Question 13: the repudiation of the coerced man

This part belongs to the full section: All sections of this part.

Question 13: the repudiation of the coerced man

The people of science differed concerning the one coerced to repudiate his wife and who repudiates her: does his repudiation occur or not? The Hanafis make it occur relying on the generality of the texts; the majority of the schools judge it without effect relying on the verse of coercion; Ibn al-Qayyim then details the place of intention and of equivocation (tawriya).

The Hanafis hold that the one coerced to repudiate his wife, his repudiation occurs and the coercion is not taken into account, by virtue of the generality of the word of Allah the Most High:

"If he divorces her irrevocably, she shall not be lawful to him after that until she marries a husband other than him."

Surah al-Baqara, 230

without distinction between the repudiation of the coerced man and that of the willing one; and His word:

"Repudiation is twice."

Surah al-Baqara, 229

which establishes the taking back after the two repudiations without detail; and the word of the Prophet: "Every repudiation is valid, except that of the idiot": the repudiation of the coerced man therefore enters the generality of validity. And because what is missing through coercion is only natural consent, which is not a condition of occurrence: the jester's repudiation occurs although he does not naturally consent to it; and likewise a man may repudiate his wife of exquisite beauty and grace, charming through her curls and coquetry, for a defect in her religion, although he does not naturally consent to it, and repudiation occurs against her.

And according to what Imam Muslim reported in his Sahih from Hudhayfa ibn al-Yaman, may Allah be pleased with him, who said: "Nothing prevented me from attending Badr except that I went out with my father Husayl. The disbelievers of Quraysh seized us and said: you want Muhammad. We answered: we do not want him, we only want Medina. They took from us the covenant of Allah and His pledge that we would return to Medina and not fight with him. We came to the messenger of Allah and told him the news, and he said: Return; I absolve them by their pledge, and we seek the help of Allah against them" (reported by Muslim 1787). When the messenger of Allah thus prevented them from attending Badr because of the oath extorted by the polytheists who overpowered them, regarding what they had made them swear, it was thereby established that the oath under willingness and coercion is equal; and likewise repudiation and manumission; for the Prophet established the polytheists' oath over them under the aspect of coercion and ranked it with the oath of the willing one: once it is thus established for the oath, repudiation, manumission and marriage are like it, for no one made a distinction between them.

As for his word in the hadith of Ibn Abbas, may Allah be pleased with them both: "Allah has waived for my ummah error, forgetfulness and what they are coerced into"; authentic hadith, reported by Ibn Majah 2045: it concerns association specifically, for those people were fresh in disbelief, in a dwelling that was a dwelling of disbelief; the polytheists, when they overpowered them, coerced them into acknowledging disbelief, and they acknowledged it with their tongues; they did so to Ammar ibn Yasir and other companions of the Prophet whom Allah was pleased with; then descended concerning them the word: "except the one who is coerced while his heart remains serene in faith". And it happens that they forget and utter what was their habit before Islam, and it happens that they err and utter that too; Allah therefore pardoned them for it, for they were neither choosing nor intending. This is the best of what is done with the traditions: when one stands over the meaning of some of them, one carries the rest upon what does not contradict that meaning, as far as possible, so that there be no contradiction. It was therefore established by what we said that the hadith of Ibn Abbas bears upon association, and the hadith of Hudhayfa upon repudiation, oaths and the like.

And according to what Safwan ibn Imran al-Ta'i reported: a man slept beside his wife; she rose, took a knife, sat upon his chest, placed the knife on his throat and said: "You will repudiate me three times absolutely, or I slaughter you"; he appealed to Allah, but she refused; he repudiated her three times. It was mentioned to the messenger of Allah and he said: "There is no nap in repudiation", that is, there is no taking back in it: proof of its occurrence despite coercion; weak and mursal hadith, reported by Sa'id ibn Mansur in his Sunan in mursal form 1130.

