(لعان کا بیان)

(1) His statement: “The freeing of a slave” Imam al-Sarakhsi said in The Comprehensive: According to us [the Hanafis], freeing a non-believing slave is sufficient for the expiation of declaring one’s wife like one’s mother’s back, oaths, and breaking a fast. However, according to al-Shafi‘i, only a believing slave is valid, based on Allah’s statement: “And do not aim for the impure of it to spend” [Qur’an, Surah al-Baqarah, 2:267]. [Shafi‘is argue] there is no impurity worse than disbelief. Additionally, in the hadith of Abu Hurairah, a man came to the Messenger of Allah (peace be upon him) with a black slave and said, “I owe the freeing of a slave; will this one suffice?” The Prophet tested her faith, found her to be a believer, and said, “Free her, for she is a believer.” His testing her faith indicates that the obligation is only fulfilled by a believing slave. Furthermore, since this is a freeing for expiation, only a believing slave is valid, as in the expiation for killing. This is because the term “slave” is unqualified here but qualified by belief in the case of killing, and the unqualified is interpreted in light of the qualified, as the qualified is implied in the unqualified. Analogizing the implied to the explicit is valid. Moreover, attaching a condition implies the negation of the ruling in its absence, and similarly in analogous cases. Since expiations are of one genus, qualifying some with the condition of belief negates the validity of others without belief, just as the condition of justice in some testimonies negates validity without it in all, or the condition of delivering the sacrificial animal to the Ka‘bah negates validity without it in all sacrificial offerings. Our [Hanafi] argument is based on the apparent meaning of the verse, where the explicit term is “slave,” with no indication of the attribute of belief or disbelief. Restricting it to the attribute of belief would be an addition, and adding to the text is abrogation, which cannot be established by a solitary report or analogy. Furthermore, analogizing the explicit to the explicit is invalid according to us, as it implies a deficiency in what Allah has clarified, which is impermissible. Similarly, the conditions of expiations are not established by analogy, just as their essence is not. Claiming specification here is invalid, as specification applies to what has generality, but the unqualified is not general. The prohibition of freeing a blind slave or similar cases is not due to specification but because they are deficient in some aspect, as we have explained. Moreover, specification applies to what has an explicit term, and the attribute of the slave is not mentioned. It cannot be said that belief and disbelief are opposites, so allowing a believing slave negates allowing a non-believing one, because we allow a believing slave due to it being a “slave,” not due to the attribute of belief. Do you not see that we allow a young or old slave, despite the opposition between these attributes, and similarly a male or female slave, despite their opposition? The validity is based on the term “slave,” so the attribute is not considered. As for carrying the unqualified to the qualified, some of our Iraqi scholars permit this in a single incident, as in the statement, “For five camels, a sheep,” alongside, “For five grazing camels, a sheep.” However, the more correct view is that carrying the unqualified to the qualified is not permissible in a single incident or multiple incidents. Thus, Abu Hanifa permitted dry ablution with all parts of the earth based on the statement, “The earth has been made for me a place of prostration and a means of purification,” without carrying this unqualified term to the qualified term in, “Dust is a means of purification for the Muslim.” This is because the unqualified term has a ruling, which is its generality, and carrying it to the qualified negates its ruling. Ibn Abbas alluded to this, saying, “Leave ambiguous what Allah has left ambiguous.” The prohibition of zakat on non-grazing animals is not due to carrying the unqualified to the qualified but due to the explicit text that there is no zakat on working animals. Similarly, the condition of justice in testimonies is not due to carrying the unqualified to the qualified but due to the text requiring verification in the report of a sinner. Likewise, the requirement of delivering sacrificial offerings to the Ka‘bah is based on the text: “Then their place of sacrifice is at the Ancient House” [Qur’an, Surah al-Hajj, 22:33]. Even if this were permissible, it would only be after establishing equivalence between the two incidents, and there is no equivalence between the expiation for killing and other expiations. Killing is among the gravest major sins, involving the loss of a believing soul addressed by faith, unlike the causes of other expiations. Thus, it has a stricter requirement not present in others. For this reason, feeding is not a substitute for fasting in the expiation for killing, unlike the expiation for declaring one’s wife like one’s mother’s back. The condition of consecutive fasting in the expiation for oaths, according to us, is not due to carrying the unqualified to the qualified but due to Ibn Mas‘ud’s well-known reading. This is a flaw in their argument, as they do not require consecutiveness in it, which would be carrying the unqualified to the qualified. There is no meaning to the claim that the unqualified has two origins, one qualified by non-consecutiveness, such as the fasting of enjoyment, because that is not qualified by non-consecutiveness. Rather, it is not permissible before the day of sacrifice, as it is tied to the time of return with the word “when,” as in Allah’s statement: “And seven when you return” [Qur’an, Surah al-Baqarah, 2:196]. As for the hadith, some narrations state that the man said, “I owe the freeing of a believing slave,” or the Messenger of Allah (peace be upon him) knew through revelation that he owed a believing slave, so he tested her faith. Moreover, there is discussion about the authenticity of that hadith, as it is narrated that the Prophet said, “Where is Allah?” and she pointed to the sky. One should not assume that the Messenger of Allah (peace be upon him) would ask anyone to ascribe a direction or place to Allah, the Exalted. There is no evidence for them in the verse, as disbelief is impure in terms of belief, but what is spent for expiation is not belief; it is the financial value. In terms of financial value, it is a minor defect that is easily removable. The author of The Glimmerings said: There is discussion among the Imams about requiring belief for expiations other than killing, and the truth likely lies in not requiring it, which is the Hanafi position. Nevertheless, it is preferable and better to do so, and this level of belief is sufficient for that purpose.

