Bukhari

Hadith Commentary:

If a husband sees his wife in the act of adultery with someone, it is possible that he would prefer to show this to others. On the other hand, in the Shariah, the rulings regarding adultery (zina) are as severe as its punishment, and establishing proof is equally stringent.

The prescribed punishment (hadd) for adultery can only be carried out when four upright witnesses testify in clear terms that they saw the man and woman in the very act of adultery with their own eyes.

If someone accuses another of adultery but cannot provide testimony according to Islamic law, then the punishment for such an accusation is also very severe.

Now, if an honorable husband sees his wife caught in this indecency, he faces a double calamity. He cannot be given enough time to bring four witnesses, nor can he tolerate the situation himself.

In such a case, if he accuses his wife of adultery, he becomes liable for the punishment of false accusation (qadhf). If he remains silent, that too is an act of indecency for him. And if he takes the law into his own hands and acts himself, then he must face the punishment for breaking the law.

A similar situation arose during the time of the Prophet sallallahu alayhi wa sallam.

The Noble Qur’an provided the solution that the husband should perform li’an (mutual cursing) with his wife in an Islamic court.

Li’an is that the husband stands in court and says, “I swear by Allah that I am truthful in the accusation of adultery I have made against my wife.” He should say these words four times, and the fifth time he should say, “May the curse of Allah be upon me if I am lying in this accusation.”

Now, if the woman denies her husband’s accusation, she will also be told to swear by Allah four times, saying, “Indeed, my husband is lying in this accusation of adultery.” And the fifth time she should say, “May the wrath of Allah be upon me if he is truthful.”

If she refutes her husband’s accusation in this manner, then the prescribed punishment for adultery will not be carried out upon her.

This is the method that the Noble Qur’an has prescribed.

After li’an, separation will occur between the husband and wife.

Hadith Commentary:
1.
If a person accuses a non-mahram woman of adultery, the decision will be based on witnesses. However, if he accuses his own wife, the decision will be in the form of li'an, the procedure of which is as follows:
First, the husband will swear by Allah four times in court or before a competent authority, declaring that he is truthful in accusing his wife of adultery, and on the fifth time he will say:
"If I am lying, then may the curse of Allah be upon me." Then, in response, the wife will swear by Allah four times, declaring that her husband is lying, and on the fifth time she will say:
"If my husband is truthful, then may the wrath of Allah descend upon me."
In this way, she will be saved from the punishment for adultery.
After this, there will be a permanent separation between the husband and wife, and they will never be able to live as husband and wife for the rest of their lives.
2.
During the swearing of oaths, the judge should continue to admonish both parties to fear Allah and speak the truth.
If the husband withdraws his claim, the punishment for false accusation (hadd al-qadhf) will be applied to him, and if, after the husband has sworn the oaths, the wife refrains from swearing, it is as if she has confessed to her crime.
In this case, she will be stoned to death (rajm).
After li'an, whether the man pronounces divorce or not, it makes no difference; the separation between the husband and wife becomes permanent and takes effect automatically.

Hadith Commentary:

The child resulting from li'an will not inherit from his father, because the father has denied being his son. However, he will certainly inherit from his mother, since the mother has not acknowledged that he is a child of adultery.

Hadith Commentary:
After li'an, the man cannot demand the return of the dower (mahr) or any other expenses from the woman. Likewise, during the waiting period ('iddah), the woman’s maintenance (nafaqah) or residence, etc., will not be the responsibility of the man.
The child that is born will be attributed to the mother.
He will not be attributed to the adulterer or the husband.
If, after childbirth, the woman is proven guilty based on circumstantial evidence, even then she will not be stoned, because the husband is denying the child. Therefore, the child of li'an will not inherit from the husband, but will inherit from the mother, because she has not admitted him to be a child of adultery (walad al-zina).
And Allah knows best.

