Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > Identifying the divorced wife by gesture, description, or intention
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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.
Second condition: the identification of the divorced wife by gesture, description or intention. The husband is either married to one wife or to more.
If he is married to one and says “my wife is divorced” intending her divorce, she divorces, without disagreement among the jurists.
If he is married to more than one woman and says “one of you is divorced”, it takes no fewer than four cases.
First case: he identifies her by gesture, description and intention, as if he said to his wife named Zaynab while pointing to her: “O Zaynab, you are divorced”, intending her divorce: without disagreement among the jurists, she divorces, the identification being complete. Second case: he points to one of his multiple wives without describing her, without naming her and without intending another: likewise without disagreement, she divorces, the gesture being sufficient for identification. Third case: he describes her by her attribute without gesture and without intending another: if he says “my wife Zaynab is divorced”, she also divorces without disagreement.
Fourth case: he says “one of my wives is divorced” without identifying any of them and without intending one: without disagreement among the jurists, the divorce occurs; but the manner of identification involves three opinions.
First opinion: the husband has the power to identify whichever of the wives he wants, the divorce falls on her and the others remain his wives: the madhhab of the Hanafis, the Shafi'is (with a distinction among them), the Medinese Malikis, and Ahmad in a narration. The Hanafis say: because whoever owns the finger owns the identification, as in the hadith of al-Dahhak ibn Fayruz al-Daylami, from his father: “I embraced Islam while I have two wives”; he said:
“Divorce whichever of the two you wish”Good hadith, reported by Abu Dawud, no. 2243 and Ibn Majah, no. 1951
Separation from one of the two being inevitable, the choice was left to him.
The wives may contradict him and appeal to the judge until he clarifies whether the divorce is threefold or irrevocable, for each of them has the right to the fulfillment of the benefits of marriage and its rulings, or to marrying another husband; the husband must clarify, his word is accepted for he is conciliatory, like one acknowledging an unspecified thing; the judge compels him to inflict the divorce on a specified one so that the benefit is secured; the waiting period runs from the clarification, and he owes them maintenance, each being entitled to claim the rulings of marriage: the judge must therefore compel him, and maintenance is due both to the divorced and to the wife.
If each claims to be the one divorced three times, the husband swears; if he recants, the threefold falls on each, his recanting being his admission of the threefold upon each; if he swears, the ruling is that of the oath, as stated.
Clarification is then of two kinds: explicit statement (nass) and indication (dalala). The explicit: “it is her I meant, intended, wanted”, or the like; if he says “one of you two is divorced three times” and then divorces one specifically, saying “you are divorced, I meant by it to specify the divorce binding me, not a future divorce”, his word is accepted, clarification being due from him, “you are divorced” admitting clarification, since it can be informative, being information about an existing fact. The indication: doing or saying what indicates the clarification, such as touching one of them, kissing her, divorcing her, swearing by her divorce or making zihar of her: all that is lawful only with a married wife, so venturing upon it identifies her for marriage, and the other is necessarily identified for divorce.
If they are four or three, the others are identified by clarifying the divorce upon one of them, by statement, act or word: by touching the second and then the third, the fourth is identified for divorce; or by saying “this one is married, this one is the fourth” if they are four; if they are three, the third is identified for divorce by touching the second or saying to her “this one is married”.
If one of them dies before the clarification, the remaining one is divorced: the deceased left the scope of clarification, divorce occurring at clarification; having left the scope of divorce, she left that of clarification, and the remaining one is identified for divorce. If one dies before the clarification and the husband says “it is her I had meant”, he does not inherit from her and the remaining one is divorced, the latter having been identified by the death of the former; if he says “I had meant the other”, he seeks to divert the divorce from the remaining one: he is not believed on that point, but he is believed on voiding the inheritance, for it is his right, and a man acknowledging the voiding of his own right is believed, suspicion being absent.
Likewise, if the two die, or one after the other, and he says “I had meant the one who died first”, he inherits from neither: from the second, for being identified for divorce by the death of the first; from the first, for his acknowledgment that he has no right to her inheritance, he being believed about himself. If the two die together, as under a collapsing wall or by drowning, he inherits half of each one's inheritance: he deserves each one's inheritance in one state and not in the other, so it is split in two. Likewise if the two die, or one after the other, with the order unknown: it is like simultaneous death. If the two die together and he then identifies one after their death, saying “it is her I had meant”, he inherits nothing from her and inherits from the other half of a spouse's inheritance: upon their death he deserved half of each; by identifying one specifically he forfeited his right over her, the half, and thus inherits half from the other.
If the two apostatize before the clarification and their period expires, separating them definitively, he can no longer clarify the threefold divorce upon one of them; the separation is because ownership has ended in every way by apostasy and the expiry of the period, and without ownership there is no clarification; this proves the divorce had not occurred before the clarification, for otherwise clarification would remain valid after separation, consisting in identifying the one it fell upon, without needing ownership.
If he clarifies the divorce upon one of them, the period runs from the clarification, according to Abu Yusuf, to the point that if he takes her back afterwards, his return is valid; likewise if he clarifies upon the one who had already had three menses before the clarification: those do not count, the period restarts at the clarification, proving the divorce did not exist before it. It is reported from Muhammad that the period runs from the sending, ends after three menses from that time, and no return is possible thereafter: proof that the divorce remains suspended upon the unidentified one.
