ud 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 Mas'ud 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 Mas'ud returned to 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 mother, 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, mentions 'the mothers of your wives,' as one whom marriage made haram, and He did not 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."
28.10 Marriage to Mothers of Women with Whom One has had Sexual Relations in a Disapproved Manner
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, says, "Do not marry any women your fathers married." (4:21)
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 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 the mother."
28.11 What is not Permitted in Marriage in General
24 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, forbade shighar, which means one man giving his daughter in marriage to another man on the condition that the other gives his daughter to him in marriage without either of them paying the bride-price.
[In Bukhari and Muslim]
25 Yahya related to me from Malik from 'Abd ar-Rahman ibn al-Qasim from his father from 'Abd ar-Rahman and Mujammi', the sons of Yazid ibn Jariya al-Ansari from Khansa' bint Khidam al-Ansariya, that her father gave her in marriage and she had been previously married. She disapproved of that and went to the Messenger of Allah, may Allah bless him and grant him peace, and he revoked the marriage.
[In Bukhari]
26 Yahya related to me from Malik from Abu'z-Zubayr al-Makki that a case was brought to 'Umar about a marriage which had only been witnessed by one man and one woman. He said, "This is a secret marriage and I do not permit it. Had I been the first to come upon it, I would have ordered them to be stoned."
27 Yahya related to me from Malik from Ibn Shihab from Sa'id 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, "Sa'id ibn al-Musayyab said that she had her dowry because he had consummated the marriage."
Malik said, "The practice with us concerning a freewoman 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."
28.12 Marrying Slaves When Already Married to Free Women
28 Yahya related to me from Malik that he had heard that 'Abdullah ibn 'Abbas and 'Abdullah ibn 'Umar were asked about a man who had a freewoman as a wife and then wanted to marry a slave-girl. They disapproved that he should be married to both of them.
29 Yahya related to me from Malik from Yahya ibn Sa'id that Sa'id ibn al-Musayyab said, "The slave-girl is not to be married when there is a freewoman who is a wife unless the freewoman wishes it. If the freewoman complies, she has two-thirds of the division of time."
Malik said, "A freeman must not marry a slave-girl when he can afford to marry a freewoman, and he should not marry a slave-girl when he cannot afford a freewoman unless he fears fornication. That is in His Book, 'If any of you who do not have the means to marry believing free women (muhsanat), you may marry believing slavegirls.' (4:24). He says, 'This is for those of you who are afraid of committing al-'anat.' "
Malik said, "Al-'anat is fornication."
28.13 A Man's Owning a Slave whom He has Married and then Divorced
30 Yahya related to me from Malik from Ibn Shihab from Abu 'Abd ar-Rahman that Zayd ibn Thabit said that if a man divorced his slave-girl three times and then bought her, she was not halal for him until she had married another husband.
31 Yahya related to me from Malik that he had hear that Sa'id ibn al-Musayyab and Sulayman ibn Yasar were asked whether, when a man married a slave of his to a slave-girl and the slave divorced her irrevocably, and then her master gave her to the slave, she was then halal for the slave by the possession of the right hand. They said, "No, she is not halal until she has married another husband."
32 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 married 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 virtue of that pregnancy according to what we think, and Allah knows best."
28.14 Reprehensibility of Intercourse with Two Sisters or a Mother and Daughter that One Owns
33 Yahya related to me from Malik from Ibn Shihab from 'Ubaydullah ibn 'Abdullah ibn 'Utba ibn Mas'ud from his father that 'Umar ibn al-Khattab was asked about a woman and her daughter who were both owned, and whether one could have intercourse with one of them after the other. 'Umar said, "I dislike both being permitted together." He then forbade that.
34 Yahya related to me from Malik from Ibn Shihab from Qabisa ibn Dhu'ayb that a man asked 'Uthman ibn 'Affan whether one could have intercourse with two sisters whom one owned. 'Uthman said, "One ayat makes them halal, and one ayat makes them haram. As for me, I would not like to do it." The man left him and met one of the Companions of the Messenger of Allah, may Allah bless him and grant him peace, and asked him about it, and he said, "Had I any authority and I found someone who had done it, I would punish him as an example."
