Hadith 3395

(1) The statement: And for divorced women—This verse clarifies the maintenance of divorced women, as provision refers to maintenance, which is the preferred view of the author of Al-Madarak. The meaning of the verse is that a divorced woman is entitled to maintenance from her husband as long as she is observing her waiting period, whether the divorce is revocable, irrevocable, or otherwise. This verse’s ruling remains in effect and is not abrogated by consensus. There is a difference of opinion regarding the irrevocably divorced woman, which will be discussed in this chapter, God willing. This is derived from At-Tafsir Al-Ahmadiyya.

(2) The statement: Do not expel them—This means it is not permissible to expel a divorced woman observing her waiting period from her husband’s house, nor for her to leave. Do not expel them means, O husbands, do not remove them from their homes at the time of separation until their waiting period ends. Nor should they leave [At-Talaq: 1] means they should not leave voluntarily except if they commit a clear immorality [At-Talaq: 1], i.e., an evident sinful act that warrants a prescribed punishment, such as adultery or theft, in which case they may be expelled for that reason, or if she harms the household with obscenity or immorality, it is permissible to expel her as she is considered rebellious (nashiz). This exception applies to both forms of expulsion. In summary, the verse proves her right to housing and her obligation to remain in the place of separation. This is summarized from At-Tafsir Al-Ahmadiyya.

(3) The statement: House them—This clarifies that providing housing is obligatory for a divorced woman observing her waiting period. House them means, O men, provide them a place where you dwell [At-Talaq: 6], i.e., a place from your residence according to your means [At-Talaq: 6], i.e., within your capacity. And do not harm them [At-Talaq: 6] in housing or maintenance to oppress them in their livelihood and force them to leave. The first phrase indicates partial provision, and the second clarifies it, as stated by the authors of Al-Kashshaf and Al-Madarak. Fakhr Al-Islam mentioned in Aqsam As-Sunnah that it means: Spend on them according to your means, indicating both housing and maintenance. This is from At-Tafsir Al-Ahmadiyya.

(4) The statement: Menstrual periods—There is disagreement regarding the menstrual periods mentioned in the verse, whether they refer to periods of purity or menstruation. The apparent meaning of the Prophet’s (ﷺ) saying: She observes her waiting period with three menstruations, and his saying: She remains during her menstrual periods, and his saying: Her waiting period is two menstruations, and the narrations mentioned in the book, indicate that the menstrual periods are menstruations. This is the view of Abu Hanifah. This is derived from Nayl Al-Awtar.