Hadith Commentary:
After li'an, they cannot live together; rather, they are separated from each other forever.
This hadith is an evidence for those who say that if someone pronounces three divorces (talaq) at once, then all three take effect.
The Ahl al-Hadith respond that 'Uwaymir radi Allahu anhu did this out of ignorance, because he did not know that li'an itself causes separation between a man and a woman. And the Messenger of Allah sallallahu alayhi wa sallam did not object to this because that woman was no longer his wife; so even if he had given a thousand divorces, they would have been meaningless.
Yes, if li'an had not taken place, then the Prophet sallallahu alayhi wa sallam would certainly have objected to it and would have said that only one divorce has taken effect, as is narrated by Mahmud ibn Labid.
He reported to the Messenger of Allah sallallahu alayhi wa sallam that a man had given his wife three divorces at once.
The Prophet sallallahu alayhi wa sallam became angry and said, "Are you playing with the Book of Allah while I am still among you?"
This has been narrated by al-Nasa'i, and its narrators are trustworthy.

Hadith Commentary:
(1)
Imam Bukhari rahimahullah has established from this hadith that three divorces (talaq) can be given at once, but whether all three will be effected or only one—nothing is proven from this hadith. According to our inclination, ‘Uwaymir radi Allahu anhu did this act in a state of emotion. Perhaps he did not know that by performing li‘an (mutual cursing), separation between husband and wife already takes place. The Messenger of Allah sallallahu alayhi wa sallam did not object to this because, after li‘an, that woman was no longer his wife; therefore, even if he were to give a thousand divorces, let alone three, it would be useless and ineffective. Yes, if li‘an had not occurred, then the Prophet sallallahu alayhi wa sallam would certainly have objected, as is mentioned in the hadith. It is narrated from Mahmud ibn Labid radi Allahu anhu that a man gave his wife three divorces at once in the presence of the Messenger of Allah sallallahu alayhi wa sallam, so he became very angry and said in anger:
“In my presence, you people have begun to play with the Book of Allah.”
Upon seeing his anger, a man said:
O Messenger of Allah! Allow me, I will kill him.
(Sunan an-Nasa’i, At-Talaq, Hadith: 3430)
(2)
Those scholars who derive from this hadith the ruling that all three divorces take effect when given at once—their position is extremely questionable.
And Allah knows best.

Hadith Commentary:
The translation of the chapter is derived from this, that the Messenger of Allah (sallallahu alayhi wa sallam) disliked such questions.

Hadith Commentary:
➊
A similar incident occurred with Hazrat Hilal bin Umayyah radi Allahu anhu when he accused his wife of adultery with Shareek bin Sahma.
The Messenger of Allah sallallahu alayhi wa sallam said to Hazrat Hilal radi Allahu anhu:
“Bring witnesses, otherwise the punishment of false accusation (qadhf) will be imposed on your back.”
Eventually, mutual imprecation (li‘an) took place between them.
The details of li‘an are mentioned in Surah An-Nur, verses 6 to 9.

➋
After li‘an, whether the man pronounces divorce or not, it makes no difference; separation is effected automatically and permanently.
The man cannot demand the return of the dower (mahr) or any other expenses from his wife.
After li‘an, during the waiting period (‘iddah), the woman’s maintenance (nafaqah) or residence, etc., are not the responsibility of the man.
Any child born will be attributed to the mother, and she alone will be the heir.
Thus, the Messenger of Allah sallallahu alayhi wa sallam disliked such types of issues and questions.
For this reason, Imam Bukhari rahimahullah has mentioned it.
And Allah knows best.

Hadith Commentary:
(1)
There is a difference of opinion among the scholars regarding this issue: when a husband and wife have completed the process of li‘an (mutual cursing), does separation occur merely through li‘an itself, or does the separation take place after the ruler (hakim) issues a verdict following li‘an, or does separation only occur if the husband pronounces divorce (talaq)?

Imam Malik and Imam Shafi‘i rahimahullah say that li‘an alone is sufficient to cause separation between them, whereas Imam Thawri and Imam Abu Hanifah rahimahullah say that separation between husband and wife does not occur until the ruler (hakim) makes a decision. In this regard, the position of ‘Uthman al-Batti is that separation does not occur until the husband himself separates from her, because there is no mention of separation in the Noble Qur’an, and according to the apparent meaning of the hadith, it was the husband who divorced her and thus freed her.
(Fath al-Bari: 9/553)
In contrast to this extreme, the other extreme is that separation occurs merely by the act of qadhf (accusation of adultery), even if li‘an does not take place.

