Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > The first pillar: the one who repudiates
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
Who may repudiate, and what are the effects of a repudiation pronounced by a husband suffering from a terminal illness? The first pillar of talak, the one who repudiates, carries conditions detailed by the schools: being a husband, having reached puberty, being of sound mind, being a Muslim, being neither coerced nor angry. The text examines in detail the case of the discriminating child, the ma'tuh of impaired judgment, the prodigal (safih), the disbeliever, the unconscious man, the mubrasm and the jester, before turning to inheritance between spouses when the repudiation occurs during a fatal illness: revocable or irrevocable repudiation, death during or after the idda (waiting period), the wife's request for repudiation, and remarriage. Each school position is reported with its Quranic and prophetic evidences and its classical references.
These are the conditions, according to the Hanafis, the Hanbalis and Ibn Arafa among the Malikis; the detail will come later. Each of these pillars carries conditions whose fulfillment makes the talak valid. The first pillar is the repudiating husband (al-mutalliq): conditions must be met for his repudiation to take effect upon his wife, after their agreement that if he is pubescent, sane, free, not coerced and not angry, his repudiation is valid (Bidayat al-Mujtahid 2/61).
First condition: being a husband. The jurists agree that the repudiator is required to be a husband; a repudiation from other than the husband is valid only through the authority of the guardian (wilaya), as will be explained, Allah willing. The husband is the one who has a valid marriage contract with the woman he repudiates (sources cited below).
Second condition: being pubescent, that is, the repudiation of the child. The jurists of the four schools agree that the repudiation of a child who cannot yet discriminate is neither valid nor effective. Imam al-Baghawi, may Allah have mercy on him, said: "The people of knowledge agree that the repudiation of the child and the insane has no effect" (Sharh as-Sunna 9/220); what is meant is the one who cannot discriminate.
They diverged, however, over the child who understands talak and knows that his wife becomes forbidden to him by it: does his repudiation take effect or not? The majority of jurists, namely the Hanafis, Malikis, Shafi'is and Hanbalis according to one narration, require puberty for the validity of talak: the child's repudiation, suspended or immediate, has no effect even if he understands its meaning. For talak was only legislated when marriage ceases to be a benefit, and that is known only through reflection; the child, absorbed in play and amusement, does not reflect and does not know. Added to this is the Prophet's saying:
"The Pen has been lifted from three... and from the child until he has a wet dream."authentic hadith, cited earlier
And because he is not legally accountable, his repudiation has no effect, like that of the insane; and talak does not await his puberty, to the point that even if he authorizes it as an adult, it does not take effect, unless he himself pronounces a repudiation once pubescent. Likewise, if he suspended the repudiation while still adolescent, saying: "If I reach puberty, you are repudiated," and then he reached puberty: his repudiation does not take effect (al-Mabsut 6/53; Bada'i' as-Sana'i' 3/100; al-Hidaya 1/229; al-Jawhara an-Nira 4/398; al-Ikhtiyar 3/155; Sharh Fath al-Qadir 3/487; al-'Inaya Sharh al-Hidaya 5/184; Hashiyat Ibn Abidin 3/245; al-Mudawwana al-Kubra 5/25; al-Kafi, p. 262; at-Taj wal-Iklil 3/41; ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 3/246; Tathbir al-Mukhtasar 3/137; al-Iqna' fi Masa'il al-Ijma' 3/1288; al-Umm 5/25; al-Ishraf of Ibn al-Mundhir 5/225; al-Bayan 10/68; Rawdat at-Talibin 5/323; an-Najm al-Wahhaj 7/479; Mughni al-Muhtaj 4/454).
The Hanbalis, on the other hand, held in their school that the child who understands talak and knows that his wife becomes forbidden to him by it: his repudiation takes effect, because of the Prophet's saying:
"O people, what is the matter with one of you who marries his male slave to his slave woman and then wishes to separate them? Repudiation belongs only to the one who seizes the leg."good hadith, reported by Ibn Majah 2081
And his saying:
"Every repudiation is valid except that of the ma'tuh overcome by his intellect."weak hadith, reported by at-Tirmidhi 1191, who said: we do not know it as a Prophetic statement except through the hadith of Ata ibn Ajlan, and Ata ibn Ajlan is weak
It is also narrated from Ali, may Allah be pleased with him, that he said: "Conceal marriage from children" (reported by Ibn Abi Shayba 17940), from which it is understood that they should not repudiate; and because it is a repudiation from a sane person who meets the object of talak, it takes effect like the repudiation of a pubescent man.
