Islamic Fiqh > Marriage and family > Nushuz (marital disobedience) > Liability for the customary disciplinary blow
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Updated on 25 September 2026 at 3:23 PM
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Sixth point: liability (ad-daman) for the customary disciplinary blow to the wife. The jurists differed: if the husband strikes his wife with the customary disciplinary blow and it leads to her destruction or the loss of an organ, is he liable or not? The majority, namely the Hanafis, the Malikis and the Shafi'is, state that he is liable and that her blood is not trifling: the blow is permitted but not obligatory, and its benefit accrues to him since it is a blow of correction and rebuke; it must therefore not lead to destruction, and liability becomes obligatory because it is established that this is destruction, not rectification. He answers for whatever was destroyed by the blow: life, organ or benefit, for disciplinary striking is conditioned upon the safety of the outcome.
The Hanafis: if the husband disciplines his wife with the blow and she dies, the diyah falls upon him and her blood is not trifling, for the blow is permitted and its benefit accrues to him, as the benefit accrues to the woman (her uprightness in what Allah the Most High commanded). From this it appears that every blow commanded by the Lawgiver carries no liability upon death, and every blow permitted without command makes the striker liable if death occurs, for it is conditioned upon safety, like passing along a road and hunting: if anything is destroyed in that way, liability is due (al-Hidaya, 2/117; Tabyin al-Haqa'iq, 3/211; al-Bahr ar-Ra'iq, 5/53; al-'Inaya, 7/312; al-Binaya, 6/397; al-Fatawa al-Hindiyya, 2/168).
The Malikis: if the blow leads to destruction, liability becomes obligatory. Al-Hattab reports in al-Masa'il al-Malquta: whoever strikes his wife deliberately is liable for the resulting right, which varies between countries; and the case of one who strikes his wife then reconciles with her against a gift shows that she holds a right (Mawahib al-Jalil, 5/227; Sharh Mukhtasar Khalil, 4/7; ash-Sharh al-Kabir with Hashiyyat ad-Dasuqi, 3/210). The Shafi'is: where striking is permitted to him, it is a blow of correction and rebuke; it must be neither bloody, nor severe, nor fatal, nor to the face; if it leads to destruction, liability becomes obligatory, for it is established that this is destruction, not rectification: he answers for the life, organ or benefit destroyed, the diyah falls upon the striker's indemnity group and the expiation upon his property (Rawdat at-Talibin, 5/230; Kifayat al-Akhyar, p. 435; al-Bajirmi 'ala al-Khatib, 4/253).
The Hanbalis, for their part, state that if the husband disciplines his wife with the customary discipline and that discipline leads to her destruction, no liability is due, for it is permitted by the Law. But if he transgresses by adding beyond the customary, or beyond what achieves the purpose, he is liable, for that is not permitted to him by the Law (Kashshaf al-Qina', 5/239 and 6/17; Matalib Uli an-Nuha, 5/287).
Nushuz may come from the wife, but also from the husband, according to Allah's saying:
"And if a woman fears from her husband contempt or evasion, there is no sin upon the two of them if they reconcile by an agreement, and reconciliation is best."
Surah an-Nisa, 128
His nushuz is his haughtiness toward her out of hatred for her, a word drawn from the rising (nashz) of the earth, that is, its elevation. The man's nushuz has two states. First state: he transgresses against her and withholds her rights. The jurists agree that it is forbidden for a man to transgress against his wife with blows or harm without right, and that the wife has the right to bring her case to the ruler or the judge so that he may restrain him, and that the judge may punish him if he does not desist.
The Hanafis say: nushuz (of the husband) is his turning away from her by withholding the tenderness between man and woman, and his harming her with insult or blows. If the husband wrongs his wife and she brings the matter to the judge, the judge punishes him for committing the forbidden. If the wife is in the husband's house with no one to keep her company and she complains to the judge that he strikes her and harms her, the judge questions her neighbors; if they confirm her account and they are upright people, the judge disciplines him and orders him to treat her well, and orders the neighbors to watch over her situation. If the neighbors are not upright, he orders him to move her to upright neighbors; and if they inform the judge of the contrary of her account, he leaves her there without moving her (Bada'i' as-Sana'i', 4/23; Fatawa Qadikhan, 1/215; al-Fatawa al-Hindiyya, 1/341; 'Umdat al-Qari, 13/271).
