Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > The forgetful man's divorce: when the husband forgets he is married
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
This fourth fascicle opens on the close of Ibn al-Qayyim's treatise on divorce pronounced in anger: added to it are the adolescent reaching puberty, the one whose tongue ran ahead of his intention, and the chronically insane (suffering from nasaf or barsam), whose divorce does not take effect and whose every act of disposal falls away. The Prophet's supplication (peace be upon him), asking his Lord to make his curses fall back on the one who insulted him in his anger, proves that he did not intend the insult: had he willed it, he would not have asked for the opposite. The author concludes that this treatise is the very core of the chapter on divorce, since most divorces pronounced among Muslims today occur in a state of anger. Ten sheets follow: the forgetful man's divorce (talak al-nasi) in its three forms, divorce suspended on the marriage, zihar and ila suspended on the marriage, the identification of the divorced wife, and then the three sections of doubt in divorce.
The jurists discussed the divorce of the forgetful man, which takes no fewer than three forms.
First form: a man divorces his wife while having forgotten that he married her, or divorces a particular woman forgetful that she is his wife.
The jurists stated explicitly that if a man concluded a marriage contract (a very frequent occurrence among those who contract and do not consummate), then divorces her forgetful that she is his wife, taking her for his mere fiancée, or for some other reason, his divorce binds him as soon as it falls.
Imam al-Tahawi defined it: the mistake (khata') is when the man wanted something else and did it, with no intention on his part of doing it and no will to do it; forgetfulness (sahw) is what he aimed at and did knowingly, while being unmindful of the meaning that would have prevented him from that act. When a man forgets that this woman is his wife, then intends her and divorces her, all agree that his divorce is operative, without invalidating it because of his forgetfulness, which does not fall under excused forgetfulness («Charh Ma'ani al-Athar», 3/95).
This divorce is also called the divorce of the one who supposes: the Hanafi imam al-Sughdi reported that it is valid when a man sees his wife, takes her for a stranger and says to her “you are divorced”, or has forgotten her marriage and afterwards says “every woman he owns is divorced”, in which case she does not divorce, Allah having said that conjecture avails nothing against the truth («Fatawa al-Sughdi», 1/350).
This first form nevertheless involves the following disagreement, even though I have not found it stated explicitly by the jurists.
Shaykh al-islam Ibn Taymiyya said: if he meets a woman taking her for a stranger and says “you are divorced”, and it then becomes clear that she is his wife, she does not divorce on the correct position, because the consideration is what he intended in his heart, namely a specified, described person who is not this one («al-Fatawa al-Kubra», 4/580).
The Hanbali al-Tufi reported that, as for the forgetful and the drunk, the scholars differ: two positions of Ahmad regarding the forgetful, several regarding the drunk, the third being suspension (waqf); what is most widespread among the companions is occurrence, while what is more similar to the truth is non-occurrence, since neither is legally accountable, and there is no act of worship for one who is not accountable.
If they made occurrence a cause, they encountered, regarding the forgetful, the saying of the Prophet (peace be upon him) that pardon was granted to his ummah for mistake and forgetfulness («Charh Mukhtasar al-Rawda», 1/190).
Second form: the man suspends his wife's divorce on the performance of an act, then performs it forgetfully: he swears by divorce that he will not enter so-and-so's house, will not eat his food or will not speak to so-and-so, then forgets and enters the house. Does the divorce occur or not?
The Hanafis, the Malikis, the Shafi'is (in one opinion) and the Hanbalis (in the madhhab) hold that the deliberate and the forgetful are equal in divorce: whoever suspends his wife's divorce on an act and performs it forgetfully sees the divorce bind him, because he did what he swore upon, acting with intention as to the act itself; the divorce therefore binds him like the one who remembers.
For swearing by divorce falls under suspension on a condition: as soon as the condition exists, the conditioned exists, whether one wished its occurrence or not, as if he said “if Zayd arrives, you are divorced”. And since a human right is attached to it, the ruling attaches to it with forgetfulness, like the destruction of property; it is a ruling suspended on a condition, arising with the occurrence of its condition.