According to our preferred view, when both husband and wife have completed li‘an, separation occurs automatically, even if the ruler does not issue a verdict, because after li‘an, that woman becomes permanently unlawful (haram) for that husband. Therefore, even if they wish to remain together, under no circumstances can they do so.

(2)
Although the hadith mentions the husband pronouncing divorce, in this matter the Messenger of Allah sallallahu alayhi wa sallam did not command him to do so, as is explicitly stated in the hadith. However, the Messenger of Allah sallallahu alayhi wa sallam remained silent because separation had already occurred, whether or not divorce was pronounced.

This man, overcome by emotion, was pronouncing divorce and expressing feelings of aversion, so the Prophet sallallahu alayhi wa sallam remained silent, as such a woman is indeed worthy of aversion.

And Allah knows best.

Hadith Commentary:
From this hadith, the validity of the science of physiognomy (qiyafah) is established.
However, we say that the Prophet (sallallahu alayhi wa sallam) was informed of matters of physiognomy through divine inspiration, and whatever was conveyed to him in this regard was in reality true.
Other people, on the basis of this science, cannot issue any definitive ruling.
Imam Shafi’i (rahimahullah) also considered the science of physiognomy to be valid, yet this knowledge is not certain but rather speculative (zanni).
Wahrah (a poisonous creature resembling a lizard, or a short-statured woman, or a camel is likened to it).

Hadith Commentary:
(1)
From this hadith, it is understood that major matters should be decided in the large mosques so that people become aware of their importance. Therefore, in Madinah Tayyibah, such matters should be attended to near the pulpit of the Messenger of Allah (sallallahu alayhi wa sallam), in Makkah Mukarramah between the Black Stone (Hajar al-Aswad) and the Station of Ibrahim (Maqam Ibrahim), in Masjid al-Quds near the Rock (Sakhrah), and similarly in other places, this should be arranged in the major mosques of the city. Likewise, the matter of li'an (mutual cursing) should be settled after the Asr prayer, because at this time, taking a false oath is a very dangerous and difficult matter.

Imam Shafi'i (rahimahullah) states that li'an should take place in the mosque; however, if the woman is menstruating (ha'id), then it should be arranged at the door of the mosque, because it is not permissible for a menstruating woman to stay in the mosque.
('Umdat al-Qari: 324/14) (2)
Imam Bukhari (rahimahullah), through this chapter heading and the presented hadith, has refuted the Hanafi scholars, because according to them, it is not necessary for li'an to take place in the mosque; rather, it is subject to the discretion of the ruling authority, who may arrange it wherever he wishes.
(Fath al-Bari: 560/9)

Hadith Commentary:
Vocabulary of the Hadith:
Li‘an:
The meaning of mula‘ana and tala‘un is for the husband and wife to invoke curses upon each other, and in the legal (shar‘i) sense, it means that a man accuses his wife of adultery, but he does not have four witnesses. So he goes to the legal judge (qadi), who then summons both of them and gives them advice and admonition. If both insist on their respective claims, then he takes testimonies from them, beginning with the man. He says four times, “I call Allah Almighty to witness that she has committed adultery with such-and-such man, and I am truthful in this claim,” and the fifth time he says, “If I am lying in this matter, then may the curse of Allah be upon me.” After this, the woman will say four times separately, “I call Allah to witness that my husband is lying in accusing me,” and the fifth time she will say, “If my husband is truthful in this accusation, then may the wrath of Allah descend upon me.” Through li‘an, the woman becomes separated from her husband, and now there remains no possibility of marriage between them under any circumstance. If the woman is pregnant, the child will be attributed to the woman, will not inherit from the father, nor be attributed to him. And since the testimony begins with the man and his position is stronger, he is the one who initiates li‘an and in his fifth testimony invokes a curse upon himself, therefore, this testimony is called li‘an. The first incident of li‘an occurred in Sha‘ban, 10 AH. According to the Hanafi Imams, li‘an is the name of those testimonies which are confirmed by an oath in the name of Allah and in which there is a curse. According to the three Imams—Malik, Shafi‘i, and Ahmad—it is the name of those oaths which are confirmed by the word “testimony.” Therefore, due to the eligibility of oath, li‘an can occur between a Muslim and his non-Muslim wife, and between a non-Muslim husband and wife. However, according to the Hanafis, eligibility for testimony is necessary for this, and this eligibility is found in a Muslim, adult, sane person, and according to them, one upon whom the punishment of qadhf (false accusation of adultery) has not been carried out. Therefore, li‘an can only take place between a Muslim husband and wife, provided the aforementioned conditions are present.

