Hadith 3318

(1) The statement: “I will stay seven with you, etc.”: Based on these Hadiths, our scholars said the new and old wife are equal in division, whether the new is a virgin or previously married. Ash-Shafi‘i said: If she is a virgin, he favors her with seven nights; if previously married, three nights, then equality, citing Abu Hurayrah’s Hadith that the Prophet (ﷺ) said: “Favor the virgin with seven and the previously married with three.” The old wife is accustomed to his companionship and comfortable with him, while the new wife is not, having some shyness and unease, so he should remove that with companionship to equal the old wife in familiarity, then equality follows. A virgin has greater shyness toward men, so she is favored with seven nights. A previously married woman has experienced men but not him specifically, so three nights suffice for her to become familiar with his companionship. Our evidence is that the cause of obligatory equality is their inclusion in his marriage, which is realized by the contract itself. If favoring one were required, the old wife would be more entitled, as her unease is greater, having another brought upon her, which typically angers her. The old wife has greater sanctity due to her service, as it is said: Every new has pleasure, and every old has sanctity. As for the Hadith, it means favoring by starting, not increasing, as in Umm Salamah’s Hadith: “If you wish, I will stay seven with you and seven with them,” and “If you wish, I will stay three with you and rotate,” meaning I will rotate with the same among each of them. We say: The husband may start with the new wife for the pleasure in that, but after equalizing between them, as in Al-Mabsut. In Umdat al-Qari, Imam At-Tahawi said: Some said if a man marries a previously married woman, he has the choice to stay seven with her and seven with the others, or three with her and rotate among the rest day by day, night by night. I say: He meant by “some” Ibrahim an-Nakha‘i, ‘Amir ash-Sha‘bi, Malik, Ash-Shafi‘i, Ahmad, Ishaq, Abu Thawr, and Abu ‘Ubayd. He said: Others differed, saying if he stays three with her, three with the others, as if he stays seven with her, seven with the others. I say: He meant by “others” Hammad ibn Abi Sulayman, Al-Hakam ibn ‘Utbah, Abu Hanifah, Abu Yusuf, and Muhammad. They cited Umm Salamah’s Hadith, narrated by At-Tahawi, that the Messenger of Allah (ﷺ) said to her, “If you wish, I will stay seven with you and seven with them,” narrated at length by Ahmad, and longer by At-Tabarani, Abu Ya‘la, and Al-Bayhaqi. At-Tahawi said: When he said to her, “If you wish, I will stay seven with you and seven with them,” meaning I will be just between them and you, giving each seven as I stayed seven with you. Likewise, if he stays three with her, he stays three with each of them. The Shafi‘is said Anas’s Hadith is evidence against the Hanafis. I say: Likewise, Umm Salamah’s Hadith is evidence against the Shafi‘is. The Hanafis also cited Aishah’s Hadith that the Prophet (ﷺ) divided among his wives justly, narrated by the four, recently mentioned, whose apparent meaning requires absolute equality. In Bahr ar-Ra’iq: What is narrated in the Hadith, “For the virgin seven, for the previously married three,” and his saying to Umm Salamah, “If you wish, I will stay seven with you and seven with my wives, or three with you and rotate,” means favoring by starting with the new wife, not increasing. There is no doubt the Hadiths are ambiguous, not definitive, so the definitive evidence and absolute Hadiths take precedence. In Sharh Durar al-Bihar: The Hadith does not negate equality but allows choosing rotation with seven or three, reconciling with what we narrated.

(2) The statement: “Meaning with three among the rest”: This is the essence of what Imam At-Tahawi said, meaning “rotate” refers to rotating among the rest with three to achieve equality.