And because the Prophet said: "Three things: their seriousness is serious and their jest is serious: marriage, repudiation and taking back"; he made the serious and the jest equal; and the difference between the serious and the jester is that the serious one aims at the formula and at the production of its ruling, while the jester aims at the formula without wanting the production of its ruling: we therefore know that volition has no share in negating repudiation, and that both, through aiming at the word, have their ruling established upon them. Likewise the coerced man aims at the word without wanting the production of the ruling: he is therefore like the jester in equality. If it is said: the jester aimed at the formula without aiming at the occurrence, while the coerced man did not aim at the formula: he is therefore like the sleeper; we answer: the coerced man aims at the formula to repel from himself the greater of two harms by the lesser. Do you not see that were he asked: "Why did you repudiate?", he would say: "I chose repudiation over the loss of my life"; and this is a meaning negating consent to the disappearance of ownership, so that the occurrence of repudiation is not prevented by the soundness of the word, like the condition of option (khiyar). And because it is a meaning coming from outside that removes choice, it did not prevent the occurrence, like anger. And because if he designates the one over whom he was coerced, she is repudiated; and every man whose repudiation occurs against one of his wives, it occurs against all the others, like the non-coerced. And because he directed repudiation toward his wife while he is capable of repudiating: it must therefore occur from him like that of the jester.

And because the coerced man is subject to obligation, the proof being that it is not permitted to him to kill nor to fornicate even if coerced into it; and it is permitted to him to utter the word of disbelief, and it is obligatory upon him to drink wine and eat carrion: once he has been addressed through the forbidden, the permitted and the obligatory, that indicates that he is subject to obligation. And because we found that error is what the man wanted otherwise and did without intention or volition of it; and forgetfulness is what he intended and did with intention, while heedless of the meaning that prevents him from that act; and when the man forgot that this woman was his wife, intended her and repudiated her, all agreed that his repudiation is effective, without invalidating it for his forgetfulness; and such forgetfulness does not enter the pardoned forgetfulness. Since therefore the pardoned forgetfulness does not comprise what we mentioned of repudiation, oaths and manumission, the pardoned coercion is likewise without it.

As for the ruling of this through the path of reasoning: the act of the coerced man falls into one of two cases. Either the coerced man, when he does that act under coercion, has the status of the one who did not do it: nothing is then obligatory upon him. Or he has the status of the one who did it: then what would be obligatory had he done it without coercion is obligatory upon him. We saw that they do not differ concerning the woman whom her husband coerces, while she fasts the month of Ramadan or is on pilgrimage, and he has relations with her: her pilgrimage is invalid, and likewise her fast; they did not take coercion into account to distinguish it from willingness, and the woman was not placed in the status of the one who did nothing, but in the status of the one who did an act upon which the ruling applies, the sin being lifted from her in particular. Likewise, if a man coerces a man into relations with a woman herself coerced: the dowry, in reasoning, weighs upon the one who consummated, not upon the coerced man; and the consummator does not turn back upon the coerced man through that, for the coerced man did not consummate so that a dowry would be obligatory upon him. Once it is thus established in these things that the coerced man is judged according to the status of the agent, as in willingness, they impose upon him in matters of property what would be obligatory upon the willing agent: it is established that it is likewise for the repudiator, the emancipator and the one who takes back under coercion: he is judged according to the status of the agent, and all his acts are imposed on him.

If it is said: why were his sale and his hire not permitted? It is answered: sales and hires may be annulled by defects, the option of inspection and the option of condition; and marriage is not thus, nor repudiation, nor taking back, nor manumission. What can be rescinded by option because of the conditions and original causes it contains, like non-inspection and return for defects, is rescinded by coercion; and what cannot be rescinded by any cause after its establishment is not rescinded by coercion nor otherwise: and this is the view of Abu Hanifa, Abu Yusuf and Muhammad, may Allah have mercy on them. The Sunna came with the like of this: it is the word of the Prophet: "Three things: their seriousness is serious and their jest is serious: marriage, repudiation and taking back"; when the messenger of Allah said that, he prevented marriage from nullity after its occurrence, and likewise repudiation and taking back; and sales were carried to the contrary: whoever sold in play, his sale is void, and likewise whoever hired in play, his hire is void; that was only because sales and hires belong to what can be rescinded by the mentioned causes: they were therefore rescinded by jest as by them; and the other things, namely repudiation, manumission and taking back, are not void by anything of that: they were therefore set as not annulled by jest. Likewise in reasoning: what can be rescinded by the mentioned causes is rescinded by coercion, and what cannot be rescinded by those causes is not rescinded by coercion (Sharh Ma'ani al-Athar 3/95-99, Ahkam al-Qur'an 5/14-17, al-Tajrid of al-Quduri 10/4913-4930, Bada'i' al-Sana'i' 3/100 and 7/182, Sharh Mukhtasar al-Tahawi 5/5-15, Mukhtasar Ikhtilaf al-Ulama 2/429-430, al-Mabsut 24/40-41, al-Ikhtiyar 3/155).

