Delegation, written talaq and exception

This part of the chapter on divorce (talaq) examines what happens when the period of choice given to the wife expires, the conditions of delegation in divorce, the agency entrusted to a third party, the stipulation placing the divorce in the wife's hand, divorce by writing, the divorce of the mute, and finally the various forms of the exception (istithna') in divorce, up to the legal exception "if Allah wills". The positions of the Hanafi, Maliki, Shafi'i and Hanbali schools are set out in detail, together with the hadiths and classical references that support them.

When the period of choice has elapsed

The one who takes the wife's place in her absence: as soon as this is known, she must not be left under his authority; the matter remains in her hand until she is suspended before the judge, so that she may decide by return (radd) or by divorce, unless he has intercourse with her while she is consenting, in which case what is in her hand lapses. She has no judicial decision (qada') to seek after the term, in application of the very wording (of the husband's words). If the judge suspends her and orders her to effect the divorce or to return what the husband placed in her ownership and she does not do so, what is in her hand becomes void, without any extension being granted to her even if the husband consents: it is a right of Allah, for it involves prolonging a state of protection (isma) whose validity is doubtful.

The explicit meaning of her answer is acted upon: if she answers with divorce, its meaning is applied, such as: "you are divorced from me", "I have divorced myself", "I am irrevocably separated (ba'ina)", "you are irrevocably separated from me"; if she answers with his return, its meaning is applied, such as: "I have returned what you placed in my ownership", "I do not accept it from you", and the like, just as when he divorces with an explicit formula its meaning is applied. Just as her return by words, as has passed, is her return by an explicit act: when she enables him access to herself, even through the preliminaries, while she is consenting and aware of the grant of ownership, even if she is ignorant of the ruling; if he does not consummate, what is in her hand is annulled. Likewise, if he transfers the matter to a third party who then leaves them alone and enables him to her, what is in his hand lapses. If she enables him without knowing, what is in her hand is not annulled; on the absence of knowledge, the word is hers; on intercourse, the word is hers if the privacy is established; and good faith belongs to him in intercourse under his oath, unlike the kiss: there the word is hers (if she says "he coerced me or overpowered me"), unlike intercourse, for it takes place with a posture and a description.

When the period of choice comes to an end: if he says "choose the whole day" and the day passes without her choosing, she has no choice left and what is in her hand is void; the "day" here means the span of time, short or long.

What is in her hand lapses when she returns the protection (isma) after her irrevocable separation through khul' or through an oath (batat), for that implies her satisfaction. But if he divorces her with a revocable divorce and then takes her back, her choice does not lapse, for you know that taking back (raj'iyya) is like the wife herself.

If he grants her an absolute grant of ownership, or gives her an absolute choice, that is, unrestricted by time and place, the view Malik retracted to is that it remains in her hand as long as she is not suspended before a judge, or intercourse does not take place, or she does not willingly enable him to that, whether or not she said in the session "I accept"; whereas he first used to say it remains in her hand only during the session, and that if they separate after she has been able to decide, she has nothing. If he leaps upon her at the moment of the grant intending to cut it off from her, it does not avail him. Its limit is: he sits with her as long as people would deem she would choose in such a case, without rising in flight; if most of the day passes and it is known they abandoned that for something else, she has no choice. Ibn al-Qasim adopted this retracted view.

It is related in "Al-Mudawwana al-Kubra": (I said) What do you think of a man who says to his wife "you are divorced whenever you wish"? He answered: Malik said: the wish belongs to her even if she rises from her session, until she is suspended; she then decides or abstains; if she abstains and he has intercourse with her before she is suspended or decides, she has nothing, and what was in her hands of that is void. Ibn al-Qasim said: I only told you about the man who says to his wife "you are divorced if you wish" that it is in her hand until she is suspended, even if they leave their session; for Malik abandoned his first view on the grant of ownership and retracted to saying: it is in her hand until she is suspended.

This case is more obscure than the grant of ownership: for Malik at one time used to say, about the one who says to his slave "you are free when my father arrives" or "you are free if my father arrives", that the two are different; his saying "when my father arrives" is stronger and firmer in my view than "if my father arrives"; then he retracted and said: they are equal, "when" and "if". On this basis I consider his saying "if you wish you are divorced" and "when you wish you are divorced" to be like his saying "when my father arrives you are free" and "if my father arrives you are free". (I said) If she accepts it, is that an abandonment of what he granted her? He answered: yes, and that is my view; I did not hear it from Malik.

There is also: (I said) What if he says to her "you are divorced if you wish", or "choose", or "your matter is in your hand": does it belong to her if she rises from her session, in Malik's view? He answered: Malik once said it belongs to her as long as she is in her session, and if they separate she has nothing. It was said to Malik: what if a man says to his wife "your matter is in your hand" and then leaps up in flight, intending thereby to cut off what he granted her? He answered: that does not cut off from her what he granted her. It was said: what is its limit in your view? He said: if he sits with her as long as people would deem she would choose in such a case, and if he leaves her it is not in flight but for a legitimate reason, the woman has no choice after that. Such was his earlier view; then he retracted and said: I consider it in her hand until she is suspended. It was said: does he appear to you like the one who says "I have accepted" and then they separate without her deciding? He said: yes; it is in her hands whether she said in her session "I have accepted" or did not say it, until she is suspended or intercourse takes place before she decides; after that she has nothing. His word "choose" gives her, in Malik's view, the same as "your matter is in your hand".

Likewise Malik said about the choice and "your matter is in your hand" that they are identical regarding what is granted to the woman; his first view is more beloved to me: if they separate she has nothing; and that is the view of the majority of people. (Ibn al-Qasim said) If a man says to his wife "you are divorced if you wish", it is in her hands even if she rises from her session; I heard nothing from Malik on it, except if she enables him to herself before deciding; I consider that she be suspended: she then decides, or what was in her hands becomes void. I only said that because when he said to her "you are divorced if you wish", it is as if a delegation he entrusted to her. (I said) If a man gives his wife the choice, until when may she decide in Malik's view? He said: she may decide as I told you about the grant of ownership, until they separate; if they separate, she has nothing after that ("Al-Mudawwana al-Kubra", 5/2-3 and 5/377-378; "Sharh Mukhtasar Khalil", 4/70; "Al-Fawakih al-Dawani", 2/45).

The conditions of delegation in divorce in the four schools

The husband may delegate his divorce in its three forms (agency, choice, and grant of ownership) to someone other than the wife: a stranger, a relative, a woman, a boy of sound understanding, or a dhimmi even if divorcing women is not part of his law, whether another shares that commission or not; subject to conditions:

• he must be present in the town or his absence short, like two days at most; a message is sent to him: either he comes, or he informs us through testimony of what he intends;
• if he is neither present nor of short absence (a distant absence), the delegation transfers to the wife, and everything previously mentioned applies to her;
• the delegate must consider the wife's interest: he does only what contains benefit; he does not return (the divorce) unless return holds benefit, otherwise the judge stands in his place;
• the one given the choice becomes like the wife in the choice and the grant: everything previously said about them applies, prevention, suspension, and so on.

If the husband places his wife's matter in the hands of two men and orders them to divorce her, neither of them may divorce her alone without his companion, for example by saying to them "divorce her if you wish", like the two agents in selling and buying. If one of them permits himself intercourse with her, what is in their hands lapses. If one of them dies, the other has no grant of ownership, unless they are two messengers, in which case each of them has the power to decide, by saying to them "divorce my wife" without saying "if you wish".

Unless he says to them, together or separately: "I have granted to each of you, or delegated to each of you, her divorce": each of the two then has the independence to divorce.

If he says "inform her that I have divorced her", the divorce is binding even if they do not inform her; it is called a "letter" (risala) in their usage. If he says "divorce her", the wording admits three meanings: letter, grant of ownership, and agency. On the letter, the divorce binds even without notification; on the grant, it neither binds nor occurs without both of them; on the agency, it binds by the notification of either one, and the husband keeps the power to dismiss him. These are three sayings, the famous one being the first: it is a letter that binds upon mere information even without notification, by agreement ("Taj al-Ikil", 3/103, 114; "Mawahib al-Jalil", 5/320, 329; "Sharh Mukhtasar Khalil", 4/70, 78; "Al-Sharh al-Kabir" with al-Dasuqi's gloss, 3/311, 326; "Tahbir al-Mukhtasar", 3/207, 220; al-Sawi's gloss on "Al-Sharh al-Saghir", 5/395, 413).

