What is the ruling on purchasing an enslaved woman who was married but divorced by her husband before consummation?

General Chapter

Al-Mughni

Book of Waiting Periods ('Iddah)

Book 44 · Issue 1 · Bab 1

Open in Qurani

Primary text

If one purchases an enslaved woman who was married and her husband divorced her before consummation, she is not lawful for the purchaser without a *istibra'* (period of ascertaining purity). Ahmad explicitly stated this, considering the omission of *istibra'* in this case a legal trick (*hila*) established by the People of Opinion (*Ahl al-Ra'y*). The justification is that this situation constitutes a renewal of ownership, and her purity has not been established during the current ownership. Furthermore, waiving *istibra'* here serves as a pretext to waive it entirely, such as when a man marries a woman for the sole purpose of her being divorced immediately after the sale is finalized. Since legal trickery is forbidden, *istibra'* is necessary.

Supporting text

The objection to this ruling is raised by some regarding the premise that purification from two men does not combine, yet in this specific case, the master has no *istibra'* to establish.