The majority of jurists, Malikis, Shafi'is and Hanbalis, hold that the repudiation of the coerced man does not occur: the one coerced to repudiate his wife by a sultan or otherwise, and who repudiates her, is not imposed what he enacted, and she remains his wife. They argued for it by the word of Allah:

"Except the one who is coerced while his heart remains serene in faith."

Surah an-Nahl, 106

He negated disbelief through the tongue when the heart is serene in faith; likewise repudiation: if he does not want it with his heart, did not have it in view and did not intend it, it is not imposed on him. And because disbelief has rulings: when Allah waived them from him, the rulings of coercion fell away from all speech; for when the greatest falls away from people, what is lesser falls away. And it is reported from Ibn Abbas, Abu Hurayra and Abu Dharr al-Ghifari, may Allah be pleased with them, that the Prophet said: "Allah has waived for my ummah error, forgetfulness and what they are coerced into"; and in a narration: "has pardoned"; authentic hadith, reported by Ibn Majah 2043 and 2045: it therefore follows that the repudiation of the coerced man is waived. If it is said: coercion was not waived, since it can exist; it is answered: what is meant is the ruling of coercion, not its existence, just as what is meant is the ruling of error, not its existence. If it is said: the hadith is carried to the waiving of sin; it is answered: carrying it to the waiving of the ruling is more worthy, for it is more general: what waived the ruling waived the sin.

Aisha, may Allah be pleased with her, reported that the Prophet said:

"There is no repudiation and no manumission under incapacitation (ighlaq)."good hadith, reported by Abu Dawud 2193, Ibn Majah 2046 and Ahmad 26403

Abu Ubayd said: ighlaq is like coercion, that is, his choice is locked like the one upon whom it was locked. Abu Bakr said: I asked Ibn Durayd and Abu Tahir, the two grammarians, and they said: he means coercion, for when one is coerced, his view locks upon him. If it is said: what is meant is madness, for it suspends volition; there are two answers: the first, that the masters of the language are more precise in its meanings than others: carrying it upon what they established is more worthy; the second, that it is carried upon both things: it is therefore more general.

And because it is the consensus of the Companions: five of them said it, without any opponent appearing. Among them Omar: Ibn al-Mundhir and others reported that in the time of Omar ibn al-Khattab, may Allah be pleased with him, a man descended upon a rope to gather honey; his wife came and sat upon the rope, swearing to cut the rope or that he repudiate her three times; he reminded her of Allah and Islam, but she swore to do it or that he do it; he repudiated her three times; when he descended, he came to Omar ibn al-Khattab and told him what had come from his wife to him and from him to her; he said: "Return to your family: this is not a repudiation"; weak hadith, reported by Sa'id ibn Mansur in his Sunan 1128 and by al-Bayhaqi in as-Sunan al-Kubra 14876. Ibn al-Malqin said concerning his word "gathering honey": it is with the shin and the plain ra; one says shiru al-asal ashuru, on the pattern of qultu aqulu; and ishtarta on the pattern of ikhtartu, when one draws it from the bees' place in the mountains or elsewhere; and asharu is a dialectal variant: al-Jawhari mentioned it (al-Badr al-Munir 8/119).

Among them Ali ibn Abi Talib, may Allah be pleased with him: "he did not consider the repudiation of the coerced man as anything". Among them Abdallah ibn Abbas, may Allah be pleased with them both, who said: "The coerced man and the persecuted one have no repudiation". Among them Abdallah ibn Omar and Abdallah ibn al-Zubayr, who viewed likewise. And by analogy: it is a formula imposed upon him without right: no ruling should therefore be established through it, like coercion to the acknowledgment of repudiation.

As for coercion to the act of Islam, it is valid and established only for the one who was a warrior, called to Islam by the sword; for coercing him to it is obligatory and the Law came with it; but the coercion of the dhimmi who pays the jizya is not valid, for the Law approved it over him: his coercion is therefore an injustice and does not occur. And because coercion is a meaning that removes the status of the acknowledgment of repudiation, it must remove the status of the production of repudiation, like madness, sleep and childhood. And because it is a formula to which is attached the distinction between the two spouses: it must not be valid if a right is imposed upon it without reason; its origin is coercion to the word of disbelief. And because it is a word upon one of the two sides of marriage: it must not be valid with coercion, like marriage. And because every carnal relation of which one is not owner through the coerced man's formula is not forbidden by the coerced man's word, like indication in sale and purchase.

