Islamic Fiqh > Marriage and family > Couple life in the Sunna: daily benevolence > The night as the basis of division between wives
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
This chapter completes the fiqh study of the division of time between wives (qisma). It covers the basis of the division, its duration, the wives' place of residence, travel, the husband's illness, then a wife's gift of her night, its revocation, and the question of domestic service. The positions of the four schools are reported faithfully, with authenticated hadiths and classical references.
The fact that he may divorce her is a matter on which there is no disagreement among the people of knowledge (Al-Iqna fi masa'il al-ijma, 3/1236 and 1238, no. 2262 and 2265). Imam Ibn Qudama said: we know of no disagreement among the people of knowledge on the obligation of equity between wives in the division (Al-Mughni, 7/229). Shaykh al-Islam Ibn Taymiyya said: equity between the two wives is obligatory upon him by the consensus of the Muslims. In the four Sunan collections, from Abu Hurayra, the Prophet said:
Whoever has two wives and inclines toward one of them over the other will come on the Day of Resurrection with one side of his body leaning.Reported in the four Sunan collections from Abu Hurayra
He must therefore be equitable in the division: if he spends a night, two or three with one, he spends the same number with the other, without preferring either in the sharing (Majmu al-fatawa, 32/269). The jurists of the Muslims are agreed: the basis of the division is the night, because it is the time of rest. Allah said:
"wives for you that you may find tranquility in them"
Surah Ar-Rum, 21
During the time of the division, the husband joins his wife at night and attends to his own affairs by day: the night is the time of rest and lodging, the day the time of earning a living and of activity. Allah said:
"We have made the night a clothing, and We have made the day a means of livelihood"
Surah An-Naba, 10-11
And because, if a master marries his slave woman, the husband has the right of access to her at night while he may employ her by day: it is thereby known that the night is the foundation of the division. The husband therefore may not, at night, leave the wife whose time he has allotted, except out of necessity. By day, however, he may do as he wishes: he may enter upon another of his wives without intending intimacy with her, and he may kiss her and touch her without prolonging it.
Hisham ibn Urwa reported from his father, from Aisha:
Hardly a day passed without the Messenger of Allah entering upon his wives, drawing near to each of them, kissing her and touching her without intercourse, then spending the night with the wife whose night it was.Reported by Aisha; cited in numerous classical works (Al-Jawhara al-nira, 4/368; Al-Ikhtiyar, 3/144; Al-Lubab, 2/58; Mukhtasar al-Wiqaya, 1/379; Durrar al-hukkam, 4/177; Al-Umm, 5/190; Al-Hawi al-kabir, 9/573; Al-Bayan, 9/512; Sharh Sahih Muslim, 15/210; Al-Mughni, 7/223; Kashshaf al-qina, 5/224-225; Manar al-sabil, 3/61-62, among others)
Imam Ibn Hubayra said: they are agreed that the basis of the division is the night (Al-Ifsah, 2/160). Ibn Qudama said: there is no dispute on this; the night is for rest and lodging: a man returns to his home, finds rest with his family and sleeps in his bed with his wife by habit, while the day is for earning a living, going out, earning and working. Allah said:
"He made the night for rest"
Surah Al-An'am, 96
"And of His mercy He made for you the night and the day, that you may rest therein and seek of His favor"
Surah Al-Qasas, 73
The Hanafis said: the basis of the division is the night; he does not consummate with a wife outside her day, and he does not enter at night upon the wife whose night it is not; there is no harm in visiting her by day for a need. He may visit her while she is ill during the night of another; if her illness is grave, he may stay with her until she recovers or dies (Al-Jawhara al-nira, 4/368; Al-Ikhtiyar, 3/144; Al-Lubab, 2/58; Mukhtasar al-Wiqaya, 1/379; Durrar al-hukkam, 4/177).
The Malikis said: it is forbidden for the husband to enter upon his co-wife during her day, by day or by night, because it is an injustice, except for a need; in that case what is not enjoyment is permitted, such as taking a garment or the like, without staying there, even if he could delegate the errand, on the most apparent view of the school, contrary to the one who says: he only enters for a need if delegation is impossible. He does not sit to converse except for a necessary excuse, such as collecting a debt or attending to her affairs; and that is when the two are in one town, or in two towns regarded as one, meaning that the people of each live intermingled. If they are in two towns not regarded as one, he may enter upon her by day in order to travel to her town, and consummate with her for the remainder of the day on which he leaves her. The husband may also perform ablution with the water of one of his wives, drink the water of her house and eat the food she sends him on the other's day, without intent; he may even stand at her door to ask after her and greet her without entering (Al-Taj wa-l-iklil, 3/7; Mawahib al-jalil, 5/224; Sharh Mukhtasar Khalil, 4/4; Hashiyat al-Adawi, 2/85; Al-Sharh al-kabir with the gloss of al-Dasuqi, 3/206-207; Tahrir al-mukhtasar, 3/90 and 92).