Imam al-Sughdi reported that the divorce of the forgetful is not a divorce according to al-Sha'bi, Ata' and Abu Abdallah: a man swears by his wife's divorce that he will not enter so-and-so's house, will not eat from him or will not speak to so-and-so, then forgets and enters his house: he does not violate his oath and his wife does not divorce; but according to Abu Hanifa and his companions, he violates and his wife divorces («Fatawa al-Sughdi», 1/348 ; «al-Hidaya», 2/72 ; «Charh Fath al-Qadir», 5/64, 65 ; «Tabyin al-Haqa'iq», 3/109 ; «al-Bahr al-Ra'iq», 4/304 ; «al-Ashbah wa-l-Naza'ir», p. 24 ; «Hashiyat Ibn Abidin», 3/241, 242 ; «Charh Sahih al-Bukhari», 6/126 and 7/415, 416 ; «Charh al-Sunna» by al-Baghawi, 9/221 ; «Charh Mukhtasar Khalil», 3/70, 71 ; «Tahrir al-Mukhtasar», 2/385 ; «Asna al-Matalib», 3/330 ; «al-Mughni», 9/391, 420 ; «I'lam al-Muwaqqi'in», 4/86, 87 ; «al-Furu'», 6/347 ; «al-Mubdi'», 7/369, 370 ; «Charh al-Zarkashi», 3/318 ; «al-Insaf», 9/114, 116 ; «Kashshaf al-Qina'», 5/363, 364 ; «al-Rawd al-Murbi'», 2/405, 406).
Ibn Nujaym said: if he divorces inattentively, forgetfully or by mistake, the divorce occurs («al-Ashbah wa-l-Naza'ir», p. 24).
However, the two imams al-Haskafi and Ibn Abidin hold that this divorce occurs in judgment (qada') and not in conscience (diyana): he is accountable to Allah for it, whereas the Hanafis such as al-Sughdi and Ibn Nujaym affirmed it absolutely, without distinguishing between judgment and conscience.
Al-Haskafi wrote in «al-Durr al-Mukhtar»: (or by mistake) when he wanted to utter something other than divorce and divorce ran off his tongue, or he uttered it unaware of its meaning, or inattentively, or forgetfully, or with corrupted words: it occurs in judgment only.
Ibn Abidin explained: (or inattentively or forgetfully); in «al-Misbah»: inattention is the absence of a thing from a man's mind and his failure to remember it. And further: “he forgot a thing: his heart turned away from it until he left it, without remembering it”. A distinction was made between the forgetful one (sahi), who remembers when reminded, and the deeply forgetful one (nasi), who does not.
It therefore appears that the inattentive here means the deeply forgetful one, given the coordination with the forgetful; its form: suspending the divorce on entering the house, then entering it forgetting the suspension or heedlessly.
As for his words (or with corrupted words): such as “talagh, talagh, talak, talak”, as mentioned at the beginning of the following chapter. And his words (it occurs in judgment) relate to the mistaken man and what follows him.
However, for its occurrence in the case of heedlessness and inattention as described, the restriction to judgment does not appear necessary, since there is no difference in directly performing the cause of the violation between the deliberate and the non-deliberate.
Warning: in «al-Hawi al-Zahdi», the case of a man who believed that the three divorces had fallen on his wife by the fatwa of a man unqualified to give fatwa; the judge compelled him to write them in the deed, and they were written; then he consulted a man less unqualified, who ruled that they do not occur; the three divorces being written in the deed by supposition, he may return to them in conscience, but he is not believed in judgment («Hashiyat Ibn Abidin», 3/241, 242).
The Shafi'is (in the most manifest opinion) and the Hanbalis (in a narration chosen by shaykh al-islam Ibn Taymiyya, Ibn al-Qayyim, Ibn Muflih and al-Mirdawi), namely the position of Ata', Amr ibn Dinar and al-Sha'bi, hold that the divorce does not occur, by Allah's words: “Our Lord, do not take us to task if they forget or err”, and: “You are not blameworthy for what you did by mistake, but for what your hearts resolved”, and by the Prophet's words (peace be upon him):
“Allah has pardoned my ummah for the mistake, the forgetfulness and what they were coerced into”Authentic hadith, reported by Ibn Majah, no. 2043
That is, He does not punish them for it: the hadith encompasses every ruling except what the evidence excludes, such as the compensations for destroyed property. The forgetful is not accountable during his forgetfulness, so the violation does not bind him, like swearing by Allah; he did not intend transgression, so he does not violate, like the sleeper and the insane.
Likewise, because he is one of the two poles of the oath, intention is taken into account in it, like the one who initiates it of his own accord.
And because of his words (peace be upon him): “Deeds are only by intentions”, and the forgetful has no intention. And because the divorce of the coerced does not occur, neither does that of the one coerced as to the description, with no difference between swearing by Allah and swearing by divorce («Charh Sahih al-Bukhari», 6/126 and 7/415, 416 ; «Charh al-Sunna» by al-Baghawi, 9/221 ; «Rawdat al-Talibin», 5/501, 502 ; «al-Najm al-Wahhaj», 7/579, 580 ; «Mughni al-Muhtaj», 4/469 and 4/526 ; «Tuhfat al-Muhtaj», 9/541, 553 ; «al-Dibaj», 3/468, 469 ; «Asna al-Matalib», 3/330 ; «al-Mughni», 9/391, 420 ; «I'lam al-Muwaqqi'in», 4/86, 87 ; «al-Furu'», 6/347 ; «al-Mubdi'», 7/369, 370 ; «Charh al-Zarkashi», 3/318 ; «al-Insaf», 9/114, 116 ; «Kashshaf al-Qina'», 5/363, 364 ; «al-Rawd al-Murbi'», 2/405, 406 ; «Fath al-Bari», 9/390).
