It was also narrated by al-Athram (4) from al-Ahnaf, from 'Umar and 'Ali (5), and from Sa'id ibn al-Musayyab. From Zayd ibn Thabit, [it is narrated that]: The waiting period (iddah) is upon her, and she has the full dower. These are matters that became well-known, and no one opposed them in their era, so it was a consensus. As for what they narrated from Ibn 'Abbas, it is not authentic. Ahmad said: Layth narrates it, and he is not strong; Hanzala narrated the opposite of what Layth narrated, and Hanzala is stronger than (6) Layth. The hadith of Ibn Mas'ud is disconnected (munqati'), as stated by Ibn al-Mundhir. [This is also because] the delivery of what is due was found on her part, so the consideration (the dower) is established thereby, just as if he had intercourse with her, or as if she had leased her house or sold it and delivered it. As for His saying, the Almighty: {Before you have touched them}, it is possible that it refers to the effect (the touching) by mentioning the cause, which is the seclusion (khalwah), according to the evidence we have mentioned. As for His saying: {While you have already gone in unto one another (afdaytum)}, it has been narrated from al-Farra' that he said: Ifda' means seclusion, whether he entered into her or did not. This is correct; for ifda' is derived from al-fada', which is the empty space (al-khali), as if He said: "And you have been in seclusion with one another." The statement of al-Khiraqi: "Their ruling is the ruling of consummation in all their matters," means in the ruling of what would happen if he had intercourse with her, such as completing the dower, the obligation of the waiting period, the prohibition of her sister and four others besides her if he divorces her until her waiting period ends, and the establishment of his right of revocation (raj'ah) over her during her waiting period. [Al-Thawri said] (7), and Abu Hanifa: He has no revocation over her if he acknowledges that he did not have intercourse with her. Our evidence is the saying of the Almighty: {And their husbands have more right to take them back in that [period]} (8). [Also] because she is a woman observing a waiting period from a valid marriage; her marriage was not annulled, nor has the number of her divorces been completed, nor did he divorce her in exchange for compensation, so he has the right of revocation over her, just as if he had intercourse with her. She has the right to maintenance and housing during the waiting period from him, because that is for whomever the husband has the right of revocation over. Seclusion does not establish legality for a husband who has divorced his wife three times; due to the Prophet's (peace be upon him) statement to the wife of Rifa'a al-Qurazi (9): "Do you wish to return to Rifa'a? No, not until you have tasted his 'honey' and he has tasted your 'honey'" (10). Nor does it establish the state of being a muhsan (chaste married person); because that is considered for the obligation of the hadd (prescribed penalty), and hudud are averted by doubts. Nor does it establish the obligation of ghusl (ritual bathing); because the causes of ghusl are five, and this is not among them. Nor does he exit from impotence ('unnah) by it; because impotence is the inability to have intercourse, so it is not removed except by the reality of intercourse. And fa'a (restitution of conjugal rights) is not attained by it; because that is the return from what one has sworn against, and he has only sworn to refrain from intercourse, and the woman's right is not attained except by the act of intercourse itself. Acts of worship are not invalidated by it. No expiation is obligatory due to it. As for the prohibition of the step-daughter (rabiba), there is a report from Ahmad that it is established by seclusion. Al-Qadi and Ibn 'Aqil said: It does not render her prohibited. Al-Qadi interpreted the words of Ahmad as meaning that viewing or fondling occurred along with the seclusion, so his words can be categorized under one of the two narrations regarding whether that renders her prohibited. The correct view is that it (12) does not render her prohibited, due to the words of Allah the Almighty: {But if you have not gone in unto them, there is no sin upon you} (13). "Entering into" (dukhul) is a metonym for intercourse, and the text is explicit in permitting her without it, so it is not permissible to oppose it.
(4) Dropped from: A, B, M. (5) And it was recorded by al-Bayhaqi, in the aforementioned location. (6) Dropped from: M. (7) Dropped from: Original. (8) Surah al-Baqarah: 228. (9) In M: "al-Qurashi". This is a distortion.
