Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > The formulas of talaq: explicit and allusive
Contents
Updated on 24 September 2026 at 7:46 PM
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).
The Hanafis say: the allusions are of two categories. The first comprises three formulas that produce the revocable repudiation and produce only one repudiation: "complete your waiting period", "wait to establish the purity of your womb" and "you are a single one". "Complete your waiting period" indeed bears preparing oneself from marriage and preparing oneself by Allah's graces, so it requires intention; "wait to establish the purity of your womb" bears "because I repudiated you" and bears "I wish to repudiate you"; "you are a single one" bears the attribute of an implied verbal noun, "a single repudiation", and bears "you are unique among your people".
The rest of the allusions, if he forms the intention to repudiate through them, produce an irrevocable repudiation: all the allusions are irrevocable except those three formulas; if he intends three, they are three, for irrevocability is divided into the strong and the weak: sometimes separation occurs through a single repudiation, sometimes through three, and what he intends occurs; if he intends two, only one occurs, the intention of two not being valid. Such are "you are separated", "a rupture", "you are a rupture", "you are forbidden", "your girth is on your shoulder", "join your family", "you are freed of me", "you are quit" and others: these formulas bear repudiation and other things, intention is therefore necessary.
"You are separated" bears separation from marriage and separation from debt; "rupture" is the act of cutting, it bears the cutting of marriage and the cutting of generosity and goodness, and "you are a rupture" stands for "rupture"; "you are forbidden" bears repudiation and the oath; "your girth is on your shoulder" bears "because you have separated from me" and bears "you do not obey me"; "join your family" bears "because I repudiated you" and bears visiting her family; "you are freed of me" bears deliverance from marriage, from goodness and from occupation; "you are quit" bears deliverance from marriage and from debt.
"And I make you a gift to your family", whether they accept it or not, bears "I make you a gift to them because you have separated from me" and bears the gift of the eye; according to Abu Hanifah, if he says "I make you a gift to your family, your father, your mother or the spouses", it is a repudiation if he forms the intention, for she goes to them through repudiation and the spouses own her after repudiation; if he says "I make you a gift to your brother, your paternal uncle, your maternal uncle or to so-and-so the unrelated man", it is not a repudiation, for she does not go to them through repudiation.
"I have freed you" and "I have parted from you" are two allusions, for they are employed in repudiation and elsewhere: one says "I freed my camels" and "I parted from my friend"; "I have freed you" bears freeing through repudiation and freeing for my needs; "I have parted from you" bears repudiation and parting through my body. "You are free" indicates forbiddance and bears her being a freedwoman; "cover yourself" bears "because you are repudiated" and bears covering the nakedness, like "veil yourself"; "become a stranger" bears "because you have separated from me" and bears "you do not obey me", like "keep far" which means "withdraw and go far away", according to Allah's saying: "Not an atom's weight escapes your Lord" (Surah Yunus, 61), distance ('uzub) being remoteness and departure. "Seek other husbands" bears "because I repudiated you" and bears removing her from him.
Among the allusions also: "go out", "go away", "stand up", "marry whom you wish", "depart", "move away", "there is no marriage between you and me", "I have no claim over you", "I have no marriage over you": if he intends repudiation by them, it is a repudiation, otherwise not. If he says "I am quit of your marriage", repudiation occurs if he forms the intention; if he says "I am quit of your repudiation", nothing occurs, for innocence from a thing is abandoning it and turning away from it, and one who turns away from repudiation is not a repudiator, while one who turns away from marriage is a repudiator. If he says "take your repudiation" and she says "I have taken it", she is repudiated; if he says to her "may Allah repudiate you" or says to his slave girl "may Allah free you", repudiation and manumission occur, whether he intends them or not. If he says "all the women of the world are repudiated", his wife is repudiated, and his claim that he did not mean her is not accepted from him in court.
If he says "you are not my wife" or "you are not a wife to me", it is a repudiation according to Abu Hanifah, likewise "I am not your husband"; and if he is asked "do you have a wife?" and answers "no", if he forms the intention to repudiate, it is a repudiation according to Abu Hanifah. Abu Yusuf and Muhammad say that none of that is a repudiation, whether he intends it or not: the denial of marriage is a lie and produces nothing, like "I did not marry you". They all agree that if he says "by Allah, you are not my wife" or "I am not, by Allah, your husband", nothing occurs even if he intends it: the oath bearing the negation encompasses the past, he is a liar in the oath, and nothing occurs; indeed, having reinforced the negation with the oath makes it an information and not a production of effect, the oath reinforcing only report, and report does not produce repudiation: likewise "I repudiated you yesterday" produces nothing if he did not repudiate her yesterday.
If he says "I have no more need of you" forming the intention to repudiate, it is not a repudiation; if he says "go, be free", or "I have dissolved the marriage between you and me", forming the intention to repudiate, it is a repudiation. Without intention, no repudiation occurs through the preceding formulas, unless he is in the midst of discussing repudiation, that is, she demands from him her repudiation or the repudiation of another wife: repudiation then occurs in court, but not between him and Allah, unless he forms the intention. For in the midst of discussion of repudiation, every formula indicating separation produces the effect in court, such as "you are forbidden", "your affair is in your hands", "choose", "complete your waiting period", "you are freed of me", "you are quit", "you are separated": these formulas, issued in answer to her demand for repudiation, are a repudiation outwardly; they do not occur between him and Allah because they bear the answer and bear initiative, and nothing occurs except through intention.
If they do not occur amid discussion of repudiation but in anger or quarrel, repudiation occurs through every formula not intended as an insult, such as "complete your waiting period", "choose", "your affair is in your hands": these formulas do not suit insult but bear separation, and the state of anger is the state of separation, the apparent of his speech being therefore separation. In sum: the allusions are of three categories: the allusions, the indicators and the delegations.
The allusions are: "you are forbidden", "you are separated", "a rupture", "you are a rupture", "you are freed of me", "you are quit", "complete your waiting period", "wait to establish the purity of your womb": if he utters them amid discussion of repudiation and says "I did not intend repudiation", he is not believed; if he utters them with satisfaction, if he intends repudiation it occurs, otherwise not, and he is believed when he says he did not intend repudiation; if he utters them in anger, he is believed in five formulas that he did not intend repudiation: "you are forbidden", "you are separated", "a rupture", "you are freed of me" and "you are quit", for they suit insult: "separated" bears debt, "rupture" generosity, "freed" goodness, "quit" religion, "forbidden" having relations with you; the state being the state of insult, the apparent is that he meant that and not repudiation.
