Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > The pillars of talaq and the one who divorces
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Updated on 24 September 2026 at 7:46 PM
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).
Second form: the repudiation is revocable and the husband dies after the completion of the idda. The jurists diverged if the man repudiates his wife during his death-illness with a revocable repudiation, then dies, or she dies after the completion of her idda: does she inherit from him or not? After their consensus that he does not inherit from her if she dies after the completion of the idda. The Hanafis and Shafi'is held that she does not inherit from him (al-Hawi al-Kabir 10/263-264). The Malikis held that she inherits from him in all circumstances. The Hanbalis held that she inherits from him as long as she has not remarried, as will be detailed in the following question.
Second case: the repudiation is irrevocable; he repudiates her in the illness of death and then dies in that illness. The people of knowledge diverged if the terminally ill husband repudiates his wife with an irrevocable repudiation carrying no right of return, and then dies in his illness: does the wife inherit from him absolutely, whether he dies during the idda or after it, whether she has remarried or not, as the Malikis say? Or does she inherit as long as she is in idda and not afterwards, as the Hanafis say? Or does she not inherit at all, according to the correct view among the Shafi'is? Or does she inherit as long as she has not remarried, as the Hanbali doctrine holds? After their consensus that if he repudiates during his fatal illness and then she dies during it, the man does not inherit from her even if he repudiated her while she was ill; for he is the one who removed what was in his hand, she did not remove him from inheritance, and she is not under interdiction on his account: they were thus separated by his death and by hers (al-Ma'una 1/528; Sharh Mukhtasar Khalil 4/18; Tathbir al-Mukhtasar 3/113).
Ibn al-Mundhir said: they unanimously established that the thrice-repudiated woman, if she dies, her repudiator does not inherit from her, because she is not a wife (al-Ijma' p. 451). Ibn Battal said: the consensus is that the husband does not inherit from her, whether she dies during the idda or after its completion, if he repudiated her three times, in health or in illness (Sharh Sahih al-Bukhari 7/394). And Imam al-Mawardi, may Allah have mercy on him, said: the irrevocable repudiation in the fatal illness, when it touches death: if she dies, he does not inherit from her, by consensus (al-Hawi al-Kabir 10/264).
First view: the Hanafis held that a husband who repudiates his wife during his death-illness with an irrevocable repudiation and then dies while she is in idda: she inherits from him; likewise if he repudiates her three times. And if he dies after the completion of her idda: no inheritance for her, for she has become lawful to other husbands: how could she inherit her husband while she is under another? And because there is no divergence among the Muslims: whoever repudiates his sane wife with a repudiation carrying the right of return, and her idda ends before his death: she does not inherit him, for she is a stranger who is neither of him nor he of her; and the thrice-repudiated woman whose idda is running is stronger in inheritance during the idda than the one whose idda has ended.
Its basis: the marital bond in the illness of death is a cause that most often leads to inheritance; annulling it would harm its holder; it must therefore be restored to avert this harm to the right of inheritance as long as she is in idda, like the revocable repudiation; for marriage during the idda subsists with respect to some effects, and it may subsist with respect to the inheritance she receives from him; unlike after its completion, when the bond can no longer subsist and is no longer a cause of his inheriting from her, so that it is voided with respect to him in particular if he consents.
The proof is the practice of the Companions, may Allah be pleased with them. Ibrahim said: Urwa al-Bariqi came to Shurayh on behalf of Omar, may Allah be pleased with him, with five points, among them: "If the sick man repudiates his wife three times, she inherits him if he dies while she is in idda." Ash-Sha'bi reported that Umm al-Banin bint Uyayna ibn Hisn al-Fazari was the wife of Othman ibn Affan, may Allah be pleased with him, and that he repudiated her after being besieged; she came to Ali, may Allah be pleased with him, after his assassination and informed him, and he said: "He only left her when death drew near him, and he made her his heir." It is reported from Aisha, may Allah be pleased with her: "The wife of the fleeing man inherits as long as she is in idda."
This is if he repudiates her without her request or her consent; but if she asks him and he repudiates her irrevocably or three times, or divorces her by khul', or says to her "choose" and she chooses herself, and then dies during the idda: she does not inherit, for she consented to the annulment of her right.
If she says to him during his illness: "Repudiate me with a returnable repudiation," and he repudiates her three times, she inherits; for the revocable repudiation does not remove the marriage, and she did not consent by her request to the annulment of her right. If he repudiates her three times while ill, then recovers, and then dies later while she is in idda: she does not inherit him, contrary to Zufar. And if he recovers from his illness, then falls ill again, and dies of his illness while she is in idda: she inherits him as well.