(3) His statement regarding one who makes a declaration of zihar and has intercourse before expiating: He said: “One expiation,” meaning if he has intercourse before expiating, no additional expiation is required due to the intercourse. The only obligation is the initial expiation, meaning nothing else is required beyond the first expiation based on this hadith. This is the view of the four Imams. However, we also hold that he should seek forgiveness from Allah, as transmitted in al-Muwatta from the statement of Malik. Nuh Afandi quoted Allamah Qasim, who mentioned that Muhammad reported it in “al-Asl” as a raised hadith. The intended meaning of seeking forgiveness is repentance from this sin, which is the prohibition of intercourse before expiation.

(1) His statement: “What should he do?” The Messenger of Allah (ﷺ) said: “A revelation has been sent down concerning you,” etc. According to al-Shafi‘i, the basis for accusing wives is the prescribed punishment based on the first verse: “And those who accuse chaste women and then do not produce four witnesses, flog them” [Qur’an 24:4]. The verse of mutual cursing clarifies that if the accuser is a husband, he can avert the punishment through mutual cursing. If the accused is the accuser’s wife, she can avert the punishment of adultery through her mutual cursing. If either refuses to perform mutual cursing, the original ruling applies, which is the punishment. Abu Hanifah and his companions held that the obligation for accusing a wife is only mutual cursing, not the punishment. According to us, the verse of mutual cursing abrogates the first verse concerning wives, as the specific ruling that comes later abrogates the general ruling to its extent. Thus, the first verse no longer applies to wives, and the obligation for accusing a wife is mutual cursing. If either refuses, they are imprisoned until they perform it, like a debtor who refuses to fulfill a debt. When Hilal accused his wife, the Messenger of Allah (ﷺ) said to him: “Evidence, or a punishment on your back,” indicating that initially, it warranted the punishment like accusing a non-wife. When the verse of mutual cursing was revealed, it abrogated this for wives, as stated in al-Bada’i‘ and al-Inayah. This was mentioned in al-Bahr al-Ra’iq.