The Shafi'is said: the basis of the division is the night, and he may be absent during the day of the wife whose time is allotted to him in order to seek his livelihood in the market and attend to his needs. If he enters upon another during her day for a need, such as bringing her maintenance, visiting her while ill, visiting her after a long absence, speaking to her or her speaking to him, bringing something into her house or taking something from it, without staying long: this is permitted, with no make-up owed, because the purpose of the division is lodging, attained by the night and not the day; without intercourse, per the report of Aisha:
Not a day passed without the Messenger of Allah making the rounds of us all, kissing and touching; when he came to the one whose day it was, he stayed with her.Reported by Aisha
May he enjoy, without intercourse, the one he visits outside her day? There are two views, reported by Ibn al-Sabbagh: the first, no, because it secures rest and resembles intercourse; the second, which is the famous one, yes, according to the hadith of Aisha, Mother of the Believers. If he stays long with her outside her day, the make-up is owed. If he intends to enter upon her without need, it is not permitted: the right belongs to the other. If he enters upon her outside her day, consummates and leaves quickly: two views, reported by Shaykh Abu Ishaq: no make-up is owed, because nothing is due and its time is not fixed; or he must enter upon her on the day of the consummation and consummate, which is more just (Al-Bayan, 9/517-518; Rawdat al-talibin, 5/211-212; Asna al-matalib, 3/231; Al-Najm al-wahaj, 7/403 and 405; Mughni al-muhtaj, 4/415 and 417; Al-Dibaj, 3/359-360).
The Hanbalis said: it is forbidden for the one who has more than one wife to enter, on the night of one wife, upon another, because he thereby abandons what is obligatory upon him, except out of necessity, such as the other being near death and he wishing to attend her or receive her bequest, or whatever custom makes indispensable: a state of necessity that permits abandoning the obligatory, since the make-up remains possible later. If he does not stay, nothing is owed, as a short stay brings no benefit; if he stays or consummates, he must do the like for the other, since equity is obligatory and is only attained that way: by entering upon the wronged wife on the night of another and staying as long, or consummating if he consummated. If he kisses, touches or gazes with desire at the one he visits outside her night, nothing is owed for that night, per the report of Aisha:
The Messenger of Allah would come to me on the day of another wife and take from me everything except intercourse.Reported by Aisha; transmitted via al-Tabari, a hadith marfu in meaning; graded hasan by al-Albani (Al-Irwa, no. 2023)
Ahmad Shakir said in his verification of al-Tabari (4/377): Ibn Kathir transmitted it (1/510), as did al-Suyuti (1/260), without attributing it to anyone other than al-Tabari; in our view it is a hadith marfu in meaning, even though its wording is mawquf upon Aisha (Al-Mubdi, 7/207; Kashshaf al-qina, 5/229-230; Sharh Muntaha al-iradat, 5/322-323; Manar al-sabil, 3/62-63).
The Hanafi, Shafi'i and Hanbali jurists stated explicitly that whoever, among people, works at night and returns to his dwelling by day, like guards and their like, has the day as the basis of his division and not the night: the day is their time of rest and the night their time of work (Al-Durr al-mukhtar, 3/208; Al-Hawi al-kabir, 9/573-574; Rawdat al-talibin, 5/212; Al-Najm al-wahaj, 7/403; Mughni al-muhtaj, 4/415; Al-Dibaj, 3/359; Al-Mughni, 7/223; Al-Kafi, 3/129; Sharh al-Zarkashi, 2/446; Kashshaf al-qina, 5/225; Sharh Muntaha al-iradat, 5/318; Manar al-sabil, 3/61).
The jurists of the four schools are agreed: a man married to more than one woman may not gather them in one house except with their consent; if they accept it, this is permitted according to the majority of the Hanafi jurists, the Malikis (on one view), the Shafi'is and the Hanbalis. Ibn Abd al-Salam, of the Malikis, said: this is an obligatory right that does not lapse, even if the wife accepts it. They differ in the case of a dwelling whose lodgings have separate amenities: the majority holds it permitted to lodge them in one dwelling if each has independent amenities.