The Malikis: if the husband transgresses against his wife by harming her through abandonment, blows or insult, and this is established by testimony or confession, she may bring the matter to the ruler, who rebukes him and restrains him from her, exerting his rebuke according to his own judgment, as the husband exercised his when the harm came from her: he admonishes him, then strikes him if he does not desist, as in the case of the wife if he judges its effectiveness or believes it. It has also been said: he admonishes him first; if nothing comes of it, the ruler orders abandonment; then the blow if nothing results, and this is preferable, for abandoning him is a hardship upon him, sometimes more harmful than blows. All this applies where she does not want divorce: she wants his rebuke and to remain with him; otherwise divorce for harm is open to her if witnesses attest it, and even without testimony of repetition, even for a single harm: according to the well-known view, the option is granted to her; she may remain in this situation, or divorce herself with a single irrevocable divorce, according to the hadith: "No harm and no reciprocating harm."
If she effects more than one divorce, the excess over the single one does not bind the husband, even without a condition stipulated in the marriage contract. Among the harms: cutting off his speech from her, turning his face away from her, striking her painfully, insulting her and her father with words such as "daughter of a dog, daughter of an unbeliever, daughter of a cursed one", as many base people do; the husband is disciplined for that in addition to divorce, likewise for intercourse in her rear; not for withholding the bath from her, or disciplining her about prayer, staying out at night, or marrying over her. Does the ruler divorce her on his behalf, or order him to divorce before ruling? Two views; it has been said: he first orders him to divorce, and if he refuses, both views apply (at-Taj wal-Iklil, 3/10 and 12; Mawahib al-Jalil, 5/227-228; Sharh Mukhtasar Khalil, 4/7 and 9; ash-Sharh al-Kabir with Hashiyyat ad-Dasuqi, 3/210 and 213; Tahrir al-Mukhtasar, 3/96 and 99).
The Shafi'is: if the husband's nushuz appears because he withholds what is due to her of maintenance, clothing and division of nights, the judge obliges him to pay it when she demands it, given her inability to obtain it; unlike her own nushuz, for she can be compelled to fulfill his right according to her capacity. If the husband is not legally responsible or is under interdiction, his guardian is obliged to pay it under its terms. The judge lodges the wife next to a trustworthy, upright person so that she may obtain her right. If he behaves badly and harms her with blows or otherwise without cause, the judge forbids him that without punishing him the first time; if he returns to it and she demands his punishment, he punishes him as befits him, for his transgression against her and because it is her right.
If he was not punished the first time, although analogy would allow punishment if she demands it, that is because bad character is frequent between spouses, and punishment would breed estrangement between them: he confines himself at first to forbidding, hoping the situation mends; if he returns to it, he punishes him and lodges him next to a trustworthy person who prevents him from transgressing against her. Are the two spouses then separated? Al-Ghazali said: they are separated until he returns to justice; his word on his own justice is not relied upon, but her word and circumstantial evidence are. Imam ash-Shafi'i detailed: if the ruler believes he transgresses but it is not established before him, he does not separate them; if it is verified or established before him and he fears he would strike her severely given his recklessness, he interposes between them until he believes he has become just, for were he merely to punish him without interposing, the harm might reach an irrecoverable point.
Al-Khatib ash-Shirbini said: that is the apparent view: whoever does not mention the interposition means the first ruling, and whoever mentions it, like al-Ghazali, the author of al-Hawi as-Saghir and al-Musannif in his revision, means the second; and the apparent, as our shaykh said, is that the interposition comes after the punishment and the lodging (Mughni al-Muhtaj, 4/426-427; see al-Bayan, 9/532; Rawdat at-Talibin, 5/232-233; an-Najm al-Wahhaj, 7/420-421; ad-Dibaj, 3/367; Tuhfat al-Muhtaj, 9/219-220; Nihayat al-Muhtaj, 6/452). The Hanbalis: if discord occurs between the spouses and it becomes clear that it comes from the man, the ruler lodges the two next to a trustworthy person who prevents him from harming her and transgressing against her (al-Mughni, 7/243).
If the wife fears her husband's nushuz and his turning away from her out of disinterest, or if the signs of nushuz appear in her because of illness, age or ugliness, there is no harm in her giving up some of her rights (the division of nights and the like) to appease him, according to what al-Bukhari and Muslim narrate from 'A'ishah concerning Allah's saying: "And if a woman fears from her husband contempt or evasion..." (an-Nisa 128):
"It is the woman who is with a man who no longer finds enough in her and wants to divorce her and marry another; she says to him: keep me and do not divorce me, then marry another, you will be free of my maintenance and my division. That is what Allah said: no sin upon the two of them if they reconcile by an agreement, and reconciliation is best."Narrated by al-Bukhari (no. 4910) and Muslim (no. 3021)
Imam Ibn Battal said: the scholars are unanimous on the permissibility of this agreement; Sawdah did the same with the Prophet when she gave her day to 'A'ishah, thereby seeking the pleasure of the Messenger of Allah. 'Ikrima narrated from Ibn Abbas: "Sawdah feared the Prophet would divorce her; she said: do not divorce me and keep me among your wives, with no division for me" (Sharh Sahih al-Bukhari, 7/327; see al-Muhadhdhab, 2/70). Al-Qurtubi said: "and if a woman" is a suspended clause whose verb is explained by what follows, and "feared" means "expected"; whoever says it means "became certain" is wrong. Az-Zajjaj said: the meaning is that a woman fears from her husband a lasting nushuz. An-Nahhas said: the difference between nushuz and evasion (i'rad) is that nushuz is estrangement, and evasion is no longer speaking to her nor keeping her company.