Ibn Shihab added, "I think that it was 'Ali ibn Abi Talib."
35 Yahya related to me from Malik that he had heard that az-Zubayr ibn al-'Awwam said the like of that.
Malik said that if a man had sexual relations with a female-slave that he owned, and then he wanted to also have relations with her sister, the sister was not halal for the man until intercourse with the slave-girl had been made haram for him by marriage, setting-free, kitaba, or the like of that - for instance, if he had married her to his slave or someone other than his slave.
28.15 Prohibition against Intercourse with a Slave-girl who Belonged to One's Father
36 Yahya related to me from Malik that he had heard that 'Umar ibn al-Khattab gave his son a slave-girl and said, "Do not touch her, for I have uncovered her."
Yahya related to me from Malik that 'Abd ar-Rahman ibn al-Mujabbar said that Salim ibn 'Abdullah gave his son a slave-girl and said, "Do not go near her, for I wanted her, and did not act towards her."
37 Yahya related to me from Malik from Yahya ibn Sa'id that Abu Nahshal ibn al-Aswad said to al-Qasim ibn Muhammad, "I saw a slave-girl of mine uncovered in the moonlight, and so I sat on her as a man sits on a woman. She said that she was menstruating, so I stood up and have not gone near her after that. Can I give her to my son to have intercourse with?" Al-Qasim forbade that.
38 Yahya related to me from Malik from Ibrahim ibn Abi 'Abla from 'Abd al-Malik ibn Marwan that he gave a slave-girl to a friend of his, and later asked him about her. He said, "I intended to give her to my son to do such-and-such with her." 'Abd al-Malik said, "Marwan was more scrupulous than you. He gave a slave-girl to his son, and then he said, 'Do not go near her, for I have seen her leg uncovered.'"
28.16 Prohibition against Marrying Slave-girls of the People of the Book
Malik said, "It is not halal to marry a Christian or Jewish slave-girl because Allah, the Blessed, the Exalted, says in His Book, 'So are chaste women (muhsanat) from among the believers and women who are muhsanat among those given the Book before you,' (5:6), and they are freewomen from the Christians and Jews. Allah, the Blessed, the Exalted, says in His Book, 'If any of you who do not have the means to marry believing free women (muhsanat), you may marry believing slavegirls .' (4:24).'"
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."
28.17 Muhsanat
39 Yahya related to me from Malik from Ibn Shihab that Sa'id ibn al-Musayyab said, "The muhsanat among women are those who have husbands." That referred to the fact that Allah has made fornication haram.
40 Yahya related to me from Malik from Ibn Shihab, and he had heard from al-Qasim ibn Muhammad that they said, "When a freeman marries a slave-girl and consummates the marriage, she makes him a muhsan."
Malik said, "All (of the people of knowledge) I have seen have said that a slave-girl makes a freeman muhsan when he marries her and consummates the marriage."
Malik said, "A slave makes a freewoman muhsana when he consummates a marriage with her, but a freewoman 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 freeman 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. This accords her the ihsan status. 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 freewomen and the Muslim slave-girl all render a Muslim freeman muhsan when he marries one of them and has intercourse with her."
28.18 Temporary Marriage
41 Yahya related to me from Malik from Ibn Shihab from 'Abdullah and Hasan, the sons of Muhammad ibn 'Ali ibn Abi Talib from their father, may Allah be pleased with him, that the Messenger of Allah, may Allah bless him and grant him peace, forbade temporary marriage with women and the flesh of domestic donkeys on the Day of Khaybar.
[cf Bukhari 3979, and in Muslim]
42 Yahya related to me from Malik from Ibn Shihab from 'Urwa ibn az-Zubayr that Khawla ibn Hakim came to 'Umar ibn al-Khattab and said, "Rabi'a ibn Umayya contracted a temporary marriage with a woman and she is pregnant by him." 'Umar ibn al-Khattab went out in dismay dragging his cloak, saying, "This temporary marriage, had I come across it, I would have ordered stoning and done away with it!"
28.19 Marriage of Slaves
43 Yahya related to me from Malik that he heard Rabi'a 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 merely intends to make the woman halal [for her prior husband] by virtue of marriage."