If the husband dies before clarifying, both having not been touched: the full dowry is due to both, split in two halves, and the inheritance split in two halves; for one was divorced with the loss of half her dowry and we do not know which: her harm falls upon both, dowry and half being shared between them for their equality. The inheritance likewise: one is his wife entitled to inheritance, the other a stranger with nothing; not knowing which, they are equal in claiming the inheritance, and the whole is shared between them («Mukhtasar Ikhtilaf al-Ulama», 2/450 ; «Charh Mukhtasar al-Tahawi» by al-Jassas, 5/92, 93 ; «Ikhtilaf al-Ulama», p. 166, 167 ; «Bada'i' al-Sana'i'», 3/225, 226 ; «al-Ikhtiyar», 3/179, 180).
The Shafi'is say: if he says to his two wives “one of you two is divorced”, if he intended one specifically, she is the divorced one and he must clarify her; if he sent the phrase without intending a specified one, speaking absolutely, or intended one without particularizing: one of the two is divorced indeterminately, and the husband identifies her. Five questions follow from it.
First question: the husband is compelled to clarify if he intended a specified one, and to identify if he intended no particular one but an indeterminate one, so that the divorced one becomes known and the rulings of separation follow; he is prevented from approaching the two until clarification or identification, by being confined between them; clarification and identification are required of him immediately, any delay is disobedience, refusal entails confinement and compulsion, and his claim “I forgot the identified one” is not accepted. After clarification in the first case, the other may claim “you had meant me” and make him swear: if he recants, she swears and both are divorced; after identification in the second case, no claim is admissible from her, the choice originating from him. All this concerns irrevocable divorce: if he divorced a revocable one indeterminately, the imam reported two views: yes, clarification is required, the prohibition having occurred; the more correct: no, for the revocable remains a wife.
Second question: he owes them maintenance until clarification or identification; once clarified or identified, he does not recover what was spent on the divorced one, she having been confined with him like a wife. Third question: the divorce intending a specified one occurs by his saying “one of you two is divorced”; she counts the period from the phrase according to the explicit madhhab; a divergent view has it from the clarification, deemed unsound by the imam. If he intended no specified one and then identifies: does the divorce run from the time he said “one of you two is divorced” or from the identification? Two views, the more correct being from the phrase, for had the divorce not occurred he would not have been prevented from her.
Fourth question: if he touches one of them, it is considered whether he intended a specified one: she is the divorced one, the touch not being a clarification, the demand for clarification remaining; if he clarifies the divorce upon the one he touched, he undergoes the legal punishment if the divorce is irrevocable, and the dower is due to her for her ignorance of being divorced; if he clarifies upon the other, it is accepted; if the touched one claims he meant her, he swears; if he recants and she swears, both are divorced, the dower is due from him, with no legal punishment because of doubt. If he intended no specified one, is the touch an identification? Two views, which may be stated as two opinions: yes, say some; no, say others, and it is the manifest text of al-Shafi'i, who said that if the man says “one of you two is divorced” he is prevented from both; whoever holds the touch an identification does not prevent him from touching either he wishes.
Fifth question: the phrases of clarification and identification: if he intended a specified one, clarification is by pointing to one of them: “the divorced one is this one”; if he says “this wife”, the divorce of the other is established; likewise if he says “I did not divorce this one” («al-Umm», 5/263 ; «al-Hawi al-Kabir», 10/278, 283 ; «Rawdat al-Talibin», 5/406, 409 ; «al-Najm al-Wahhaj», 7/543, 545 ; «Mughni al-Muhtaj», 4/494, 495 ; «Tuhfat al-Muhtaj», 9/453, 455 ; «Nihayat al-Muhtaj», 6/547, 549 ; «al-Dibaj», 3/439, 440).
Second opinion: all his wives divorce upon him: if he says “one of you two is divorced”, or “my wife is divorced” while he has two wives, or to his wives “one of you is divorced” without intending a specified one at all, or having intended one and forgotten her: both or all divorce according to the famous Maliki view, and he may not choose one of them: this is the view of the Egyptians; the Medinese say he is given the choice of whomever he wishes and the divorce falls upon her, like manumission. They agree that he is believed if he says “I intended one specifically”.
The «Mudawwana al-Kubra» reports: Malik said, regarding the man who says “one of my two wives is divorced three times” without intending one specifically: if he did not intend a particular one when speaking the divorce, both divorce upon him; Malik cited the man with two wives or more who said “one of my wives is divorced three times if I do such-and-such”, and then did it: if he had intended a particular one at the moment of the oath, she divorces upon him; otherwise all divorce with what he swore; if he intended one and forgot her, all divorce upon him. Asked what Malik's argument was: because divorce, in Malik's view, admits no choice. Ibn al-Qasim reported that Yahya ibn Abdallah ibn Salim ibn Abdallah ibn Umar ibn al-Khattab informed him that Umar ibn Abd al-Aziz ruled thus in the case of a Bedouin watering at his water spot: a she-camel came near, he looked at her from afar and said “my wife is divorced definitively (he had two wives) if she is not so-and-so”, referring to a she-camel of his; another she-camel arrived; the Bedouin came to Medina, entered upon Abu Bakr ibn Muhammad ibn Amr ibn Hazm, Umar ibn Abd al-Aziz's governor over Medina, Umar being then caliph, and told him his story; the ruling seemed obscure to him and he wrote to Umar, who answered: if he intended one of the two at the moment of the oath, what he intended applies; otherwise both divorce upon him. If he says “one of you two is divorced” and then “I intended this one specifically”, the proof being upon him at the moment of the oath: is he believed according to Malik? Yes. If he divorced one of his two wives three times and forgot her: the divorce binds him upon both according to Malik; is he told “divorce in advance the one not divorced” or “divorce both in advance”? We did not ask Malik about this, but Malik said: both divorce upon him; if he says “one of you two is divorced”, Malik said: both divorce upon him if he intended neither («al-Mudawwana al-Kubra», 5/15, 16 ; «al-Jami' li-Masa'il al-Mudawwana», 7/552 ; «al-Tabsira», 6/2630 ; «al-Taj wa-l-Iklil», 3/100 ; «Mawahib al-Jalil», 5/314, 315 ; «Charh Mukhtasar Khalil», 4/65 ; «al-Charh al-Kabir» with «al-Dasuqi», 3/305, 306 ; «Tahrir al-Mukhtasar», 3/200, 201).
