Chapter on Istibra’ (Ascertainment of a Clear Womb)

(1) The statement: He said regarding the captives of Awtas, etc.: This indicates that acquiring ownership of a slave woman necessitates istibra’. The four Imams held this view based on this Hadith, which establishes the obligation of istibra’ on the master and indicates the reason for it in captives, which is acquiring ownership and possession, as this is the context of the text. The wisdom behind istibra’ is to ascertain the womb’s clearance to protect honorable lineages from mixing and genealogies from confusion. This protection is needed when there is actual or potential occupation by honorable seed, meaning a child with established lineage. Istibra’ is obligatory on the buyer, not the seller, as the true reason is the intention to approach, which the buyer has, not the seller. Thus, it is obligatory on him, though intention is an internal matter, so the ruling is based on its indicator, which is the ability to approach. This ability is established by ownership and possession, making it the cause, and the ruling is applied to it for ease. Thus, the cause for a captive is acquiring ownership of her person, confirmed by possession. The ruling extends to all forms of ownership, such as purchase, gift, bequest, inheritance, khul’, kitaba, and others. Istibra’ is also obligatory on the buyer from a minor’s wealth, a woman, a slave, or someone for whom approaching her is not permissible. Similarly, if the purchased woman is a virgin who has not been approached, as the cause—acquiring ownership and possession—is fulfilled. Rulings are based on causes, not their wisdom, which here is ascertaining the womb’s clearance. The cause is considered when there is actual or potential occupation by seed. A menstrual cycle during which she was purchased, or one she experienced after purchase or other forms of ownership before possession, or one after possession, does not suffice, contrary to Abu Yusuf, as the cause is acquiring ownership and possession, and the ruling does not precede the cause. Similarly, istibra’ before approval in a fuduli sale, even if the slave woman is in the buyer’s possession, or after possession in an invalid sale before a valid purchase, does not suffice, as stated, due to the lack of fulfillment of the cause. [Taken from Al-Hidayah and its commentaries] It is stated in Ad-Durr Al-Mukhtar: Whoever acquires the right to enjoy a slave woman through any form of ownership, such as purchase, inheritance, captivity, payment for a crime, or rescission of a sale after possession, etc., and it is restricted to enjoyment to exclude purchasing a wife, even if a virgin, or purchased from a slave or woman, even if he is a mukatab, authorized, or indebted slave, otherwise there is no istibra’. Or from her mahram, other than her womb, so she does not become free upon him, or from a minor’s wealth, even an infant, it is forbidden to approach her, as are its preliminaries, as is most correct, due to the possibility of her falling into another’s ownership if she appears pregnant, until she undergoes istibra’ with one menstrual cycle for those who menstruate, or one month for those who observe by months, such as young girls, postmenopausal women, or those whose menstruation has ceased. If she menstruates during it, the istibra’ by days is invalidated. If her menstruation ceases, becoming prolonged in purity, and she is one who menstruates, she undergoes istibra’ for two months and five days according to Muhammad, and this is the fatwa. For a woman with istihada, he leaves her for ten days from the start of the month. [Barjandi and others, so let it be noted] And with delivery for a pregnant woman. It is stated in Tansiq An-Nizam, in summary: Istibra’ linguistically means seeking clearance and purity, and in Shariah, it is seeking the clearance of a slave woman’s womb from pregnancy. Whoever acquires a slave woman through purchase, gift, bequest, or inheritance, it is forbidden to approach her or engage in its preliminaries until she undergoes istibra’ with one menstrual cycle, one month, or delivery.

(2) The statement: They said: She undergoes istibra’, even if a virgin: The majority agreed on istibra’ for a virgin due to the generality of the Hadith about the captives of Awtas and this report. Similarly, istibra’ for a non-menstruating woman is one month, not months.

(1) The statement: To water the crop of another, etc.: It is stated in Tansiq An-Nizam: Istibra’ in our view applies to a purchased pregnant woman, a pregnant woman from zina, and captive women whose marriages to their non-Muslim husbands were annulled due to Islam or migration, becoming those whom our right hands possess, not to a married pregnant woman, as it is permissible to approach her. Similarly, it is permissible to approach a pregnant woman from zina if the husband is the one who committed zina with her before marriage. Nor does it apply to a Muslim migrant non-Muslim woman who is pregnant, as her marriage is not permissible until she delivers, let alone approaching her, as their marriages among themselves are valid in our view, and her waiting period is delivery. The basis for the prohibition of approaching is the statement that one’s water should not water another’s crop.