The verse was revealed concerning Sawdah bint Zam'ah. At-Tirmidhi narrated from Ibn Abbas: "Sawdah feared the Messenger of Allah would divorce her; she said: do not divorce me and keep me, I make my day that of 'A'ishah; he did so, and there came down: no sin upon the two of them if they reconcile by an agreement, and reconciliation is best; whatever they reconcile upon is lawful", a good and rare hadith. And Ibn 'Uyaynah narrated from az-Zuhri from Sa'id ibn al-Musayyab that Rafi' ibn Khadij had as wife Khawlah bint Muhammad ibn Maslamah; he took a dislike to something of her, her age or otherwise, and wanted to divorce her; she said: do not divorce me and divide for me as you wish; the Sunnah proceeded on that and the verse came down: "And if a woman fears from her husband contempt or evasion..." (an-Nisa 128).
Al-Bukhari narrated from 'A'ishah concerning this verse: "It is the man with whom is a woman he does not find excessive, who wants to part from her, and she says: I free you of what concerns me"; and this verse came down. Of this verse a point of fiqh is the refutation of the presumptuous ignorant who hold that a man who took a woman in her youth and she has grown old should not exchange her. Ibn Abi Mulaykah said: when Sawdah bint Zam'ah grew old, the Prophet wanted to divorce her; she preferred to remain with him and said: keep me and make my day that of 'A'ishah; he did so, and she died among his wives.
Al-Qurtubi adds: the daughter of Muhammad ibn Maslamah did the same. Malik narrated from Ibn Shihab from Rafi' ibn Khadij that he married the daughter of Muhammad ibn Maslamah al-Ansari, who stayed with him until she grew old; he then married a young woman and preferred the young one to her; she demanded divorce and he divorced her once, then neglected her until the end of her waiting period drew near; he took her back, then preferred the young one again; she demanded divorce and he divorced her once, then took her back and preferred the young one; she demanded again and he said: do as you wish, only one remains: if you wish, stay on the preference you see, and if you wish, I part from you. She said: I stay on the preference; he kept her so, and Rafi' saw no sin in it when she was content with him on the preference. Ma'mar reported that from az-Zuhri with its wording and meaning, and added: that is the agreement concerning which came down: "And if a woman fears from her husband contempt or evasion, no sin upon the two of them if they reconcile by an agreement, and reconciliation is best" (an-Nisa 128).
Abu 'Umar Ibn Abd al-Barr said: his saying "he preferred the young one" (and Allah knows best) refers to the inclination of his heart toward her and his liveliness for her, not his preference in food, clothing or lodging, for that must not be supposed of a man such as Rafi', and Allah knows best. Abu Bakr ibn Abi Shaybah reported that Abu al-Ahwas transmitted from Simak ibn Harb from Khalid ibn 'Ar'arah from Ali (may Allah be pleased with him): "A man asked him about this verse; he said: it is the woman with a man whose eyes recoil from her because of her ugliness, her poverty, her age or her bad character, while she hates separation; if she gives up a share of her mahr, he may take it; and if she grants him some of her days, no harm is in it." Ad-Dahhak said: no harm in his reducing her right if he marries a younger one more pleasing to him. Muqatil ibn Hayyan said: it is the man with an older wife who marries a young one and says to the older: "I give you from my wealth on condition that I give the young one more nights and days"; and the first accepts the agreement reached; if she refuses, he must be fair between them in the division.
Our scholars say in the third place: every kind of agreement is permitted in this revelation: that the husband give so that she be patient, or that she give so that he prefer her and keep the bond, or that the agreement be on patience and preference without any gift: all of that is permitted. It may also happen that one wife reconciles her co-wife over her day with something she gives her, as the Prophet's wives did: the Messenger of Allah became angry with Safiyyah, who said to 'A'ishah: "Reconcile me with the Messenger of Allah, I have given you my day." Ibn Khuzaymandad mentioned it in his rulings from 'A'ishah: "The Messenger of Allah found fault with Safiyyah in some matter; Safiyyah said to me: will you please the Messenger of Allah concerning me against my day? So I put on a saffron-dyed veil I had, sprinkled it, came and sat beside the Messenger of Allah; he said: away from me, it is not your day; I said: that is the favor of Allah which He gives to whom He wills; I told him the matter and he was reconciled with her."