(2) The statement: She is entitled to housing and maintenance—Scholars differed regarding whether an irrevocably divorced non-pregnant woman is entitled to maintenance and housing. Umar ibn Al-Khattab, Abu Hanifah, and others said: Maintenance and housing are obligatory for a woman observing her waiting period due to divorce, whether revocable or irrevocable, pregnant or not, and whether divorced once or thrice, as long as she is in the waiting period. Ibn Abbas, Ahmad, and others said: A non-pregnant irrevocably divorced woman has no right to housing or maintenance. Malik, Shafi’i, and others said: She is entitled to housing but not maintenance. In summary, if a woman is observing her waiting period from a valid marriage due to divorce, if the divorce is revocable, she is entitled to maintenance and housing without dispute, as the marriage remains intact, and her state after divorce is like before it. If the divorce is three times or irrevocable, she is entitled to maintenance and housing if pregnant, by consensus, based on His saying: And if they are pregnant, then spend on them until they give birth [At-Talaq: 6]. If she is non-pregnant, she is entitled to maintenance and housing according to our scholars. Shafi’i said: She is entitled to housing but not maintenance. Ahmad said: Neither maintenance nor housing. They argued with His saying: And if they are pregnant, then spend on them until they give birth [At-Talaq: 6], specifying spending for the pregnant, so if spending were obligatory for the non-pregnant, the specification would be void. It is narrated from Fatimah bint Qais that she said: My husband divorced me thrice, and the Prophet (ﷺ) did not grant me maintenance or housing, as maintenance is due to ownership, which ceases with three divorces or irrevocable divorce. Shafi’i said: The obligation of housing for the pregnant is known by text, unlike the irrevocably divorced. Our evidence is His saying: House them where you dwell, according to your means [At-Talaq: 6], and in the recitation of Abdullah ibn Mas’ud: House them where you dwell and spend on them according to your means. There is no difference between the recitations, but one explains the other, like His saying: And the male thief and the female thief, cut off their hands [Al-Ma’idah: 38], and Ibn Mas’ud’s recitation: Their right hands, which is not a difference in recitation but an explanation of the apparent recitation. Similarly, the command to provide housing implies spending, as if she is confined and prohibited from leaving, she cannot earn maintenance. If her maintenance were not on the husband and she had no wealth, she would perish or face hardship, which is impermissible. His saying: And for divorced women is a provision according to what is acceptable [Al-Baqarah: 241], and His saying: And do not harm them [At-Talaq: 6], and His saying: Let the man of means spend according to his means, and the one whose provision is restricted, let him spend from what Allah has given him [At-Talaq: 7], without distinguishing between before and after divorce during the waiting period. Maintenance was obligatory before divorce because she was confined from leaving and appearing due to the husband’s right. This confinement persists after divorce during the waiting period, reinforced by the right of the Shariah, as before divorce, the confinement was the husband’s right for exclusivity, but after divorce, it is attached to the Shariah’s right, so she is not permitted to leave even if the husband allows it. Since maintenance was obligatory due to confinement before its reinforcement, it is more fittingly obligatory after reinforcement. The verse commands spending on the pregnant, which neither negates nor mandates spending on the non-pregnant, leaving it silent and dependent on evidence, and the evidence for obligation is what we mentioned. As for Fatimah bint Qais’s hadith, Umar rejected it, as it is narrated that when she narrated that the Messenger of Allah (ﷺ) did not grant her housing or maintenance, Umar said: We will not abandon the Book of our Lord or the Sunnah of our Prophet for the saying of a woman, whether she spoke the truth or lied. In some narrations: We will not abandon the Book of our Lord and the Sunnah of our Prophet or take the saying of a woman who forgot or was mistaken, as I heard the Messenger of Allah (ﷺ) say: She is entitled to housing and maintenance. Umar’s statement: We will not abandon the Book of our Lord may refer to His saying: House them where you dwell [At-Talaq: 7] and spend on them according to your means, following Ibn Mas’ud’s recitation. It may also refer to His saying: Let the man of means spend according to his means [At-Talaq: 7]. It may also mean, regarding housing specifically, His saying: House them where you dwell, according to your means [At-Talaq: 6], as it is recited, and by the Sunnah of our Prophet, what is narrated that he said: I heard the Messenger of Allah (ﷺ) say: She is entitled to housing and maintenance. It is possible that Umar had a recitation whose text was lifted but whose ruling remained, so by We will not abandon the Book of our Lord, he meant that verse, as narrated from him regarding adultery, that they used to recite in Surah Al-Ahzab: The elderly man and woman, if they commit adultery, stone them as a deterrent from Allah, and Allah is Mighty, Wise, then its recitation was lifted, but its ruling remained, as is the case here. It is narrated that her husband, Usamah ibn Zayd, when he heard her narrate that, threw whatever was in his hand at her. It is narrated from Aishah that she said to her: You have confused people with this hadith. The least degree of the companions’ rejection of a narrator’s hadith warrants questioning it. It has been said in its interpretation that she was harsh with her in-laws, so the Messenger of Allah (ﷺ) moved her to the house of Ibn Umm Maktum and did not grant her maintenance or housing because she became like a rebellious woman, as the reason for her leaving was from her. We say the same for a woman