Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > Talaq, ila and zihar attach to the wife in her revocable stage
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
In this fifth part of the chapter on talaq (repudiation), the jurists examine the rights that attach to a wife repudiated in her revocable stage, then repudiation directed at the whole body or at a part of it, the rule requiring a spoken formula, the explicit formula (sarih) and its words, the allusive formula (kinaya) and its categories, the husband's saying "you are forbidden to me", formulas having no connection with talaq, and finally the repetition of the formula. The positions of the four schools are reported with their proofs, their texts and their classical references.
The scholars are unanimous: when the husband repudiates his wife with a revocable repudiation, he retains the right to take her back, and he has the right to repudiate her a second time during the waiting period ('idda). The wife in her revocable stage is a wife to whom his talaq, his zihar and his ila attach as long as she is in the waiting period. He retains the right to take her back without her consent, without a guardian, without witnesses and without a new dower, and the two spouses inherit from each other by consensus if one of them dies during the waiting period.
During her waiting period it is not lawful for him to marry a fifth wife other than her, nor her sister, nor her paternal aunt, nor her maternal aunt: she has the status of a wife in all her rulings. Imam Ibn Qudamah (may Allah have mercy on him) said: "The wife in her revocable stage is a wife whom his talaq, his zihar, his ila and his li'an follow, and each of the two spouses inherits from the other by consensus" (al-Mughni 7/400 ; al-Ishraf 'ala madhahib al-'ulama' 5/220 ; al-Ijma' p. 450 ; al-Durr al-Mukhtar 3/230 ; al-Kafi by Ibn Abd al-Barr p. 292 ; al-Hawi al-Kabir 10/19 ; al-Muhadhdhab 2/112 ; al-Mughni 6/268). Imam Ibn Battal (may Allah have mercy on him) said: "The wife in her revocable stage is bound by whatever follows her repudiation during her waiting period, by consensus" (Sharh Sahih al-Bukhari 7/382).
The jurists of the four schools agree: if the husband directs the repudiation at the totality of his wife's parts, or at a common part of the body such as the head, the face, the neck or the private parts, the repudiation takes effect. These organs indeed serve to designate the whole body: one says "so-and-so owns so many heads of slaves" or "so many necks", Allah said: "or the freeing of a neck", in which the neck denotes the whole person, and He said: "and their necks remained bowed before it" (Surah Ya-Sin, 26).
Allah cursed the private parts that mount upon the private parts.According to a reported tradition
The face too is mentioned and the person is meant by it: Allah said: "Everything will perish except His Face" (Surah al-Qasas, 88), that is, except Him; and whoever guarantees the "face" of so-and-so becomes a guarantor of his person. It is therefore established that these organs designate the whole body, and their mention is a mention of the body, as if he had said: "you are repudiated." The same applies if he directs the repudiation at the face, for the person subsists by it, and the spirit is called "soul": "Allah receives the souls at the time of their death, and those that do not die during their sleep" (Surah az-Zumar, 42).
There is likewise no disagreement when he directs the repudiation at a shared part of the body, saying: "half of you is repudiated, or a third, or a quarter, or a part of you": the repudiation takes effect. The shared part is indeed a locus of marriage, to the point that marriage can be directed at it, and it therefore becomes a locus of repudiation. The attribution to the shared part entails the application of the ruling of repudiation, for it is common to all the parts: the permitted enjoyment of the whole body includes enjoyment of the forbidden part, and keeping the marriage has no further benefit, so it ceases by necessity.
The jurists, however, differ over the case in which the husband directs the repudiation at a specific organ of the body that does not designate the whole body, such as the hand, the foot or the finger.
The Hanafis, contrary to Zufar, hold that the repudiation does not take effect. They argue from the saying of Allah: "divorce them for their waiting period": Allah commands divorcing the women, and the woman is the name for the totality of her parts; the command to divorce the whole implies the prohibition of divorcing a part that does not designate the whole body, for that amounts to abandoning the repudiation of the whole body; and the command to perform an act forbids abandoning it, while what is abandoned is not legislated and is therefore not valid in law. Moreover, saying "your hand is repudiated" amounts to directing the repudiation at what is not a locus of repudiation, as if he directed it at her veil.
The hand is not a locus of repudiation for two reasons. First, it is not a locus of marriage, so marriage cannot be directed at it, and it therefore does not become a locus of repudiation: repudiation is the removal of what is established by marriage, just as the hand is not a locus of manumission, since manumission is the annulment of what was established by sale. Second, the locus of repudiation is a locus of ruling in the jurists' usage, and the ruling of repudiation is the removal of the bond of marriage; the bond of marriage, however, was established over the whole body, not over the hand alone, and a bond established over the whole cannot be conceived in the hand alone.
The same reasoning applies to the shared part, except that the ruling is not established there by the attribution to the shared part, but for another reason: the absence of benefit in keeping the marriage. It is the analogy of the man who cuts a rope he owns on which someone else's lantern hangs; here, however, no necessity arises, since the forbiddenness is not found attached to the specific organ alone: benefit can be drawn from the rest of the body, and keeping the marriage remains beneficial. But no one holds this view among what is known in the works of controversy (Tuhfat al-Fuqaha 2/195 ; Bada'i' as-Sana'i' 3/143 ; al-Mabsut 6/89 ; Fatawa al-Sughdi 1/342-343 ; al-Hidayah sharh al-Bidayah 1/232 ; al-'Inayah 5/205, 208 ; al-Jawharah an-Nayyirah 4/417, 420 ; al-Fatawa al-Hindiyyah 1/360).
Objection: the shared part can be sold alone, and that is why the repudiation takes effect through it, whereas the specific organ cannot be sold alone, so no repudiation occurs. Answer: sale stops at what it covers and does not extend beyond; it is valid for the beneficial shared part and is not valid for the non-beneficial organ, whereas repudiation extends: it therefore takes effect through the specific organ as through the shared part, because it spreads to the whole.
Objection again: the shared part is common to the whole body and can therefore extend, whereas the specific organ is not shared and cannot extend. Answer: if extension is permitted from that shared part to the totality of the parts, it is permitted from that specific organ to the totality of the organs. A final objection: the organ follows the whole, and the ruling of the follower does not revert to the thing followed, just as the manumission of the fetus does not free the mother carrying it, whereas the manumission of the mother frees the fetus. Answer: the organ follows the person, the diyat of the limbs entering into the diyah of the person; it does not follow the body, the diyah of one limb not entering into the diyah of another limb.
There follows the repudiation of the private parts and of the five organs: the head, the back, the face, the neck and the private parts. A second analogy: he directed the repudiation at an organ joined to her by the very nature of its formation; it must therefore stand as the attribution to the whole body, like the five organs. The expression "joined by formation" excludes an ear reattached after being cut off: repudiation directed at it produces nothing.