(2) His statement: “They performed mutual cursing,” etc. Its root is from “curse,” meaning expulsion and distancing from Allah’s mercy. Its legal meaning according to us is testimonies confirmed by oaths accompanied by cursing. Al-Shafi‘i said: It is oaths confirmed with the wording of testimony. He requires the eligibility for taking an oath, so it applies between a Muslim and his non-Muslim wife, between a non-Muslim and a non-Muslim wife, and between a slave and his wife. This is also the view of Malik and Ahmad. According to us, the eligibility for testimony is required, so it only applies between free, sane, adult Muslims who have not been punished for false accusation. Al-Shafi‘i’s evidence is the verse: “The testimony of one of them shall be four testimonies by Allah” [Qur’an 24:6], which is definitive regarding oaths, and testimony can include oaths. We interpreted the ambiguous as the definitive, especially since testimony for oneself is not accepted, unlike an oath. Its repetition indicates it is an oath, as it was legislated repeatedly, like in the case of qasamah, unlike delivering testimony. Our evidence is the verse: “And those who accuse their wives and have no witnesses except themselves” [Qur’an 24:6]. It excludes “themselves” from witnesses, establishing that they are witnesses, as the exception is of the same type as what it is excepted from. Then it explicitly mentions their testimony: “The testimony of one of them shall be four testimonies by Allah” [Qur’an 24:6]. It specifies testimony and oath, so we say the core is testimony confirmed by an oath, and confirmation does not negate it being testimony. The claim that testimony for oneself is not accepted is invalid, as it is only rejected in cases of suspicion. When suspicion is absent, it is accepted, as Allah says: “Allah testifies that there is no deity except Him” [Qur’an 3:18], which is among the truest testimonies due to the absence of suspicion. In this case, suspicion is negated by the oath. This was stated by al-Ayni. His testimony stands in place of the punishment for false accusation, and her testimony stands in place of the punishment for adultery. If they perform mutual cursing, the punishment for false accusation is lifted from him, and the punishment for adultery is lifted from her, as invoking Allah is as severe as the punishment, or even more so. Mutual cursing occurs when there are no witnesses. If the husband provides four witnesses to her adultery, there is no mutual cursing or punishment for him, but she receives the punishment for adultery. Similarly, if she confesses to adultery and confirms the husband’s claim. In summary, mutual cursing occurs when a man accuses his wife of adultery, she denies it, and he does not provide witnesses. Its conditions include an existing valid marriage, not an invalid one, and the accusation must be one that would warrant punishment if made against a non-wife, as she is the accused, fulfilling the conditions of chastity. Its core is testimonies confirmed by oaths and cursing. Its ruling is the prohibition of intercourse and enjoyment after mutual cursing, even before separation, based on the hadith: “The two who perform mutual cursing shall never reunite.” Its participants are those eligible to testify among Muslims, meaning both the accuser and the accused must be fit to testify, not having been punished for false accusation, not being non-Muslims, insane, slaves, or minors. This includes the immoral and the blind, as they are eligible to testify. If a man accuses his wife of adultery, either both are eligible to testify, or they are not. If they are not, the details are as in al-Durr al-Mukhtar and Radd al-Muhtar. If the husband is ineligible to testify due to slavery or disbelief (e.g., she converted to Islam, and he accused her before being offered Islam) and is eligible to make the accusation (i.e., sane, adult, and articulate), he is punished. The basis is that if mutual cursing is void due to his status, if the accusation is valid, he is punished; otherwise, there is neither punishment nor mutual cursing. If he is eligible to testify, but she is not, or if her accuser would not be punished, he faces no punishment, as if a stranger accused her, and there is no mutual cursing, as it is absent. However, he is disciplined to prevent such actions. If it is void due to both, such as both having been punished for false accusation, it is like the first case, as it is void due to his status, since he initiated it, and her status is not considered alongside his. This is supported by the hadith: “Four women have no mutual cursing with them: a Christian woman under a Muslim, a Jewish woman under a Muslim, a slave woman under a free man, and a free woman under a slave.” [Narrated by Ibn Majah and others] This was stated in Umdat al-Ri‘ayah. In al-Tafsir al-Ahmadiyya: If both are eligible to testify and the woman demands it, the man must perform mutual cursing. If he refuses, he is imprisoned until he performs it or retracts his claim, in which case he receives the punishment for false accusation. If he chooses to perform mutual cursing, he says four times: “By Allah, I am among the truthful in what I accused her of regarding adultery,” and the fifth time: “The curse of Allah be upon me if I am among the liars.” This is the man’s mutual cursing, which lifts the punishment for false accusation. After his mutual cursing, the woman must perform mutual cursing. If she refuses, she is imprisoned until she performs it or confirms her husband’s claim, in which case she receives the punishment for adultery. According to al-Shafi‘i, she receives the punishment for adultery by merely refusing mutual cursing. If she chooses to perform mutual cursing, she says four times: “By Allah, he is among the liars in what he accused me of regarding adultery,” and the fifth time: “The wrath of Allah be upon me if he is among the truthful.” This is the woman’s mutual cursing, which lifts the punishment for adultery. This is the meaning of the verse: “And it averts the punishment from her” [Qur’an 24:8]. At this point, both are equal in having the punishments lifted. In al-Bada’i‘: Scholars differed on the ruling of mutual cursing. Our three companions said it necessitates separation as long as they remain in the state of mutual cursing, but the separation does not occur by mutual cursing itself without the judge’s ruling, so the husband can still divorce, make zihar, or swear an oath of abstinence, and inheritance remains between them before separation. Zufar and al-Shafi‘i said it causes separation by mutual cursing itself, except that according to Zufar, separation does not occur unless both perform mutual cursing, while al-Shafi‘i said separation occurs by the husband’s mutual cursing before the wife’s. Al-Shafi‘i’s view is that separation pertains to the husband, as he is the cause of separation, so it does not depend on the wife’s action, like divorce. Zufar cited the narration from the Messenger of Allah (ﷺ): “The two who perform mutual cursing shall never reunite,” and their remaining married entails their reunion, which contradicts the text. The response is that it refers to after the judge’s separation, supported by what is in Abu Dawud’s Sunan: “The precedent for those who perform mutual cursing is that they are separated and never reunite.” The evidence that separation does not occur by mutual cursing itself is in Sahih al-Bukhari and elsewhere: After Uwaimir al-Ajlani performed mutual cursing, he said: “O Messenger of Allah, I have lied about her if I keep her,” and divorced her thrice. If separation had occurred by mutual cursing, the Messenger of Allah (ﷺ) would have objected to his pronouncing divorces, saying: “She is not your wife for you to divorce her.” His silence indicates she was still eligible for divorce, and separation had not yet occurred. In al-Inayah: If it is said that he objected by saying: “Go, you have no claim over her,” it is responded that this refers to his request to reclaim the dowry, as it is narrated that he said: “If you were truthful, it is for her for what you made lawful of her private parts, and if you lied, you have no claim over her.” In al-Bahr al-Ra’iq: As for al-Bayhaqi’s statement in al-Ma‘rifah that Uwaimir divorced her thrice, unaware that mutual cursing was separation, so it was like stipulating compensation in a loan, which is binding whether stipulated or not, unlike zihar, the response is that the inference is based on the lack of objection to him, not merely his action, as is clear. We also have the narration from Nafi‘ from Ibn Umar (may Allah be pleased with them): A man performed mutual cursing with his wife during the Prophet’s time (ﷺ) and disowned her child. The Prophet (ﷺ) separated them and attributed the child to the woman. From Ibn Abbas (may Allah be pleased with them): When the Prophet (ﷺ) performed mutual cursing between Asim ibn Adi and his wife, he separated them. It is narrated that the Messenger of Allah (ﷺ) performed mutual cursing between al-Ajlani and his wife, and when they finished, he separated them. These hadiths indicate that separation does not occur by the husband’s or wife’s mutual cursing, as if it had, the Prophet’s (ﷺ) separation after mutual cursing would not have been necessary. In al-Bada’i‘: Scholars also differed on it. Abu Hanifah and Muhammad said the separation in mutual cursing is by one irrevocable divorce, dissolving the marriage bond and establishing the prohibition of reunion and remarriage as long as they remain in the state of mutual cursing. If the husband retracts and is punished for false accusation, or the wife retracts by confirming him, marriage between them becomes permissible, and they can reunite. Abu Yusuf, Zufar, and al-Hasan ibn Ziyad said it is a separation without divorce, causing a permanent prohibition, like that of fosterage or affinity. They cited the Prophet’s (ﷺ) saying: “The two who perform mutual cursing shall never reunite,” which is explicit in this matter. For Abu Hanifah and Muhammad, it is narrated that when the Messenger of Allah (ﷺ) performed mutual cursing between Uwaimir al-Ajlani and his wife, Uwaimir said: “I have lied about her, O Messenger of Allah, if I keep her, she is divorced thrice.” In some narrations: “I have lied about her if I do not separate from her, she is divorced thrice.” Thus, the husband’s divorce after mutual cursing became the precedent for those who perform mutual cursing, as Uwaimir divorced his wife thrice after mutual cursing before the Messenger of Allah (ﷺ), who enforced it. Every person who performs mutual cursing must divorce, and if he refuses, the judge acts in his place to effect separation, making it a divorce, as in the case of impotence. The cause of this separation is the husband’s accusation, as it necessitates mutual cursing, which necessitates separation, which causes the dissolution. Thus, the separation, through these intermediaries, is attributed to the prior accusation. Every separation caused by the husband or his action is a divorce, as in the case of impotence, mutual agreement, or swearing abstinence, which is the view of the predecessors like Ibrahim, al-Hasan, Sa‘id ibn Jubayr, Qatadah, and others. The hadith cannot be taken literally, as we mentioned, because the literal meaning of “mutual cursers” is those engaged in the act. After completing mutual cursing, they are no longer mutual cursers literally. The intended meaning refers to the ruling, which is that the ruling of mutual cursing remains upon them. If the husband retracts and is punished for false accusation, the ruling of mutual cursing is nullified, so they are neither mutual cursers literally nor in ruling, making their reunion permissible. Thus, it is said in al-Hidayah: “They shall not reunite as long as they are mutual cursers.”