From this it follows that breaking equity between the women and preferring some of them is permitted only with the permission of the preferred one and her consent (Tafsir al-Qurtubi, 5/403 and 405). The Hanafis: if the wife fears that her husband will turn away from her or be averse to her, she may waive his right or part of it (maintenance, clothing, lodging or otherwise), and he may accept it from her: no sin upon her in granting it, nor upon him in accepting it, according to Allah's saying: "no sin upon the two of them if they reconcile by an agreement" (an-Nisa 128); then: "and reconciliation is best", that is, better than separation. Abu Dawud at-Tayalisi narrated from Sulayman ibn Mu'adh from Simak ibn Harb from 'Ikrima from Ibn Abbas: "Sawdah feared the Messenger of Allah would divorce her; she said: O Messenger of Allah, do not divorce me and make my day that of 'A'ishah; he did so, and this verse came down"; at-Tirmidhi narrated it from Muhammad ibn al-Muthanna from Abu Dawud at-Tayalisi and said: good and rare.
It has also been said that the verse came down concerning Rafi' ibn Khadij: he divorced his wife once and married a young one; when the end of her waiting period drew near, she said: I will reconcile with you over some days, then she did not permit it; he divorced her a second time, then she asked it of him and he took her back; and the verse came down. Into this meaning falls everything exchanged between a man and a woman: wealth, intercourse or otherwise; whatever the two reconcile upon is lawful for the man with his wife, according to the verse cited.
If one of the wives agrees to relinquish her division to her co-wife, that is permitted provided there is no underhand payment from the husband, for instance if he increases her mahr so that she does it, or marries her on condition that he marry another while staying two days with her and one day with the other: the condition is void and the wealth is not lawful to her in the first form; he may return on it. As for the case where she hands him or gives up wealth so that he grant her more: the apparent view is that it is neither binding nor lawful for the two of them; she may take back her money, for it is wealth consumed wrongfully, or a right whose price may not be taken since that right does not lapse, its cause (the marriage contract) remaining: the wealth is returned to its owner, for it is a bribe, and the bribe is unlawful (al-Mabsut, 5/219-220; Ahkam al-Qur'an of al-Jassas, 3/270; al-Jawharah an-Nayyirah, 4/371-372; Sharh Fath al-Qadir, 3/436-437; 'Umdat al-Qari, 13/270).
The Shafi'is: if the signs of nushuz appear from the husband while he withholds none of her right and does her no harm by blows or otherwise, but he dislikes her company because of illness or age and no longer calls her to his bed, or intends to divorce her, or speaks to her harshly: nothing is counted against him for that, and it is recommended for the wife to appease him by relinquishing part of her right (division or maintenance), according to Allah's saying: "And if a woman fears from her husband contempt or evasion, no sin upon the two of them if they reconcile by an agreement" (an-Nisa 128). 'A'ishah said: "Allah sent down this verse concerning the woman who reaches old age and gives her day to another woman" (al-Muhadhdhab, 2/70; al-Bayan, 9/532; Rawdat at-Talibin, 5/233).
The Hanbalis: if the wife fears her husband's nushuz and his turning away from her out of disinterest, illness, age or ugliness, there is no harm in her giving up some of her rights to appease him, according to Allah's saying (an-Nisa 128). Al-Bukhari narrated from 'A'ishah the hadith cited above; and from 'A'ishah again: Sawdah, when she grew old and feared the Messenger of Allah would part from her, said: O Messenger of Allah, my day for 'A'ishah; the Messenger of Allah accepted that from her, and she said: "Concerning that and its likes Allah sent down what He mentions: and if a woman fears from her husband contempt or evasion"; narrated by Abu Dawud. When she concludes an agreement with him on giving up part of her division or her maintenance, or all of it, that is permitted; and if she takes it back, it reverts to her. Ahmad said about a man absent from his wife who says to her: "If you accept this, otherwise you know best", and she says: "I accept": it is permitted, and if she wishes, she takes it back (al-Mughni, 7/243; al-Kafi, 3/138).
