Hadith 3379

(1) His statement: “What should he do?” The Messenger of Allah (ﷺ) said: “A revelation has been sent down concerning you,” etc. According to al-Shafi‘i, the basis for accusing wives is the prescribed punishment based on the first verse: “And those who accuse chaste women and then do not produce four witnesses, flog them” [Qur’an 24:4]. The verse of mutual cursing clarifies that if the accuser is a husband, he can avert the punishment through mutual cursing. If the accused is the accuser’s wife, she can avert the punishment of adultery through her mutual cursing. If either refuses to perform mutual cursing, the original ruling applies, which is the punishment. Abu Hanifah and his companions held that the obligation for accusing a wife is only mutual cursing, not the punishment. According to us, the verse of mutual cursing abrogates the first verse concerning wives, as the specific ruling that comes later abrogates the general ruling to its extent. Thus, the first verse no longer applies to wives, and the obligation for accusing a wife is mutual cursing. If either refuses, they are imprisoned until they perform it, like a debtor who refuses to fulfill a debt. When Hilal accused his wife, the Messenger of Allah (ﷺ) said to him: “Evidence, or a punishment on your back,” indicating that initially, it warranted the punishment like accusing a non-wife. When the verse of mutual cursing was revealed, it abrogated this for wives, as stated in al-Bada’i‘ and al-Inayah. This was mentioned in al-Bahr al-Ra’iq.