(3) His statement: “He divorced her thrice,” etc. Therefore, it is said in al-Bada’i‘ and al-Bahr al-Ra’iq: Every person who performs mutual cursing must divorce, and if he refuses, the judge acts in his place to effect separation, making it a divorce, as in the case of impotence.

(4) His statement: “Were it not for what has been decreed in the Book of Allah,” etc. Meaning, were it not for the Qur’an’s ruling against imposing punishment or reprimand on those who perform mutual cursing, I would have dealt with her. They said: The hadith indicates that the judge does not consider assumptions, signs, or indications but rules based on the apparent requirements of evidence and proofs. It is understood from their words that resemblance and physiognomy are not evidence but mere assumptions and indications, so no ruling is based on them, as is our view. This was stated in al-Luma‘at.

(5) His statement: “The testimony of one of them,” etc. Al-Shafi‘i said mutual cursing is an oath, while Abu Hanifah and his companions said it is testimony. They cited the verse: “The testimony of one of them shall be four testimonies by Allah” [Qur’an 24:6] and the Prophet’s (ﷺ) saying in this hadith: “Hilal came and testified, then she stood and testified.” [Narrated by Nayl al-Awtar, summarized]

(6) His statement: “You have no claim to it,” etc. Know that the dowry is obligated by the contract, either by specification if present, or by the legal ruling, such as the obligation of a comparable dowry if unspecified. The dowry is confirmed by one of three things: consummation, valid seclusion, or the death of either spouse. Consummation confirms the exchange, making the dowry definitive. Seclusion is legally equivalent to consummation, as it typically leads to it. Death ends the marriage, and a thing is confirmed and solidified upon its end. This is stated in al-Hidayah and al-Binayah. This clarifies that the dowry is not obligated by intercourse or death but by the contract itself, and it is confirmed by what was mentioned. In al-Bada’i‘: Once the dowry is confirmed by what was mentioned, it does not lapse thereafter, even if the separation is due to her, as the exchange, once confirmed, does not allow for lapse except by release. Thus, it is clear that the dowry does not lapse due to the wife’s disobedience, though her maintenance does. What is in some fatwas about the dowry lapsing due to disobedience is not relied upon. This was stated in Umdat al-Ri‘ayah.

(1) His statement: “If I found a man,” etc. Allamah al-Ayni said in Umdat al-Qari: It is understood from Sa‘d ibn Ubadah’s words (may Allah be pleased with him) that if this happened to him, he would kill the man. For this reason, when it reached the Prophet (ﷺ), he did not prohibit him from it. Al-Dawudi said: His statement: “Are you amazed at Sa‘d’s zeal?” indicates that he praised and permitted it for him in his relationship with Allah. Zeal is among the most praiseworthy qualities, and one who lacks it is not of commendable character. Our companions elaborated on this, saying: If a man finds someone with his wife or slave girl intending to overpower and commit adultery with her, he may kill him. If he sees him with his wife or a close relative who consents to it, he kills both the man and the woman. Some prohibited this outright. There is disagreement on the ruling. The majority said he is subject to retaliation. Ahmad and Ishaq said: If he provides evidence that he found him with his wife, his blood is spared. Al-Shafi‘i said: It is permissible for him in his relationship with Allah to kill the man if he is married and knows he committed an act requiring purification, but retaliation is not lifted in the apparent ruling. Al-Muhallab said: The hadith indicates that retaliation is obligatory for one who kills a man he found with his wife, as Allah, though more zealous than His servants, required witnesses for punishments. No one may transgress Allah’s limits, and no blood is spared by mere claim. In summary, according to Badr al-Majhud: One who kills a man he found committing adultery with his wife, the majority say he is subject to retaliation unless he provides evidence or the heirs of the killed confess. In his relationship with Allah, if he is truthful, he faces no consequence.