Malik said, "When a slave is owned by his wife or a husband owns his wife, the act of possession by either of them renders marriage 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 contracted another marriage."
28.20 The Marriage of Idol Worshippers when their Wives Become Muslim before Them
44 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 unbelievers 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 that Makka was conquered, 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 to meet the 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 an unbeliever. He was present at the battles of Hunayn and at-Ta'if while he was still an believer and his wife was a Muslim. The Messenger of Allah, may Allah bless him and grant him peace, did not separate Safwan a unbeliever 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 remained with him by that marriage.
[In Muslim]
45 Yahya related to me from Malik that Ibn Shihab said, "There was about one month between the Islam of Safwan and the Islam of his wife."
Ibn Shihab said, "We have not heard about any woman doing hijra for Allah and His Messenger while her husband was an unbeliever abiding in the land of disbelief, but that her hijra separated her and her husband unless her husband came in hijra before her period of 'idda had been completed."
46 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 that Makka was conquered, 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 invited 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 (of Makka). 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 received his allegiance. The couple 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, says in His Book, 'Do not hold to any marriage ties with women who reject.' (60:10)"
28.21 The Wedding Feast
47 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 trace of 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 replied, "The weight of a date pit in gold." The Messenger of Allah, may Allah bless him and grant him peace, said, "Hold a feast, even if it is only with a sheep."
[In Bukhari and Muslim]
48 Yahya related to me from Malik that Yahya ibn Sa'id said, "I have heard that the Messenger of Allah, may Allah bless him and grant him peace, held a wedding-feast in which there was neither meat nor bread."
[Ibn Ibn Majah]
49 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, "When you are invited to a wedding-feast, you must go to it."
[In Bukhari and Muslim]
50 Yahya related to me from Malik from Ibn Shihab from al-A'raj that Abu Hurayra said, "The worst food is the food of a wedding feast to which the rich are invited and the poor are left out. If anyone rejects an invitation, he has rebelled against Allah and His Messenger."
[In Bukhari and Muslim]
51 Yahya related to me from Malik that Ishaq ibn 'Abdullah ibn Abi Talha heard Anas ibn Malik say that a certain tailor invited the Messenger of Allah, may Allah bless him and grant him peace, to eat some food which he had prepared.
Anas said, "I went with the Messenger of Allah, may Allah bless him and grant him peace, to eat the food. He served barley bread and a soup with pumpkin in it. I saw the Messenger of Allah, may Allah bless him and grant him peace, going after the pumpkin around the dish, so I have always liked pumpkin since that day."
[In Bukhari and Muslim]
28.22 Marriage in General
52 Yahya related to me from Malik from Zayd ibn Aslam that the Messenger of Allah, may Allah bless him and grant him peace, said, "When you marry a woman or buy a slave-girl, take her by the forelock and ask for blessing. When you buy a camel, take the top of its hump, and seek refuge with Allah from Shaytan."
53 Yahya related to me from Malik from Abu'z-Zubayr al-Makki that somebody asked a man for his sister in marriage and the man mentioned that she had committed fornication. 'Umar ibn al-Khattab heard about it, and he beat the man or almost beat him, and said, "What did you mean by giving him such information!"
54 Yahya related to me from Malik from Rabi'a ibn Abi 'Abd ar-Rahman that al-Qasim ibn Muhammad and 'Urwa ibn az-Zubayr said that a man who had four wives and then divorced one of them irrevocably, could marry straightaway if he wished, and he did not have to wait for the completion of her 'idda.
55 Yahya related to me from Malik from Rabi'a ibn 'Abd ar-Rahman that al-Qasim ibn Muhammad and 'Urwa ibn az-Zubayr gave the same judgement to al-Walid ibn 'Abd al-Malik in the year of his arrival in Madina except that al-Qasim ibn Muhammad said that he divorced his wife on separate occasions (i.e. not at one time).
56 Yahya related to me from Malik from Yahya ibn Sa'id that Sa'id ibn al-Musayyab said, "There are three things in which there is no jest: marriage, divorce and setting free."
[In Abu Dawud, at-Tirmidhi, and Ibn Majah]
57 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.