Ibn Qudama, may Allah have mercy on him, said: most of the narrations from Ahmad specify that the child's repudiation takes effect only if he understands, and that is the judge's decision. Abu al-Harith narrated from Ahmad: once he understands talak, his repudiation is valid, between ten and twelve years of age; this indicates that before ten it does not take effect, and that is Abu Bakr's choice, because ten years is the threshold for the flogging for neglecting prayer and fasting and for the validity of a bequest; the same applies here. Sa'id ibn al-Musayyib said: if he keeps count of the prayers and fasts Ramadan, his repudiation is valid. Ata said: "when he reaches the age of touching women." Al-Hasan said: "when he understands, keeps up the prayer and fasts Ramadan." Ishaq said: "when he passes twelve."
Chapter: whoever permits the child's repudiation must, according to his doctrine, permit delegating it to him and his delegation of it to another. Ahmad alluded to this: regarding a man who said to a boy "repudiate my wife," and the boy replied "I have repudiated you three times," he said that it does not affect her as long as he does not understand talak. He was told: what if he has a child-wife who says "put my affair in my hands," and he says to her "your affair is in your hands," and she then says "I have chosen myself"; Ahmad said: it counts for nothing as long as he is not like her, understanding talak; and Abu Bakr said: his delegation is not valid until he reaches puberty, and he narrated that from Ahmad.
Our argument: whoever's own act regarding a matter open to delegation is valid in itself, his granting and receiving delegation in it are valid like the pubescent man's; what is narrated from Ahmad as a prohibition follows the narration that does not validate his repudiation, Allah willing (al-Mughni 7/290-291; see Sharh az-Zarkashi 2/264; al-Insaf 7/331; Kashshaf al-Qina' 5/267-268; Sharh Muntaha al-Iradat 5/364; Manar as-Sabil 3/82-83).
Ibn Rushd reported it as a narration from Malik, may Allah have mercy on him: as for the child's repudiation, the well-known position from Malik is that it does not bind him until puberty; and he said in al-Mukhtasar ma laysa fi al-Mukhtasar that it binds him once he is near the age of wet dreams, and Ahmad ibn Hanbal said the same.
As for the one who alternates between madness and lucidity, what is called intermittent madness, which leaves its bearer for a time and then returns to him, regularly or not: if he repudiates in a state of health and lucidity, his repudiation is valid according to the jurists of the four schools (Bada'i' as-Sana'i' 3/100; al-Hidaya 1/229; al-Jawhara an-Nira 4/398; al-Ikhtiyar 3/155; Sharh Fath al-Qadir 3/487; al-'Inaya 5/184; Hashiyat Ibn Abidin 3/245; al-Mudawwana al-Kubra 5/25; Sharh Sahih al-Bukhari of Ibn Battal 7/414; al-Kafi, p. 262; at-Taj wal-Iklil 3/41; ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 3/246; Tathbir al-Mukhtasar 3/137; al-Iqna' fi Masa'il al-Ijma' 3/1288; al-Umm 5/220; al-Bayan 10/68; Rawdat at-Talibin 5/323; Mughni al-Muhtaj 4/454; Nihayat al-Muhtaj 6/490; Kashshaf al-Qina' 5/268; Sharh Muntaha al-Iradat 5/365; Manar as-Sabil 3/85).
Question 2: the status of the repudiation of the ma'tuh (the man of impaired judgment).
Definition of the ma'tuh. Al-Kamal Ibn al-Humam, may Allah have mercy on him, said: the ma'tuh is like the insane: one of little understanding, confused speech and poor management of his affairs, but who neither strikes nor insults, unlike the insane.
It has also been said: the sane man is he whose speech and actions are regular except for rare lapses; the insane is his opposite; the ma'tuh is he in whom the two are evenly matched, which would lead to no one ever being judged as such, so the first definition is preferable. As for the saying "he in whom one of the two states predominates," it means: it happens to him frequently.
It has further been said: the ma'tuh is one who performs the acts of the insane deliberately, his corruption being evident, while the insane acts without intention and the sane man is the opposite of both; at times he may perform the acts of the insane believing he is doing right. The mubrasm, the unconscious man and the madduh are in the same case (Sharh Fath al-Qadir 3/487; Mukhtasar al-Waqi'a 1/384; al-Bahr ar-Ra'iq 3/268; Hashiyat Ibn Abidin 3/243).