The Shafi'is say: delegating divorce to the wife is permitted by consensus, for the Prophet (peace be upon him) gave his wives the choice between remaining with him and parting from him when the following verse was revealed:

"O Prophet! Say to your wives: if you desire the life of this world and its adornment, come, I will provide for you and release you in a gracious manner; but if you desire Allah and His Messenger and the Last Abode, then Allah has prepared for the doers of good among you a tremendous reward"

Surah 33, Al-Ahzab, 28-29

Had the choice of parting had no effect, giving them the choice would have been meaningless. The husband may delegate the immediate divorce of his wife, whether explicit or allusive, such as "divorce yourself" or "release yourself" (abini), to his adult and sane wife. Suspending it is not valid, as in "tomorrow, divorce yourself" or "when Zayd comes, divorce yourself", nor is delegation to a minor or to the guardian of a madwoman, like the other grants of ownership in all of that.

Delegation is, according to the later view, a grant of ownership of the divorce, for it attaches to her purpose like the other grants: it is like his saying "I have granted you your divorce". Its occurrence therefore requires his legal capacity, hers, and her immediate divorce; for the divorce here is the answer to the grant, like acceptance, and acceptance is immediate. If she delays as long as would cut acceptance off from the offer, or if much extraneous speech intervenes between the delegation and her divorce and she then divorces herself, she has not divorced. If she says "how do I divorce myself?" and then divorces, it takes place; a brief interruption does not matter. It is not valid from one not legally capable, nor upon one not legally capable, the phrasing being corrupt.

If he says "I have appointed you (wakkaltuki) to divorce yourself", immediacy is not required; likewise if he says "divorce yourself whenever you wish", or "whenever you want". If he says to her "divorce yourself for a thousand (dirhams)" and she divorces herself immediately while free to dispose, she is separated and owes the thousand; a grant for compensation is like a sale; if no compensation is mentioned, it is like a gift.

According to an early view, delegation is agency, as if he delegated her divorce to a stranger; on that view, immediacy is not required for her divorce, in the sounder opinion, as in the agency of a stranger. The second view requires it, because of the taint of the grant of ownership.

On both views, the grant and the agency, the husband may revoke the delegation before she divorces; for in the grant and the agency, retraction is permitted before acceptance. If he retracts and she then divorces herself, nothing occurs, whether she knew of his retraction or not.

If he suspends the delegation, as in "when Ramadan comes, divorce yourself", it is void on the view of the grant of ownership, for a grant of ownership cannot validly be suspended.

Know that the forms of delegation mentioned concern the explicit formula only. As for the allusion (kinaya): he says to her "release yourself" (abini), she says "I have released myself" (abantu), both intending it, he the delegation of the divorce by "abini" and she the divorcing of herself by "abantu": the divorce occurs, for the allusion with intention is like the explicit. If neither of them intends, or only one of them, nothing occurs: without his intention there is no delegation, and without hers no divorce, for divorce does not occur by that word alone. If he is explicit and she allusive, or the reverse, as when he says "divorce yourself" and she says "I have released myself" intending it, or he says "release yourself" intending it and she says "I have divorced": the divorce occurs, for she was commanded to divorce and did so in both cases; the difference of wording does not harm.

If he says to her "divorce yourself by the explicit divorce, or its allusion, or the emancipation (tasrih), or the like", and she turns from what was permitted to something else, she has not divorced, for she contradicted the explicit content of his speech.

If he says "divorce yourself" intending three, and she says "I have divorced myself" intending them and knowing his intention, or it occurs by mutual agreement, there are three divorces, for the word admits number and both intended it; otherwise one, in the sounder view, for the explicit of divorce is allusive as to number. On the second view, three occur, carrying over what was intended.

If he says "divorce yourself three times" and she singles it ("I have divorced myself once"), or the reverse ("divorce yourself once" and she triples it, "I have divorced myself three times"), one divorce occurs in both cases: in the first, because what she effected falls within what was delegated to her; in the second, because the surplus delegated is not permitted, and what he granted is what occurs.

If he says "divorce yourself three times" and she says without intention "I have divorced myself", the three occur, for her speech is the answer to his speech, like repetition in an answer; unlike the case where he did not utter "three" but intended it: what is intended cannot be estimated as repeated in the answer, for communication is by the word, not by intention.

If she divorces herself playfully while truly intending it, and it coincides with the delegation made to her, so long as the interval between them has not grown long, she is divorced, like one who sells his father's property believing him alive: the sale is valid if he is dead.

If he delegates his wife's divorce to two men and one divorces once and the other three times, only one divorce occurs, by their agreement upon it.

If he places his wife's divorce "in the hand of Allah and in the hand of Zayd", it is void if he intended partnership: Zayd may not divorce her. If he intended blessing, or that all matters are in the hand of Allah, then no.

If he says "I have placed all my affairs in your hand", it is an allusion of delegation to her; she may not divorce herself three times unless he intended it. If he says "divorce yourself three times if you wish" and she divorces once, or "divorce yourself once if you wish" and she divorces three times, one divorce occurs, as if he had not mentioned the wish. If he places the wish before the number, "divorce yourself if you wish, once", and she divorces three times, or the reverse, it is void: the wish has become a condition in the root of the divorce, the meaning being "divorce yourself if you choose the three"; if she chooses otherwise, the condition is unfulfilled; unlike when he delays it, for it reverts to the delegation of the meaning: "I have delegated to you to divorce yourself three times; if you wish, do what I delegated to you", and that does not prevent the effect of that specified divorce, nor of what falls within it ("Kanz al-Raghibin", 3/811, 814; "Al-Najm al-Wahhaj", 7/496, 498; "Mughni al-Muhtaj", 4/464, 466; "Tuhfat al-Muhtaj", 9/359, 365; "Nihayat al-Muhtaj", 6/506, 509; "Al-Dibaj", 3/410, 412).

The Hanbalis say: a man may delegate the divorce to his wife, based on what Abu Salama ibn Abd al-Rahman narrated from Aisha, the wife of the Prophet (peace be upon him):

When the Messenger of Allah (peace be upon him) was commanded to give his wives the choice, he began with me and said: I am about to mention to you a matter; do not hasten until you have consulted your two parents. She said: he knew my parents would not order me to part from him. Then he said: Allah, exalted be His praise, said: "O Prophet! Say to your wives: if you desire the life of this world and its adornment, come, I will provide for you and release you in a gracious manner; but if you desire Allah and His Messenger and the Last Abode, then Allah has prepared for the doers of good among you a tremendous reward". She said: I replied: in which of these two should I consult my parents? I desire Allah, His Messenger, and the Last Abode. She said: the wives of the Prophet (peace be upon him) did as I did.Narrated by al-Bukhari (4508) and Muslim (1475)

Delegation is of two kinds. The first: delegation by an explicit formula, "divorce yourself": she may divorce herself once, no more, for an unrestricted command covers the least to which the term applies, as if he had appointed a stranger, unless he grants her more by his word or intention, for he intended by his speech what it admits, and his intention stands like his speech since he made it known. She may divorce by the explicit and by the allusion with intention, for all of that is divorce and enters into its term. She may divorce whenever she wishes, for it is an unrestricted agency in divorce, resembling the agency of a stranger. Al-Qadi said: it is restricted to the session, by analogy with the choice.

The second kind: delegation by allusion, which is of two types. The first: "your matter is in your hand": she may divorce herself as much as she wishes and whenever she wishes, for it is an agency by a term implying universality over all her affair, resembling "divorce yourself as much as you wish and whenever you wish". It is narrated from Ali, about a man who placed his wife's matter in her hand: "it is hers until he turns away from it".

From Ahmad is also deduced that if he intended one divorce, it is one; for it is a kind of choice, so it reverts to his intention like the choice.

The second type: "choose": she may not choose more than one divorce, unless he grants her more by his word or intention; and she may choose only at the end of his granting choice, before they interrupt it by turning to other talk or one of the two rising from the session; this is narrated from Umar, Uthman, Ibn Mas'ud, and Jabir (may Allah be pleased with them). Sa'id ibn al-Musayyib said: Umar and Uthman ruled for the man who gives his wife the choice that she has the choice so long as they have not separated. From Abdallah ibn Umar: "as long as they are in her session"; and similar from Ibn Mas'ud and Jabir; no opponent among the Companions is known, which amounts to consensus; it is the view of most people of knowledge, for it is a choice of grant of ownership, hence immediate like the choice of acceptance.

If he grants her more by his word, his intention, or an indicative context, it is as he granted: the Prophet (peace be upon him) said to Aisha: "do not hasten until you have consulted your two parents".

The husband may revoke what he delegated to her before she divorces, for it is a kind of delegation: he owns the retraction as in the agency of a stranger. Intercourse with her counts as retraction, for it indicates his desire for her and his withdrawal from what he had granted her.