The Hanafis said: he may not gather the co-wives in one dwelling except with their consent, because of the sense of estrangement that results. If they gather there of their own accord, it is disliked that he consummate with one in the presence of the others: even if he asks her, she is not obliged to comply, and her refusal is not disobedience (nushuz) (Al-Bahr al-ra'iq, 3/273; Al-Fatawa al-Hindiyya, 1/341).
The Malikis said: a man may not gather his wives in one house even if they consent; and according to another view: it is permitted if they consent. He may bring two wives together in one dwelling under two conditions:
The wife may refuse to dwell with her husband's relatives, such as his parents, because of the harm of their scrutiny of her state, unless she is of humble station, in which case she has no complaint; the same applies to a woman of high rank if it was stipulated that she live with them; in both cases, so long as they have no access to what she must conceal.
If one of the two spouses has a young child and the other wants to expel the child from the home, he has the right to do so, on condition that someone carries and cares for the child; if not, the spouse is compelled to keep the child with him. If one of the two contracted the marriage with the other while a child was present, known to him, and later wants to expel the child, he has no right to do so; if he did not know of the child, he may refuse; and that is so long as the child has someone to care for him, otherwise the spouse without the child cannot refuse to dwell with him, whether the contract was concluded with knowledge or not (Al-Bayan wa-l-tahsil, 5/450; Sharh Mukhtasar Khalil, 4/188-189; Sharh Miyara, 1/446; Sharh al-Zarqani on Mukhtasar Khalil, 4/445; Tahrir al-mukhtasar, 3/411).
The Shafi'is said: it is forbidden for him to gather two wives or more in one dwelling, even for a single night, without their consent, because it leads to frequent quarrels and disobedience owing to the estrangement between them, and this is not kind companionship; each wife deserves lodging and cannot be compelled to share, just as she cannot be compelled to share a single garment; and that is when the facilities are shared, otherwise it is permitted if the situation suits it.
By dwelling is meant what befits a woman: a house, a chamber, a single independent home. What befits each of them, a house, dwelling or chamber, is not gathered into one dwelling or one chamber; but if the house has chambers with separate facilities, he may lodge them there; likewise one upstairs and one downstairs, if the facilities are distinct. For those suited to separate houses, he may lodge each in a house of one compound, without gathering them in one house except with their consent. That is in residence; in travel it is permitted: he may gather them, given the difficulty of isolating each under a tent or in a house, owing to the impermanence of staying.
If he gathers them in one dwelling with their consent, it is disliked, by way of simple disapproval, that he consummate with one in the presence of the other: a lack of decorum, poor companionship and remoteness from the sense of honor; if he asks her, she is not obliged to comply, and her refusal is not nushuz; al-Adhra'i held it forbidden. Then, if they retract their consent, they have the right to do so: their gathering in one dwelling breeds estrangement between them (Al-Bayan, 9/503; Rawdat al-talibin, 5/211; Al-Najm al-wahaj, 7/402; Mughni al-muhtaj, 4/414-415; Al-Dibaj, 3/358; Tuhfat al-muhtaj, 9/194-195).
The Hanbalis said: a man may not gather his two wives in one dwelling without their consent, whether the lodging is small or large, for there is harm upon them in the enmity and jealousy between them; their gathering provokes quarrels and fighting, and each hears the other when he goes to her or sees it. If they consent, it is permitted, for the right is theirs and they may waive it; likewise if they accept his sleeping between them under one blanket. If they accept his consummating with one where the other sees it, it is not permitted: it is a baseness, a foolishness and a loss of honor, not made lawful by their consent; it may moreover lead the one who sees it into indecency, for her desire may be aroused by it. Ahmad said, concerning the man who consummates with his wife while the other hears: they used to detest the hidden sound (al-rijas, the muffled noise) (Al-Mughni, 7/229; Al-Kafi, 3/126; Al-Mubdi, 7/202; Al-Insaf, 8/359-360; Kashshaf al-qina, 5/222; Matalib uli al-nuha, 5/270).
The majority of the jurists, as has come before, permit gathering two wives or more in one house with their consent. The scholars have nonetheless differed: is it forbidden for him to consummate with one in front of the other, or merely disliked? The Hanafis and the Shafi'is, in the madhhab, hold it disliked to consummate with one of the wives in front of the other. The Hanafis said: if the co-wives gather in one dwelling of their own accord, it is disliked that he consummate with one in the presence of the others: even if he asks her, she is not obliged to comply, and her refusal is not nushuz (Al-Bahr al-ra'iq, 3/273; Al-Fatawa al-Hindiyya, 1/341).