The illness for which the repudiated woman does not inherit: that he be afflicted with a malady from which he generally does not survive and from which destruction is generally feared, so that he is bedridden, neither coming nor going, until his death. It has been said: that it be a wasting illness (mudna) which prevents him from rising except with great difficulty, in a state where praying seated is permitted to him; but if he goes and comes while carried, he is like the healthy man. If he is sentenced to be killed in qisas or stoned and repudiates at that moment: she inherits; likewise if his ship is wrecked and he remains on a plank, or he falls into the mouth of a beast of prey, repudiates three times and then dies of that: she inherits (al-Hujja 'ala Ahl al-Madina 4/78-79; Mukhtasar Ikhtilaf al-'Ulama 2/432-435; al-Mabsut 6/154-157; al-Hidaya 2/3; al-Ikhtiyar 3/177-178; Sharh Fath al-Qadir 4/145; al-Jawhara an-Nira 4/464-466; Mukhtasar al-Waqi'a 1/401; al-Lubab 2/95; Hashiyat Ibn Abidin 3/383-386).
Second view: the Malikis held that a husband who repudiates his wife whom he has consummated, once, twice or three times, and then dies of his fatal illness: she inherits from him absolutely, whether her idda has ended or not; for inheritance is established for her only because the repudiation met its cause, which is the firm establishment of interdiction over him on her account; there is thus no difference between the persistence of the idda and its completion, inheritance being due to her upon the occurrence of the cause, which is the interdiction, whether she remarries afterwards or not; to the point that if she remarries after him and he then dies, she inherits from him; and if she marries ten men who each repudiate her during his fatal illness, she inherits from all of them; for inheritance only becomes obligatory upon her through his removing her from himself after the right of interdiction has been established, and this exists despite her remarriage: the marriage therefore carries no more weight than the idda does.
Malik reported in the Muwatta the chapter on the repudiation of the sick man:
Malik said: if he repudiates her while ill, before consummating the marriage: she has half the dowry and the inheritance, and no idda is upon her; if he consummates and then repudiates her: she has the whole dowry and the inheritance; the virgin and the previously married woman are the same for us in this (al-Muwatta 2/571-572).
It is stated in al-Mudawwana al-Kubra: I said: what if a man repudiates his wife while ill, before consummating the marriage? He answered: Malik said: she has half the dowry and the inheritance if he dies of that illness. I said: does the idda of death or the idda of repudiation then fall upon her? He said: Malik said: no idda is upon her, neither the idda of death nor the idda of repudiation. Malik said: if he repudiates her with an irrevocable repudiation while ill, after having consummated: the idda of repudiation is upon her and she has the inheritance; if it is a repudiation carrying the right of return and he dies during her repudiation-idda, it passes to the idda of death; and if her repudiation-idda ends before his death and he dies afterwards: the inheritance is hers and no idda of death is upon her.
I said: does a woman inherit from husbands who all repudiate her during their illness, and she then marries a husband while all those who repudiated her are alive, and then they die of that illness while she is under her husband: is she made to inherit from all of them, or not, in Malik's view? He said: the inheritance is hers from all of them. Malik said: likewise if one of them repudiates her once, irrevocably, while ill, and she then marries husbands who all repudiate her: she inherits the first if he dies of that illness (al-Mudawwana al-Kubra 4/210).
They said: because the meaning of it is the counterpart by the inverse of the intention; and although Allah kept Abd ar-Rahman, may Allah be pleased with him, far from any intent to deprive her, once a ruling is established upon a predominant cause, its predominance suffices without tracing it case by case; this is frequent in the Law for whoever reflects upon it, especially according to the doctrine of blocking the means (sadd adh-dhara'i'). And because the sick man is forbidden to dispose of a portion exceeding a third of his estate on account of the heirs' right: all the more is he prevented from cutting off some of them entirely.
And because the Prophet, having forbidden the sick man to dispose of two thirds of his inherited wealth in a way that diminishes his heirs, can neither add an heir to them nor remove an heir from them; and because the Messenger, having deprived the killer of inheritance through the killing he committed, it follows that the sick man cannot deprive his wife of inheritance through the repudiation he committed. There is no difference between two heirs, one admitted to inheritance in a certain manner and then excluded on its account, and another excluded in a similar manner; for the killer sought by his act to bring into being a right not yet due to him, and he was prevented from it; likewise the sick man sought by his act to prevent a right from the one to whom it was due, and he was prevented from it; and just as he could not bring her into inheritance by marrying her during his illness, so too he cannot remove her from it by repudiating her within it.