The people of knowledge unanimously established that the ma'tuh's repudiation has no effect. Imam Ibn al-Mundhir, may Allah have mercy on him, said: those among the scholars of the cities whose opinions I have memorized agree that the repudiation of the insane and the ma'tuh is not permitted (al-Ijma' p. 451; al-Ishraf 5/224).
This is because of what Imam at-Tirmidhi and others reported from the Prophet:
"Every repudiation is valid except that of the ma'tuh overcome by his intellect."weak hadith, reported by at-Tirmidhi 1191, who said: we do not know it as a Prophetic statement except through the hadith of Ata ibn Ajlan, and Ata ibn Ajlan is weak
At-Tirmidhi, may Allah have mercy on him, said after reporting this hadith: the practice of the people of knowledge, among the Companions of the Prophet and others, is established on the fact that the repudiation of the ma'tuh overcome by his intellect is not permitted, unless he is a ma'tuh who has lucid intervals and repudiates in his state of lucidity (Sunan at-Tirmidhi 3/496). Ibn Battal, transmitting from at-Tahawi, said: the scholars unanimously established that the ma'tuh's repudiation is not permitted (Sharh Sahih al-Bukhari 7/413; see Tafsir al-Qurtubi 5/302).
Question 3: the status of the repudiation of the safih.
The people of knowledge agree that the safih's repudiation binds him. Imam Ibn al-Mundhir, may Allah have mercy on him, said: they unanimously established that the safih's repudiation binds him; Ata ibn Abi Rabah alone held that neither his marriage nor his repudiation is permitted (al-Ijma' p. 410; al-Ishraf 5/237). Qadi Abd al-Wahhab al-Maliki, may Allah have mercy on him, said: the repudiation of the safih under interdiction and his khul' (negotiated dissolution) are valid, and this is the scholars' doctrine ('Ayun al-Masa'il, p. 546). And Imam al-Mawardi, may Allah have mercy on him, said: the repudiation of the one under interdiction for prodigality takes effect; this is the view of the majority of jurists.
Ibn Abi Layla and Abu Yusuf said: his repudiation has no effect, for talak is squandering of wealth like manumission: the conjugal right is acquired through wealth and ownership of it ceases through wealth; if therefore his manumission is not valid, his repudiation must not be valid either. And because two witnesses who testify against a man to a triple repudiation, once judgment has been passed on the basis of their testimony, must, if they retract their testimony, pay the equivalent dowry: were this not squandering of wealth, no monetary fine would be imposed on them.
Our evidence is the generality of Allah's saying, exalted is He:
"If he divorces her irrevocably, she shall not be lawful to him after that until she marries a husband other than him."
Surah al-Baqara, 230
And the Prophet's saying: "Repudiation belongs to the one who seizes the leg." And because the safih is in a better state than the slave, on account of his freedom and established ownership: since the slave's repudiation is valid, the safih's is valid all the more. And because he derives from his repudiation the lapse of maintenance if consummation has occurred, and half the dowry if it has not: he cannot be deprived of this benefit while being forced to bear the maintenance. Their claim that it is wealth like the slave is an error, for the slave's sale and pledge are valid and he is inherited, and none of this applies to the wife. As for the two dowry witnesses' fine, it was imposed only for the obstruction they caused between the two spouses and the deprivation of enjoyment for both, even if they received no wealth through their testimony, like two witnesses who testify to what requires qisas: the diya is imposed on them although the right is not a material one. And Allah knows best what is correct (al-Hawi al-Kabir 6/363-364).
Imam Ibn Qudama, may Allah have mercy on him, said: Chapter. The safih's repudiation takes effect according to the view of most of the people of knowledge, among them al-Qasim ibn Muhammad, Malik, al-Shafi'i, Abu Hanifa and his companions; Ata rejected it. What is preferable is its validity, for he is legally accountable and owner of the object of talak, so that his repudiation takes effect like that of the rational man; and his interdiction regarding his wealth does not prevent him from disposing of what he is not interdicted over, like the bankrupt person (al-Mughni 7/289).
Fourth condition: being a Muslim (the status of the disbeliever's repudiation). The jurists diverged over the disbeliever who repudiates while believing in the effect of talak: is his repudiation valid and effective or not?
