Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > The exception and separation (baynouna)
Contents
Updated on 24 September 2026 at 7:46 PM
This section concludes the chapter on divorce (talak) with a study of the conditions for the validity of the exception pronounced by the swearing husband ("if Allah wills"), followed by the final cases of separation. It sets out the positions of the four schools (Hanafi, Maliki, Shafi'i and Hanbali) on five conditions: continuity of speech, intention, pronunciation by the tongue, audibility, and the fact that the exception must not swallow the whole of what is excepted from. It ends with the two types of irrevocable separation (baynouna) and the rulings that apply to the woman divorced three times whose husband denies the divorce.
As for one who makes the divorce dependent on the will of someone whose will is valid and whose will can be arrived at and known, there is no disagreement in the madhhab of Malik: the divorce stands on the choice of the one on whose will the divorce was made conditional. As for making the divorce dependent on the will of someone who has no will, there is disagreement over it in the madhhab: some say the divorce binds him, and some say it does not. The minor and the insane fall under this: whoever likened it to joking divorce, holding joking divorce to be effective, said this divorce is effective; and whoever took into account the existence of the condition said it is not, because the condition is absent here (Bidayat al-Mujtahid, 2/59).
The conditions for the validity of the exception in divorce: for the exception to be valid in divorce, whether it is linguistic, such as "You are divorced three times, except one", or legal, such as "You are divorced if Allah wills", certain conditions are required.
First condition: that the speech be connected. The jurists of the four schools agreed that the speech must be connected, that is, the exception being attached to what is excepted from, such that the two count as one statement by custom. If they are separated by words or by silence, the exception is void and the ruling of divorce stands. If he says "You are divorced three times", then falls silent or utters foreign words, then says "except one"; or says "You are divorced", then falls silent, then says "if Allah wills", the divorce takes effect: once he fell silent, the ruling of the first statement was established, and the exception or condition that comes after it is a retraction which is not accepted.
If he remains silent for the length of a breath, a sneeze or a burp, or if his tongue is heavy so that his hesitation is prolonged, and he then says "if Allah wills", the exception is valid: this kind of interruption is among what cannot be guarded against, so it is not counted as a separation and is given the ruling of connection out of necessity.
And because the separated exception, were it valid, would mean the divorcer makes an exception whenever he regrets, with no need for the man who makes her lawful (the muhallil). Validating the separated exception would amount to stripping all contracts, sales and marriages, of their binding force, and stripping them of their role as conditions delimiting their rulings: a man would sell, marry or divorce, then make an exception whenever he wished. Were this valid, there would be no need for a second husband so that she may become lawful to the first after he divorced her three times; rather he would be commanded to make the exception so that the three divorces would be annulled by it. Thus Allah, the Most High, and His Messenger explained the rulings on breaking oaths; had the separated exception been permitted, Allah would have commanded it so that neither the breaking of the oath nor the sin would fall upon him.
Al-Kasani (may Allah have mercy on him) said: its condition is that the exception be joined to what precedes it of the speech, in the absence of necessity: if separation between the two occurs by a pause or otherwise, without necessity, it is not valid. This is the view of most of the Companions (may Allah be pleased with them) and most of the scholars, except for a report transmitted from Abdallah ibn Abbas (may Allah be pleased with them both) that this is not a condition and that the exception is valid whether connected or separated (Bada'i' al-Sana'i', 3/154-155; al-Mabsut, 8/143; al-Ikhtiyar, 3/176; Tabyin al-Haqa'iq, 3/116; al-Fatawa al-Hindiyya, 6/396; al-Taj wa-l-Iklil, 3/77; Sharh Mukhtasar Khalil, 4/53-54; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 3/283; al-Bayan, 10/131-132; al-Najm al-Wahhaj, 7/531; Mughni al-Muhtaj, 4/487; Tuhfat al-Muhtaj, 9/433-434; al-Dibaj, 3/433; al-Mughni, 9/412; Kashshaf al-Qina', 5/311; al-Rawd al-Murbi', 2/383; Manar al-Sabil, 3/108-109).
The Hanafis said: if a man writes to his wife "As for what follows: you are divorced, if Allah wills", then if he wrote "if Allah wills" joined to his writing "As for what follows: you are divorced", she is not divorced; and if he paused after writing "you are divorced" and then wrote "if Allah wills", she is divorced, for writing from the absent is like utterance from the present (al-Muhit al-Burhani, 3/527; Sharh Fath al-Qadir, 4/68).