As for his word "three things: their seriousness is serious and their jest is serious": we say by virtue of it that the serious and the jest are equal in the occurrence of repudiation, and the coerced man is neither serious nor jesting: he has left it like the madman. For the serious one aims at the formula wanting separation, the jester aims at the formula not wanting separation, and the coerced man aims neither at the formula nor at separation. The difference between the jester's repudiation and that of the coerced man is that the jester aims at the formula and prefers it: its ruling is therefore imposed on him; while the coerced man, although he aimed at the formula, did not prefer it nor choose it: the ruling is therefore not attached to it. And because we found that repudiation is imposed only through a formula and an intention, and the coerced man has no intention: he repudiated with his tongue, not with his heart. When Allah waived from him the disbelief he uttered under coercion without believing it, the waiving of repudiation becomes obligatory through the waiving of the intention in it. The Muslims agreed that if the polytheists coerce a man to disbelief in Allah with his tongue while his heart is serene in faith, and he has a free Muslim wife, she is not forbidden to him, and he is not an apostate by that; yet apostasy is an irrevocable separation: this therefore settles their disagreement concerning the repudiation of the coerced man. And because it is a formula which, if it were cleared of coercion, repudiation would be imposed through it: when it is found together with coercion, repudiation is not imposed through it; its origin is the formula of the acknowledgment of repudiation. And because for every state with which the status of acknowledgment is not established, the status of production is likewise not established, like the child and the madman. And because it is a meaning that affects separation: when the utterance is found together with coercion, it has no ruling; its origin is apostasy. And because for every contract whose coercion negates the binding force of acknowledgment, it likewise negates the binding force of its production, like sale (al-Mudawwana al-Kubra 5/29, Sharh Sahih al-Bukhari 8/292-293, al-Istidhkar 6/201-203, Ikhtilaf al-Ulama of al-Marwazi 1/175-176, Sharh al-Sunna of al-Baghawi 9/221-222, al-Ifsah 2/175, Tafsir al-Qurtubi 10/184, al-Ishraf 3/427-428 no. 1245, al-Ma'una 1/565, al-Taj wa-l-Iklil 3/43-45, Sharh Mukhtasar Khalil 4/33, al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/249, Tahbir al-Mukhtasar 3/139-140, al-Hawi al-Kabir 10/227-229, al-Bayan 10/70-72, al-Muhadhdhab 2/78, Rawdat al-Talibin 5/356-357, Kanz al-Raghibin 3/817-818, al-Najm al-Wahhaj 7/503-504, Mughni al-Muhtaj 4/470-471, Tuhfat al-Muhtaj 9/374-387, Nihayat al-Muhtaj 6/513-516, al-Dibaj 3/416-417, al-Mughni 7/191, Sharh al-Zarkashi 2/465, Kashshaf al-Qina' 5/270-271, Sharh Muntaha al-Iradat 5/366-367, Manar al-Sabil 3/86-87, I'lam al-Muwaqqi'in 4/51-52, Fath al-Bari 9/390, Umdat al-Qari 20/250).

The Shafi'is and the Hanbalis declared (and it is also the madhhab of the Hanafis who make the coerced man's repudiation occur absolutely, and the purport of the Maliki madhhab) that the coercion must be without right: if the coercion has a right, repudiation occurs, like the coercion of the judge guardian to repudiation after the waiting (tarbbus) if he does not return, and his coercion of the two men he married when precedence is unknown: repudiation occurs; for it is a word imposed upon him with right and is therefore valid, like the Islam of the coerced apostate; and because it is only permitted to coerce him to repudiation so that his repudiation occurs: were it not to occur, the aim would not be attained (al-Hawi al-Kabir 10/232, al-Muhadhdhab 2/78, al-Mughni 7/291, Sharh al-Zarkashi 2/465, Kashshaf al-Qina' 5/271).

Imam Ibn al-Qayyim, may Allah have mercy on him, said: distinction: the sound intention in the coerced man's repudiation. They differed concerning the coerced man who assumes that repudiation occurs through his word and wants it: is it imposed on him? Two opinions, and they are two views among the Shafi'is. The one who imposes it saw that intention accompanied the formula, while he was not coerced upon intention: he therefore enacted the intended repudiation by choice, and it is imposed on him. The one who does not impose it saw that the coerced man's formula is idle speech to which no attention is paid: only mere intention remains, and it does not produce repudiation by itself.