“Our Lord, do not take us to task if they have forgotten or erred”
Surah Al-Baqarah, 286
“You are not blameworthy for what you did by mistake, but for what your hearts resolved”
Surah Al-Ahzab, 5
Shaykh al-islam Ibn Taymiyya said: if he swears not to do something and then does it forgetful of his oath or ignorant that it is the thing sworn about, the scholars count three positions among them.
The first: no violation in any case, for all oaths: this is the madhhab of the Meccans such as Ata', Ibn Abi Najih and Amr ibn Dinar, and that of Ishaq ibn Rahawayh; it is one of al-Shafi'i's two opinions, indeed the more manifest of the two, and one of Ahmad's two narrations. I examined the answer in this narration and found that those transmitting it are as many as those transmitting the second narration, which al-Khallal, al-Khiraqi and al-Qadi, among other of his companions, chose, and which distinguishes the kaffara-requiring oath, such as the oath by Allah, zihar and the unlawful, from the oath that does not require kaffara by explicit text, namely the oath by divorce and manumission.
And (the third position): he violates in all oaths: the madhhab of Abu Hanifa, Malik, and Ahmad in his third narration.
The first position is the most correct, for urging and forbidding in the oath are like obedience and disobedience in command and prohibition: he who swears concerning himself, his slave, his relative or his friend, whom he believes obeys him, seeks what he swore to do and forbids what he swore to abandon, having confirmed his seeking and forbidding by the oath, like a confirmed command and prohibition. Yet the Book and the Sunna establish that whoever does the prohibited thing forgetfully or by mistake has no sin and is not disobedient; likewise, whoever does the sworn thing forgetfully or by mistake is not an oath-violating transgressor. This includes one who acts by interpretation (ta'wil), one who imitates the one who gave him fatwa, one who imitates a deceased scholar, and the mujtahid whether correct or mistaken: so long as he did not intend transgression but believed that what he did did not contradict his oath, he is not a violator («Majmu' al-Fatawa», 33/208, 210).
Imam Ibn Hubayra said: if he performs the sworn thing forgetfully while the oath was on its non-performance, without any restriction: Malik and Abu Hanifa hold that he violates without restriction, whether the oath was by Allah, by zihar, by divorce or by manumission.
Al-Shafi'i, in one of his two opinions (the more manifest), holds that there is no violation; al-Qaffal chose that the divorce occurs without the violation taking place. From Ahmad, two narrations: if the oath was by Allah or by zihar not to do a thing and he did it forgetfully, no violation; if it was by divorce and manumission, violation. A second narration: violation in all. A third: no violation in any («al-Ifsah», 2/375, 376). Al-Sughdi adds the divorce of the negator (al-laghi): when a man swears by his wife's divorce that he did not do such-and-such, believing he did not do it, then learns that he did it: his wife divorces («Fatawa al-Sughdi», 1/350).
Third form: suspending his wife's divorce on another's act, such as the wife or the child, whether that person does it or does it forgetfully.
The Shafi'is say: if he suspended the divorce on another's act, intending to prevent him from it or to urge him to it, and that person is one to whom the suspension matters (that is, violating the oath is hard for him), not opposing him for friendship, kinship or marriage, but caring to honor his oath even out of moral nobility, without fearing punishment, and he knew of the suspension, the divorce does not occur, in the most manifest opinion, if he acted forgetfully, under coercion or in ignorance. Otherwise, if the husband did not intend to prevent him or urge him, or the person does not care about it, like the ruler or the pilgrims, or he cares about it but did not learn of it, the divorce occurs by his act definitively, even if forgetfulness occurred; for the purpose is then the mere suspension of the act, with no intent to prevent or urge.
The last form is excepted, however: if he intended to inform someone who cares about it and that person did not learn of it, she does not divorce.
Imam al-Nawawi said: if he suspended the divorce on the wife's act or a stranger's: if the performer had no knowledge of the suspension and the husband did not intend to inform him, or he is one who does not care about it, such as suspending it on the arrival of the pilgrims or the ruler, she is divorced by his act in forgetfulness and coercion according to the madhhab; it has been said that if he acts under coercion, the two opinions apply, as if he had done nothing. If the performer knows of the suspension, cares about it, and the suspender intended to prevent him, then he acts forgetfully, under coercion or in ignorance: the two opinions apply.