The Shafi'is, in the more authentic view, the Hanbalis according to the madhhab, and some Malikis, stated that he is required to intend the exception before completing what is excepted from, that is, before finishing the oath. If he says "You are divorced three times, except one", the exception is not counted unless he intended it before completing his words "You are divorced three times", for the oath is only reckoned once complete; and this holds whether he intended it at its beginning, its end or in between: so intention is not required at the start, and it no longer suffices after completion (al-Bayan, 10/131-132; al-Najm al-Wahhaj, 7/531; Mughni al-Muhtaj, 4/487; Tuhfat al-Muhtaj, 9/433-434; al-Dibaj, 3/433; Sharh al-Zarkashi, 3/315; al-Furu', 6/309; al-Insaf, 11/27; Kashshaf al-Qina', 5/311; al-Rawd al-Murbi', 2/383; Matalib Uli al-Nuha, 5/375).
The Malikis according to the madhhab, the Shafi'is in the view opposed to the more authentic one, and some Hanbalis such as the shaykh of Islam Ibn Taymiyya and Ibn al-Qayyim, held that his intention is valid even after he has finished his words. Al-Mawwaq (may Allah have mercy on him) said: this is the more authentic view, for since the wording of the exception is not required to come before the last letter of the oath, neither is it required in the intention: mere intention has no effect, and if mere intention could release the oath, its wording would be dispensable, which is invalid by consensus (al-Taj wa-l-Iklil, 2/282; Sharh Mukhtasar Khalil, 3/55 and 4/53-54; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 2/404 and 3/283; Tahrir al-Mukhtar, 2/464).
Qadi Abd al-Wahhab (may Allah have mercy on him) said: it is not among its conditions that the intention accompany the formation of the oath, for that would entail that no oath entered into without that intention could ever be released, and that is invalid. If he begins without intending it, then intends it before finishing the oath, it is permitted; and if he finished pronouncing it and then uttered it in a connected manner, without delay beyond the limit of one who comes without separation, it is valid according to Malik, while according to Ibn al-Mawwaz it is not. The basis of Malik's view is the generality of the report, and the comparison with the case where he intended it after completion, because of the connection together with the intention; the basis of Ibn al-Mawwaz's view is that the oath ended stripped of any exception, so its coming after it has no effect, like the delay. The first view is the more authentic (al-Ma'una, 1/420).
The shaykh of Islam (may Allah have mercy on him) was asked about a man who swore divorce and then made an exception after a pause of the length of a possible utterance. He answered: the divorce does not take effect in this case, nor any expiation upon him; and if he is told "Say: if Allah wills", that benefits him too, even if the exception occurred to him only when it was said to him. And Allah knows best (Majmu' al-Fatawa, 33/238).
He also said: the scholars have two views concerning the exception that benefits.
Imam Ibn al-Qayyim (may Allah have mercy on him) said: al-Jawzajani related in his biography: Safwan related to me, transmitting from Omar, that al-Awza'i (may Allah have mercy on him) was asked about a man who swore "By Allah, I will certainly do such and such", then remained silent for an hour without speaking or reminding himself of the exception; then someone beside him said to him "Say: if Allah wills", and he said "if Allah wills". Does this expiate his oath? He replied: I hold that he has made the exception.
And by the same chain of transmission, from al-Awza'i: he was asked about a man to whom a relative handed some dirhams; he said "By Allah, I will not take them"; the relative said "By Allah, you will take them"; when he heard him say that, he made the exception in his heart and said "if Allah wills". Between his saying "By Allah, I will not take them" and his saying "if Allah wills" there was no speech except his waiting to hear what his relative would say: is his oath expiated if he takes them? He replied: he has not broken his oath, for he has made the exception.
There is no doubt that this is more perceptive and more authentic than the view of whoever required the intention from the moment of entering into the oath: this view truly accords with the authentic sunnah of the Prophet (peace and blessings of Allah be upon him), and with the report about his brother Sulayman, that had he said "if Allah wills" after swearing, when the king reminded him, it would have benefited him; and it accords with analogy, with the interests of Allah's servants and with the sense of the lenient hanifi religion. If the requirement of intention at the start of the speech and of strict continuity were taken into account, the concession of the exception would vanish and those who benefit from it would be few, apart from one who has trained himself on this view and keeps it in mind.
Some Malikis restricted this and said: the exception is not beneficial unless its author intended it before completing the oath; as some Shafi'is said, as did Ibn al-Mawwaz: the condition of its benefit is that it be concurrent, even if only with the last letter of the oath.
Malik required none of that; rather he said in his Muwatta (and this is the wording of its narration): Abdallah ibn Yusuf said: the best I have heard concerning the breathing pause (thunya) in the oath is that it belongs to its speaker as long as he does not cut off his speech, so long as it flows continuously, one part following another before he falls silent; when he falls silent and cuts off his speech, there is no breathing pause for him. End of quotation. And I have never seen any of the imams require the intention from the moment of beginning the oath or before completion: this comes only from the interference of the later followers (I'lam al-Muwaqqi'in, 4/79-80).