The indicators are: "go away", "stand up", "veil yourself", "cover yourself", "go out", "join your family", "your girth is on your shoulder", "there is no marriage between you and me" and the like: if he forms the intention to repudiate, the irrevocable repudiation occurs; if he intends three, they are three; if he forms no intention, it is not a repudiation, whether with satisfaction, in anger or amid discussion of repudiation. The delegations are "your affair is in your hands" and "choose": in anger, he is believed neither in the delegations nor in the revocable allusions; that is, he is not believed in the delegations when she answers "I have chosen myself" or "I repudiated myself": her saying "I have chosen myself" produces an irrevocable repudiation, her saying "I repudiated myself" a revocable repudiation (Bada'i' as-Sana'i' 3/105, 108 ; al-Hidayah 1/241-242 ; al-Jawharah an-Nayyirah 4/403, 411 ; al-Ikhtiyar 3/165, 168 ; Tabyin al-Haqa'iq 2/215, 217 ; al-'Inayah 5/272, 275 ; Mukhtasar al-Wiqayah 1/393-394 ; al-Lubab 2/79, 82 ; Hashiyat Ibn Abidin 3/296).
The Malikis say: the allusion divides into apparent allusion and hidden allusion. The apparent allusion is that whose customary usage is repudiation through it in the Law or in the language, like the formula of freeing and separation, "you are separated", "a rupture" or "you are a rupture" and the like: its ruling is the ruling of the explicit formula. The apparent allusion has several types.
The first type: a single repudiation binds unless he intends more, in the case of the wife with whom the marriage has been consummated, and it is the formula "complete your waiting period": if he says it to his consummated wife, a single repudiation binds unless he intends more, what he intended then binding; as for the wife with whom it has not been consummated, she has no waiting period, and "complete your waiting period" with regard to her belongs to the hidden allusions. The second type: three repudiations bind in absolute terms, upon the consummated wife as upon the other, through these two formulas only: "you are a rupture" (the act of cutting: as if he had cut the marital bond between them) and "your girth is on your shoulder" (the girth designating the bond: if he throws it on her shoulder, nothing remains for him over her in absolute terms). It is as if his wife had bought the bond from her husband, saying "sell me your bond for a hundred", and he sold it to her: she then repudiates three times, whether he consummated or not.
The third type: three repudiations bind upon the consummated wife, one upon the other, unless he intends more, and these are three formulas. The first: "you are repudiated with a single irrevocable repudiation": on account of the word "irrevocable", for irrevocability after consummation without compensation is realized only through three, so the three bind, and no account is taken of the word "single": either because it is the attribute of an implied "once" ("a single time"), as indicated by "irrevocable" that follows it, or because precautions are taken for the private parts unlike others, the word "irrevocable" being considered and the word "single" voided. The second: intending the single irrevocable repudiation through "I have freed your way" or any other apparent allusion. The third: "enter, go away, depart" and the other hidden allusions: three bind upon the consummated wife, a single one upon the other unless he intends more; it is preferable to intend the single irrevocable repudiation through the explicit formula of repudiation: if he says to her "you are repudiated" intending the single irrevocable, the three bind upon the consummated wife only, unless he intends more, for intending irrevocability is like the other intentions.
The fourth type: three repudiations bind upon the consummated wife as upon the other, unless he intends less, and these are the formulas "like carrion" and "like blood": whoever says to his wife "you are to me like carrion, like blood or like the flesh of swine", "I make you a gift to your family", "I return you", "I have no bond over you", "you are forbidden or freed for your family (from the husband)", "you are quit or separated (from me)", "I have no bond over you", "you are separated", "I am separated from you", "I am freed, quit or separated": the three bind upon the consummated wife as upon the other, unless he intends less, what he intended then binding; and he must swear, if he wants to marry her, that he intended only the less, not if he did not intend it. Some of these formulas ("freed of me", "quit", "your girth on your shoulder", "like blood and carrion") impose what is mentioned only if usage runs through them; if their employment in repudiation has ceased among the people, as is now the case, they belong to the hidden allusions: if he intends repudiation by them, it binds, otherwise not.
The fifth type: three repudiations bind in absolute terms, whether he consummated or not, unless he intends less than three, like "I have freed your way": the three bind whether he forms the intention or none; if he intends less, what he intended binds, upon the consummated wife as upon the other; if he intends the single irrevocable, the three bind upon the consummated wife and a single one upon the other. The sixth type: the three bind upon the consummated wife only, and he intends the number for the other, like "my face is forbidden to your face", "my face upon your face is forbidden", "there is no marriage between you and me", "I have no ownership over you" or "I have no claim over you": the three bind upon the consummated wife only.
Except when it is for reproach: if it is reproach, nothing falls upon him, as when she does things contrary to his wish without his permission and he says that to her; reproach is an indication and a plainness of the absence of will to repudiate, like "how abominable" without intending repudiation, or "the lawful is forbidden", "the lawful is forbidden to me", "I have a forbiddance upon me", "all that I own is forbidden" without including the wife: nothing falls upon him; if he intends to include her, the three bind upon the consummated wife and the other, unless he intends less. The seventh type: a single repudiation binds unless he intends more, whether he consummated or not, like "I have parted from you": it is revocable upon the consummated wife.
All this holds so long as plainness and indications do not point to the absence of will to repudiate and so long as addressing by such a formula is not at all on the occasion of repudiation. He is believed in negating repudiation if a plainness indicates negation in all the apparent allusions as in the explicit formula: he is believed in his negation when the indications stand, as when repudiation reached her at her childbirth and he says "you are repudiated" to inform or to inquire, or she is restrained and she or another says to him "divorce me" and he answers "you are repudiated", and similar to what the state requires.
The second category is the hidden allusion: what can be employed for other than repudiation. The bearing allusion, such as "join your family", "go away", "keep far from me" and the like, imposes repudiation only if he forms the intention, and his declaration that he did not intend repudiation is accepted.
He intends, in the root of repudiation and in its number, in every hidden allusion that suggests the purpose of repudiating, such as "go away", "withdraw", "depart", "I did not marry"; or if he is asked "do you have a wife?" and answers "no"; or if he says to her "you are free", "you are manumitted" or "join your family": if he claims the absence of repudiation, he is believed; if he claims a number, one or more, he is believed; if he claims to have intended repudiation without intending a number, the three bind upon the consummated wife and the other. If he intends repudiation through a word like "give me to drink" or through a plain sound, it binds: it is hidden allusion according to the jurists, even if it is not employed bound to its meaning.
If he intends the articulation of repudiation and slips into something else by mistake, as if he wanted to say "you are repudiated" and his tongue turned into "you are standing", nothing binds: his pillar, the formula indicating it, or what replaces it together with his intention, is missing; he wanted to produce it through its formula and fell into something else. Likewise if he wants to utter the three and says "you are repudiated" then remains silent about uttering the three: what exceeds the single is not imposed on him, for he did not intend the three through "you are repudiated"; he wanted to utter the three, then their absence appeared to him and he remained silent about uttering them. As for one who wants to produce a single repudiation and says "you are repudiated three times", it is said that the three are imposed upon him in fatwa and in court: this is the view of Malik and Sahnun; as for one who wants to suspend the three by a condition and says "you are repudiated three times" then remains silent without bringing the condition, nothing falls upon him (al-Ishraf 3/420, 424 ; at-Taj wal-Iklil 3/59, 69 ; Mawahib al-Jalil 5/273, 277 ; Sharh Mukhtasar Khalil 4/43, 48 ; ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi 3/267, 275 ; Tahbir al-Mukhtasar 3/157, 165 ; al-Qawanin al-fiqhiyya 1/152 ; Hashiyat as-Sawi 'ala ash-Sharh as-Saghir 5/331, 343).
