Muslim

Hadith Commentary: Benefits and Issues: The restriction placed upon a man regarding looking at a woman is not imposed upon a woman with the same intensity. Therefore, the Prophet sallallahu alayhi wa sallam advised Fatimah bint Qays radi Allahu anha to spend her waiting period (‘iddah) at the house of Ibn Umm Maktum radi Allahu anhu. Because, due to his blindness, he would not be able to see her. Thus, she could remove her veil (hijab) there, and she herself would not look at him with desire, nor cast a glance that could lead to temptation.

Hadith Commentary: Benefits and Issues: The benefit is that the view of the common people was that a woman divorced with three pronouncements (mutaallaqah thalathah) would be granted residence (sukna), but not maintenance (nafaqah). Therefore, Fatimah radi Allahu anha said that she is not entitled to maintenance, so then what is the reason for restraining her (i.e., keeping her in the house), and what is the evidence for differentiating between residence and maintenance? And the reasoning from the verse is as follows: the last part of the verse mentions the reason for keeping her in the house is that perhaps by living together in one house, a situation for reconciliation (ruju‘) may arise. However, after the third divorce, the possibility of reconciliation does not remain at all, so on what basis would she be granted residence (sukna)?

Hadith Commentary:
Benefits and Issues:
This hadith establishes that it was a well-known matter that a woman divorced with three pronouncements (mutaallaqah thalathah) is not entitled to maintenance (nafaqah) and housing (sukna). That is why ‘Ayyash ibn Abi Rabi‘ah said this to Fatimah radi Allahu anha, and upon being indicated to leave her residence, she intended to move from there.

Therefore, to say that she was of a sharp temperament, or that she was insolent, or that she used to trouble her brothers-in-law, and thus the Prophet sallallahu alayhi wa sallam ordered her to leave the residence, is not correct.

If this had been the reason, then the complaint should have been made to the husband’s family. Furthermore, her residence was separate, as is perceived from Hadith number 53.

Therefore, how could this have become the reason?

Hadith Commentary:
Vocabulary of the Hadith:
فَلَا يَضَعُ عَصَاهُ عَنْ عَاتِقِهِ:
Its explanation and interpretation is clarified by another narration, that he is "ضَرَّابُ" (for women), meaning:
He beats women a lot, or "يَضْرِبُ النِّسَاءَ":
He beats women.
Therefore, it is not correct to say that he is always on a journey.
صَعْلُوكٌ:
Poor and destitute (while you are greedy and desirous of wealth).

Benefits and Issues:
If a woman has been given a revocable divorce (ṭalāq raj‘ī),
meaning the husband can take her back,
then he is obligated to provide her maintenance (nafaqah) and residence.
But if the husband cannot take her back,
then, according to the hadith of the departure of Fatimah bint Qays radi Allahu anha, he is not obligated to provide maintenance and residence except if she is pregnant, and this is also supported by the Qur'an ,
and there is a difference of opinion among the Imams on this matter.
According to the Hanafi Imams, a woman who has been divorced three times (mutaallaqah thalāthah) or given an irrevocable divorce (mubtūttah), whether she is pregnant or not, will receive maintenance and residence in every case.
This was also the position of Umar radi Allahu anhu and Abdullah ibn Mas‘ud radi Allahu anhu.
According to Imam Malik rahimahullah and Imam Shafi‘i rahimahullah,
residence must be provided in every case, and maintenance will be provided
when she is pregnant. Imam Layth rahimahullah and Awza‘i rahimahullah and others hold the same view. According to Imam Ahmad rahimahullah,
Ishaq rahimahullah, and the hadith scholars, maintenance and residence are only to be provided if she is pregnant.
Otherwise, not.
Imam Sha‘bi rahimahullah,
Hasan Basri rahimahullah and others have the same position, and this is the correct view.

Explanation:
1:
In a narration of Musnad Ahmad, it is explicitly stated that these three divorces (talaq) were given at three different times.

Benefits and Issues:
There is brevity in this narration, whereas in the narration that follows, there is clarification. Marwan sent Qabeesah bin Dhuwaiyb to inquire about this detail.

Benefits and Issues:
When a husband gives his wife three divorces (talaq) at different times, he no longer has the right to take her back (ruju‘).
Such a divorce is called "battah"; in the language, "batt" means to cut off or to make something final and binding.
The commonly used Urdu word "albatta" (meaning certainly) is also derived from this same root.

Benefits and Issues:
➊ The background of this hadith is coming up in the next hadith, number 2294.