Benefits and Issues:
➊
Hazrat ‘Asim bin ‘Adi radi Allahu anhu was the paternal cousin of Hazrat ‘Uwaymir radi Allahu anhu’s father and was the chief of the ‘Ajlan tribe, and ‘Uwaymir’s wife was either the daughter or niece of Hazrat ‘Asim radi Allahu anhu. Therefore, ‘Uwaymir radi Allahu anhu chose him to ask the question.
➋
The Messenger of Allah sallallahu alayhi wa sallam disliked this question because he thought that such an incident had not occurred, so this question was unnecessary and out of place, and without reason it would expose the honor of a Muslim man and woman and create an opportunity for the spread of indecency. However, a question about an actual incident that has occurred, and not merely out of affectation or hair-splitting, should be asked. Therefore, you would graciously answer such questions without affectation. Thus, when ‘Uwaymir radi Allahu anhu informed the Prophet sallallahu alayhi wa sallam that he himself was faced with this situation, these verses were revealed, and this incident had also occurred with Hilal bin Umayyah radi Allahu anhu, so he too asked the Prophet sallallahu alayhi wa sallam, as will be mentioned ahead. After this, these verses were revealed, so when ‘Uwaymir radi Allahu anhu came again, the verses had already been revealed. Therefore, these verses apply to both incidents because they are similar, so it is correct to consider both as the reason for revelation (sabab al-nuzul).
➌
Hazrat ‘Uwaymir radi Allahu anhu thought that li‘an causes separation between husband and wife, so in order to effect separation, he gave his wife three divorces. The Prophet sallallahu alayhi wa sallam did not object to this because it was unnecessary. Therefore, the statement of some that separation does not occur through li‘an until the husband gives divorce is not correct; li‘an itself is the cause of separation.
➍
This incident of li‘an took place in the Prophet’s Mosque (Masjid al-Nabawi) on a Friday after ‘Asr (afternoon) prayer.

Benefits and Issues:
The divorce given by Hazrat Uwaymir radi Allahu anhu was due to jealousy and anger, not on account of the command of the Messenger of Allah sallallahu alayhi wa sallam.
(The clarification of this issue is coming ahead in the benefit of Hadith number 2250.)

Benefits and Issues:
The separation between the spouses was on the basis of annulment (fasakh), not on the basis of divorce (talaq), because this was not a divorce by the command of the Messenger of Allah (sallallahu alayhi wa sallam), as has been mentioned previously.
And the meaning of separation (tafriq) here is that the Messenger of Allah (sallallahu alayhi wa sallam) explained the ruling of li'an, that after it, both husband and wife cannot remain together.
There is a permanent separation (tafriq) between them.

(1) If a husband sees his wife in the act of adultery but there is no other witness present at the scene, the Shariah has granted a concession for the husband; otherwise, an ordinary person cannot disclose such a matter in this situation. He would have to remain silent, but the husband is permitted to present himself in court. The court will also summon the woman and will have both of them take oaths. If either of them refuses to take the oaths, that person will be punished: the man for slander and the woman for adultery. If both take the oaths, the court will annul their marriage and will not say anything further to either of them. The detailed procedure of li'an (mutual cursing) is coming ahead. (For further details, see Hadith: 3431)

(2) One should avoid asking irrelevant questions. Such issues can be discouraged.

(3) Although some matters are repugnant, it is permissible for a person afflicted by them to ask about them and seek a solution.

(4) Mentioning someone's blameworthy traits due to an unavoidable legal necessity does not fall under the category of backbiting.

(1) "You will kill him" because enforcing the prescribed punishment (hadd) is the responsibility of the government. No individual can enforce the hadd on their own; therefore, if someone, in a fit of rage, kills a man lying with his wife, and he cannot present witnesses, then he will be killed in retribution (qisas). Otherwise, it would become an excuse for people to commit murder. However, in the Hereafter, Allah, the Exalted, will deal with him according to His knowledge—that is, if the slain person had indeed committed the crime of adultery (zina) and was married, then the killer will be forgiven; otherwise, he will be punished.

