Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > Question 4 (continued): the jester's repudiation judged ineffective
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
This part completes the discussion of the jester by citing the voices that judge his repudiation ineffective, then examines in eight sections the special repudiations: that of the non-Arab (al-ajami), the liar, the one whose tongue slipped, the drunkard (permissible then forbidden intoxication), the one who takes banj, a medicine or opium without need, the one beset by satanic insinuations (muwaswis), the dazed man (madhush), the coerced man and the angry man. Each school position is reported with its Quranic and prophetic evidences, its takhrij (Bukhari, Muslim and report numbers), and its classical references in parentheses.
After the schools that make the jester's repudiation effective, the text cites those who annul it: al-Lakhmi among the Malikis, Ibn al-Qasim, and one of the two narrations from Ahmad reported by Ibn al-Qayyim. The common rule is that the jester may deny he was joking only regarding another man's repudiation, since he is himself bound by his own jest.
Al-Lakhmi said: I hold that if the proof of joking is established, no repudiation is imposed on him. Ibn al-Qasim said: whoever says to his wife: "I have entrusted your matter to you if Allah wills", and she answers: "I part from you if Allah wills", both of them playing and not intending repudiation, nothing weighs upon them. Ibn al-Qasim also said, concerning a man whom another asked: "Have you repudiated your wife?", and who answered: "Yes, as you repudiated yours", while the other had repudiated his wife without his knowledge: nothing weighs upon him, for he did not intend repudiation; he may swear that he did not know of the other's repudiation, but he must not swear that he was joking, for the jester is himself bound by repudiation (al-Taj wa-l-Iklil 3/42, Mawahib al-Jalil 5/265).
This is also a narration transmitted from the Hanbalis. The imam Ibn al-Qayyim, may Allah have mercy on him, said: some jurists annulled the jester's repudiation, and this is one of the two narrations transmitted from Imam Ahmad, reported by Abu Bakr Abd al-Aziz and others; and some companions of Malik hold the same when the proof of joking is established: neither manumission, nor marriage, nor repudiation is imposed on him. Without any doubt, the angry man has even more right than this one to have his repudiation not take effect (Ighathat al-Lahfan fi hukm talaq al-ghadban p. 41).
The non-Arab who utters a formula of repudiation in Arabic necessarily falls into one of three cases: he knows its meaning, he is ignorant of it without intending its effect, or he is ignorant of it while intending its effect. The schools differ especially on the third case, and the discussion extends to repudiation in Persian among the Hanafi masters.
The non-Arab who says to his wife: "You are repudiated", falls into three situations.
First situation: he knows the meaning: repudiation is imposed on him, whether he intended it or not, like the Arab, and this is a point of agreement among the people of knowledge. Imam Ibn al-Mundhir, may Allah have mercy on him, said: they agreed that if the non-Arab repudiates in his language and intends repudiation, it is imposed on him (al-Ijma' p. 400). Imam Ibn Battah, may Allah have mercy on him, said: Bukhari's statement, "the repudiation of every people is in their language", means that the scholars are unanimous: if the non-Arab repudiates in his language and intends repudiation, it is imposed on him, for they are like the rest of mankind before the rulings of Allah (Sharh Sahih al-Bukhari 7/416-417). And Imam al-Kharshi, may Allah have mercy on him, said: whoever is made to repeat the formula of repudiation in a foreign language or in reverse, and utters it without knowing its meaning, nothing is imposed on him, neither in fatwa nor in judicial ruling, for lack of the intent which is a pillar of repudiation; if he understands it, it is imposed on him unanimously (Sharh Mukhtasar Khalil 4/33 ; see al-Taj wa-l-Iklil 3/42, Mawahib al-Jalil 5/265, al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/247, Tahbir al-Mukhtasar 3/138).
Second situation: he does not know its meaning and does not intend its effect according to Arab usage: no repudiation weighs upon him, and this utterance becomes idle speech on his part, as if he had uttered the word of disbelief without knowing its meaning or intending its effect; this is what the Malikis, Shafi'is and Hanbalis declared.
Third situation: he does not know its meaning, but he intends its effect according to Arab usage, that is, he intended to apply this formula whose meaning he does not know: the scholars differed over this. The Shafi'is, according to one of the two opinions (the one recalled by Abu Hamid al-Isfara'ini from the school), and the Hanbalis according to the madhhab, hold that repudiation is not imposed on him until he knows the meaning of the formula, for it produces repudiation; just as he does not become a disbeliever if he utters the word of disbelief intending its effect in Arabic.
In the Musannaf of Waki', it is reported that Omar ibn al-Khattab judged the case of a woman who said to her husband: "Name me"; he named her "the good one", she said: no; he said to her: "What do you want me to name you?" She said: "Name me khaliyya taliq (released and repudiated)"; he said: "You are khaliyya taliq". She went to Omar ibn al-Khattab and said: my husband has repudiated me. Her husband came, the story was told to him; then Omar struck the woman's head and said to the husband: "Take her by the hand and strike her head." Ibn al-Qayyim said: this is the living fiqh that enters hearts without asking permission, and yet he had uttered an explicit repudiation. It was mentioned earlier that the one who, upon recovering his mount, said in the excess of joy: "O Allah, You are my servant and I am your Lord", did not disbelieve despite the explicit utterance of disbelief, because he did not intend it (I'lam al-Muwaqqi'in 3/63).