Objection: the meaning of the five organs is that they constitute the solidity of the body and one does not survive their loss; the liver and the heart should therefore also count, whereas among the Hanafis they do not cause repudiation. The answer in three points: these organs designate the whole figuratively, not literally, and the explicit formula of repudiation attaches to the literal, not the figurative; they designate the whole only when not attached to her, whereas here he said "your head", the attachment having distinguished what is directed at from what is directed to; finally, the whole can be designated by others than the five organs: the hand in "May the hands of Abu Lahab perish" (Surah al-Masad, 1), the foot in the expression "so-and-so has a foot (a standing) with the ruler", the hair in "may Allah keep this beard alive" to designate the person (al-Hawi al-Kabir 10/242, 244).
The Malikis say: whoever repudiates a part of his wife is disciplined for it, as if he said to her "your hand is repudiated, or your eye, or your half", for there is no difference between division with respect to the repudiations or the wife, and the repudiation takes effect. Likewise, according to the well-known view, the repudiation takes effect and binds him if he says "your hair is repudiated, or your speech is repudiated": what he intended binds him, for hair and speech are among the woman's beauties; likewise saliva and intellect, unlike knowledge. This holds whether he intends the hair attached to her or has no intention; if he intends the detached hair, it is like saliva.
Whoever says to his wife "your cough is repudiated, or your saliva, or your tears" is bound by nothing, for that is not among her beauties since he takes no enjoyment in it; likewise hair that is not of her eyebrows or her head, grey hair from her head or her eyebrows, and a voice grown thick. No repudiation therefore binds through the repudiation of the foregoing, unless he himself takes enjoyment in it as a precaution for chastity, or he intends thereby the dissolution of the marital bond: it is then like the hidden allusion (al-Ishraf 'ala nukat masa'il al-khilaf 3/433, no 1248 ; at-Taj wal-Iklil 3/76-77 ; Sharh Mukhtasar Khalil 4/53 ; ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi 3/282-283 ; Hashiyat as-Sawi 'ala ash-Sharh as-Saghir 5/353).
The Shafi'is say: one who says "you are repudiated" or "I repudiated you" speaks plainly; likewise if he says "your body, your flesh, your soul, your person, your form or yourself is repudiated". If he repudiates a part of her, saying "your hand, your foot, or such of her organs attached to her, your quarter, a part of you or a share of you", whether it is known as in the first example or vague as in the second and third, whether it is original or supplementary, external or internal like the liver, or whether the part detaches from her during her life as in "your hair or your nail is repudiated", the repudiation takes effect categorically.
They prove it by consensus, and by the fact that it is a repudiation issuing from its owner which ought not be voided and whose division is impossible: the woman is not divided in the ruling of marriage, so it must be generalized; and by analogy with manumission, both being the removal of ownership by the explicit formula and by allusion. Likewise "your blood is repudiated" produces the repudiation according to the doctrine, for the solidity of the body resides in it as in the soul; according to one view it produces nothing, because blood is a surplus. Repudiation does not take effect through a surplus: saliva, sweat, urine, which are not joined to her by natural formation; likewise semen and milk in the sounder view, for though their origin is blood, they have been transformed in view of exiting like urine; according to the second view it takes effect like blood, for blood is the origin of each, and the humors are like the surpluses, such as phlegm. It does not take effect through the fetus: it is an independent person and not a locus of repudiation; nor through the organ reattached to the woman after separation: it is like the detached one, the proof being the obligation to cut it off and the absence of retaliation concerning it.
It likewise does not take effect through meanings subsisting in themselves such as hearing, sight and movement, nor through the other mental attributes such as beauty, ugliness or grace: they are not parts of her body. Fat and stoutness are two parts of the body: repudiation takes effect through the attribution to each of them. If he says "your name is repudiated", she is not repudiated if he does not intend her person; if he intends her, she is. If he says "your soul (nafs with a sukun on the fa) is repudiated", she is: it is the essence of the human being; with the fatha on the fa (breath), no: they are particles of air that enter the lung and leave it, neither a part of the woman nor an attribute of hers. If he says "your life is repudiated", she is repudiated if he intends the spirit; if he intends the abstract meaning, no, like the other meanings; if he utters the formula without specifying, it is like the first case.
Clarification: the repudiation just described first strikes the part and then extends to the rest of the body, as in manumission. If he says "if you enter the house, your right hand is repudiated", and her hand has been cut off and then she enters, she is not repudiated, just as if he had so addressed her; besides, she has no right hand. If he says to someone whose right hand has been cut off "your hand" intending the organ, or says "your right hand is repudiated", nothing takes effect according to the explicit doctrine, for want of that from which the repudiation extends to the rest, as in "your beard is repudiated" or "your male member is repudiated".
The Hanbalis say: whoever says "your half, or a part of you (specific, shared or vague), or your finger, or your blood is repudiated" has repudiated his wife, an explicit text (nass) of the doctrine, because of the validity of repudiation directed at a part, unlike "marry a part of my ward". Ibn al-Banna reported: she is not repudiated by her blood nor by her milk; if he directs that to her blackness or her whiteness, nothing takes effect, for it is an accident; according to another view, she is. If he says "your hand is repudiated" while she has no hand, or "if you stand she is repudiated" and she stands with the hand cut off, there are two views, according to whether he proceeds by extension or by designating a part of the whole.
If he says "your hair, your nail or your tooth is repudiated", she is not repudiated, an explicit text: these elements fall away and are replaced like hair, there is no life in them, and touching them does not break ablution, like sweat; according to another view she is repudiated: this is the view of al-Hasan and others, for it is a part made lawful by her marriage, so she is repudiated by it like the finger; the answer is that it is a part that detaches while intact, unlike the finger. If he directs the repudiation at saliva, tears, sweat or the fetus, she is not repudiated, without known disagreement, for it is not of her essence but adjacent to her; the fetus, though joined to her, ends in separation and is deposited in her: "It is He who created you from a single soul, and made it a dwelling and a depository" (Surah al-A'raf, 189): it is deposited in the mother's womb. If he says "your spirit (ruh) is repudiated", she is repudiated: the whole does not remain with the loss of its counterpart, like life and blood.
Abu Bakr (may Allah have mercy on him) said she is not repudiated: Ahmad's view does not differ, no repudiation, manumission, zihar or forbiddance takes effect by the mention of hair, nail, tooth or spirit; it is neither an organ nor something enjoyed. In al-Mustaw'ib he reported from Ahmad a suspension (tawaqquf) on the question (al-Mughni 7/376 ; Sharh az-Zarkashi 2/481 ; al-Mubdi' 7/300-301 ; al-Insaf 9/17-18 ; Kashshaf al-Qina' 5/304-305 ; Matalib Uli an-Nuha 5/370).
The jurists of the four schools, except for one narration from Malik, agree: repudiation produces no effect except by a spoken formula; if he forms it in his heart without articulating it, nothing takes effect. Al-Bukhari reported from Qatadah, from Zurarah ibn Awfa, from Abu Hurayrah (may Allah be pleased with him) that the Prophet (peace and blessings of Allah be upon him) said:
Allah has waived for my community what their souls murmur, so long as they do not act upon it or speak it.Reported by Bukhari (4968)
Qatadah said: "If he repudiates within himself, it is nothing." Repudiation is indeed a disposition that removes ownership: it is not accomplished by intention alone, like sale and gift; and if he forms the intention in his heart while pointing with his fingers, nothing takes effect either, for the same reason.