Third opinion, that of the Hanbalis: if he says to his wives “one of you is divorced” intending a specified one, her identification is accepted and she divorces, having identified her by his intention as if by his words. If he intended none, two narrations apply, the more famous (the madhhab) being that the divorced one is drawn by lot if he intended no particular one: the view of Ali and Ibn Abbas, with no opponent among the Companions, held by al-Hasan al-Basri and Abu Thawr; for the removal of ownership built on equality and confusion admits the lot, as in manumission. The hadith of Imran ibn Husayn on the manumission of the six slaves proves the validity of identifying the divorced one by lot: his act upon all being invalid, he was treated as having manumitted a third of them unspecified, which the Prophet (peace be upon him) identified by lot; divorce resembles manumission here, every removal of ownership built on equality entering the lot when the beneficiary is confused with others.
He divorced one of his wives without knowing which: he therefore has no power of choice, like the forgotten one; the proof that they do not all divorce: he attributed the divorce to one, and all did not divorce, as if he had identified her.
If he dies before the drawing and the identification, the heirs draw lots among them: the one upon whom the lot of divorce falls has, in inheritance, the status of the one he would have identified by divorce, their equality excluding any identification and requiring recourse to the lot, like the man who manumits slaves in illness having no other property; the ruling is established by the text, for inheriting from all would mean certainly inheriting from one who does not deserve, and suspending indefinitely would certainly deprive the deserving one: the lot avoids both harms and has a precedent in the Law.
The death waiting period is not due to her; the divorce waiting period is counted for her from its time; the others have the death waiting period according to the manifest text of Ahmad's words, the divorce established by the lot entailing its consequences including the period. The qadi said: each owes the death waiting period if they were not touched; if they were, the longer of the divorce waiting period from its time and the death waiting period from its time applies, each possibly being divorced or a wife, the conscience not being cleared otherwise; this contradicts what is explicitly reported from Ahmad: in Abu Talib's narration the lot is drawn and the one upon whom it falls neither inherits nor counts, that is, does not count the death waiting period, proof that the period follows the inheritance, the apparent meaning of the qadi's words in «al-Mujarrad»: the one upon whom the lot of divorce falls has only the divorce waiting period from its time, the others the death waiting period from theirs; the lot is a legal proof, we ruled intercourse lawful by it, so the ruling of the period may be built upon it, as a consequence of divorce.
From Ahmad, a narration: it is the husband who identifies, choosing whichever of the two he wants. He may not touch one before the drawing or the identification according to the second narration, and the touch is not an identification of the other on the correct position of the madhhab. The divorce does not occur by the identification, but its occurrence becomes evident through it on the correct position of the madhhab, explicitly stated; it has been said: yes, it occurs («al-Mughni», 7/382 ; «al-Charh al-Kabir», 8/458, 459 ; «Bada'i' al-Fawa'id», 3/786 ; «al-Turuq al-Hukmiyya», 1/435 ; «al-Muharrar fi-l-Fiqh», 2/61 ; «al-Qawa'id» by Ibn Rajab, 1/408 ; «al-Mubdi'», 7/382, 383 ; «al-Insaf», 9/141, 143 ; «Kashshaf al-Qina'», 5/385, 386).
Fifth case: he says to his wife and a stranger: “one of you two is divorced”.
The jurists differed: does his wife divorce or not, and is his word accepted in that matter?
The Hanafis say: if he joins his wife and a stranger and says “I divorced one of you two”, his wife divorces, the divorce being manifest and customary usage applying. If he says to his wife and a stranger “one of you two is divorced”, and adds “I meant my wife”, the divorce occurs upon her; otherwise it does not occur, he having intended nothing, and his statement that he did not mean his wife is accepted with his oath, for he is truthful in declaring the stranger free of the marriage bond: the phrase suits his wife as well as the other woman, it is therefore a metonymy by location, and just as the words of a metonymy operate only with intention, the wife is identified in it only with intention, and he swears by Allah that he did not mean his wife, as with metonymies.
