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Origins of Muḥammadan jurisprudence

Origins of Muhammadan Jurisprudence

Publisher

Oxford At The Clarendon Press

Publication Year

1950 AH

OF MUHAMMADAN JURISPRUDENCE 197

revocable, appeared only in the time between Shāfiʿī and Ibn Ḥanbal.¹ The Medinese considered the whole procedure a sin but valid as a triple divorce, and ascribed this doctrine to the same Ibn ʿAbbās and even to the Iraqian Ibn Masʿūd (Muw. iii. 35). This discussion later produced traditions from the Prophet approving or disapproving the pronouncing of a triple divorce in one session, and even declaring it altogether invalid, as well as a large number of spurious references to Companions and other authorities, including those of the Iraqians, in favour of the Medinese opinion.² The whole problem of the triple divorce pronounced in one session is secondary.

The following two traditions (Muw. iii. 34) show one of the reasons why divorce with batta was of practical importance; its identification in Medina with triple divorce; and the projection of this new problem back into the middle Umaiyad period.

Mālik—Rabīʿa—Qāsim b. Muḥammad and ʿUrwa b. al-Zubair held that a man married to four wives who divorces one of them with batta is at once free to marry again, without waiting for her ʿidda to expire.

Mālik—Rabīʿa—Qāsim b. Muḥammad and ʿUrwa b. al-Zubair told this, their opinion, to the Umaiyad Caliph al-Walīd b. ʿAbd al-Malik when he visited Medina, but Qāsim stipulated that the three divorces must be pronounced in separate sessions.

In late Umaiyad times it must have been the practice for the divorced wife or widow to vacate the house of her husband immediately, without waiting for the end of her ʿidda. This practice is clearly stated in two Medinese traditions.³ According to one, Yaḥyā b. Saʿīd b. ʿĀṣ divorced his wife and her father took her away; ʿĀʾisha complained to Marwān b. Ḥakam and asked him to have her returned to her house, but Marwān referred to the case of Fāṭima bint Qays who was divorced in the time of the Prophet; ʿĀʾisha replied: “Can you not forget the tradition of Fāṭima?”, but Marwān was afraid of bad feeling between the former husband and wife. According to the other Medinese tradition, Ibn ʿUmar disapproved of the divorced wife of a grandson of the Caliph ʿUthmān moving during her ʿidda.

1 See above, p. 146.
2 See E.I., s.v. Ṭalāḳ, sections III and IV.
3 Muw. iii. 62; Muw. Shaib. 263.

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