(2) His statement: “They performed mutual cursing,” etc. Its root is from “curse,” meaning expulsion and distancing from Allah’s mercy. Its legal meaning according to us is testimonies confirmed by oaths accompanied by cursing. Al-Shafi‘i said: It is oaths confirmed with the wording of testimony. He requires the eligibility for taking an oath, so it applies between a Muslim and his non-Muslim wife, between a non-Muslim and a non-Muslim wife, and between a slave and his wife. This is also the view of Malik and Ahmad. According to us, the eligibility for testimony is required, so it only applies between free, sane, adult Muslims who have not been punished for false accusation. Al-Shafi‘i’s evidence is the verse: “The testimony of one of them shall be four testimonies by Allah” [Qur’an 24:6], which is definitive regarding oaths, and testimony can include oaths. We interpreted the ambiguous as the definitive, especially since testimony for oneself is not accepted, unlike an oath. Its repetition indicates it is an oath, as it was legislated repeatedly, like in the case of qasamah, unlike delivering testimony. Our evidence is the verse: “And those who accuse their wives and have no witnesses except themselves” [Qur’an 24:6]. It excludes “themselves” from witnesses, establishing that they are witnesses, as the exception is of the same type as what it is excepted from. Then it explicitly mentions their testimony: “The testimony of one of them shall be four testimonies by Allah” [Qur’an 24:6]. It specifies testimony and oath, so we say the core is testimony confirmed by an oath, and confirmation does not negate it being testimony. The claim that testimony for oneself is not accepted is invalid, as it is only rejected in cases of suspicion. When suspicion is absent, it is accepted, as Allah says: “Allah testifies that there is no deity except Him” [Qur’an 3:18], which is among the truest testimonies due to the absence of suspicion. In this case, suspicion is negated by the oath. This was stated by al-Ayni. His testimony stands in place of the punishment for false accusation, and her testimony stands in place of the punishment for adultery. If they perform mutual cursing, the punishment for false accusation is lifted from him, and the punishment for adultery is lifted from her, as invoking Allah is as severe as the punishment, or even more so. Mutual cursing occurs when there are no witnesses. If the husband provides four witnesses to her adultery, there is no mutual cursing or punishment for him, but she receives the punishment for adultery. Similarly, if she confesses to adultery and confirms the husband’s claim. In summary, mutual cursing occurs when a man accuses his wife of adultery, she denies it, and he does not provide witnesses. Its conditions include an existing valid marriage, not an invalid one, and the accusation must be one that would warrant punishment if made against a non-wife, as she is the accused, fulfilling the conditions of chastity. Its core is testimonies confirmed by oaths and cursing. Its ruling is the prohibition of intercourse and enjoyment after mutual cursing, even before separation, based on the hadith: “The two who perform mutual cursing shall never reunite.” Its participants are those eligible to testify among Muslims, meaning both the accuser and the accused must be fit to testify, not having been punished for false accusation, not being non-Muslims, insane, slaves, or minors. This includes the immoral and the blind, as they are eligible to testify. If a man accuses his wife of adultery, either both are eligible to testify, or they are not. If they are not, the details are as in al-Durr al-Mukhtar and Radd al-Muhtar. If the husband is ineligible to testify due to slavery or disbelief (e.g., she converted to Islam, and he accused her before being offered Islam) and is eligible to make the accusation (i.e., sane, adult, and articulate), he is punished. The basis is that if mutual cursing is void due to his status, if the accusation is valid, he is punished; otherwise, there is neither punishment nor mutual cursing. If he is eligible to testify, but she is not, or if her accuser would not be punished, he faces no punishment, as if a stranger accused her, and there is no mutual cursing, as it is absent. However, he is disciplined to prevent such actions. If it is void due to both, such as both having been punished for false accusation, it is like the first case, as it is void due to his status, since he initiated it, and her status is not considered alongside his. This is supported by the hadith: “Four women have no mutual cursing with them: a Christian woman under a Muslim, a Jewish woman under a Muslim, a slave woman under a free man, and a free woman under a slave.” [Narrated by Ibn Majah and others] This was stated in Umdat al-Ri‘ayah. In al-Tafsir al-Ahmadiyya: If both are eligible to testify and the woman demands it, the man must perform mutual cursing. If he refuses, he is imprisoned until he performs it or retracts his claim, in which case he receives the punishment for false accusation. If he chooses to perform mutual cursing, he says four times: “By Allah, I am among the truthful in what I accused her of regarding adultery,” and the fifth time: “The curse of Allah be upon me if I am among the liars.” This is the man’s mutual cursing, which lifts the punishment for false accusation. After his mutual cursing, the woman must perform mutual cursing. If she refuses, she is imprisoned until she performs it or confirms her husband’s claim, in which case she receives the punishment for adultery. According to al-Shafi‘i, she receives the punishment for adultery by merely refusing mutual cursing. If she chooses to perform mutual cursing, she says four times: “By Allah, he is among the liars in what he accused me of regarding adultery,” and the fifth time: “The wrath of Allah be upon me if he is among the truthful.” This is the woman’s mutual cursing, which lifts the punishment for adultery. This is the meaning of the verse: “And it averts the punishment from her” [Qur’an 24:8]. At this point, both are equal in having the punishments lifted. In al-Bada’i‘: Scholars differed on the ruling of mutual cursing. Our three companions said it necessitates separation as long as they remain in the state of mutual cursing, but the separation does not occur by mutual cursing itself without the judge’s ruling, so the husband can still divorce, make zihar, or swear an oath of abstinence, and inheritance remains between them before separation. Zufar and al-Shafi‘i said it causes separation by mutual cursing itself, except that according to Zufar, separation does not occur unless both perform mutual cursing, while al-Shafi‘i said separation occurs by the husband’s mutual cursing before the wife’s. Al-Shafi‘i’s view is that separation pertains to the husband, as he is the cause of separation, so it does not depend on the wife’s action, like divorce. Zufar cited the narration from the Messenger of Allah (ﷺ): “The two who perform mutual cursing shall never reunite,” and their remaining married entails their reunion, which contradicts the text. The response is that it refers to after the judge’s separation, supported by what is in Abu Dawud’s Sunan: “The precedent for those who perform mutual cursing is that they are separated and never reunite.” The evidence that separation does not occur by mutual cursing itself is in Sahih al-Bukhari and elsewhere: After Uwaimir al-Ajlani performed mutual cursing, he said: “O Messenger of Allah, I have lied about her if I keep her,” and divorced her thrice. If separation had occurred by mutual cursing, the Messenger of Allah (ﷺ) would have objected to his pronouncing divorces, saying: “She is not your wife for you to divorce her.” His silence indicates she was still eligible for divorce, and separation had not yet occurred. In al-Inayah: If it is said that he objected by saying: “Go, you have no claim over her,” it is responded that this refers to his request to reclaim the dowry, as it is narrated that he said: “If you were truthful, it is for her for what you made lawful of her private parts, and if you lied, you have no claim over her.” In al-Bahr al-Ra’iq: As for al-Bayhaqi’s statement in al-Ma‘rifah that Uwaimir divorced her thrice, unaware that mutual cursing was separation, so it was like stipulating compensation in a loan, which is binding whether stipulated or not, unlike zihar, the response is that the inference is based on the lack of objection to him, not merely his action, as is clear. We also have the narration from Nafi‘ from Ibn Umar (may Allah be pleased with them): A man performed mutual cursing with his wife during the Prophet’s time (ﷺ) and disowned her child. The Prophet (ﷺ) separated them and attributed the child to the woman. From Ibn Abbas (may Allah be pleased with them): When the Prophet (ﷺ) performed mutual cursing between Asim ibn Adi and his wife, he separated them. It is narrated that the Messenger of Allah (ﷺ) performed mutual cursing between al-Ajlani and his wife, and when they finished, he separated them. These hadiths indicate that separation does not occur by the husband’s or wife’s mutual cursing, as if it had, the Prophet’s (ﷺ) separation after mutual cursing would not have been necessary. In al-Bada’i‘: Scholars also differed on it. Abu Hanifah and Muhammad said the separation in mutual cursing is by one irrevocable divorce, dissolving the marriage bond and establishing the prohibition of reunion and remarriage as long as they remain in the state of mutual cursing. If the husband retracts and is punished for false accusation, or the wife retracts by confirming him, marriage between them becomes permissible, and they can reunite. Abu Yusuf, Zufar, and al-Hasan ibn Ziyad said it is a separation without divorce, causing a permanent prohibition, like that of fosterage or affinity. They cited the Prophet’s (ﷺ) saying: “The two who perform mutual cursing shall never reunite,” which is explicit in this matter. For Abu Hanifah and Muhammad, it is narrated that when the Messenger of Allah (ﷺ) performed mutual cursing between Uwaimir al-Ajlani and his wife, Uwaimir said: “I have lied about her, O Messenger of Allah, if I keep her, she is divorced thrice.” In some narrations: “I have lied about her if I do not separate from her, she is divorced thrice.” Thus, the husband’s divorce after mutual cursing became the precedent for those who perform mutual cursing, as Uwaimir divorced his wife thrice after mutual cursing before the Messenger of Allah (ﷺ), who enforced it. Every person who performs mutual cursing must divorce, and if he refuses, the judge acts in his place to effect separation, making it a divorce, as in the case of impotence. The cause of this separation is the husband’s accusation, as it necessitates mutual cursing, which necessitates separation, which causes the dissolution. Thus, the separation, through these intermediaries, is attributed to the prior accusation. Every separation caused by the husband or his action is a divorce, as in the case of impotence, mutual agreement, or swearing abstinence, which is the view of the predecessors like Ibrahim, al-Hasan, Sa‘id ibn Jubayr, Qatadah, and others. The hadith cannot be taken literally, as we mentioned, because the literal meaning of “mutual cursers” is those engaged in the act. After completing mutual cursing, they are no longer mutual cursers literally. The intended meaning refers to the ruling, which is that the ruling of mutual cursing remains upon them. If the husband retracts and is punished for false accusation, the ruling of mutual cursing is nullified, so they are neither mutual cursers literally nor in ruling, making their reunion permissible. Thus, it is said in al-Hidayah: “They shall not reunite as long as they are mutual cursers.”