Distinction: equivocation (tawriya) in the coerced man's repudiation. They differed over the case where equivocation was possible for him and he did not use it; the sound view is that repudiation does not occur through it, even if he left it aside; for Allah did not make equivocation obligatory upon the one coerced to the word of disbelief while his heart is serene in faith, although equivocation there is more worthy; but the coerced man's formula was only taken into account because he does not intend its meaning nor want its effect, and he uttered this word only to ransom himself from the harm of coercion: his speech is therefore idle speech like the madman's, the sleeper's and the one without intent, whether he used equivocation or not. It is also the case that requiring equivocation is a nullification of the concession of speaking under coercion and a return to the view of the execution of the coerced man's repudiation: had he used equivocation without coercion, his repudiation would not have occurred: the effect would therefore belong to equivocation, not to coercion, and this is void. It is also the case that the user of equivocation is not imposed repudiation despite his intending to speak through the formula only because he did not intend its referent: and this very meaning is established in coercion; the meaning that prevented occurrence in equivocation is the one that prevented occurrence in coercion (I'lam al-Muwaqqi'in 4/53-54 ; see al-Najm al-Wahhaj 7/503-504, Mughni al-Muhtaj 4/470-471, Tuhfat al-Muhtaj 9/374-387, Nihayat al-Muhtaj 6/513-516).

Question 14: the repudiation of the angry man

Anger is a state of nervous disturbance and mental imbalance that seizes a man when someone offends him by speech or otherwise. The scholars divided it into three categories: one produces repudiation by consensus, one does not produce it by consensus, and one is the object of disagreement; the text then unrolls the positions of the schools, the hadith of Khawla and Ibn al-Qayyim's treatise.

First category: that the man receive its beginnings, so that his reason and mind do not change and he knows what he says and intends it: no problem as to the occurrence of his repudiation, his manumission and the validity of his contracts, by consensus of the scholars, especially if it emanates from him after a wavering of his thought (Ighathat al-Lahfan p. 19, Matalib Uli al-Nuha 5/323, Hashiyat Ibn Abidin 3/244).

Second category: that the anger reach its end, so that the door of knowledge and volition closes upon him and he does not know what he says nor intends it. Ibn al-Qayyim, may Allah have mercy on him, said: no disagreement arises over the non-occurrence of his repudiation; anger is the drowsiness of reason: when anger seizes his reason to the point that he does not know what he says, without any doubt nothing of his words is executed in that state; for the words of the one subject to obligation are executed only with the speaker's knowledge of their emanation from him and of their meaning, and his volition to speak. The first situation excludes the sleeper, the madman, the mubrasm, the drunkard and this angry man; the second excludes the one who uttered the formula without knowing its meaning at all and who is not held by its requirement; the third excludes the one who spoke under coercion although he knew the meaning (Ighathat al-Lahfan p. 19, Matalib Uli al-Nuha 5/323, Hashiyat Ibn Abidin 3/244).

Third category: the one who is intermediate in anger between the two degrees, having exceeded its beginnings without reaching its end in which he would be like the madman: this is the place of disagreement and the object of examination among the scholars. The majority of jurists, Hanafis, Malikis, Shafi'is and Hanbalis, hold that the repudiation of the angry man occurs even if his anger is violent, unless his reason disappears and he becomes like the madman; for the repudiation of people occurs most often in the state of anger: were the non-occurrence of the angry man's repudiation permitted, everyone could say: "I was angry, no repudiation weighs upon me", and this is void. It is established from Ibn Abbas and Aisha that the repudiation of the angry man occurs, and a group of Companions issued the fatwa to that effect (Sharh al-Zarqani 3/280).

The Malikis said: the repudiation of the angry man is imposed on him even if his anger is violent, contrary to some of them; the claim that it belongs to coercion is void; and all of this so long as his reason does not disappear to the point that he does not perceive what emanates from him: otherwise he is like the madman (Hashiyat al-Dasuqi on al-Sharh al-Kabir 3/247, Hashiyat al-Sawi on al-Sharh al-Saghir 5/293). Ibn Hajar al-Haytami, may Allah have mercy on him, said: "No repudiation under ighlaq"; many explained it as coercion, as if the door were closed to him or his view locked; and they forbade explaining it as anger, because of the agreement on the occurrence of the angry man's repudiation. Al-Bayhaqi said: a group of Companions issued the fatwa to that effect, with no opponent among them (Tuhfat al-Muhtaj 9/377). Al-Jamal, may Allah have mercy on him, said: his word "no repudiation under ighlaq", that is, coercion; they explained ighlaq as coercion, for the door was closed to the coerced man or his view locked upon him; and they forbade explaining it as anger, because of the agreement on the occurrence (Hashiyat al-Jamal on Sharh al-Manhaj 4/324).

