The forgetful, conditional talaq and doubts

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 forgetful man's divorce: when the husband forgets he is married

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: divorce suspended on an act performed forgetfully

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: divorce suspended on another person's act performed forgetfully

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 suspended on the marriage itself

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.

Zihar and ila suspended on the marriage

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).

Identifying the divorced wife by gesture, description, or intention

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.

First case: doubt about the very occurrence of the divorce

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).

Second case: doubt about the number of divorces

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).

Third case: doubt about the object of the divorce

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).

Some forms of doubt in divorce

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).