Bukhari

Chapter of Sahih Bukhari Hadith No. 5327: «بَابُ الْمُطَلَّقَةِ إِذَا خُشِيَ عَلَيْهَا فِي مَسْكَنِ زَوْجِهَا أَنْ يُقْتَحَمَ عَلَيْهَا، أَوْ تَبْذُوَ عَلَى أَهْلِهَا بِفَاحِشَةٍ:»
Relevance between the Chapter and the Hadith:
Imam Bukhari rahimahullah, through the chapter heading (tarjamat al-bab), has shed light on several issues and has also alluded to many matters. Imam Bukhari rahimahullah has mentioned two reasons for the permissibility of a woman in her waiting period (‘iddah) to leave her house:
One, «الخوف عليها»—this includes every person from whom the woman fears harm, even if it is her own husband who divorced her.
The second reason, «الخوف منها»—the fear of the woman’s own sharp tongue.
However, in the hadith that Imam Bukhari rahimahullah has cited under the chapter heading, only the subsidiary reason is mentioned, while the second reason is not. Therefore, apparently, there seems to be no direct relevance between the chapter heading and the hadith. But Imam Bukhari rahimahullah, as per his habit, is alluding to other chains of the hadith where the agreement between the hadith and the chapter heading is explicit.

Thus, Allamah Qastallani rahimahullah says:
«وقال شارح التراجم ذكر فى الترجمة الخوف عليها، والخوف منها، والحديث يقتضي الاول، و قاس الثاني عليه، ويؤيد قول عائشة لها فى بعض الطرق ”أخرجك هذا اللسان“ فكان الزيادة لم تكن على شرطه، فضمنها للترجمة قياساً .» [ارشاد الساري : 101/12]
“That is, the commentators say that Imam Bukhari rahimahullah has alluded to both «الخوف اليها» and «الخوف منها» in the chapter heading, but the hadith only necessitates «الخوف اليها», and as for «الخوف منها» (that there was fear of Fatimah bint Qays’s sharp tongue), Imam Bukhari rahimahullah has made an analogy upon it, which is supported by the statement of A’ishah radi Allahu anha, which is narrated in some chains: ‘Your tongue has caused you to be sent out.’ Thus, this addition to the hadith is based on Imam Bukhari rahimahullah’s criteria, so he included it in the chapter heading by way of analogy.”

It is thus clear that two things have been reported regarding Fatimah bint Qays radi Allahu anha: one, that her house was deserted, and there was a danger of someone entering that house. Imam Abu Dawud rahimahullah has mentioned this explicitly, and Imam Bukhari rahimahullah has mentioned it in a suspended (mu’allaq) form. In reality, Imam Bukhari rahimahullah, through the chapter heading, wants to draw attention to a severe difference of opinion. In the narrations where the disagreement between Sayyiduna ‘Umar radi Allahu anhu and Umm al-Mu’minin A’ishah radi Allahu anha regarding maintenance (nafaqah) and residence (sukna) for a woman given an irrevocable divorce (bainah) is mentioned, Imam Bukhari rahimahullah is subtly indicating which opinion is more correct in this difference, in very precise words. Reflect on the chapter heading.

In the chapter heading, «المطلقة اذا خشي عليها» «خشي» is in the passive form, and its agent is «أن يقتحم عليها», meaning when there is fear of someone breaking in. Therefore, it should be remembered that «اقتحام» means to enter someone’s place without permission, and also note that the words in the chapter heading are «على اهله», «ايما على اهل المطلق»—in this case, the pronoun in «اهله» refers back to the one who gave the divorce. [فتح الباري لابن حجر : 106/10], [ارشاد الساري : 100/12]

Now, in the chapter heading, along with the fear of strangers entering, the fear of the husband who gave the divorce is also intended.