If he intended to prevent her from disobeying and she forgot: al-Ghazali said she does not divorce at all, for lack of disobedience, considering the meaning of the suspension and generalizing the disagreement. I say: al-Ghazali's view is correct; its near opposite is: if he swore not to enter, deliberately or forgetfully, then entered forgetfully, al-Qadi Husayn transmitted that he violates without disagreement («Rawdat al-Talibin», 5/502).
All this concerns an oath on a future act. If he swears the negation of a thing and then learns, in ignorance or forgetfulness, that it took place, such as swearing that Zayd is not in the house while he is there unknown to him, or knowing then forgetting: if he swore that the matter is so according to his supposition or according to his knowledge, without intending that it is truly so, he does not violate, for he only swore upon his belief. If he intended the real affirmation or spoke absolutely: two opinions on the violation; Ibn al-Salah and others held the violation, approved by al-Zarkashi, since he is not excused: no violation and no suspension, but a confirmation; he should have verified before swearing, unlike the suspension on the future. Al-Isnawi and others, drawing on the founding text of the Rawda, held the absence of violation; some later scholars held the violation if he intended the real affirmation, and its absence in the absolute expression. Al-Khatib al-Shirbini said: this is the most probable.
He added: if he suspended the divorce on the entry of an animal or a child into the house, and it entered of its own accord, the divorce occurs, unlike an entry under coercion, which produces nothing.
Objection: this seems to contradict what preceded about the divorce occurring when the performer is unaware of the suspension and does not care about it, or cares but the husband did not intend to inform him, and he enters under coercion. Answer: a human being's act is attributed to him even when performed under coercion, which is why he bears liability for it, unlike the animal's act, which under coercion is nothing. The oath's status in the mentioned cases is that of the divorce: it does not dissolve by the act of the ignorant, the forgetful or the coerced («Mughni al-Muhtaj», 4/526, 527 ; «Rawdat al-Talibin», 5/502 ; «al-Najm al-Wahhaj», 7/580 ; «Tuhfat al-Muhtaj», 9/550, 553 ; «al-Dibaj», 3/469).
The Hanbalis say: if he swears on someone subject to his oath, intending to prevent him, such as his wife, his child, his servant or his relative, and that person acts forgetfully or in ignorance, three narrations apply; the correct one is that he violates for divorce and manumission, to the exclusion of the rest. It has been said that he never violates; and it has been said that he violates in all.
If he acts under coercion, nothing weighs on him: if he swore that his wife would not enter a house and she enters under coercion, no violation at all; if she enters in ignorance or forgetfulness, he violates for divorce and manumission. If he says to his wife “if you enter the house, you are divorced” and she enters forgetfully or ignorantly, she divorces; likewise if he says to his son “if you enter the house, your mother is divorced” and he enters forgetfully or ignorantly, his mother divorces.
His oath on these people, whose prevention he intends, amounts to nothing as an oath, unlike his oath on himself, the oath's purpose being achieved through them, namely the prevention of the thing.
If he did not intend the prevention, saying “if my wife travels to such a land she is divorced” without intending to prevent her, it is a pure suspension: the divorce occurs upon her arrival however it may be, like one not subject to his oath.
If he swears on someone not subject to his oath, such as the ruler, a stranger or the pilgrim, the deliberate, the forgetful, the coerced and the rest are all equal: the violation arises from their act, for it is a pure suspension realized upon the occurrence of what it is suspended on.
If he swears that another will do a thing or will not do it and the other does the opposite, the swearer violates, because of the existence of the attribute and the emphasis of the negated present tense, as in Allah's words:
“Suleyman will not crush you”
Surah An-Naml, 33
Shaykh al-islam said: the swearer does not violate by the disobedience of the one he swore upon if he intended to honor him, without obliging him to the sworn thing; the honor has already occurred, like a command from which honor is understood: the Prophet (peace be upon him) ordered Abu Bakr to stand in the row and he did not stand. Abu Bakr had sworn to inform him of what was right or wrong when interpreting the dream, and the Prophet said: do not swear; he knew he did not intend the oath against him, the interest requiring concealment. And if the one sworn upon does not know of the oath, like the forgetful; Ibn Muflih said: the absence of violation here is the most manifest («al-Furu'», 6/348).
If he swears to do a thing then abandons it under coercion, he does not violate, for the abandonment is not attributed to him; if he abandons it forgetfully, he violates, according to one view, for divorce and manumission only; in «Tasih al-Furu'» this view is deemed strong. According to the second view, he violates in neither; in «Tasih al-Furu'» this is the correct one, decided in «al-Tanqih» and followed in «al-Muntaha».
If he abandons it in ignorance, he violates for divorce and manumission only, as mentioned above for the one who swears not to do a thing.
If he makes an oath believing his statement true and it then proves contrary, he is like one who swears on the future not to do a thing and does it forgetfully: violation for divorce and manumission, not for the oath by Allah («Kashshaf al-Qina'», 5/364, 365 ; «al-Fatawa al-Kubra», 4/580 ; «al-Mubdi'», 7/370 ; «al-Insaf», 9/116).