➋ The position of Marwan ibn al-Hakam, who was the governor of Madinah at that time, as well as that of Aisha radi Allahu anha and likewise Umar ibn al-Khattab radi Allahu anhu, was that for a divorced woman, the responsibility of providing residence during the waiting period (‘iddah) lies upon the husband (and some people still hold this view). Their evidence is from the verses of Surah at-Talaq, in which it is stated: (لَا تُخْرِجُوهُنَّ مِنْ بُيُوتِهِنَّ وَلَا يَخْرُجْنَ) (at-Talaq 1) “Do not expel them from their houses, nor should they leave (on their own).” In another verse it is stated: (أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنْتُمْ مِنْ وُجْدِكُمْ) (at-Talaq: 2) “House them according to your means.” However, in this debate, the statement of Fatimah bint Qays radi Allahu anha is clear and preponderant, that the Messenger sallallahu alayhi wa sallam did not prescribe any maintenance (nafaqah) or residence (sukna) for a woman who has been given three divorces, and since she herself is the one who experienced this incident, her statement is to be accepted. The meaning of the aforementioned verses of the Qur’an pertains to those women who have been given a revocable divorce (raji‘).

➌ As for what Marwan said, that: “We are hearing this hadith from a woman,” this criticism is not worthy of consideration. Imam Ibn al-Qayyim rahimahullah has written in Zad al-Ma‘ad, and likewise Allamah Shawkani rahimahullah has written excellently, that this criticism or consensus of the Muslims is invalid, because it has not been transmitted from any scholar that a hadith is considered weak merely because it is narrated by a woman. There are so many accepted and practiced Sunnahs whose narrators are female Companions, and they are alone in their narration. Anyone with even the slightest familiarity with the science of hadith cannot deny this, and none among the Muslims has ever rejected a hadith solely on this basis. It is possible that the narrator himself forgot; if this criticism is considered valid, then not a single hadith of the Prophet sallallahu alayhi wa sallam would remain acceptable, because which human being is free from forgetfulness? In this way, all the Prophetic Sunnahs would have to be suspended. The narrator of the hadith under discussion, Fatimah bint Qays radi Allahu anha, is among those eminent female Companions who migrated in the very beginning, and she was renowned for her memory and intelligence. The lengthy hadith regarding Dajjal is narrated by her, which she heard from the Messenger sallallahu alayhi wa sallam during a sermon only once and memorized it. How can it be believed that she would forget an important incident of her own life, such as divorce, maintenance, and residence? The objection of forgetfulness can be directed back at the one making the objection.

➍ As for what is narrated that Umar radi Allahu anhu stated that for a divorced woman, residence and maintenance are due, this hadith is absolutely baseless and unauthentic.

➎ The criticism leveled against Fatimah radi Allahu anha regarding her sharpness of tongue (as will be mentioned in the next chapter) is also questionable. On one hand, the Prophet sallallahu alayhi wa sallam is verbally instructing her regarding maintenance and residence, yet he does not advise her to control her tongue, which pertains to her own religion and character and would also assist in the completion of her waiting period. There is nothing established of this kind in the corpus of hadith.

Benefits and Issues:

➊ After an irrevocable divorce (talaq bain), it is not obligatory upon the man to provide maintenance (nafaqah) to the woman during her waiting period (‘iddah).

➋ Some scholars have held that even after an irrevocable divorce, the responsibility of maintenance and accommodation for the woman during her waiting period remains upon the man. Their evidence is the first verse of Surah at-Talaq:
“Do not expel them from their houses, nor should they leave, except in case they commit a clear immorality.”
But the correct view is that this verse pertains to a woman who has been given a revocable divorce (talaq raj‘i), because after this, Allah says:
“You do not know; perhaps Allah will bring about a new situation after that.”
By “a new situation” in this verse, what is meant is that by living together in the same house, there is hope that feelings of love may arise between the husband and wife, making reconciliation (ruju‘) possible.
After an irrevocable divorce, this possibility does not exist, because the right of reconciliation no longer remains.
For details, see: (Nayl al-Awtar, Chapter: What has been reported regarding the maintenance and accommodation of the woman who has been given an irrevocable divorce, and the chapter on maintenance and accommodation for the woman in the waiting period of a revocable divorce)

➌ If the woman is pregnant, then during her waiting period, her maintenance is the responsibility of the man, even if the divorce is irrevocable.
The statement of Allah, the Exalted, is:
“And if they are pregnant, then provide for them until they deliver their burden.” (at-Talaq 65:6)

1) “Batta divorce”: The third divorce is also batta because after it, reconciliation is not possible, as batta means that which severs completely.

