The fourth opinion holds that, as far as his wife is concerned, he is treated like someone confirmed killed, whereas with regard to his property he is treated like a person missing within Muslim territory—that is, his likely life span is estimated, and only after that is his estate divided.

All these views rest on allowing discretionary judgment in pursuit of what best serves the Sharīʿah—an approach known as unrestricted analogy (qiyās mursal)—and the scholars who recognise analogy differ about its legitimacy.

Section Four
The Option Granted upon Emancipation

The jurists agree that if a female slave is emancipated while married to a slave, she may choose whether to stay with him. They differed, however, when she is emancipated while married to a free man: does she still have that choice? Mālik, al-Shāfiʿī, the scholars of Madinah, al-Awzāʿī, Aḥmad, and al-Layth said she does not. Abū Ḥanīfah and al-Thawrī replied that she does, whether her husband is free or enslaved.

The reason for their disagreement is twofold. First, the reports about Barīrah’s case conflict; and second, the operative rationale for granting the option may be taken as (a) the general compulsion involved in marrying her off while she was a slave, or (b) the specific compulsion of marrying her to a slave.

Thus, whoever sees the rationale as the mere fact of compelled marriage says she may choose whether her husband is free or a slave, whereas whoever confines the rationale to her being compelled to marry a slave says she may choose only when her husband is a slave.

As for the conflicting reports, Ibn ʿAbbās transmitted that Barīrah’s husband was a black slave, while ʿĀʾishah transmitted that he was free; both reports are sound in the judgment of the hadith scholars.

They also disagreed about the period during which she may exercise her option. Mālik and al-Shāfiʿī held that she retains the right until the husband has had intercourse with her. Abū Ḥanīfah limited the option to the single session in which she is emancipated. Al-Awzāʿī said the option lapses through intercourse only if she knew beforehand that intercourse would nullify it.

Chapter Four
Marital Rights

The jurists concur that among the wife’s rights over her husband are maintenance and clothing, in view of the Almighty’s words: “And upon the father shall be the mothers’ provision and clothing according to what is customary” (al-Baqarah 2:233), and the authenticated statement of the Prophet—peace and blessings be upon him—“They have the right that you provide for them and clothe them in a fitting manner.” He likewise told Hind, “Take what suffices you …”