(1) His statement: “He disowned her child,” etc. Meaning, if a man accuses his wife by denying the child or by denying the child and accusing her of adultery, the judge separates them, and the child’s lineage is negated and attributed to the mother, provided they mention the accusation in the mutual cursing. This is stated in Sharh al-Wiqayah and al-Tafsir al-Ahmadiyya. In Umdat al-Qari: This hadith encompasses three rulings. First, mutual cursing, with no disagreement, and there is consensus on its validity and legislation. Second, separation, where scholars differed. It was mentioned earlier that according to Malik and al-Shafi‘i, separation occurs by mutual cursing itself, while according to Abu Hanifah, it occurs only by the judge’s ruling, based on the apparent meaning of the mentioned hadith, which is evidence against the opponents. Third, attributing the child to the mother, based on the apparent meaning of the hadith, on which the majority of jurists from the successors and those after them, including the four Imams and their followers, agreed. There is another disagreement from another perspective. Our companions said: If the accusation denies the child at the time of birth or a day or two after, or a similar period during which congratulations and purchasing birth items are customary, it is valid. If he denies it after that, it is not negated. Abu Hanifah did not specify a time for this, though it is narrated that he set seven days. Abu Yusuf, Muhammad, and Qatadah set it at the maximum period of postpartum, which is forty days. Al-Shafi‘i considered immediacy, saying if he denies it immediately, it is negated; otherwise, it is not.

(1) His statement: “My wife gave birth to a black boy,” etc. This implies an accusation, and scholars differed on its ruling. Some said there is no punishment for implication, only for explicit accusation. This was narrated from Ibn Mas‘ud, al-Qasim ibn Muhammad, al-Sha‘bi, Tawus, Hammad, Ibn al-Musayyib in one narration, al-Hasan al-Basri, and al-Hasan ibn Hayy. This was the view of al-Thawri, Abu Hanifah, and al-Shafi‘i, though they required discipline and deterrence. They cited the hadith of this chapter, and Bukhari’s chapter heading supports this. Others said implication is like explicit accusation, narrated from Umar, Uthman, Urwah, al-Zuhri, and Rabi‘ah. This was the view of Malik and al-Awza‘i. This is stated in Umdat al-Qari. In Rahmat al-Ummah: Implication does not warrant punishment according to Abu Hanifah, even if intended as an accusation. Malik said it warrants punishment absolutely. Al-Shafi‘i said if it is intended and explained as an accusation, it warrants punishment. Ahmad has two narrations, the more apparent being that it warrants punishment absolutely, and the other aligns with al-Shafi‘i’s view. The hadith indicates that denying a child based on mere suspicion or imagination without strong evidence is not permissible. It affirms the use of analogy, consideration, and examples. This was stated in al-Ta‘liq al-Mumajjad. In al-Marqah: The benefit of the hadith is the prohibition of denying a child based on weak indications. There must be clear, evident proof, such as not having had intercourse with her or her giving birth to a child before six months from the start of intercourse. The consideration of color here is to dispel suspicion, as the default is the innocence of Muslims. This differs from the earlier consideration of characteristics in Sharik’s hadith, which was not to dispel suspicion but to highlight that apparent traits are insignificant in the presence of the Qur’an’s text, so how much more so for subtle traces.

