The Shubuha (Doubt) In Question:
It was narrated from Anas who said: ‘The slave women of Umar, may Allah be pleased with him, used to serve us with their hair uncovered, their breasts swaying.’ Al-Sarakhsi said in al-Mabsut (9/12): ‘The hadith of Anas, may Allah be pleased with him: the slave women of Umar, may Allah be pleased with him, used to serve the guests with uncovered heads, their breasts swaying.’
Refutation Of The Doubt:
First: The authentic narration in al-Bayhaqi’s Sunan is: “The slave women of Umar, may Allah be pleased with him, used to serve us with their hair uncovered, and their hair would strike their chests due to movement.” (Sunan al-Kubra 2/320, no. 3222)
Abu al-Qasim Abdurrahman ibn Ubaydillah al-Harfi in Baghdad informed us, and Ali ibn Muhammad ibn az-Zubayr al-Kufi narrated to us, and al-Hasan ibn Ali ibn Affan narrated to us, and Zayd ibn al-Habbab narrated to us from Hammad ibn Salamah, who said: Thenamah ibn Abdillah ibn Anas narrated to me from his grandfather Anas ibn Malik who said: The female slaves of Umar, may Allah be pleased with him, used to serve us with their hair uncovered, and their chests would be struck as they moved.
Side Note: The subject of the verb تضرب.
There are two possibilities: Either the subject is implied, or the chests themselves are the subject But ثديهن is in the accusative (object) form, not the nominative, so it cannot be the subject. So the verb تضرب must have an implied subject, and the only possible noun that fits in context is: شعورهن = their hair
Even though the hair is mentioned earlier as a genitive complement in عن شعورهن, it is still the most grammatically and contextually fitting doer of the action (فاعل) which is striking.
The Shaykh said: The reports from Umar ibn al-Khattab, may Allah be pleased with him, regarding this are authentic, and they show that the head, the neck, and what appears in the course of labour is not considered part of the awrah. As for the hadith of Amr ibn Shuayb, there is disagreement about its wording, so it should not be relied upon with regard to the awrah of the female slave, even though it may be suitable for making a general argument along with other evidence regarding the awrah of a man. And with Allah is success.
Sunan Al Kubra By Al Baqyhaqi (2/227)
As for the version, “their breasts swaying,” it is found in the Tafsir of Yahya ibn Salam (1/441), and in its chain is Nasr ibn Tarif who is accused of lying. Yahya said: “He is known for fabricating hadith.” Al-Fallas said: “Among those unanimously considered liars whom the scholars rejected is Abu Juzi the butcher, Nasr ibn Tarif.” (Lisan al-Mizan 6/153)
The difference is that the narration from al-Bayhaqi only describes the hair, meaning that the hair was striking their chests due to their active movement and service. But the second version describes the breasts directly as swaying, which is not authentic.
Second: There is no doubt that the Sharia distinguished between the free woman and the slave woman regarding the rulings of hijab. What Umar ibn al-Khattab, may Allah be pleased with him, did carries no Sharia objection, neither according to Ahl al-Sunnah nor the Shia.
Shayk Al Islam said: Hijab is specific to free women and not required for slave women, as was the established practice among the believers during the time of the Prophet, peace and blessings be upon him, and his caliphs. The free woman would cover herself while the slave woman would be visible.
Umar, may Allah be pleased with him, whenever he saw a slave woman wearing a headcover, would strike her and say, “Do you resemble the free women, O lowly one?” So the slave woman was to show her head, hands, and face.
Allah the Exalted said: “And the women past childbearing who have no desire for marriage, there is no blame upon them if they lay aside their garments, provided they do not display adornment. But to modestly refrain is better for them” (al-Nur: 60).
So He gave permission to the elderly woman who no longer desires marriage to put aside her clothing, meaning she does not wear her outer garment and does not cover herself, even though she is one of the free women. This is because the cause of temptation found in other women is no longer present in her. This is just like how the Quran excepted male followers who do not have sexual desire when it comes to revealing adornment before them, because there is no lust that would lead to temptation. Similarly, if there is fear of temptation through a slave woman, she must lower her outer garment and cover herself.
Lowering the gaze from and toward her is also obligatory.
There is nothing in the Quran or Sunnah that explicitly permits looking at slave women in general or allows them to abandon covering and show their adornment. But the Quran did not command slave women with what it commanded free women, and the Sunnah distinguished between them in practice, not through a general verbal statement.
Rather, it was the known custom among the believers that the free woman would cover herself before men, and the slave woman would not. The Quran made an exception for elderly free women and did not impose hijab upon them, and also made an exception for certain men who lack sexual desire and allowed showing hidden adornment before them due to the absence of temptation. So to make an exception for some slave women is even more appropriate, especially those who would cause desire and temptation if they do not cover and reveal their adornment.
Just as it is not allowed to show hidden adornment to male in-laws or similar individuals if there is desire and passion present, the command is general based on what is common, and whatever falls outside that is addressed with its own ruling. So if the appearance of a slave woman or looking at her leads to temptation, it must be prevented, just like any other cause of temptation. This applies also to men with men, and women with women — if a woman causes temptation among women, or a man among men, then the command to lower the gaze applies to the one looking, just as the command to guard one’s private parts applies. So if slave women or young boys are attractive and there is fear of temptation by looking at them, the ruling is the same, as mentioned by the scholars.
Majmu al-Fatawa By Ibn Taymiyyah (15/372-374)
Whoever objects to this ruling is ignorant of its subtle point, for the slave women were often needed for service and household tasks, and they were commonly exposed due to frequent coming and going. Making hijab obligatory for them would impose severe difficulty, and this ruling was a mercy and facilitation. Moreover, the slave woman is bought and sold, so how would she be sold if she were veiled and concealed? Hence, the Sharia differentiated between a slave woman for sexual relations and one for service.
Ibn al-Qayyim said: “As for claiming that it is forbidden to look at an old, free woman who is unattractive and disfigured, but allowed to look at a beautiful slave woman, this is a lie against the Sharia. Where did Allah forbid one and permit the other? Allah the Most High only said: “Tell the believing men to lower their gaze” (al-Nur: 30). Neither Allah nor His Messenger allowed people to look freely at slave women who are beautiful. If there is fear of temptation in looking at a slave woman, then it is clearly forbidden, without doubt.
The misunderstanding came about because the Sharia instructed free women to cover their faces and veil themselves from non-mahram men. As for female slaves, this was not made obligatory for them, but that was for those who were used for service and daily labour, who were constantly exposed and not kept away from men.
However, female slaves who were kept for intimacy were often protected and veiled, and it was not the habit to let them show their faces in the markets or among gatherings of men. So how can anyone claim that Allah and His Messenger allowed them to walk around showing their faces in public and allowed men to enjoy looking at them? This is a clear mistake in understanding the Sharia.
What added to this mistake is that some scholars heard the statement: “The whole body of a free woman is ʿawrah (must be covered in prayer) except her face and hands”, and that “The ʿawrah of a slave woman is only what is not usually exposed, like the stomach, back, and legs”. So they thought that whatever is usually exposed from the slave woman is like the face of a man, meaning it’s fine to look at. But this rule only applies to what must be covered in prayer, not to what is allowed to be looked at by others.
Because in Islam, ʿawrah is of two types: one regarding covering in prayer, and one regarding what is allowed to be seen by others. A free woman is allowed to pray with her face and hands uncovered, but that does not mean she is allowed to go outside showing her face and hands in public gatherings and markets. And Allah knows best.”
Iʿlām al-Muwaqqiʿīn ʿan Rabb al-ʿĀlamīn by Ibn al-Qayyim (2/47)