Imam al-Mawardi chose, and the Hanbalis according to one view, that repudiation takes effect in this situation, for he uttered repudiation intending its effect: it therefore occurs as if he had known it. Al-Mawardi said: in my view, repudiation is imposed on him, for he intended the effect of the formula even though he did not know its meaning; repudiation occurs by the mere formula as soon as the speaker is endowed with volition, even if he has no specific volition in it; for although he does not know its meaning, he was capable of ascertaining it. And if we waived the repudiation from him, we would make equal the one who intends its effect and the one who does not, yet they are not equal. Likewise the Arab who repudiates through an explicit foreign formula without knowing its meaning falls into these three situations. If the non-Arab's wife claims that he knows repudiation in Arabic, the word is the husband's with his oath; likewise the Arab's wife who would claim that he knows repudiation in a foreign language: the word is his with his oath (al-Hawi al-Kabir 10/227, al-Muhadhdhab 2/78, al-Bayan 10/74).
Imam Ibn Qudama, may Allah have mercy on him, said: distinction: if the non-Arab says to his wife "You are repudiated" without understanding its meaning, she is not repudiated, for he did not choose repudiation: his repudiation is like that of the coerced man. If he intends its effect according to Arab usage, it still does not occur, for choosing what one does not know is not valid from him; this is why one who utters the word of disbelief without knowing its meaning does not disbelieve. It is possible that it occurs if he intends its effect, for he uttered repudiation intending its effect, which makes him resemble the Arab. The same ruling applies if the Arab says "bihishtam" without knowing its meaning (al-Mughni 7/303-304, al-Kafi 3/166, al-Muharrar fi al-fiqh 2/54, al-Mubdi' 7/275, al-Insaf 8/475-476, Kashshaf al-Qina' 5/286, Sharh Muntaha al-Iradat 5/389).
As for the Hanafis, Ibn Nujaym, may Allah have mercy on him, said: his indication that this does not depend on intention means that knowledge of the meaning is not required: if someone is made to repeat the formula of repudiation and utters it without knowing its meaning, it occurs judicially (qada') but not in conscience (diyanah). The masters of Uzjand said: it does not occur at all, to protect people's property from loss through deception, as in the Bada'i' (al-Bahr al-Ra'iq 3/277). Ibn Abidin said: if someone is made to repeat the formula and utters it without knowing its meaning, it does not occur at all according to the fatwa of the masters of Uzjand, out of protection against deception; others retain that it occurs judicially only (Hashiyat Ibn Abidin 3/250).
Imam al-Kasani, may Allah have mercy on him, said: as for repudiation in Persian, it is reported from Abu Hanifa, may Allah be pleased with him, his statement concerning one who says to his wife in Persian: "bihishtam in-zan", or "in-zan bihishtam", or simply "bihishtam": this constitutes repudiation only if he intends repudiation by it; for the meaning of this formula in Arabic is "I have released myself from her", and "I have released myself" is among the allusions (kinaya) of repudiation in Arabic: so it is with this formula. Abu Hanifa nevertheless distinguished the two formulas in two respects.
The first: if he intends repudiation by saying "I have released myself", it occurs as irrevocable (ba'in); if he intends repudiation through the Persian formula, it occurs as revocable (raj'i), for that formula may be explicit in their language or constitute an allusion, and irrevocability is not established in doubt. The second: the word "I have released myself", uttered in anger or while discussing repudiation, constitutes repudiation, to the point that it cannot be denied in court that he intended to repudiate; this Persian formula, in those two situations, does not constitute repudiation, to the point that if he says "I did not intend to repudiate by it", he is denied in court: this formula stands in place of release and is therefore weaker than it, so that indication by circumstance (dalalat al-hal) does not operate in it; no other distinction was made between the two, to the point that he said: if he intends irrevocability, it occurs irrevocable, and if he intends three repudiations, three occur, as if he had said "I have released myself" intending irrevocability or the triple; if he intends two, only one occurs, as with "I have released myself", except that here the single repudiation leaves the right of taking back, unlike the formula of release, for what we have explained.
Abu Yusuf said: if he says "bihishtam in-zan" or "in-zan bihishtam", she is repudiated, whether he intended repudiation or not, and it is a revocable repudiation; for Abu Yusuf mingled with the Persians, entered Jurjan and knew that this formula is explicit in their language. He said: if he says only "bihishtam" without adding "in-zan": if he says it at the moment repudiation is asked of him or in anger, it is a single revocable repudiation, and it cannot be denied in court that he intended repudiation; if he says it outside anger and the discussion of repudiation, it is denied in court. For their "bihishtam" means "I have released myself", and "I have released myself" carries no reference either to marriage or to the wife, so that it is applied to repudiation only through intention or through indication by circumstance; but anger and the discussion of repudiation are manifest evidence of the will to repudiate, which one does not accept to set aside in favor of his statement. He said: if he intends irrevocability, it is irrevocable; if three, three; for this formula, although explicit in Persian, means in Arabic release and can therefore carry irrevocability and the triple like the formula of release: it can thus be loaded through intention.
Muhammad said, concerning "bihishtam in-zan" or "in-zan bihishtam": it is an explicit repudiation, as Abu Yusuf said; and concerning "bihishtam" alone: if it is uttered while discussing repudiation, it is the same and it is not denied that he intended repudiation; if it is not uttered while discussing repudiation, it is denied, whether uttered in anger or in contentment; for the meaning of this formula in Arabic is: "you are released", or "I have released you".