The Hanafis held that the intention to make the exception is not required at all. If he says to her "You are divorced, if Allah wills" without knowing what it is that Allah willed, the divorce does not take effect, for divorce accompanied by an exception is not an act of effecting, so his knowing or not knowing are the same. And if he says to her "You are divorced" and then "if Allah wills" passes from his tongue without intent, while his intent was to effect the divorce, the divorce does not take effect: the exception has come about in reality, and speech accompanied by an exception is not an act of effecting (al-Muhit al-Burhani, 3/538; al-Ikhtiyar, 3/176; Hashiyat Ibn Abidin, 8/149; al-Fatawa al-Hindiyya, 1/460).
The condition: the jurists differed over one who divorces by his tongue and makes the exception in his heart without uttering it, as when he says "You are divorced" and intends in his heart "if Allah wills" without uttering it: does the divorce bind him because pronunciation is required, or is the exception made in the heart valid?
The majority of the jurists, Hanafis, Malikis, Shafi'is and Hanbalis, held that pronunciation is required: if he says "You are divorced" with his tongue and then intends in his heart "if Allah wills", the divorce binds him; if he says "You are divorced three times" and then intends in his heart "except one", the threefold divorce binds him, and it is not accepted in the ruling, for he explicitly stated the three and part of them does not fall away by intention; he is sinful between himself and Allah according to one of the two views held by the Shafi'is and the Hanbalis; the second view: no.
Imam al-Nawawi (may Allah have mercy on him) said: his words (peace and blessings of Allah be upon him), "had he said: if Allah wills, he would not have broken his oath", indicate that the exception is made by speech and that intention does not suffice in it. On this al-Shafi'i, Abu Hanifa, Malik, Ahmad and all the scholars concurred, apart from what is related from some Malikis by analogy with Malik's view that the exception by mere intention, without wording, is valid (Sharh Sahih Muslim, 11/119-120).
Qadi Abd al-Wahhab (may Allah have mercy on him) said: the exception has no effect except pronounced; if he intended it or resolved on it without pronunciation, it does not benefit him. The basis of this is the Prophet's words (peace and blessings of Allah be upon him): "Whoever swears and then says: if Allah wills, has returned without breaking his oath"; this indicates pronunciation, for it is a lifting of the ruling of the oath, like the expiation: just as if he intended that his slave be free without the expiation, it is not valid except that he pronounce it (al-Ma'una, 1/419; see also Bidayat al-Mujtahid, 1/302; al-Taj wa-l-Iklil, 2/282; Sharh Mukhtasar Khalil, 3/55 and 4/53-54; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 2/404 and 3/283; Tahrir al-Mukhtar, 2/464).
Imam al-'Amrani (may Allah have mercy on him) said: al-Shafi'i stated: if he divorced by his tongue and made the exception in his heart, the divorce binds him. In sum: if he says to his wife "You are divorced" while intending in his heart "if Allah wills", it is accepted neither in the ruling nor between him and Allah, the Most High: the wording is stronger than the intention and cannot be annulled by it, just as the Book and the sunnah cannot be abrogated by analogy.
If he says to her "You are divorced three times" while intending in his heart "except one", it is not accepted in the ruling, for he explicitly stated the three and part of them does not fall away by intention, just as if he had intended "if Allah wills". Is he sinful between himself and Allah, the Most High? Two views: the first, that of Abu Ali al-Tabari: he is sinful, as if he had said "my wives are all divorced" and excepted some of them by intention; the second, which is the view of Shaykh Abu Hamid: he is not, for "three" does not denote anything less than that number: it is the name of three units, so part of it cannot be dropped by intention, unlike "women", which is a general noun that may denote a restriction.
Likewise if he says to his four wives "You are all four divorced" and excepts some of them by intention: it is not accepted in the ruling, and his being sinful between himself and Allah, the Most High, follows the two views (al-Bayan, 10/133-134; see also al-Muhadhdhab, 2/87; al-Hawi al-Kabir, 10/181-182).
The Hanbalis said: if he says to her "You are divorced three times" and excepts in his heart "except one", the three take effect: the number is explicit as to what it embraces and is not lifted by intention, the wording being stronger; were it lifted by intention, the outweighed would prevail over the outweighing. The three bind him in the ruling by consensus; as for the inward, he is sinful between himself and Allah, the Most High, according to the correct view of the madhhab. The same disagreement applies if he says "my four wives are divorced" and excepts one in his heart; and if he did not say "four", there are two narrations on the ruling (al-Mughni, 7/319; al-Kafi, 3/189; al-Mubdi', 7/308; al-Insaf, 9/33-34; Kashshaf al-Qina', 5/312).