Reflect: Imam Bukhari rahimahullah, along with the fear of other non-mahrams, is also mentioning the husband who gave the divorce. And it is an established rule that the wife will observe veiling (hijab) from her husband when she has been given an irrevocable divorce (talaq bainah), and for such a woman, there is neither maintenance nor residence after an irrevocable divorce. For details, refer to: [زاد المعاد لابن القيم : 73/5۔ 466]

Therefore, Imam Bukhari rahimahullah has clarified in a very precise manner that when a woman fears her husband entering the house, she may leave the place where she is observing her waiting period. Thus, this is an indication that this ruling is for the woman who has been given an irrevocable divorce, not for the one who has been given a revocable divorce (talaq raj‘i), because in talaq raj‘i, the husband can come to his wife. Therefore, Imam Bukhari rahimahullah, with great scholarly precision, has established the position of Fatimah bint Qays radi Allahu anha that for a woman given an irrevocable divorce, there is neither maintenance nor residence, because among the fear of others, the husband who gave three divorces is also included. If the husband were allowed to enter the house after an irrevocable divorce, then the words of fear in the chapter heading would have no purpose. «فافهم !»

Benefit: After an irrevocable divorce, there is neither maintenance nor residence for the woman. The disagreement between Sayyiduna ‘Umar radi Allahu anhu and Sayyidah Fatimah radi Allahu anha on this issue and the preferred opinion:
Before clarifying the preferred opinion, we will first mention the hadith of Fatimah bint Qays radi Allahu anha, which Sayyiduna ‘Umar radi Allahu anhu and Umm al-Mu’minin A’ishah radi Allahu anha considered contrary to the Qur’an.

Imam Muslim rahimahullah says:
«عن فاطمة بنت قيس قالت ان زوجها طلقها ثلثاً فلم يجعل لها رسول الله صلى الله عليه وسلم سكني ولا نفقه قالت لي رسول الله صلى الله عليه وسلم اذا حللت فأذيني فاذنته فخطبها معاوية وأبوجهم واسامة بن زيد رضي الله عنهم فقال رسول الله صلى الله عليه وسلم اما معاوية فرجل ترب لا مال له واما أبوجهم فرجل ضراب النساء ولكن اسامة . . . . . . . .» [صحيح مسلم مع شرح نووي، كتاب الطلاق، رقم: 1480]
“Fatimah bint Qays radi Allahu anha said: Her husband gave her three divorces, and the Prophet sallallahu alayhi wa sallam did not provide her with a house nor maintenance. Fatimah bint Qays radi Allahu anha said that the Prophet sallallahu alayhi wa sallam told her: ‘When your waiting period is over, inform me.’ (After the waiting period ended) I informed the Prophet sallallahu alayhi wa sallam, and I received proposals from Mu‘awiyah radi Allahu anhu, Abu Jahm radi Allahu anhu, and Usamah radi Allahu anhu. The Prophet sallallahu alayhi wa sallam said: ‘Mu‘awiyah is poor, he has no wealth, and Abu Jahm beats women a lot. Marry Usamah.’ He gestured with his hand towards Usamah. The Messenger of Allah sallallahu alayhi wa sallam said to me: ‘Obedience to Allah and His Messenger is better for you.’ So I married him, and women began to envy me.”
This hadith has been narrated not only by Imam Muslim rahimahullah but also by Imam Ahmad rahimahullah in his Musnad (no. 47349), Sunan al-Daraqutni 33/4, Musannaf Ibn Abi Shaybah 64/5, and Imam Bayhaqi in Sunan al-Kubra.

Several objections are raised against this hadith, for example:
SA a: The statement of ‘Umar radi Allahu anhu that we cannot abandon the Book of Allah because of one woman.
b: Fatimah radi Allahu anha forgot.
c: For this reason, Umm al-Mu’minin A’ishah radi Allahu anha also opposed her. EA The answers to these objections are as follows:
Sayyiduna ‘Umar radi Allahu anhu and Umm al-Mu’minin A’ishah radi Allahu anha based their argument on the verse from Surah al-Talaq, where Allah says: «يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ وَاتَّقُوا اللَّهَ رَبَّكُمْ لَا تُخْرِجُوهُنَّ مِن بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ» [الطلاق : 65/1]
“O Prophet! (Say to your community) When you divorce women, divorce them at their prescribed period, and count the period, and fear Allah your Lord. Do not expel them from their houses, nor should they leave, unless they commit a clear immorality.”