The Shafi'is said: if he gathers them in one dwelling with their consent, it is disliked, by way of simple disapproval, that he consummate with one in the presence of the other, because it is a lack of decorum and poor companionship remote from the sense of honor; if he asks her, she is not obliged to comply, and her refusal is not nushuz (Al-Bayan, 9/503; Al-Muhadhdhab, 2/66; Rawdat al-talibin, 5/211; Al-Najm al-wahaj, 7/402; Mughni al-muhtaj, 4/414-415; Al-Dibaj, 3/358; Tuhfat al-muhtaj, 9/194-195). The Malikis, al-Adhra'i among the Shafi'is and the Hanbalis hold that he may not consummate with one in front of the other.
The Malikis said: the husband may not enter the bath with his two wives, nor with his wife and her slave woman, nor with his wives, for on the most widespread view it is a place of probable sight of what must be concealed. Likewise, a man may not bring his two wives, his wife and her slave woman, or his wives together in one bed, even without consummating, on the most widespread view. Ibn al-Majishun said: they are only prevented from gathering in one bed if he gathers them for intercourse; their gathering without intercourse is disliked (Al-Kafi, 1/612; Mawahib al-jalil, 5/224-225; Al-Taj wa-l-iklil, 3/9; Sharh Mukhtasar Khalil, 4/6; Al-Sharh al-kabir with the gloss of al-Dasuqi, 3/208; Tahrir al-mukhtasar, 3/93).
Al-Khatib al-Shirbini said: the two shaykhs (al-Nawawi and al-Rafi'i) held it disliked to consummate with one in the presence of the other, because it is remote from the sense of honor; its apparent meaning is simple disapproval, and the author of al-Muhadhdhab stated it explicitly in his commentary on al-Tanbih. The words of a group imply prohibition, and al-Qadi Abu al-Tayyib stated it; al-Adhra'i held it, saying that it is what his text about the mother of the child (umm walad) requires, owing to the poor companionship and the casting off of modesty. A reconciliation is possible: the prohibition applies when one can see the intimate matters of the other. If the husband asks her and she refuses, she is not obliged to comply and her refusal is not nushuz, say the two shaykhs, together with their ruling of disapproval in this case.
The Hanbalis said: if they accept his sleeping between them under one blanket, it is permitted; if they accept his consummating with one where the other sees it, it is not permitted, for the reasons cited; Ahmad said, concerning the man who consummates with his wife while the other hears: they used to detest the hidden sound (Al-Mughni, 7/229; Al-Kafi, 3/126; Al-Mubdi, 7/202; Al-Insaf, 8/359-360; Kashshaf al-qina, 5/222; Matalib uli al-nuha, 5/270).
The jurists have differed: if a man marries a woman other than his wife, whether a virgin or previously married, does the new wife receive extra nights at the wedding? The majority of the jurists, the Malikis, Shafi'is and Hanbalis, hold that a man who renews his marriage by marrying another woman, while he has wives, must divide among them and give the new wife seven nights if she is a virgin, three if she has been married before; he stays with her during those nights without making up for his other wives, and those nights are not counted in her division. Once they have elapsed, she then joins the rotation and becomes the last of them. Some Malikis permitted beginning with her.
The majority cite what Abu Qilaba reported from Anas:
Of the sunna: when a man marries a virgin while he has a previously married wife, he stays with her seven nights and then divides; and when he marries the previously married while he has a virgin, he stays with her three nights and then divides.Reported by al-Bukhari (4915, 4916) and Muslim (1461)
Abu Qilaba said: were I to wish, I would say that Anas attributed it directly to the Prophet. And it is reported that when the Prophet married Umm Salama and entered upon her, he stayed three nights; when he intended to leave, she seized his garment, and the Messenger of Allah said:
You are not demeaned before your family. If you wish, I will spend seven nights with you; and if I spend seven nights with you, I will spend seven with my wives.Reported by Muslim (1460)
In one version: "If you wish, I will add them for you and count them for you: seven for the virgin, three for the previously married"; in another: "You are not demeaned before your family. If you wish, I will spend seven, and if you wish three, then I will make the rounds." She said: "Make it three" (reported by Muslim, 1460). These hadiths show that the man who marries a virgin must stay seven nights with her, and three with the previously married, without it being counted against the other wives he had before her.