The Shafi'is say: the allusive formulas produce repudiation only with intention. They are numerous: "you are freed of me", "you are quit", "a rupture", "you are a rupture", "you are separated", "you are forbidden", "you are free", "you are a single one", "complete your waiting period", "wait to establish the purity of your womb", "join your family", "your girth is on your shoulder", "I do not tend your flock" (that is, I care nothing for your state), "become a stranger", "keep far", "go out", "go away", "travel", "keep away from me", "strip off", "cover yourself", "veil yourself", "take the road", "separate", "keep distant", "bid me farewell", "leave me", "I am quit of you", "I have no more need of you", "you and your state", "you are repudiated", "you are departing", "taste", "swallow", "provide for yourself" and the like: the criterion of allusion is any formula that indicates separation closely and whose employment in repudiation is not known, neither legally nor by usage.
The formulas that bear repudiation only through a far-fetched bearing have no effect and produce no repudiation even with intention, such as "may Allah bless you", "may Allah reward you well", "how beautiful is your face", "come", "draw near", "spin", "give me to drink", "feed me", "provide for me", "sit" and the like. If he says to his wife "you are free", "you are manumitted" or "I have manumitted you" intending repudiation, she is repudiated.
Repudiation is not the allusion of zihar nor the reverse, though they share the indication of forbiddance, for the effectuation of each in its locus is possible: this question belongs to the branches of the rule "what is explicit in its chapter and finds effect in its locus does not become the allusion of something else". If he says to his wife "you are to me like the back of my mother" intending repudiation, or "you are repudiated" intending zihar, what he intended does not occur: the purport of the explicit formula occurs. If he says to her "you are forbidden to me", "you are forbidden" or "I have forbidden you" intending repudiation, a revocable repudiation occurs; if he intends a number, what he intended occurs.
According to one view, it is not a repudiation if we consider the formula explicit for requiring expiation, the explicit formula that finds effect in its locus not turning to something else through intention; if he intends zihar by it, it is a zihar; if he intends both together, is it a zihar or a repudiation, or does he choose and what he chooses is established? Three views, the soundest being the third, and the two never combine categorically: repudiation removes the marriage and zihar requires its persistence. If he intends thereby the forbiddance of her person, of her private parts, of intercourse or of her head, she does not become forbidden to him, though it be disliked of him, according to what an-Nasa'i reported: a man asked Ibn Abbas: "I have made my wife forbidden to me." He said: "You have lied, she is not forbidden to you", then he recited: "O Prophet, why do you forbid what Allah has made lawful to you" and the verse; but the expiation of an oath is due from him, that is, its like, for that is not an oath: the oath is contracted only by one of Allah's names or one of His attributes, and its obligation does not depend on intercourse, as if he said that to his slave girl: it is drawn from the story of Mariyah, when the Messenger of Allah said to her "she is forbidden to me" and the word of Allah came down: "O Prophet, why do you forbid what Allah has made lawful to you" up to "Allah has ordained for you the dissolution of your oaths", that is, He imposed upon you an expiation like the expiation of oaths.
Likewise she does not become forbidden to him though it be disliked of him, and the expiation of an oath is due from him immediately, that is, its like, as has passed; this holds if he had no intention in his saying "you are forbidden to me" according to the more apparent view, by the generality of what has passed. According to the second view, this saying is vain and there is no expiation.
The allusion does not act by itself: the intention of repudiation is required, and the intention is attached to the formula; if it precedes and he then articulates without intention, or he completes the formula and then forms the intention, she is not repudiated. If the intention accompanies the beginning of the formula without its end, or the reverse, she is repudiated according to the sounder view. The allusion does not become explicit through the wife's demand for repudiation nor through the indication of anger and obstinacy. Whenever he utters an allusion and says "I did not intend", he is believed upon his oath; if he prevaricates, she swears and the occurrence of repudiation is ruled; it may happen that indications present themselves by which it is permitted to swear to their like. The intention of repudiation in the allusion must be concurrent with the formula.
The state of intention has four cases. The first: the intention precedes the whole formula, and repudiation does not occur, the intention being stripped of the formula and the formula stripped of the intention. The second: the intention follows the whole formula, and repudiation does not occur either. The example of both is the intention of prayer: if it precedes the state of consecration, it is not valid; if it follows it, it is not valid. The third: the intention concurrent with the whole formula, present from beginning to end: repudiation occurs through formula and intention together, not through either alone, though the formula predominates by its evidentness.
The fourth: the intention is found in part of the formula and absent in another, either at the beginning and not the end, or at the end and not the beginning, as if he says "you are separated" forming the intention at "you are se" and leaving it at "-parated", or the reverse. Two views on the occurrence of repudiation: the first is that the formula is not counted once intention is considered in it, its presence in a part being like its absence in the whole, like the intention in the takbir of consecration; the second, which is sounder, is that repudiation occurs: the presumptive continuation of intention through everything in which it is considered is not necessary, like prayer, whose continuation of intention throughout is not necessary. Al-Mawardi said: the sounder in my view is to examine the intention: if it is found at the beginning of the formula, repudiation occurs even if absent at the end, like prayer whose intention at the beginning allows its absence at the end; if the intention is found at the end of the formula and absent at the beginning, repudiation does not occur, like the intention at the end of prayer; for once the intention has been contracted with the beginning of the formula, the rest refers back to it, and if it is empty of its beginning, it is vain, what remains together with the intention being incomplete and exiting the allusions of repudiation. This detail is nearer to al-Shafi'i's text, for he said: "it is not a repudiation until he begins and intends thereby repudiation": he considered the intention at the beginning of the formula, and Allah knows best (al-Hawi al-Kabir 10/163-164 ; see al-Bayan 10/92, 96 ; Rawdat at-Talibin 5/327, 333 ; an-Najm al-Wahhaj 7/486, 491 ; Kanz ar-Raghibin 3/801, 803 ; Mughni al-Muhtaj 4/458, 461 ; Tuhfat al-Muhtaj 9/340, 354 ; Nihayat al-Muhtaj 6/497, 503 ; ad-Dibaj al-Mudhahhab 3/403, 405).
The Hanbalis say: the allusions in repudiation are of two types, apparent and hidden. The apparent produces the three repudiations, for it is reported from Ali, Ibn Umar and Zayd (may Allah be pleased with them) in different events, and no opposing Companion is known: it is therefore a consensus; it is a formula that demands separation by repudiation, so the three occur as if he had repudiated three times, and its leading to separation is apparent, with no difference between the consummated wife and the other, the Companions not having made a distinction. Imam Ahmad disliked giving fatwa in the apparent allusions, because of the disagreement of the Companions, while inclining to the view that they amount to three repudiations.
