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Can anyone please explain this hadith? Is this authentic?
Zaid bin Hubab narrated to us from Hammad bin Salamah, from Iyas bin Mu'awiyah, regarding a man who bought a prepubescent slave-girl, do not those like her have sexual intercourse? He said, "There is nothing wrong with performing the sexual act upon her without observing Istibra." (Musannaf Ibn Abi Shaybah 16906, 16907)
In The Name Of Allah (The Most Merciful And The Most Kind)
I already asked this question long before it was posted on Islam Stackexchange. I asked about this from a brother and he gave a very good explanation. May Allah reward him for that.
Here is a brief response:-
The narration you quoted is found in a lesser known Hadith book called Mussanaf Ibn Abi Shaybah. First of all, this narration is not a statement of Prophet Muhammad (Sallallahu'alayhiwassalam). This is a statement of one of the Taba'in. Secondly, the analysis of the Arabic text of the narration itself clearly suggests that these girls were menstruating. It is very important to note that girls used to reach maturity at a very early stage during the ancient times.
Imam Shaf'i said: “I saw many women in Yemen at the age of nine reaching the age of puberty.”[40] He also said: “I saw in Sana'a a grandmother who was a girl the age of twenty-one years. Her daughter reached puberty at the age of nine and gave birth at the age of ten. The daughter of that girl also reached puberty at the age of nine and gave birth at the age of ten.”
The Arabic text of the narration states "There is nothing wrong with performing the sexual act upon her without observing Istibra."
What does Istibra mean?
According to Islamweb.net, Istibra means the following:-
Istibra’a, i.e. after she gives birth if she is pregnant or observes a waiting period of three menses according to one view of the scholars, or one menses according to another view
It is very important to note that the narration itself does not say, "There is nothing wrong with performing the sexual act upon her without observing Haydh (menstruation)" rather the narration says, "there is nothing wrong with performing the sexual act upon her without observing Istibra (i.e. without observing menstruation cycles)"
WikiSource Suggests:-
ISTIBRA'. The purification of the womb. The period of probation, of one menses, to be observed after the purchase of a female slave (or in the case of a virgin under age), the period of one month before she is taken to her master's bed.
Here is how AlMaany Has defined this word:-
اِستبراء: (اسم) مصدر استبرأَ/ استبرأَ من (الفقه) تحرٍّ للتأكّد من خروج النجاسة عن جسم المكلف استكمالاً لطهارة البدن المشروطة في بعض العبادات (الفقه) تورّع بترك ما لا بأس به حذرًا ممّا به بأس، وبُعْدٌ عن كل ما به شبهة اِستبرأَ : (فعل) استبرأَ / استبرأَ من يستبرئ ، استِبراءً ، فهو مُستبرِئ ، والمفعول مُستبرَأ استبرأتِ المرأةُ رحمَها : انتظرتْ حتى تحيض حَيْضة ثم تطهر لتتبين براءتها من الحَمل
Hence, the Arabic word استبراء means to purify one'self from menses, as its root word is برئ and this denotes that the slave girls in question were menstruating (i.e. they were mature) and this is because girls used to reach the age of maturity at a very young age in the ancient times. This proves that the girls in the question were mature, as it is not possible for a prepubescent girl to menstruate or observe Istibra!
The other narrations that surrounds the narration in the question also clarify this matter!
This is what a narration in the same chapter says:-
Qutadah narrated:- He used to hate touching or fondling (the slave girl) until or unless she has done istibrah (i.e. purified herself from menses) [Mussanaf Ibn Abi Shayba, 16908]
See also other narrations in the screenshot I have attached below.
Conclusion This narration does not say at all that Islam allows to have intimate relations with prepubescent girls. In fact, these narrations actually prove that girls used to reach maturity at a very young age and menstruate at a very young age in the ancient times.
I don't think so because it blatantly contradicts this hadith: Abu Dawud 2157 Abu Sa’id Al Khudri traced to Prophet (ﷺ) the following statement regarding the captives taken at Atwas. There must be no intercourse with pregnant woman till she gives birth to her child or with the one who is not pregnant till she has had one menstrual period. Here it mentions that there must be no intercourse with the one who is not pregnant until she had one menstrual period. Moreover, the maturity of slave girls (i.e when you are commanded not to gaze at them) is when they reach puberty.
ولا ينبغي للرجل أن ينظر من أمة غيره إذا كانت بالغة أو تشتهي مثلها أو توطأ إلا ما ينظر إليه من ذوات المحرم ولا بأس بأن ينظر إلى شعرها وإلى صدرها وإلى ثديها وعضدها وقدمها وساقها ولا ينظر إلى بطنها ولا إلى ظهرها ولا إلى ما بين السرة منها حتى يجاوز الركبة
It is not permissible for a man to look at a slave woman other than his own, if she has reached puberty (baligha), or he has a desire for her, except what it is permissible to look at from his relatives (maharam). So, there is no harm that he look at her hair, her chest, her breasts, her arm, her foot, or leg. And he does not look at her stomach or back, or what is between the navel and the knees.
— Muhammad ibn al-Hassan al-Shaybani (d. 189 AH/804 CE). Al-Mabsut, vol. 3, p. 47
The report comes from a work known as "al-Musannaf" compiled by Ibn Abi Shaiba (d. 235/850) (ed. Dar al-Faruq, Cairo. Edited by Abu Muhammad Usama)
Ibn Abi Shaiba deemed it as reliable and puts it in a section captioned as:
"Whether a master is allowed to seek pleasure other than intercourse with his slavegirl before confirming of istibra (i.e. freeing of the womb)?"
I will clarify that nowhere in the Arabic text does it say that the slave girls in questions hadn't reached puberty/maturity (baligha), it only says they were young to be sure that people from whom she was purchased would not have had intercourse with her. Ibn Abi Shaiba brings opinions of five reports in this section all from authorities from the generation following the Companions.
No. 16905: It says Ibn Sirin disliked seeking any kind of pleasure with a slavegirl during such time while Hasan did not find any problem with (mere) kissing.
No. 16906: Ikrima said if a slavegirl was very young there was no problem in touching her.
No.16907 : Iyas b. Mu'waiya said if the person purchased a slavegirl there was no issue in having intercourse with a slavegirl that was too young that one could be sure she would have had no intercourse earlier.
No. 16908: Qatada disliked (even) kissing a slavegirl while istibra had not concluded.
No. 16909: After a battle Ibn Umar kissed a slavegirl with a beautiful neck.
-- End of the Section --
The whole point and focus is on the legal ruling on the degree of intimacy with a slavegirl before the surety that her womb was free from any prior incumbrence. With this in mind narration 16907 simply means that to one early Muslim jurist there was no violation of the law in sleeping with a slavegirl if she was young enough to be sure that people from whom she was purchased would not have had intercourse with her. In other words, waiting for the passage of a menstrual cycle to confirm istibra was not essentially required if there were other means to attain certainty of it.
The point, as per this opinion, is not about age but the custom of the people from whom a slavegirl might be purchased. Mark that it was about a purchased slavegirl in whose case custom of a people could be duly known. It does not necessarily relate to a slavegirl taken in war in whose case it might not always be possible to ascertain the customs and practice very well.
Needless to reiterate this is opinion from only one of the early Muslim scholars namely Iyas b. Mu'waiya. Other prominent authorities like Muhammad Ibn Sirin, Hasan al-Basri, and Qatada had a very different view according to the very samesource.
I hope this helps.