The Prophet's words "you are not demeaned before your family" show that he perceived that she had secured the three nights that are the right of the previously married, and he comforted her with these words. He gave her the choice between the highest and noblest of women's rights in their own eyes, the seven nights, and the three; if she chose the seven, he owed the same to every wife of similar status, and if she chose the three, which are her right, he owed nothing to another of similar status. She judged the three better for her, since he then owed nothing to another of similar status and would return to her quickly; she chose them and was content with them, preferring that to his spending seven nights with her and then seven with another. Herein lies a kind of gentleness and kindness toward the one from whom the rejection of a right is feared, until the merit of the right becomes clear to him and he chooses to comply with it.
When the Prophet mentioned the seven nights, he coupled them with the make-up: "I have spent seven nights with you and seven with them"; when he mentioned the three, he did not couple them with the make-up, because the rotation among them requires beginning a division, not making one up. Anas's words, "the sunna: seven for the virgin, three for the previously married" (reported by Ibn Abi Shayba in his Musannaf, no. 16959), prove the entitlement to this period without make-up in two ways: the distinction he draws between the virgin and the previously married, and the limitation to a number, which the make-up does not do; custom and the Sharia make this period an acquired right of the new wife. Honored with the wedding feast out of regard and companionship, without this being an inclination, she is likewise honored with this period; the new wife has a shyness that is only dispelled by much companionship and the constancy of company. Hence the difference: seven for the virgin, and three for the previously married who, having known men, warms to company more quickly than the virgin, who is more reserved and less experienced (Sharh Sahih al-Bukhari, 7/337 and 341; Al-Tamhid, 17/246 and 249; Al-Istidhkar, 5/439 and 441; Al-Ishraf, 3/369, no. 1204; Al-Dhakhira, 4/461; Al-Qawanin al-fiqhiyya, 1/141; Bidayat al-mujtahid, 2/42; Sharh al-Zarqani, 3/176-177; Al-Taj wa-l-iklil, 3/7; Mawahib al-jalil, 5/221; Tahrir al-mukhtasar, 3/90; Al-Sharh al-kabir with the gloss of al-Dasuqi, 3/206; Al-Hawi al-kabir, 9/587; Al-Muhadhdhab, 2/68; Al-Bayan, 9/519-520; Sharh Sahih Muslim by al-Nawawi, 10/44-45; Al-Najm al-wahaj, 7/408; Mughni al-muhtaj, 4/419; Tuhfat al-muhtaj, 9/205 and 209; Al-Dibaj, 362; Al-Ifsah, 2/159-160; Ikhtilaf al-ulama by al-Marwazi, p. 171; Al-Mughni, 7/240; Al-Kafi, 3/134; Sharh al-Zarkashi, 2/447-448; Al-Mubdi, 7/211; Al-Insaf, 8/347; Kashshaf al-qina, 5/235-236; Sharh Muntaha al-iradat, 5/326-327; Matalib uli al-nuha, 5/283-284; Manar al-sabil, 3/65).
Ibn Abd al-Barr said: they have differed over the stay with her: is it her right, or a right of the husband over his other wives? A group said: it is the woman's right; she may claim it if she wishes and forgo it if she wishes. Others said: it is the husband's right over his wives: if he wishes he stays, and if he wishes he equalizes between her and the rest. Both views are also reported from Malik. The apparent meaning of the hadith supports the one who makes it the woman's right, per the words "seven for the virgin, three for the previously married"; with the virgin he must always stay seven nights, and with the previously married three, by the generality of the athars; it is also the view of a group of the jurists of the lands, a practice established among them. The words of Anas suffice you: "the sunna has passed with that" (Al-Tamhid, 17/249).
Imam al-Nawawi said: the scholars have differed on whether this right belongs to the husband or to the new wife; our madhhab and that of the majority make it her right; some Malikis make it a right of the husband over his other wives (Sharh Sahih Muslim, 10/44-45). Ibn Abd al-Barr said: the majority of scholars make it the woman's right by reason of the wedding, whether or not he has a wife, by the generality of the hadith "when he marries a virgin, he stays seven nights with her; when he marries a previously married woman, he stays three nights with her", which does not except the one who has no wife.
A group said: the hadith concerns the man who has a wife or wives; the one who has none stays with her all his time, keeping her company without interruption, enjoying her and benefiting from her; the days are granted to the new wife so that her companionship becomes continuous, her life with him settles, and her shyness and sense of estrangement depart, each honoring the other's pleasure without the rotation breaking it. Al-Qadi Iyad preferred this view, and al-Baghawi declared it in his fatwas: this right is only established for the new wife if he has another with whom he spends the night; otherwise the right of the wedding nights is not established for her, just as he is not obliged to spend the night with his wives at the outset of the marriage. The first view is stronger and it is the chosen position, by the generality of the hadith.
