The oath forbidding the wife to go out without permission

This part belongs to the full section: All sections of this part.

This seventh set of the chapter on divorce gathers ten sheets of the Encyclopedia of jurisprudence dealing with conditional divorce (ta'liq) and related matters: the oath forbidding the wife to go out without permission, going out for an authorized purpose then turning elsewhere, permission given without the wife's knowledge, the conditions of validity of divorce suspended on a condition, its lapse, the question of hadm (the second husband annulling the count of earlier repudiations), divorce suspended on two conditions, divorce suspended on the wife's wish, delegation of the divorce to the wife or to another, and divorce conveyed through a messenger. The positions of the four schools are reported with their Quranic and prophetic proofs and their classical references.

The oath forbidding the wife to go out without permission

When a husband says to his wife: "If you go out without my permission, you are divorced", or "if you go out except that I permit you", "until I permit you", "unless I permit you" or "so that I permit you", the ruling on these five formulas is that as soon as she goes out without his permission she is divorced and his oath is released. The particle "if" does not require repetition: a single breach suffices, as if he had said "you are divorced if you wish". If he gives her permission and she goes out, there is no breach whatsoever, since there is no contradiction with the oath: this is a point of agreement among the jurists (al-Mabsut, 8/173; al-Hawi al-Kabir, 15/391; al-Mughni, 10/46; al-Kafi, 4/407; Sharh al-Zarkashi, 3/343; Kashshaf al-Qina, 5/354-355).

There remains the case where the husband permitted her, she went out with his permission and then went out afterwards without permission: is she divorced or not? Three categories arise.

• First category: what the jurists agree upon: the oath binds only once and does not require repetition; these are the two particles "until" (ila) and "so that" (hatta). If he says "you are divorced if you go out until I permit you", or "so that I permit you", the oath bears only on a single going out with his permission: if she goes out once with his permission, he is acquitted and his oath is released, with no breach, even if she goes out afterwards without permission.
• Second category: what the schools also agree upon: repetition in acquittal as in breach, with a single formula: "each time you enter the house without my permission, you are divorced". The formula "each time" (kullama) is precisely instituted for repetition: acquittal occurs when he permits her each time, breach when he refuses to permit her. If she goes out once without permission, there is a breach and a single divorce, without the oath lapsing; if she goes out a third time without permission, there is a breach and a third divorce, and the oath lapses afterwards, the husband having exhausted his right of divorce. If he permits her three times for three goings out, he is acquitted without the oath being released, the divorce remaining: if she goes out a fourth time without permission, she is divorced; the breach is reckoned as three without the acquittal being so, since the breach is measured by the number of divorces he held. Example: she goes out the first time with permission, the second without, the third with and the fourth without: he is acquitted for two goings out (the first and the third) and in breach for two (the second and the fourth), and so on thereafter.
• Third category: what the schools disagree about, whether the oath binds once or on repetition: these are the five other formulas: "if you go out from the house except with my permission, you are divorced"; "if you go out from the house unless I permit you, you are divorced"; "if you go out from the house without my permission, you are divorced"; "at whatever time you go out from the house without my permission, you are divorced"; "whenever (mata) you go out from the house without my permission, you are divorced".

Three doctrines contend over these five formulas.

The first is that of the Shafi'is and the Hanbalis in one transmission: the oath binds only once, without repetition in acquittal or in breach. If she goes out once with permission, he is acquitted and the oath is released, with no breach for a later going out without permission; if she goes out once without permission, there is a breach, the oath lapses, and a later going out without permission produces no new breach. The reason: every oath containing prohibition and enabling must have an acquittal matching the breach in repetition as in its lapse, like the formula of limit in the lapse of repetition and "each time" in its demand for it. Acquittal and breach in oaths are reckoned by the binding: if the binding requires repetition of the prohibition and the enabling, it requires repetition of the acquittal and the breach; otherwise there is none. The mark of repetition is absent from "if you go out except with my permission": the oath therefore binds once; it is present in "each time you go out without my permission": it therefore binds each time. Likewise, if he says "if you go out with my permission, you are divorced", the oath binds once; if he says "each time you go out with my permission, you are divorced", it is the same; but if he says only "each time you go out with my permission" (without a divorce clause), the formula bears on repetition while the oath does not attach to it: for if the object of the oath meets what its formula demands, its ruling is restricted to that (al-Hawi al-Kabir, 15/391, 394; al-Bayan, 10/303-304; Sharh al-Zarkashi, 3/343).

The second is that of the Malikis according to the famous view and the Hanbalis according to the school: the oath binds on repetition, in acquittal as in breach. If she goes out once with permission, he is acquitted without the oath being released; if she goes out once without permission, there is a breach without the oath lapsing: he suspended the divorce on a condition that occurred, and the divorce falls as if she had gone out without permission (al-Taj wa-l-Iklil, 2/325, 341; Sharh Mukhtasar Khalil, 3/78; Tahrir al-Mukhtasar, 2/398, 417; Manh al-Jalil, 3/35).

The Hanbalis add: if he says "if you go out without my permission, you are divorced", or "except with my permission, you are divorced", or "if you go out until I permit you, you are divorced", then permits her, she goes out, and then she goes out without permission: she is divorced. "You go out" is indeed an indefinite in a conditional context implying generality: it is true that she went out without his permission, unless he had the intention of permitting once and then permitted her, or said expressly "if you go out except with my permission once, you are divorced": in that case there is no breach for her later goings out without permission. Conversely, if he said "if you go out once without my permission, you are divorced", then permitted her, then she goes out without permission: there is a breach, for this second going out is unpermitted and falls under the oath, as if she had gone out from the start without permission. If he permits her each time she wishes, saying "go out whenever you wish", she is not divorced by her goings out: the permission being general, she never went out without his permission (al-Mughni, 10/46; al-Kafi, 4/407; Sharh al-Zarkashi, 3/343; Kashshaf al-Qina, 5/354-355).

