The Prophet and his companions assumed Ihram for Hajj and none except the Prophet (p.b.u.h) and Talha had the Hadi (sacrifice) with them. `Ali arrived from Yemen and had a Hadi with him. `Ali said, "I have assumed Ihram for what the Prophet has done." The Prophet ordered his companions to perform the `Umra with the lhram which they had assumed, and after finishing Tawaf (of Ka`ba, Safa and Marwa) to cut short their hair, and to finish their lhram except those who had Hadi with them. They (the people) said, "How can we proceed to Mina (for Hajj) after having sexual relations with our wives?" When that news reached the Prophet he said, "If I had formerly known what I came to know lately, I would not have brought the Hadi with me. Had there been no Hadi with me, I would have finished the state of lhram." `Aisha got her menses, so she performed all the ceremonies of Hajj except Tawaf of the Ka`ba, and when she got clean (from her menses), she performed Tawaf of the Ka`ba. She said, "O Allah's Apostle! (All of you) are returning with the Hajj and `Umra, but I am returning after performing Hajj only." So the Prophet ordered `Abdur-Rahman bin Abu Bakr to accompany her to Tan`im and thus she performed the `Umra after the Hajj.

The Prophet (along with his companions) reached Mecca in the morning of the fourth of Dhul-Hijja assuming Ihram for Hajj only. So when we arrived at Mecca, the Prophet ordered us to change our intentions of the Ihram for `Umra and that we could finish our Ihram after performing the `Umra and could go to our wives (for sexual intercourse). The people began talking about that. Jabir said surprisingly, "Shall we go to Mina while semen is dribbling from our male organs?" Jabir moved his hand while saying so. When this news reached the Prophet he delivered a sermon and said, "I have been informed that some peoples were saying so and so; By Allah I fear Allah more than you do, and am more obedient to Him than you. If I had known what I know now, I would not have brought the Hadi (sacrifice) with me and had the Hadi not been with me, I would have finished the Ihram." At that Suraqa bin Malik stood up and asked "O Allah's Apostle! Is this permission for us only or is it forever?" The Prophet replied, "It is forever." In the meantime `Ali bin Abu Talib came from Yemen and was saying Labbaik for what the Prophet has intended. (According to another man, `Ali was saying Labbaik for Hajj similar to Allah's Apostle's). The Prophet told him to keep on the Ihram and let him share the Hadi with him.

There was some quarrel (sighting) among Bani `Amr, and when this news reached the Prophet, he offered the Zuhr prayer and went to establish peace among them. In the meantime the time of `Asr prayer was due, Bilal pronounced the Adhan and then the Iqama for the prayer and requested Abu Bakr (to lead the prayer) and Abu Bakr went forward. The Prophet arrived while Abu Bakr was still praying. He entered the rows of praying people till he stood behind Abu Bakr in the (first) row. The people started clapping, and it was the habit of Abu Bakr that whenever he stood for prayer, he never glanced side-ways till he had finished it, but when Abu Bakr observed that the clapping was not coming to an end, he looked and saw the Prophet standing behind him. The Prophet beckoned him to carry on by waving his hand. Abu Bakr stood there for a while, thanking Allah for the saying of the Prophet and then he retreated, taking his steps backwards. When the Prophet saw that, he went ahead and led the people in prayer. When he finished the prayer, he said, "O Abu Bakr! What prevented you from carrying on with the prayer after I beckoned you to do so?" Abu Bakr replied, "It does not befit the son of Abi Quhafa to lead the Prophet in prayer." Then the Prophet said to the people, "If some problem arises during prayers, then the men should say, Subhan Allah!; and the women should clap." (See Hadith No. 652, Vol. 1)

Yahya related to me from Malik from Yahya ibn Said from Sulayman ibn Yasar that Abdullah ibn Abbas and Abu Salama ibn Abd ar-Rahman ibn Awf differed on the question of a wornan who gave birth a few nights after the death of her husband. Abu Salama said, "When she gives birth to the child she is carrying, she is free to marry." Ibn Abbas said, "At the end of two periods." Abu Hurayra came and said, "I am with my nephew", meaning Abu Salama. They sent Kurayb, a mawla of Abdullah ibn Abbas to Umm Salama, the wife of the Prophet, may Allah bless him and grant him peace, to ask her about it. He came back and told them that she had said that Subaya al-Aslamiya had given birth a few nights after the death of her husband, and she had brought the matter to the Messenger of Allah, may Allah bless him and grant him peace, and he had said, "You are free to marry, so marry whomever you wish."