They have differed on whether this stay is obligatory or recommended: the madhhab of al-Shafi'i, his companions and those who agree with them make it obligatory, per the narration of Ibn al-Qasim from Malik; Ibn Abd al-Hakam narrated from him that it is recommended.
The Hanafis hold that a man who marries a virgin or a previously married woman while he has another wife does not stay with her any longer than with the one he had, and divides equally between the two without preferring her; if he stays seven nights with the virgin and three with the previously married, he must make up for his wives during the length of his stay. There is no difference between virgin and previously married, new and old, Muslim and woman of the Book in the division. Allah said:
"If you fear you will not be equitable, then only one wife, or what your right hands possess. That is more likely to keep you from injustice"
Surah An-Nisa, 3
And He said:
"You will never be able to be perfectly equitable between your wives, even if you strive to be so. Do not incline entirely toward one of them"
Surah An-Nisa, 129
The Prophet said:
Whoever has two wives and inclines with one of them over the other will come on the Day of Resurrection with one of his sides paralyzed.Authentic hadith: reported by Abu Dawud (2133), Ibn Majah (1969), Imam Ahmad (8549 and 10092) and Ibn Hibban in his Sahih (4207)
In one version: "with his side leaning", that is, paralyzed. Aisha said:
The Messenger of Allah would divide with equity and say: O Allah, this is my division in what I possess; do not blame me in what You possess and I do not possess.Weak hadith: reported by Abu Dawud (2134), al-Tirmidhi (1140), al-Nasa'i (3943) and Ibn Majah (1971)
He meant the heart. These texts are general for all women: equity holds between the new and the old, the virgin and the previously married, the healthy and the sick, the so-called sewn (ratqa) and the madwoman from whom no harm is feared, the menstruating woman and the one bleeding after childbirth, the pregnant woman and the one whose periods have ceased, the young girl who may be consummated, the wife under a state of prohibition, the one freed on her side, and the one divorced by mutual imprecation.
The gathering of wives with him is indeed a cause of the obligation of equity, not of the preference of some; if preference were permitted, the old wife would be more deserving, she who has borne sorrow, estrangement, anger and jealousy because of the arrival of the co-wife. The meaning of the hadith is to begin with the new one, not to add for her; and the hadith of Umm Salama does not indicate that, if she asks for the addition, her right lapses: it is a text on equity at the outset. Do you not see that in some chains of transmission it is reported: "if you wish, I will spend three for you and three for them"? It is thereby known that equity in the seven nights is not due to her request for an addition.
The division is part of the rights of marriage like maintenance: the wives are equal in it, with no difference between virgin and previously married, new and old, just as between the Muslim woman and the woman of the Book, the adult woman and the adolescent, the insane and the sane, the sick and the healthy; equity between them in the cause of this right, which is the lawfulness established by marriage. The Prophet's words to Umm Salama, "if you wish, I will spend seven nights with you and seven with my wives", mean: I act with equity between you and them, granting each seven nights as I stayed seven nights with you; and it would be the same had he granted her three. The meaning of "seven for the virgin, three for the previously married" is to begin with the new one, without addition.
The hadiths admit several interpretations and are not of decisive import: the decisive proof and the absolute texts must therefore take precedence. "Then I make the rounds among them all with the three" admits interpretation: were the three nights her exclusive right, then the man who spends seven nights with her would find three nights not counted against her, and the other wives would each be owed four nights; but what is established for each wife is seven nights when he spends seven with one, and likewise three when he spends three with one. That is the correct view, with a sound interpretation of these athars (Mukhtasar Ikhtilaf al-ulama, 2/295-296; Sharh ma'ani al-athar, 3/29; Al-Hidaya, 1/222; Al-Inaya, 5/120-121; Sharh Fath al-Qadir, 3/434; Tabyin al-haqa'iq, 2/179-180; Al-Bahr al-ra'iq, 3/235; Hashiyat Ibn Abidin, 3/206; Al-Lubab, 2/59).
The Hanafis specify: a slave woman in marriage who is shared with another master is entitled to no division, for it is forbidden to touch her or kiss her; likewise the detained wife, since making the division obligatory would harm him through her imprisonment (Hashiyat Ibn Abidin, 3/205). The majority of the jurists, the Hanafis, Shafi'is and Hanbalis, stated: the wife who disobeys her husband by leaving his home, locking the door and barring him when he wishes to enter, falsely claiming that he has divorced her, preventing him access to her, or busying herself with her own affairs when he calls her, is entitled to no division, just as she is entitled to no maintenance. If she returns to obedience, the division resumes, with no make-up for the period of disobedience: she forfeited her own right (Al-Bahr al-ra'iq, 3/235; Al-Nahr al-fa'iq, 2/293; Tahrir al-mukhtasar, 3/414; Al-Bayan, 9/514; Rawdat al-talibin, 5/209; Al-Najm al-wahaj, 7/400; Mughni al-muhtaj, 4/413; Tuhfat al-muhtaj, 9/191; Al-Mughni, 7/236; Kashshaf al-qina, 5/231; Matalib uli al-nuha, 5/277).