Othman, may Allah be pleased with him, ruled thus before the assembly of the Emigrants and the Helpers; Omar and Ali ibn Abi Talib, may Allah be pleased with them, said the same. However, if he recovers from his illness and then dies, she does not inherit him in any case; for once he has recovered, the interdiction has been lifted from him, like one who repudiates in health.
If she asks him for the repudiation while he is ill and he repudiates her, or divorces her by khul': she inherits him; for Othman, may Allah be pleased with him, ruled thus in the case of Tamadir bint al-Asbagh, wife of Abd ar-Rahman ibn Awf: she was with him on a single repudiation, and she asked him, during the illness from which he died, to repudiate her with a repudiation that would be the last of her repudiations; Othman made her his heir, and no one objected to him. And because she is a woman repudiated during illness like the one who did not ask; and because a man may press his wife until she asks him for khul': the matter was therefore settled by making her inherit; and because consent to being removed from inheritance after its cause is established has no effect, as if she said "I do not inherit you."
If it is she who dies, he does not inherit her; for she did not remove him from inheritance, and she is not under interdiction on his account: they were separated by his death and by hers. Her idda is the idda of repudiation, for she separated from him by repudiation, not by death; the illness cut off from the rulings of the thrice-repudiated only the absence of inheritance ('Aqd al-Jawahir ath-Thamina 2/524; al-Jami' li-Masa'il al-Mudawwana 10/716-717; al-Ma'una 1/527-528; Sharh Sahih al-Bukhari of Ibn Battal 7/294-297; al-Kafi, pp. 270-271; al-Istidhkar 6/112-116; al-Qawanin al-Fiqhiyya, pp. 151-152).
Third view: that of the Shafi'is according to the apparent, which is the later doctrine. They said: a husband who repudiates his wife with an irrevocable repudiation during his death-illness and then dies: his wife does not inherit him, whether she asked for the repudiation or not; for it is a separation that cuts off his inheritance from her, so it must cut off her inheritance from him; its basis is separation in health; and inheritance that is cut off by separation in health must be cut off by separation in illness; its basis is the husband's inheritance, by the consensus that the husband does not inherit her, whether she dies during the idda or after its completion if he repudiated her three times, in health or in illness: the same applies to the wife, who does not inherit him.
And because marriage carries rulings: repudiation, zhihar, iyla', the prohibition of combining a woman with her sister or her maternal or paternal aunt, the establishment of inheritance, the idda of death; when all the rulings of marriage except inheritance ceased to apply to this thrice-repudiated woman during the illness, the rulings of marriage relating to inheritance ceased to apply to her as well. Its precision by analogy: it is a ruling specific to marriage; it must therefore cease to apply to the thrice-repudiated woman during illness, like the other rulings; and because the dissolution of the marriage during illness on her account, like apostasy or breastfeeding, prevents his inheritance from her; if suspicion is directed against him in health as in illness, the existence of separation on his part must prevent her inheritance from him, equalizing health and illness.
This is the view of Abdallah ibn az-Zubayr. Imam al-Shafi'i said: Abd al-Majid informed us, from Ibn Jurayj, from Abu Mulayka, that he asked Ibn az-Zubayr about a woman whom a man repudiates irrevocably and who then dies in her idda. Ibn az-Zubayr said: Abd ar-Rahman ibn Awf repudiated Tamadir bint al-Asbagh al-Kalbiyya irrevocably, then died while she was in her idda, and Othman made her his heir. Ibn az-Zubayr said: "As for me, I do not consider that a thrice-repudiated woman inherits" (al-Umm 5/226). He was a Companion endowed with ijtihad, especially in the days of Othman, may Allah be pleased with him. And according to one view of the Shafi'is, the husband's death in his fatal illness does not cut off inheritance: his wife inherits him, for he is suspected of wanting to push away the inheritance, just as the killer is barred for being suspected of wanting to seize it; for Abd ar-Rahman ibn Awf had repudiated his wife Tamadir during the death-illness and Othman had made her his heir, may Allah be pleased with him.
