It is obligatory to complete one menstrual cycle for istibra’ (ascertaining purity) regarding a captive or purchased or similar (obtained by other means) slave woman if she is menstruating, and if she is pregnant, then the waiting period is until childbirth.
The word istibra’ is a verbal noun from the form إسْتَبْرَأَ يَسْتَبْرِءُ (istif‘al). Its meaning is “to seek clearance.” Terminologically, “waiting for a period (childbirth or one menstrual cycle) to ascertain the purity of the womb of a slave woman” is called istibra’.
[Al-Fiqh al-Islami wa Adillatuh: 2709/9, Al-Sharh al-Saghir: 677/2]
➊ It is narrated from Hazrat Abu Saeed Khudri (RA) that the Prophet (PBUH) said regarding the captive women of Autas (a valley near Hunayn):
لا تــوطـأ حامل حتى تضع ولا غير ذات حمل حتى تحيض حيضة
“Do not have intercourse with a pregnant woman until she delivers, and do not have intercourse with a non-pregnant woman until she completes one menstrual cycle.”
[Sahih: Sahih Abu Dawood: 1889, Kitab al-Nikah: Bab fi Wat’ al-Sabaya, Abu Dawood: 2157, Ahmad: 28/3, Hakim: 195/2, Imam Hakim (RA) has declared this hadith authentic according to Muslim’s criteria.]
➋ It is narrated from Hazrat Abu Darda (RA) that the Prophet (PBUH) cursed a person who intended to have intercourse with a pregnant captive woman, a curse that would follow him into the grave.
[Muslim: 1441, Kitab al-Nikah: Bab Tahrim Wat’ al-Hamil al-Mubasiyah, Abu Dawood: 2156, Ahmad: 195/5]
➌ It is narrated from Hazrat Arbad bin Sariyah (RA):
نهى أن توطأ السبايا حتى يضعن ما فى بطونهن
“The Prophet (PBUH) forbade having intercourse with captive women until they deliver their pregnancy.”
[Sahih: Sahih Tirmidhi: 1669, Kitab al-Siyar: Bab ma ja’a fi Karahiyat Wat’ al-Hibali min al-Sabaya, Tirmidhi: 1564, Ahmad: 167/4]
From these ahadith, it is established that intercourse with pregnant slave women before childbirth and with non-pregnant ones before one menstrual cycle passes is forbidden.
(The Shafi’i, Hanafi, Thawri (RA), Nuh’i (RA), Maliki (RA) schools) hold this view.
[Tuhfat al-Ahwazi: 171/5, Al-Um: 96/5, Al-Mabsut: 152/12]
Most likely, the reason for this prohibition is mentioned in the narration from Hazrat Ruwaifa’ bin Thabit (RA). The Prophet (PBUH) said:
لا يحل لامرئ يؤمن بالله واليوم الآخر أن يسقى ماءه زرع غيره
“It is not permissible for a person who believes in Allah and the Last Day to let his water (semen) nourish another’s field (i.e., pregnancy).”
[Hasan: Sahih Abu Dawood: 1890, Kitab al-Nikah: Bab Wat’ al-Sabaya, Abu Dawood: 2158, 2159, Ahmad: 108/4, Tirmidhi: 1131, Darimi: 230/2, Ibn Hibban: 4850, Bayhaqi: 62/9]
And it is narrated from Hazrat Ibn Abbas (RA) that the Prophet (PBUH) said on the day of Khyber:
لا تسق ماء ك زرع غيرك
“Do not let your water (semen) nourish a field other than your own.”
[Hakim: 56/2, Imam Hakim (RA) and Imam Dhahabi (RA) have declared it authentic.]
It is understood that intercourse with such slave women is prohibited so that the womb’s purity is ascertained (i.e., one’s semen is not mixed in another’s pregnancy). Therefore, if pregnancy later appears, intercourse will be permissible only after childbirth, and if pregnancy does not appear, it will be known after one menstrual cycle that the woman is not pregnant, and then intercourse will be permissible.
Note that this reason applies not only to captive women but also to purchased, gifted, or similarly obtained slave women. Therefore, intercourse with them in the mentioned condition is also not permissible, as Hazrat Ibn Umar (RA) said:
إذا وهبت الوليدة التى توطأ أو بيعت أو عتقت فليستبراً رحمها بحيضة ولا تستبرأ العذراء
“When a slave woman with whom intercourse is done is gifted, sold, or freed, one must ascertain the purity of her womb for one menstrual cycle, and there is no need for istibra’ for a virgin.”
[Bukhari commentary: Qabl al-Hadith / 2235, Kitab al-Buyu’: Bab Hal Yusafir bil-Jariya Qabl an Yastabri’aha]
(The Ahl al-Zahir) There is no istibra’ for anyone other than captive women (because analogy is not permissible, so only those mentioned in the hadith will be considered, and they are only captive women).
[Al-Muhalla: 315/10 – 320]
For those who do not menstruate, the waiting period is until a clear sign of no pregnancy appears, and istibra’ is not necessary for virgins or young slave girls, nor is it obligatory for the seller or similar persons.
Because knowledge of no pregnancy can only be obtained through menstruation, therefore, if menstruation stops due to illness in youth, it will be considered stopped due to illness, and if it has stopped due to old age, pregnancy will be considered impossible, and istibra’ will not be required.
There is a difference of opinion among jurists about whether istibra’ is necessary for virgins and girls. One group believes that istibra’ of the womb is obligatory for them as well, as the word ولا غير حامل in the hadith is absolute and includes both.
But another group of scholars holds that istibra’ is only necessary for those whose womb’s purity (from pregnancy) is not known, and for those whose purity is already known (due to young age or virginity), istibra’ is not obligatory, as:
Hazrat Ibn Umar (RA) said:
ولا تستبرأ العذراء
“There is no need for istibra’ of the womb for a virgin.”
[Bukhari: Qabl al-Hadith/ 2235]
Also, the earlier hadith of Hazrat Ruwaifa’ (RA) supports this, and this is why Hazrat Ali (RA) selected a slave woman (for himself) from the khums wealth in Yemen, then performed ghusl in the morning. When the Prophet (PBUH) came to know of this, he said nothing.
[Bukhari: 4350, Kitab al-Maghazi: Bab Ba’th Ali bin Abi Talib wa Khalid bin Walid, Ahmad: 359/5]
This incident will be interpreted on the basis that the slave woman chosen by Hazrat Ali (RA) was a virgin, and istibra’ is not necessary for a virgin because her womb’s purity is already known.
(Ibn Taymiyyah (RA)) holds this view.
[As in Nayl al-Awtar: 407/4]
(Ibn Qayyim (RA)) prefers this view.
[Zad al-Ma’ad: 711/5 – 745]
Because there is no evidence for it in the Book and Sunnah.