It is reported in Fath al-Mu'in bi-Sharh Qurrat al-Ayn by Imam Zayn al-Din ibn Abd al-Aziz al-Malibari: they agreed on the occurrence of the angry man's repudiation, even if he alleges the disappearance of his consciousness through anger. Ibn Shata said in his commentary: al-Shams al-Ramli was asked about the oath of repudiation in a violent anger that removes consciousness: does repudiation occur or not? Is a distinction made between conditioning and enactment? Is the swearer believed in his claim of the violence of anger and of non-consciousness? He answered: anger is not taken into account in this; yes, if he lost his reason, he is excused. His word "if he alleges the disappearance of his consciousness" means the disappearance of his perception; and his word "through anger" means through its cause, which relates to the disappearance (I'anat al-Talibin 4/11-12).

As for the Hanbalis, Imam Ibn Rajab, may Allah have mercy on him, said: what emanates from the angry man of repudiation, manumission or oath, he is held accountable for all of it, without disagreement. In the Musnad of Imam Ahmad, from Khawla bint Tha'laba, wife of Aws ibn al-Samit: she returned to her husband; he became angry and declared her forbidden (zihar); he was an old man whose character had spoiled and who was weary; she came to the Prophet to complain of what she endured of his bad character; Allah sent down the verse of zihar, and the messenger of Allah commanded him the expiation of zihar in a long account. Ibn Abi Hatim reported it by another way, from Abu al-Aliyya: Khawla's husband became angry and declared her forbidden; she came to the Prophet and told him, saying that he had not intended repudiation; the Prophet said: "I see nothing except that you have become forbidden to him"; the account is related at length, and at its end it is said that Allah transformed the repudiation into zihar. This man had therefore declared his wife forbidden in the state of his anger, and the Prophet then considered that zihar is repudiation, since he said that she had become forbidden to him by it, that is, that repudiation was imposed on him; when Allah made of it an expiable zihar, he imposed the expiation upon him without annulling it.

From Mujahid: a man of Quraysh came to Ibn Abbas and said: O Ibn Abbas, "I repudiated my wife three times while I was angry"; Ibn Abbas said: Ibn Abbas cannot make lawful for you what has been forbidden to you: you disobeyed your Lord and your wife has become forbidden to you; you did not fear Allah so that He might grant you a way out; then he recited:

"When you repudiate the women, repudiate them for their waiting period."

Surah at-Talaq, 1

purified, without relations; reported by al-Darqutni 3927, and narrated by al-Jawzajani and al-Darqutni with a chain fulfilling the condition of Muslim. Qadi Isma'il ibn Ishaq reported in the book Ahkam al-Qur'an with an authentic chain from Aisha, may Allah be pleased with her: "The idle in oaths is what takes place in dispute, jest and mockery, and the speech upon which the heart does not bind itself; and the oath of expiation is upon every oath you swear upon a serious matter, in anger or otherwise: you will do it or leave it; the binding of the oath in it is therefore the expiation"; and Ibn Wahb reported it likewise from Yunus, from al-Zuhri, from Urwa, from Aisha, and it belongs to the most authentic of chains: this indicates that the hadith reported from her raised to the Prophet "There is no repudiation and no manumission under ighlaq", either is not authentic, or its explanation as anger is not correct. It is established from more than one Companion that they issued the fatwa that the angry man's oath binds and that the expiation is due in it; and what was reported from Ibn Abbas contradicting that, its attribution is not authentic. Al-Hasan said: "The repudiation of the sunna is that he repudiate her once, purified, without relations; and he has the choice between that and her three menses; should it appear to him to take her back, he is most worthy of it; if he is angry, there are three menses, or three months if she does not menstruate, so that his anger departs." And al-Hasan said: "Allah has indeed clarified, so that none regret a repudiation, as Allah commanded it"; reported by qadi Isma'il.