She only inherits, however, under conditions:
As for the time of her inheritance from him, three views apply. The first, which is the Hanafi doctrine: she inherits him as long as she is in idda, the repudiation-idda of three courses (aqra'); when her idda ends, she no longer inherits, for the persistence of the idda is part of the remnants of the marriage and its rulings, and inheritance followed it and lapses with its end. The second view, which is the Hanbali doctrine: she inherits him as long as she has not remarried; if she remarries, she does not inherit, for her remarriage is her consent to his repudiation. The third view, which is the Maliki doctrine: she inherits him even if she remarries, for it is a right that does not lapse through remarriage, like the other rights (al-Hawi al-Kabir 10/264-266; Nihayat al-Matlab 14/230-233; Rawdat at-Talibin 5/371-372; an-Najm al-Wahhaj 7/515; Asna al-Matalib 3/286; Mughni al-Muhtaj 4/478; Tuhfat al-Muhtaj 9/405; Nihayat al-Muhtaj 6/524; ad-Dibaj 3/424).
Fourth view: that of the Hanbalis in the school. They said: a husband who repudiates his wife with an irrevocable repudiation, without right of return, in the fatal illness that overwhelms him: she inherits from him as long as she has not remarried or apostatized, whether the period is long or short; if she remarries, there is no mutual inheritance between them, for she did by her own choice what conflicts with her first marriage and therefore did not inherit him; and because of what Abu Salama ibn Abd ar-Rahman reported:
"His father had repudiated his mother while he was ill, and then he died, and she inherited him after the idda was completed."authentic hadith, reported by Ibn Abi Shayba in Akhbar al-Madina 2/102, no. 1669, and by al-Shafi'i in al-Musnad 1/294
And because the cause of her inheritance is his fleeing from her inheritance, and this meaning does not disappear with the completion of the idda.
According to Imam Ahmad, another narration: she does not inherit after the idda; this is the view of Urwa, of Abu Hanifa and his companions, and one of the views of al-Shafi'i; for she becomes lawful again to another husband and therefore does not inherit him, as if he were in good health; and because making her inherit after the idda leads to inheriting from more than four wives, which is not permitted, as if she had remarried (al-Mughni 6/268-269; al-Mubdi' 6/242; al-Insaf 7/356-357; Manar as-Sabil 2/475-478).
On this basis: if the thrice-repudiated woman remarries, she does not inherit him, whether she is still in that union or separated from the second husband; this is the view of most of the people of knowledge: Hanafis, Shafi'is and Hanbalis; for she is an heir from one husband and does not inherit another husband, like the other wives; and because mutual inheritance belongs to the rulings of marriage and cannot be combined with another marriage, like the idda; and because she did by her own choice what conflicts with her first marriage, in the manner of a dissolution emanating from her. The Malikis, as has come, held that she inherits him, for he is a person who inherits despite the absence of the marital bond, and thus inherits alongside the other heirs (al-Mughni 6/268 and the other sources already cited).
Third case: he has not consummated the marriage. The jurists diverged over the husband who repudiates his as-yet unpierced wife during his fatal illness and then dies: does she inherit from him or not? The Hanafis, the Shafi'is and the Hanbalis according to one narration held that she does not inherit from him, that no idda is upon her and that she has half the dowry. Ibn Qudama, may Allah have mercy on him, said: this is the view of Jabir ibn Zayd, an-Nakha'i, Abu Hanifa, al-Shafi'i and most of the people of knowledge. Ahmad said: Jabir ibn Zayd said: no inheritance for her and no idda is upon her. Al-Hasan said: she inherits. Ahmad said: I incline to Jabir's view; this because Allah, exalted is He, explicitly stated the halving of the dowry and negated the idda for the woman repudiated before consummation, by His saying:
"If you divorce them before you have touched them while you have already appointed for them a dowry, then half of what you appointed is due."
Surah al-Baqara, 237
And He said:
"O you who believe, when you marry believing women and then divorce them before you have touched them, you have no idda to count upon them."
Surah al-Ahzab, 49
And it is not permitted to contravene the text of the Book by opinion and arbitrariness. As for inheritance, she is neither a wife nor a woman in the idda of a marriage, and she thus resembles the woman repudiated in health. And Allah knows best (al-Mughni 6/269; al-Mubdi' 6/242; al-Insaf 7/356-357).
If he has been alone with her (khalwa) and says "I have consummated," and she confirms him: inheritance belongs to her, the idda of death is upon her and the dowry is hers in full; for seclusion suffices to establish these rulings, and this is the view of Abu Hanifa and his companions (al-Mughni 6/269). Ibn al-Humam the Hanafi said: if he repudiates his wife whom he has not penetrated in an illness from which he dies, she does not inherit, for no idda is upon her from that repudiation (Sharh Fath al-Qadir 4/145). And Imam al-Shafi'i, may Allah have mercy on him, said: if he repudiates her before touching her, whichever of the two dies: she has half of what he appointed for her if he appointed something, and the gift of consolation (mut'a) if he appointed nothing; no idda of repudiation or of death is upon her, and she does not inherit him, for she has no idda (al-Umm 5/255).