Malik said, "This is how the people of knowledge here continue to act."

29.31 Widows Remaining in Their Houses until Free to Marry

According to the version of Al Nufaili, A’ishah said “The Prophet (saws) used to pass by a patient while he was observing I’tikaf(in the mosque) but he passed as usual and did not stay asking about him.”

According to the version of Ibn Isa she said “The Prophet (saws) would visit a patient while he was observing I’tikaf.”

The Messenger of Allah (saws) came to Fatimah and found a curtain hanging at her door, so he did not enter. Whenever he entered (the house), he would visit her first. Then Ali came and found that Fatimah was grieved.

He asked: What is the matter with you? She replied: The Messenger of Allah (saws) came to me but did not enter (the house).

Ali then came to him and said: Messenger of Allah, Fatimah felt it keenly that you came to visit her but did not go in. He replied: What have I to do with this world? What have I to do with prints and figures (on the curtain)? He (Ali) then went to Fatimah and informed her of what the Messenger of Allah (saws) had said.

She said: Ask the Messenger of Allah (saws) what he me to do about it.

He (the Prophet) said: Tell her that she must send it to so-and-so.

Abu Dawud said: This tradition has been narrated by ‘Amr b. Salamah through a different chain of transmitter. This version has: “When my clan visited the Prophet( may peace be upon him) ....” He did not report it on the authority of his father.

Yahya related to me from Malik from a man who said, "Zayd ibn Thabit came across me while I was at al-Aswaf (on the outskirts of Madina). I had captured a hawk. He took it from my hands and set it free."

Malik related to me that he heard that Abu Salama ibn Abd ar- Rahman and Sulayman ibn Yasar were both asked, "Does one pronounce judgement on the basis of an oath with one witness?" They both said, "Yes."

Malik said, "The precedent of the sunna in judging by an oath with one witness is that if the plaintiff takes an oath with his witness, he is confirmed in his right. If he draws back and refuses to take an oath, the defendant is made to take an oath. If he takes an oath, the claim against him is dropped. If he refuses to take an oath, the claim is confirmed against him."

Malik said, "This procedure pertains to property cases in particular. It does not occur in any of the hadd-punishments, nor in marriage, divorce, freeing slaves, theft or slander. If some one says, 'Freeing slaves comes under property,' he has erred. It is not as he said. Had it been as he said, a slave could take an oath with one witness, if he could find one, that his master had freed him.

"However, when a slave lays claim to a piece of property, he can take an oath with one witness and demand his right as the freeman demands his right."

Malik said, "The sunna with us is that when a slave brings somebody who witnesses that he has been set free, his master is made to take an oath that he has not freed him, and the slave's claim is dropped."

Malik said, "The sunna about divorce is also like that with us. When a woman brings somebody who witnesses that her husband has divorced her, the husband is made to take an oath that he has not divorced her. If he takes the oath, the divorce does not proceed . "

Malik said, "There is only one sunna of bringing a witness in cases of divorce and freeing a slave. The right to make an oath only belongs to the husband of the woman, and the master of the slave. Freeing is a hadd matter, and the testimony of women is not permitted in it because when a slave is freed, his inviolability is affirmed and the hadd punishments are applied for and against him. If he commits fornication and he is a muhsan, he is stoned. If he kills a slave, he is killed for it. Inheritance is established for him, between him and whoever inherits from him. If somebody disputes this, arguing that if a man frees his slave and then a man comes to demand from the master of the slave payment of a debt, and a man and two women testify to his right, that establishes the right against the master of the slave so that his freeing him is cancelled if he only has the slave as property, inferring by this case that the testimony of women is permitted in cases of setting free. The case is not as he suggests (i.e. it is a case of property not freeing). It is like a man who frees his slave, and then the claimant of a debt comes to the master and takes an oath with one witness, demanding his right. By that, the freeing of the slave would be cancelled. Or else a man comes who has frequent dealings and transactions with the master of the slave. He claims that he is owed money by the master of the slave. Someone says to the master of the slave, 'Take an oath that you don't owe what he claims'. If he draws back and refuses to take an oath, the one making the claim takes an oath and his right against the master of the slave is confirmed. That would cancel the freeing of the slave if it is confirmed that property is owed by the master."