From him also: what was intended occurs through the apparent allusion, according to what is reported: Rukanah ibn Abd Yazid had repudiated his wife Suhaymah by "rupture" (battah); he informed the Prophet (peace and blessings of Allah be upon him) and said: "By Allah, I intended only a single repudiation."
Rukanah ibn Abd Yazid repudiated his wife Suhaymah by a rupture; he informed the Prophet (peace and blessings of Allah be upon him) and said: "By Allah, I intended only a single repudiation." The Messenger of Allah said: "By Allah, did you intend only one?" He said: "By Allah, I intended only one." He returned her to him, and he repudiated her a second time in the time of Umar and a third time in the time of Uthman.Reported by al-Shafi'i in al-Umm (5/118, 137), by Abu Dawud (2206) and by al-Hakim in al-Mustadrak (2808); a weak hadith
This hadith is weak, though al-Hakim said it is sound by this narration: Imam al-Shafi'i mastered it and memorized it from his family, Sa'ib ibn Abd Yazid being the father of ash-Shafi'i and the brother of Rukanah ibn Abd Yazid, and Muhammad ibn Ali ibn Shafi' the uncle of ash-Shafi'i, the shaykh of Quraysh in his era. The proof according to him is that the Prophet said to the daughter of Ja'un "join your family", while he did not repudiate three times.
According to this narration, if he does not come with the apparent allusion while forming the intention of repudiating a number, a single repudiation occurs, as with "you are repudiated"; and his declaration of what he intended by the apparent allusion is accepted in court, as is his declaration that he intended nothing, according to the second narration, which knows better his design, a single repudiation then binding.
Three repudiations occur in "you are repudiated by a separation", "you are repudiated by a rupture" or "you are repudiated without taking back", without need of intention, for he thereby described the explicit repudiation. If he says to his wife "you are repudiated once, irrevocably" or "once, by a rupture", a revocable repudiation occurs, for he described the single one by other than its description, which was voided; and "you are repudiated once, three times, or three times, once": the three occur.
As for the hidden allusion, a single repudiation occurs through it, for its purport is abandonment without separation, like the explicit formula of repudiation; the Prophet said to the daughter of Ja'un "join your family" without repudiating three times, and he forbade that; and he said to Sawdah "complete your waiting period", making it a single repudiation.
The Prophet (peace and blessings of Allah be upon him) said to the daughter of Ja'un: "Join your family."Reported by Bukhari (5254)
Sawdah's hadith is weak: reported by al-Bayhaqi (7/347). The three narrations of the Companions on the apparent allusions are: from Ali (may Allah be pleased with him), judged hasan: reported by ad-Daraqutni (5/58), by Sa'id ibn Mansur in his Sunan (1/227, no 1679) and by al-Bayhaqi in as-Sunan al-Kubra (7/344); from Ibn Umar, judged sound: reported by Malik in the Muwatta (2/552, no 1152), by Abd al-Razzaq in al-Musannaf (6/358, no 11184), by Sa'id ibn Mansur (1/227, no 1678) and by al-Bayhaqi (7/344); from Zayd, judged hasan: reported by al-Bayhaqi (7/344), its chain containing Umar ibn Amir al-Basri, whom Ibn Adi described as a righteous shaykh, strengthened once by Ibn Ma'in and weakened another time, an-Nasa'i saying of him "he is not strong", that is, a weakness that does not spoil the hadith.
"Your girth is on your shoulder" means that the girth is at the front of the saddle: you are sent away, freed, neither held nor restrained by the knot of marriage. Also hidden are: "marry whom you wish", "you are lawful for the spouses", "I have no claim over you", "I have no authority over you", "I have manumitted you", "cover your hair", "cover yourself", "your affair is in your hands".
The hidden allusion is more concealed in its indication than the first: these are the formulas established for the single repudiation unless he intends more, such as "go out", "go away", "taste", "swallow", "I have freed your way", "you are freed" (repudiated, according to their saying "he freed my way"), "you are a single one" (isolated), "you are not my wife", "complete your waiting period", "wait to establish the purity of your womb" (from the purification of urine), "keep apart" (remain alone on one side), "join your family", "I have no more need of you", "nothing remains", "may Allah pardon you", "Allah has already given you rest from me", "choose", "the pen has run", and by the words of separation and freeing and their derivatives, except what was excluded in the explicit formula.
Ibn Aqil said: "Allah has already repudiated you" is a hidden allusion, likewise "Allah has separated between you and me in this world and the hereafter". Shaykh al-Islam Ibn Taymiyyah was consulted about a man who said to his wife: "If you declare me innocent, you are repudiated." She said: "May Allah declare you innocent of what women claim against men." He believed that she was declaring him innocent and repudiated her. Ibn Taymiyyah said he is declared innocent of what women claim against men if she is of sound judgment.
These three questions ("Allah has already repudiated you", "Allah has separated between you and me in this world and the hereafter", "may Allah declare you innocent") have the same ruling; their parallel is "Allah has already sold you" in obliging the sale, or "He has already released you" in release, and similar "Allah has already hired you or made you a gift"; the preceding declaration of innocence is valid even if she did not know what she declared him innocent of.
The allusion, even the apparent one, produces no repudiation so long as he does not intend it, for the allusion, its rank being below the explicit formula, has its action suspended upon the intention of repudiation to strengthen it; it is a formula bearing another meaning than repudiation, so it is not fixed for it without intention. The intention must be concurrent with the formula of the allusion: if he utters the allusion and then forms the intention to repudiate through it afterwards, nothing occurs, like one who forms the intention of purity through ablution before finishing it. According to one view, it suffices that it accompany its beginning: if it accompanies the second part of the allusion without the first, repudiation does not occur, what remains being unable to produce the effect after the first part came without intention; if it is found at the beginning and absent in the rest, it occurs.
Or he comes with the allusion accompanied by what stands in place of the intention of repudiation, as in quarrel, anger or answer to her question to repudiate him: repudiation then occurs from one who comes with an allusion, even without intention, for the indication of the state is like intention, since it changes the ruling of words and deeds: "O chaste one, son of the chaste one" in a state of veneration is praise, and in a state of insult it is blame and slander. One who claims in these states, quarrel, anger and demand for repudiation, that he did not intend repudiation or intended something else, is held accountable between him and Allah, his truth being possible, but it is not accepted from him in court, for it contradicts what the state indicates.
The formulas that do not indicate repudiation, such as "eat, drink, sit, stand up", "may Allah bless you", "you are beautiful" or "you are ugly", produce no repudiation even with intention, for they do not bear repudiation; had repudiation occurred through them, it would occur through mere intention, which is already excluded. Likewise "I am repudiated", "I am repudiated of you", "I am separated of you", "I am forbidden of you" or "I am quit of you": no repudiation binds even with intention, for it is a locus to which repudiation is not attached through intention, what is fixed for him (al-Mughni 7/297, 302 ; al-Kafi 3/171 ; ash-Sharh al-Kabir 8/285, 287 ; Sharh az-Zarkashi 2/468, 470 ; al-Mubdi' 7/275, 279 ; al-Insaf 8/475, 480 ; Kashshaf al-Qina' 5/287, 291 ; Sharh Muntaha al-Iradat 5/384, 385 ; Matalib Uli an-Nuha 5/349, 352).