Many scholars set the allusions together with anger like the explicit, in that repudiation occurs through them outwardly, and that their explanation as other than repudiation is not accepted together with anger; and among them the one who set anger with the allusions as intention, thereby making repudiation occur inwardly too: how then could anger be set as preventing the occurrence of the explicit?!

Imam al-Bahuti, may Allah have mercy on him, said: the angry man is subject to obligation in the state of his anger for what emanates from him: disbelief, the killing of a soul, taking property without right, repudiation and the rest. Ibn Rajab said in Sharh al-Arba'in al-Nawawiyya (Jami' al-Ulum wa-l-Hikam p. 149): what emanates from the angry man of repudiation, manumission or oath, he is held accountable; and in one copy: all of it without disagreement. He argued for it by sound evidences, among them the hadith of Khawla bint Tha'laba, wife of Aws ibn al-Samit, cited in the chapter of zihar, in which her husband became angry and declared her forbidden; she came to the Prophet and told him, saying that he had not intended repudiation; the Prophet said: "I see nothing except that you have become forbidden to him"; reported by Ibn Abi Hatim; and the account is related at length, and at its end it is said: "Allah transformed the repudiation and made of it a zihar". And among this what was reported from Ibn Abbas, Aisha and others concerning it, and he expounded at length; it is found in the commentary of the sixteenth hadith of the mentioned hadiths, and he disapproved of whoever says otherwise, for he is subject to obligation according to what the traditions indicate. But if he becomes angry to the point of fainting or that the veil of unconsciousness covers him, his repudiation does not occur in that state, because of the disappearance of his reason: assimilated to the madman (Kashshaf al-Qina' 5/270).

Imam al-Ruhaybani the Hanbali, may Allah have mercy on him, said: repudiation occurs from the one who became angry so long as his reason has not disappeared totally, for he is subject to obligation in the state of his anger for what emanates from him: disbelief, killing, taking property without right, repudiation and the rest. Ibn Rajab said in Sharh al-Arba'in al-Nawawiyya: what emanates from the angry man, he is held accountable for it, all of it without disagreement; he argued for it by the hadith of Khawla bint Tha'laba cited in zihar, and by what was reported from Ibn Abbas and Aisha, and he expounded at length. His word "contrary to Ibn al-Qayyim" is examined, for Ibn al-Qayyim did not say that the angry man's repudiation never occurs, but he devoted to this issue a treatise he named "Ighathat al-Lahfan fi hukm talaq al-ghadban" (The relief of the distressed on the ruling of the angry men's repudiation), in which he detailed the three categories of anger described above, and in which the legal evidences indicate the non-execution of the repudiation, the manumission and the contracts of the third category, in which choice and consent are taken into account: it is a branch of ighlaq as the imams explained it. The author seems to have alluded to Ibn al-Qayyim's contrary in this third category, whereas Ibn al-Qayyim did not affirm non-occurrence in it, but inclined to it; he mentioned these three categories likewise in the Hadi al-Nabawi in brief; and in this treatise he expounded and cited many evidences from the Book, the Sunna and the imams' statements. He said: as for consideration and the principles of the Law, they are counted by ways, and he cited twenty-four ways. He said in the Furu': it enters their speech that the one who becomes angry to the point of fainting or that the veil covers him; Shaykh Taqi al-Din said: it enters their speech without any doubt (Matalib Uli al-Nuha 5/322-323).