Imam Ibn al-Qayyim (may Allah have mercy on him) said: does making the exception require speaking it, or does it benefit even if it is in the heart without pronunciation? The well-known position among the madhhabs of the jurists is that it does not benefit him until he pronounces it. Ahmad stated this: in the narration of Ibn Mansur, he is not permitted to make the exception in himself until he speaks it. Yet Ahmad's companions and others said: if he says "my wives are divorced" and excepts in his heart "except so-and-so", his exception is valid and she is not divorced; if he says "my four wives are divorced" and excepts in his heart "except so-and-so", it does not benefit him. They distinguished between the two: the first is not an explicit statement of the four, so restriction by intention is possible, unlike the second. On this basis they are bound to hold valid his being conditioned by a condition by way of intention, for its endpoint is the restriction of an absolute, and the operation of intention in it takes precedence over its operation in restricting the general: the general embraces individuals by its coinage, whereas the absolute does not embrace all states by its coinage, so restricting it by intention takes precedence over restricting the general by intention.
The author of al-Mughni and others said: if he says "You are divorced" and intends in his heart, without pronunciation, "if you enter the house" or "after a month", he is sinful between himself and Allah, the Most High; and is it accepted in the ruling? Two narrations. Ahmad said, in the narration of Ishaq ibn Ibrahim, regarding one who swore not to enter the house and then said "I intended a month": it is accepted from him; likewise if he said "If you enter the house of so-and-so, you are divorced" and intended that hour or that day, his intention is accepted. He said: the other narration does not accept it: if a man says to his wife "You are divorced" and intended in himself "to a year", she is divorced, with no regard to his intention; and if he said "You are divorced" and then said "I intended: if I entered the house", he is not believed. The shaykh said: the two narrations can be reconciled by taking his statement on acceptance as referring to his being sinful, and his statement on non-acceptance as referring to the ruling: there is then no contradiction between them.
He said: the difference between this form and the preceding one, namely the case of "my wives are divorced" while wanting some of them, is that wanting part of the general is very common, while wanting a condition without mentioning it is uncommon and comes close to the exception; it may be said that this falls within the forms of restriction. End of his words. His statement implies that the swearer who wants the condition is sinful, and that his intention is accepted in the ruling according to one of the two narrations; and no qualified jurist nor scholar distinguishes between the condition by Allah's will, where it is valid and beneficial, and other conditions. Ahmad said, in the narration of Harb: if the man is wronged and makes the exception in himself, I hope it is permitted when he fears for himself; he did not state any disagreement in the case of the wronged man but spoke in general terms, and his specific and restricted statements override his general and absolute ones: this is his madhhab.
The Hanafis said: if he writes the divorce and makes the exception with his tongue, or divorces with his tongue and makes the exception in writing, is it valid? There is no narration on this issue, and it should be valid; thus it is in al-Zahiriyya. The author of al-Durr al-Mukhtar said: "neither is required" of them "the intent nor the pronunciation": if he pronounces the divorce and writes the exception joined to it, or the reverse, or removes the exception after writing it, the divorce does not take effect. Ibn Abidin commented: his words "nor the pronunciation of the two" refer to the divorce and the exception; his words "or the reverse" mean he wrote the divorce and pronounced the exception; his words "or removes the exception, etc." indicate a fourth case: that in which the exception written after the divorce is then removed.
The jurists differed: must the wording be audible, or is the movement of the tongue sufficient for the exception? The Hanafis have two views on the issue. The first: it is a condition that it be audible; if he moves his tongue with it without it being heard, it is not valid: this is the view of al-Hinduwani, preferred by al-Kasani and the author of al-Durr al-Mukhtar. The second, which is the choice of al-Karkhi: it is not required, and this is the correct view: if he moves his tongue in making the exception, it is valid even if it is not audible.
Imam Ala al-Din al-Samarqandi (may Allah have mercy on him) said: if he moved his tongue in making the exception and articulated its letters but did not hear, it is an exception: this is speech, and the condition is not hearing; do you not see that the exception of the deaf is valid even though he does not hear (Tuhfat al-Fuqaha, 2/193)?
Al-Kasani (may Allah have mercy on him) said: as for hearing, it is not a condition, since it is speech: the exception of the deaf is valid even though he does not hear. The correct view is what the jurist Abu Ja'far said: the articulated letters, although they are speech according to al-Karkhi and according to us, are an indication of speech and an expression of it, not speech itself, whether its author is absent or present; the articulated letters do not exist here, because letters do not come about without sound, and articulated letters do not come about without sounds cut off by a specific segmentation: if the sound does not exist, the letters do not exist, and neither the speech, according to him, nor its indication, according to us, exists, so it is not an exception. Allah grants success (Bada'i' al-Sana'i', 3/155; al-Muhit al-Burhani, 3/536).