Imam Ibn al-Mundhir (may Allah have mercy on him) said: the scholars differ over the man resolved to repudiate the woman and who repudiates her within himself. Many scholars say it is nothing: Ata ibn Abi Rabah, Jabir ibn Zayd, Sa'id ibn Jubayr and Qatadah say it; it is reported from al-Qasim, Salim, al-Sha'bi and al-Hasan; and Yahya ibn Abi Kathir, al-Shafi'i, Ahmad and Ishaq held it; it is also reported from al-Thawri and al-Nu'man. Muhammad ibn Sirin said of the man who repudiates his wife within himself: "Is it not within the knowledge of Allah?" Al-Zuhri used to say: if he is resolved upon it, she is repudiated, whether he utters it or not; but if it is only a suggestion of Satan, it is nothing.
Malik was asked about a man who repudiates his wife within himself without his tongue uttering it: is it a repudiation? He answered: "Yes, in my view, and it is not of the kind of repudiation." Abu Bakr said: Malik was differed over on this question, and I have seen no one report this from him except Ashhab. Abu Bakr said: I hold the first view, by the hadith of Abu Hurayrah: "Allah has waived for my community what their souls murmur so long as they do not speak it or act upon it." The Prophet indeed linked deeds to intentions; if the ruling of one who harbors a word in his soul were the ruling of one who speaks, the one who talks to himself in prayer would be a speaker.
But their consensus that this is not speech, together with the hadith reported from the Prophet: "Whoever prays a prayer without talking to himself in it, for him is such and such", proves that inward talk does not stand in the place of speech. They likewise agreed that one who accuses of adultery within himself is not an accuser, and the same applies to ila and zihar (al-Ishraf 9/201-202).
Imam Ibn Battal (may Allah have mercy on him) said: Qatadah's saying "if he repudiates within himself, it is nothing" is the view of a great number of the imams of fatwa; Malik diverged. Ibn al-Mawwaz reported from him that one who forms the repudiation in his heart without articulating it with his tongue, it does not take effect, and this is what is most apparent of his doctrine; Ashhab reported from him, in the 'Utbiyyah, that she is repudiated, and this is the view of Ibn Sirin and al-Zuhri. Ibn Sirin said: "If he repudiates within himself, has Allah not known it?" The proof of the group is his saying: "Allah has waived for my community what their souls murmur so long as they do not act or speak": he made what the tongue does not articulate a vain word, without ruling, until it is pronounced and the consequence then binds the speaker (Sharh Sahih al-Bukhari by Ibn Battal 7/418).
Ibn Qudamah (may Allah have mercy on him) said: such is the view of most of the scholars, among them Ata, Jabir ibn Zayd, Sa'id ibn Jubayr, Yahya ibn Abi Kathir, al-Shafi'i and Ishaq, and it is also reported from al-Qasim, Salim, al-Hasan and al-Sha'bi. Al-Zuhri said: "If he is resolved upon it, she is repudiated." Ibn Sirin said of one who repudiates within himself: "Has Allah not known it?" (al-Mughni 7/294 ; Kashshaf al-Qina' 5/281 ; Sharh Muntaha al-Iradat 5/382 ; Matalib Uli an-Nuha 5/357).
Imam al-Mawardi (may Allah have mercy on him) said: repudiation produces no effect except by speech, or by what stands in its place for one unable to speak; it does not take effect by intention alone. If a man intends to repudiate his wife, she is not repudiated. Ibn Sirin and Malik in one of his narrations say she is repudiated by mere intention, to the point that if he intends to repudiate her, she is; they argue from the Prophet's saying: "Each person obtains only what he intended", and from the fact that separation had already occurred through the intention of apostasy, so repudiation can occur by intention.
Their proof is what is reported from the Prophet: "Allah has waived for my community what their souls suggest to them", and intention belongs to inward talk, so it should be waived. Repudiation is the removal of ownership, and ownership is not removed by mere intention, like manumission and gift; and repudiation is one of the two poles of marriage, so it is not validated by intention alone, like the contract. As for his saying "Each person obtains only what he intended", it concerns the reward of drawing near before performing the act; the intention to repudiate does not enter into it, since he did not act. As for apostasy, its establishment produces separation and apostasy, like faith, and it is not like repudiation (al-Hawi al-Kabir 10/150).
Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) said: if a man repudiates within himself, resolving firmly upon it without saying it, the repudiation does not take effect according to the majority of scholars, and according to Malik in one of the two narrations it does (Majmu' al-Fatawa 10/746).
Imam Ibn al-Qayyim (may Allah have mercy on him) said: the Sunnahs contain that what the tongue does not articulate, repudiation, manumission, oath or vow and the like, is a waiver that is not binding by intention and purpose alone: this is the view of the majority. Two other views exist: the first is suspension. Abd al-Razzaq reported from Ma'mar that Ibn Sirin was asked about one who repudiates within himself and said: "Has Allah not known what is in your soul?" He said yes. He said: "Then I say nothing about it." The second: the repudiation takes effect if he resolves firmly upon it; this is the narration of Ashhab from Malik, reported also from al-Zuhri.
The proof of this last view is his saying: "Deeds are but by intentions", the fact that one who disbelieves in his heart is a disbeliever, and the saying of Allah: "Whether you disclose what is in your souls or conceal it, Allah will call you to account for it" (Surah al-Baqarah, 284), as well as the fact that one who persists in disobedience is a sinner deserving punishment even if he does not commit it, and that the deeds of the heart are rewarded and punished like the deeds of the limbs: one is rewarded for love and hatred, allegiance and enmity for Allah's sake, trust, contentment and resolve to obey; one is punished for pride, envy, conceit, doubt, hypocrisy and holding the innocent in bad suspicion.
None of this, however, proves that repudiation and manumission occur by intention alone, without articulation. As for the hadith "Deeds are but by intentions", it is a proof against them: it informs that the act accompanied by intention is what counts, not intention alone. One who disbelieves in his heart or doubts is a disbeliever, for faith, which is the contract of the heart together with the confession, has vanished; when the decisive contract vanishes, its vanishing is in itself disbelief, faith being an existing thing, established by the heart: so long as it is not established in the heart, its opposite occurs, like knowledge and ignorance, and like any pair of opposites whose vanishing lets the other succeed it.
As for the verse, it does not contain that Allah's accounting for what the servant conceals implies the application of legal rulings through the heart; it contains that He holds him accountable for what he discloses or conceals, and that he is then forgiven or punished: where does that stand with respect to repudiation by mere intention? As for one who persists in disobedience, it is one who has committed the disobedience and then persisted in it: the deed there is connected to the resolve to repeat it. As for one who is resolved without acting, there are two cases: either it is not written against him, or a good deed is written for him if he abandons it for the sake of Allah.