Sayyiduna ‘Umar radi Allahu anhu’s argument was based on this verse, saying that Allah has forbidden expelling the woman from the house. For these reasons, Sayyiduna ‘Umar radi Allahu anhu rejected the statement of Fatimah bint Qays radi Allahu anha, even though Fatimah bint Qays radi Allahu anha’s statement pertained to a different issue, and the Qur’anic verse is conditional upon another issue. But ‘Umar radi Allahu anhu considered both issues as one, and the same was the case with Umm A’ishah radi Allahu anha.

The blessed verse and the hadith of the Messenger sallallahu alayhi wa sallam (narrated by Fatimah bint Qays radi Allahu anha herself) both relate to different types of women. The hadith of Fatimah bint Qays radi Allahu anha pertains to an irrevocable divorce (talaq bainah), where after three divorces, the husband is no longer responsible for the woman’s maintenance and residence. The verse from Surah al-Talaq pertains to a woman who has been given a revocable divorce (talaq raj‘i).

Allamah Ibn al-Qayyim rahimahullah, after a detailed discussion, summarizes that the verse from Surah al-Talaq which Sayyiduna ‘Umar radi Allahu anhu cited in refutation of Fatimah bint Qays radi Allahu anha is, in fact, specific to revocable divorce. And the hadith of Fatimah bint Qays radi Allahu anha is specific to irrevocable divorce. [زاد المعاد : 79/5 - 478]

The position of Fatimah bint Qays radi Allahu anha in this matter is strong, and preference will be given to the hadith she narrated. On this point, the researchers have considered the argument of Sayyiduna ‘Umar radi Allahu anhu to be weak, because in reality, Fatimah bint Qays radi Allahu anha was not contradicting the Book of Allah. On the contrary, the position of ‘Umar radi Allahu anhu was not correct compared to that of Fatimah bint Qays radi Allahu anha. Imam Ahmad ibn Hanbal rahimahullah narrates the statement of ‘Umar radi Allahu anhu that he said: We will not abandon the command of the Book of Allah for the statement of one woman. After quoting the statement of Sayyiduna ‘Umar radi Allahu anhu, Imam Ahmad ibn Hanbal rahimahullah, as cited by Imam Ibn al-Qayyim rahimahullah in Zad al-Ma‘ad, says:
«وقد انكر الامام احمد رحمه الله هذا من قول عمر رضى الله عنه، وجعل يتبسم ويقول : أين فى كتاب الله إيجاب السكني و النفقه للمطلقه ثلاثا .»
“Indeed, Imam Ahmad rahimahullah rejected the statement of Sayyiduna ‘Umar radi Allahu anhu and, smiling, said: Where is it in the Book of Allah that a woman given three divorces is entitled to maintenance and residence?”

Ibn al-Qayyim further writes:
«وأنكرته قبله الفقيهة الفاضلة فاطمة، وقالت بيني وبينكم كتاب الله .» [زاد المعاد : 478/5]
“Before Imam Ahmad ibn Hanbal rahimahullah, the jurist and virtuous woman Fatimah bint Qays radi Allahu anha rejected the position of Sayyiduna ‘Umar radi Allahu anhu and said: ‘The Book of Allah is sufficient for us, for there is no maintenance or residence for a woman given an irrevocable divorce. This is the ruling of the Book of Allah.’”
And to say that Fatimah radi Allahu anha forgot is mere conjecture, for there is no evidence that she forgot. Moreover, the hadith of Fatimah bint Qays radi Allahu anha is supported by another hadith, which Imam Daraqutni rahimahullah has mentioned in Sunan al-Daraqutni: The Prophet sallallahu alayhi wa sallam said:
«انما النفقة و السكني للمرأة اذا كان لزوجها عليها الرجعة .» [سنن دارقطني، كتاب الطلاق، رقم الحديث : 3901، اسناد حسن]
“Residence and maintenance are for the woman whose husband still has the right of return (i.e., in a revocable divorce).”