The words "choose" and "your matter is in your hand" are allusions as far as the husband is concerned, for they are not explicit in intending divorce, and do not apply to divorce without intention. If he intends by them the divorce at once, it occurs, for they can serve as allusions to divorce, like his other allusions. If he intends the delegation and she divorces herself with an explicit formula, the divorce occurs without an intention being required of her; if she chooses nothing, nothing occurs; likewise if she chooses her husband: the Prophet (peace be upon him) gave his wives the choice, they chose him, and it was not a divorce; for it is a delegation of divorce to her, and nothing becomes divorce by it alone, like "divorce yourself". If she says "I accept", it is nothing: it turns to the acceptance of the delegation, like the acceptance of the agency. If she says "I have chosen myself, my family, my parents, the (other) wives, or that you no longer approach me", and the like, which may mean divorce, it is an allusion requiring intention, like the allusions: if she intends divorce by it, it is a divorce, otherwise not; one divorce occurs by it, unless he intends three when he granted her three.

If he grants her three divorces by his word or intention and she divorces three times, three occur; if she divorces fewer, it occurs, for whoever owns three owns one, like the husband. If he says "choose" and she chooses herself and both intend three, the three occur; if one intends one divorce and the other more, one divorce occurs: divorce requires both the husband's grant and the wife's effecting; the surplus was fulfilled by only one of the two, so it did not occur.

Delegating divorce to someone other than the wife is valid, for it is the removal of an ownership; agency in it is valid like manumission: if he says to a man "divorce my wife" or "her matter is in your hand", the ruling is that of placing it in the wife's hand, as has passed.

Agency (wikala) in divorce

If he appoints two men, neither of them may divorce her alone. If he grants them three divorces and one divorces three times and the other once, one divorce occurs, by their agreement. If only one divorce remains to the wife and the agent divorces three times, one divorce occurs, for the locus admits no more ("Al-Mughni", 7/311, 318; "Al-Kafi", 3/174, 178; "Al-Mubdi'", 7/286, 289; "Al-Insaf", 10/492, 495; "Kashshaf al-Qina'", 5/292, 298; "Manar al-Sabil", 3/88, 89).

Agency in divorce consists in placing the creation of the divorce in the hand of another while the husband's power to prevent it remains; for the principal may dismiss his agent whenever he wishes, the agent acting as the deputy of his principal; he may therefore dismiss him before the completion of the mission.

The jurists of the four schools agreed on the validity of agency in divorce. Note: Ibn Hazm disagreed, saying in "Al-Muhalla" (10/196) that agency in divorce is not permitted: "No burdened soul bears the burden of another" (Surah 6, 164); no one acts for another except where the Quran or the Sunnah of the Messenger of Allah permits it, and no Quran or Sunnah has come permitting divorce by agency; it is therefore void. The partisans of analogy oppose us by their claim... and wherever Allah mentioned divorce He addressed the husbands, none other: none may deputize for them, for that would be transgressing the limits of Allah: "Whoever transgresses the limits of Allah, those are the wrongdoers" (Surah 2, 229), and "It is not for a believing man or woman, when Allah and His Messenger have decided a matter, to have any choice in their affair" (Surah 33, 36). No permission of agency in divorce is known from any predecessor, except Ibrahim and al-Hasan.

The husband says: "I have appointed you to divorce my wife"; need calls for it as for agency in sale and marriage; and since agency was permitted in marriage despite the stringency of its ruling, its permission in divorce is all the more fitting. Ibn Hubayra said: they agreed that agency is among the contracts permitted in principle, and that every right in which deputyship is permitted admits agency, such as sale, purchase, hire, paying a debt, pleading a claim, marriage, and divorce ("Al-Ifsah", 1/452; see also "Bidayat al-Mujtahid", 2/226 and 2/10; "Bada'i' al-Sana'i'", 6/23; "Al-Jawhara al-Nayyira", 3/476; "Al-Sharh al-Kabir" with al-Dasuqi, 5/52-53; "Al-Ma'una", 2/206; "Taj al-Ikil", 4/195; "Sharh Mukhtasar Khalil", 6/69; "Tahbir", item 4278; al-Sawi, 8/63; "Al-Muhadhdhab", 1/348; "Al-Bayan", 6/397; "Rawdat al-Talibin", 3/490; "Mughni al-Muhtaj", 3/197-198; "Nihayat al-Muhtaj", 5/27; "Al-Najm al-Wahhaj", 5/33; "Al-Dibaj", 2/306; "Kanz al-Raghibin", 2/847; "Al-Mughni", 5/52; "Sharh Muntaha al-Iradat", 3/506; "Kashshaf al-Qina'", 3/540).

They proved it with the hadith narrated by Muslim from Abu Salama, from Fatima bint Qays:

Abu Amr ibn Hafs had repudiated her irrevocably while absent; his agent sent her barley, which she disapproved; he said: by Allah, you have no claim on us. She came to the Messenger of Allah (peace be upon him) and mentioned that to him; he said: you have no maintenance from him.Narrated by Muslim (1480)

Al-Mawardi said: agency in divorce is permitted, for Fatima bint Qays was divorced by her husband's agent in the presence of the Messenger of Allah (peace be upon him), who confirmed it; and since agency was permitted in marriage despite the stringency of its ruling, its permission in divorce is all the more fitting. If the husband appoints a sane man, it is valid, free or slave, Muslim or disbeliever. It is not permitted to appoint a madman or a minor, for their speech has no legal effect. Two views were discussed on appointing a woman, both treated in the chapter on khul'.

Agency is then of two kinds. The first: unrestricted agency: "I have appointed you to divorce my wife so-and-so"; the agent may divorce her at once or with delay, unlike granting the wife the divorce of herself, for this is deputyship and that is ownership. If he mentions a number, the agent does not exceed it: if he says to him "divorce her three times" and he says to the wife "you are divorced three times", she is divorced three times. If he says to her "you are divorced" intending three, two views arise: she is divorced three times, for the intention of three stands in place of uttering three; or she is not divorced three times, the agent's intention not standing in place of the husband's, for the husband is liable in divorce and acted upon according to his intention, whereas the agent is not liable in divorce, so he is not acted upon according to his intention.

Likewise if the agent divorces by allusion with intention, the two views apply. If he was appointed to divorce three times and divorces once, two views: it occurs, for it is part of his commission; or it does not, for he was appointed to an irrevocable divorce and this one is not irrevocable, so it is other than his commission; if he was appointed for one, the three do not occur; and even the single divorce carries two views.

If he appoints him to divorce one of his wives without specifying her, two views: whichever he divorces is valid, for an ambiguous divorce is permitted; or the agent may divorce one before the husband specifies her; if he divorces one before specification, she is not divorced: ambiguity from the husband is permitted, for he remains free to specify; from the agent it is not, for he is not free to specify.

The second kind: restricted agency, that is, appointing him to her divorce under a description: he orders him to divorce her on Thursday, and he may not do so except on that day; if he divorces her on another day, she is not divorced. Or he orders him to divorce her for the Sunnah: if he divorces her for an innovation, she is not divorced; or for an innovation: if he divorces her for the Sunnah, she is not divorced. If he says to him "divorce her if you wish", his divorce does not occur until he says "I wish"; nor is the effecting of the divorce dependent on his wish; for divorce may be effected with or without a wish, and the wish is known only through speech; immediacy is not a condition of his wish, unlike suspending the divorce on the wife's wish: that is a grant of ownership in which immediacy is considered; suspending it on his wish is a description in which immediacy is not considered, for he granted her her divorce whenever he wishes: since immediate and delayed divorce are both permitted to him, his wish may accompany the delayed divorce. Part of the soundness of his wish is informing the husband before divorcing: if he informs another and then divorces, nothing occurs; for if informing another were a condition, informing the husband would be more worthy of being one. If he says to him "divorce her if she wishes", the wife's wish is taken into account when the agent presents the divorce to her: he may not divorce her until he has presented the divorce and asked her wish; her wish is then considered for immediacy: if she hastens, the divorce occurs. When the agent effects it after her, whether at once or with delay, if her wish was delayed the divorce does not occur after her: a corrupt wish.

The agent in divorce may not appoint another: if he appoints two agents to divorce one wife and grants each of them the power to divorce her, whichever of the two precedes her by divorcing her three times voids the agency of the other. If he grants each of them one divorce, when one precedes and divorces her once, the other's agency is not void: he may divorce her again. Likewise if he appointed one agent for three divorces and then the husband acted first, divorcing her three times, the agency is void; if the husband divorced her once, the agency remains for the two remaining divorces. If the agent divorces three times, only two of them occur, for they are the two remaining of the husband's divorces after the one he effected. If he appointed him for one divorce and the husband then divorced her once, the agency is not void until her waiting period ends; if the agent divorces her once during the period, she is divorced, whether the husband took her back or not. If the waiting period from the husband's divorce ends and he then resumes the marriage, two views arise on the survival of the agency and the validity of the agent's divorce: the agency survives and his divorce occurs; or the agency has lapsed and his divorce has no effect. These two views stem from the disagreement over the contract of divorce within a marriage: may it occur in other than it?