(1) His statement: “He is yours, O Abd ibn Zam‘ah. The child belongs to the bed,” etc. Al-Shafi‘i held that if a master has intercourse with his slave girl, every child she bears thereafter is his, whether he claims it or not. He cited this hadith, as the Messenger of Allah (ﷺ) said: “He is yours, O Abd ibn Zam‘ah,” then said: “The child belongs to the bed, and for the adulterer is the stone.” He attributed him to Zam‘ah not because of his son’s claim, as a son’s claim of lineage for another from his father is not accepted, but because his mother was Zam‘ah’s bed through his intercourse with her. A slave girl becomes a bed for her master through his intercourse or his acknowledgment of intercourse, not merely by ownership without intercourse. Abu Hanifah said she does not become a bed through intercourse or acknowledgment of it. If he had intercourse with her or acknowledged it and she bore a child, it is not attributed to him, and it remains a slave, as does its mother. The child is only attributed to him if he acknowledges it. In summary, any child a slave girl bears does not obligate her master unless he acknowledges it. If he dies before acknowledging it, it is not attributed to him and remains for the adulterer. Abu Hanifah’s evidence in the hadith is that the Messenger of Allah (ﷺ) said to Abd ibn Zam‘ah: “He is yours,” and did not say: “He is your brother.” It is possible he meant: “He is yours,” meaning a slave under your ownership, without ruling on his lineage. The evidence is that the Messenger of Allah (ﷺ) ordered Sawdah bint Zam‘ah to veil herself from him. If the Prophet (ﷺ) had made him Zam‘ah’s son, he would not have veiled Zam‘ah’s daughter from him, as he would not order the severance of family ties but their connection, including visits. How could he order her, having made him her brother, to veil from him? This is not permissible for him, as he ordered Aishah to permit her foster uncle to visit her, yet veiled Sawdah from one made her brother and father’s son. In our view, he did not rule on anything except the ownership, attributing him to Abd ibn Zam‘ah and Zam‘ah’s other heirs, excluding Sa‘d. If someone says: What is the meaning of his saying connected to this: “The child belongs to the bed, and for the adulterer is the stone”? It is said: This was instruction to Sa‘d that you claim for your brother, but your brother had no bed. Lineage would be established from him if he had a bed. Since he had no bed, he is an adulterer, and for the adulterer is the stone. If someone says: He ordered her to veil from him because of his resemblance to Utbah, as in Aishah’s hadith, it is said: This is not permissible, as resemblance does not establish lineage, nor does its absence negate lineage. Do you not see the man who said to the Messenger of Allah (ﷺ): “My wife gave birth to a black boy”? The Messenger of Allah (ﷺ) said: “Do you have camels?” He said: “Yes.” He said: “What are their colors?” He mentioned words, saying: “Is there a gray one among them?” He said: “There are gray ones.” He said: “Where do you think that came from?” He said: “A lineage pulled it.” The Messenger of Allah (ﷺ) said: “Perhaps this is a lineage that pulled it.” He did not permit him to deny him due to the lack of resemblance or prevent him from admitting him to his daughters and women, but gave him an example that resemblance does not establish lineage, nor does its absence negate it. Similarly, if Zam‘ah had intercourse with his mother, it would establish his lineage from him, and the lack of resemblance would have no significance, and his lineage from him would be established, entering upon his daughters as his other sons do. This argument is countered by the narration explicitly stating: “He is your brother.” However, it means your brother in faith. It is possible the original hadith was “He is yours,” and the narrator assumed it meant his brother in lineage, interpreting it as such. The narration by Abdullah ibn al-Zubair explicitly states: “He is not your brother.” In Amr ibn Shu‘ayb’s hadith, there are rulings the Messenger of Allah (ﷺ) judged in the early days of Islam and the beginnings of the law, as al-Khattabi said. Thus, it is not used as evidence against requiring acknowledgment for the lineage of a slave girl’s child. The apparent meaning of the hadith mentioned in the text is that the child is attributed to the father after establishing the bed, which is only established after the possibility of intercourse in a valid or invalid marriage. This is the view of the majority. It is narrated from Abu Hanifah that it is established by the contract alone, even if a man from the West marries a woman from the East, neither leaves their place nor has intercourse, and she bears a child after six months or more, it is attributed to him. This is stated in Nayl al-Awtar. The author of al-Tawdih said: According to most scholars, a free woman is not a bed except with the possibility of intercourse, and the child is attributed within a period she could give birth, the minimum being six months. Abu Hanifah diverged, saying if he divorces her immediately after the contract without the possibility of intercourse and she bears a child six months from the contract, it is attributed to him. He also said: What Abu Hanifah held contradicts what Allah has made customary, that a child comes from the man’s and woman’s fluids. Al-Ayni said: Abu Hanifah did not diverge or contradict what Allah has made customary. The author of al-Tawdih and those who followed him did not grasp what Abu Hanifah understood in this issue. He argued for his view with: “The child belongs to the bed,” meaning the owner of the bed, without mentioning the requirement of intercourse. The contract is like intercourse in this regard, unlike a slave girl, who has no bed, so her child’s lineage is only established by her master’s acknowledgment.