The Malikis, according to the well-known position, require Islam for the validity of talak: the disbeliever's repudiation is neither valid nor effective, just as his marriage is not valid; whether the wife repudiated was a disbeliever or a Muslim. If he repudiates his disbelieving wife, then she embraces Islam and he embraces Islam during her idda, he has the stronger claim to take her back; if a Christian woman embraces Islam while her husband is a Christian, and he repudiates her during the idda, even three times, and then embraces Islam during it: his repudiation is not counted as such and the marriage stands; if her idda ends and he then marries her, that is permitted; and his repudiation while in polytheism is void, for Allah rendered vain, in His Book, the deeds of the people of disbelief. And the Prophet said: "Islam erases what came before it."
This is when these people do not ask us to judge between them; if they ask us to judge, four interpretations apply. As-Sawi, may Allah have mercy on him, said: his saying "four interpretations": the first is that of Ibn Shablun, the second that of Ibn Abi Zayd, the third that of al-Qabisi and the fourth that of Ibn al-Katib, and Iyad preferred the latter. The place of this dispute arises when they litigate before us saying: judge between us by the ruling of Islam among the people of Islam, or upon the people of Islam, with no difference between the two according to the correct view, or by the ruling of Islam upon the people of disbelief or among them. If they say: judge between us by the judgment of the people of Islam concerning repudiation in disbelief, or by what binds the disbeliever among you: it is ruled that the repudiation does not bind him, for the only valid repudiation is the Muslim's. If they say: judge between us by the regime of repudiation prevailing among Muslims: triple repudiation is ruled, and she may not be taken back until she has married another husband. And if he says: judge between us by what is binding in our religion or by what is in the Torah, then we turn them away and do not judge between them. So in the Hashiya (Hashiyat as-Sawi 'ala ash-Sharh as-Saghir 5/68-69; see al-Mudawwana al-Kubra 5/29; al-Kafi, p. 262; al-Jami' li-Masa'il al-Mudawwana 10/704; 'Aqd al-Jawahir ath-Thamina 2/508; at-Taj wal-Iklil 3/41; Mawahib al-Jalil 5/263; Sharh Mukhtasar Khalil 4/31; ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 3/246; Tathbir al-Mukhtasar 3/137; As'hal al-Madarik 2/152).
The majority of jurists, namely the Hanafis, Shafi'is and Hanbalis, held that Islam is not a condition for the validity of talak: the disbeliever's repudiation is valid, for disbelief does not negate the capacity to repudiate. Al-Kasani, may Allah have mercy on him, said: likewise the husband's health is not a condition, nor is his Islam: the repudiation of the sick man and the disbeliever takes effect, for sickness and disbelief do not conflict with the capacity to repudiate (Bada'i' as-Sana'i' 3/100). Ibn Qudama, may Allah have mercy on him, said: the marriages of the disbelievers are subject to the rulings of valid marriage: the taking effect of repudiation, zhihar (the formula of prohibition by assimilation to one's mother) and iyla' (the oath of abstinence), the obligation of the dowry and its apportionment, the wife's becoming lawful again to the first husband, the state of marital inviolability (ihsan), and other rulings.
Among those who permitted the disbelievers' repudiation: Ata, ash-Sha'bi, an-Nakha'i, az-Zuhri, Hammad, ath-Thawri, al-Awza'i, al-Shafi'i and the people of opinion; and those who did not permit it: al-Hasan, Qatada, Rabi'a and Malik.
Our argument: it is a repudiation from a pubescent, sane man within a valid marriage; it therefore takes effect like the Muslim's.
If it is said: we do not concede the validity of their marriages, we answer: the proof is that Allah attributed women to them, saying "his wife, the carrier of firewood" (Surah al-Masad, 4) and "the wife of Pharaoh" (Surah at-Tahrim, 11); and the reality of attribution implies a valid marital union. And the Prophet said: "I was born of a marriage, not of fornication." Once its validity is established, its rulings follow, as in the marriages of Muslims. On this basis: if the disbeliever repudiates three times, then marries her before another husband and consummates, and then both embrace Islam, that union is not confirmed for them; if he repudiates his wife fewer than three times and then both embrace Islam, she remains with him according to the number of repudiations remaining; if a man of the Scripture marries her and consummates, she becomes lawful to the one who repudiated her three times, whether the repudiator was a Muslim or a disbeliever; if the dhimmi commits zhihar against his wife and then both embrace Islam, the expiation of zhihar is upon him, by Allah's saying "those who pronounce zhihar among their wives" (Surah al-Mujadala, 2); and if he pronounces iyla', the ruling of iyla' is established, by His saying "for those who take an oath of abstinence from their wives" (Surah al-Baqara, 226) (al-Mughni 7/132).