who leaves her husband’s house during her waiting period or causes a reason warranting expulsion: she is not entitled to maintenance as long as she is in a house other than her husband’s. It is also said that her husband was absent, so no ruling was made for maintenance or housing against him in his absence, as it is not permissible to rule against an absent person without a present opponent. If it is said: It is narrated that her husband went to Yemen and had appointed his brother, the response is: He appointed him for her divorce or to deliver maintenance, not for litigation. Abu Hanifah did not rely on or act upon Fatimah bint Qais’s hadith because it is questioned and not accepted for several reasons, including that the condition for accepting a single narrator’s report is the absence of criticism by the predecessors, lack of inconsistency, and no opposing report that must be prioritized. This hadith is contrary to all these conditions. As for the predecessors’ criticism, major companions criticized it, as we will mention, despite it not being their custom to criticize due to the narrator being a woman or a Bedouin. Umar said: We will not abandon the Book of our Lord or the Sunnah of our Prophet for the saying of a woman; we do not know if she remembered or forgot. She is entitled to housing and maintenance, as Allah, the Exalted, said: Do not expel them from their homes, nor should they leave, except if they commit a clear immorality [At-Talaq: 1]. He stated that the Sunnah of the Messenger of Allah (ﷺ) is that she is entitled to housing and maintenance. There is no doubt that a companion’s statement: It is from the Sunnah is elevated. How much more so when the speaker is Umar? In what At-Tahawi and Ad-Daraqutni narrated, there is the addition of his saying: I heard the Messenger of Allah (ﷺ) say: For a woman divorced three times, maintenance and housing. At most, her narration conflicts, so which narration should be prioritized? Sa’id ibn Mansur narrated: Mu’awiyah narrated from Al-A’mash, from Ibrahim, that Umar, when Fatimah’s hadith was mentioned, said: We will not alter our religion based on a woman’s testimony. This is evidence that the known religion was the obligation of maintenance and housing, so Fatimah’s hadith is considered an anomaly. A trustworthy narrator’s anomalous report is not accepted. This is clarified by what is in Muslim from Marwan’s saying: We will adhere to the protection we found people upon, and the people then were the companions, which is tantamount to reporting the companions’ consensus and describing it as protection. In the Sahihayn, from Urwah, he said to Aishah: Do you not see that so-and-so, daughter of Al-Hakam, was irrevocably divorced by her husband and left? She said: What a bad thing she did. I said: Have you not heard Fatimah’s saying? She said: There is no good in that or in mentioning it. This is the utmost rejection, as she completely negated the ruling. Aishah was the most knowledgeable about women’s affairs, as they would come to her house and seek her rulings, and this was frequent. In Sahih Al-Bukhari, from Aishah, she said to Fatimah: Do you not fear Allah? Meaning her saying: No housing or maintenance. The opposition and criticism have been clarified. As for the inconsistency, some narrations state: He divorced her while absent; others: He divorced her then traveled; others: She went to the Messenger of Allah (ﷺ) and asked him; others: Khalid ibn Al-Walid went with a group and asked; some narrations name the husband Abu Amr ibn Hafs; others: Abu Ja’far ibn Al-Mughirah. Inconsistency warrants weakening the hadith, as is known in hadith science. Those who rejected the hadith include Zayd ibn Thabit, Marwan ibn Al-Hakam, and among the successors, with Ibn Al-Musayyib, Shurayh, Ash-Sha’bi, Al-Hasan, Al-Aswad ibn Yazid, and after them, Ath-Thawri, Ahmad ibn Hanbal, and many who followed them. If it is said: He said to her: You have no maintenance or housing, we say: Firstly, we are not required to explain the excuse for what she narrated, but what we mentioned suffices, that it is anomalous, contrary to what people were upon and Umar’s narration, whether it is the same or not. However, addressing it is good to uphold the validity of her narration. We say: The lack of housing was for what was heard, and the lack of maintenance was because her husband was absent and left no wealth with anyone except the barley he sent her. She demanded from his family, as in Muslim, that he divorced her thrice then went to Yemen, and his family said: You have no maintenance. Thus, he said to her: You have no maintenance or housing, assuming its authenticity, because he left no wealth with anyone, and nothing is obligatory on his family, so you have no maintenance from anyone by necessity. She did not understand his intent and narrated the negation of maintenance absolutely, leading to people’s rejection of her. Additionally, Amir Al-Mu’minin Umar criticized the hadith regarding the narrator’s retention and accuracy, saying: She remembered or forgot, which is a sufficient example. As for our principles in criticizing, authenticating, weakening, and verifying, he is higher in our view than Ali ibn Al-Madini, Yahya ibn Sa’id, Yahya Al-Qattan, Abu Hatim, Al-Bukhari, and others. The narration also explicitly contradicts the Quran in His saying: House them where you dwell, according to your means [At-Talaq: 6] and Do not expel them from their homes, nor should they leave [At-Talaq: 1]. The Quran is definitive in its generality and specificity, as established in its principles, and a single narrator’s report does not specify it, as the definitive is not opposed by the probable. Additionally, what Ibrahim narrated from Umar, that he said: I heard the Prophet (ﷺ) say: She is entitled to housing and maintenance. Even if Ibrahim did not hear Umar, his mursal narrations are authentic and accepted, as narrated from Tahdhib At-Tahdhib from a group of scholars. This is derived from Al-Mabsut, Al-Bada’i, Fath Al-Qadir, and Tansiq An-Nizam.