(1) قوله: هو لك يا عبد بن زمعة، الولد للفراش إلخ : ذهب الشافعي إلى أن الأمة إذا وطئها مولاها فقد لزمه كل ولد يجيء به بعد ذلك ادعاه أو لم يدعه، واحتج في ذلك بهذا الحديث؛ لأن رسول الله ﷺ قال: هو لك يا عبد بن زمعة، ثم قال: الولد للفراش وللعاهر الحجر، فألحقه رسول الله ﷺ بزمعة لا لدعوة ابنه ؛ لأن دعوة الابن للنسب لغيره من أبيه غير مقبولة، ولكن لأن أمه كانت فراشا لزمعة بوطئه إياها، يعني تصير الأمة فراشا لسيدها بوطئه إياها، أو بإقراره أنه وطئها، ولا تكون فراشا بنفس الملك دون الوطئ. وقال أبو حنيفة: لا تكون فراشا بالوطئ، ولا بالإقرار به أصلا، فلو وطئها أو أقر بوطئها فأتت بولد لم يلحقه، وكان مملوكًا، وأمه مملوكة له، وإنما يلحقه ولدها إذا أقر به، يعني أن الأمة لا يثبت فراشها إلا بدعوة الولد، ولا يكفي الإقرار بالوطئ، فإن لم يدعه كان ملكا له، حاصله: أن ما جاءت به هذه الأمة من ولد فلا يلزم مولاها إلا أن يقربه وإن مات قبل أن يقربه لم يلزمه، وكان من الحجة لأبي حنيفة له في الحديث أن رسول الله ﷺ إنما قال لعبد بن زمعة هو لك يا عبد بن زمعة ولم يقل: هو أخوك، فقد يجوز أن يكون أراد بقوله: «هو لك أي هو مملوك لك لحق ما لك عليه من اليد، ولم يحكم في نسبه بشيء. والدليل على ذلك أن رسول الله ﷺ قد أمر سودة بنت زمعة بالحجاب منه، فلو كان النبي ﷺ كان قد جعله ابن زمعة إذا لما حجب بنت زمعة منه ؛ لأنه الله لم يكن يأمر بقطع الأرحام، بل كان يأمر بصلتها، ومن صلتها التزاور، فكيف يجوز أن يأمرها، وقد جعله أخاها بالحجاب منه، هذا لا يجوز عليه ، وكيف يجوز ذلك عليه، وهو يأمر عائشة أن تأذن لعمها من الرضاعة عليها، ثم يحجب سودة ممن قد جعله أخاها وابن أبيها، ولكن وجه ذلك عندنا - والله أعلم - أنه لم يكن حكم فيه بشيء غير اليد التي جعله بها لعبد ابن زمعة ولسائر ورثة زمعة دون سعد، فإن قال قائل : فما معنى قوله الذي وصله بهذا الولد للفراش وللعاهر الحجر ؟ قيل له : ذلك على التعليم منه لسعد أي تدعي لأخيك وأخوك لم يكن له فراش، وإنما يثبت النسب منه لو كان له فراش، فإذا لم يكن له فراش فهو عاهر وللعاهر الحجر. فإن قال قائل : إنما كان أمرها بالحجاب منه لما كان رأى من شبه بعتبة، كما في حديث عائشة ، قيل له : هذا لا يجوز أن يكون كذلك؛ لأن وجود الشبهة لا يجب به ثبوت نسب، ولا يجب بعدمه انتفاء النسب. ألا ترى إلى الرجل الذي قال الرسول الله ﷺ : إن امرأتي ولدت غلاما أسود، فقال له رسول الله : هل لك من إبل؟ فقال: نعم، قال: فما ألوانها ؟ فذكر كلاما قال: فهل فيها من أورق ؟ قال: إن فيها لورقا ، قال : مما ترى ذلك جاءها؟ قال: من عرق نزعه، فقال رسول الله ﷺ: ولعل هذا من عرق نزعه، فلم يرخص له رسول الله ﷺ في نفيه لبعد شبهه منه ولا منعه من إدخاله على بناته وحرمه، بل ضربه له مثلا الله به أن الشبه لا يوجب ثبوت الأنساب، وإن عدمه لا يجب به انتفاء الأنساب، فكذلك ابن وليدة زمعة لو كان وطئ زمعة لأمه يوجب ثبوت نسبه منه، إذا لما كان لبعد شبهه منه معنى، ولكان نسبه منه ثابتا لدخل على بناته، كما يدخل عليهن غيره من بنيه. وهذا الكلام متعقب بالرواية المصرحفيها بقوله: هو أخوك». ولكن يراد به أخوك في الدين، ويحتمل أن يكون أصل الحديث هو لك، فظن الراوي أن معناه أخوه في النسب، فحمله على المعنى الذي عنه، والخبر الذي يرويه عبد الله بن الزبير صرح بأنه قال: «فإنه ليس لك بأخ». وفي حديث عمرو بن شعيب أحكام قضى بها رسول الله ﷺ في أوائل الإسلام ومبادي الشرع. قاله الخطابي؛ لذا لا يستدل به على عدم شرط الدعوة في نسب ولد الأمة، وأيضًا ظاهر الحديث الذي ذكر في المتن أن الولد إنهما يلحق بالأب بعد ثبوت الفراش، وهو لا يثبت إلا بعد إمكان الوطئ في النكاح الصحيح أو الفاسد وإلى ذلك ذهب الجمهور وروي عن أبي حنيفة الله أنه يثبت بمجرد العقد قال: حتى لو نكح المغربي مشرقية ولم يفارق واحد منهما وطئه، ثم أتت بولد لستة أشهر أو أكثر يلحقه. قاله في نيل الأوطار». وقال صاحب التوضيح: وعند جمهور العلماء أن الحرة لا تكون فراشا إلا بإمكان الوطئ، ويلحق الولد في مدة تلد في مثلها، وأقل ذلك ستة أشهر، وشذ أبو حنيفة، فقال: إذا طلقها عقيب النكاح من غير إمكان وطئ فأتت بولد لستة أشهر من وقت العقد فإنه يلحقه. وقال أيضا: وما ذهب إليه أبو حنيفة خلاف ما أجرى الله تعالى به العادة من أن الولد إنما يكون من ماء الرجل وماء المرأة، انتهى. قال العلامة العيني: إن أبا حنيفة لم يشذ فيما ذهب إليه ولا خالف ما أجرى الله به العادة، وإن صاحب التوضيح ومن سلك مسلكه لم يدركا في هذه المسألة ما أدركه أبو حنيفة؛ لأنه احتج فيما ذهب إليه بقوله: الولد للفراش أي لصاحب الفراش، ولم يذكر فيه اشتراط الوطئ، ولأن العقد فيها كالوطئ، بخلاف الأمة فإنه ليس لها فراش، فلا يثت نسب ما ولدته الأمة إلا باعتراف مولاها، انتهى. وقال في تنسيق النظام واعلم أن النووي شرط في هذا النسب إمكان الوطئ على ما هو مذهب مالك والشافعي ما وفيه رد على أبي حنيفة في عدم الاشتراط ومثل فيه المغربية والمشرقية، قال: وهذا ضعيف ظاهر الفساد ولا حجة له في إطلاق الحديث؛ لأنه خرج على الغالب، وهو حصول الإمكان عند العقد، انتهى. أقول عليه أما أولا أن الحكم قد يدار على الداعي، والدال نائبا عن المدعو والمدلول، ولا يلتفت إلى حقيقة وجودهما أصلا، كما في السفر والمشقة، فالعقد جعل بمنزلة الوطئ في هذا المعنى. وقد قال النووي أيضًا: فإن كانت زوجة صارت فراشا بمجرد عقد النكاح فمذهبه ليس ضعيفًا ظاهر الفساد بل مذهبهم كذلك، وثانيا: أن مذهبهم خلاف إطلاق الحديث وخروجه على الغالب ممنوع، لا بد له من دليل وثالثا : أن الموطوءة إذا مضت عليها سنون هو زوجها في السفر وحاضت فيها مرات، فإذا طلقها تعتد بلا مرية مع أن براءة الرحم معلومة بالضرورة، وكذا لو كان معها ويعلم أنها تحيض، وليست بحامل كما هو السنة في الطلاق في طهر لا وطئ فيه، فظهر أن مطلق الوطئ جعل قائما مقام شغل الرحم، وإن علم برائتها قطعًا، فأين الإمكان ههنا؟ فقوله: مناف للأصول الشرعية، فافهم.