The jurists agree in general that if discord and nushuz arise between the two spouses and each of them accuses the other of aggression and claims to be wronged by him, their case is referred to the ruler, with details among them on that. The Hanafis: if the spouses differ, he alleges her nushuz and she alleges his injustice and his falling short of her rights, the ruler then appoints an arbiter from his family and an arbiter from her family, so that they examine their situation and report to the ruler what they find. The two arbiters are appointed to admonish the wrongdoer of the two and denounce his injustice, and to inform the ruler so that he may take him in hand. If the husband is the wrongdoer, they denounce his injustice to him saying: "It is not lawful for you to harm her so that she be extracted from you"; if she is the wrongdoer, they say to her: "The ransom has become lawful for you", and he was excused in taking it given the nushuz that appeared to them in her (Ahkam al-Qur'an, 3/151 and 154; Sharh Fath al-Qadir, 4/244).
The Malikis: if the matter remains obscure, without knowing whether the harm comes from her or from him (she alleges harm, repeating her complaint without proving it, or both allege harm, repeating it without proof), the ruler orders her to be lodged among upright people if she is not among them, so that the situation becomes apparent to them and they inform the ruler who is the author of the harm; if he already lives among upright people, he is not burdened with moving her. Then, if the obscurity and the dispute persist, the ruler appoints two arbiters from their families, one from his and one from hers if possible; otherwise two strangers (at-Taj wal-Iklil, 3/10; Sharh Mukhtasar Khalil, 4/8; ash-Sharh al-Kabir with Hashiyyat ad-Dasuqi, 3/211; Tahrir al-Mukhtasar, 3/96-97; Hashiyat as-Sawi, 5/234).
The Shafi'is: if each of the two spouses alleges aggression, bad character and ugly conduct, and the matter remains obscure without the ruler knowing which of the two is the aggressor, the judge learns their situation through a trustworthy person who informs both, and that person will be their neighbor; if that is not possible, he lodges the two next to a trustworthy person to recognize their state, then instructs him with what he knows. When their state is clear to him, he prevents the wrongdoer from repeating his injustice: the first time by forbidding without punishment, the second time with punishment, for he is like the guardian in discipline and must act with precaution toward him; and toward the wife by rebuke and correction as with any other. If the discord worsens to the point that mutual insults and blows are prolonged and grow, the judge must then appoint an arbiter from his family and an arbiter from hers to examine their situation, after the husband's arbiter has conferred with him alone and the wife's arbiter with her alone, and they know their situation: no arbiter conceals anything from the other when they meet, then they reconcile them, or separate them by a divorce if reconciliation is difficult (al-Bayan, 9/532; Rawdat at-Talibin, 5/233; an-Najm al-Wahhaj, 7/422-423; Mughni al-Muhtaj, 4/427; ad-Dibaj, 3/367-368; Tuhfat al-Muhtaj, 9/220; Nihayat al-Muhtaj, 6/452).
Imam ash-Shafi'i said: when the feared discord between the two spouses rises to the ruler, it is his duty to send an arbiter from the family of the one and an arbiter from the family of the other, people of piety and reason, so that they examine their situation and reconcile them if they can (al-Umm, 5/194; Rawdat at-Talibin, 5/233-234; an-Najm al-Wahhaj, 7/423; Mughni al-Muhtaj, 4/427; Tuhfat al-Muhtaj, 9/221). The Malikis: if the spouses differ to the point of falling into the unlawful mutual reviling and assault, it is incumbent upon the sovereign to send two arbiters to examine their situation, even if they have not brought the matter to him nor requested it, and he may not leave them in sin and corruption of religion (at-Taj wal-Iklil, 3/11; Mawahib al-Jalil, 5/227). Ar-Ruyani, of the Shafi'is, holds that sending the two arbiters is recommended (Rawdat at-Talibin, 5/233-234; an-Najm al-Wahhaj, 7/423; Mughni al-Muhtaj, 4/427; Tuhfat al-Muhtaj, 9/221).
Third point of the chapter: the two arbiters drawn from the spouses' families. The jurists do not disagree that the basis is that the two arbiters be members of the spouses' families, one from the woman's family and one from the man's, according to the apparent meaning of Allah's saying: "send an arbiter from his family and an arbiter from her family" (an-Nisa 35), and because they know their situation better and the hidden side of matters, spouses confiding to their relatives what they do not confide to others. They also agree that it is permitted for the two arbiters to be strangers to both families if no family member is suitable for it.