The author of al-Durr al-Mukhtar said: "audible", such that if someone brought his ear close to his mouth he would hear it: so the exception of the deaf is valid. Ibn Abidin (may Allah have mercy on him) commented: his words "audible" are the view of al-Hinduwani, and it is the correct one as stated in the Bada'i'; according to al-Karkhi it is not a condition. His words "such that..." indicate that the audible means what is characteristically heard even if its author does not hear it, for instance because of the multitude of sounds (al-Durr al-Mukhtar with the Hashiya of Ibn Abidin, 3/368; al-Ikhtiyar, 3/176; al-Fatawa al-Hindiyya, 1/460).
The Malikis said: pronunciation of the exception with the movement of the tongue is required, but not that he hear himself: the secret utterance suffices, by the movement of the tongue, to the point of moving his lips without hearing himself; proclaiming it aloud is not required. But if he passed it through his heart without pronunciation, it brings him no benefit (al-Taj wa-l-Iklil, 2/22 and 283; Sharh Mukhtasar Khalil, 3/55-56; Sharh al-Zarqani, 3/96; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 2/404; Tahrir al-Mukhtar, 2/364; Hashiyat al-Sawi 'ala al-Sharh al-Saghir, 4/178).
The Shafi'is said: he is required to pronounce the exception such that he hears himself, if his hearing is sound and without impediment; otherwise it is not accepted. Ibn Hajar al-Haytami (may Allah have mercy on him) said: he is required to pronounce it such that he hears himself if his hearing is sound and without impediment; otherwise it is not accepted. Al-Shirwani said, commenting on these words: it is stated in al-Anwar: the fifth of the conditions of the exception is that others hear him; otherwise her word prevails in denying it, and it is ruled that the act occurred if she swore (Tuhfat al-Muhtaj with the Hashiya of al-Shirwani, 9/436; Nihayat al-Muhtaj, 6/538; al-Dibaj, 3/433).
Ibn al-Qayyim (may Allah have mercy on him) said: is he required to hear himself, or is the movement of his tongue in making the exception sufficient even if it is such that he does not hear it? Ahmad's companions and others required that it be such that he or another hears it; yet there is no evidence for this in language, custom or law, and there is no consensus on the issue.
He said: Abu Hanifa's companions said, in the wording of the author of al-Dhakhira: the condition of the exception is that he speak the letters, whether heard or not, according to Shaykh Abu al-Hasan al-Karkhi; the jurist Abu Ja'far used to say: he must hear himself; and such was the ruling of Shaykh Abu Bakr Muhammad ibn al-Fadl. The shaykh of Islam Ibn Taymiyya inclined to this view. Success is with Allah: this is part of what relates to the outlet of the exception, and you may not come across it in any other book (I'lam al-Muwaqqi'in, 4/81).
The people of knowledge agreed: if the husband says to his wife "You are divorced three times, except three times", it is not valid: it is a retraction and an annulment, not an exception; she is divorced three times by consensus.
Imam Ibn al-Mundhir (may Allah have mercy on him) said: everyone whose reports we preserve among the people of knowledge agreed that if a man says to his wife "You are divorced three times, except three times", she is divorced three times (al-Ishraf, 5/243-244; al-Ijma', 414-415; al-Awsat, 9/288; see also Fatawa al-Saghdi, 1/340; al-Mabsut, 6/91-92; Tuhfat al-Fuqaha, 2/194; Bada'i' al-Sana'i', 3/155-156; al-Kafi, 268; al-Taj wa-l-Iklil, 3/77-78; Sharh Mukhtasar Khalil, 4/53; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 3/23; Hashiyat al-Sawi 'ala al-Sharh al-Saghir, 5/357 and 359; al-Hawi al-Kabir, 10/182, 248 and 251; al-Bayan, 10/125-126; Mughni al-Muhtaj, 4/487; al-Najm al-Wahhaj, 7/530-531; al-Dibaj, 3/433-434; al-Mughni, 7/321; al-Kafi, 3/187-188; Kashshaf al-Qina', 5/309-310; al-Rawd al-Murbi', 2/382; Manar al-Sabil, 3/108).
Imam al-Shafi'i (may Allah have mercy on him) said: the exception is only permitted if something of what was named remains by which something of what occurred may occur; but if nothing of what was named remains of what is excepted, the exception is not permitted: it is then impossible (al-Umm, 5/187).
Divorce is, by nature, revocable and lasting, except in three cases:
The separation is of two types. The Hanafis said: separation is of two types, major and minor. The minor is that in which the woman becomes lawful to her husband after their separation, through a new marriage, without her having married another man. The major is that in which she only becomes lawful to him through a new marriage after having married another man (Bada'i' al-Sana'i', 3/108; Hashiyat Ibn Abidin, 3/782).
Ibn Taymiyya (may Allah have mercy on him) said: separation is of two types: the greater separation, which is the effecting of separation resulting from the threefold divorce, after which the woman becomes forbidden until she marries another man; and the lesser separation, after which the husband may marry her again by a new contract, during the waiting period or after it (Majmu' al-Fatawa, 32/313-314).