If he joins two women, one validly married and the other invalidly married, and says “one of you two is divorced”, the validly married one does not divorce, as if he joined a wife and a stranger. If he has two wives both named Zaynab, one of valid marriage and the other invalid, and says “Zaynab is divorced”, the validly married one divorces; if he says “I meant the other”, he is not believed in judgment. If he joins his two wives and a man and says “one of you two is divorced”, the divorce does not occur upon his wife according to Abu Hanifa, and according to Abu Yusuf it occurs. If he joins his wife with what is not a locus of divorce, such as an animal and a stone, and says “one of you two is divorced”, his wife divorces according to Abu Hanifa and Abu Yusuf, Muhammad saying she does not. If he joins his living wife and his deceased wife and says “one of you two is divorced”, the living one does not divorce («al-Mabsut», 6/91 ; «Bada'i' al-Sana'i'», 3/227, 228 ; «al-Muhit al-Burhani», 3/598 ; «al-Bahr al-Ra'iq», 3/263, 264 ; «al-Nahr al-Fa'iq», 2/317).
The Malikis say: if he says to his wife and a stranger “one of you two is divorced” and then “I meant the stranger”, it is not accepted from him and the wife divorces («Iqd al-Jawahir al-Thamina», 2/535).
The Shafi'is say: if his wife is with a stranger and he says “one of you two is divorced”, if he intended his wife's divorce, she divorces; if he intended the stranger and the wife says “you had meant me”, his word is accepted with his oath that he did not mean her but the stranger, divorce occurring upon his wife only by pointing or description, “one of you two” being neither a gesture towards her nor a description of her; it is accepted from him outwardly and inwardly, and his wife does not divorce, on the more correct view, with his oath, the word fluctuating between the two and capable of designating either. Opposite to the more correct: it is not accepted and his wife divorces, for she is the locus of divorce which does not divert from her to the stranger by intention. If he has no intention at all: it has been said his wife divorces, and it has been said she does not.
His wife is named Zaynab and the town holds several Zaynabs sharing the name: if he says “Zaynab is divorced” and then “I meant a Zaynab other than my wife”, it is not accepted from him on the correct position, his wife divorces apparently, and he is accountable to Allah in conscience, as if he had a first wife named Zaynab, divorced or deceased, and said “I meant her”. Second view: his word is accepted with his oath, the phrase admitting it as in the first form.
If he says “the daughter of Zayd is divorced”, his wife being the daughter of Zayd and Zayd having another daughter, and then “I meant her sister, not her”: although this is a definite description and not a name, it is closer to the name than to the metonymy: it is not accepted from him, the divorce binds him apparently and he is accountable in conscience. If he marries one woman validly and another invalidly, both named Zaynab, and says “Zaynab is divorced” and then “I meant the one with the invalid marriage”: it is accepted from him if he did not know her marriage invalid; otherwise she is a stranger: it is not accepted from him apparently and he is accountable.
Al-Shafi'i said: if a man looks at his wife and a woman with her who is not his wife and says “one of you two is divorced”, his word is accepted: if he intended his wife, she divorces; if he intended the stranger, his wife does not divorce; if he says “I meant the stranger”, he is made to swear, and his wife remains as she is, no divorce having occurred upon her («al-Umm», 5/187 ; «al-Hawi al-Kabir», 10/295 ; «al-Muhadhdhab», 2/98 ; «al-Bayan», 10/217 ; «Rawdat al-Talibin», 5/405, 406 ; «al-Najm al-Wahhaj», 7/542, 543 ; «Mughni al-Muhtaj», 4/493 ; «Tuhfat al-Muhtaj», 9/451, 452 ; «Nihayat al-Muhtaj», 6/546, 547 ; «al-Dibaj», 3/438, 439).
The Hanbalis say: if he says to his wife and a stranger “one of you two is divorced” or “Salma is divorced”, both bearing the name Salma, his wife divorces; the principle being to consider the accountable person's speech without annulling it: if he attributes the divorce to one of two wives one of which is his, or to a name his wife bears, the divorce is diverted to his wife, otherwise it would be vain. If he says to his mother-in-law “your daughter is divorced”, she having another daughter, and then “I meant your other daughter, the one who is not my wife”, his wife divorces. If he says “I meant the stranger”, his wife does not divorce, he having neither stated her divorce nor uttered what implies it nor intended it: her marriage remains as it was; if he alleges it, he is accountable to Allah, his word being admissible in conscience but not in judgment according to the more famous of the two narrations: the judge does not rule upon it, contrary to the outward, the other-than-the-wife not being a locus of divorce without context; if there is a manifest indication of the stranger being intended, such as paying his oath wrongfully or ridding himself of a hardship, it is accepted in judgment. Abu Dawud reported regarding the man with two wives of the same name, one of whom died: when he says “so-and-so is divorced” meaning the deceased, Ahmad said “the deceased divorces?!”, as if he meant: he is not believed in judgment.
