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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 11 · Page 230

Translation · EN

and Ibn Sirin, Shurayh, al-Sha'bi, al-Nakha'i, al-Zuhri, al-Thawri, Abu Hanifah (1), Malik, al-Shafi'i, Ahmad, and Ishaq. Al-Athram said: I said to Abu Abd Allah: "If it is 'nuks' (inverted/developed) in the fourth creation?" meaning, does the waiting period end with it? He said: "If it is 'nuks' in the fourth creation, there is no disagreement regarding it, but if its creation becomes distinct, [this is more indicative] (2)." This is because when something of the human form becomes distinct in it, it is known to be a pregnancy, so it falls under the generality of His saying: {And those who are pregnant, their term is that they lay down their burden} (3).

The second scenario: She discharges a drop (nutfa) or blood, and she does not know whether it is that from which a human is created or not? No ruling attaches to this, because it has not been proven that it is a child, neither by observation nor by evidence.

The third scenario: She discharges a lump of flesh (mudgha) in which the formation is not yet distinct, but trustworthy midwives testify that it contains a latent form by which it is known to be a human formation. This is governed by the same rule as the first scenario, because it has been determined by the testimony of knowledgeable people that it is a child.

The fourth scenario: If she discharges a lump of flesh without a form, and trustworthy midwives testify that it is the beginning of a human creation. There is a difference in the narration from Ahmad. Abu Talib reported that her waiting period does not end with it, nor does she become an umm walad (mother of a child), because a human creation was not distinct in it, so it resembles blood. This has been mentioned (4) as an opinion of al-Shafi'i, and it is the preference of Abu Bakr. Al-Athram reported from Ahmad that her waiting period does not end with it, but she does become an umm walad, because there is doubt as to whether it is a child, so the expiration of the certain waiting period should not be ruled upon based on something doubtful, and it is not permissible to sell the slave woman who has borne it due to the doubt regarding her status; thus, it is established that she is an umm walad as a precaution, and the waiting period does not end as a precaution. Hanbal reported that she becomes an umm walad, and he did not mention the waiting period, so some of our companions said: Based on this, the waiting period ends with it. This is the opinion of al-Hasan, and it is the manifest (5) school of al-Shafi'i, because they testified that it is a human formation, so it resembles [the case] where it had formed. The correct view is that this is not a narration (6) regarding the waiting period, because he did not mention it and did not address it.

The fifth scenario: That she delivers

Notes

(1) Dropped from: A, B, M. (2) In A: "wa hadha awla" (and this is more appropriate). (3) Surah al-Talaq 4. (4) In A: "naqala" (he reported). (5) In B: "wa hadha zahir" (and this is the manifest). (6) In A and M: "bi-riwaya" (as a narration).

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