The jurists differ over the man's saying to his wife "you are forbidden to me": is it a repudiation, a zihar, an oath whose expiation is due, or nothing of all that, or does it follow his intention?
The Hanafis hold that the formulas "you are forbidden to me", "I have forbidden you to myself", "I am forbidden to you", "I have forbidden myself to you" or "you are forbidden (muharramah) to me" are all equivalent: he is asked his intention, for he has uttered a vague word bearing several meanings, and the speaker's word is referred to his design, which is known only from him. If he says "I intended repudiation", it is an irrevocable repudiation, unless he intends three: they are then three; if he intends one, one; if he intends two, an irrevocable one, "forbidden" being an allusion to which one reverts through his intention.
If he says "I intended zihar", it is a zihar according to Abu Hanifah and Abu Yusuf, for he described her by forbiddance and zihar is a type of forbiddance; the absolute is referred to the specified when he forms the intention, the woman being sometimes forbidden through repudiation and sometimes through zihar: whichever of the two he intends, he intended what his word bears and he is believed. Muhammad says it is not a zihar, for want of comparison with the forbidden relatives: zihar is a comparison of the lawful to the forbidden, and comparison requires a particle of comparison which is absent.
If he says "I intended forbiddance" or "I intended nothing", it is an oath that makes him a man bound by an oath of estrangement: the original in forbidding the lawful is the oath. If he says "I intended forbiddance", he intended the oath; if he says "I intended nothing", he is not believed in court, for the apparent is the oath; the oath being established, he becomes thus bound, to the point that if he leaves her four months, she separates irrevocably, the original in forbidding the lawful being the oath. If he says "I intended the lie", it is nothing and so it is: it is not an ila, for he intended the literal meaning of his words; that is between him and Allah, but in court he is not believed and it is an oath, for the apparent is that forbiddance in the Law is an oath.
Allah said: "O Prophet, why do you forbid what Allah has made lawful to you" up to "Allah has ordained for you the dissolution of your oaths": the verse, it is said, came down concerning the forbidding of his bondwoman Mariyah the Copt when he said "she is forbidden to me", and Allah named that an oath through "Allah has ordained for you the dissolution of your oaths", that is, Allah gave you latitude or permitted you to make lawful what is forbidden to you by oath, through the expiation; in some readings: "the expiation of your oaths". The address is general, encompassing the Messenger of Allah and his bondwoman; the expiation of the oath requires the existence of the oath, which proves that this formula is an oath in the Law: if he intends by it the lie, he is not believed in court in annulling the oath, for he turned away from the apparent.
In al-Lubab: some of the early masters turn the formula of forbiddance into repudiation without intention, because of the ruling of usage; Imam al-Mahbubi said this is what is given fatwa upon. Najm al-A'immah said: our later companions hold that "the lawful is forbidden to me", "you are forbidden to me", "the lawful of Allah is forbidden to me" or "every lawful thing is forbidden to me" is an irrevocable repudiation that needs no intention, on account of usage; they answered Muhammad's saying ("if he intends an oath, it is an oath and his wife enters it only through intention, and it concerns food and drink") that this accords with the usage of their lands, whereas in the usage of our lands they intend the forbidding of the wife with whom the marriage has been consummated, and it is referred to that. In Mukhtarat an-Nawazil: the later ones said repudiation occurs through it without intention, by the predominance of customary usage, and the fatwa is upon it, so that only men swear by it. Among the formulas employed in our Egypt and our countryside: "repudiation is binding upon me", "the forbidden is binding upon me", "upon me is repudiation", "upon me is the forbidden", as in at-Tashih (al-Lubab 2/111, 113 ; al-Mabsut 6/270, 272 ; Tuhfat al-Fuqaha 2/197 ; Bada'i' as-Sana'i' 3/167, 169 ; al-Hidayah 2/13 ; al-'Inayah 5/362, 363 ; al-Jawharah an-Nayyirah 4/510, 512 ; Ikhtilaf al-'ulama' 1/198).
The Malikis hold that the man who says to his wife "you are forbidden to me" causes her to be repudiated with three repudiations, and he is not asked his intention, according to what Malik reported in the Muwatta: Ali ibn Abi Talib used to say, concerning the man who says to his wife "you are forbidden to me", that it is three repudiations. Malik said: "It is the best of what I have heard on this" (al-Muwatta 2/552). If he says it before consummating the marriage, she is repudiated by three, unless he says "I intended a single repudiation" according to Malik; Abd al-Aziz ibn Abi Salamah said she is repudiated by one unless he says "I intended three repudiations"; Abd al-Malik ibn al-Majishun said he forms no intention and they are three in every state, upon the consummated wife as upon the other.
Al-Mudawwanah reports: if he says to his wife "you are forbidden to me", he is asked neither intention nor anything else according to Malik, and they are three absolutely if the marriage has been consummated. If he says "I did not intend repudiation by it, I intended by this word the zihar", Malik heard regarding one who says "you are repudiated by a rupture" claiming to have intended a single repudiation that it is not accepted from him: people are taken by what their tongues have uttered in the matter of repudiation. Ibn al-Qasim said that "the forbidden" with Malik is a repudiation and no one is held religiously accountable in the forbidden as one is not in the repudiation. If he intends one or two repudiations: if the marriage has been consummated, they are the absolute (three) and his intention is worth nothing; otherwise they amount to what he intended, for the single and the double forbid the wife with whom it has not been consummated, whereas the consummated is forbidden only by three. "I have forbidden you to myself" and "I have forbidden myself to you" are equivalent with Malik, like "I repudiated you" and "I am repudiated from you": she is repudiated. Before consummation, "you are forbidden to me" amounts to three according to Malik, unless he intends one or two, in which case it amounts to what he intended (al-Mudawwanah al-Kubra 5/393-394 ; Sharh Sahih al-Bukhari 7/401-402 ; al-Kafi p. 265 ; al-Istidhkar 6/16, 22 ; Bidayat al-Mujtahid 2/58-59).
Ibn Abd al-Barr (may Allah have mercy on him) said: the proof of Malik and his adherents concerning the forbidden is the consensus of the scholars that the wife repudiated three times becomes forbidden to her husband: the three repudiations being a forbiddance, the forbiddance amounts to three repudiations, and Allah knows best (al-Istidhkar 6/22).