The Malikis held that if he repudiates his unpierced wife during his fatal illness and then dies: she inherits from him absolutely. Imam Malik, may Allah have mercy on him, said: if he repudiates her while ill, before consummating: she has half the dowry and the inheritance, and no idda is upon her; if he consummates and then repudiates her: she has the whole dowry and the inheritance; the virgin and the previously married woman are the same for us in this (al-Muwatta 2/572). And it is stated in al-Mudawwana al-Kubra: I said: what if a man repudiates his wife while ill, before consummating? Malik said: she has half the dowry and the inheritance if he dies of that illness. I said: does the idda of death or the idda of repudiation fall upon her? Malik said: no idda is upon her, neither the idda of death nor the idda of repudiation (al-Mudawwana al-Kubra 4/210). And the Hanbalis held in the school that she inherits him as long as she has not remarried.
Ibn Qudama, may Allah have mercy on him, said: if he repudiates his wife three times during his illness, before consummating, Abu Bakr said: four narrations apply to it. The first: the full dowry, the inheritance, and the idda is upon her; Abu Bakr chose it, as did al-Hasan, Ata and Abu Ubayd; for inheritance was established for the woman who has been consummated because of his fleeing from her, and this one is a fleeing man; and when inheritance is established, completing the dowry becomes obligatory, and the idda should be the idda of death, for we have placed her in the position of one upon whom he dies while she is his wife; and repudiation does not impose an idda upon a woman who has not been penetrated. The second: inheritance and dowry belong to her, without idda; this is the view of Ata, for the idda is a right charged to her and is not imposed by his flight. The third: inheritance and half the dowry, and the idda is upon her; this is Malik's view in Abu Ubayd's narration from him; for the one who inherits must observe the idda, and the dowry is not completed, for Allah, exalted is He, explicitly stated its halving for repudiation before consummation, and this cannot be contravened. The fourth: no inheritance for her, no idda, and she has half the dowry; this is the view of Jabir ibn Zayd, an-Nakha'i, Abu Hanifa, al-Shafi'i and most of the people of knowledge. Ahmad said: Jabir ibn Zayd said: no inheritance and no idda; al-Hasan said: she inherits; Ahmad said: I incline to Jabir's view; this because Allah explicitly stated the halving of the dowry and negated the idda for the woman repudiated before consummation, as has come, and it is not permitted to contravene the text of the Book; as for inheritance, she is neither a wife nor a woman in idda, and she resembles the woman repudiated in health. And Allah knows best (al-Mughni 6/269).
Imam al-Mardawi, may Allah have mercy on him, said: "Does she inherit him after the idda, or does the woman repudiated before consummation inherit him? According to two narrations." That is: if he does an act for which he is suspected of intending to deprive her (of inheritance), she inherits him as long as she is in idda without dispute, and he does not inherit her without dispute; then: does she inherit him after the idda, or does the woman repudiated before consummation inherit him? The author mentioned two narrations here, and stated them in al-Hidaya, al-Mustawi' and al-Kafi, and stated them in an-Nazm in favor of the first. The first: she inherits him after the idda, even if not penetrated, as long as she has not remarried; this is the sound view of the school; in al-Furu': the majority transmitted it and chose it. The author and the commentator said: this is the most famous position from Imam Ahmad, may Allah have mercy on him; in the school: this is the sounder of the two narrations. Abu Bakr said: Abu Abdillah's (Ahmad's) view does not differ concerning the woman who has been penetrated: she inherits him during the idda and after it, as long as she has not remarried; he affirmed it decisively in al-Wajiz and preferred it in al-Furu' and al-Fariq. The second narration: she does not inherit him; it was chosen in at-Tabsira concerning the penetrated woman, declared sound in an-Nazm concerning her, and both were preferred in al-Muharrar, ar-Ri'ayatayn and al-Hawi as-Saghir; it is the apparent meaning of what the author preferred at the end of the chapter, where he granted inheritance to the wives who are within his marital bond and gave nothing to the repudiated ones if a man repudiates four women, their iddas end, he marries four others and dies upon them.