The jurists agree that whoever doubts whether he divorced his wife or not has no divorce ruled upon him: the ruling of doubt is dismissed and the certainty of the marriage is considered, the rulings of the Law being established on preferring certainty over doubt. The Prophet (peace be upon him) said:
“When one of you doubts in his prayer, not knowing whether he prayed three or four, let him dismiss the doubt and build upon what he is certain of”Reported by Muslim, no. 571, from Abu Sa'id al-Khudri
And his words (peace be upon him): “If one of you finds in his belly something that troubles him, not knowing whether something exited or not, let him not leave the mosque until he hears a sound or perceives a smell” (reported by Muslim, no. 361). He commanded him in the two reports to act upon certainty in what he performs of his prayer and what he observes of his impurity, and dismissed doubt from any ruling; likewise in divorce: what he is certain of binds him, what he doubts is dismissed, and so for all the rulings («Mukhtasar Ikhtilaf al-Ulama», 2/425, 426 ; «Bada'i' al-Sana'i'», 3/126 ; «al-Jawhara al-Nayyira», 4/451 ; «al-Ashbah wa-l-Naza'ir», p. 61 ; «al-Qawanin al-Fiqhiyya», p. 153 ; «al-Taj wa-l-Iklil», 3/98 ; «Mawahib al-Jalil», 5/314 ; «Charh Mukhtasar Khalil», 4/65 ; «al-Charh al-Kabir» with «al-Dasuqi», 3/304, 305 ; «Tahrir al-Mukhtasar», 3/200 ; «Hashiyat al-Sawi», 5/386 ; «al-Hawi al-Kabir», 10/272, 274 ; «Rawdat al-Talibin», 5/403 ; «al-Najm al-Wahhaj», 7/539, 540 ; «Mughni al-Muhtaj», 4/491 ; «Tuhfat al-Muhtaj», 9/448, 449 ; «Nihayat al-Muhtaj», 6/544, 545 ; «al-Dibaj», 3/436, 437 ; «al-Muharrar fi-l-Fiqh», 2/60 ; «al-Mughni», 7/379 ; «al-Kafi», 3/220, 221 ; «Charh al-Zarkashi», 2/482 ; «al-Mubdi'», 7/380, 382 ; «al-Insaf», 9/138 ; «Kashshaf al-Qina'», 5/384, 385 ; «Charh Muntaha al-Iradat», 5/498, 499 ; «Manar al-Sabil», 3/119).
Al-Amrani said: if the man doubts whether he divorced his wife or not, the divorce does not bind him, by consensus, the origin being the persistence of the marriage and the absence of divorce.
Al-Shafi'i said: “piety and precaution consist in treating oneself as having transgressed (treating the divorce as having occurred): if he knows from his habit that when he divorces his wife he does it once or twice, let him take her back; if he knows from his habit that he divorces three times, let him divorce her three times, and she becomes lawful only with certainty” («al-Bayan», 10/225).
Al-Mawardi said likewise: if he doubts the very occurrence of the divorce, it does not bind him, considering the certainty of the marriage's persistence and dismissing the doubt of its removal by divorce; this is agreed upon; but piety requires engaging in the ruling of divorce so as not to make lawful by doubt what is not lawful. If the doubt concerns a single divorce, engaging in its ruling is piety: let him take her back; if he had divorced, she returns to him by the return, and if not, the return does him no harm and he keeps her upon two divorces. If the doubt concerns the threefold divorce, piety requires abstaining from enjoying her: let him withdraw from her and undertake her maintenance, the doubt being overcome by abstaining from intercourse and certainty by undertaking maintenance. If he wishes to enjoy her, let him divorce her three times so that his marriage to another makes her certainly lawful: if he had touched her before, this divorce does not occur; if not, it occurs and she becomes lawful to another husband; once made lawful by a husband, he may marry her, and she is then certainly lawful. That is the way of piety; as for the ruling, he is not required, doubting the single one, to take her back, nor, given the certainty of the marriage's origin and the continuity of its permissibility, to withdraw from her or divorce her («al-Hawi al-Kabir», 10/273, 274).
Ibn Qudama said likewise: piety is engaging in the divorce: if the doubt concerns a revocable divorce, he takes his wife back if she was touched, or renews the marriage if she was not or the period expired; if he doubts a threefold divorce, let him divorce her once and withdraw: if he had not divorced her, the certainty of his marriage remains and she does not become lawful to another.
It is reported from Sharik that, doubting his divorce, he would divorce once and then take her back, so that the return be from a divorce and valid in ruling; but it is nothing, the formula of return being possible despite the doubt, without requiring the intention that acts of worship require; and were he to doubt two divorces and pronounce one, he would remain in doubt as to its prohibition upon him, the return benefiting him nothing then («al-Mughni», 7/379).
Among the Malikis, this ruling applies to doubt: doubt being the equality of the two sides, not mere hesitation, the whisper having no effect. Supposition is otherwise: whoever supposes he divorced is like one certain of it. Doubt makes knowledge and ignorance equal, supposition leans one way without evidence.
Second case: doubt about the number of divorces: the jurists differed concerning the man who doubts the number of his wife's divorces: did he divorce her once or twice, or twice or three times? Does one build upon what one is certain of, namely the lesser, or does the wife divorce upon him?
The majority of the jurists, the Hanafis, the Shafi'is and the Hanbalis in the madhhab, hold that whoever is certain of the divorce but doubts its number, having divorced once, twice or three times, is ruled by the lesser and builds upon what he is certain of, by the hadith of Abu Sa'id al-Khudri already cited and the hadith of the belly; what exceeds the degree he is certain of is a doubtful divorce that does not bind him, like doubt about the very occurrence, and the certainty of the marriage cannot be lifted by doubt; just as he built upon certainty when doubting the origin, he builds upon it when doubting the number, as in prayer; and it is the dismissal of a right: doubt does not bind, as in the discharge of a debt.
Once this is established, the rulings of the single divorcer, short of the threefold, remain: the return is permitted; if he returns, maintenance and marital rights are due.