(3) His statement: “He divorced her thrice,” etc. Therefore, it is said in al-Bada’i‘ and al-Bahr al-Ra’iq: Every person who performs mutual cursing must divorce, and if he refuses, the judge acts in his place to effect separation, making it a divorce, as in the case of impotence.

(4) His statement: “Were it not for what has been decreed in the Book of Allah,” etc. Meaning, were it not for the Qur’an’s ruling against imposing punishment or reprimand on those who perform mutual cursing, I would have dealt with her. They said: The hadith indicates that the judge does not consider assumptions, signs, or indications but rules based on the apparent requirements of evidence and proofs. It is understood from their words that resemblance and physiognomy are not evidence but mere assumptions and indications, so no ruling is based on them, as is our view. This was stated in al-Luma‘at.

(5) His statement: “The testimony of one of them,” etc. Al-Shafi‘i said mutual cursing is an oath, while Abu Hanifah and his companions said it is testimony. They cited the verse: “The testimony of one of them shall be four testimonies by Allah” [Qur’an 24:6] and the Prophet’s (ﷺ) saying in this hadith: “Hilal came and testified, then she stood and testified.” [Narrated by Nayl al-Awtar, summarized]

(6) His statement: “You have no claim to it,” etc. Know that the dowry is obligated by the contract, either by specification if present, or by the legal ruling, such as the obligation of a comparable dowry if unspecified. The dowry is confirmed by one of three things: consummation, valid seclusion, or the death of either spouse. Consummation confirms the exchange, making the dowry definitive. Seclusion is legally equivalent to consummation, as it typically leads to it. Death ends the marriage, and a thing is confirmed and solidified upon its end. This is stated in al-Hidayah and al-Binayah. This clarifies that the dowry is not obligated by intercourse or death but by the contract itself, and it is confirmed by what was mentioned. In al-Bada’i‘: Once the dowry is confirmed by what was mentioned, it does not lapse thereafter, even if the separation is due to her, as the exchange, once confirmed, does not allow for lapse except by release. Thus, it is clear that the dowry does not lapse due to the wife’s disobedience, though her maintenance does. What is in some fatwas about the dowry lapsing due to disobedience is not relied upon. This was stated in Umdat al-Ri‘ayah.