As for the reward and punishment of the deeds of the heart, it is a truth with which the Qur'an and the Sunnah are filled; but repudiation and manumission by intention alone, without articulation, lie outside the field of reward and punishment, and no necessary connection exists between the two. What one is punished for among the deeds of the heart are sins of the heart deserving punishment like bodily sins, for they contradict the servitude of the heart: pride, conceit, hypocrisy and bad suspicion are forbidden things of the heart, voluntary matters that can be avoided, deserving punishment for their commission, and they are names of meanings established in the heart. Repudiation and manumission are two names for two things established by the tongue, or by what replaces it such as gesture and writing, and not two names for what is in the heart without speech (Zad al-Ma'ad 5/203-204).
Imam Badr ad-Din al-'Ayni (may Allah have mercy on him) said: no one differs over the fact that one who forms the repudiation in his heart without articulating it is bound by nothing, except what al-Khattabi reported from al-Zuhri and Malik, that it takes effect by resolve, and what Ibn al-Arabi reported from Ashhab's narration from Malik concerning repudiation, manumission and vow: his resolve and certainty in his heart through his inward speech suffice, and this is extremely far from the truth. Al-Khattabi refuted it by zihar and the like: they are unanimous that if he is resolved upon zihar, it does not bind him so long as he does not articulate it; one who accuses of adultery within himself is not an accuser; one who talks to himself in prayer owes no repetition, though Allah forbade speaking during prayer: if inward talk equaled speech, his prayer would be invalidated. Umar (may Allah be pleased with him) said: "I settle the affairs of my army during the prayer." Among those who said that repudiation of the inner self has no effect: Ata ibn Abi Rabah, Ibn Sirin, al-Hasan, Sa'id ibn Jubayr, al-Sha'bi, Jabir ibn Zayd, Qatadah, al-Thawri, Abu Hanifah and his companions, al-Shafi'i, Ahmad and Ishaq ('Umdat al-Qari 20/256).
Ibn Abidin (may Allah have mercy on him) said: his saying "its pillar (rukn) is a specific formula" designates what has been established as an indicator of the meaning of repudiation, explicit or allusive; this excludes the phonetic prolongations (fusukh) mentioned earlier. He intended the formula, even if in the form of a ruling, so as to include clear writing, the mute's gesture, and the counting on fingers in "you are repudiated this many times", as will come. It follows that the man who quarrels with his wife and hands her three stones while forming the intention to repudiate, without an explicit or allusive formula, undergoes no repudiation, as al-Khayr al-Ramli and others gave fatwa; likewise what some desert dwellers do when they order her to shave her head: no repudiation occurs, even with intention (Hashiyat Ibn Abidin 3/230-231).
The most famous view of Imam Malik is that repudiation does not occur by intention alone, but that it must be articulated. Imam Ibn Abd al-Barr (may Allah have mercy on him) said: one who forms the repudiation in his heart without articulating it with his tongue is bound by nothing: this is what is most famous from Malik, though it was reported from him that repudiation binds if he forms it in his heart, as one disbelieves in the heart without articulating it; the first view is sounder in scrutiny and by the path of the athar: "Allah has waived for my community what their souls suggest so long as the tongue does not pronounce it or the hand perform it" (al-Kafi p. 265-266 ; see Tafsir al-Qurtubi 8/211).
Al-Mawwaq (may Allah have mercy on him) said: repudiation does not bind through intention so long as he does not articulate it, and this is the apparent meaning of Malik's saying in the chapter of choice and disposal: a man does not repudiate by his inward word and does not marry by his inward word. Ibn Arafa: the more numerous narration is the nullity of inward repudiation by mere resolute intention. Ibn al-Qassar: it is the view of all the jurists (at-Taj wal-Iklil 3/70).
Imam al-Kharshi (may Allah have mercy on him) said: the famous view is that intention alone does not suffice in repudiation, the formula being required; as for repudiation through inward speech, whose controversy is to come, its meaning will come (Sharh Mukhtasar Khalil 4/43). He said elsewhere: "its effectuation through inward speech is disputed": the man forms the repudiation in his heart through inward speech as he would form it with his tongue, without articulation: does the repudiation bind him or not? That is disputed. Inward speech does not mean forming the intention and resolving upon it and then it appears to him otherwise, nor believing the repudiation in the heart without articulation by the tongue: nothing binds him in that by consensus (Sharh Mukhtasar Khalil 4/49 ; Tahbir al-Mukhtasar p. 167).
Al-Zarqani (may Allah have mercy on him) said: "its effectuation through inward speech" is running the formula of repudiation in his heart as he runs it on his tongue, without articulation; it does not mean mere resolve, however firm, and its non-bindingness is disputed. But if he resolves upon it in his heart and then it appears to him otherwise, no repudiation binds him by agreement; likewise one who believes she is repudiated and then discovers otherwise: by consensus nothing binds. There is also no effect to the obsessive whisper nor to the mere word of the heart: "I will repudiate this one and be at rest": al-Qarafi said that (Sharh az-Zarqani 'ala Mukhtasar Khalil 4/184).
Al-Dardir (may Allah have mercy on him) said: "its effectuation through inward speech", that is, saying to her in his heart "you are repudiated"; it is disputed, and the adopted view is that it does not bind; but the resolve to repudiate her and then its appearing to him otherwise entails nothing by agreement. Al-Dasuqi (may Allah have mercy on him) clarified that the controversy concerns only forming the repudiation in the heart through inward speech: the view of non-bindingness is Malik's in the Mudawwanah, the choice of Ibn Abd al-Hakam and al-Qarafi, and the most famous opinion; the view of bindingness is Malik's in the 'Utbiyyah, and in al-Bayan and the Muqaddimat it is said to be the sound view; Ibn Rushd said it is the more famous. Ibn Abd al-Salam said: the first view is more apparent, for intention suffices only for obligations connected to the heart, not in matters between human beings. His saying "as for the resolve to repudiate her" means: likewise one who believes she is repudiated and then discovers otherwise, nothing binds him by consensus (ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi 3/277).
The judge Abd al-Wahhab, a Maliki, chose repudiation without a formula and said: if he repudiates without a formula and without any bodily action, there are two narrations: the first is that it does not take effect, which is the view of Abu Hanifah and al-Shafi'i; the sound position is that the repudiation does take effect. Our proof: repudiation is a separation that needs the heart's purpose and its turning toward it, and articulation is merely the informing of its occurrence; its absence should therefore not prevent the effect, like faith and disbelief; all the more as we find that belief by itself has an effect in forbidding the wife and separating the marriage, by the proof of disbelief (al-Ishraf 'ala nukat masa'il al-khilaf 3/425-426, no 1241).
The jurists of the four schools agree that the explicit formula, that is, the formula employed only for dissolving the marital bond, needs no intention to produce its effect: repudiation occurs without intention, intention serving only to specify the indeterminate, and there is no indeterminacy here. Allah said: "divorce them for their waiting period" (Surah at-Talaq, 65:1): He legislated repudiation without any condition of intention; He said: "Repudiation is twice" (Surah al-Baqarah, 229) in absolute terms, and: "Then if he divorces her, she shall not be lawful to him thereafter until she marries another husband" (Surah al-Baqarah, 230): He ruled the removal of lawfulness in absolute terms, without condition of intention.