(1) His statement: “He is shared between you; he inherits from both of you, and you both inherit from him,” etc. This indicates that the opinion of physiognomists is not used for lineage or otherwise, as held by the Kufans, al-Thawri, Abu Hanifah, and his companions. Al-Shafi‘i and others cited the hadith of al-Mudliji to establish the validity of physiognomy and ruling by their opinions in attributing a child. If it were not so, the Prophet (ﷺ) would have objected to Mujazziz, saying: “How do you know?” His silence and lack of objection indicate that their opinion leads to a truth that warrants ruling. The Hanafis’ evidence against them is that the Prophet’s (ﷺ) pleasure with Mujazziz’s statement in Aishah’s hadith does not indicate what they assumed about the obligation to rule by physiognomists’ opinions. Usamah’s lineage from Zayd (may Allah be pleased with them) was established before that, and the Prophet (ﷺ) did not need anyone’s opinion. Otherwise, Usamah would not have been attributed to Zayd earlier. The Prophet’s (ﷺ) amazement was at Mujazziz’s accuracy, as one is amazed at someone whose assumption correctly identifies the reality, but it does not necessitate ruling by it. The Prophet (ﷺ) did not object because Mujazziz’s statement did not attempt to establish what was not already established. Allah says: “And do not pursue that of which you have no knowledge” [Qur’an 17:36]. This is summarized in Sharh Ma‘ani al-Athar. Al-Qari said: The hadith of al-Mudliji does not establish lineage by physiognomy; it is only for reinforcement and dispelling suspicion, like when a just witness testifies to seeing the crescent moon, and an astrologer agrees. The astrologer’s opinion is not a standalone proof for affirmation or negation but can reinforce a legal proof. Our evidence is the hadith: “The child belongs to the bed.” The inference is that the definite article and the lam of specification indicate exclusivity. Ibn al-Humam said: If a slave girl is shared between two partners and bears a child, and one claims it, his lineage is established from him, whether in sickness or health, and she becomes his umm walad by agreement, without compensating the partner’s share in solvency or insolvency. If both claim it, his lineage is established from both, and she becomes their umm walad, serving each one day. If one dies, she is freed, and the son inherits from both as a full son, and they inherit from him as one father. If one dies, the son’s entire inheritance goes to the surviving one. This is our view, as held by al-Thawri and Ishaq ibn Rahawayh. Al-Shafi‘i held this in his old opinion. Ahmad preferred the hadith of physiognomy, and it is said to be used if physiognomists are absent. Al-Shafi‘i said to refer to the physiognomist’s opinion, and if none is found, the matter is deferred until the child reaches maturity and chooses one. If he does not choose, his lineage remains deferred, not established except from his mother.

(2) His statement: In a narration by al-Bayhaqi, etc. This is stated in al-Binayah.

(۲) قوله: وفي رواية للبيهقي إلخ : كذا في «البناية».

(1) His statement: “Then keep her,” etc. Therefore, it is said in al-Durr al-Mukhtar: It is not obligatory for a husband to divorce an immoral wife. In Radd al-Muhtar: Nor is it obligatory for her to release an immoral husband, unless they fear they will not uphold Allah’s limits, in which case there is no harm in separating. Immorality includes adultery and other sins. The Prophet (ﷺ) said to one whose wife did not repel the hand of a toucher, and who said: “I love her,” “Enjoy her.”