If the husband revokes the agency, or becomes insane, or dies, the agent may no longer divorce: if he divorces, nothing occurs. If the agent is unaware of his principal's insanity or death and divorces, his divorce does not occur, for divorce from a dead or insane husband is not valid. If the agent does not learn of the husband's retraction until he divorces, two sayings apply on the occurrence of his divorce, following the disagreement over the delegate in retaliation who executes before learning of the pardon ("Al-Hawi al-Kabir", 10/178, 180).

The Hanafis say: if a man appoints someone to divorce his wife for the Sunnah while she is among those who menstruate, the appointment having taken place during menstruation or during a purity in which he had intercourse, and the agent divorces her during menstruation or that purity, the divorce does not occur: it is not an appointment for the present moment; his agency refers to the purity in the first form, and to menstruation and purity in the second. Likewise if he says to her in that state "you are divorced for the Sunnah", "you are divorced when you purify yourself", "you are divorced when you menstruate and then purify yourself": no divorce occurs; when she purifies in the first form, or menstruates and purifies in the second, and the agent then divorces her, the divorce occurs: he is now an agent, the effect having taken place by virtue of the appointment, so it is valid.

If the husband appoints another to divorce his wife and then divorces her himself before the agent, this is not a dismissal of the agent: the agent's divorce occurs upon her as long as she is in the waiting period; after the period has ended, the agent's divorce does not occur, whether the husband remarries her or not. If he appoints a man to divorce his wife while the agent is absent and unaware, and he divorces before learning of it, his divorce does not occur, for he does not become an agent before knowledge. In "Al-Muntaqa", from Abu Yusuf: he becomes an agent before knowledge; Abu Yusuf said: I do not retain it from Abu Hanifa. If he says to someone "divorce my wife three times" and he answers "it is done", it is valid. If he says to two men "divorce my wife three times" and one divorces once and the other twice, she is divorced three times.

If he says to someone "divorce my wife if she wishes", that man is not considered an agent until she wishes; the wish is hers in the session in which she has knowledge; once she wishes in that session, he becomes an agent: if he divorces her in that session, the divorce occurs; if he rises from his session, the appointment is void and his divorce no longer occurs. Shams al-A'imma al-Halwani said: this should be memorized; the trial is widespread: most of the divorce letters a husband writes from his village contain "O you to whom I wrote this letter, ask my wife whether she wishes the divorce; if she wishes it, divorce her", and then the agents often delay effecting it beyond the session of her wish, not knowing that the divorce does not occur.

If he says to someone "you are my agent in her divorce on condition that I hold the choice, or she holds it, or so-and-so holds it", the agency is valid and the choice is void.

If he says to someone "divorce one of my wives" and he divorces one of them specifically, it is valid, and the husband may not redirect the divorce to another; likewise if he divorces one of them non-specifically, it is valid, and the choice belongs to the husband. This is because "one" applies both to an unspecified one and to a specified one; consider: "this one is one of my wives"; the appointment occurred in absolute terms, without restricting the "one" by specificity or unspecificity; in its unrestrictedness it is permitted, and the case amounts to "divorce one of my wives, if you wish specifically, if not, not specifically"; even had he stated this verbatim, the answer would be as we said; the same applies here ("Al-Muhit al-Burhani", 3/496, 497; "Al-Fatawa al-Hindiyya", 1/396).

Shaykh al-Islam Ibn Taymiyya was asked about a man between whom and his wife there had been quarrels and who was about to travel; he said to his agent: "if she accepts this usual maintenance, hand her the maintenance; if she does not accept it, hand her her letter (her divorce)". The agent, after the principal had travelled, handed her her letter and divorced her with a revocable divorce, and sent word to the principal that he had divorced her revocably. When the principal learned of it, it weighed upon him; he testified against himself that he had taken her back and sent to seek her. When the agent heard that he had taken back his wife, he mentioned that he had divorced her three times on his behalf. May the man take back his wife after the agent's statement? He answered: praise be to Allah. His saying "hand her her letter" is an allusion to divorce; if the principal declares that he intended divorce by it, or it is known from the situation, he may divorce her once ("Majmu' al-Fatawa", 33/120-121).

The stipulation placing the divorce in the wife's hand

The agent may not divorce three times without the principal's permission; if he says to the agent "I did not intend thereby that he divorce her three times", his statement is accepted and the agent may not divorce her three times. If the agent divorces her once and the husband then takes her back, the return is valid ("Majmu' al-Fatawa", 33/120-121).

The jurists differed over the case where the wife stipulates that the divorce be in her hand, so that she may divorce herself whenever she wishes: is such a condition valid, giving her the right to divorce herself whenever she wishes? Is the marriage annulled if the contract is concluded before consummation, and established after with the equivalent dowry (mahr al-mithl)? Or is it void absolutely, before as after?

The Hanafis say: if a man marries a woman on condition that her matter be in her hand, so that she divorces herself whenever she wants, and the woman accepts, no divorce occurs and the matter is not in her hand, if the husband initiates by saying "I marry you on condition that the matter be in your hand"; except if he says "on condition that your matter be in your hand after I marry you" and she accepts: it is valid and the matter is in her hand. If it is the woman who initiates and says "I marry myself to you on condition that the matter be in my hand, I divorce myself whenever I wish", and the husband answers "I accept", the marriage is valid, the divorce occurs and the matter is in her hand ("Al-Bahr al-Ra'iq", 3/343; "Al-Ashbah wa-l-Naza'ir", 1/408; "Al-Fatawa al-Hindiyya", 1/273; Ibn Abidin's gloss, 3/27, 329).

They also said that this arrangement becomes a stratagem (hila) for the woman divorced three times who fears the muhallil will keep her: she should initiate and say to the husband "I marry myself to you on condition that my matter be in my hand, I divorce myself whenever I want"; the husband accepts, the matter is in her hand, and she divorces herself whenever she wants. If the husband says "I marry you on condition that you be divorced after I marry you", or "on condition that your matter be in your hand after I marry you: divorce yourself whenever you want", and the woman answers "I accept", she is divorced and the matter is in her hand.

In "Al-Muntaqa": al-Hasan, from Abu Hanifa: if he says to her "I marry you on condition that your matter be in your hand after I marry you, for one month", the marriage is permitted and her matter is in her hand for one month from the marriage; if she chooses her husband on a day of the month, her choice is not void for the rest of the month. Al-Hasan narrated from Abu Malik, from Abu Yusuf, that her choice is void for the rest of the month ("Al-Muhit al-Burhani", 3/87; "Sharh Fath al-Qadir", 3/183; "Tabyin al-Haqa'iq", 2/259).

The Malikis say: if he marries her on condition that the divorce be in her hand whenever she wants, or that she like to divorce herself, she has that; the condition is stipulated in the very core of the contract: the marriage is rescinded before consummation by consensus, and established after with the equivalent dowry; on the sound view of the school it is not rescinded thereafter: the marriage stands and follows the norm of marriage, and the contradictory condition lapses, for every condition that contradicts the Book of Allah and the sunnah of His Messenger is null and void. It is also said: it is rescinded absolutely, before and after consummation. As for a condition concluded after the contract while she holds the protection (isma), it does no harm ("Al-Bayan wa-l-Tahsil", 4/378, 461; "Taj al-Ikil", 2/511; "Sharh Mukhtasar Khalil", 3/195; "Al-Sharh al-Kabir" with al-Dasuqi, 3/41; "Al-Bahja fi Sharh al-Tuhfa", 1/435; al-Sawi's gloss, 4/496).

The Shafi'is say: every condition that lifts the purpose of the contract, such as marrying a woman on condition that the divorce be in her hand for her to divorce herself whenever she wishes, voids the marriage: the marriage with such conditions is void, whether they come from him or from her, for they lift the purpose of the contract, which is duration and permanence; the marriage then becomes term-limited and follows the regime of the mut'a marriage: it is void ("Al-Hawi al-Kabir", 9/506).

The author found no position from the Hanbalis: they did not mention this condition in the chapter on the conditions of marriage, neither among those permitted nor among those forbidden; they mentioned it only in the case where the husband places his wife's divorce in her hands after the marriage: he marries her and places her matter in her hand; that is permitted according to them and according to the jurists of the four schools, as has passed in the chapter on the conditions of marriage. The author did, however, find a fine passage of Ibn al-Qayyim: when a woman marries and fears that her husband will travel and leave her, or travel with her while she does not wish to leave her home, or marry another wife, or take a concubine, or drink intoxicants, or beat her without fault on her part, or turn out poor when she thought him rich, or defective when she thought him sound, or unable to read...

