Hadith 3429

(1) The statement: Whoever separates a mother from her child, etc.: It is stated in Fath Al-Qadir: This prohibition is tied to kinship with a prohibited degree for marriage, so it does not include a prohibited non-relative, like one related by fosterage or the father’s wife, nor a non-prohibited relative, like a cousin, nor spouses, as separating them is permissible, as it is contrary to analogy and restricted to its context, which is prohibited kinship, as in a mother and her child or siblings. If it is said: If so, separating an uncle from his niece or an aunt from her sister’s daughter should not be prohibited, as the text only mentions the mother and siblings. The response is: Prohibited kinship establishes a meaning by indication, which is the implied agreement in Shafi’i terminology, as the mother’s specificity is not considered, since the father is similar, so kinship by lineage is understood. Then the text of siblings came, clarifying that it is not restricted to lineage but extends to prohibited kinship, so it applies to the uncle and aunt by indication. The scholars hold that priority is not required for indication and implied agreement. It is stated in Al-Hidayah: Whoever owns two minor slaves, one of whom is a relative with a prohibited degree of kinship to the other, should not separate them, and the same applies if one is an adult. Ibn Al-Humam said: There remain eight issues where separation is permissible despite prohibited kinship, including the three mentioned by the author of Al-Hidayah, such as when separation is more rightful. Both must be in his ownership, as the text is contrary to analogy and restricted to its context, so if one minor belongs to him and the other to someone else, there is no issue with selling one, as ownership differs. [End quote, excerpted] The separation refers to separation by sale, gift, division of inheritance, spoils, or bequest. They differed on the age limit permitting separation. Ash-Shafi’i said: It is seven or eight years. Abu Hanifah’s companions said: Until puberty. [Taken from Al-Marqah] If he separates, it is disliked, but the contract is valid. There is disagreement about the validity of the sale. Ash-Shafi’i said: It is not valid. Abu Hanifah, and a view of Ash-Shafi’i, said: It is valid but disliked, and the dislike is prohibitive, as the command in "Return him, return him" indicates obligation, so the sale is prohibitively disliked. The sale’s components were fulfilled by competent parties in its subject, and the dislike is due to an adjacent factor, similar to the dislike of usury. In detail, as stated by Allamah Nuh in the marginal notes of Ad-Durar. There are two narrations from Abu Yusuf: one that the sale is not permissible for lineage kinship but permissible for other kinship, which is the most correct in Ash-Shafi’i’s madhhab; and another that it is not permissible for any, whether lineage or other kinship. If both are adults or spouses, there is no issue with separating them, as the text is contrary to analogy, so others are not included by indication. It is authentic that Al-Muqawqas Al-Qibti gifted him Mariyah and Sirin, who were sisters, and he separated them, taking Mariyah as a concubine and giving the other to Hassan. [Fath Al-Qadir, Fath Al-Mu’in, Sharh Al-Kanz by Al-Ayni, Nayl Al-Awtar, and Radd Al-Muhtar, excerpted from them]

(2) The statement: Between a brother and his brother: This explicitly indicates that separation is not restricted to lineage but includes every relative with a prohibited degree of kinship, as is our view. [Al-Marqah]

(3) The statement: The entire household: This is the second object, with the first omitted, meaning he gave one of us the household from the captives together and did not separate them. [Al-Luma’at]