As for the Hanafis, Imam Ibn Abidin, may Allah have mercy on him, said: a matter concerning the repudiation of the dazed man. He said in the Khayriyya: he erred who explained it here as perplexity, for perplexity, that is, wavering in the matter, does not imply the loss of reason. Nazm was asked about the one who repudiated his wife three times in the judge's session while he was angry and dazed; Nazm answered: the madh belongs to the kinds of madness, so repudiation does not occur; and if he is accustomed to being seized by it, he is believed without proof. I say: the hafiz Ibn al-Qayyim the Hanbali has a treatise on the repudiation of angry men, in which he says they fall into three categories, those described above, summarized from the Sharh al-Ghaya al-Hanbaliyya. He however indicated in the Ghaya the contrary in this, saying: the repudiation of the one who became angry occurs, contrary to Ibn al-Qayyim. This conforming view accords with our school according to what passed concerning the dazed man, but it is objected that we do not take the idiot's words into account, although it is not required thereby that he reach a state in which he does not know what he says. It can be answered that the idiot, being permanent in a single state that can be delineated, was taken into account and one contented himself with the mere deficiency of reason, unlike anger, which occurs in some states; but the madh is objected, for it is likewise. What appears to me is that neither the dazed man nor the angry man need be at the point of not knowing what they say, but it suffices in them that delirium predominate and that the serious be confused with the jest, as is the fatwa for the drunkard; and the definition of the madh by the loss of reason does not contradict it, for madness has kinds: it was explained in the Bahr as derangement of reason, including idiocy, the mubrasm, fainting and the madh; and what confirms it is the word of some: the reasonable man is he whose speech and acts are upright, except rarely, and the madman is his opposite. Some madmen know what they say and intend it, then display in their session what contradicts it; if the true madman can know what he says and intend it, the others are more worthy of it: what one must rely upon concerning the dazed man and the like is therefore the attachment of the ruling to the predominance of derangement in his words and acts outside his habit; and it is said likewise of the one whose reason became deranged through old age, illness or a sudden trial: as long as he is in the predominance of derangement, his words are not taken into account, even if he knows them and intends them; for this knowledge and this volition are not taken into account, lacking sound perception, as with the discerning child. Problematic is what is in the hashiya of the Bahr, declared in the Fath and the Khaniyya and others: if he repudiated and two witnesses testify before him "you made an exception", while he does not remember it: if he is at the point that, when he becomes angry, he does not know what he says, adopting their testimony is feasible; otherwise not. This is very problematic, unless one answers that what he means by his not knowing what he says is that, through the strength of his anger, he may forget what he said and not remember it afterwards, not that he makes run on his tongue what he does not understand or does not intend, for he is then without any doubt at the highest degree of madness; and what confirms it is that, in this branch, he knows that he repudiated and intends it, but does not remember the exception because of the violence of his anger. Then I saw what confirms that answer: he said in the Waluwaljiyya: if he is in a state such that, if he becomes angry, what he will not remember afterwards runs on his tongue, it is permitted him to rely on the word of the two witnesses; and his word "which he will not remember afterwards" is explicit for what we said (Hashiyat Ibn Abidin 3/244).

Imam Ibn al-Qayyim the Hanbali, may Allah have mercy on him, went, in his penetrating treatise "Ighathat al-Lahfan fi hukm talaq al-ghadban" (which the preceding words of Ibn Abidin indicate), so far as to say that the repudiation of the one whose state is such does not occur, and he devoted a treatise to it. He argued for it by the hadith of Aisha, mother of the believers, may Allah be pleased with her, that the Prophet said:

"There is no repudiation and no manumission under incapacitation (ighlaq)."good hadith, reported by Abu Dawud 2193, Ibn Majah 2046 and Ahmad 26403

Abu Dawud said: "under ghilaq", then said: ghilaq, I think it is anger. Hanbal said: I heard Abu Abdillah, that is, Ahmad ibn Hanbal, say: it is anger; it was mentioned by al-Khallal and Abu Bakr Abd al-Aziz; and Ahmad's wording means anger. Abu Bakr said: I asked Abu Muhammad, Ibn Durayd, Abu Abdillah and Abu Tahir, the grammarians, about his word "There is no repudiation and no manumission under ighlaq"; they said: he means coercion, for when one is coerced, his view locks upon him; and entering into this meaning are the mubrasm and the madman. I said to them: and anger too? He said: anger also enters into it, for ighlaq has two aspects: one is coercion, and the other what befell him through that by which his view locks upon him.

And this is the purport of Bukhari's chaptering, for he said in his Sahih: "Chapter: repudiation under ighlaq, coercion, drunkenness and madness", distinguishing repudiation under ighlaq from these aspects; and it is also the purport of al-Shafi'i's speech, for he names the vow of obstinacy and anger "the oath of ghalaq" and "the vow of ghalaq", this formula meaning the vow of anger; and this is the word of more than one imam of the language; and the view by virtue of it is the purport of the Book and the Sunna, of the Companions' and the tabi'un's statements and of the imams of the jurists, and the purport of sound analogy, consideration and the principles of the Law. Then he mentioned five ways from the Quran, three from the Sunna, two ways from the Companions, and twenty-five ways of consideration and the principles of the Law; and he was the first to divide anger into three categories, and these three categories were transmitted by Ibn Abidin the Hanafi, al-Ruhaybani the Hanbali and others.