Divorce by writing: does it take effect with intention?

(The preceding discussion opens onto the question of written divorce:) the divorce does not occur through writing without intention, for writing is ambiguous: one writes to train the pen, to improve one's hand, or over family concerns; without intention nothing occurs, as with the allusions of divorce: if he intends thereby to improve his handwriting or to try his pen, nothing occurs; for had he intended by the spoken word something other than the effect, nothing would have occurred: writing is more deserving of that.

The Hanbalis, according to one narration, hold that whoever writes the divorce without intending it is divorced nonetheless: this is the view of al-Sha'bi, al-Nakha'i, and al-Zuhri.

Second position: if he writes his wife's divorce intending thereby the divorce, does it take effect or not? The jurists differed over this. The majority of jurists, in principle, the Hanafis, Malikis, Shafi'is (on the more apparent view) and Hanbalis, hold that it occurs: writing stands in the place of its author, as shown by the fact that the Prophet (peace be upon him), commanded to call all people to Islam, wrote to Kisra (the emperor of Persia) and Qaysar (the emperor of Rome), and that letter stood in place of his call by speech.

For writing consists of articulated letters indicating an intelligible meaning, like speech; it stands in the place of speech in making the meaning clear; and divorce occurs through what stands in the place of another, like writing. And because legal effects attach to writing, as shown by the judge's letter to a judge: debts and rights are established by it; it is therefore like the word by which a debt is established. The Shafi'is, according to one view, hold that divorce does not occur through writing, even with intention: it is the act of one capable of speech, so no divorce occurs through it, like the gesture of one who can speak.

They nevertheless have a distinction. The Hanafis say: writing is of two kinds: formalized and non-formalized; the formalized is that which has an opening and a heading, like what is written to an absent person; the non-formalized has neither, and falls into two kinds: legible and non-legible. The legible is what is written on paper, a wall, or the ground in a way that can be understood and read; the non-legible is what is written in the air, on water, or on something that cannot be understood or read. In the non-legible, the divorce does not occur even with intention. If it is legible but not formalized, the divorce occurs if he intends, otherwise not. If it is formalized, the divorce occurs whether he intends or not.

The formalized, in turn, is either immediate: he writes "after the preliminaries: you are divorced", and each time he writes this the divorce occurs, and the waiting period binds the wife from the time of writing; or it is suspended on the arrival of the letter: he writes "when my letter reaches you, you are divorced", and as long as it has not reached her, nothing occurs. If he writes "when my letter reaches you, you are divorced" and then writes family matters afterward, and the letter reaches her, whether she read it or not, the divorce occurs.

If a man writes to his wife family matters and adds at the end "after the preliminaries: when my letter reaches you, you are divorced", then changes his mind and erases the writing of the divorce, the letter arrives and she is divorced. If he erases the writing of the family matters while keeping that of the divorce and sends her the letter, she is not divorced: by erasing the family matters the letter has become void and the condition is unfulfilled. If he writes at the beginning "when my letter reaches you, you are divorced", then writes the family matters at the end, then erases the divorce keeping what follows, she is not divorced; if he erases what follows keeping the divorce, she is divorced. If he writes the divorce in the middle of the letter, with family matters before and after, then erases the divorce and sends the letter, the divorce occurs, whether what precedes it is shorter or longer.

If he writes "you are divorced three times if Allah wills, blessed and exalted" joined to his writing, she is not divorced; if the formula is separate, she is divorced.

If he writes to his wife "when my letter reaches you, you are divorced" and the letter reaches her father, who seizes and tears it without handing it to her: if the father disposes of all her affairs and the letter reached him in her town, the divorce occurs; otherwise, no divorce until it reaches her; if the father informs her of the letter's arrival: if he hands it to her torn, intelligible and readable, the divorce occurs; otherwise not.

If he writes the divorce and makes the exception with his tongue, or divorces with his tongue and makes the exception in writing: is it valid? No report exists on this question; it should be valid.

As for the Malikis, Abu al-Walid Ibn Rushd al-Qurtubi reported a question: I heard him being asked about the one who writes to his wife her divorce; he said: I see him in full latitude, free to choose until the letter leaves his hand; once it has left his hand it is, in my view, like witnessing; and I consider her divorce binding upon him, like the one who writes a deed as charity: he remains free until the letter leaves his hand, he considers and inquires; once it leaves his hand it is as if he had witnessed; and I see this as standing continuously; for the one who writes a letter thus with something...

The divorce of the mute

The mute, when divorcing his wife, does so either by gesture or by writing. If he divorces by gesture, his wife is divorced. Ibn Qudama said: Malik, al-Shafi'i, and the partisans of opinion (ashab al-ra'y) said this, and we know of no disagreement from others; for he has no way to divorce except by gesture: his gesture stands in the place of speech without an intention being required, like marriage. As for one capable of speech, his divorce by gesture is not valid, just as his marriage is not valid by it. If the mute indicates the divorce with his three fingers, she is divorced three times: his gesture follows the course of another's utterance ("Al-Mughni", 7/373).

The Hanafis say: the divorce of the mute by gesture is according to two aspects: if it is a gesture by which his speech is known, the divorce occurs; if his gesture is one by which his speech is not known, it does not occur: we are certain his marriage subsists and in doubt about its dissolution, and nothing is dissolved by doubt. Then, his divorce understood by gesture, if it is less than three, is revocable. This is when he cannot write; if he can write, two views exist in the school: on the first, if he can write, his divorce by gesture does not occur, the need being repelled by what indicates the intended more clearly than gesture; on the second, if he has a gesture known in his marriage, his divorce, his manumission, his sale and his purchase, it occurs by istihsan (juristic preference), whether he can write or not; for he needs what the one who can speak needs, and were his gesture not treated as the speaker's expression, hardship would result, which the law repels ("Mukhtasar Ikhtilaf al-Ulama", 2/451; "Fatawa al-Sughdi", 1/358; "Al-Mabsut", 6/143; "Al-Jawhara al-Nayyira", 4/426; "Al-Bunaya", 5/302; Ibn Abidin's gloss, 3/241; "Al-Hindiyya", 1/354).

As for the Malikis, it is related in "Al-Mudawwana al-Kubra": (I said) What do you think of the mute: are his divorce, his marriage, his purchase, his sale, his li'an if he slandered, the li'an of his slanderer, retaliation for him in wounds, and retaliation against him, permitted? He answered: yes, this is permitted as far as I have heard, and it reached me from Malik that if all this is known from the mute by gesture or writing with certainty, it is binding upon the mute. (I said) The mute, if he manumits or divorces: is that permitted in Malik's view? He said: I hold that if he is suspended upon it, indicates it by gesture, and knows it is binding upon him, he is ruled accordingly. (I said) Likewise if he writes with his hand the divorce and the manumission? He said: I told you it binds him by gesture: how should it not bind him in writing?! ("Al-Mudawwana al-Kubra", 5/24; "Iqd al-Jawahir al-Thamina", 2/513; "Sharh Mukhtasar Khalil", 4/49).

Imam al-Shafi'i said: when the mute divorces his wife by a writing or an intelligible gesture, the divorce binds him; likewise if he takes her back by a writing of his or an intelligible gesture, the return binds him. When a man falls ill and his tongue slackens, he is like the mute in return and divorce: if he makes an intelligible gesture or writes, the divorce binds him and the return is imposed upon him. If he has not slackened but has lost the strength of speech and makes an intelligible gesture of divorce or return, or writes an intelligible letter, it is a return, until he recovers and says "it was not a return": she is then discharged from him by the first divorce. Every adult husband not overpowered in mind may take back as he may divorce ("Al-Umm", 5/245).

Al-Buhuti said: (among the conditions for the occurrence of divorce is its utterance), as has passed at the beginning of the chapter, except in two cases already mentioned there: the first, when he writes the explicit of her divorce legibly; the second, when the mute divorces by an understood gesture; if he divorces in his heart, nothing occurs, like manumission; if he indicates with his finger or his three fingers with the intention of his heart, it occurs, as has passed. Ibn Hani narrated from Ahmad: if he divorces within himself, nothing binds him so long as he does not utter it or move his tongue. In "Al-Furu'": its apparent meaning is that it occurs even if he does not hear himself, unlike recitation in prayer, which does not suffice where he does not hear himself; divorce is like recitation in prayer: it does not occur by the mere movement of the tongue, unless he is in a place where he would hear himself were it not for the impediment; and the discerning child (mumayyiz) is like the adult in all that has preceded ("Kashshaf al-Qina'", 5/297-298).