Divorce is only for a benefit, and that benefit exists for the husband only after marrying her and observing her conduct; her divorce before that is like the traveler's mere intention to reside in the wasteland or the fighter's in enemy territory, which the evidence of the situation refutes («Bada'i' al-Sana'i'», 3/126 ; «Hujjat Allah al-Baligha», 1/716 ; «al-Taj wa-l-Iklil», 3/49, 50 ; «Charh Mukhtasar Khalil», 4/36 ; «al-Charh al-Kabir» with «al-Dasuqi», 3/254 ; «Tahrir al-Mukhtasar», 3/144 ; «al-Najm al-Wahhaj», 7/511, 512 ; «Mughni al-Muhtaj», 4/475 ; «al-Dibaj», 3/422 ; «al-Mubdi'», 7/234, 235 ; «al-Insaf», 9/59 ; «Kashshaf al-Qina'», 5/327 ; «Matalib Uli al-Nuha», 5/399, 400 ; «Manar al-Sabil», 3/112). This is when the divorce is immediate, or suspended but not on her marriage.
As for divorce suspended on the marriage itself, the jurists differed concerning the man who says to a foreign woman: “if I marry you, you are divorced”, or: “if I marry you and you enter the house or speak to Zayd, you are divorced”: once he marries her, does she divorce at once, or upon the performance of the suspended thing?
The Hanafis and the Malikis (in the famous view) hold that if the man says to a stranger or his fiancée: “if I marry so-and-so she is divorced once, twice or three times”, and then marries her, it is so upon the marriage: the divorce falls upon her right after the marriage, as he said. Likewise if he says “if you enter the house you are divorced”, meaning after he marries her: when he marries her and she enters the house, the divorce occurs at that moment, upon the entry.
They cite Allah's words:
“O you who believe, when you marry believing women and then divorce them before you have touched them, there is no period for you to count; so provide for them and release them in a handsome manner”
Surah Al-Baqarah, 236
Its indication is manifest as to the validity of this opinion and the binding of its ruling upon the occurrence of the marriage, the verse establishing the validity of the divorce after the marriage; whoever says to a stranger “if I marry you, you are divorced” is a divorcer after the marriage: by the plain meaning of the verse, his divorce must take effect.
Moreover, the one who utters these words is necessarily a divorcer either at the time of the contract or at the time of attribution and the existence of the condition. Now all agree that whoever says to his wife “when you are separated from me and become a stranger, you are divorced” effects the divorce at the time of attribution, not at the time of the words; he is like one who made zihar of his wife and then said to her “you are divorced”: the ruling of his words falls away and the state of the contract is not considered, given the existence of the marriage. It is therefore established that the state of attribution is considered, not the state of the contract: the one who says to the stranger “if I marry you, you are divorced” effects the divorce after she belongs to him, and the verse required the divorce of one who divorces after ownership.
Then comes what is reported from Umar and Ibn Mas'ud: al-Qasim ibn Muhammad reported that a man said: “the day I marry so-and-so, or if I marry so-and-so, she is to me like my mother's back”, and Umar said: “if you marry her, do not approach her until you have made expiation” (reported by al-Tahawi in «Charh Mushkil al-Athar», 2/136). And from Ibrahim al-Nakha'i: al-Aswad was confronted with this and said “if I marry so-and-so she is divorced”; he married her, and Ibn Mas'ud said: “your wife is separated from you, propose to her again” (al-Tahawi, «Charh Mushkil al-Athar», 2/138).
Abu Bakr Ibn Abi Shayba reported: Hafs ibn Ghiyath informed me, from Umar ibn Hamza, who asked al-Qasim, Salim, Abu Bakr ibn Abd al-Rahman, Abu Bakr ibn Muhammad ibn Amr ibn Hazm and Abdallah ibn Abd al-Rahman about a man saying “the day I marry so-and-so she is divorced definitively”: they all said “let him not marry her” («al-Musannaf», 4/66, no. 17845).
As for the Prophet's words (peace be upon him) “no divorce before marriage”, they mean: the man to whom a woman is proposed for marriage and who answers “she is divorced, definitively”: that is nothing; but whoever says “if I marry so-and-so she is divorced definitively” divorced her at the moment he married her. Ibn Abi Dawud reported that Nu'aym ibn Hammad transmitted from Hammad ibn Khalid al-Khayyat, from Hisham ibn Sa'd, from al-Zuhri, from Urwa, from Aisha: “no divorce except after marriage”; al-Zuhri added that she meant the man told “we will marry you to so-and-so” who answers “she is divorced”; but if he says “if I marry so-and-so she is divorced”, the divorce binds him. Ma'mar reported from al-Zuhri, regarding the formula “no divorce before marriage, no manumission except after ownership”: it means the man says “so-and-so's wife is divorced” or “so-and-so's slave is free”.