Zufar said: if he says "bihishtam" intending irrevocable or revocable repudiation, it is irrevocable; if he intends three, three; if two, two; he gave this formula the role of "I have released myself". If he says "khalaytuki" intending repudiation, it is a single irrevocable repudiation, whether he intended irrevocability or not; if he intends three, three; if two, two according to the original: so it is here. This is what is transmitted from our companions concerning repudiation in Persian.
The basis held by the fatwa of our time for repudiation in Persian is that, if there is in it a formula used only for repudiation, that formula is explicit and repudiation occurs through it without intention as soon as it is referred to the woman, as in saying, according to the usage of our lands: "daha konom", or according to the usage of Khurasan and Iraq: "bihishtam"; for the explicit does not vary with the variation of languages. As for the Persian formulas used for repudiation as well as for other things, they are allusions: their ruling is therefore that of the Arabic allusions in all the rulings, and Allah knows best (Bada'i' al-Sana'i' 3/102).
The jurists differed concerning the husband who acknowledges having repudiated while lying, for example when he is asked: "Have you repudiated your wife?" and answers: "Yes": does his repudiation occur or not? Or does it occur judicially without counting in conscience? The divergence here is between the judicial and the religious effect of the acknowledgment.
The Hanafis and the Shafi'is hold that the one who acknowledges repudiation while lying, it occurs judicially without counting in conscience: his wife therefore remains inwardly his wife, while judicially she is repudiated; for acknowledgment does not stand in place of utterance (insha'): acknowledgment is an information admitting of truth or lie, for which its author is held accountable externally; as for what is between him and Allah, informing of a lie does not make it a truth through that information: this is why his repudiation does not occur inwardly.
Ibn Nujaym, may Allah have mercy on him, said: if he acknowledges repudiation while lying, it occurs judicially. He declared explicitly in al-Bazzaziyya that he may retain her in conscience if he says: "I intended thereby to report a past fact, lying"; if he did not intend to report the past, or if he intended to lie or to joke, the repudiation occurs judicially and in conscience. He excepted in the Quniyya, from the judicial effect, the case where he produced testimony beforehand, for the judge suspects him of intending to lie; if he calls witnesses beforehand, the suspicion disappears; and acknowledgment of manumission is like acknowledgment of repudiation. Al-Bazzazi conditioned it on the wronged one who, during the oath extorted by the oppressor upon the triple repudiation, testifies that he swears falsely: he is believed, both for freedom and for repudiation, and this is sound (al-Bahr al-Ra'iq 3/264).
He said further: in the Quniyya: it was thought that the triple repudiation had occurred upon his wife through the fatwa of someone unqualified to give fatwa; the judge ordered it written in the deed and it was written; then he consulted someone qualified, who issued the fatwa that it does not occur; the repudiations being written in the deed as a presumption, he may return to her between him and Allah, but he is not believed in court. This belongs to the chapter of acknowledging repudiation while lying, and we have stated that it occurs judicially without counting in conscience. In al-Bazzaziyya: he said to her: "You have only one act of repudiation left"; he repudiated her once; he can no longer marry her, and his acknowledgment stands as proof against him. Had he said to her: "One act of repudiation remains for you" while the situation was otherwise, he could have married her; for specifying the number one does not indicate the non-existence of another remaining: the numbered text does not negate the surplus, as in the names of genera. The first matter therefore occurs judicially only; as for conscience, only what he actually uttered occurs there (al-Bahr al-Ra'iq 3/278).
Ibn Abidin said: if he acknowledges repudiation lying or joking, it occurs judicially without counting in conscience (Hashiyat Ibn Abidin 3/236). Ibn Abidin was asked in Tanqih al-Fatawa al-Hamidiyya (1/283) about a man who, asked about his wife, answers: "I have repudiated her and counted it", while he had not repudiated her but had lied in reporting: answer: he is not believed judicially, and he is held regarding what is between him and Allah. In al-Ala'i from Sharh Nazm al-Wahbaniyya: he says "You are repudiated" or "You are free" intending thereby a lying report: repudiation occurs judicially, unless he produces testimony of it. In al-Bahr: acknowledging repudiation while lying occurs judicially without counting in conscience. Shaykh Isma'il and the learned al-Khayr al-Ramli issued the same fatwa.
As for the Shafi'is, the shaykh al-islam Zakariyya al-Ansari, may Allah have mercy on him, said: if he acknowledges repudiation while lying, his wife does not repudiate inwardly: she repudiates only outwardly (Asna al-Matalib 3/276). The Shafi'is add a nuance: if he is asked by way of inquiry: "Have you repudiated your wife?" and answers "yes", or a synonym like ajir, ajal, i (with the hamza with kasra) or bala, this is an explicit acknowledgment, the implied meaning being "yes, I have repudiated her"; if he is lying, she remains his wife inwardly. If he says: "I intended a past repudiation and then revoked it", he is believed with his oath, for what he claims is possible.
If this is said to him as a request, that is, if he is asked to enact the repudiation, as appears when, the two disputing over it, he is told: repudiation is acquired by you, you have done it, and he answers "yes" or the like, it is explicit and produces repudiation immediately, for the "yes" and its equivalent stand in place of "I have repudiated her". It was said that this is an allusion requiring intention, for "yes" is not among the explicit formulas; it was answered that, although it is not explicit in that, it reports what precedes it and implies the information, so that in such a position it means "yes, I have repudiated her"; and through its explicitness in reporting, it takes the questioner's intent, so that it is at times explicit as acknowledgment, at times as utterance, following his aim.