As for divorce by writing from the mute, Ibn al-Mundhir said: all those from among the people of knowledge whose statements we retain agreed that when the mute writes the divorce with his hand, it is permitted. Al-Nakha'i and al-Thawri said the same, and al-Thawri said: I find nothing in it against my inclination. Ibn al-Qasim related from Malik that it binds him if he indicates it by gesture. Ibn al-Qasim said: how should it not bind him in writing?! Among those who hold that a written divorce binds him are al-Shafi'i and Abu Thawr. The partisans of opinion say: what is permitted on the sound view in his writing is likewise permitted; and so too manumission and marriage. Al-Shafi'i said of the man who falls ill and whose tongue slackens that he is like the mute in return and divorce: if he makes an understood gesture or writes, the divorce binds him. Abu Thawr said of the understood gesture from the mute that it is admitted from him. The partisans of opinion say: if his gesture is known in his divorce, his marriage, his purchase and his sale, and it is recognized as coming from him, it is admitted from him; if doubt mingles with it, it is void; and this is not analogy, it is istihsan; analogy in all of this is that it is void, for he does not speak and his gesture is not understood. Abu Bakr (al-Jassas) said: his saying "his gesture is not understood" is refuted by "if his gesture is known"; and in his saying "when his gesture is known" lies a refutation of his saying "his gesture is not understood"; then he mentioned that that by which he rules is not analogy and that analogy in this is its being void: in acknowledging that analogy in this is void, he acknowledges that he ruled by what is void; for analogy, in his view, is the truth: ruling against it is ruling against the truth, which is void. And his display of the view of istihsan, which is the opposite of analogy, is a refutation of the analogy which is, in his view, the truth. One may moreover suffice with relating these meanings without attributing them to their author.

It is narrated from Qatada that he said: his guardian divorces on his behalf. Al-Zuhri said: his wife becomes (irrevocably divorced), and his guardian does not divorce ("Al-Awsat", 9/285-286, and the previous sources).

Imam al-Tahawi said: our companions said: when the mute writes his wife her divorce in a letter and the testimony is established, they are separated by judgment; if he did not intend the divorce, he is free to keep her between him and Allah; if he writes on the ground, it is not permitted against him unless he intends the divorce. Malik and al-Layth said: if he writes to his wife her divorce, the divorce occurs if he intended it; if he writes without being resolved on divorce but in order to consider and consult, nothing occurs. Al-Awza'i and al-Hasan ibn Hayy said: if he writes his wife's divorce, it occurs ("Mukhtasar Ikhtilaf al-Ulama", 2/442-443).

The ruling of the exception (istithna') in divorce

(Continuing the preceding question:) if he adds "one", or "save one", or "excluding one", his exception is valid with all these terms, and two divorces occur ("Al-Hawi al-Kabir", 10/252).

The exception is then of two kinds: a kind that lifts the number without the root of the divorce, like the exception by "save" or its equivalents; and a kind that lifts the root of the divorce, like suspension upon the wish: this is called the legal exception (istithna' shar'i), consecrated in the custom of the law. Verifiers have said: the word of the wish was called an exception because it turns the speech away from consequence and immediate establishment, on account of the suspension upon what none knows but Allah ("Taj al-Ikil", 3/77-78; "Sharh Mukhtasar Khalil", 4/53; "Al-Sharh al-Kabir" with al-Dasuqi, 3/23; al-Sawi, 5/357-359; "Al-Muhadhdhab", 2/86; "Mughni al-Muhtaj", 4/487).

The ruling of the exception in divorce: the majority of jurists, the Hanafis, Malikis, Shafi'is, and Hanbalis within the school, established the validity of the exception in divorce, for it is the language of the Arabs and the Quran came down with it, as in Allah's saying, upon the tongue of His friend Ibrahim (peace be upon him):

"I disavow what you worship, except Him who created me"

Surah 43, Az-Zukhruf, 26-27

and His saying:

"He remained among them a thousand years, less fifty years"

Surah 29, Al-Ankabut, 14

Ibn Qudama said: if he makes the exception with his tongue, it is valid and what he excepted does not occur: this is the view of a group of the people of knowledge. Ibn al-Mundhir said: all those whose statements we retain among the people of knowledge agreed: when a man says to his wife "you are divorced three times save one", she is divorced twice; among them al-Thawri, al-Shafi'i, and the partisans of opinion.

It is related from Abu Bakr that the exception has no effect upon the number of divorces and is admitted in the irrevocably separated (wives): if he says "you are divorced three times save one", the three occur; if he says "my wives are divorced save so-and-so", she is not divorced: for divorce cannot be lifted after it has occurred, and the exception would lift it were it valid; the reasoning he offers is void, while admitting the exception in the irrevocably separated. The exception is not the lifting of what has occurred: otherwise it would not be valid in the irrevocably separated, nor in manumission, nor in acknowledgment, nor in information; rather it is the indication that the excepted is not intended by the speech: it prevents from entering what would otherwise have entered. His saying "he remained a thousand years less fifty years" expresses nine hundred and fifty; His saying "I disavow what you worship except Him who created me" is the disavowal of all besides Allah; likewise "you are divorced three times save one" expresses two divorces and nothing more. The most commonly used exception term is "save" (illa), to which similar nouns, verbs, and particles correspond: the nouns "other than" (ghayr) and "besides" (siwa); the verbs "is not" (laysa), "be not" (la yakun), and "excluding" (ada); the particles "far be it" (hasha) and "except" (khala). With whichever word he makes the exception, it is valid ("Al-Mughni", 7/321).

First form: excepting the lesser from the greater

The exception in divorce takes several forms. The first: excepting the lesser from the greater, as when the husband says to his wife "you are divorced three times save one": she is divorced twice; this by the consensus of the scholars. Imam Ibn al-Mundhir said: all those whose statements we retain among the people of knowledge agreed: when a man says to his wife "you are divorced three times save one", she is divorced twice ("Al-Ishraf", 5/243-244; "Al-Ijma'", 414-415; "Al-Awsat", 9/288; "Fatawa al-Sughdi", 1/340; "Al-Mabsut", 6/91-92; "Tuhfat al-Fuqaha", 2/194; "Bada'i' al-Sana'i'", 3/155-156; "Al-Kafi", item 268; "Taj al-Ikil", 3/77-78; "Sharh Mukhtasar Khalil", 4/53; "Al-Sharh al-Kabir" with al-Dasuqi, 3/23; al-Sawi, 5/357-359; "Al-Hawi al-Kabir", 10/182, 248, 251; "Al-Bayan", 10/125-126; "Mughni al-Muhtaj", 4/487; "Al-Najm al-Wahhaj", 7/530-531; "Al-Dibaj", 3/433-434; "Al-Mughni", 7/321; "Al-Kafi", 3/187-188; "Kashshaf al-Qina'", 5/309-310; "Al-Rawd al-Murbi'", 2/382; "Manar al-Sabil", 3/108). Ibn Rushd said: when he excepts the lesser from the greater, no disagreement is more well-known than the validity of the exception and the lapse of the excepted, as in "you are divorced three times save one" ("Bidayat al-Mujtahid", 2/60).

Second form: excepting the whole, and excepting the greater

The second form: excepting the whole, as when he says to his wife "you are divorced three times save three": she is divorced three times, by consensus. Ibn al-Mundhir said: all agreed: when a man says to his wife "you are divorced three times save three", she is divorced three times. Imam al-Shafi'i said: the exception is only permitted if something of what he named remains of what he effected; if nothing of what he named of what he excepted remains, the exception is not permitted and becomes impossible (refs: "Al-Ishraf", 5/243-244; "Al-Ijma'", 414-415; "Al-Awsat", 9/288; "Al-Umm", 5/187; and the previous sources).

Third form: excepting the greater. The people of knowledge differed: if he excepts the greater, as in "you are divorced three times save two", is the exception valid or do the three occur? Most of the jurists, the Hanafis, Malikis, Shafi'is, and Hanbalis according to one narration, hold that if he says "you are divorced three times save two", it is valid and she is divorced only once: he established three and then negated two of them, one remaining; and because one part of the speech is bound to the other, its beginning suspended upon its end: it is a speech whose parts do not annul one another. Ibn al-Mundhir related the consensus upon it: all agreed: "you are divorced three times save two", she is divorced once. Al-Shafi'i said: "three times save two": she is divorced once; "three times save one": twice; "three times save three": three times; the exception is only permitted if something of what he named remains of what he effected. The Hanbalis within the school hold that excepting the greater is not valid; Ahmad stated it: "you are divorced three times save two": the three occur, for excepting the greater is like excepting the whole, the greater standing in the place of the whole in many instances ("Al-Mughni", 7/321; "Al-Kafi", 3/187-188; "Kashshaf al-Qina'", 5/309-310; "Al-Rawd al-Murbi'", 2/382; "Manar al-Sabil", 3/108).

