Chapter: The right of option (khiyār) for a slave-woman who is set free while married to a slave

When a slave-woman is emancipated while she is the wife of a slave, or of a man whose freedom is incomplete, she is given the choice: if she wishes, she may remain with him, and if she wishes, she may leave him. This right of option remains in effect until he has sexual contact with her; if he engages in intercourse, or kisses her, or otherwise touches her intimately with her consent, she no longer has any option according to Mālik. Whether or not she knows she possesses this right is irrelevant once she is aware of her emancipation. Mālik was also reported to have said that if she is unaware of the option she does not have it, but the first view is the settled position of Mālik’s school. She is not believed if she claims ignorance of it, and she has no option until she is wholly emancipated. Likewise, she has no option at all if she is married to a free man. If her husband attains freedom before she exercises her option, that option lapses; and if she elects to separate before consummation, she is entitled to no dower (ṣadaq).

Should she wish to part from her husband, she takes the matter to the ruler, chooses herself, and that counts as a single irrevocable divorce pronouncement. Some of Mālik’s associates held that it is revocable, but that view is of no consequence. The upshot of Mālik’s school is that if she chooses herself and her husband is then emancipated during her waiting period (ʿidda), he has no right to take her back. According to one report from Mālik, based on the hadith of Barīrah, she may pronounce a triple divorce upon herself; in another, he said she may issue only one irrevocable pronouncement. If she does pronounce three, she is not lawful for him again until she has married another husband, and in this case two pronouncements are treated the same as three because her husband is a slave. Once she has chosen herself, her waiting period is that of a free woman—three menstrual cycles.