After mentioning this explicit hadith, Imam Ibn al-Qayyim rahimahullah, expressing amazement, says:
«فيا عجباً ! كيف يترك هذا المانع الصريح الذى خرج بين شفتي النبى صلى الله عليه وسلم .»
“It is very strange how such an explicit statement, which came from the blessed lips of the Prophet sallallahu alayhi wa sallam, is being abandoned.”
Therefore, the correct view is that which Fatimah bint Qays radi Allahu anha mentioned, because she herself was a direct witness to this issue. Thus, the speaker knows his own intent better than others, and the correct position on this issue is that of Fatimah bint Qays radi Allahu anha. Accordingly, Imam Daraqutni rahimahullah writes:
«بل السنة بيد فاطمة بنت قيس قطعاً»
Fatimah bint Qays radi Allahu anha had the Sunnah with certainty regarding her issue.

Fatimah bint Qays radi Allahu anha herself was a witness to this issue, that after three divorces, there is neither maintenance nor residence for the woman from her husband. Sayyiduna ‘Umar radi Allahu anhu was not aware of this matter. In such circumstances, action will be according to the hadith of Fatimah bint Qays radi Allahu anha, and the statement of Sayyiduna ‘Umar radi Allahu anhu will be set aside, because he had no textual evidence in this matter.

Thus, Shaykh al-Islam Ibn Taymiyyah rahimahullah says:
“It is not permissible for anyone, when a sound hadith exists, to oppose the statement of the Prophet sallallahu alayhi wa sallam with the statement of any person. As when Sayyiduna Ibn ‘Abbas radi Allahu anhuma was asked about this issue, he answered with the hadith, and the questioner said: ‘But Abu Bakr and ‘Umar radi Allahu anhuma say such and such.’ Upon this, Ibn ‘Abbas radi Allahu anhuma said: ‘It is as if stones from the sky are about to rain down upon you! I am narrating to you the statement of the Messenger of Allah sallallahu alayhi wa sallam, and you are quoting to me the statement of Abu Bakr and ‘Umar radi Allahu anhuma!’”

The summary of all this discussion is that after an irrevocable divorce, the husband is not responsible for the woman’s maintenance or residence. The verse which Sayyiduna ‘Umar and A’ishah radi Allahu anhuma used as evidence pertains to revocable divorce, not irrevocable divorce.

Hadith Commentary:

She used to say that for a woman given three divorces, there is neither residence nor maintenance.

The translation of the chapter heading does not directly emerge from this hadith, but Imam Bukhari rahimahullah, according to his usual practice, has indicated towards another narration of this hadith in which it is mentioned that Aisha radi Allahu anha said to Fatimah bint Qays radi Allahu anha: "It was your own tongue that caused you to be sent away."

Hadith Commentary:
(1)
The position of Fatimah bint Qays radi Allahu anhuma was that a woman who has been given a third (final) divorce is not entitled to maintenance or accommodation from her husband, and her denial is based on the statements of the Messenger of Allah sallallahu alayhi wa sallam. However, Aishah radi Allahu anhuma strongly rejected this position; in fact, in one narration, Aishah radi Allahu anha expressed her intense displeasure regarding this view.

The details of this incident are as follows: When Fatimah bint Qays radi Allahu anha’s husband, Abu Amr ibn Hafs radi Allahu anhu, gave her the final divorce, she came to the Messenger of Allah sallallahu alayhi wa sallam to seek a legal verdict, asking whether she could leave her house and spend her waiting period (‘iddah) elsewhere. The Messenger of Allah sallallahu alayhi wa sallam permitted her to move to the house of a blind man, Ibn Umm Maktum radi Allahu anhu. However, Marwan ibn Hakam denied that a divorced woman could leave her house.

Urwah narrates that Aishah radi Allahu anha also strongly rejected the statement of Fatimah bint Qays radi Allahu anha.
(Sahih Muslim, al-Talaq, Hadith: 3702) (2)
In any case, the position of Imam al-Bukhari rahimahullah is that if a divorced woman fears during her waiting period (‘iddah) that someone might suddenly intrude into her house, she may complete her ‘iddah elsewhere. Similarly, if the woman behaves disrespectfully towards her husband’s family, they have the right to expel her, and she may complete the days of her ‘iddah in another place.

And Allah knows best.