بَابُ الْقَسَمِ

(1) The statement: “If you fear that you will not be just, then one, etc.”: It is understood that justice among wives is obligatory, whether new or old, virgin or previously married, Muslim or from the People of the Book, and it is equal between two free women. Between a free woman and a slave woman married to another, justice is divided in thirds: two-thirds for the free woman, one-third for the slave woman. This justice applies to clothing, maintenance, housing, and staying with them, not to love of the heart, as that is beyond human control, nor to intercourse, as that depends on love of the heart, nor to travel rights, as he may travel with whichever he wishes, though drawing lots is preferred, as stated by the jurists, in Tafsir al-Ahmadiyyah.

(2) The statement: “You will never be able to be just, etc.”: An earlier verse in this surah clarified the condition of justice: “If you fear that you will not be just, then one” [An-Nisa: 3]. This verse clarifies that justice is not required in love of the heart but is required in other matters. The verse’s meaning is: You, owners of many wives, will never be able to be just among them, as complete justice without any inclination is impossible. Thus, the Messenger of Allah (ﷺ) was just among his wives in maintenance, clothing, and housing, saying, “O Allah, this is my division in what I control. Do not blame me for what You control and I do not,” meaning love of the heart. He loved Aishah (may Allah be pleased with her) more than all his wives with complete love. Even if you strive to be just among women, “do not incline completely” [An-Nisa: 129], meaning do not combine inclination of action with inclination of the heart. Be just in actions like maintenance, clothing, housing, and staying, even if you cannot control the heart’s love or intercourse, so that action and heart inclination do not combine. If you also abandon just actions, “leaving her” [An-Nisa: 129], the one undesired in action and heart, “as if suspended” [An-Nisa: 129], neither married nor divorced. The Prophet (ﷺ) said: “Whoever has two wives and inclines toward one, he will come on the Day of Judgment with one side tilted.” Thus, justice to the extent possible is obligatory, as in Tafsir al-Ahmadiyyah.

(1) The statement: “He divided among them, etc.”: Thus, in Sharh al-Wiqayah, it is said: Justice in division is obligatory.

(1) The statement: “Do not blame me for what You control and I do not”: Meaning, for excess love and inclination of the heart, as You are the Turner of hearts. Ibn al-Humam said: Its apparent meaning is that what is within his control and power, other than that, requires equality. This includes the number of intimacies and kisses, though equality in them is not required by consensus, as in Al-Marqah. In Radd al-Muhtar: In Al-Khaniyyah, among the duties of husbands toward wives is justice and equality in what he controls, and staying with them for companionship and affection, not in what he does not control, which is love and intercourse.

(1) The statement: “I have given my day with you to Aishah, etc.”: In Al-Hidayah: If one wife agrees to forgo her share for another, it is permissible, per this Hadith. She may retract, as she waived a right not yet due, so it is not forfeited. Ibn al-Humam said: This applies if it is not a bribe from the husband, such as increasing her dowry to do so or marrying her on condition that he marries another and stays with her two days and the addressed one day. Such a condition is void, and the money is unlawful for her in the first case, so he may retract it. If she paid or reduced money for him, it is apparently not binding, unlawful for her, and she may retract her money.

(1) The statement: “When he intended to travel, he drew lots among his wives, etc.”: Meaning, they have no right to division during travel, so the husband travels with whichever he wishes. It is better to draw lots and travel with the one whose lot is drawn. Ash-Shafi‘i said: Drawing lots is required, meaning obligatory, as it is narrated that the Prophet (ﷺ) drew lots among his wives when intending travel. We say: The drawing of lots in this Hadith is to comfort their hearts, so it is recommended. This is because a wife has no right during her husband’s travel. Does he not have the right to travel without any of them? Likewise, he may travel with one, and that duration is not counted against him, as in Al-Hidayah. In Radd al-Muhtar: There is no division during travel, as it is not feasible unless he takes them all, and requiring that causes evident harm, per An-Nahr. He may trust one for travel and another for residence, or for safeguarding property, or fear fitnah, or one’s excessive weight may prevent travel. Requiring travel with one whose companionship he fears, because her lot came up, imposes severe harm, which is negated by the principle of removing hardship, per Fath. In Al-‘Inayah: They have no right to division during travel. This addresses two issues: First, drawing lots is recommended for us, but required for Ash-Shafi‘i, meaning obligatory. Second, if he travels with one without drawing lots and returns, do the others count that duration? For us, they do not, unlike him. This is based on the first, as if drawing lots is required and he does not do it, the travel duration is the turn of the one with him, so the others should have equivalent turns for justice. We say: Equality is obligatory when division is due, and during travel, it is not, so equality is not required, and that duration is not counted as her turn.