Imam Ibn al-Qayyim, may Allah have mercy on him, said: the taking effect of repudiation involves one of two cases: either the disbeliever believes in the effect of talak, or he does not; if he believes in it, his repudiation takes effect and Islam is not a condition of its effect: this is the doctrine of Ahmad, al-Shafi'i, Abu Hanifa and their companions. Malik said: Islam is a condition for the taking effect of talak.
The majority argued that their marriages are valid, as has come; the marriage being valid, repudiation takes effect within it, for it is one of the rulings of marriage that follow from it, like its other rulings: mutual inheritance, lawfulness, the establishment of lineage, the prohibition through affinity, and the rest. Allah, exalted is He, said: "Do not marry the women whom your fathers married" (Surah an-Nisa, 22): He named it marriage and established through it the prohibition of affinity. Now zhihar was counted as repudiation by the people of the Jahiliyya, and Islam came until Allah nullified what the people of the Jahiliyya practiced and legislated an expiation for it. And how could a marriage in which was born the master of the children of Adam, whom Allah exalted further in grace and nobility with Him, be declared void?! And he explicitly declared that he was born of a marriage, not of fornication.
Imam Ahmad said, in the narration of Muhanna, concerning a Jew or Christian who repudiates his wife with two repudiations, then embraces Islam and repudiates another: she does not become lawful to him until she has married another husband. If he commits zhihar against his wife and then embraces Islam: we have been informed that zhihar is upon him. If they marry without witnesses and then both embrace Islam: they remain in their marriage. And he said, in the narration of Ibn Mansur, concerning a Christian who pronounces iyla' against his wife and then embraces Islam: he is suspended like the Muslim, identically: either he returns to her, or he repudiates her.
Mutual inheritance between the two spouses is established by consensus; and if the talak is revocable, the two spouses inherit from each other, for they remain husband and wife. Imam al-Mawardi, may Allah have mercy on him, said: one category cuts off mutual inheritance between them: the irrevocable repudiation pronounced in health or in a non-fatal illness, the irrevocable repudiation of a wife not yet penetrated, the triple repudiation and the repudiation within khul': he does not inherit from her and she does not inherit from him, whether death occurs during the idda or after it, for the marital bond is revoked between them; and this is a matter of consensus (al-Hawi al-Kabir 10/263). Ibn Qudama, may Allah have mercy on him, said: if he repudiates her in health with an irrevocable or revocable repudiation and she is separated upon the completion of her idda, they do not inherit from each other, by consensus (al-Mughni 6/268).
The jurists diverged, however, if the husband falls into a fatal illness and dies in that illness: does his wife inherit from him or not? This question involves several situations.
First situation: the repudiation is revocable; this involves two forms.
First form: the repudiation is revocable and one of the two dies before the completion of the idda. The people of knowledge agreed that if the husband repudiates his wife with a revocable repudiation and dies while she is in idda, or she dies during the idda, the survivor of the two inherits from the other, whether he repudiated her at her request or without her request; for the revocable repudiation does not remove the marriage, to the point that if he repudiates her in health with a revocable repudiation and dies during her idda, she inherits from him and her repudiation-idda turns into the death-mourning idda.
Imam Ibn al-Mundhir, may Allah have mercy on him, said: all those whose opinions I have memorized agree that whoever repudiates his wife, whom he has consummated, with a repudiation leaving him the right to take her back, whether in health or in illness, and then he dies, or she dies before her idda is completed: the two inherit from each other (al-Ishraf 'ala madhahib al-'ulama 5/220). He also said: they unanimously established that if a husband repudiates his wife with a repudiation leaving him her return, and then she dies before the idda is completed: the idda of death is upon her and she inherits from him (al-Ijma' p. 450). And Imam Ibn Qudama said: when a man repudiates his wife with a repudiation giving him the right of return during her idda, mutual inheritance between them does not lapse as long as she is in idda, whether in illness or health, without any divergence that I know of; this has been narrated from Abu Bakr, Omar, Othman, Ali and Ibn Mas'ud, may Allah be pleased with them; because the woman repudiated revocably remains a wife whom his repudiation, his zhihar and his iyla' reach, and he has the right to retain her by return without her consent, without a guardian, without witnesses and without a new dowry (al-Mughni 6/268).