The Shafi'is hold that if the man says to his wife "you are forbidden to me" intending repudiation, it is a repudiation, for the formula bears forbiddance through repudiation, and the number he intended occurs, one, two or three; without intending a number, it is a revocable repudiation in which he retains the taking back. If he intends zihar by it, it is a zihar, for it bears forbiddance through zihar; if he intends ila by it, it is not an ila, for ila is an oath that is not contracted through allusion. If he intends the forbidding of intercourse, she does not become forbidden to him and the expiation of an oath is due from him, according to what Sa'id ibn Jubayr reported: a man came to Ibn Abbas (may Allah be pleased with him) and said: "I have made my wife forbidden to me." He said: "You have lied, she is not forbidden to you", then recited: "O Prophet, why do you forbid what Allah has made lawful to you, seeking the pleasure of your wives? Allah is Ever-Forgiving, Most Merciful. Allah has ordained for you the dissolution of your oaths" until the end of the verse; the expiation of an oath is due from him, for the Prophet (peace and blessings of Allah be upon him) had forbidden Mariyah the Copt, mother of Ibrahim son of the Messenger of Allah, and Allah sent down the verse: the expiation became due for the bondwoman through the verse, and the free woman was analogized to her, for they are alike in the lawfulness and forbiddance of the private parts.
"O Prophet, why do you forbid what Allah has made lawful to you, seeking the pleasure of your wives? Allah is Ever-Forgiving, Most Merciful. Allah has ordained for you the dissolution of your oaths. Allah is your Master."
Surah at-Tahrim, 1-2
If he formed no will, neither repudiation nor zihar nor forbiddance attaches to him; is the expiation of an oath due from him or not? Two views: it is due from him, or it is not. Imam ash-Shafi'i (may Allah have mercy on him) said: if the man says to his wife "you are forbidden to me", no repudiation occurs so long as he does not intend repudiation; if he forms the intention, it is a repudiation of the number intended; if he intends a repudiation without intending a number, it is a single repudiation in which he retains the taking back. If he says "I intended her forbidding without repudiation", she does not become forbidden to him and the expiation of an oath is due from him; he may have intercourse with her if he wishes before performing the expiation. We say the expiation of an oath is due from him because he intended her forbidding without intending her repudiation: the Prophet forbade his bondwoman and the expiation of an oath was ordered; the verse establishes that, the husband not intending repudiation through the forbidding of his wife, the forbidding fell upon a lawful private part that does not become forbidden by its being forbidden: the expiation is due from him as from one who forbids his bondwoman, and she does not become forbidden to him, for both are a forbidding of two private parts without repudiation through either.
If he says "everything I own is forbidden to me", meaning his wife, his bondwomen and his wealth, he expiates for the woman and the bondwomen with an expiation each, if he did not intend the repudiation of the woman; if he says "my wealth is forbidden to me" without intending his wife or his bondwomen, no expiation is due from him and his wealth does not become forbidden to him (al-Umm 5/262 ; al-Hawi al-Kabir 10/182-183 ; al-Muhadhdhab 2/83 ; Sharh Sahih Muslim 10/73-74 ; al-Awsat 9/188, 195 ; al-Ishraf 5/200, 202).
The Hanbalis in the doctrine hold that one who says to his wife "you are forbidden to me" commits a zihar whose zihar expiation is due, whether he intends it or not, for it is a forbidding of the wife without repudiation, the zihar expiation is therefore due, as if he said "you are forbidden to me like the back of my mother". This is because Allah established that comparing her to those forbidden to him by zihar makes him a man of zihar; his explicit forbidding is therefore stronger still. This is supported by the fact that Allah did not give man the forbidding and the making lawful: one who says "you are to me like the back of my mother" or "you are forbidden to me" has uttered the rejected speech and falsehood, lied against Allah, and has imposed upon himself the greater of the two expiations: the zihar expiation.
Abdullah ibn Ahmad ibn Hanbal said: I asked my father about a man who said to his wife "you are forbidden to me" intending repudiation: he answered that it is not a repudiation, whether he intends it or not, and the zihar expiation is due for it (Masail Abdullah ibn al-Imam Ahmad 1/343). The second narration: it is an oath whose expiation is due, for Allah said "why do you forbid what Allah has made lawful to you" (Surah at-Tahrim, 66:1) then "Allah has ordained for you the dissolution of your oaths" (Surah at-Tahrim, 66:2); Ibn Abbas said: "When a man forbids his wife, it is an oath whose expiation he performs", and he recited "You have in the Messenger of Allah an excellent example" (Surah Luqman, 21) (reported by Bukhari 4965 and Muslim 1473); and because it is a forbidding of the lawful, like the forbidding of the bondwoman, and it is reported from as-Siddiq, Umar, Ibn Mas'ud and Aisha (may Allah be pleased with them): it is a forbidding of a woman, it is therefore an oath like the forbidding of the bondwoman.
A third narration from him: if he intends repudiation by it, it is a repudiation, for repudiation is a forbidding and the allusion is valid through "the forbidden" as in "you are the distress"; if he does not intend repudiation, it is a zihar. If he says "you are forbidden to me" intending repudiation and zihar together, it is a zihar and not a repudiation: a single formula cannot be both zihar and repudiation, zihar being more worthy of this formula, toward which it turns. If he says "you are forbidden to me, I intend by it the repudiation", there are two narrations: the first, the famous one, is that it is a repudiation, for he is explicit through the word of repudiation; the second is that it is a zihar, for "the forbidden" does not stand as an allusion to repudiation and does not become repudiation through "I intend by it the repudiation", as in "you are to me like the back of my mother" (Masail Abdullah ibn al-Imam Ahmad 1/343 ; al-Ifsah 2/187-188 ; al-Mughni 7/317-318, 8/8, 12 ; al-Kafi 3/173-174 ; ash-Sharh al-Kabir 8/300, 304 ; ar-Rawd al-Murbi' 2/377, 423 ; Manar as-Sabil 3/134-135).
Imam al-Qurtubi (may Allah have mercy on him) said: the scholars have differed, over the man who says to his wife "you are forbidden to me", upon eighteen opinions, which he then enumerated (Tafsir al-Qurtubi 18/180, 185). Ibn al-Qayyim (may Allah have mercy on him) said: such is also the ruling of "if you do this, you are forbidden to me", which deserves the expiation of an oath more than "you are forbidden to me". Concerning "you are forbidden to me", "what Allah has made lawful is forbidden to me" or "you are forbidden to me like carrion, blood and the flesh of swine", here are the schools:
The first: it is a vain and void word from which nothing follows: this is one of the two narrations from Ibn Abbas, the view of Masruq, Abu Salamah ibn Abd ar-Rahman, Ata, al-Sha'bi, Dawud, all the literalists and most of the hadith scholars, and one of the two views of the Malikis, chosen by Asbagh ibn al-Faraj. In the Sahih, Sa'id ibn Jubayr heard Ibn Abbas say: "Whoever forbids his wife, it is nothing: you have had in the Messenger of Allah an excellent example" (Bukhari 4965). Masruq said in an established report: "It matters little to me whether I have forbidden my wife or a dish of broth"; al-Sha'bi said concerning the forbidding of the woman: "It is a play lighter upon me than my sandals"; Abu Salamah said: "It matters little to me whether I have forbidden my wife or the water of the river"; and Hajjaj ibn Minhal reported that a man made his wife forbidden and then asked Humayd ibn Abd ar-Rahman, who answered him: Allah said "So when you are free, devote yourself" and "and to your Lord turn your longing" (Surah ash-Sharh, 7-8): you are a man who plays, so go and play.