2) “He confirmed”: Because when the husband cannot reconcile, why should he be responsible for expenses and residence during the waiting period (‘iddah)? This hadith is absolutely clear and explicit on this issue that a thrice-divorced woman (mutaallaqah thalathah) who is not pregnant is entitled neither to maintenance (nafaqah) nor to residence (sukna). This is also the position of Imam Ahmad ibn Hanbal rahimahullah. This is likewise the position of Ali, Ibn Abbas, Jabir radi Allahu anhum, and ‘Ata, Tawus, Hasan, Ikrimah, Ishaq, Abu Thawr and other jurists and hadith scholars rahimahumullah, and this is the correct view. It is narrated in Musnad Ahmad that the Prophet sallallahu alayhi wa sallam said to Fatimah bint Qays radi Allahu anha: “A woman’s maintenance and residence are upon the man only when the divorce is revocable (raj‘i); if not, then the man is not responsible for her maintenance or residence.” (Musnad Ahmad: 6/416, 417) And in a narration of Tabarani: “When a woman cannot become lawful for her former husband without marrying another man, then for such a woman there is neither maintenance nor residence upon the (first) husband.” (al-Mu‘jam al-Kabir by Tabarani: 24/382, 383) The Hanafi position is that she is entitled to both maintenance and residence. This is also the view of Umar, Ibn Mas‘ud radi Allahu anhum, Ibn Abi Layla, and Sufyan al-Thawri. Umar radi Allahu anhu’s not accepting the statement of Fatimah radi Allahu anha was based on his own ijtihad. It is not surprising for a mujtahid to err in ijtihad, and moreover, the explicit statements of the Prophet sallallahu alayhi wa sallam take precedence over ijtihad. The Hanafis have made many interpretations to reject this hadith, which are not worthy of consideration, such as: this is a mistake of a narrator; Fatimah bint Qays radi Allahu anha used to quarrel with her husband’s relatives, so due to daily disputes she was moved from her husband’s house; the house was in a deserted place and there was a danger that some wicked person might climb over the wall; the maintenance fixed by the husband was less than what she demanded, and the refusal was regarding the excess, not the original maintenance; the confirmation of the Messenger of Allah sallallahu alayhi wa sallam was also related to the denial of the excess, etc. The position of Imam Malik and Shafi‘i rahimahullah is that she is entitled to residence but not maintenance. However, based on the evidence, the first position is correct. And Allah knows best.

3) Abdullah ibn Umm Maktum radi Allahu anhu must have been a mahram relative of the lady. Or, due to being blind and elderly, the Prophet sallallahu alayhi wa sallam allowed Fatimah bint Qays to stay at his place. From this, it is understood that it is permissible for women to be seen by men (i.e., for men to see women), however, where there is a possibility of temptation (fitnah), then it will not be permissible.

4) Usamah ibn Zayd radi Allahu anhu was from the mawali (clients/freedmen) because his father was a freed slave. However, fundamentally, Zayd radi Allahu anhu was free and of pure Arab lineage, but enemies had captured and sold him. The purpose of Imam al-Nasa’i rahimahullah in mentioning these words is that the Messenger of Allah sallallahu alayhi wa sallam married Fatimah bint Qays radi Allahu anha, who was once a free woman, to Usamah radi Allahu anhu, even though he was a mawla.

Urdu Footnote:
➊ "Gave three divorces": The apparent words indicate that three divorces were given at once, but in reality, it was not so; rather, the three divorces were given separately, as clarified in the narration. This hadith has already been mentioned earlier (under 3224). In it, the words are that he gave the remaining divorce, i.e., the third divorce, whereas he had already given two divorces before that.

➋ In previous ahadith, it has been prohibited to send proposal upon proposal. In this narration, the Messenger of Allah (sallallahu alayhi wa sallam) mentioned the marriage proposals of Mu'awiyah and Abu Jahm and gave the proposal of marriage to Usamah. In reality, she used to come to you for consultation. You gave sincere advice. Her marriage to Usamah (radi Allahu anhu) proved to be blessed.

➌ You were aware of the temperament of Fatimah bint Qays that she would not be able to manage with someone of little wealth, so you forbade her from marrying Mu'awiyah. Otherwise, in marriage, character and religion are considered, not wealth.

➍ "He is a man of evil": Here, evil does not mean mischievous, rather, its clarification comes in some other narrations that he is harsh, he beats, you will not be able to manage with him either.

➎ "Did not like it": Because Usamah (radi Allahu anhu) was the son of a freed slave. His mother was also a freed bondwoman.

(1) In the case of being consulted for advice, it is permissible to mention the good and bad qualities of the relevant person. This does not fall under tale-bearing or backbiting, because actions are judged by intentions. Furthermore, since marriage is an important matter upon which the rest of life depends, it is obligatory, out of a spirit of goodwill, to give correct advice and to inform with accurate information.

(2) “Envy was expressed”—meaning, if one were to have a husband, he should be like this. Hazrat Usamah possessed great nobility of character. Radi Allahu anhu wa ardaahu.