When Abdallah ibn Umar (may Allah be pleased with them both) repudiated his wife during her menses, the Messenger of Allah ordered him to take her back, without asking him whether he had or had not intended the repudiation; had intention been a condition, he would have asked him, and there is no taking back except after the repudiation has occurred: proof that repudiation occurs without intention. Moreover, in speech that is relied upon, one contents oneself with it without intention when it is explicit, as in sale.
Likewise, the other explicit formulas need no intention, so the same applies to the explicit formula of repudiation; separation occurs sometimes by annulment and sometimes by repudiation, and since annulment does not require intention, repudiation does not require it; the explicit formula of manumission requires no intention, so the same applies to the explicit formula of repudiation. The rulings of the explicit formula and of allusion are distinct in repudiation: had the explicit formula required intention, all repudiation would become allusive, whereas repudiation has occurred without intention, outwardly and inwardly.
On this basis, if he says to her "you are repudiated" and then declares "I meant that she is repudiated from my bonds", he is not believed before the judge: the apparent meaning of his words is repudiation from the marital bond, and the judge does not believe him when he diverts the words from their apparent meaning. The wife cannot believe him either, for it contradicts the apparent; he is believed between him and Allah, for he intended what his words can bear in all, and Allah is Aware of his heart. If he articulates it and says "my tongue slipped and I did not intend it", it is not accepted from him in court: he claims the contrary of the apparent and is held accountable between him and Allah, for his claim is possible (Bada'i' as-Sana'i' 3/101 ; Sharh as-Sunnah by al-Baghawi 9/212 ; al-Muhadhdhab 2/81 ; al-Hawi al-Kabir 10/150 ; al-Bayan 10/88, 96 ; al-Mughni 7/294).
More than one scholar reported the consensus that repudiation occurs without intention. Imam al-Qarafi (may Allah have mercy on him) said: they are unanimous that the explicit formula of repudiation needs no intention (adh-Dhakhirah 4/58). Imam Badr ad-Din al-'Ayni said: it needs no intention because it is explicit by the predominance of usage for repudiation, and this by consensus of the jurists. Dawud (the Zahiri) said: the explicit formula needs intention, for it may bear something other than repudiation; the answer: this bearing is negligible, and intention serves only to specify the indeterminate, which does not exist here.
Imam Ibn al-Humam (may Allah have mercy on him) said: the consensus of the jurists has been reported on this point, except Dawud: it is not impossible that the formula should mean something other than repudiation from the marital bond; we say that this bearing vanishes when addressing the wife, the person not being neglected, and the formula becomes like the meaning. The hadith of Ibn Umar, in which the Prophet ordered him the taking back without asking him whether he had the intention, proves it: the omission of detail in real events is like generality in speech, and the circumstances of the intent to act are evident in what Ibn Umar did in withdrawing from her until it was understood of him; the absolute character of Allah's saying "Repudiation is twice" and the like is a proof still farther. Our saying "it does not depend on intention" means that if he intends nothing at all, the repudiation occurs, not that it occurs even if he intended something else: if he intended repudiation from his bonds, he is believed religiously, not judicially; likewise repudiation through action in one narration; and one must intend addressing by the formula of repudiation knowing its meaning (Sharh Fath al-Qadir 4/4).
Imam Ibn Nujaym (may Allah have mercy on him) said: repudiation does not depend on intention, and the consensus of the jurists has been reported on it (al-Bahr ar-Ra'iq 3/276). Sadr ash-Shari'ah (may Allah have mercy on him) said: the explicit formula of repudiation does not need the intention to repudiate, by consensus of the scholars, except Dawud (Mukhtasar al-Wiqayah 1/387). Al-Khatib ash-Shirbini (may Allah have mercy on him) said: repudiation is of two kinds only: the explicit formula, whose apparent meaning bears nothing but repudiation and which needs no intention; if he says "I had no intention of repudiating", it is not accepted from him, and al-Khattabi reported the consensus on this (al-Iqna' 2/437 ; Mughni al-Muhtaj 4/455).
Imam al-Khattabi (may Allah have mercy on him) said: most of the scholars agree that the explicit formula of repudiation, uttered by a pubescent person of sound mind, is charged to him, and it avails him nothing to say that he was joking, that it was banter, that he had no intention of repudiating, or anything resembling that. Some scholars prove it by Allah's saying: "Do not take the verses of Allah in mockery" (Surah al-Baqarah, 231): were it allowed to the people, the rulings would be paralyzed, and no repudiator, no groom nor manumitter could say "I was jesting in my words", which would amount to annulling the rulings of Allah, which is not permitted. Whoever therefore utters one of the words mentioned in this hadith, its ruling binds him and it is not accepted from him to claim otherwise; this confirms the matter of the private parts and safeguards it, and Allah knows best (Ma'alim as-Sunan 3/243).
Imam Ibn Qudamah (may Allah have mercy on him) said: "when he comes with the explicit formula of repudiation, it binds him, whether he intended it or not". The explicit formula needs no intention, it occurs without design, without disagreement; speech that is relied upon suffices without intention when it is explicit, like sale, whether he intends jest or seriousness, according to the Prophet's saying:
Three things whose seriousness is serious and whose jesting is serious: marriage, repudiation and the taking back.Reported by Abu Dawud and at-Tirmidhi, who said: hasan hadith
Ibn al-Mundhir said: everyone whose memorization he trusts among the scholars is unanimous that the seriousness of repudiation and its jesting are equal; it is reported from Umar ibn al-Khattab and Ibn Mas'ud, and something similar from Ata and Ubaydah; al-Shafi'i and Abu Ubayd held it, and Abu Ubayd said it is the view of Sufyan and the people of Iraq. As for the words of separation (firaq) and freeing (sarah), it depends on the disagreement: whoever counts them explicit produces the repudiation without intention, whoever does not count them so produces no repudiation except with intention, and they are then like the hidden allusions (al-Mughni 7/303 ; Manar as-Sabil 3/94).
Imam al-Mawardi (may Allah have mercy on him) said: one who articulates the explicit formula of repudiation necessarily falls into one of four cases. The first: he intends the formula and intends the separation, and the repudiation occurs by consensus if the speaker is among those for whom repudiation is valid. The second: he intends the formula without intending the separation, and the repudiation occurs, for the explicit formula requires no intention: this is the view of the majority; Dawud said it occurs only with intention, arguing from "Each person obtains only what he intended", and that is an error according to the hadith of the three things, and because separation occurs sometimes by annulment and sometimes by repudiation, and the explicit formula of manumission requires no intention, and had the explicit formula required it, all repudiation would be allusive, whereas it has occurred without intention, outwardly and inwardly (al-Hawi al-Kabir 10/153-154).
Imam Ibn Muflih (may Allah have mercy on him) said: whenever he comes with the explicit formula of repudiation, it occurs, whether he intended it or not, without disagreement; he mentioned it in the Sharh, for the other explicit formulas need no intention, whether he acts in earnest or in jest: Ibn al-Mundhir reported the consensus of everyone whose memorization he trusts (al-Mubdi' 7/269). Al-Mardawi said in al-Insaf: if he intended it, no disagreement over its occurrence; if he did not intend it, the sound position of the doctrine, on the explicit text of Ahmad and his companions, is that repudiation occurs absolutely; he also reported: "it occurs only with an intention, or with a sign of anger, or of her request, or the like" (al-Insaf 8/465).