For the Shafi'is, piety is adopting the more precautionary, by the Prophet's words (peace be upon him):
“Leave what troubles you for what does not trouble you”Authentic hadith, already reported above
The Malikis and al-Khiraqi among the Hanbalis hold that whoever is certain of the divorce's occurrence but doubts its number, having divorced once, twice or three times: his wife becomes unlawful to him except after another husband, and he is ruled to separation; for he inflicted upon her one established divorce, which occurs upon him, the remaining two occurring by precaution; it has been said that a single divorce binds him.
He is believed if he remembers, during the period, that his divorce fell short of three, without oath: he has the right to take her back without a new contract; if he remembers after the period: return with a contract, and he becomes a suitor among suitors.
The «Mudawwana al-Kubra» reports: regarding the man who divorced his wife not knowing how many times, once, twice or three: Malik said: she does not become lawful to him until she marries another husband. Ibn al-Qasim: I think that if he remembers, during her period, that he divorced only once or twice, he is more entitled to her; if the period expires before he remembers, he has no way to her; if he remembers after the expiry that it was only one or two divorces, he becomes a suitor among suitors, and he is believed. Asked whether Malik was cautious about it: no. And if, not having grasped how many times he divorced her, he separates from her, then a second husband marries her after her period expires and then divorces her or dies: she becomes lawful to the first after that husband; if he had divorced her only once, she returned to him upon two; if that husband had divorced her twice, she returns to him upon one; if he had divorced her three times, that husband made her lawful; if this second husband also divorces her once, whether her period expires or not, he may not marry her except after another husband, for he does not know whether his divorce counted two and this one is another, nor whether the three had not occurred with this divorce; if she then marries another husband who dies or divorces her and her period expires, and the first husband marries her and also divorces her once, he may not marry her except after yet another husband, for he does not know whether the first divorce was only one, the second only one, and whether this third one is the third: he may not marry her before she marries another. If she marries another and this third husband divorces her or dies, and the first marries her, she returns to him upon a divorce after the three husbands, unless he settled her divorce definitively while she was under him in either marriage («al-Mudawwana al-Kubra», 4/194 and 5/14 ; «al-Taj wa-l-Iklil», 3/100, 101 ; «Mawahib al-Jalil», 5/316 ; «Charh Mukhtasar Khalil», 4/66 ; «al-Charh al-Kabir» with «al-Dasuqi», 3/307 ; «Tahrir al-Mukhtasar», 3/202 ; «Hashiyat al-Sawi», 5/387).
Lexical note by Ibn Nujaym: know that careful inquiry (taharri) is, in language, seeking and questing, synonymous with tawakkhi (aiming); but the word tawakkhi is used in transactions, careful inquiry in acts of worship and in the Law: the quest for a thing according to the predominant opinion when it is impossible to establish its reality; it differs from doubt and supposition: doubt makes the two sides of knowledge and ignorance equal, supposition leans one way without evidence, careful inquiry leans according to the predominant opinion, which is evidence leading to one side of knowledge without reaching what establishes the reality of knowledge («al-Bahr al-Ra'iq», 2/268).
Al-Hattab said: if he acknowledges divorce upon himself and the wife claims, as to the number, more than he acknowledged, he must swear; unlike the case where she claims he divorced and he denies («Mawahib al-Jalil», 5/316). Al-Khiraqi said: if he divorced not knowing whether once or three times, it is not lawful for him to touch her until he is certain; it is a narration from Ahmad that intercourse is forbidden him, for he is certain of the prohibition and in doubt about the lawfulness; he owes her maintenance while she is in the period, the origin being her persistence by the persistence of the marriage; like the soiled garment whose soiled spot he does not know: he cannot pray in it until he has washed what he is certain is clean; the common point between the two: certainty of the origin, doubt about what follows it («al-Mughni», 7/379 ; «Charh al-Zarkashi», 2/482 ; «al-Mubdi'», 7/381).
Third case: doubt about the object of the divorce: the one who divorced a specified wife and then forgot her. The jurists differed concerning the one who inflicted the divorce upon a specified wife among two, then forgot and doubts whether he inflicted it upon this one or the other; or who swore by the divorce of one, violated, and does not know which of the two or of all.
The Hanafis say: the man with four wives who divorced one of them specifically and then forgot her, not recognizing her, may not approach any of them by precaution until he knows the divorced one specifically from the others; likewise if they all left except one: he may not approach her until he knows she is not the divorced one; the judge, if informed, must prevent him from them until clarification: he states that this one is not the divorced one, and he is then made to swear definitively that he did not divorce this one specifically three times, and he is then left with her; if he had sworn ignorant of what he swore upon, he must not approach her («al-Asl» by al-Shaybani, 2/224, 225 ; «al-I'naya», 4/343 ; «al-Ashbah wa-l-Naza'ir», p. 67).
The Malikis say: all his wives divorce upon him (the text of the «Mudawwana» already cited under the second condition: “one of you two is divorced” without intending a specified one, or having intended one and forgotten her: all divorce according to the famous view, choice impossible according to the Egyptians, choice permitted according to the Medinese, admission accepted if he declares he intended a particular one), with the same ruling of Umar ibn Abd al-Aziz in the case of the Bedouin and the she-camel («al-Mudawwana al-Kubra», 5/15, 16, with the references already cited).
The Shafi'is say: if he has two wives, divorced one of them specifically and then forgot her, or her identity became obscure to him by divorcing her in darkness or behind a veil, he is returned to for identification: he is the divorcer; neither of the two becomes lawful to him before identification, and their maintenance is taken from him until identification, both being confined with him.