This concerns the woman whose marriage has been consummated; the same applies to the non-consummated wife, according to the jurists of the four schools, if the husband says to her "You are divorced three times" in a single formula, or says "You are divorced, you are divorced, you are divorced" intending the three: she does not become lawful to him until she marries another man, and it is a greater separation in her case. Ibn Hubayra (may Allah have mercy on him) said: they agreed that if the husband says to the non-consummated wife "You are divorced three times", she is divorced three times (al-Ifsah, 2/174). This issue has already been dealt with in detail.
Imam Ibn al-Mundhir (may Allah have mercy on him) said: the people of knowledge agreed that whoever divorces his non-consummated wife with an irrevocable divorce is thereby separated from her: she only becomes lawful to him through a new marriage, and there is no waiting period for her. They differed over the man who divorces the non-consummated wife three times in a single word.
One group said: she does not become lawful to him until she marries another man: this is the view of Ibn Abbas, Abu Hurayra, Abdallah ibn Amr ibn al-As, Abdallah ibn Omar, Anas ibn Malik and Ibn Mas'ud. The same was held by Sa'id ibn al-Musayyib, Ibn Sirin, Ibn Ma'qil, 'Ikrima, al-Nakha'i, al-Cha'bi, Sa'id ibn Joubayr, al-Hakam, Malik, Ibn Abi Layla, al-Thawri, al-Awza'i, al-Shafi'i, Ahmad, Abu Thawr and the people of opinion. It is also reported from Ali and Zayd. Abu Bakr said: this is our position. Sa'id ibn Joubayr, Tawus, Abu al-Sha'tha', 'Ata' and Amr ibn Dinar used to say: whoever divorces the virgin three times, it is a single divorce in her case.
The reports from Ibn Abbas differ: Tawus reported from him that he said "In the time of the Messenger of Allah (peace and blessings of Allah be upon him), Abu Bakr and two years of Omar's caliphate, the threefold divorce counted as one divorce"; Sa'id ibn Joubayr, Mujahid, 'Ata' and Malik ibn al-Harith reported from Ibn Abbas the opposite of Tawus's narration (al-Ishraf 'ala Nukat Masa'il al-Khilaf, 5/187-188; al-Awsat, 9/151 and 155).
If the man says to his non-consummated wife "You are divorced, you are divorced, you are divorced", or "You are divorced and divorced and divorced", without having intended the three with the first formula, a single divorce takes effect according to the majority of the jurists, Hanafis, Shafi'is and Hanbalis: she is thereby separated and nothing that follows attaches to it, for he distinguished the formulas; a single divorce therefore took effect with the first and she was separated by it, and nothing that follows takes effect because she is already separated by it. There is no waiting period for her, because the marriage was not consummated; neither the second nor the third divorce takes effect, for no place remains for their occurrence: both are void, and he is permitted to conclude a new contract with her. This differs from his saying "You are divorced three times", for in that case the three divorces take effect together with the first wording, without ordering (Malik's Muwatta in the narration of Muhammad ibn al-Hasan, 2/516; al-Mabsut, 6/89; al-Binaya, 5/354; al-Hawi al-Kabir, 10/189-190; al-Muhadhdhab, 2/84-85; al-Bayan, 10/115-116; al-Ifsah, 2/174; al-Mughni, 7/367).
The Malikis hold that the man who says to the non-consummated wife "You are divorced, you are divorced, you are divorced" in coordinated formulas divorces her three times: every husband holds the power to effect the threefold divorce upon her with a single formula; it is therefore permitted for him to effect it with three coordinated formulas, as with the consummated wife.
Ibn Rushd (may Allah have mercy on him) said: if he says to the non-consummated wife "You are divorced, you are divorced, you are divorced" in a continuous flow, it is three divorces according to Malik; Abu Hanifa and al-Shafi'i said: a single divorce takes effect. Whoever likened the repetition of the formula to the number, by his saying "I have divorced you three times", said the threefold divorce takes effect; and whoever holds that with a single formula she is already separated from him said that neither the second nor the third divorce takes effect upon her (Bidayat al-Mujtahid, 2/60). This issue has been dealt with in detail above.
The woman who knows she has been divorced three times while the husband denies it must not give herself to him: when the husband divorces his wife three times and she is certain of it, it is not permissible for her, by the agreement of the four schools, to give herself to him.