But they differ: is kinship required when it exists, or not? Most of the jurists, namely the Shafi'is and the Hanbalis, hold that it is not required, for the two arbiters are either agents or arbiters, and kinship is required neither of the ruler nor of the agent; the Quranic word on it is a command of guidance and recommendation, not of obligation (al-Bayan, 9/534; Rawdat at-Talibin, 5/234; Mughni al-Muhtaj, 4/428; al-Mughni, 4/7224; al-Mubdi', 7/216; Kashshaf al-Qina', 5/240). The Malikis: it is obligatorily required, where possible, that the two arbiters be members of the spouses' families, and it is not permitted to the ruler to send strangers while family members exist, even one.
Does the ruling lapse if the judge sends strangers while family members exist? Al-Lakhmi hesitated; he said in at-Tawdih: the apparent meaning of the verse is that their family membership, when available, is obligatorily required, the view ad-Dasuqi preferred; and Ibn Shas chose to see in it a condition of perfection. If their common family membership is not possible, only one of the two being a family member: al-Lakhmi said a stranger is joined to the family side; Ibn al-Hajib said they must both be strangers, the kinsman being set aside lest he incline toward his own. It is recommended that the two arbiters be neighbors when family members are sent, if possible, and likewise when strangers are sent for lack of possible members. If no suitable person exists in their families, one chooses from among their neighbors, otherwise from among others.
Al-Qurtubi said: the two arbiters can only be members of the man's and the woman's families, for they are the most versed in their affairs, and they must be people of justice, sound judgment and knowledge of fiqh; if no suitable person exists in their families, two just learned men are chosen from outside (Tafsir al-Qurtubi, 5/175; see al-Istidhkar, 6/183; at-Taj wal-Iklil, 3/11; Mawahib al-Jalil, 5/227; Sharh Mukhtasar Khalil, 4/8; Tahrir al-Mukhtasar, 3/97; ash-Sharh al-Kabir with Hashiyyat ad-Dasuqi, 3/211). As for the Hanafis, I have found no text of theirs requiring or not requiring family membership. Abu Bakr al-Jassas said: Allah commanded that one of the two arbiters be from her family and the other from his, so that the suspicion of inclination not precede when they are strangers; if one is from his side and the other from hers, the suspicion vanishes and each speaks of the one from his side (Ahkam al-Qur'an, 3/151). Al-Kasani said likewise: the matter is referred to the judge so that he appoints two arbiters according to Allah's saying (an-Nisa 35) (Bada'i' as-Sana'i', 2/334).
Fourth point of the chapter: the jurists differ over the two who are sent: are they arbiters who do what they see as the spouses' interest (union or separation by divorce or khul'), or agents of the spouses, sent only with their consent, unable to separate without their permission? The Hanafis, the Shafi'is in the apparent view and the Hanbalis according to the school hold that the two who are sent are agents of the spouses, unable to separate without the consent of both: the wife's person is the husband's right and the wealth is her right, and both are sound of mind; none other than they may dispose of them without mandate or guardianship; and divorce falls under guardianship only in the case of the one bound by vow, an exception to analogy. On this basis the husband appoints his arbiter for divorce and for accepting the compensation in khul', and the wife appoints hers to give the compensation and accept the divorce.
Abu Bakr al-Jassas said: our companions said: the two arbiters may separate only with the husband's consent, for there is no doubt that if the husband admitted mistreating her, they would not separate them and the ruler would not compel him to divorce her before the two arbiters' judgment; likewise if the wife admitted her nushuz, the ruler would not compel her to khul' nor to refund her mahr. If such is her situation before the two arbiters are sent, it is such after; it is not permitted to bring about the divorce without the husband's consent and mandate, nor to take the mahr out of her ownership without her consent. That is why our companions said: khul' between them is permitted only with the consent of the two spouses; the ruler does not hold that power, how could the two arbiters hold it? The two arbiters are agents: one the woman's agent, the other the husband's, for khul' or separation, without fee if the husband granted none; and the two arbiters in the discord act only by a pure mandate, like any mandate (Ahkam al-Qur'an, 3/151-152; see Sharh Fath al-Qadir, 4/244; al-Bayan, 9/532-533; Rawdat at-Talibin, 5/234; an-Najm al-Wahhaj, 7/423; Mughni al-Muhtaj, 4/428; al-Mughni, 4/7224; al-Mubdi', 7/216; Kashshaf al-Qina', 5/240).