This narration has already appeared at various places before. In some versions, it is stated: "He gave me three divorces." In others: "He gave me a final divorce." In yet others: "He gave me the last of three divorces." Therefore, it is not correct to use this narration as evidence for issuing three divorces at once, because by combining the narrations, it becomes clear that in reality, the husband had sent the third divorce; he had already given two divorces previously. Thus, apparently, this narration has no connection with the chapter. The issue of "maintenance and residence" has already been explained in detail in Hadith: 3224.

In this narration as well, there is no mention of issuing three divorces (talaq) together; therefore, it has no relevance to the chapter.

In this narration as well, it is not explicitly stated whether three divorces (talaq) were given together or separately. The wording allows for both possibilities. By combining other narrations, it becomes clear that, in fact, the third divorce was given. This has also been referred to as "batta" (final, irrevocable divorce). By including the previous divorces, it was counted as three. In order to resolve the apparent contradiction among all the narrations, this reconciliation is necessary—especially since the Messenger of Allah (sallallahu alayhi wa sallam) expressed strong displeasure at giving three divorces at once. (See narration: 3430)

Urdu marginal note:
“She may remove her clothes” means extra garments, not all garments. (For details, see Hadith: 3424)

"Umm Kulthum" — this is not correct. In other narrations, "Umm Sharik" is mentioned, and this is what is correct. (For further details, see: Ahadith: 3224, 3239, 2346, 3247)

See the references of the previous hadith.

Urdu marginal note:
The husband's house was far from the populated area. The husband was not at home. The woman was young. In other words, there were several dangers.

(1) A complete discussion on this hadith and a full explanation of this issue have already passed earlier. See Hadith: 3224.

(2) Umar radi Allahu anhu did not consider it necessary for every hadith that two persons must testify to it for it to be accepted; rather, he regarded this narration, according to his own ijtihad (independent reasoning), as being entirely contrary to reason and transmission, even though his stance in this matter was not correct, as mentioned above. That is why he said this; otherwise, in many instances, he accepted and acted upon the narration of a single person—for example, the narration regarding collecting jizyah from the Magians (Majus) and the narration about leaving a region afflicted by plague.

Fiqiz is a measure that is approximately equal to 25 kilograms. (See the related issue in Hadith: 4224, 3579.)

In the state of pregnancy, a woman who has been irrevocably divorced (mutaallaqah bainah) is entitled to maintenance and this is agreed upon. The narration has already been mentioned.

Takhrij al-Hadith:
[وأخرجه مسلم 1480/36، من حديث ما لك به]

Jurisprudential Points:
➊ For a woman who has been given an irrevocable divorce (mubattatah, i.e., one who has been given a third divorce), the one who issued the divorce is not responsible for her maintenance (nafaqah) nor her accommodation (suknah).
➋ It is permissible to specify (make takhsees of) the generality of the Qur’an and the mass-transmitted (mutawatir) ahadith with a single authentic narration (khabar wahid sahih).
➌ Sayyiduna Abu Amr ibn Hafs radi Allahu anhu gave Sayyidah Fatimah bint Qays radi Allahu anha three divorces at different times.
➍ If there is a legitimate (shar‘i) excuse, it is permissible to criticize a Muslim as a form of sincere advice (nasiha).
➎ Every command of the Messenger of Allah sallallahu alayhi wa sallam is based on goodness and benefit.
➏ Talaq bā’in (irrevocable divorce) refers to the divorce after which there is complete separation between husband and wife.
➐ It is incorrect for some scholars to reject this hadith by attributing doubt or error to Sayyidah Fatimah bint Qays radi Allahu anha.
➑ It is obligatory for a woman to observe veiling (purdah) from non-mahram men, but it is not obligatory to veil from a blind man. However, if she does veil even from a blind man, it is better, as is established from the hadith of Umm Salamah radi Allahu anha: «أفعما وان أَنتما؟» “Are you both blind?” See [سنن ابي داود 4112، وسنده حسن و أخطا من ضعفه]
● In the hadith of Umm Salamah radi Allahu anha, the narrator Nihyan is not unknown (majhul); rather, Tirmidhi, Ibn Hibban, Hakim, and Dhahabi [الكاشف 175/3] have authenticated him. And all praise is due to Allah.
➒ A woman may speak to non-mahram men when there is a need, provided she remains within the limits set by the Shari‘ah.
➓ A divorced woman is a part of society; therefore, it is wrong to consider her defective or inferior. Rather, her feelings should be cared for and arrangements should be made for her remarriage elsewhere. It should also be clarified that it is better to send a marriage proposal after the completion of her waiting period (‘iddah). «وغير ذلك من الفوائد»