The Hanafis said: whoever divorces his wife three times and then seeks her, she repels him from herself and she may kill him. If two just witnesses testify that her husband divorced her three times while he denies it, and they then die or are absent before testifying before the judge, it is not permitted for her to remain with him or let him come near her. If the husband swears to that while the witnesses are dead, and the judge returns her to him, it is not permitted for her to remain with him: she should ransom herself with her wealth or flee from him; if she cannot, she kills him as soon as she knows he is coming near her, and she does not give herself to him in any manner, for that amounts to permitting fornication. Ismail al-Zahid (may Allah have mercy on him) used to say: let her give him to drink that which breaks his desire; if she cannot, she kills him when he seeks her: if he sought her wealth, she would have the right to kill him to repel him from her wealth; if he seeks fornication with her, she has all the more right to kill him to repel the assault on her person. But she should kill him with a draught (a potion) and not with a weapon: if she kills him with a weapon, retaliation becomes obligatory, and she has no right to take her own life.
If she flees from him, it is not permitted for her, in the ruling, to observe her waiting period and marry another husband; as for what is between her and Allah, the Most High, if she flees, it is permitted for her to observe her waiting period and marry another (Mukhtasar Ikhtilaf al-'Ulama, 2/452; al-Mabsut, 10/183; al-Muhit al-Burhani, 3/369; Hashiyat Ibn Abidin, 3/421; al-Fatawa al-Hindiyya, 5/131).
The Malikis said: it is not permissible for the divorced woman to give herself to him if she knows of her separation from him, and she has no proof to establish before a ruler or the assembly of the Muslims so that they separate them. Adornment is forbidden to her unless she is coerced; coercion is painful fear of a beating, imprisonment, killing or seizure of property; she must escape from it as an obligation, by whatever ransom or flight is possible, in order to escape fornication. If he demands intercourse from her, she must not obey him or give herself to him, unless he coerces her with killing: that then becomes permitted, for it falls under coercion to fornication.
Is it permitted for her to kill him when he demands that of her? Or is that not permitted for her? There is disagreement: the apparent view is the permissibility of killing him, whether he is married or not; the apparent reasoning is his likeness to the assailant, who is known to be repelled only by killing; if he can be repelled otherwise, by beating or otherwise, killing him is not permitted by consensus.
Ibn Arafa (may Allah have mercy on him) said: the correct view is that if she feels safe for her life in killing him, or attempts to kill him and cannot repel him otherwise than by his death, his killing is obligatory upon her by virtue of its permissibility; if she does not feel safe for her life in defending herself by killing, or after killing him, she is at ease to choose; and likewise whoever sees a corrupt man attempting to do that with another (al-Taj wa-l-Iklil, 3/96-97; Sharh Mukhtasar Khalil, 4/64; al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 3/303; Hashiyat al-Sawi 'ala al-Sharh al-Saghir, 5/394).
Imam al-Mawardi (may Allah have mercy on him) said: section: the wife of the man bound to divorce her, when divorce is imposed upon him outwardly and not inwardly, remains in one of three states. The first: she knows his sincerity in that for which he was bound to divorce: it is permitted for her, between her and Allah, the Most High, to remain with him and give herself to him, without anyone compelling her to leave him; the husband owes her maintenance; disobedience to him is forbidden to her; if she rebels, the ruler does not compel her, even if she is at fault, for his divorce occurred outwardly. Our companions differed over the ruler who sees them together: is he obliged to separate them? Two views: the first, separation is obligatory upon him by the outward ruling; the second, it is not obligatory upon him, for their being together is something whose lawfulness is possible in the law; if he separates them, her becoming forbidden to him inwardly carries two views, in accordance with the two views on the obligation of his ruling of separation.
The second state: she knows he lied in that for which he was bound to divorce: she must flee from him, and it is not permitted for her, either by the outward ruling or inwardly, to give herself to him, even if we were to permit the husband to enjoy her; if she asks the ruler to rule on their separation, his ruling is obligatory upon him; after her waiting period ends, it is permitted for her to marry another, and for whoever has asked for her hand to marry her, if he does not believe the husband in that for which he was bound to divorce; if he knows his sincerity, it is not permitted for him to marry her unless the ruler rules their separation, and the permissibility of marrying her after the ruling of separation carries two views.
The third state: she knows neither his sincerity nor his lie in that for which he was bound to divorce: giving herself to him is imposed upon her, because of the possibility of his lie; and her being forbidden to him between her and Allah, the Most High, carries two views: the first, she is not forbidden to him inwardly, giving precedence to the continuation of the marriage: she is then in the status of the first state; the second, she is forbidden to him inwardly, giving precedence to the occurrence of the divorce outwardly: she is then in the status of the second state. If he claims from her that she affirms his sincerity in that for which he was bound to divorce and she denies it, the obligation of making her swear to it carries two views, on the basis of what has preceded. And Allah knows best (al-Hawi al-Kabir, 10/154-155).