The scholars agree that the word of talaq belongs to the explicit formulas of repudiation, and they differ over what goes beyond it, with detail among them. The Hanafis say: the explicit formula that produces repudiation without need of intention is the word "repudiation" (at-talaq) or "to repudiate" (at-tatliq): "you are repudiated (taliqah)", "you are THE repudiation (at-talaq)", "I repudiated you" or "you are mutallaqah (repudiated)" with the shaddah. This type is called explicit because the explicit, in language, is the name of that whose intent is apparent and whose meaning is laid bare to the hearer, as in "so-and-so made the matter explicit": he disclosed it and clarified it; the lofty building was named sarh for its visibility above other buildings, and these formulas have an apparent intent because they are employed only for repudiation from the marital bond, so that they need no intention.
These formulas ("you are repudiated", "you are mutallaqah", "I repudiated you") produce only one revocable repudiation, even if he intends two or three: whether he intends one, several or nothing. If he repudiated her with a revocable repudiation and then says "I have made it irrevocable (ba'in) or threefold", Abu Hanifah holds that it becomes so; Abu Yusuf holds that it becomes irrevocable but not threefold; Muhammad and Zufar hold that it becomes neither irrevocable nor threefold. If he says to her "be repudiated" or "repudiate yourself", Muhammad deems that it produces the effect.
As for "you are the repudiatrix (at-taliqah)", "you are repudiated of the bond (taliq at-talaq)" and "you are repudiated with a repudiation (taliq talqan)": if he has no intention, it is one revocable repudiation; if he intends two, it is likewise one revocable; if he intends three, they are three. Likewise "you are a repudiation (talaq)": repudiation occurs, without need of intention, and it is revocable; the intention of three is valid in it, for the verbal noun (masdar) bears generality and multiplicity, being a name of genus; the intention of two is not valid in it, for the intention of three is valid only on account of the genus: for a slave girl, the intention of two would be valid in view of the genericity, whereas for the free woman two is a number, and the formula does not bear number.
If he says "you are repudiated of the bond (taliq at-talaq)" and then declares: "by my word 'repudiated' I intended one repudiation, and by 'the repudiation' another", he is believed, each of the two being apt to produce the effect, as if he had said "you are repudiated and repudiated": two revocable repudiations occur if the marriage has been consummated. If he says "you are repudiated with a repudiation (taliq talqan)" without intention, only one occurs: the verbal noun merely emphasizes, like "I stood a standing", and emphasis adds only what the emphasized thing conveys; if he intends three, they are three according to the narration of al-Asl, the verbal noun bearing the sense of multiplicity; according to Abu Hanifah, only one occurs.
If he says "O repudiated one (ya mutallaqah)" with the shaddah, repudiation occurs upon her because he described her as such; if he intends three, they are three. If he says "you are repudiated" (without more), it occurs only with intention, unless he is in the midst of discussing repudiation; and if he addresses her "O repudiated one" with the lam vocalized, repudiation occurs even without intention. If he says "you are repudiated, you are repudiated" or "you are repudiated" then "you are repudiated" and declares "I intended the first", he is believed religiously; likewise if he says "I repudiated you, I repudiated you", or "you are repudiated, I repudiated you", or if he says "you are repudiated", a man asks him "what did you say?" and he answers "I repudiated her" or "I said she is repudiated": a single one in court (Bada'i' as-Sana'i' 3/101, 103 ; al-Hidayah 1/230-231 ; Tabyin al-Haqa'iq 2/197 ; al-Jawharah an-Nayyirah 4/399, 402 ; Mukhtasar al-Wiqayah 1/387 ; al-Ikhtiyar 3/157 ; al-Lubab 2/78-79 ; al-'Inayah 5/196-197 ; al-Bahr ar-Ra'iq 3/269 ; Hashiyat Ibn Abidin 3/247).
The Malikis say: the explicit formula by which the marital bond dissolves, even without his intending its dissolution, as soon as he intends the formula, is limited to six words. The first: "the repudiation" (at-talaq), as in "repudiation is binding upon me", "upon me is the repudiation", "you are THE repudiation", "you are repudiated (taliqah)" or "you are mutallaqah". The second: "repudiation" in the indefinite sense: "a repudiation is binding upon me", "upon you a repudiation", "you are a repudiation" or "upon me a repudiation", whether he utters the subject ("you are") or the predicate ("upon me") or neither, for it is understood, and the understood is like the established.
The third: "I repudiated you" (tallaqtu), the perfect verb with the ta vocalized. The fourth: "you have detached yourself from me (ta-tallaqti)" with the doubled lam and the ta with kasrah: from me, or you have separated. The fifth: "repudiated" (taliqah), the active participle. The sixth: "repudiated" (mutallaqah) with the ta opened and the lam doubled, the passive participle, as in "you are mutallaqah". The explicit formula of repudiation is therefore confined to these six words and to no others, contrary to whoever says that the explicit is any formula containing the three letters ta, lam and qaf, like muntaliq, mutallaqah, matluqah or intaliqi: these formulas belong to the hidden allusion. In the explicit formula of repudiation, a single repudiation binds, unless he intends more: what he intended is then imposed upon him (al-Ishraf 3/420, 424 ; at-Taj wal-Iklil 3/58-59 ; Mawahib al-Jalil 5/273 ; Sharh Mukhtasar Khalil 4/43-44 ; ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi 3/266-267 ; Tahbir al-Mukhtasar 3/156-157 ; Hashiyat as-Sawi 'ala ash-Sharh as-Saghir 5/329-330).
The Shafi'is say: the explicit formulas of repudiation, whose apparent meaning bears nothing but repudiation, are three: "the repudiation" (at-talaq) by agreement, and "the separation" (firaq) and "the freeing" (sarah) according to the most famous opinion, for they came in the Qur'an with this meaning. The opposite of the famous opinion is that they are two allusions, for they are not as well known as repudiation and are employed in it and in other things. The most famous opinion of the school is the first, for the Qur'an came with these three formulas: repudiation in "Repudiation is twice" (Surah al-Baqarah, 229) and "When you divorce the women, divorce them for their waiting period" (Surah at-Talaq, 65:1); freeing in "a retention with kindness or a release with kindness" (Surah al-Baqarah, 229) and "Come, I will provide for your benefit and release you with a beautiful release" (Surah al-Ahzab, 28); separation in "Retain them with kindness or part from them with kindness" (Surah at-Talaq, 65:2).
The derivatives of these formulas are explicit too: "I repudiated you", "you are repudiated (mutallaqah)", "O repudiated one", "O repudiated one (taliqah)"; but "you are a repudiation" and "the repudiation" are not two explicit formulas according to the sounder view: they are two allusions. Likewise "I have parted from you (faraqtuki)", "I have freed you (sarrahtuki)", "you are parted (mufaraqah)", "you are freed (musarrahah)", "O parted one", "O freed one".