Abu Bakr said: if he repudiates three times before consummation during the illness, four narrations apply to it: the first: the full dowry, the inheritance, and the idda is upon her, and he chose it. The author and others said: the idda should be the idda of death; I say: she is thereby contradicted regarding the dowry. The second: inheritance and dowry, without idda. The third: inheritance and half the dowry, and the idda is upon her. The fourth: she does not inherit, no idda is upon her, and she has half the dowry. End of his words. And she is contradicted wherever we impose the idda (al-Insaf 7/356-357).
If he says to his wife after waking: "I repudiated you in my sleep," or "I authorized that repudiation," or "I gave effect to what I uttered during sleep": it does not take effect; but if he says: "I gave effect to that repudiation," or "I made it a repudiation": it takes effect (al-Muhit al-Burhani 3/411; al-Bahr ar-Ra'iq 3/268-269).
Question 2: the status of the repudiation of the unconscious man. The jurists of the four schools agreed that the unconscious man's repudiation has no effect. Imam Ahmad, may Allah have mercy on him, said, however, concerning the unconscious man who repudiates and then, upon waking, knows that he had been unconscious and remembers it: if he remembers it, he is not an unconscious man, and his repudiation is permitted. And he said, in the narration of Abu Talib, concerning a madman who repudiated and was told, after waking: "You have repudiated your wife"; he replied: "I remember repudiating, but my mind was not with me"; he said: if he remembers repudiating, the wife is repudiated; he did not therefore count him as mad when he remembers the repudiation and knows it.
Ibn Qudama, may Allah have mercy on him, said: this, and Allah knows best, concerns the one whose madness is the total loss of knowledge and the corruption of all his senses; as for the one whose madness stems from a mild fever (nushaf), or the mubrasm, the effect of his act lapses while his knowledge is not totally lost, and his mention of the repudiation does him no harm, Allah willing (al-Mughni 7/288-289; see al-Jawhara an-Nira 4/398; al-Kafi of Ibn Abd al-Barr, p. 262; an-Najm al-Wahhaj 7/480; Asna al-Matalib 3/280; Mughni al-Muhtaj 4/454; Kashshaf al-Qina' 5/268; Manar as-Sabil 3/85-86). Ibn Abidin cited in at-Tahrir this definition: fainting (ighma') is an affliction of the heart or the brain that disables the perceptive and motor faculties from their actions while the intellect remains, overcome; otherwise the prophets would be protected from it; it is above sleep and therefore entails what sleep entails, and more (Hashiyat Ibn Abidin 3/243).
Question 3: the status of the repudiation of the mubrasm. It is stated in Taj al-'Arus: birsam (with an i) is a malady in which one raves, Allah protect us from it; it is a hot tumor that strikes the membrane between the liver and the intestines and then extends to the brain; the afflicted man is called mubrasm; likewise balsam and mubalsam; the word appears to be an arabized compound of bir and sam: bir, in Persian, is the chest, and sam is death, as al-Azhari transmitted; this malady is called al-mum, and a man is said to be stricken with it (Taj al-'Arus 31/275). Imam an-Nawawi, may Allah have mercy on him, said: birsam, with an i on the ba, is a type of mental disorder; it is applied to the tumor of the head and the tumor of the chest; it is arabized and its origin is Syriac (Sharh Sahih Muslim 11/156-157). And the hafiz Ibn Hajar, may Allah have mercy on him, said: birsam is an arabized Syriac word; it is applied to mental disorder, to the tumor of the head and to the tumor of the chest (Fath al-Bari 1/338). And al-Kharshi said: birsam is a tumor in the head that weighs down the brain (Sharh Mukhtasar Khalil 8/21).
The jurists of the four schools agreed that the mubrasm's repudiation has no effect. The Hanafis said: the repudiation of the mubrasm, the madduh and the unconscious man has no effect (Bada'i' as-Sana'i' 3/100; al-Bahr ar-Ra'iq 3/268; Hashiyat Ibn Abidin 3/243). The madduh is the one overcome by an irregularity in his words and actions that departs from his habit, as a result of an anger that has seized him (Ibn Abidin 3/244).
It is reported in al-Mudawwana al-Kubra that Sahnun said: I asked: what of the mubrasm or the feverish man who raves, if he repudiates his wife: is his repudiation valid? It was answered: I heard Malik asked about a mubrasm who had repudiated his wife in Medina; Malik said: if his mind was not with him at the moment he repudiated, nothing of it binds him (al-Mudawwana al-Kubra 5/24). Qadi Abd al-Wahhab, may Allah have mercy on him, said: the repudiation of the sleeping man, the mubrasm and the one raving in the depths of illness does not bind, for they are in the position of the one overcome by madness (al-Ma'una 1/566). And Imam al-Shafi'i, may Allah have mercy on him, said: we do not permit the repudiation of the ma'tuh, nor that of the mubrasm, nor that of the sleeping man (al-Umm 7/173).