As for the Hanbalis, Imam Ibn Qudama (may Allah have mercy on him) said: section: if the woman claims that her husband divorced her and he denies it, his word prevails, for the basis is the continuation of the marriage without divorce, unless she has proof of what she claims; and only two just witnesses are accepted in it. Ibn Mansur reported from Ahmad that he was asked whether the testimony of one man and two women is valid in divorce; he said "No, by Allah: it is so only because divorce is not property, and property is not its purpose, and it is men who have knowledge of it in most cases; only two just witnesses are therefore accepted in it, like the legal punishments and retaliation".
If she has no proof, is he made to swear? Two narrations: Abu al-Khattab reported that he is made to swear, and this is the correct one, by the Prophet's words (peace and blessings of Allah be upon him) "but the oath is upon the one against whom the claim is made", and his words "the oath is upon the one who denies", and because it is valid for the husband to grant it: he is therefore made to swear concerning it as with the dowry. Abu Talib reported from him: no oath is taken in divorce and marriage, for no judgment is given in it by denial, so no oath is taken in it, like marriage if a man claims wedlock with a woman and she denies it. If they differ over the number of divorces, his word prevails, for what we have said.
When he has divorced her three times, she has heard it and he denies it, or it has been established with her by the word of two just witnesses, it is not permitted for her to give herself to him: she must flee from him as much as she can, repel him when he wants her, and ransom herself from him if she is able. Ahmad said: it is not permitted for her to remain with him. He also said: she ransoms herself from him with whatever she can; if she is compelled to it, she must not adorn herself for him or come near him, and she must flee if she can; if two just witnesses who are above suspicion testify before her, she does not remain with him: this is the view of most of the people of knowledge.
Jabir ibn Zayd, Hammad ibn Abi Sulayman and Ibn Sirin said: she flees from him as much as she can, and ransoms herself with everything possible. Al-Thawri, Abu Hanifa, Abu Yusuf and Abu Ubayd said: she flees from him. Malik said: she must not adorn herself for him, must not show him any of her hair or her borrowed garments, and he is not to reach her except under coercion.
The correct view is what the early generations said: this woman knows she is a stranger to him and forbidden to him; resisting him and fleeing is therefore obligatory upon her, as with all other forbidden women. The same applies if a man falsely claims marriage to a woman and establishes for it two false witnesses, and the ruler rules in favor of the wedlock; or if he marries her with an invalid marriage and she is handed over to him: the ruling in all of this is that of the woman divorced three times.
Section: if he divorced her three times and then denied her divorce, she does not inherit from him: Ahmad stated this explicitly, and it is the view of Qatada, Abu Hanifa, Abu Yusuf, al-Shafi'i and Ibn al-Mundhir. Al-Hasan said: she inherits from him, for outwardly she holds the status of the wives. Our argument: she knows she is a stranger to him, so she does not inherit from him, like all other strangers.
Ahmad said, in the narration of Abu Talib: she flees from him and does not marry until her divorce is made manifest and she knows it; if he comes and claims her, his claim is rejected and he is punished; and if he dies without acknowledging her divorce, she does not inherit from him: she takes nothing of what is not hers; she flees from him, does not leave the town, but hides within her own town.
It was said to him: some people have said "let her kill him: she is like one defending herself", but he did not approve of that. He forbade her marriage before her divorce was established, for by the outward ruling she is the wife of this divorcing man: if she married another, the punishment and return to the first husband would be obligatory upon her by the outward ruling of the law, and two husbands would be joined upon her, one outwardly and the other inwardly. He did not authorize her to leave the town, for that would strengthen the accusation of disobedience against her; and because killing him involves premeditation: one who repels an assault upon his own person does not kill with premeditation. So if she intended to repel the assault upon herself and it resulted in his death, she bears neither sin nor liability inwardly; as for the outward, she is subject to the ruling of killing so long as her truthfulness is not established.
Section: Ahmad said: if he divorced her three times and four men testify against him that he consummated the marriage with her, the legal punishment is established upon him: he made it obligatory only because she became a stranger through divorce; she is therefore like all other forbidden women, indeed of a stronger prohibition, forbidden for consummation and for marriage. If he denied her divorce and consummated the marriage with her, and the proof of his divorce is then established, there is no punishment upon him: this is the view of al-Sha'bi, Malik, the people of the Hijaz, al-Thawri, al-Awza'i, Rabi'a, al-Shafi'i, Abu Thawr and Ibn al-Mundhir; for his denial of the divorce gives us to think he had forgotten it, and that is a doubt that repels the punishment; and we have no way of knowing whether he had knowledge of the divorce at the time of consummation except by his own acknowledgment: if he says "I consummated the marriage with her knowing that I had divorced her three times", that is an acknowledgment of fornication, and what applies to an acknowledgment of fornication applies to it (al-Mughni, 7/387-388; see also al-Sharh al-Kabir, 8/465; Kashshaf al-Qina', 5/390-391).