The Malikis, the Shafi'is against the apparent view and the Hanbalis in one transmission hold that the two who are sent are arbiters: Allah named them "arbiters"; they may do what they see of union or separation, with or without compensation, without need of the spouses' mandate or consent; Allah said: "send an arbiter from his family and an arbiter from her family" (an-Nisa 35), naming them arbiters without regard to the spouses' consent, since He said: "if they desire reconciliation" (an-Nisa 35), addressing the arbiters and not the spouses; the address concerning rulings and their execution is directed to the imams and rulers, not to the parties to a dispute; and naming them arbiters negates their being agents. Ali (may Allah be pleased with him) said to the two arbiters: "Do you know what is upon you? If you see that they should be joined, join them, and if you see that they should be separated, separate them", without conditioning the spouses' consent. The ruler has a hand in separating spouses to remove harm, like the divorce of the one bound by vow, of the destitute in maintenance and mahr, and others; if he holds that power to remove harm, the arbiters hold it a fortiori (al-Ishraf 'ala Nukat Masa'il al-Khilaf, 3/370-371, no. 1205; al-Bayan, 9/532-533; Rawdat at-Talibin, 5/234; an-Najm al-Wahhaj, 7/423; Mughni al-Muhtaj, 4/428; al-Mughni, 4/7224; Sharh az-Zarkashi, 2/450).
Imam Ibn al-'Arabi said: His saying "an arbiter from his family and an arbiter from her family" (an-Nisa 35) is an explicit text from Allah that they are two judges and not two agents: the agent has a name and a meaning in the Law, and the arbiter has a name and a meaning; when Allah has made each of the two clear, no deviant should merge the meaning of one with the other, and that would be deception and corruption of rulings. The arbiters proceed by Allah's permission, purify their intention for His Face, examine the spouses' situation with care: if they see a way to union, they unite; if they find them inclined to part, they leave them, as reported: "'Aqil ibn Abi Talib married Fatimah bint 'Utbah ibn Rabi'ah, who said to him: be patient with me and I will provide for you; and whenever he entered upon her she said: O Banu Hashim, my heart will never love you; where are those whose necks are like silver ewers and whose noses reach before their lips? Where is 'Utbah ibn Rabi'ah? Where is Shaybah ibn Rabi'ah? He would keep silent. One day he entered upon her angry; she said: where is 'Utbah ibn Rabi'ah? He said: at your left in the Fire when you enter it; she tore her garments, went to 'Uthman and told him; he sent Ibn Abbas and Mu'awiyah; Ibn Abbas said: I will separate them; Mu'awiyah said: I cannot separate two elders of Banu Abd Manaf; they came and found that the two had shut their doors and mended their situation."
In one transmission: "when they came, they smelled a pleasant scent and a lowered voice; Mu'awiyah said: go back, I hope they have reconciled; Ibn Abbas said: shall we not go and see their situation? Mu'awiyah said: and what would we do? Ibn Abbas said: I swear by Allah that if I enter and see what I fear for them, I will rule between them and then separate them." If they find them in discord, they strive toward affection and remind them of Allah the Most High and of companionship; if they decline and fear that it will worsen in the future, given what appeared in the past, they separate them (Ahkam al-Qur'an, 1/539-540; Tafsir al-Qurtubi, 5/176-177).
Ibn Abd al-Barr said: they differed over the separation: does it require the husband's mandate? Malik and his companions say that the word of the two arbiters stands in separation and union without mandate or permission from the spouses; this is the view of ash-Sha'bi, Abu Salamah ibn Abd ar-Rahman, Ibrahim an-Nakha'i and Sa'id ibn Jubayr, and Ishaq followed it. Ibn Abbas said about the two arbiters: "if they agree to separate or to join, it is permitted." Abu Hanifah, ash-Shafi'i and their companions say they may not separate, unless the husband grants them the separation; this is the view of 'Ata and al-Hasan. Ibn Jurayj said: I heard 'Ata asked: do the two arbiters separate? He said: no, unless the spouses place it in their hands. Al-Hasan said: they arbitrate union, not separation; so said Abu Thawr, Ahmad and Dawud. Both groups argue with the word of Ali (may Allah be pleased with him): Abd ar-Razzaq reported that Ma'mar transmitted from Ayyub from Ibn Sirin from 'Abidah as-Salmani: "I witnessed Ali ibn Abi Talib: a woman came with her husband, each followed by groups of people; each party appointed an arbiter; Ali said to the two arbiters: do you know what is upon you? If you see that they should be separated, separate them, and if you see that they should be joined, join them; the husband said: as for separation, no; Ali said: you lied, by Allah; you will not leave until you accept the Book of Allah for you and against you; the woman said: I accept the Book of Allah for me and against me."