Fourth form: excepting the half, and the legal exception

The fourth form: excepting the half. The majority of the jurists, the Hanafis, Malikis, Shafi'is, and Hanbalis on the sounder of the two views, hold that excepting the half is valid: if he says "you are divorced twice save one", one divorce occurs; "four times save two", two divorces occur. The Hanbalis, according to one view, hold that it is not valid, for it came in their tongue only as the lesser from the greater (previous sources).

The legal exception (istithna' shar'i) is the suspension of the divorce upon the wish of Allah, as when he says to his wife "you are divorced if Allah wills". The jurists differed over its ruling: is the condition valid, the wife not divorced, and the exception nullifying the divorce? Or is it not valid and the wife divorced at once?

The Hanafis and Shafi'is say: the legal exception suspended upon the wish of Allah does not occur and nullifies the divorce: if he says "you are divorced if Allah wills", or "you are divorced when you enter the house if Allah wills", the divorce does not occur. A rejected (munkar) hadith from Mu'adh ibn Jabal exists on this:

The Prophet (peace be upon him) said to me: when a man says to his wife "you are divorced if Allah wills", his exception is admitted for him and no divorce weighs upon him.Rejected hadith, narrated by al-Darqutni (3984) and al-Bayhaqi in "As-Sunan al-Kubra" (15517)

From Abdallah ibn Umar, the Prophet (peace be upon him) said:

Whoever swears an oath and then says "if Allah wills" has made an exception; and in one narration: he is then free of sin (he has his dispensation).Authentic hadith, narrated by Abu Dawud (3261), at-Tirmidhi (1531), an-Nasa'i (3828-3829), ad-Darimi (2342), Ahmad (4581), and al-Hakim (7832)

And from Abu Hurayrah, the Messenger of Allah (peace be upon him) said:

Whoever swears an oath and then says "if Allah wills" does not incur perjury.Authentic hadith, narrated by at-Tirmidhi (1532) and Ahmad (8074)

The latter is a decisive text in this chapter: by its generality it applies both to the oath by Allah and to divorce and manumission. For suspending the divorce upon the wish of Allah is suspending it upon that whose existence is unknown: we do not know whether He willed this divorce or not, that is, whether the occurrence of this divorce falls under the wish of Allah: if it falls under it, it occurs; if not, it does not; for what Allah willed is, and what He did not will is not; nothing occurs through doubt. It thus becomes clear that this is not a suspension upon an existing thing, for entering under the wish of Allah is unknown: such is the interpretation of suspending divorce upon the wish of Allah.

It is moreover a divorce suspended upon a sound attribute: it must therefore not occur before its existence, as when he suspends it upon entering the house. Likewise every oath, were it suspended upon the wish of a man, would not occur before that wish is known; suspended upon the wish of Allah, it must not occur before it is known, like the oath by Allah. And since the ruling of the oath by Allah was lifted despite its great sanctity, the lifting of what is lesser in sanctity, manumission and divorce, is all the more fitting.

Allah commanded it and recommended it:

"And never say of anything: I will do it tomorrow, without adding: if Allah wills"

Surah 18, Al-Kahf, 23-24

that is, without saying "if Allah wills"; had the statement not thereby been protected from contravening the promise, the command would have no meaning. The attached exception also removes the speech from the register of resolve: Allah reported concerning Musa (peace be upon him) and our Prophet, the best prayer and the best peace upon him:

"You will find me, if Allah wills, patient"

Surah 18, Al-Kahf, 69

and he was not patient, yet was not blamed: the promise of the prophets is like the covenant of others; his exception was therefore valid, to the point that by leaving patience he did not contravene his promise; without the validity of the exception he would have contravened the promise of patience, and contravening a promise is not permitted, the Prophet being preserved from sin.

The wish of Allah therefore removes the ruling of every speech to which it is attached, divorce or otherwise, whether the wish precedes, follows, or falls in between: if he says "you are divorced if Allah wills", or "you, if Allah wills, divorced", or "if Allah wills, you are divorced", there is no divorce. Likewise "you are divorced by the wish of Allah", "when Allah wills", "whenever Allah wills": no divorce. If he says "you are divorced if Allah does not will it", she is not divorced: it may be that He does not will it and she is divorced, or that He wills it and she is not; and it is not known whether He willed or not: the divorce therefore does not occur, the attribute of its occurrence, namely the absence of the wish, being unknown, just as it does not occur when he says "if Allah wills", the attribute of its occurrence, namely the wish, being unknown. Likewise if he says "you are divorced so long as Allah does not will it", she is not divorced ("Mukhtasar Ikhtilaf al-Ulama", 2/440; "Al-Mabsut", 30/166; "Tuhfat al-Fuqaha", 2/193-194; "Bada'i' al-Sana'i'", 3/157-159; "Al-Hidaya", 1/254; "Al-'Inaya", 5/371-372; "Al-Ikhtiyar", 3/175; "Al-Jawhara al-Nayyira", 4/466-467; "Al-Lubab", 2/95-96; "Al-Ifsah", 2/176; "Al-Umm", 5/187 and 7/162; "Al-Hawi al-Kabir", 10/258-260; "Al-Muhadhdhab", 2/87; "Al-Bayan", 10/130-131; "Asna al-Matalib", 3/294; "Al-Najm al-Wahhaj", 7/536-537; "Mughni al-Muhtaj", 4/490-491; "Al-Dibaj", 3/435; "Al-Ifsah", 2/176).

Imam an-Nawawi said: when he makes the exception in divorce, manumission, and other than the oath by Allah, saying "you are divorced if Allah wills", or "you are free if Allah wills", or "you are to me like my mother's back if Allah wills", or "Zayd owes me a thousand dirhams if Allah wills", or "if my sick one is cured, Allah has upon me the fast of a month if Allah wills", or the like: the school of ash-Shafi'i, the Kufans, Abu Thawr, and others hold the exception valid in all things, as they agreed upon it in the oath by Allah: he does not incur perjury in a divorce or a manumission, nor is his zihar, his vow, his acknowledgment, or anything else connected to his saying "if Allah wills" concluded. Malik and al-Awza'i say: the exception is not valid in any of that, except the oath by Allah ("Sharh Sahih Muslim", 11/119).

The Malikis and the Hanbalis say: the legal exception does not nullify the divorce; it occurs at once. In "Al-Mudawwana al-Kubra": (I said) What do you think of the exception in divorce in Malik's view? He answered: it is void and the divorce is binding. (I said) If he says "so-and-so is divorced if so-and-so wills", is that an exception, and does he effect the divorce all the same, without regard to so-and-so's wish, in Malik's view? He said: his saying "you are divorced if so-and-so wills" is not like "you are divorced if Allah wills"; the exception in Malik's view exists only in "you are divorced if Allah wills", and the divorce is binding there; if he says "if so-and-so wills", she is not divorced until it is known whether so-and-so wills. (I said) If he says "you are divorced if Allah wills", is she divorced at once? He said: yes, in Malik's view. Malik said: there is no dispensation in divorce ("Al-Mudawwana al-Kubra", 5/16-17).

Imam Ibn Abd al-Barr said: in divorce and manumission there is no exception by "if Allah wills"; the exception exists only in the oath by Allah specifically: whoever says to his wife "you are divorced if Allah wills", she is divorced according to Malik. If he suspends the wish upon a man, she is not divorced until it is known that he willed; if his wish is unknown, she is not divorced. Whoever says "you are divorced if this stone, this wall, or so-and-so wills", and the man dies, she is not divorced in all of that; it has been said that it is binding in the case of the stone and the wall and that the divorce is obligatory; the first view is sounder. Whoever says "you are divorced if you do such and such, unless Allah wills otherwise", she is divorced and his exception does not avail him; it has been said that he has here his dispensation if he intended the act and not the divorce ("Al-Kafi", item 268).