If he says: "Yes, I have repudiated", it is explicit without ambiguity; if he limits himself to "I have repudiated", it was said that this is an allusion, for "yes" is necessary to the answer, while "I have repudiated" stands alone: it is as if he had said from the outset "I have repudiated" and stopped there, and had he said it from the outset, nothing would have occurred against him. It was also said that it is like the "yes". If he is unaware of the situation of the question, the apparent is that it is an inquiry, for utterance is not what is asked about.
Qadi al-Shirbini said: if a person says to another: "You did such a thing" and he denies it, then one says to him: "If you did such a thing, your wife is repudiated", and he answers "yes" while he had done it, the repudiation does not occur, as in the qadi's fatwas; al-Baghawi made it a solicitation of repudiation, so that it is as if he were told: "Have you repudiated your wife?" seeking her repudiation from him, and he answered "yes"; the first opinion is the most plausible. If one says to him: "If Zayd comes, your wife is repudiated", and he answers "yes", this does not constitute a condition. If one says to him: "Do you have a wife?" and he answers "no", she does not repudiate even if he intends it, for it is pure lie; and this is reported in the original of the Rawda from the text of the Imla', and many companions (of the school) ruled on it.
He then explained with discernment that it is an allusion according to the soundest opinion, which the author (of the commentary) declared in his correction; its oath is that he did not intend her repudiation; al-Asfahani and al-Hijazi, in their abridgments of the Rawda, followed this path, and it is the most plausible, as did Ibn al-Muqri in his Rawda. If one says to him: "Have you repudiated three times?" and he answers: "Part of that took place", it is not an acknowledgment of repudiation, for it can mean a condition, a promise or a quarrel that is interpreted to it: if he explains it by something of that, it is accepted. If he says to his wife: "You are nothing to me", it is idle speech that produces no repudiation, even if he intends it. If he says: "My wife has been repudiated by her husband" and she has not married another, she is repudiated (Mughni al-Muhtaj 4/530-531 ; see al-Najm al-Wahhaj 7/585-586, Tuhfat al-Muhtaj 9/570-572).
The position of the Malikis resembles that of the Hanafis and the Shafi'is. Shaykh Muhammad Aliysh, may Allah have mercy on him, said: if he acknowledges what is sworn against him and then retracts, he is believed in matters of fatwa; among this is his retraction of the acknowledgment of repudiation or of the oath (Fath al-Ali al-Malik 2/54). Imam al-Kharshi, may Allah have mercy on him, said: if he acknowledges a deed and then swears "I did not do it", he is believed with an oath; that is, if he acknowledged before his wife, for instance, that he had married or had committed adultery with her, and she disputed it with him, then swore to repudiate her three times that he did not do it and "I was lying in my statement", he is believed judicially, with an oath by Allah, that he lied in his acknowledgment, and nothing weighs upon him; for his speech first warranted the suspicion; if he was asking for a fatwa, he does not swear; and if he evades the oath, he is compelled to it, as some commentators held (Sharh Mukhtasar Khalil 4/64).
The Hanbalis hold that the one who lies concerning repudiation, being asked of the husband: "Have you repudiated your wife?" or being told: "Your wife is repudiated", and answering "yes" intending the lie, his wife is repudiated even if he did not intend repudiation; for the "yes" is explicit in the answer, and the explicit answer through the explicit formula is explicit. Do you not see that if he is told: "Does so-and-so have authority over you?" and he answers "yes", this is an acknowledgment? If he is told: "Do you have a wife?" and answers: "I have repudiated her" intending the lie, she is repudiated, for it is explicit and requires no intention. If he is told: "Do you have a wife?" and answers "no" intending the lie, she is not repudiated, for it is an allusion; the one who intends the lie did not intend repudiation, even if he swore by Allah of it, that is, that he has no wife, without intending repudiation thereby; otherwise, if he did not intend the lie but intended repudiation, his wife is repudiated like the other allusions.
If he is told: "Have you repudiated your wife?" and answers: "Part of that took place": if he thereby intended the enactment, it occurs like the allusion; if he says: "I intended a repudiation under condition and the condition was not fulfilled", that is accepted from him, for his formula bears it. If the husband is asked: "Have you released her?" or a similar allusion, and he answers "yes", it is an allusion that does not produce repudiation by that until he intends it; for the question is embedded in the answer, which is an allusion. Likewise: "I have no wife", "she is not my wife", "I have no wife at all": this is an allusion that produces nothing without intention; if he means "I have no wife who serves me" or "there is no wife who pleases me", or if he intends nothing, his repudiation does not occur.
Whoever is covered by a proof, that is, a testimony established against him, of his acknowledgment that a triple repudiation occurred upon him, that is, he acknowledged that the triple repudiation had occurred upon him, while a previous oath of his had given rise to the assumption that it was nothing, then asked about his oath and given the fatwa that nothing weighs upon him: he is not held by his acknowledgment of the triple repudiation, because he knows the basis of his acknowledgment; and his statement is accepted with his oath that such is his basis, if he is among those ignorant of the like: Shaykh Taqi al-Din mentioned it with his oath.