The verse “O you who believe, fulfill your contracts” (Surah Al-Ma'idah, 1) requires every contractor to honor his contract, and this man contracted upon himself a divorce after the marriage, which must therefore bind him; likewise the Prophet's words (peace be upon him): “Muslims are bound by their conditions”, which establishes that whoever stipulates a condition upon himself is bound by its ruling when it occurs.
Besides, all agree that the vow is valid only within ownership: whoever says “if Allah grants me a thousand dirhams, a hundred of them are due to Allah” makes a vow within his ownership by attributing it to it, though he is not the owner at the moment; likewise, whoever attributes divorce and manumission to ownership is a divorcer and manumitter within ownership. And whoever says to his slave girl “if you bear a child, he is free”, then she conceives and gives birth: the child is freed even though he was not the owner at the time of the words, the child being attached to the mother he owns; likewise manumission attributed to ownership makes him a manumitter within ownership. And all agree that whoever says to his wife “if you enter the house you are divorced” and she enters while the marriage persists, she divorces, as if he had said to her at that moment “you are divorced”; and if he had made zihar of her and she enters, it is like “you are divorced” at that moment, so no divorce: proof that the swearer becomes like the speaker of the answer at that instant; hence the one who says “every woman I marry is divorced” and then marries is like the one who marries and then says “you are divorced” («al-Hujja», 4/131, 133 ; «Ikhtilaf al-Ulama», p. 172, 173 ; «Mukhtasar Ikhtilaf al-Ulama», 2/447, 449 ; «Charh Mushkil al-Athar», 2/135, 143 ; «Ahkam al-Qur'an» by al-Tahawi, 5/232, 234).
They nevertheless differed as to what becomes due in this case.
The Malikis say: half the specified dowry (mahr) is due to him, the wife divorcing right after the marriage, so what is due is that; likewise if she enters the sworn house before entry; if he did not specify a dowry for her in the original contract, nothing is due to her, unless he consummates: then the dowry of her like is due to her; if he consummates, the specified amount is due if he specified something, otherwise the dowry of the like («al-Mudawwana al-Kubra», 6/55, 75 ; «al-Bayan wa-l-Tahsil», 5/52, 53 ; «Charh Sahih al-Bukhari» by Ibn Battal, 7/407, 408 ; «al-Istidhkar», 6/186, 190 ; «al-Taj wa-l-Iklil», 3/49, 51 ; «Charh Mukhtasar Khalil», 4/36, 38 ; «al-Charh al-Kabir» with «al-Dasuqi», 3/254, 255 ; «Tahrir al-Mukhtasar», 3/144, 145 ; «Charh al-Zurqani on the Muwatta», 3/276).
The Hanafis say: half the specified amount and the dowry of the like are due to him: having married the woman on a known dowry, the divorce occurred at the moment of marriage, so half the contractual dowry is due to her for the marriage; now he has consummated, and no doubt leaves him any right over her: a dowry is therefore necessary for the consummation, namely the dowry of the like; the marriage and the divorce together entail half the contractual dowry, and the consummation entails the dowry of the like. Muhammad ibn al-Hasan reported from Sufyan ibn Sa'id al-Thawri, from Hammad ibn Abi Sulayman, from Ibrahim, regarding the man who says “if I marry so-and-so she is divorced”: if he consummates, she has a dowry and a half («al-Hujja», 4/131, 133 ; «al-Muwatta» in the version of Muhammad, 2/493 ; «Bada'i' al-Sana'i'», 3 ; «Ikhtilaf al-Ulama», p. 172, 173 ; «Mukhtasar Ikhtilaf al-Ulama», 2/447, 449 ; «Charh Mushkil al-Athar», 2/135, 143 ; «Charh Fath al-Qadir», 4/114, 116).
The same applies to zihar and ila: if he says to a stranger “if I marry you, you are to me like my mother's back”, once married he does not approach her until he has made expiation; if he says “if I marry you, by Allah I will not approach you”, it is an ila: once married, he does not approach her.
The Shafi'is, the Hanbalis, Malik in the narration of Ibn Wahb and al-Makhzumi (the view of a group of Maliki masters), the Zahiris, and the majority of the people of knowledge hold that no divorce binds him and that there is no divorce except after marriage; whether he specified a near or far term, a tribe, a town, a particular woman or not: all of it is invalid, without effect; the contract of divorce before marriage is not valid in general, in the particular, or on specified persons. In general: “every woman I marry is divorced”. In the particular: “every woman I marry from the Banu Tamim of Basra is divorced”. On a specified person: “if I marry you, you are divorced”.