The Hanbalis said: the repudiation of the one whose mind has been altered by madness, fainting, birsam or nushaf does not take effect, because of the Prophet's saying:
"The Pen has been lifted from three: the sleeping man until he wakes, the child until he grows up, and the insane until he recovers his reason or comes back to himself."authentic hadith, cited earlier
And because repudiation is a word that removes ownership: the mind is therefore taken into account for it, as in sale (al-Mughni 7/291; al-Insaf 4/432; Kashshaf al-Qina' 5/268; Sharh Muntaha al-Iradat 5/365; Manar as-Sabil 3/85).
Question 4: the repudiation of the jester. The people of knowledge agreed that seriousness is not a condition of talak: if a man repudiates in jest or in play, his repudiation takes effect according to the generality of the jurists. If the woman, in their dalliance, says "repudiate me three times" and he replies "yes, you are repudiated three times," like the mocking player: the repudiation takes effect, for the intention of the word of repudiation exists, and only the intention directed at the legal effect is missing; because of what Abu Hurayra, may Allah be pleased with him, reported from the Messenger of Allah:
"Three things whose seriousness is serious and whose jest is serious: marriage, repudiation and taking back."good hadith, reported by Abu Dawud 2194, at-Tirmidhi 1194 and Ibn Majah 2039
This indicates that the jester's repudiation is effective and that he has no need of intention in the explicit formula; for the Prophet equalized in this the serious and the jester. The difference between the two is that the serious man intends the word and the obtaining of its effect, while the jester intends the word without seeking the obtaining of the effect; it is thus known that the will has no part in negating talak, and that both, insofar as they intended the word, have its ruling applied to them.
And because the jester uttered the word without binding himself to its ruling, whereas the establishment of rulings from causes belongs to the Lawgiver, not to the contracting party: as soon as he brings about the cause, the ruling binds him, whether he wills it or not, for that does not depend on his choice. The jester intends the word and wants it, while knowing its meaning and what it entails; intending the word that contains the meaning is intending that meaning, given their inseparability. And jesting in the rights of Allah, exalted is He, is not permitted: the word's seriousness and its jest are therefore equivalent, unlike the rights of the servants (Ahkam al-Qur'an of al-Jassas 5/14; al-Fatawa al-Kubra 3/150; I'lam al-Muwaqqi'in 3/124).
Imam al-Baghawi, may Allah have mercy on him, said: the people of knowledge agreed that the jester's repudiation takes effect; when the explicit formula of repudiation is uttered by the tongue of a sane, pubescent man, it does not avail him to say "I was playing or joking"; for if that were accepted from him, the rulings would be paralyzed and no repudiator, bridegroom or manumitter would say "I was jesting in my speech," which would amount to nullifying the rulings of Allah, exalted is He. Whoever utters what is mentioned in this hadith, its ruling binds him; and these three were singled out by mention to strengthen the matter of private parts. And Allah knows best (Sharh as-Sunna 9/220).
Imam Ibn al-Mundhir, may Allah have mercy on him, said: all those among the people of knowledge whose opinions I have memorized agree that the seriousness of repudiation and its jest are equivalent (al-Ijma' p. 406; al-Ishraf 5/230-231). And Imam Abu Bakr al-Jassas, may Allah have mercy on him, said: the seriousness of repudiation and its play are equivalent; this has been narrated from a group of the Successors, and we know of no divergence among the jurists of the cities on this (Ahkam al-Qur'an 2/99). And Imam al-Kasani, may Allah have mercy on him, said: likewise, being serious is not a condition: the repudiation of the jester and of the player takes effect, because of what is narrated from the Messenger of Allah: "Three things whose seriousness and jest are serious: marriage, repudiation and manumission," and it is also narrated: "marriage, repudiation and taking back."
From Abu ad-Darda, may Allah be pleased with him, the Messenger of Allah said:
"Whoever plays with a repudiation or a manumission, it binds him."authentic as a statement of Abu ad-Darda, reported by Ibn Abi Shayba in al-Musannaf 18719
It has been said that concerning it came down the word of Allah: "Do not take the signs of Allah in mockery" (Surah al-Baqara, 231). The man of the Jahiliyya would repudiate his wife and then take her back saying "I was playing," and manumit his slave and then revoke it saying "I was playing"; the verse came down, and the Prophet said: "Whoever repudiates, frees or marries, and then says 'I was playing,' it is valid of him" (Bada'i' as-Sana'i' 3/100; al-Bahr ar-Ra'iq 3/263).