If he is told: "Have you not repudiated your wife?" and answers "bala" (yes, on the contrary), she is repudiated, for it is the answer to negation; if he answers "yes", the wife of the one who is not a grammarian is repudiated, for he does not distinguish between the two in the answer, unlike the grammarian, whose wife does not repudiate, for "yes" is not the answer to negation (al-Furu' 5/302, al-Insaf 8/426, Kashshaf al-Qina' 5/283-284, Sharh Muntaha al-Iradat 5/384-385, al-Muharrar fi al-fiqh 2/55, Manar al-Sabil 3/95).
Shaykh al-islam Ibn Taymiyya went so far as to say that the liar's repudiation never occurs. He said: whoever swears repudiation while lying and knowing his lie, his wife does not repudiate, and the expiation of the oath is not imposed on him (al-Fatawa al-Kubra 4/567).
The repudiation of the mistaken man is that of the one who did not at all intend to utter repudiation, but aimed at another formula and whose tongue slipped into repudiation without intention, like the one who wants to say to his wife: "O you who ask", and finds himself saying by mistake: "O you repudiated". The mistaken man differs from the jester: the jester aims at the formula without aiming at separation through it, while the mistaken man did not aim at the formula, his tongue preceding him.
The jurists differed over his ruling: the one who wanted to pronounce other than the formula of repudiation and whose tongue slipped and pronounced it, does his repudiation occur or not? The majority of jurists, Malikis, Shafi'is and Hanbalis, hold that it does not occur, according to the word of the Prophet, may the peace and blessings of Allah be upon him, who made the three situations equal in pardon.
"Allah has pardoned my ummah for error, forgetfulness and what they are coerced into."authentic hadith, reported by Ibn Majah 2043
The Malikis said: the one who wanted to speak of other than repudiation and whose tongue slipped into it is excused thereby, and nothing weighs upon him if the slipping of the tongue is established, neither in fatwa nor in judicial ruling, for lack of intention to pronounce the formula signifying the lifting of the impediment, which is a pillar of repudiation. If the slip is not established, nothing weighs upon him in fatwa, but he is held in the judicial ruling.
Al-Mawwaq, may Allah have mercy on him, said, cited from the Mudawwana: if he wanted to pronounce the letters of repudiation and pronounced others by mistake, as in saying "You are free" or "Eat", nothing weighs upon him, unless he intended that she is repudiated by what he utters: repudiation is then imposed on him. The slipping of the tongue is idle speech if established, otherwise it has effect only in matters of fatwa (al-Taj wa-l-Iklil 3/42 ; see Mawahib al-Jalil 5/265, Sharh Mukhtasar Khalil 4/32-33, al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/247, Tahbir al-Mukhtasar 3/138, Hashiyat al-Sawi ala al-Sharh al-Saghir 5/297).
The Shafi'is said: the one whose tongue slipped into the formula of repudiation in conversation, while he wanted to pronounce another word, and likewise if he uttered repudiation reporting the speech of another, as well as the jurist who repeats the formula in his exposition and teaching: his repudiation does not occur; but the claim of the tongue's slip is not accepted outwardly unless a convergent indication supports it. If he says "I have repudiated you" and then claims: "My tongue slipped, I meant: I asked you", al-Shafi'i declared that his wife cannot accept this claim from him. Al-Ruyani reported from the author of the Hawi and others that this applies when the husband is suspect; if she believes his sincerity on the basis of an indication, she may accept his word and not dispute with him; and the one who heard him may, if he knows the situation, accept his word and not testify against him. Al-Ruyani said: and this is the choice (of the school).
If his wife is named Taliqa and his slave Harr, and he says to her: "O Taliqa", or to the slave: "O Harr": if he intended the call, there is neither repudiation nor manumission; if he intended repudiation and manumission, both occur. Al-Nawawi said: if he repudiated intending nothing, to which of the two is it interpreted? Two opinions, the sounder being the call, and on it al-Baghawi ruled. If the letters of his wife's name are close to the letters of "taliq", like Tal'a, Talib or Tariq, and he says: "O Taliqa", then claims: "I meant O Tariq or O Tal'a, and my tongue rolled the letter", his word is accepted outwardly, because of the clarity of the indication. Among the forms of the tongue's slip: when she has become pure from menses or he assumed her purity and he wanted to say: "You are now pure", his tongue slipped and he said: "You are now repudiated" (Rawdat al-Talibin 5/353-354 ; see al-Najm al-Wahhaj 7/499-500, Kanz al-Raghibin 3/815-816, Mughni al-Muhtaj 4/468, Tuhfat al-Muhtaj 9/367-368, Nihayat al-Muhtaj 6/510-511, al-Dibaj 3/413-414).
