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سنن دارمي
Darimi
من كتاب الاحدودFrom the Book of Hudud (Legal Punishments)
باب فِيمَنْ يَقَعُ عَلَى جَارِيَةِ امْرَأَتِهِ:Chapter: A Man Having Relations with His Wife’s Slave Girl
Hadith 2366
اُردوEn
أَخْبَرَنَا يَحْيَى بْنُ حَمَّادٍ، حَدَّثَنَا أَبَانُ بْنُ يَزِيدَ، عَنْ قَتَادَةَ، قَالَ: كَتَبَ إِلَيَّ خَالِدُ بْنُ عُرْفُطَةَ عَنْ حَبِيبِ بْنِ سَالِمٍ: أَنَّ غُلَامًا كَانَ يُنْبَزُ قُرْقُورًا، فَوَقَعَ عَلَى جَارِيَةِ امْرَأَتِهِ، فَرُفِعَ إِلَى النُّعْمَانِ بْنِ بَشِيرٍ، فَقَالَ: لَأَقْضِيَنَّ فِيهِ بِقَضَاءٍ شَافٍ: "إِنْ كَانَتْ أَحَلَّتْهَا لَهُ جَلَدْتُهُ مِائَةً، وَإِنْ كَانَتْ لَمْ تُحِلَّهَا لَهُ، رَجَمْتُهُ"، فَقِيلَ لَهَا: زَوْجُكِ !، فَقَالَتْ: إِنِّي قَدْ أَحْلَلْتُهَا لَهُ . فَضَرَبَهُ مِائَةً . قَالَ يَحْيَى: هُوَ مَرْفُوعٌ .
It is narrated from Habib bin Salim that a boy named Qarqoor had intercourse with his wife's slave-girl. This matter was brought before (the Companion of the Messenger) Sayyiduna Nu'man bin Bashir (may Allah be pleased with him), who was the governor of Kufa. He said: I will give a decisive ruling about this. If his wife has made her slave-girl lawful for him, then I will give this slave a hundred lashes, and if his wife has not permitted him, then I will stone this slave. The woman was asked: What do you say regarding your husband? The woman said: I have made my slave-girl lawful for my husband (i.e., I permitted him to have intercourse with her). Thus, Sayyiduna Nu'man (may Allah be pleased with him) gave him a hundred lashes.
Yahya bin Hammad (the teacher of ad-Darimi) said: This is marfu‘.
Yahya bin Hammad (the teacher of ad-Darimi) said: This is marfu‘.
Brief Explanation
(Explanation of Ahadith 2364 to 2366)
A man may have intercourse (jima‘) with his own slave woman, but not with the slave woman of another. If the slave woman is jointly owned by husband and wife, then it is also permissible for the man to have intercourse with that slave woman, as is found in the hadith of Ibn Majah (2552) that a man was brought to the Messenger of Allah (sallallahu alayhi wa sallam) who had intercourse with his wife's slave woman, and the Prophet (sallallahu alayhi wa sallam) did not prescribe the hadd punishment for him.
In light of this hadith, most scholars have said that if someone has intercourse with his wife's slave woman, the hadd punishment will not be applied to him, because the property of husband and wife is often shared, and they benefit from each other's ownership, thus there is a doubt (shubhah) in this matter. And the principle regarding hadith is «إِدْرَؤُوا الْحُدُوْدَ بِالشُّبُهَاتِ.» "If there is doubt, then suspend the hudud (prescribed punishments)."
Furthermore, the aforementioned hadith is also weak, and it is possible that Sayyiduna Nu‘man ibn Bashir (radi Allahu anhu) was mistaken.
And Allah knows best.
A man may have intercourse (jima‘) with his own slave woman, but not with the slave woman of another. If the slave woman is jointly owned by husband and wife, then it is also permissible for the man to have intercourse with that slave woman, as is found in the hadith of Ibn Majah (2552) that a man was brought to the Messenger of Allah (sallallahu alayhi wa sallam) who had intercourse with his wife's slave woman, and the Prophet (sallallahu alayhi wa sallam) did not prescribe the hadd punishment for him.
In light of this hadith, most scholars have said that if someone has intercourse with his wife's slave woman, the hadd punishment will not be applied to him, because the property of husband and wife is often shared, and they benefit from each other's ownership, thus there is a doubt (shubhah) in this matter. And the principle regarding hadith is «إِدْرَؤُوا الْحُدُوْدَ بِالشُّبُهَاتِ.» "If there is doubt, then suspend the hudud (prescribed punishments)."
Furthermore, the aforementioned hadith is also weak, and it is possible that Sayyiduna Nu‘man ibn Bashir (radi Allahu anhu) was mistaken.
And Allah knows best.