Travel with one of the wives: the husband who has several women and wants to travel has the choice between three situations:
The scholars then differed: may he choose some of them and travel with them, or must lots be drawn, and he travels with the one whose lot comes out? The Shafi'is and the Hanbalis, and this is the view of most of the people of knowledge, hold that he may only travel with one by drawing lots that remove suspicion, per what al-Bukhari reported from Urwa from Aisha:
The Messenger of Allah, when he intended to travel, drew lots among his wives; the one whose lot came out, he took with him. He would allot to each wife her day and her night, except that Sauda bint Zam'a gave her day and her night to Aisha, the wife of the Prophet, seeking thereby the pleasure of the Messenger of Allah.Reported by al-Bukhari (2453)
For they are equal in the right to the division: he may not set them apart except by lot; traveling with some without lots would be a preference and an inclination, not permitted without lots, as at the start of the division. If he draws lots to travel with one, he travels with the one whose lot comes out. And if he obtains their consent to travel with one without lots, that is permitted; if, after their consent, they refuse to let her go except by lots, that is theirs so long as he has not set out; if he has set out and traveled until shortened residence becomes lawful for him, they no longer have that right: the journey of the one on whom they agreed is established and devolves upon him.
If he travels with one by lot or by agreement, he makes no make-up to those who stay for the duration of the journey spent with the one accompanying him, whether he mixes with her or withdraws from her in travel. Aisha related the Messenger of Allah's drawing of lots without mentioning any make-up for the others; had he done so, she would have mentioned it. It is reported that the Prophet drew lots among his wives for certain journeys and that the lot came out for Aisha and Hafsa: he traveled with them without making up for the others. For the wife who travels with him, though she enjoys his company, has endured the hardships of travel in return, just as those who stay, though tried by his absence, have had the comfort of remaining in return: they cannot combine the division and the comfort denied to the traveler.
Likewise, if he wants to take two wives or more, he draws lots. It is permitted for a husband to travel with one of four wives, with two of them, or with three leaving one, just as it is permitted for him to travel with one leaving three; but he uses the lot to take her. If he draws lots for two and travels with them, he divides between them in travel as in residence, unless he withdraws from them: the division then lapses for the two. If he travels with a single wife without lots, he is a sinner and must make up to those staying for the duration of his absence with her; the Prophet drew lots, and if the make-up lapsed for the one present, the lot would have no meaning; since the presence or absence of the lot determines lawfulness, it determines the make-up: he reserved for one of his wives a period in which suspicion attaches, so the make-up is owed by him as to the one staying (Al-Hawi al-kabir, 9/590 and 593; Al-Bayan, 9/522-523; Rawdat al-talibin, 5/224 and 228; Al-Iqna, 2/430; Al-Najm al-wahaj, 7/412-413; Mughni al-muhtaj, 4/421-422; Al-Tamhid, 19/266; Al-Mughni, 7/238-239; Al-Kafi, 3/135-136; Zad al-ma'ad, 1/152; Sharh al-Zarkashi, 2/447; Kashshaf al-qina, 5/228-229).
The Hanafis and the Malikis hold that the husband may travel with one of his wives without drawing lots. The Hanafis said: the wives have no right to the division in travel; he travels with the one he wishes, just as he may take none of them, and likewise he may travel with one or several without her permission and without lots; travel may be difficult with some of them, because of illness, obesity or many children, and some can be entrusted with guarding the luggage with confidence; this involves evident hardship. Drawing lots is preferable, per the Prophet's action, which indicates the recommendation, to please their hearts; the proof that equity was not obligatory upon him in residence is that he did it as a supererogation: it is reported that he had nine wives and allotted to eight, without allotting to one. Ata' said: the one to whom he did not allot was Safiyya bint Huyayy ibn Akhtab (reported by Muslim, 1465). Al-Nawawi said in Sharh Sahih Muslim (10/51): the scholars held that this statement of Ata' is an error on the part of Ibn Jurayj, who transmits from Ata'; the correct one is Sauda, as in the preceding hadiths.