And Wak'i reported from Musa from 'Ubaydah from Muhammad ibn Ka'b that Ali said: "It is by the two arbiters that Allah unites, and by them that He separates." Among the arguments of the camp of ash-Shafi'i and Abu Hanifah: Ali's word to the husband: "you will not leave until you accept what she accepted", which shows that the two arbiters separate only with the husband's consent. The agreed basis is that divorce is in the hand of the husband or in the hand of the one to whom he grants it; Malik and his followers in the chapter of the ruler's divorce placed it in the hand of the one bound by vow and the destitute. Malik's companions differed: do the two arbiters divorce three times? Ibn al-Qasim said: a single irrevocable divorce, and the like is reported from Malik; al-Mughirah and Ashhab said: if he divorces her three times, it is three divorces, and success is from Allah (al-Istidhkar, 6/184; Sharh Sahih al-Bukhari of Ibn Battal, 7/425; Bidayat al-Mujtahid, 2/74).
The Malikis: the well-known view is that the way of the two arbiters is judgment, not mandate nor testimony, even if they are from the spouses' side; if they rule a divorce, even a khul', it takes effect, without need of the country ruler's ratification nor of the spouses' consent. Their divorce has effect only if they do not exceed one single divorce in their ruling; otherwise the excess does not take effect, for it falls outside the meaning of the reconciliation they were sent for, and the husband may revoke the excess. If they differ over the number, one ruling one divorce and the other two or three or a definitive one, only the single divorce binds the husband, according to their agreement upon it in the well-known view; it has been said: nothing binds, given their disagreement. Likewise if one says: impose upon us two or three divorces together, and the other: rather one, then one.
It is incumbent upon the two arbiters to reconcile the spouses by every possible means of affection and good companionship: each withdraws with his kinsman and asks him what he dislikes in his spouse, saying to him: "if you have a need concerning your spouse, we shall return matters to what you choose with her"; if that is impossible for them, they examine: if the wrong comes from the husband, they impose the divorce upon him without taking anything from her, neither of her mahr nor otherwise; if the wrong comes from her, they make him a trustee over her, in the sense that they make him a guarantor of justice and good conjugal conduct; and if they see that they should take something from her for him and bring about the separation, they do so if it is judged soundly, even if what they take from her for him exceeds her mahr, if the husband desires the separation or if they know she will not be upright with him. If the wrong comes from both, one prevailing over the other: upon failing to reconcile, is the divorce without compensation from her obligatory if she does not accept to stay with him, or may they conclude a khul' against a small sum from her? The first view gathers most of the early authorities.
Since the way of the two arbiters is judgment, not testimony nor mandate: if they rule between the spouses, they come, if they wish, to the ruler who sent them to inform him of their ruling, and it is incumbent upon him to execute it: their divorce takes effect even if the spouses or the ruler object. It has been said: they must go to the ruler who sent them to inform him of what they did, so as to secure his knowledge of the case; once informed, it is incumbent upon him to ratify without scrutiny, even against his school, judging as they judged, so as to remove the disagreement among the scholars in an agreed manner. The spouses may appoint a single arbiter between them with the described qualities (upright, knowing what he judges in this chapter); the ruler or the guardians of spouses under interdiction are not permitted that, for it would forfeit a right of the spouses; but if they consent, his ruling is not annulled, as al-Baji said.
Al-Lakhmi said: the sovereign and the guardians may install a stranger who judges between the spouses with those qualities, when he is a stranger to both; the two arbiters were only established when they are family members, each drawing knowledge from his own side; once outside kinship, one suffices. The spouses may, having appointed two arbiters, retract and dismiss them so long as the arbiters have not completed the examination of their situation and resolved upon judgment; if they have completed the examination, known their affair and resolved upon judgment, the return of one or both spouses no longer counts and what the arbiters judge binds them, whether one of them returns or both; the apparent meaning is that this holds even if they accept staying together, and that is the apparent sense of al-Muwaziyyah; Ibn Yunus said: perhaps he means if one of the two returns; but if both return accepting reconciliation and staying together, it is fitting not to separate them.
If the two arbiters agree that the divorce took place but differ over the compensation, one saying the divorce occurred with compensation and the other without: if the woman commits to the wealth, the divorce takes place and she is free of him; otherwise no divorce occurs at all and the situation returns as it was, for their combined word stands in place of the single ruler, and the combined word does not exist when a part of its elements is missing; that is if their difference concerns the very basis. As for a difference over the amount, the khul' of the equivalent becomes obligatory; likewise over its quality and kind, so long as the khul' of the equivalent does not exceed the whole of their claims nor fall short of the lesser one (al-Mudawwanah al-Kubra, 5/369-370; at-Taj wal-Iklil, 3/11 and 13; Mawahib al-Jalil, 5/228-229; Sharh Mukhtasar Khalil, 4/9 and 11; Tahrir al-Mukhtasar, 3/98 and 101; ash-Sharh al-Kabir with Hashiyyat ad-Dasuqi, 3/212 and 215).