Shaykh al-islam Zakariyya al-Ansari, may Allah have mercy on him, said: likewise the tongue's slip into the formula of repudiation is idle speech, for he did not intend the formula; but he is held by it in fatwa, and his claim of the slip is not admitted outwardly without an indication, for the right of another is attached to it, unlike the case with an indication, as when he calls her after her purification to his bed intending to say: "You are now pure", but his tongue slipped into: "You are now repudiated". If she believes his sincerity in his claim of the slip on the basis of an indication, she may confirm it, that is, accept his word; and likewise the witnesses who heard the repudiation from him and knew the sincerity of his claim through an indication may refrain from testifying against him of the repudiation: this is what the original text mentioned here. The original text also mentioned, at the end of the chapter of repudiation, that whoever hears a man's formula about repudiation and ascertains that his tongue slipped cannot testify against him of repudiation in any way; and what is here concerns assumption, while there it concerns ascertainment, as their statement suggests; yet this case is examined: if her name is Taliqa, Tariqa or Talib, or a name close to the letters of "taliq", and he calls her: "O Taliqa", she is repudiated; but if he alleges the tongue's slip from those formulas, it is accepted from him outwardly, because of the clarity of the indication. If her name is Taliqa and he calls her by that name, she does not repudiate, even if he did not intend to call her by her name, unless he intended repudiation: then she repudiates. The form of non-repudiation upon the utterance is that the naming by "taliqa" be customary at the call; if it lapses, the indication weakens, by analogy with what they said in the similar case of calling his slave named Harbi "free", which al-Isnawi and others noted. Al-Zarkashi said: al-Nawawi specified in the Minhaj "O taliq" with the qaf in sukun, as if indicating that if he says "O Taliqa" with the damma, repudiation does not occur, for the construction with the damma indicates the will of the proper name; and if he says "O taliqa" in the accusative, it is necessarily directed to repudiation. Yet this statement is examined, for a grammatical fault does not affect the occurrence of repudiation or its absence (Asna al-Matalib 3/280-281).
The Hanbalis said: if he says: "I meant: I asked you, my tongue slipped and I said: I repudiated you", and the like; or if he meant "you are freed" and his tongue slipped into "you are repudiated"; or if he alleges that he meant to say "pure" and his tongue slipped into "repudiated"; or if he alleges that by his word "you are repudiated" he meant a repudiation from a previous husband: nothing weighs upon him in conscience, for he knows his intention better; but it is not accepted from him in the judicial ruling, for it is contrary to what apparent custom requires, so far-fetched is the willing of that. Likewise if he says to her: "You are repudiated" and claims: "I meant: if you stand", abandoning the condition without intending repudiation; or if he says: "You are repudiated if you stand", then claims: "I meant to sit, I left the condition and did not intend repudiation": he is held and it is not accepted judicially (I'lam al-Muwaqqi'in 4/41, al-Mubdi' 7/270, al-Insaf 8/465-466, Kashshaf al-Qina' 5/283, Sharh Muntaha al-Iradat 5/383).
Imam Ibn Qudama, may Allah have mercy on him, said: or he says: "I meant: I asked you, my tongue slipped and I said: I repudiated you", or the like: he is held regarding what is between him and Allah; as soon as he knows it of himself, nothing occurs against him before his Lord. Abu Bakr said: no disagreement, according to Abu Abdillah (Ahmad), that if one wants to say to his wife: "Give me water to drink", and the tongue slips into "You are repudiated" or "You are free", there is no repudiation in it. Ibn Mansur reported from him that he was asked about a man who swore and whose tongue made run other than what was in his heart: I hope the matter is broad; is his claim accepted in the judicial ruling? It is examined: if he was in anger or she was asking him for repudiation, his claim is not accepted judicially, for his formula is manifest for repudiation and the indication of his state confirms it, so that his claim contradicts the apparent from two sides and is not accepted. If he was not in these situations, the apparent of Ahmad's speech in the narration of Ibn Mansur and Abu al-Harith is that his word is accepted, and this is the view of Jabir ibn Zayd, al-Sha'bi and al-Hakam, which Abu Hafs reported from them, for he explained his speech by an interpretation not far-fetched: as if he had said "You are repudiated, you are repudiated" claiming: "By the second, I meant to make her understand".
The qadi said: there are two narrations on this: the one we have mentioned, which is the apparent of Ahmad's speech; and the second: that it is not accepted, and this is the madhhab of al-Shafi'i, for it is contrary to what apparent custom requires: it is therefore not accepted judicially, as if he acknowledged ten (lashes) and then said: "guests, minors, or for a month". As for if he declared it explicitly in the formula, saying: "I have repudiated you from my bond", or "I have parted from you with my body", or "I have sent you away from my hand", there is no doubt that repudiation does not occur, for what is attached to the speech diverts it from its requirement, like the exception and the condition. Abu Bakr mentioned, concerning his word "you are freed", that if he meant that she is repudiated by a past repudiation or from a previous husband, nothing weighs upon him; if he intended nothing, two opinions: one, that repudiation occurs; the other, that it does not, which implies that the formula is not explicit according to one of the two views. The qadi said: what is textual from Ahmad is that it is explicit, and this is the sound view, for this formula is derived from the formula of repudiation and is therefore explicit in it, like his word "you are repudiated" (al-Mughni 7/295).
The Hanafis hold that the repudiation of the mistaken man occurs. Imam al-Sughdi, may Allah have mercy on him, said: the repudiation of the careless and the mistaken is not a repudiation according to al-Sha'bi, Waki' and Abu Abdillah (Ahmad), that is, when a man speaks and utters that his wife is repudiated: it is not a repudiation. But according to Abu Hanifa and his companions, it is a repudiation (Fatawa al-Sughdi 1/349). What is sound with them is that it occurs judicially without counting in conscience. Imam al-Kasani, may Allah have mercy on him, said: likewise being voluntary is not a condition, to the point that the repudiation of the mistaken man occurs, he who wanted to speak of other than repudiation and whose tongue slipped into repudiation; for what is missing through error is only the intention, and it is not a condition of occurrence, as with the jester and the player, and likewise for manumissions, according to what we said of repudiation. Al-Karkhi mentioned that there are two narrations concerning manumission: Hisham reported from Muhammad from Abu Hanifa that the one who wants to say to his wife: "Give me water to drink", and says to her: "You are repudiated", the repudiation occurs; and if he intended that for the slave and said: "You are free", it does not occur. Bishr ibn al-Walid al-Kindi reported from Abu Yusuf and Abu Hanifa that they are equal, and this is the sound view according to what we said (Bada'i' al-Sana'i' 3/100).