Malik said, "It is the same case with a man who marries a slave-girl and then the master of the slave-girl comes to the man who has married her and claims, 'You and so-and-so have bought my slave-girl from me for such an amount of dinars. The husband of the slave-girl denies that. The master of the slave-girl brings a man and two women and they testify to what he has said. The sale is confirmed and his claim is considered true. So the slave-girl is haram for her husband and they have to separate, even though the testimony of women is not accepted in divorce."

Malik said, "It is also the same case with a man who accuses a free man, so the hadd falls on him. A man and two women come and testify that the one accused is a slave. That would remove the hadd from the accused after it had befallen him, even though the testimony of women is not accepted in accusations involving hadd punishments."

Malik said, "Another similar case in which judgement appears to go against the precedent of the sunna is that two women testify that a child is born alive and so it is necessary for him to inherit if a situation arises where he is entitled to inherit, and the child's property goes to those who inherit from him, if he dies, and it is not necessary that the two women witnesses should be accompanied by a man or an oath even though it may involve vast properties of gold, silver, live-stock, gardens and slaves and other properties. However, had two women testified to one dirham or more or less than that in a property case, their testimony would not affect anything and would not be permitted unless there was a witness or an oath with them."

Malik said, "There are people who say that an oath is not acceptable with only one witness and they argue by the word of Allah the Blessed, the Exalted, and His word is the Truth, 'And call in to witness two witnesses, men; or if the two be not men, then one man and two women, such witnesses as you approve of.' (Sura 2 ayat 282). Such people argue that if he does not bring one man and two women, he has no claim and he is not allowed to take an oath with one witness."

Malik said, "Part of the proof against those who argue this, is to reply to them, 'Do you think that if a man claimed property from a man, the one claimed from would not swear that the claim was false?' If he swears, the claim against him is dropped. If he refuses to take an oath, the claimant is made to take an oath that his claim is true, and his right against his companion is established. There is no dispute about this with any of the people nor in any country. By what does he take this? In what place in the Book of Allah does he find it? So if he confirms this, let him confirm the oath with one witness, even if it is not in the Book of Allah, the Mighty, the Majestic! It is enough that this is the precedent of the sunna. However, man wants to recognise the proper course of action and the location of the proof. In this there is a clarification for what is obscure about that, if Allah ta'ala wills."

A lady committed theft during the lifetime of Allah's Apostle in the Ghazwa of Al-Fath, ((i.e. Conquest of Mecca). Her folk went to Usama bin Zaid to intercede for her (with the Prophet). When Usama interceded for her with Allah's Apostle, the color of the face of Allah's Apostle changed and he said, "Do you intercede with me in a matter involving one of the legal punishments prescribed by Allah?" Usama said, "O Allah's Apostle! Ask Allah's Forgiveness for me." So in the afternoon, Allah's Apostle got up and addressed the people. He praised Allah as He deserved and then said, "Amma ba'du ! The nations prior to you were destroyed because if a noble amongst them stole, they used to excuse him, and if a poor person amongst them stole, they would apply (Allah's) Legal Punishment to him. By Him in Whose Hand Muhammad's soul is, if Fatima, the daughter of Muhammad stole, I would cut her hand." Then Allah's Apostle gave his order in the case of that woman and her hand was cut off. Afterwards her repentance proved sincere and she got married. `Aisha said, "That lady used to visit me and I used to convey her demands to Allah's Apostle."

Yahya related to me from Malik that he had heard that Abdullah ibn Abbas and Abdullah ibn Umar were asked about a man who had a free woman as a wife and then wanted to marry a slave-girl. They disapproved that he should combine the two of them.