Imam al-Qurtubi, may Allah have mercy on him, said: there is no divergence among the scholars that the one who repudiates in jest is bound by the repudiation (Tafsir al-Qurtubi 3/157). And Imam al-Khattabi, may Allah have mercy on him, said: the generality of the people of knowledge agreed that the explicit formula of repudiation, uttered by the tongue of a pubescent, sane man, is charged against him, and it does not avail him to say "I was playing, or joking, or I had no intention of repudiating," or anything of the sort. Some scholars argued this by the word of Allah, exalted is He: "Do not take the signs of Allah in mockery" (Surah al-Baqara, 231), and said: if people were allowed that, the rulings would be paralyzed and no repudiator, bridegroom or manumitter would say "I was jesting in my speech," which would amount to nullifying the rulings of Allah, and that is not permitted; whoever utters what is mentioned in this hadith, its ruling binds him, and it is not accepted from him that he claim otherwise; this is the strengthening of the matter of private parts and precaution concerning it. And Allah knows best (Ma'alim as-Sunan 3/243). And Imam az-Zurqani, may Allah have mercy on him, said: the player's repudiation takes effect by consensus (Sharh az-Zurqani 3/214).
Al-Mawardi said: know that the state of the one who utters the explicit formula of repudiation involves four categories. The first: that he intend the word and intend the separation: the repudiation takes effect by consensus, if the utterer is among those entitled to repudiate. The second: that he intend the word without intending the separation: the repudiation takes effect, for the explicit formula has no need of intention; this is the view of the majority of jurists. Dawud said: repudiation does not take effect without intention, arguing by the Prophet's saying "deeds are only by intentions"; this is an error, because of the Prophet's saying "three things whose seriousness and jest are serious: marriage, repudiation and manumission"; and because separation sometimes takes place by dissolution of the marriage and sometimes by repudiation: dissolution having no need of intention, repudiation has no need of it; and because the explicit formula of manumission having no need of intention, the explicit formula of repudiation has no need of it; and because, in repudiation, the ruling of the explicit differs from that of the veiled formula: were the explicit to need intention, nothing explicit would remain; and the repudiation then took effect without intention, outward and inward (al-Hawi al-Kabir 10/153-154).
Imam Ibn Qudama, may Allah have mercy on him, said: Question: when he utters the explicit formula of repudiation, it binds him, whether he intended it or not. We have mentioned that the explicit formula of repudiation has no need of intention, but takes effect without purpose, without divergence; for the word whose effect is considered suffices, without intention, when explicit, as in sale; whether he intended jest or seriousness; because of the Prophet's saying: "Three things whose seriousness is serious and whose jest is serious: marriage, repudiation and taking back"; reported by Abu Dawud and at-Tirmidhi, who said: a good hadith.
Ibn al-Mundhir said: all those among the people of knowledge whose opinions I have memorized agree that the seriousness of repudiation and its jest are equivalent; this has been narrated from Omar ibn al-Khattab and Ibn Mas'ud, and something similar from Ata and Ubayda; al-Shafi'i and Abu Ubayd said it; Abu Ubayd said: it is the view of Sufyan and the people of Iraq. As for the veiled word of separation and release, divergence is founded upon it: whoever counts it explicit brings about the repudiation without intention, and whoever does not count it explicit does not bring about the repudiation until he intends it, and it then becomes like hidden veiled formulas (al-Mughni 7/303; see Manar as-Sabil 3/94).
Shaykh al-islam Ibn Taymiyya, may Allah have mercy on him, said: the jester's repudiation takes effect according to the generality (al-Fatawa al-Kubra 3/149; see I'lam al-Muwaqqi'in 3/124). And Imam al-Kharshi, may Allah have mercy on him, said: the repudiation binds him when he jokes in executing it, by consensus; and even if he jokes in uttering its word upon her, according to the sound established view (al-ma'ruf) (Sharh Mukhtasar Khalil 4/32). The Malikis, however, hold a view on the non-taking effect of the jester's repudiation. Imam al-Mawwaq, may Allah have mercy on him, said: Ibn Arafa's saying "it binds him even if he jokes" means: the jest in executing the repudiation binds him by consensus, and the jest in uttering its word upon her binds him according to the established view.