The second school: it is three repudiations: this is the view of Ali ibn Abi Talib (may Allah ennoble his face), of Zayd ibn Thabit, of Ibn Umar, of al-Hasan al-Basri and of Muhammad ibn Abd ar-Rahman ibn Abi Layla; the commander of the faithful Ali ruled the three in the case of Adi ibn Qays al-Kilabi and said to him: "By Him in Whose hand my soul is, if you touch her before marrying another woman, I will have you stoned." The proof of this view is that she becomes forbidden to him only through the three: the occurrence of the three therefore follows from her being forbidden. The third: she becomes forbidden to him through this word without repudiation: established also from Abu Hurayrah, al-Hasan, Khilas ibn Amr, Jabir ibn Zayd and Qatadah, who mentioned no repudiation but ordered only abstaining from her; established also from Ali: either two narrations from him, or he meant the forbidding that follows from the three. The proof is that his formula demanded only forbiddance without touching the number of repudiation, so she is forbidden to him by the requirement of his forbidding.
The fourth: suspension upon the question: established also from the commander of the faithful Ali, and it is the view of al-Sha'bi, who said: some men say concerning "the lawful is forbidden" that she is forbidden until she marries another, attributing it to Ali; by Allah, Ali did not say that: he said "I do not make her lawful for you and I do not forbid her to you: if you wish, go ahead; if you wish, delay". The proof is that forbidding is not a repudiation, that he does not own the forbidding of the lawful, but that he owns the creation of the cause through which forbidding comes, namely repudiation; this formula is neither explicit for repudiation nor of that for which the legal usage has been established for forbidding the wife: the matter is therefore ambiguous. The fifth: if he intends repudiation by it, it is a repudiation; otherwise it is an oath: this is the view of Tawus, al-Zuhri, ash-Shafi'i and one narration from al-Hasan. The proof: it is an allusion within repudiation, intended it is repudiation, not intended it is an oath, according to "O Prophet, why do you forbid" up to "the dissolution of your oaths" (Surah at-Tahrim, 66:1-2).
The sixth: if he intends the three by it, they are three; if he intends one, an irrevocable one; if he intends an oath, it is an oath; if he intends nothing, it is a lie in which there is nothing: Sufyan said it and an-Nakha'i reported it from his companions. The proof: the formula bears what he intended of that and follows his intention. The seventh: the same, except that if he intends nothing, it is an oath whose expiation he performs: this is the view of al-Awza'i. The proof: the apparent of "Allah has ordained for you the dissolution of your oaths" (Surah at-Tahrim, 66:2): if he intends repudiation by it, it is not an oath; if he repudiates without intending repudiation, it is an oath. The eighth: the same, except that if he intends nothing, it is a single irrevocable repudiation, in application of the word of forbidding.
The ninth: the zihar expiation is due for it: established also from Ibn Abbas, Abu Qilabah, Sa'id ibn Jubayr, Wahb ibn Munabbih and Uthman at-Taymi, and it is one of the narrations of Ahmad. The proof: Allah established that comparing the woman to his forbidden mother is a zihar, which He described as rejected speech and falsehood; comparison to the forbidden making the man a man of zihar, his explicit forbidding does so more. It is the most analogous and most discerning of the views, supported by the fact that Allah did not give the morally responsible the forbidding and the making lawful: they belong to Him; He gave him only the performance of deeds and words that bring about forbidding and lawfulness: the cause belongs to the servant, the ruling to Allah. One who says "you are to me like the back of my mother" or "you are forbidden to me" has uttered the rejected speech and falsehood, has lied, for Allah did not make his wife like the back of his mother nor forbid her: he has thus imposed upon himself the greater of the two expiations, the zihar expiation.
The tenth: a single repudiation: one of the two narrations from Umar ibn al-Khattab, and the view of Hammad ibn Abi Sulayman, the teacher of Abu Hanifah. The proof: the repudiation of forbidding does not require forbidding through three but is valid through less, and the single one is definite: the formula is referred to it because it is certainty, like forbidding through the completion of the waiting period. The eleventh: he intends whatever he wishes of it, the root of repudiation and its number; if he intends forbidding without repudiation, it is an expiated oath: this is the view of ash-Shafi'i. The proof: the formula suits all of that, no single one being fixed except through intention; if he intends pure forbidding, he abstains from her through forbidding as he abstains through oath, and she does not become forbidden to him in either case. The twelfth: he also intends the root and the number, except that if he intends one, it is irrevocable; if he does not intend repudiation, he becomes bound by the oath of estrangement; if he intends the lie, it is nothing: this is the view of Abu Hanifah and his companions.
Another narration from Abu Hanifah: if he intends the lie, he is held accountable religiously without it being accepted in court, and he becomes bound by the oath; he does not become a man of zihar, whether he intends it or not, and even if he makes it explicit saying "I intend by it the zihar", he does not become a man of zihar. The thirteenth: it is an oath whose expiation he performs like an oath in every state: established also from Abu Bakr as-Siddiq, Umar ibn al-Khattab, Ibn Abbas, Aisha, Zayd ibn Thabit, Ibn Mas'ud, Abdullah ibn Umar, Ikrimah, Ata, Makhul, Qatadah, al-Hasan, al-Sha'bi, Sa'id ibn al-Musayyib, Sulayman ibn Yasar, Jabir ibn Zayd, Sa'id ibn Jubayr, Nafi', al-Awza'i, Abu Thawr and a great many others. The proof: the apparent of the Qur'an: Allah mentioned the expiation of oaths after the forbidding of the lawful, so it certainly encompasses it, and the expiation cannot be established for other than what is mentioned before it.
The narrations of as-Siddiq, Umar and Ibn Mas'ud are judged weak: that of as-Siddiq has in its chain Juwaybir, a weak hadith transmitter, and ad-Dahhak did not meet Abu Bakr (Sa'id ibn Mansur 1/228, no 1695 ; Ibn Abi Shaybah, al-Musannaf 5/74, no 18507); that of Umar has in its chain Ikrimah, who did not meet Umar (Ibn Abi Shaybah 5/73, no 18497 ; Sa'id ibn Mansur 1/229, no 1701 ; ad-Daraqutni 5/73 ; al-Bayhaqi 7/350); that of Ibn Mas'ud has in its chain Ash'ath ibn Siwar, weak (Sa'id ibn Mansur 1/229, no 1698 ; al-Umm 7/157 ; at-Tabarani, al-Kabir 9/327 ; al-Bayhaqi 7/350).
The fourteenth: it is an aggravated oath whose expiation necessarily requires the freeing of a slave: established also from Ibn Abbas, Abu Bakr, Umar, Ibn Mas'ud and a group of the Successors. The proof: it is an aggravated oath, its expiation is therefore aggravated by the requirement of freeing; its aggravation lies in its containing the forbidding of what Allah has made lawful, which does not belong to the servant, and in the rejected speech and falsehood if he meant the report: he is a liar in his report and a transgressor in his oath, his expiation is therefore aggravated by freeing like the zihar expiation, or by fasting two months or feeding sixty poor persons.