It therefore does not bind him if he marries her, by Allah's words which conditioned the divorce after the marriage, so it cannot precede it, and by the Prophet's words (peace be upon him):
“No divorce before marriage”Authentic hadith, reported by Ibn Majah, no. 2049
“There is no divorce, nor manumission, nor sale concerning what one does not own”Good hadith, reported by Tirmidhi no. 1181, Ibn Majah no. 2047 and Ahmad no. 6769, from Amr ibn Shu'ayb, from his father, from his grandfather
“No divorce before marriage, no manumission before ownership”Authentic hadith, reported by Ibn Majah, no. 2048, from al-Miswar ibn Makhrama
Sa'id ibn Jubayr reported from Ibn Umar that the Prophet (peace be upon him) was asked about a man saying “the day I marry so-and-so she is divorced”: “he divorced what he does not own” (reported by al-Daruqutni in his «Sunan», 3937). And from Mu'adh: “no divorce except after marriage, even if he named the woman specifically” (al-Daruqutni, 3939). And from al-Hasan, that Ali ibn Abi Talib, asked about a man saying “if I marry so-and-so she is divorced”, answered: “there is no divorce except after ownership” (reported by al-Bayhaqi in «al-Sunan al-Kubra», 14660, 14661).
Qabisa ibn Uqba reported hearing al-Thawri asked about this, mentioning from Abd al-A'la, from Sa'id ibn Jubayr, from Ibn Abbas that he saw nothing in it (al-Tahawi, «Charh Mushkil al-Athar», 2/139). And from Ikrima: when Ibn Mas'ud's statement was mentioned to Ibn Abbas, namely that if the man marries she divorces, he said: “I do not think he said that; if he said it, many a slip comes from a scholar; Allah says 'when you marry believing women then divorce them' and did not say 'when you divorce believing women then marry them'” (al-Tahawi, 2/139 ; al-Hakim in «al-Mustadrak», 2821: a hadith with an authentic chain they did not publish).
Ibn Abd al-Barr said: this is established from Ali ibn Abi Talib, Mu'adh ibn Jabal, Jabir ibn Abdallah, Abdallah ibn Abbas, Aisha the wife of the Prophet (peace be upon him), Sa'id ibn al-Musayyib, Shurayh, al-Hasan, Ata', Tawus, Sa'id ibn Jubayr, al-Dahhak ibn Muzahim, Ali ibn Husayn, Abu al-Sha'tha Jabir ibn Zayd, al-Qasim ibn Abd al-Rahman, Mujahid, Muhammad ibn Ka'b al-Qurazi, Nafi' ibn Jubayr ibn Mut'im, Urwa ibn al-Zubayr, Qatada, Wahb ibn Munabbih and Ikrima; and Sufyan ibn Uyayna, Abd al-Rahman ibn Mahdi, al-Shafi'i, Ahmad ibn Hanbal, Ishaq, Abu Thawr, Dawud and Muhammad ibn Jarir al-Tabari said the same; the hadiths of the Companions and the Successors stating that divorce does not occur before marriage are established and authentic, taken from the book of Abd al-Razzaq, the book of Ibn Abi Shayba, the book of Sa'id ibn Mansur and others («al-Istidhkar», 6/189, 190 ; «Musannaf Abd al-Razzaq», 6/417, 421 ; «Musannaf Ibn Abi Shayba», 4/65, 66).
By analogy: if he says to a stranger “if you enter the house you are divorced”, then marries her and she enters, she does not divorce, by consensus, for he did not attribute the divorce to a time at which it can occur; like saying to a stranger “you are divorced” and then marrying her. And because they agree that whoever sells goods he does not own and then acquires them: the sale does not bind him; likewise, if he divorces a woman and then marries her, the divorce does not bind him.
The one who says “if I marry so-and-so she is divorced” divorces a stranger, which is impossible: at the time of the suspended divorce she is a stranger, and what renews is her marriage, and marriage is not divorce. If she divorced, it could only rest on the earlier suspended divorce, when she was a stranger; yet the renewal of the attribute does not make him a divorcer at its occurrence: at that moment he chooses marriage, not desiring divorce, so it does not hold. It is like saying to a stranger “if you enter the house you are divorced” and she enters having become his wife: she does not divorce, without disagreement («Charh Sahih al-Bukhari» by Ibn Battal, 7/407, 408 ; «al-Istidhkar», 6/186, 190 ; «al-Taj wa-l-Iklil», 3/49, 51 ; «Charh Mukhtasar Khalil», 4/36, 38 ; «al-Charh al-Kabir» with «al-Dasuqi», 3/254, 255 ; «Tahrir al-Mukhtasar», 3/144, 145 ; «al-Muhalla», 10/205, 206 ; «al-Hawi al-Kabir», 10/26, 28 ; «Kifayat al-Akhyar», p. 458 ; «al-Najm al-Wahhaj», 7/511, 512 ; «Mughni al-Muhtaj», 4/475 ; «al-Dibaj», 3/422 ; «al-Mughni», 9/415, 416 ; «Charh al-Zarkashi», 3/316, 317 ; «Zad al-Ma'ad», 5/217 ; «al-Mubdi'», 7/324, 325 ; «al-Insaf», 9/59 ; «Kashshaf al-Qina'», 5/327 ; «Matalib Uli al-Nuha», 5/399, 400 ; «Manar al-Sabil», 3/112).