(1) The statement: “I will stay seven with you, etc.”: Based on these Hadiths, our scholars said the new and old wife are equal in division, whether the new is a virgin or previously married. Ash-Shafi‘i said: If she is a virgin, he favors her with seven nights; if previously married, three nights, then equality, citing Abu Hurayrah’s Hadith that the Prophet (ﷺ) said: “Favor the virgin with seven and the previously married with three.” The old wife is accustomed to his companionship and comfortable with him, while the new wife is not, having some shyness and unease, so he should remove that with companionship to equal the old wife in familiarity, then equality follows. A virgin has greater shyness toward men, so she is favored with seven nights. A previously married woman has experienced men but not him specifically, so three nights suffice for her to become familiar with his companionship. Our evidence is that the cause of obligatory equality is their inclusion in his marriage, which is realized by the contract itself. If favoring one were required, the old wife would be more entitled, as her unease is greater, having another brought upon her, which typically angers her. The old wife has greater sanctity due to her service, as it is said: Every new has pleasure, and every old has sanctity. As for the Hadith, it means favoring by starting, not increasing, as in Umm Salamah’s Hadith: “If you wish, I will stay seven with you and seven with them,” and “If you wish, I will stay three with you and rotate,” meaning I will rotate with the same among each of them. We say: The husband may start with the new wife for the pleasure in that, but after equalizing between them, as in Al-Mabsut. In Umdat al-Qari, Imam At-Tahawi said: Some said if a man marries a previously married woman, he has the choice to stay seven with her and seven with the others, or three with her and rotate among the rest day by day, night by night. I say: He meant by “some” Ibrahim an-Nakha‘i, ‘Amir ash-Sha‘bi, Malik, Ash-Shafi‘i, Ahmad, Ishaq, Abu Thawr, and Abu ‘Ubayd. He said: Others differed, saying if he stays three with her, three with the others, as if he stays seven with her, seven with the others. I say: He meant by “others” Hammad ibn Abi Sulayman, Al-Hakam ibn ‘Utbah, Abu Hanifah, Abu Yusuf, and Muhammad. They cited Umm Salamah’s Hadith, narrated by At-Tahawi, that the Messenger of Allah (ﷺ) said to her, “If you wish, I will stay seven with you and seven with them,” narrated at length by Ahmad, and longer by At-Tabarani, Abu Ya‘la, and Al-Bayhaqi. At-Tahawi said: When he said to her, “If you wish, I will stay seven with you and seven with them,” meaning I will be just between them and you, giving each seven as I stayed seven with you. Likewise, if he stays three with her, he stays three with each of them. The Shafi‘is said Anas’s Hadith is evidence against the Hanafis. I say: Likewise, Umm Salamah’s Hadith is evidence against the Shafi‘is. The Hanafis also cited Aishah’s Hadith that the Prophet (ﷺ) divided among his wives justly, narrated by the four, recently mentioned, whose apparent meaning requires absolute equality. In Bahr ar-Ra’iq: What is narrated in the Hadith, “For the virgin seven, for the previously married three,” and his saying to Umm Salamah, “If you wish, I will stay seven with you and seven with my wives, or three with you and rotate,” means favoring by starting with the new wife, not increasing. There is no doubt the Hadiths are ambiguous, not definitive, so the definitive evidence and absolute Hadiths take precedence. In Sharh Durar al-Bihar: The Hadith does not negate equality but allows choosing rotation with seven or three, reconciling with what we narrated.

(2) The statement: “Meaning with three among the rest”: This is the essence of what Imam At-Tahawi said, meaning “rotate” refers to rotating among the rest with three to achieve equality.