The fifteenth: it is a repudiation; if she has not been consummated, what he intends of it, one or more; if she has been consummated, the three even if he intends less: this is one of the two narrations from Malik. The proof: the formula having demanded forbidding, its ruling must follow from it; the wife with whom it has not been consummated is forbidden through one, the consummated only through three. In Malik's doctrine five views exist: this is one of them, the most famous; the second: three in every state, whether he intends three or not, chosen by Abd al-Malik in his Mabsut; the third: a single irrevocable repudiation absolutely, reported by Ibn Khuzayz Mandad from Malik; the fourth: a single revocable repudiation, the view of Abd al-Aziz ibn Abi Salamah; the fifth: whatever he intends of it absolutely, before or after consummation; the orientation of these views is already known.
There is in the question a doctrine beyond all that, that of Ibn Taymiyyah: if he brings the forbidding into effect, it is a zihar even if he intends repudiation by it, and if he makes it an oath, it is an expiated oath. If he brings it into effect, he has uttered the rejected speech and falsehood and deserves the zihar expiation more than one who compared his wife to the forbidden; if he makes it an oath, it is an oath among the oaths, like the oath to free, to perform the pilgrimage or to give charity: it is pure analogy and fiqh. "Upon me, for Allah, is the freeing, the pilgrimage or the fasting": it binds him; "if I speak to so-and-so, that is for Allah upon me" as an oath: it is an oath; "he is a Jew" or "a Christian": he disbelieves through that; "if he does this, he is a Jew or a Christian": it is an oath. The exact parallel: "you are to me like the back of my mother" is a zihar; "if you do this, you are to me like the back of my mother" is an oath; "you are repudiated" is a repudiation; "if you do this, you are repudiated" is an oath: such are the sound, continuous principles drawn from the Book, the Sunnah and the Balance, and success is from Allah (I'lam al-Muwaqqi'in 3/66, 73 ; Ibn al-Mundhir also mentioned it in al-Awsat 9/188, 195 ; al-Ishraf 5/200, 202).
Most of the scholars hold that the formulas that are not among the formulas of repudiation and do not serve as allusion to it produce no repudiation, even with intention. Ibn Battal (may Allah have mercy on him) said: most of the scholars produce no repudiation through them even if the speaker intends it. Malik said: whoever intends repudiation through any formula whatsoever, repudiation binds him, even by saying "eat, drink, stand up, sit down" and the like. His proof is that Allah established that the symbol, that is, the gesture, equals speech in alluding to what one intends: "to speak to no one for three days, except by gesture" (Surah Al Imran, 3:41); likewise the separation of the two spouses who cursed one another (li'an) was a repudiation without their articulating it, and it is likewise reported of the couple in mutual imprecation (mukhali'ah) that when she returned his garden to him and he took it back, it was a repudiation (Sharh Sahih al-Bukhari 7/389).
Imam Ibn Abd al-Barr (may Allah have mercy on him) said: concerning the formulas that are not among the formulas of repudiation nor an allusion to separation, most of the scholars produce nothing of repudiation through them even if the speaker intends it. Malik said that whoever intends repudiation through any formula whatsoever, repudiation binds him, even by "eat, drink, stand up, sit down" and the like; Malik was followed in this only by his companions. The principle is that the defined bond is not lifted except by a certainty of intention and design and of unanimity on Allah's design through it; this is, in my view, the mufti's precaution, and success is from Allah (al-Istidhkar 6/24).
Ibn Qudamah (may Allah have mercy on him) said: what does not resemble repudiation and does not indicate separation, such as "sit down", "stand up", "eat", "drink", "draw near", "feed me", "give me to drink", "may Allah bless you", "may Allah forgive you", "how beautiful you are" and the like, is not an allusion and produces no repudiation even with intention: the formula does not bear repudiation, and had repudiation occurred through it, it would occur through mere intention, which is already excluded. Abu Hanifah said the same.
The companions of ash-Shafi'i differed over "eat and drink": some follow our view (no effect); others say it is an allusion, for it bears "taste the pain of repudiation" and "drink the cup of separation", repudiation occurring through it, like "taste" and "swallow". Our answer: this formula, alone, is employed only in what is not painful, like "Eat and drink with relish for what you used to do" (Surah at-Tur, 52:19) and "So eat it with pleasure and ease" (Surah an-Nisa, 4:4): it is not an allusion, unlike "feed me"; it differs from "taste" and "swallow", which are employed in the painful: "Taste, you are the Mighty, the Noble" (Surah ad-Dukhan, 44:49), "Taste the punishment of the burning" (Surah Al Imran, 3:181), "Taste the touch of Saqar" (Surah al-Qamar, 54:48); likewise swallowing: "He will swallow it but will hardly be able to" (Surah Ibrahim, 14:17): what does not resemble them therefore cannot be attached to them (al-Mughni 7/302).
The question of the man who says to his wife with whom the marriage has been consummated "you are repudiated, you are repudiated, you are repudiated" has several forms. The first: he intends three by it. The jurists of the four schools agree that when the man says to his wife "you are repudiated, you are repudiated" intending two repudiations, two occur without disagreement among the schools; and if he says "you are repudiated, you are repudiated, you are repudiated" intending three, the three occur, even within a single sitting.
Imam Muhammad ibn Nasr al-Marwazi (may Allah have mercy on him) said: no disagreement exists among the scholars that when she is a wife with whom the marriage has been consummated and he says to her "you are repudiated, you are repudiated, you are repudiated", whether he remains silent or not between them, three repudiations occur, unless he intends the repetition of the speech through his second and third utterance, and Allah knows best (Ikhtilaf al-'ulama' p. 134 ; see al-Mabsut 6/99 ; Bada'i' as-Sana'i' 3/102 ; al-Muhit al-Burhani 3/444 ; al-Jawharah an-Nayyirah 4/403 ; Hashiyat Ibn Abidin 3/293 ; Tanqih al-Fatawa al-Hamidiyyah 1/264 ; al-Qawanin al-fiqhiyya p. 152 ; at-Taj wal-Iklil 3/71-72 ; Mawahib al-Jalil 5/278-279 ; Sharh Mukhtasar Khalil 4/50 ; Tahbir al-Mukhtasar 3/168-169 ; ash-Sharh al-Kabir ma'a Hashiyat ad-Dasuqi 3/278 ; al-Hawi al-Kabir 10/219 ; al-Muhadhdhab 2/85 ; al-Bayan 10/116 ; Rawdat at-Talibin 5/378 ; Asna al-Matalib 3/288 ; an-Najm al-Wahhaj 7/520 ; Mughni al-Muhtaj 4/480 ; al-Ifsah 2/177-178 ; al-Mughni 7/367 ; al-Mubdi' 7/301 ; al-Insaf 9/22 ; Kashshaf al-Qina' 5/305 ; Matalib Uli an-Nuha 5/370).