If he identifies the divorce upon one and both call him a liar, he swears for the other, the identification of the specified one not being accepted if he returns upon her divorce.
If one comes forward at once declaring “I am the divorced one”, his “I forgot” or “I do not know” is not accepted from him: he is required a decisive oath that he did not divorce her; if he recants, she swears and the rejected oath is ruled. If he says “I divorced this one, no rather this one”, both divorce in ruling: he acknowledged the first's divorce then turned to the second, her admission upon the second is accepted and his return upon the first is not accepted.
If they are three and he says “I divorced this one, no rather this one, no rather this one”, all three divorce; if he says “I divorced this one or this one, no rather this one”, the third divorces and one of the first two, whose identification is accepted: he acknowledged divorcing one of the first two then turned to the third, what he turned to binds him, his return upon his admission not being accepted. If he says “I divorced this one, no rather this one or this one”, the first divorces and one of the other two. If he says “I divorced this one or this one or this one”, clarification of the divorce of the first and the other two is demanded: if he identifies the first, the other two remain married. If he says “I did not divorce the first”, the other two divorce, the doubt concerning the first and the other two, as if he said “I divorced this one or these two”. He may not identify by the touch: if he touches one, it is not an identification of the divorce of the other, identification being demanded by speech; if he identifies the divorce upon the touched one, the dower of the like is due to her, and once identified, the period runs from the divorce («al-Muhadhdhab», 2/100 ; «al-Hawi al-Kabir», 10/278, 283 ; «Rawdat al-Talibin», 5/405 ; «Kifayat al-Akhyar», p. 461 ; «al-Najm al-Wahhaj», 7/543, 545 ; «Mughni al-Muhtaj», 4/494, 495 ; «Tuhfat al-Muhtaj», 9/453, 455 ; «Nihayat al-Muhtaj», 6/547, 549 ; «al-Dibaj», 3/439, 440).
The Hanbalis in the madhhab: whoever divorced one of his wives and she was forgotten: she comes out by lot, for after the forgetting the divorced one can no longer be identified among them, so the lot is legislated; maintenance is due until the drawing, and the others become lawful to him after the divorced one comes out by lot, their origin being the persistence of their lawfulness. If it becomes clear to him that the divorced one is not the one upon whom the lot fell, by remembering, she is returned to him, shown not divorced, the lot being neither divorce nor metonymy; provided she has not remarried: if she remarried, she does not return to him and her marriage is not annulled, the second husband's right having attached to her, and his word not being accepted about him; or the drawing takes place by the judge's ruling: the judge's lot between them is a ruling of separation, and no one may lift what the judge ruled.
Abu Bakr and Ibn Hamid say: the two women divorce: one truly, and the one upon whom the lot fell because divorce, once occurred, cannot be lifted, and she became prohibited to him by his word: she inherits him if he dies and he does not inherit her; their maintenance is due from him and intercourse with them is forbidden; if he dies before them, the heirs draw lots: the one upon whom the lot falls does not inherit; if both or one of them dies before him, the one upon whom the lot fell is not inherited, with an irrevocable divorce. The correct position with Ibn Qudama is a narration that the lot has no place here: both are prohibited to him entirely, as if his wife were confused with a stranger; the lot does not remove the ruling of the divorced one nor lift the divorce from the one it fell upon, for were it liftable, it would not return when it appears she is divorced, unlike their analogy, the right not having been established for a single specified one.
If he divorced one without identification, or with identification then forgot her, and the period of all expired, a fifth marriage is lawful to him before the drawing, on the more correct view. Once we identify her specifically, her period runs from the time he divorced her on the correct position of the madhhab, the divorce having issued from its doer in its place, the forgetting not lifting it. It has been said: from the identification; if the husband dies before identification, all have the death waiting period among the people of the Hijaz and Iraq, the correct position being that each has the longer of the death waiting period and the divorce waiting period («al-Mughni», 7/383, 385 ; «al-Turuq al-Hukmiyya», 1/429 ; «al-Mubdi'», 7/384, 385 ; «al-Insaf», 9/143, 144 ; «Kashshaf al-Qina'», 5/386, 387 ; «Charh Muntaha al-Iradat», 5/499 ; «Matalib Uli al-Nuha», 5/469).
First form: the Shafi'is and the Hanbalis state explicitly that if two men see a bird, one of them swearing by divorce that it is a crow and the other swearing by divorce that it is a dove, and it flies away without their knowing its state, no violation is ruled upon either of them: the certainty of the marriage is established and the occurrence of the divorce is doubtful. If the wife of one of them claims his violation against him, his word is accepted, the origin being with him, certainty being on his side with the Hanbalis; the same holds with the Shafi'is, but he must swear definitively negating the divorce.
Second form: if the swearer is alone and says “if it is a crow, my wives are divorced; if it is a dove, my slaves are freed”, or “if it is a crow, Zaynab is divorced; if it is a dove, Hind is divorced”, and his situation then becomes obscure without his knowing what it is: no violation is ruled with the Hanbalis, the bird possibly being neither crow nor dove, he being certain of the marriage and in doubt about the violation: the certainty of the marriage and of ownership does not vanish by doubt.