Imam Ibn Nujaym, may Allah have mercy on him, said: it follows that the repudiation of the jester, the player and the mistaken man occurs, as we have stated, but judicially; as for what is between him and Allah, it does not occur against the mistaken man. What is in the Khulasa, that the repudiation of the mistaken man occurs, means judicially: the proof is that he says afterwards: and if it were manumission, he is held; for there is no difference between manumission and repudiation, and this is the apparent of the Imam's speech, as in the Khaniyya, contrary to Abu Yusuf. There is no disagreement that the involuntary is imposed on him, nor that if the word of disbelief ran on his tongue by mistake, he does not disbelieve, as in the Khaniyya likewise; and likewise if he utters it without knowing its meaning: it occurs judicially only. The proof is what is in the Khulasa: she says to her husband: "Recite upon me: I count you repudiated three times", and he did it: she is repudiated three times judicially, not in conscience, if the husband did not know nor intend; unlike the jester, against whom repudiation occurs judicially and in conscience, for he defies with the formula and therefore deserves severity.
What is in the Khulasa, citing the Asl: he has two wives, Zaynab and Amra; he says: "O Zaynab", and Amra answers him; he says: "You are repudiated three times": the one who answered is repudiated. If he says: "I aimed at Zaynab", this one is repudiated by the indication and that one by the acknowledgment: this is carried to the judicial ruling; as for conscience, repudiation occurs against neither of them. What is in the Hawi, citing the Jami' al-Saghir: Asad was asked about the one who wanted to say "Zaynab is repudiated" and whose tongue ran "Amra": upon which of the two does repudiation occur? He said: judicially, the one he named is repudiated; and in conscience, neither of them repudiates: the one he named, because he did not intend her; the other, because if she repudiated, she repudiated by mere intention. It is said in the Fath al-Qadir: as for what Nusayr reported from them, that the one who wanted to speak and whose tongue ran the repudiation, it occurs in conscience and judicially, one does not rely on it.
In sum: their statement "the explicit does not require intention" holds only judicially; as for conscience, it requires one; but its occurrence judicially without intention holds only on condition that he intends it while addressing her. The proof is their statement: if he repeats the matters of repudiation before his wife saying "You are repudiated" without intending it, she does not repudiate. Likewise the student who copies, transmitting from a man's book, who says and then stops and writes: "My wife is repudiated", each time joining the writing to the utterance with the intention of narration: nothing weighs upon him. What is in the Quniyya: a woman wrote: "You are repudiated", then said to her husband: "Recite it upon me", and he recited: she does not repudiate.
As for what is in the Fath al-Qadir: one must address the interlocutor with the formula of repudiation knowing its meaning, or the reference to the absent one as the branches indicate: this is not sound. For if it were a condition of occurrence judicially and in conscience, it would not be sound, since he declared the occurrence judicially for the one whose tongue slipped; and if it were a condition of occurrence in conscience only, the same applies, for it would imply occurrence judicially in the case of repetition before her and of the student, and it is not so. The sound view is what we limited (al-Bahr al-Ra'iq 3/277-278, al-Ashbah wa-l-Naza'ir p. 24, al-Nahr al-Fa'iq 2/325 ; see Sharh Fath al-Qadir 4/4).
Imam Ibn Abidin, may Allah have mercy on him, said: if his tongue slips from "You are menstruating" to "You are repudiated", repudiation occurs judicially only (Hashiyat Ibn Abidin 3/250). Imam al-Tahawi, may Allah have mercy on him, said: the one whose tongue slipped into repudiation, our companions said: it occurs judicially regarding what is between him and Allah; likewise manumission; and Bishr ibn al-Walid reported from Abu Yusuf and Abu Hanifa the like. He said concerning the one who says to his wife "Taliq" meaning "if you enter the house", then a distraction came over him and he fell silent: repudiation occurs judicially and in conscience according to Abu Hanifa and Abu Yusuf; and if he swore a pilgrimage or something else, or an offering, a walking, a vow or other than repudiation and manumission, then was distracted before completing his speech and his oath, nothing is imposed on him; and if he wanted to speak of other than repudiation and his tongue preceded him saying: "You are repudiated", she repudiates judicially and in conscience (Mukhtasar Ikhtilaf al-Ulama 2/430).
The hafiz Ibn Hajar, may Allah have mercy on him, said: likewise they differed over the repudiation of the mistaken man: the majority hold that it does not occur; and according to the Hanafis, the one who wanted to say something to his wife and whose tongue slipped into "You are repudiated": repudiation is imposed on him. Bukhari alluded by his words "error and forgetfulness" to the hadith of Ibn Abbas raised to the Prophet: "Allah has pardoned my ummah for error, forgetfulness and what they are coerced into"; he made the three equal in pardon. Whoever limits the pardon to the lifting of sin only, without the occurrence in coercion, must say likewise for forgetfulness; and the hadith was reported by Ibn Majah and authenticated by Ibn Hibban (Fath al-Bari 9/390).