Ibn Rushd the grandfather said: concerning the one who says "you are divorced if Allah wills" or "you are divorced unless Allah wills": both are the same, she is divorced. Muhammad ibn Rushd said: this admits no disagreement in Malik's school and among all his companions: the exception by the wish of Allah in bare divorce and bare manumission has neither effect nor benefit; for when the man says "my wife is divorced if Allah wills, or unless Allah wills", he has suspended the occurrence of the divorce upon that wording, and the dissolution of the marital bond between them upon the wish of Allah; now the wish of Allah is His willing, an eternal attribute of His essence: we therefore know that the divorce has occurred upon him through the existence of the attribute upon which he suspended it, namely the willing of Allah; that is to say: "my wife is divorced: I willed it, if Allah wills", or "I intended it if Allah intended that I intend it"; and he neither intends nor wishes it except after Allah has willed and willed that he will it; for nothing exists in the kingdom of the heavens and the earth except by the wish of Allah. Such is Malik's view; by way of illustration it is like "my wife is divorced if such and such is the case", given what we know to be; and his saying may mean "my wife is divorced if Allah has prescribed its obligation upon me"; now we know, as a matter of necessity, from the religion of the Prophet (peace be upon him), that Allah has prescribed its obligation upon him as soon as he utters it and intends it: it therefore binds him, and its exception is admitted in no sense beyond these two ("Al-Bayan wa-l-Tahsil", 6/155-156; see also al-Qurtubi's tafsir, 3/126-127; "Sharh Mukhtasar Khalil", 4/57-59; "Al-Sharh al-Kabir" with al-Dasuqi, 3/289).

Al-Qadi Abd al-Wahhab said: the exception by the wish of Allah in divorce has no effect, and neither does stipulating it, contrary to Abu Hanifa and ash-Shafi'i. Our proof that the exception by it has no effect is his saying: "whoever swears by Allah and then makes an exception returns without being a perjurer": he restricted that to the oath by Allah, indicating that others are contrary. And because the exception bears upon the awaited future, not upon the past: it is the dissolution of a contract, and the contract does not cover the past; that being established, his saying "you are divorced" being a term of offer and effect, whether he left it unrestricted or suspended it upon a condition, the exception cannot enter into it: there is no way to lift what has occurred and become binding. And because it is a meaning that lifts the ruling of the oath: it therefore has no effect in lifting the divorce, like the expiation; and because it is weaker than the expiation: every oath into which the exception has entered, the expiation may enter, and the expiation may enter into what the exception cannot. And because the exception, in its entirety, occurs at once and in the outcome, like "you are divorced three times save three".

Our proof that stipulating it has no effect is that it necessarily falls under one of two cases: either we have a way to know its occurrence, or we have none. If we have a way, the ruling must be suspended upon its existence, contrary to their claim that it suspends nothing at all and that one cuts off at the absence of the word's effect without verification or expectation: the word is as if it were not, for the consideration lies in the wish of Allah occurring in the acts of His servants and their accomplishment: what He willed is, what He did not will is not. If we have no way to know its occurrence, the divorce must be effected at once, for suspending divorce upon a condition whose occurrence cannot be known is absurdity, as in "you are divorced if Allah created today, in the fourth heaven, an angel with a thousand wings, or in the depths of the Qalzam sea a fish a thousand cubits long", or any such absurdity ("Al-Ishraf ala Masa'il al-Khilaf", 3/434-436, item 1251).

Ibn Qudama said: if he says "you are divorced if Allah wills", she is divorced; likewise "my slave is free if Allah wills", he is manumitted: Ahmad stated it in the narration of a group and said: they are not oaths; and upon this ranged Sa'id ibn al-Musayyib, al-Hasan, Makhul, Qatada, al-Zuhri, Malik, al-Layth, al-Awza'i, and Abu Ubayd. From Ahmad is also deduced that the divorce does not occur, and likewise the manumission: this is the view of Tawus, al-Hakam, Abu Hanifa, and ash-Shafi'i; for he suspended it upon a wish whose existence is unknown, so it does not occur, as if he had suspended it upon the wish of Zayd. The Messenger of Allah (peace be upon him) said: "whoever swears an oath and then says if Allah wills does not incur perjury", narrated by at-Tirmidhi who said: a hasan hadith.

For us (the Hanbalis): what Abu Jamra narrated: I heard Ibn Abbas say: "when a man says to his wife: you are divorced if Allah wills, she is divorced"; narrated by Abu Hafs with his chain; and something similar from Abu Burdah. Ibn Umar and Abu Sa'id said: "we, the Companions of the Messenger of Allah, held the exception permitted in everything except manumission and divorce"; mentioned by Abu al-Khattab: this is a transmission of consensus; and because it is an exception that lifts the whole of the divorce, it does not validly occur, as in "you are divorced three times save three"; and because it is the exception of a ruling in a locus: it is not lifted by the wish, unlike sale and marriage; and because it is the removal of an ownership: it cannot be suspended upon the wish of Allah, as in "I free you if Allah wills"; or a suspension upon that whose knowledge is inaccessible, resembling suspension upon the impossible. The hadith is no proof for them: divorce and manumission are acts of creation, not oaths in truth; if they are so named, it is metaphorically, and the reality is not abandoned for the metaphor; divorce is named an oath only when suspended upon a condition whose omission and performance are possible; his mere saying "you are divorced" is not an oath, in truth nor by metaphor: the exception is therefore not possible after an oath. Their saying "he suspended it upon a wish that is not known": we answer: the wish of Allah regarding the divorce is known through the mediation of the human being who is its cause, that is, the utterance of the divorce. Qatada said: Allah willed it when He permitted the divorcing. And even were we to admit that it is not known, he suspended it upon a condition whose knowledge is impossible: it is like suspension upon the impossible: it is annulled and the divorce occurs at once.

Section: if he says "you are divorced when you enter the house if Allah wills", Ahmad has two narrations on this: the first: the divorce occurs upon entering the house and the exception does not avail him, for divorce and manumission are not oaths, and for what we mentioned in the first section. The second: she is not divorced: this is Abu Ubayd's view; for if he suspends the divorce upon a condition, it becomes an oath and a sworn statement: the exception is therefore valid in it, by the generality of his saying "whoever swears an oath and then says if Allah wills does not incur perjury"; and this differs from the case where he does not suspend it upon it: it is not an oath and does not enter into the generality ("Al-Mughni", 7/357-358; "Al-Kafi", 3/210).

Az-Zarkashi said: when he makes the exception in divorce and manumission, most of the narrations from Abu Abdillah (Ahmad) show that he withheld the answer; and he cut off in one place that the exception does not avail him. The question: it is as if he said to his wife "you are divorced if Allah wills" or to his slave "you are free if Allah wills"; Ahmad withheld the answer on account of the people's disagreement, without a decisive text; and he forbade it, that is, ruling the licitness or prohibition of intimacy; what became settled of his saying is that the exception does not avail him, and he reasoned for it in the narration of Hanbal by the fact that they are not oaths; if they are not oaths, they do not enter into the Prophet's saying "whoever swears an oath and then says if Allah wills does not incur perjury"; and what predominates in them is the suspension upon a condition; now this condition upon which the divorce was suspended, the wish of Allah, is a matter whose knowledge is inaccessible: it is like suspension upon the impossible, or a matter whose consideration leads to the total lifting of the divorce, resembling "you are divorced with a divorce that does not bind you".

From Ibn Abbas: "when a man says to his wife: you are divorced if Allah wills, she is divorced"; narrated by Abu Hafs with his chain; and similar from Abu Burdah. From Ibn Umar and Abu Sa'id: "we, the Companions of the Messenger of Allah, held the exception permitted in everything except manumission and divorce"; mentioned by Abu al-Khattab. Abu Muhammad narrated another version from Ahmad establishing the validity of the exception in divorce and manumission, on the basis that they are oaths: they then enter into the generality of "whoever swears an oath", an indefinite in a conditional context that embraces every oath; and considering the suspension upon a wish whose existence is unknown, resembling suspension upon the wish of Zayd; it was answered: the wish of Allah is known through the mediation of the human being who is its cause, the utterance of the divorce. The shaykh Abu Hamid al-Isfara'ini and his followers narrated from our imam a version distinguishing divorce from manumission; Abu al-Barakat and others cut off that it is an error against the imam ("Sharh az-Zarkashi", 3/315-316; see also "Al-Muharrar", 2/72; "I'lam al-Muwaqqi'in", 4/57-58; "Al-Mubdi'", 7/363-364; "Al-Insaf", 9/104-106; "Al-Rawd al-Murbi'", 2/403).

Imam Ibn Rushd said: the suspension of divorce upon the wish can only be the wish of Allah or that of a creature. If he suspends it upon the wish of Allah, whether according to the mode of the condition, "you are divorced if Allah wills", or that of the exception, "you are divorced unless Allah wills", Malik said: the exception has no effect upon the divorce: it occurs necessarily. Abu Hanifa and ash-Shafi'i said: when the divorcer makes the exception of the wish of Allah, the divorce does not occur. The cause of the disagreement is this: does the exception attach to present acts that occur as it attaches to future acts, or not, divorce being a present act? Those who say it does not attach conclude that the exception and the stipulation of the wish have no effect upon the divorce; those who say it attaches conclude that it has an effect.