The Shafi'is say: one of the two divorces and he must abstain from all until the situation is clarified, with investigation and clarification charged to him: the bird is a crow or not, so intercourse with all and any act are suspended, the prohibition being realized either in the wives or in the slaves, and if the identity of the prohibited one escapes us, we suspend regarding all, preferring the prohibition; clarification is demanded of him for he is the swearer and may have knowledge of it: if he acknowledges having knowledge but refuses to clarify, he is confined and compelled until he clarifies, and their maintenance, all of them, is due from him until then, they being in his confinement. If he says “the bird was a crow”, the women divorce, whether they believe him or call him a liar. If he says from the outset “the bird was not a crow” and the women believe him, there is nothing to say; if they say “it was a crow”, his word is accepted with his oath, the origin being the persistence of the marriage: if he swears, they remain wives; if he recants and they swear, they divorce by his recanting and their oaths. If he says “I do not know whether it was a crow or not” and the women believe him ignorant, they remain in suspension; if they call him a liar saying “he knows”, he swears that he does not know and they remain in suspension; if he recants from the oath, the claimant among them swears that he knows, and he violates in his oath regarding her, as if he had admitted it.
Third form: if he has Zaynab and Hind, a bird flies and he says “if this bird is a crow, Zaynab is divorced; if it is not a crow, Hind is divorced”, and the situation then becomes obscure: one of the two divorces with the Shafi'is, with abstention from both until the situation is clarified, investigation and clarification charged to him. The Hanbalis say: it is like the forgotten one: lots are drawn between them, no way existing to know the divorced one specifically, both being equal, the lot being a legal way to extract the unknown, legislated as for the indeterminate one. The Malikis say: the man with two wives who sees a bird and says “if this one is a crow, Zaynab is divorced; if it is not a crow, Hind is divorced”, the matter becoming confused: both divorce, his verifying the two cases being impossible.
Fourth form: if one of the two men says “if this bird is a crow, my wife is divorced three times” and the other “if it is not a crow, my wife is divorced three times”, each swearing the contrary of his companion, and it flies away without their knowing its state: no divorce is ruled upon either of them with the Shafi'is (and the people of opinion, as Ibn Qudama reported from them), and intercourse is not forbidden to either of them, the ruling being the persistence of his marriage with no divorce ruled upon him.
The Hanbalis say: one of the two violated, but without identification, and it is not ruled upon one specifically: the rulings of marriage remain for him, maintenance, clothing and lodging, each having certainty of his marriage and doubt about his divorce. As for intercourse, it is forbidden to both: one violated with certainty and his wife is prohibited to him, the situation being obscure, so prohibited to both, like the one who violates regarding one of his two wives without identification, the violation being realized in an unspecified one; each taken individually has certainty of her marriage and doubt about her divorce, but the prohibition being established without possible distinction, it extends to both. It is the same here: the wife of one of the two men divorced and became prohibited to him, distinction being impossible, so intercourse is forbidden to both, as if one of two vessels were soiled without identification: each is forbidden for use, whether they belong to two men or to one.
If each of the two claims to know the situation and not to have violated, both are accountable to Allah, each possibly being truthful in what he claims; if each of the two admits being the violator, the two wives divorce by their admission upon themselves; and if one alone admits the violation. If the wife of one claims his violation and he denies, his word is accepted; does he swear? Two narrations with the Hanbalis.
The Malikis say: if two swear in opposite directions, like two men seeing a bird, one swearing it is a crow and the other the contrary, namely that the bird is not a crow; or the one who says to a man “your wife is divorced, you did tell me so” and the other answering “your wife is divorced, I did not tell you so”; or swearing that “so-and-so knows I have a right to such a thing” and the other swearing he does not know that he has a right to it, verification being impossible: if both claim certainty, each swearing upon his certainty, they are left to their conscience, their word is accepted, with no violation upon either until the contrary of what one of them (or both) asserted definitively appears, in which case the one whose assertion proves contrary violates. If neither claims having sworn upon his certainty, that is, upon a firm conviction, but only upon what he supposes, doubts or imagines, even if firm at the moment of the oath and then in doubt afterwards, the divorce is effective upon both, on the more correct view. If one claims certainty upon his oath and not the other: no violation upon the one claiming certainty, and the other violates. If neither claims certainty, the wife of the one who did not claim certainty divorces, whether it be both or one («al-Tawdih», 4/422, 423 ; «al-Taj wa-l-Iklil», 3/88, 89 ; «Charh Mukhtasar Khalil», 4/59 ; «al-Charh al-Kabir» with «al-Dasuqi», 3/292 ; «Tahrir al-Mukhtasar», 3/189 ; «al-Hawi al-Kabir», 10/278 ; «al-Muhadhdhab», 2/101, 102 ; «al-Bayan», 10/233, 234 ; «Rawdat al-Talibin», 5/403, 411, 414 ; «Asna al-Matalib», 3/300 ; «al-Najm al-Wahhaj», 7/540 ; «Mughni al-Muhtaj», 4/492 ; «Tuhfat al-Muhtaj», 9/449 ; «al-Dibaj», 3/437 ; «al-Mughni», 7/380, 381 ; «al-Muharrar fi-l-Fiqh», 2/61 ; «al-Charh al-Kabir», 8/466 ; «al-Insaf», 9/144, 145 ; «Kashshaf al-Qina'», 5/392, 393 ; «Charh Muntaha al-Iradat», 5/499, 500 ; «Matalib Uli al-Nuha», 5/472, 473).