The drunkard necessarily falls into two states. The first is intoxication through a lawful cause: being forced to drink wine, medicine, an innocent drink. The majority of scholars hold that repudiation then has no effect, since reason disappeared without disobedience on his part; the Hanafis introduce the nuance of pleasure obtained.
The drunkard is necessarily in one of two states.
First state: that he becomes drunk through a permitted cause. The majority of the people of knowledge hold that when a man's reason disappears through a lawful intoxication, like the one forced to drink wine until drunk, or who drank a medicine that removes reason, or who drank milk or something being certain or assuming that it would not affect his reason, while his reason vanished through that use: his repudiation does not occur, according to the word of the Prophet, may the peace and blessings of Allah be upon him. And because repudiation is a speech that lifts ownership, reason is therefore taken into account in it as in sale; and because he has the status of the one overcome in his reason: no repudiation weighs upon him, sin being lifted from him (Sharh Mukhtasar Khalil 4/32, Hashiyat al-Dasuqi 3/246, al-Hawi al-Kabir 10/235, al-Mughni 7/228, Matalib Uli al-Nuha 5/321-322).
"Every repudiation is valid, except that of the idiot overcome in his reason."weak hadith, reported by at-Tirmidhi 1191, who said: we do not know it as raised to the Prophet except through the hadith of Ata ibn Ajlan, and Ata ibn Ajlan is weak
Al-Ruhaybani, may Allah have mercy on him, said: the Muslims agreed that the one whose reason disappears without forbidden intoxication, like sleep, fainting, madness, drinking a medicine that removes reason, or illness: his repudiation does not occur (Matalib Uli al-Nuha 5/321-322). And Ibn Qudama, may Allah have mercy on him, said: whether his reason disappeared through madness, fainting, sleep, drinking a medicine, being coerced to drink wine, or he drank what removes his reason without knowing it to be so: all of that prevents the occurrence of repudiation according to a single narration, and we know of no disagreement on it (al-Mughni 7/288).
As for the Hanafis, al-Kasani, may Allah have mercy on him, said: even if his drunkenness comes from a lawful cause, but he derived pleasure from it by drinking wine under coercion until drunk, or by drinking it under the constraint of thirst: they said that his repudiation also occurs; for although his reason disappeared, it disappeared with pleasure, so that he is held valid, and coercion and necessity are attached to non-existence, as if he had drunk voluntarily until drunk.
Muhammad, may Allah have mercy on him, mentioned the one who drank nabidh without his reason disappearing, but whose headache made him lose his reason: his repudiation does not occur, for his reason did not disappear through disobedience nor through pleasure, so that it disappeared in reality and by estimation; and likewise if he drank banj (henbane) or an intoxicating medicine and his reason disappeared: his repudiation does not occur, according to what we said (Bada'i' al-Sana'i' 3/100).
It is said in al-Durr al-Mukhtar: or opium or banj: the fatwa is issued that repudiation occurs, repelled (zajran), the correction of al-Quduri; the correction is debated for the one made drunk by coercion or necessity; but if his reason disappeared through headache or through a lawful cause, it does not occur. In al-Quhistani, citing al-Zahidi: if he cannot discern what permits addressing him, his transactions are void. Ibn Abidin, may Allah have mercy on him, said: his word "or opium or banj": opium is what comes from the poppy, and banj (with fath) is a cultivated plant. He declared explicitly in the Bada'i' and elsewhere that repudiation does not occur through its consumption, explaining it by the fact that the disappearance of his reason had no disobedient cause.
The sound view is the distinction: if it was for treatment, repudiation does not occur, for lack of disobedience; if there was intent of amusement and of inflicting harm, one must not hesitate about occurrence. In the correction of al-Quduri, citing al-Jawahir: in this era, if he becomes drunk from banj and opium, repudiation occurs, repelled, and the fatwa is based on it; the full detail is in al-Nahr. His word "repelled" indicates the mentioned distinction: if it was for treatment, he is not repelled, for lack of intent of disobedience. His word "the correction is debated": the Tuhfa and others corrected non-occurrence, and the Khulasa affirmed occurrence.
It is said in the Fath: the first is finer, for what causes occurrence upon the disappearance of reason is only being its cause through a forbidden means, which is absent here. In al-Nahr, from the correction of al-Quduri: this is the verification. His word "if his reason disappeared through headache": for the cause of the disappearance of reason is the headache, and drinking is the cause of the cause, and the ruling is not attached to the cause of the cause except when the cause is not fit; the full text is in the Fath.
The case was posited in the Fath and the Bahr for the one who drank wine and then had a headache, contrary to what is in the Multaqat: if the nabidh is mild and he had a headache until losing his reason, his repudiation does not occur; and if the nabidh is strong, forbidden, and he had a headache until losing his reason, his repudiation occurs: he distinguished the forbidden path from the lawful one, consider it and ponder. His word "or through a lawful cause": as if he became drunk from pomegranate leaves: neither his repudiation nor his manumission occurs; the author of the Tahdhib reported consensus on it, as in the Hindiyya. I say: likewise if he became drunk through banj or opium taken not in disobedience but for treatment, as passed. His word on al-Quhistani rests on the definition of the drunkard whose transactions are valid among us: the one who has of reason what suffices for obligation; and one marveled at it in the Fath: without any doubt, on that estimation, no one can say that his transactions are not valid (Hashiyat Ibn Abidin 3/239-240, al-Jawhara al-Nira 4/398).