"You may defer whichever of them you wish, and receive whichever of them you wish"
Surah Al-Ahzab, 51
Among those he received were Aisha, Umm Salama, Zaynab and Hafsa; and among those he deferred were Sauda, Juwayriyya, Umm Habiba, Safiyya and Maymuna. If it was not obligatory upon him in residence, how could his action establish the obligation? The rule is that action does not prove obligation either; he is not charged for that period in such a way as to have to make up for his other wives: they have no right in travel, and the obligation of make-up follows the obligation of performance. Were it obligatory in travel, the lot would not void the rights of the others, as in residence; likewise, if he stays a month with one in residence and another accompanies him, he is not ordered to make up for the past, but to equalize in the future, since the division only arises upon demand; he is nonetheless a sinner; if he repeats it after the judge's order, he is punished with blows, having committed a forbidden act, injustice, and he must make up (Tabyin al-haqa'iq, 2/180-181; Al-Jawhara al-nira, 4/369-370; Al-Lubab, 2/60; Mukhtasar al-Wiqaya, 1/379-380; Al-Bahr al-ra'iq, 3/236; Durrar al-hukkam, 4/176; Al-Durr al-mukhtar, 3/206).
The Malikis said: the man who has two wives or more and wants to travel for trade or otherwise chooses among his wives the one he takes, without drawing lots, for the benefit may lie in staying with one: the heaviness of her body, the burden of a large family or otherwise; all that without inclination or harm. The journey of the one whose travel was stipulated is imposed upon him if it is not burdensome to her nor dishonoring; the one who traveled with him is not counted against him upon his return: he begins the division anew. If he wants to travel for pilgrimage or military campaign, he draws lots among his wives according to Malik: the one whose lot comes out, he takes, for disputes intensify in journeys of closeness. It is reported from him, in the narration of Ibn Abd al-Hakam, that the lot is obligatory in all circumstances; and it is reported from him that he chooses in all circumstances without lots; Ibn al-Qasim inclined to this; the apparent meaning of al-Mudawwana is that the lot takes place in campaign travel only (Al-Dhakhira, 4/464-465; Al-Taj wa-l-iklil, 3/10; Sharh Mukhtasar Khalil, 4/7; Al-Sharh al-kabir with the gloss of al-Dasuqi, 3/209; Tahrir al-mukhtasar, 3/94).
Imam al-Qurtubi said: the jurists do not differ on the fact that the wife who stays does not charge the traveling wife for the time she spent with her husband in travel; nor on the fact that he divides among the wives in travel as in residence (Al-Mufhim, 6/330; see Mawahib al-jalil, 5/226). A woman travels either without the husband's permission or with it. If she travels without his permission: no maintenance and no division for her, with no dispute among the jurists; she is sinful in her journey, in a state graver than the one who stays behind in disobedience (Al-Hawi al-kabir, 9/580).
Imam Ibn Qudama said: if she travels without his permission, the right she loses because he cannot reach her, for an act involving no disobedience or sin, lapses all the more justly through disobedience and sin; and there is no known dispute on this (Al-Mughni, 7/238; Al-Kafi, 3/128; Matalib uli al-nuha, 5/584). Al-Zarkashi said: if his wife travels without his permission, she has neither maintenance nor division. It was said in commentary: this admits of no dispute, praise be to Allah; the division is for companionship and the maintenance for enabling enjoyment, both of which she made impossible by her act, like the woman who does not present herself from the outset (Sharh al-Zarkashi, 2/446).
The Shafi'is, however, excepted the case of a land laid waste whose inhabitants have fled, the husband being absent and the wife unable to remain there: she is then not disobedient, as when she leaves a house about to collapse (Mughni al-muhtaj, 4/421). If she travels with his permission, do maintenance and division lapse? The Shafi'is add: if she travels for the need of a third party, she is like the one who left for her own need, unless she left at the husband's request: she is then reckoned as departing for his need with his permission. Her refusal to travel with her husband is disobedience, unless excused by illness or the like, such as intense heat or cold on the road that she cannot endure; leaving her family and kin is not part of that (Al-Hawi al-kabir, 9/580-581; Al-Muhadhdhab, 2/67; Al-Bayan, 9/510-511; Al-Najm al-wahaj, 7/410-411; Mughni al-muhtaj, 4/421; Tuhfat al-muhtaj, 9/208-209; Nihayat al-muhtaj, 6/446; Al-Mughni, 7/238; Al-Kafi, 3/128; Sharh al-Zarkashi, 2/446; Al-Mubdi, 7/209-210; Kashshaf al-qina, 5/233; Matalib uli al-nuha, 5/584).