If a common man says "I have given the taliq of so-and-so, with an altered ta, or her talak with a kaf, or her dalaq with a dal", the repudiation occurs and it is an explicit formula in his case, if his tongue accepts only this altered formula, or if he belongs to a people whose dialect does thus, that is, a people who interchange the ta with another ta and whose usage has become systematic in that; otherwise it is an allusion, for this alteration has a root in the language. The jurist is excluded by this: what he says is an allusion in all cases, whether his dialect is so or not. The translation of the formula of repudiation into a foreign language (Persian) is an explicit formula according to the school, for it is famously used in its meaning among its speakers, as Arabic is used among the Arabs.
The ruling of this kind of explicit formula is that it needs no intention to repudiate: it bears nothing but repudiation, the occurrence of repudiation therefore does not depend on intention, and it occurs even if he intends its absence. Imam ash-Shafi'i (may Allah be pleased with him) said: Allah mentioned repudiation in His Book under three names: repudiation, separation and freeing. Whoever addresses his wife reserving to her one of these names, "you are repudiated", "I repudiated you", "I have parted from you" or "I have freed you", repudiation binds him without his intending it in the ruling, and his intending it is between him and Allah.
If he did not intend repudiation by any of them, he has the right to take her back, but she has no right to remain with him, for she does not know his sincerity as she knows her own. The same applies to what binds or does not bind of repudiation, whether he spoke in anger, on the occasion of a request for repudiation, or with satisfaction, without a request: circumstances do nothing, only the formulas do it, for the circumstance may occur while the speech starts from something else, and the beginning of speech that has a ruling has effect only when it comes; if the circumstance produces nothing of itself, it does not produce it through what follows it, and what follows it does not prevent what has a ruling from occurring when uttered.
If he joins his speech and says "I have parted from you for the mosque, for the market or for a need", "I have freed you toward your family or toward the mosque", or "I repudiated you from your bonds" and the like, no repudiation binds him, and if he dies it is not a repudiation; likewise if he becomes mute or loses his intellect. It is a repudiation only if he says "I intended repudiation". If his wife asks that he be questioned, he is questioned; if she asks that he be made to swear, he is made to swear: if he swears that he did not intend repudiation, it is not a repudiation; if he prevaricates, it is said that if he swears she is repudiated, otherwise it is not a repudiation. And everything he uttered resembling repudiation other than these words is not a repudiation until he says: "the outcome of my speech was that I intended thereby repudiation", such as: "you are freed of me", "you have withdrawn from me", "I have withdrawn from you", "you are quit", "I am quit of you", "you are separated", "you have separated from me", "go away", "stay far off", "cover yourself", "go out", "I have no more need of you", "your lot is your family's", "take the road outside", "I bid you farewell", "you bade me farewell", "complete your waiting period", and everything resembling repudiation: nothing dissolves until he says "I intended by the outcome of my speech the repudiation", and it is then a repudiation by the will to repudiate with a speech resembling repudiation (al-Umm 5/259-260 ; see al-Hawi al-Kabir 10/150, 159 ; al-Muhadhdhab 2/81 ; al-Bayan 10/88, 91 ; Rawdat at-Talibin 5/324, 327 ; Asna al-Matalib 3/269-270 ; Kanz ar-Raghibin 3/798, 800 ; an-Najm al-Wahhaj 7/483, 485 ; Tuhfat al-Muhtaj 9/324, 338 ; Nihayat al-Muhtaj 6/492, 494 ; ad-Dibaj al-Mudhahhab 3/400-401).
The Hanbalis say in the doctrine: the explicit formula of repudiation is the word of repudiation and what derives from it, nothing else, like "repudiated" (taliqah), "I repudiated you" and "mutallaqah" (passive participle), for it was coined specifically for it, the usage of the Law and employment being established for it; "you are repudiated", "you are THE repudiation" or "you are mutallaqah" are therefore explicit formulas. Excluded are: the imperative "repudiate yourself", the imperfect "you repudiate" and the active participle "repudiating" (mutalliq): these three formulas do not produce repudiation. The word of separation (firaq) and of freeing (sarah) is an allusion, for they are often employed for other than repudiation, not being explicit for it like its other allusions: this is the view of Ibn Hamid and the adopted opinion of the school.
Al-Khiraqi (may Allah have mercy on him) said: the explicit is three formulas: repudiation, separation and freeing, and what derives from them; "I repudiated you", "I have parted from you" or "I have freed you": repudiation binds her, for these formulas came in the Book with the meaning of separation between the spouses: "a retention with kindness or a release with kindness" (Surah al-Baqarah, 229), "Retain them with kindness" (Surah at-Talaq, 65:2), "But if they separate, Allah will enrich each from His abundance" (Surah an-Nisa, 130) and "Come, I will provide for your benefit and release you with a beautiful release" (Surah al-Ahzab, 28).
Ibn Qudamah (may Allah have mercy on him) said: Ibn Hamid's view is sounder, for the explicit is that which is literal and bears nothing else except a far-fetched bearing; separation and freeing came in the Qur'an with the meaning of marital separation and with other meanings, and often in usage: "Hold fast, all together, to the rope of Allah and do not divide" (Surah Al Imran, 103) and "Those who were given the Book did not divide" (Surah al-Bayyinah, 4): nothing justifies restricting it to marital separation; moreover "or part from them with kindness" (Surah at-Talaq, 65:2) does not mean repudiation but abandoning taking her back, likewise "or a release with kindness" (Surah al-Baqarah, 229), and they cannot be analogized to the word of repudiation, which is specific, prior to the minds without context or indication, unlike separation and freeing.
In either case: "I repudiated you", "you are repudiated" or "you are mutallaqah": repudiation occurs without intention; if he says "I have parted from you", "you are parted", "I have freed you" or "you are freed", whoever judges them explicit produces the repudiation without intention, whoever does not judge them so produces no repudiation except by intending it. If he says "by 'I have parted from you' I intended my body, my heart or my school", or "by 'I have freed you' I intended my hand, my occupation, my confinement, or I freed your hair", his word is accepted; if he says "by 'you are repudiated' I meant: repudiated from my bonds", or "I meant to say 'I sought you' and my tongue slipped into 'I repudiated you'" and the like, he is held accountable between him and Allah; when he knows this of himself, it does not affect him before his Lord.
Abu Bakr said: no disagreement is reported from Abu Abdillah (Ahmad) concerning one who meant to say to his wife "give me water to drink" and whose tongue slipped into "you are repudiated" or "you are free": there is no repudiation. Ibn Mansur reported from him, concerning a man who swore and whose tongue uttered other than what was in his heart, that he hoped the matter was ample. Whether his claim is accepted in court is examined: if he was in anger or she was asking him for repudiation, it is not accepted, his formula being apparent for repudiation and his state indicating it, his claim contradicting the apparent from two angles; otherwise, the apparent of Ahmad's words according to the narrations of Ibn Mansur and Abu al-Harith is that his word is accepted, like Jabir ibn Zayd, al-Sha'bi and al-Hakam, reported by Abu Hafs, for he interpreted his speech as bearing it without excess.
