صحيح البخاري
Bukhari
كتاب الطلاقThe Book of Divorce
بَابُ حُكْمِ الْمَفْقُودِ فِي أَهْلِهِ وَمَالِهِ:Chapter. What are the regulations concerning the property and family of a lost person?
Hadith 5291
اُردوEn
وَقَالَ ابْنُ الْمُسَيَّبِ : " إِذَا فُقِدَ فِي الصَّفِّ عِنْدَ الْقِتَالِ تَرَبَّصُ امْرَأَتُهُ سَنَةً وَاشْتَرَى ابْنُ مَسْعُودٍ جَارِيَةً وَالْتَمَسَ صَاحِبَهَا سَنَةً ، فَلَمْ يَجِدْهُ وَفُقِدَ ، فَأَخَذَ يُعْطِي الدِّرْهَمَ وَالدِّرْهَمَيْنِ ، وَقَالَ : اللَّهُمَّ عَنْ فُلَانٍ فَإِنْ أَتَى فُلَانٌ فَلِي وَعَلَيَّ ، وَقَالَ : هَكَذَا فَافْعَلُوا بِاللُّقَطَةِ ، وَقَالَ ابْنُ عَبَّاسٍ نَحْوَهُ ، وَقَالَ الزُّهْرِيُّ فِي الْأَسِيرِ : يُعْلَمُ مَكَانُهُ لَا تَتَزَوَّجُ امْرَأَتُهُ وَلَا يُقْسَمُ مَالُهُ ، فَإِذَا انْقَطَعَ خَبَرُهُ فَسُنَّتُهُ سُنَّةُ الْمَفْقُودِ " .
And Ibn al-Musayyib said: When, at the time of battle, a person is lost from the ranks, his wife should wait for him for one year (and then, after that, if she wishes, she may marry another). ‘Abdullah ibn Mas‘ud (may Allah be pleased with him) bought a slave-girl from someone (the original owner went away somewhere without taking the price and got lost), so he searched for her first owner for a year. Then, when he could not find him, he began to give one or two dirhams at a time (from the price of the slave-girl) to the poor, and he prayed: O Allah! This is on behalf of so-and-so (who was her first owner and who got lost without taking the price). Then, if he (after coming back) rejects this charity (and demands the price), its reward will be for me, and the payment of the slave-girl’s price will be obligatory upon me. Ibn Mas‘ud (may Allah be pleased with him) said: In the same way, you should do with luqatah — that is, a thing found lying on the road. Al-Zuhri said about such a captive whose place of residence is known: His wife should not marry another, nor should his wealth be distributed. Then, if news of him ceases, his case becomes like that of one whose whereabouts are unknown.
وَقَالَ لِي إِسْمَاعِيلُ حَدَّثَنِي مَالِكٌ عَنْ نَافِعٍ عَنِ ابْنِ عُمَرَ إِذَا مَضَتْ أَرْبَعَةُ أَشْهُرٍ يُوقَفُ حَتَّى يُطَلِّقَ، وَلاَ يَقَعُ عَلَيْهِ الطَّلاَقُ حَتَّى يُطَلِّقَ. وَيُذْكَرُ ذَلِكَ عَنْ عُثْمَانَ وَعَلِيٍّ وَأَبِي الدَّرْدَاءِ وَعَائِشَةَ وَاثْنَيْ عَشَرَ رَجُلاً مِنْ أَصْحَابِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ.
Ibn `Umar added: "When the period of four months has expired, the husband should be put in prison so that he should divorce his wife, but the divorce does not occur unless the husband himself declares it. This has been mentioned by `Uthman, `Ali, Abu Ad-Darda, `Aisha and twelve other companions of the Prophet ."
Explanation & Benefits
Shaykh Abdul Sattar al-Hammad
Hadith Commentary:
(1)
There is a difference of opinion among the scholars regarding whether, after the completion of four months following an oath of abstention (ila’), the woman is automatically divorced or whether the husband must pronounce divorce to release her. The scholars of Kufa hold the view that after the four-month period of ila’ has passed, the woman is automatically divorced and there is no need to pronounce divorce. However, other scholars say that after the four-month period of ila’ has passed, the husband has the choice either to reconcile or to pronounce divorce. Without the husband pronouncing divorce, the woman does not become divorced, because the Qur’an states:
“If they resolve on divorce, then Allah is All-Hearing, All-Knowing.” ( al-Baqarah: 227)
The resolve to divorce is one thing, and the actual pronouncement of divorce is another.
(2)
In any case, the inclination of Imam Bukhari rahimahullah is that after the four-month period of ila’ has passed, if the husband pronounces divorce, then the woman is released; otherwise, she does not become divorced. If he neither reconciles nor pronounces divorce, then recourse should be sought through the judiciary.
And Allah knows best.
(1)
There is a difference of opinion among the scholars regarding whether, after the completion of four months following an oath of abstention (ila’), the woman is automatically divorced or whether the husband must pronounce divorce to release her. The scholars of Kufa hold the view that after the four-month period of ila’ has passed, the woman is automatically divorced and there is no need to pronounce divorce. However, other scholars say that after the four-month period of ila’ has passed, the husband has the choice either to reconcile or to pronounce divorce. Without the husband pronouncing divorce, the woman does not become divorced, because the Qur’an states:
“If they resolve on divorce, then Allah is All-Hearing, All-Knowing.” ( al-Baqarah: 227)
The resolve to divorce is one thing, and the actual pronouncement of divorce is another.
(2)
In any case, the inclination of Imam Bukhari rahimahullah is that after the four-month period of ila’ has passed, if the husband pronounces divorce, then the woman is released; otherwise, she does not become divorced. If he neither reconciles nor pronounces divorce, then recourse should be sought through the judiciary.
And Allah knows best.
Source: Hidayat al-Qari: Commentary on Sahih Bukhari, Urdu, Page: 5291