(2) "He disliked it" because he (the Prophet, sallallahu alayhi wa sallam) thought that these were hypothetical questions and that no such incident had actually occurred. And asking hypothetical questions is a reprehensible act. Allah, the Exalted, of course knew that this incident had in fact taken place, and so Allah revealed (wahy) regarding it.

(3) In sha Allah, the details of li'an (mutual cursing) will come later.

(4) "He gave three divorces (talaq)" and the Messenger of Allah (sallallahu alayhi wa sallam) did not prohibit him from doing so. Apparently, from this narration, it seems that giving three divorces at once is not permissible. As for the issue that 'Uwaymir gave three divorces, his action was due to ignorance; after li'an, there was no need for it. Therefore, from this incident, the permissibility of giving three divorces at once is not established.

Hadith Authentication:
[الموطأ رواية يحييٰ بن يحييٰ 566/2، 567 ح 1232، ك 29 ب 13، ح 34، التمهيد 183/6 - 185، الاستذكار : 1152 ● أخرجه البخاري 5259، ومسلم 1492، من حديث مالك به]
Jurisprudential Explanation:
➊ "In the Shariah, li'an is that the husband swears four times that he is truthful in attributing adultery (zina) to his wife, that is, in accusing her of adultery, and the fifth oath is that he says: if he is lying in his claim, then he is deserving of Allah's curse. Then the wife swears four times that her husband is lying, and her fifth oath is that if he is truthful, then she (the wife) is deserving of Allah's wrath. Upon saying this, she will be acquitted from the prescribed punishment (hadd) for adultery (zina)." [القاموس الوحيد ص 1478]
➋ The ruling of li'an was revealed in the Noble Qur'an in Surah an-Nur. See: [آيت: 6، 7]
➌ It is clearly understood from this hadith that after li'an, separation between husband and wife does not occur automatically; rather, separation occurs after divorce. Imam al-Bukhari rahimahullah says: «باب اللعان و من طلق بعد اللعان» The chapter of li'an and the one who gives divorce after li'an. [كتاب الطلاق باب : 29 قبل ح 5308]
➍ One should not feel shy in asking about an issue that has actually occurred, and one should always avoid asking about hypothetical (non-occurring) issues.
➎ After li'an, without legal (shar'i) proof, the prescribed punishment (hadd) will not be carried out on either party.

Takhrij:
«أخرجه البخاري، الطلاق، باب اللعان، حديث:5308، ومسلم، اللعان، حديث:1492.»©Explanation:
This man gave his wife, with whom he had performed li'an, three divorces (talaq) because he was unaware that li'an itself is a cause of permanent separation. Thus, he intended to make his wife unlawful for himself through divorce; therefore, the divorce was invalid (laghw), because the divorce did not occur in its proper context.

If we say that separation occurs merely through li'an, then this is clear. And if we say that separation occurs through the authority of the ruler (and the court), then it is an established matter that after li'an, there remains no possibility for the marriage to continue, nor any way for it to be permanent. Rather, it is obligatory to terminate this marriage and to declare the woman permanently unlawful for this man. Thus, it is proven that the three divorces were merely to emphasize the purpose of li'an. Therefore, in such a marriage, which is intended to be terminated permanently, issuing three divorces at once does not necessitate that it is also correct and permissible to do so in a marriage where continuity and permanence are desired. Hence, the argument of those who say that this hadith contains the permissibility and occurrence of issuing three divorces at once is invalid.

And when this divorce was given out of honor and protective jealousy (ghayrah), while expressing such feelings in this situation is also desirable and praiseworthy, the Prophet sallallahu alayhi wa sallam sufficed by saying, to inform him of the invalidity of this divorce, "Lā sabīla laka ‘alayhā" ("You have no right over her"), as is found in Muslim (1493).

This meant that now you have no right remaining over this woman; therefore, your divorce will not take effect but will be considered invalid (laghw). For this reason, the Prophet sallallahu alayhi wa sallam was not angry or displeased with him, as he was with the person whose story was narrated by Mahmud ibn Labid, which has already been mentioned in the chapter of divorce (under hadith: 918).