As if he had said "you are repudiated, you are repudiated" and declared that by the second he meant to inform her. Al-Qadi said: two narrations: the one we have mentioned, which is the apparent of Ahmad's words; the second is that it is not accepted, the doctrine of ash-Shafi'i, for it contradicts what the apparent requires by usage, as if he acknowledged a debt of ten and then said "forged papers, minor papers, or deferred a month". But if he makes it explicit within the formula itself, saying "I repudiated you from my bonds", "I have parted from you with my body" or "I have freed you from my hand", there is no doubt that repudiation does not occur: what attaches to the speech diverts it from its purport, like exception and condition.
Abu Bakr said concerning "you are mutallaqah": if he intends that she is repudiated by a past repudiation or by a previous husband, nothing is upon him if he intends nothing; two views: the repudiation occurs or does not occur, which implies that this formula is not explicit in one of the two views. Al-Qadi said: Ahmad's explicit text is that it is explicit, and it is sound: it is a derivative of the word of repudiation, it is therefore explicit for it like "you are repudiated" (al-Mughni 7/294-295 ; al-Muharrar fi al-fiqh 2/53 ; ash-Sharh al-Kabir 8/274 ; al-Insaf 8/462 ; Kashshaf al-Qina' 5/281-282 ; Sharh Muntaha al-Iradat 5/382-383 ; Manar as-Sabil 3/94).
Imam Ibn Rushd (may Allah have mercy on him) said: the majority are unanimous that the formulas of repudiation are of two kinds: explicit formula and allusion; they differ in detailing the explicit against the allusion, in their rulings and in what binds. Malik and his companions say the explicit is only the word of repudiation, all the rest being allusion, of two types: apparent and carried; Abu Hanifah says the same. Al-Shafi'i says the explicit formulas of repudiation are three: repudiation, separation and freeing, mentioned in the Qur'an; some literalists say no repudiation occurs except through these three.
The scholars agreed on the explicitness of the word of repudiation only because its indication of this legal meaning is a legal imposition, which makes it a foundation in this chapter; as for the formulas of separation and freeing, they fluctuate between a legal transfer (indicating by legal usage the meaning repudiation indicates) and remaining on their linguistic indication: when employed in the meaning of repudiation they become figurative, and that is the definition of allusion. Those who said that repudiation occurs only through these three formulas did so because the Law came only with them, repudiation being an act of worship whose condition is the formula, hence the obligation to confine oneself to the legal formula that came with it.
Two famous questions concern the rulings of the explicit formula. The first is the object of agreement between Malik, al-Shafi'i and Abu Hanifah: the repudiator's word is not accepted after the articulation of the formulas of repudiation if he says he did not intend repudiation, as with "you are repudiated", likewise freeing and separation according to al-Shafi'i. The Malikis excepted the case where the state or the wife carries an indication attesting the truth of his claim, as when she asks him to repudiate her from the bonds in which she is and he says "you are repudiated".
The question, for al-Shafi'i and Abu Hanifah, is that repudiation does not require intention; Malik, according to the famous opinion, requires intention but does not demand it here because of suspicion, and he rules by suspicion to close the avenues, in which al-Shafi'i and Abu Hanifah contradicted him. According to one who requires intention in the formulas of repudiation without ruling by suspicion, he must be believed in what he claims. The second question is disputed: one who says "you are repudiated" claiming to have intended more than one repudiation, two or three. Malik says what he intended binds him, and al-Shafi'i likewise, unless he restricts it by saying "one repudiation", which is the choice of his companions; Abu Hanifah says threefold repudiation does not occur through the word of repudiation, for the word of the singular does not include number, neither in allusion nor in explicit formula.
The cause of their disagreement: does repudiation occur through intention without the formula, or through intention with a formula that bears? Whoever holds intention imposes the three, likewise whoever holds intention with a bearing formula, seeing that the word of repudiation bears number; whoever judges that the formula does not bear number and that the formula must be conditioned in repudiation together with intention says the number is not due even if he intends it. The famous view of Malik is that repudiation occurs only through formula and intention, and Abu Hanifah says so too, though it was reported from him that it occurs through formula without intention; according to al-Shafi'i, the explicit formula of repudiation needs no intention. Whoever contents himself with intention argues by "Deeds are but by intentions"; whoever does not take intention into account without the formula argues by "My community has been forgiven for error" (Bidayat al-Mujtahid 2/55-56).
The scholars gave the allusion (kinayah) several definitions revolving around a single meaning: every formula that bears repudiation and bears something other than it. "It is every formula employed in repudiation and employed in other things" (Bada'i' as-Sana'i' 3/105); "what has not been established for repudiation and bears it as well as other things" (Hashiyat Ibn Abidin 3/230); "what bears repudiation and other things" (Mughni al-Muhtaj 4/455); "what indicates its meaning in itself and which it is fitting to ask about through something else" (al-Ishraf 'ala nukat masa'il al-khilaf 3/421); "what bears other things and indicates the meaning of the explicit formula" (Kashshaf al-Qina' 5/281 ; Sharh Muntaha al-Iradat 5/382 ; Matalib Uli an-Nuha 5/339 ; Manar as-Sabil 3/94).
The scholars are unanimous that the allusions of repudiation produce repudiation only with intention: when the husband utters repudiation through an allusive formula without intending repudiation by it, it does not occur. More than one scholar reported the consensus on this. Imam al-Kasani (may Allah have mercy on him) said: no disagreement exists that repudiation occurs through no allusive formula except with intention: if he intended repudiation, it occurs between him and Allah; if he did not intend, nothing occurs between him and Allah; and if he uttered that and then said "I did not intend repudiation by it", he is held accountable between him and Allah, for Allah knows his secrets and his confidential thoughts (Bada'i' as-Sana'i' 3/106).
Imam an-Nawawi (may Allah have mercy on him) said: as for allusion, repudiation occurs through it with intention by consensus, and it does not occur without intention (Rawdat at-Talibin 5/327). However, the Malikis and some Hanbalis excepted certain allusive formulas, making repudiation occur through them without intention, assimilating them to the explicit formula: these are the apparent allusions, such as "you are freed of me", "you are quit", "you are forbidden" or "you are separated" and the like; if he says it initiating the speech, or answering her question to repudiate her, it is a repudiation, and his saying "I did not intend it" is not accepted from him, for customary usage runs that people repudiate by these allusions as by the explicit formula, and the usage of language and of the Law goes in that direction (al-Ishraf 'ala nukat masa'il al-khilaf 3/420, 422 ; al-Mughni 7/300, 306).
The Hanafis, the Shafi'is and the Hanbalis in the doctrine hold that all allusive formulas require intention, for it is an allusion not known as an expression of the will to repudiate and not specialized in it: repudiation therefore does not occur through the mere formula, like the other allusions, unless it is accompanied by one of three things: intention, anger, or her request for repudiation, according to the Hanafis, as the detail will come (al-Hawi al-Kabir 10/160 ; al-Ifsah 2/169, 171 ; al-Mughni 7/300, 306).