وروَاه الأَثْرَمُ (٤) أيضًا، عن الأحْنَفِ، عن عمرَ وعلىٍّ (٥)، وعن سعيد بن المُسَيَّبِ. وعن زَيدِ بن ثابتٍ: عليها العِدَّةُ، ولها الصَّداقُ كاملًا. وهذه قضايا تَشْتَهِرُ، ولم يخالِفْهُم أحدٌ فى عَصْرِهم، فكان إجماعًا. وما رَوَوْه عن ابنِ عباسٍ، لا يَصِحُّ، قال أحمدُ: يَرْوِيه لَيْثٌ، وليس بالقَوِىِّ، وقد رَوَاه حَنْظَلةُ خِلافَ ما روَاه لَيْثٌ، وحَنْظَلةُ أقْوَى من (٦) لَيْثٍ. وحَدِيثُ ابنِ مسعودٍ مُنْقَطِعٌ. قالَه ابنُ المُنذرِ. ولأنَّ التَّسْليمَ المُسْتَحقَّ وُجِدَ من جهَتِها، فيَسْتَقِرُّ به البَدَلُ، كما لو وَطِئَها، أو كما لو أَجَرَتْ دارَها، أو باعَتْها وسَلَّمَتْها. وَأمَّا قولُه تعالى: {مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ}. فيَحْتَمِلُ أنَّه كَنَى بالمُسَبَّبِ عن السبَّبَ، الذى هو الخَلْوةُ، بدليلِ ما ذكرناه. وأمَّا قوله: {وَقَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ}. فقد حُكِىَ عن الفَرَّاءِ، أنَّه قال: الإفْضاءُ الخَلْوةُ، دَخَلَ بها أو لم يَدْخُلْ. وهذا صحيحٌ؛ فإنَّ الإفْضاءَ مَأخُوذٌ من الفَضَاءِ، وهو الخالِى، فكأنَّه قال: وقد خَلَا بعضُكُم إلى بعضٍ. وقولُ الخِرَقِىِّ: حُكْمُهما حكمُ الدُّخُولِ فى جميعِ أُمُورِهِما. يعنى فى حُكْمِ ما لو وَطِئَها، من تَكْمِيلِ المَهْرِ، وَوُجُوبِ العِدَّةِ، وتَحْرِيمِ أُخْتِها وأربَعٍ سِواها إذا طَلَّقَها حتى تَنْقَضِىَ عِدَّتُها، وثُبُوتِ الرجْعةِ له عليها فى عِدَّتِها. [وقال الثورىُّ] (٧)، وأبو حنيفةَ: لا رَجْعَةَ له عليها، إذا أقَرَّ أنَّه لم يُصِبْها. ولَنا: قولُه تعالى: {وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِى ذَلِكَ} (٨). ولأنَّها مُعْتَدَّة من نِكاحٍ صحيحٍ، لم يَنْفَسِخْ نِكاحُها، ولا كملَ عَدَدُ طَلاقِها، ولا طَلَّقَها بعِوَضٍ، فكان له عليها الرَّجْعةُ، كما لو أصَابَها. ولها عليه نَفَقةُ العِدَّةِ والسُّكْنَى؛ لأنَّ ذلك لِمَنْ لِزَوْجِها عليها الرجْعَةُ. ولا تَثْبُتُ بها الإِباحَةُ للزَّوْجِ المُطَلِّقِ ثَلاثًا؛ لقولِ النَّبِىِّ -صلى اللَّه عليه وسلم- لِامْرأةِ رِفاعةَ القُرَظِىِّ (٩): "أتُرِيدينَ أن
(٤) سقط من: أ، ب، م.(٥) وأخرجه البيهقى، فى الموضع السابق.(٦) سقط من: م.(٧) سقط من: الأصل.(٨) سورة البقرة ٢٢٨.(٩) فى م: "القرشى". تحريف.