As for zihar and ila suspended on the marriage: if he says to a stranger “if you enter the house you are to me like my mother's back”, there is no zihar, to the point that if he marries her and she enters, he does not become a muzahir, by consensus, for lack of ownership and attribution to the cause of ownership.
They nevertheless differed if he says “if I marry you, you are to me like my mother's back” and she then appears to him, or “if I marry you, by Allah I will not approach you”: is its ruling that of a suspended divorce?
For the Hanafis and the Malikis, its ruling is that of the suspended divorce: if he says to a stranger “if I marry you, you are to me like my mother's back”, once married he does not approach her until he has made expiation, zihar admitting suspension on a condition like divorce, attribution to ownership being valid, and the conditioned at the existence of the condition being like the immediate. Or if he says “if I marry you, by Allah I will not approach you”: it is an ila, and once married he does not approach her. But the ila and the zihar conclude only after marrying her: she then becomes a locus for them, not before («al-Mabsut», 6/230 ; «Bada'i' al-Sana'i'», 3/132 ; «Charh Fath al-Qadir», 4/205 ; «al-Mudawwana al-Kubra», 6/59, 60 ; «al-Istidhkar», 6/56, 57 ; «Hashiyat al-Sawi on al-Charh al-Saghir», 5/471).
The Shafi'is say: zihar and ila before marriage are not valid: if he says to a stranger “if I marry you, you are to me like my mother's back” and then marries her, he does not become a muzahir, zihar following divorce in affirmation and negation. If he says “if I marry you, by Allah I will never touch you”, he is not a mu'il, ila being valid only from a wife, like divorce; but he remains an oath-taker without being a mu'il: as soon as he touches her, he violates and expiates, even without a term of ila granted her, the oath being valid from a stranger woman even though ila is not valid from her («al-Hawi al-Kabir», 10/29).
As for the Hanbalis, they differed: they did not validate the suspension of divorce after marriage, as mentioned; but they validated the suspension of zihar, saying: if he says to a stranger “you are to me like my mother's back” making it immediate, or “if I marry you, you are to me like my mother's back”, he will not touch her, if he marries her, until the expiation of zihar; by marrying her, the meaning of zihar is realized in her, which forbids intercourse before the expiation; Ahmad reported it from Umar, for it is a kaffara-requiring oath, valid before marriage. Likewise if he says “all women are to me like my mother's back”, or “every woman I marry is to me like my mother's back”: it is a zihar; if he marries women and wishes to touch them: a single expiation, whether he married them by one contract or several, the essence being one and requiring no more than one expiation.
The difference from divorce lies in two points. First: divorce is the release of the marriage bond, which cannot be released before its contract; zihar is the prohibition of intercourse, which may therefore precede intercourse, like menstruation. Second: divorce removes the purpose of marriage, hence its invalidity before it; zihar does not remove it, it only suspends the permissibility on a condition; the verse “those who make zihar of their wives” is then taken in its general sense: man ordinarily makes zihar only of his wives, without the ruling being restricted to them, just as the mention of the stepdaughter under his care did not restrict the prohibition to her alone. As for ila, its ruling is restricted to wives because it aims to harm them; the expiation is due here for false speech, without being restricted to wives («al-Mughni», 7/14, 15 ; «Charh al-Zarkashi», 2/507 ; «Kashshaf al-Qina'», 5/433 ; «Matalib Uli al-Nuha», 5/512 ; «Manar al-Sabil», 3/138).
“Those of you who make zihar of their wives”
Surah Al-Mujadila, 2
Al-Mirdawi said: zihar is valid from the stranger; if he marries her, he does not touch her until he has made expiation, on the correct position of the madhhab, explicitly stated; in «al-Ri'aya al-Kubra» it is validated in the most widespread opinions; al-Zarkashi: this is the explicit text of Imam Ahmad, upon which his companions stood. It has been said that it is not valid, like divorce; in «al-Intisar»: it is the madhhab's qiyas, like divorce, mentioned by shaykh Taqi al-Din as a narration. The difference: zihar is an oath, divorce a release of contract, which does not exist. Useful: the ruling is the same if he suspends it and then marries her, saying “if I marry so-and-so she is to me like my mother's back”, both in divergence and according to the madhhab («al-Insaf», 9/202).