The third is that of the Hanafis. If he swears his wife to divorce if she goes out without his permission and grants her one permission, the oath lapses: "so that" (hatta) marks the limit. Allah the Most High said:

"peace, until the emergence of dawn"

Surah Al-Qadr, 5

The oath is measured by its term, and from the limit follows that what comes after differs from what precedes: when the oath ends with a single permission, there is no further breach even if she goes out afterwards without permission, unless he intended to permit her each time: he then strengthens the command upon himself with a wording that bears it. If he says "do not go out except with my permission", permission is required for each going out, so that if she goes out once without permission there is a breach: he excepted a going out characterized by his permission, the letter "by" marking attachment, and every going out devoid of that characteristic is a condition of breach; the meaning of his words is "except asking permission". Allah the Most High said:

"and We do not descend except by the command of your Lord"

Surah Maryam, 64

that is, charged with that command. The same applies to "if you go out except with a veil, or except with a head-cover": if she goes out once without a veil or head-cover, there is a breach; but there is no breach for a going out exposed to inevitable drowning or burning. Only, if he had intended to permit her once, his good faith is accepted, not as a ruling since it contradicts the apparent: this is the view of Abu Yusuf, and the fatwa rests on him. The stratagem is to say to her: "whenever you wish to go out, I have permitted you". As for "unless I permit you", it has the same status: once a permission occurs, the oath no longer bears on it, for "unless that" has the meaning of "until" where a term is at stake; Allah the Most High said:

"unless you are surrounded"

Surah Yusuf, 66

that is, that you be surrounded (al-Mabsut, 8/173; Majma' al-Anhur, 2/286; Tanqih al-Fatawa al-Hamidiyya, 1/324).

Going out for an authorized purpose (the bath, visiting a patient, a set place) then turning elsewhere

If the husband says to his wife: "If you go out for anything other than the bath, or visiting a patient, or such a place, without my permission, you are divorced", and she goes out for the bath or for that place and then turns elsewhere, is she divorced? Three cases.

• First case: she goes out for the bath then turns to other than the bath: there is no breach, the purpose of the going out being the bath at the outset, according to the Malikis, the Shafi'is and the Hanbalis in one view. The Hanbalis according to the school say: there is a breach, for his dominant intention was that she not go anywhere other than the bath or visiting the patient, and she went to other than both; the rule of continuation is the rule of the beginning.
• Second case: she goes out for other than the bath then turns to the bath: there is a breach, the purpose of the going out being other than the bath, according to the Shafi'is and the Hanbalis.
• Third case: she goes out with a purpose combining the bath and something else: there is a breach according to the Shafi'is in the correct view and the Hanbalis, for her going out to other than the bath exists, and its being joined by a going out to the bath does not prevent the breach; and if she went out for the bath and for something else, it is true that she went out to other than the bath or to the bath. The second Shafi'i view: no breach, by preferring what does not cause the breach over what does. This view is erroneous: if he had said to her "if you speak to Zayd, you are divorced", and she had spoken to Zayd and Amr together, she would be divorced, and her speaking to Amr would not have prevented her from being divorced for speaking to Zayd (al-Mudawwana al-Kubra, 3/136; al-Dhakhira, 4/30; al-Taj wa-l-Iklil, 2/341; al-Umm, 7/78; al-Hawi al-Kabir, 15/394-395; al-Muhadhdhab, 2/96; al-Bayan, 10/303-304; Asna al-Mutalib, 3/332; al-Mughni, 10/47; al-Kafi, 4/408; al-Mubdi', 7/359; al-Insaf, 9/99-100; Kashshaf al-Qina, 5/355; al-Rawd al-Murbi', 2/400).

It is related in al-Mudawwana al-Kubra: (I say) what do you think of a man who swears not to permit his wife to go out except to visit a sick person, then permits her, she goes out to visit a sick person, then a need other than the visit arises while she is with the patient and she goes to it: does the husband breach his oath? (He answered:) he does not breach it. (I say:) what do you think if he swore not to permit her to go out except to visit a sick person, and she went out without permission to the bath or elsewhere: does he breach it? (He answered:) he does not breach it in my view, for the husband had not permitted her to go where she went, unless he learns of it and leaves her: if he learns of it and does not leave her, he does not breach it. (I say:) if he learns of it only after she has finished and returned? (He answered:) no breach, in my view. (Sahnun said:) something similar was related from Rabia: there is a breach for what is not the visit if he lets her stay, for he could have brought her back; by leaving her he therefore permitted her to go out (al-Mudawwana al-Kubra, 3/136).

Permission given without the wife knowing

The husband said "if you go out without my permission, you are divorced", then permitted her without her knowing and she went out: is there breach and divorce, or not? The jurists differed. Abu Hanifa, Muhammad, the Malikis and the Hanbalis according to the school hold that she is divorced. His purpose was "you shall not go out except through the means of my permission", and it is true that she went out without the means of his permission; permission is a ruling among the acts of the legally accountable which attaches to the one who states it and to what is stated, and when it is performed without the agent knowing that this ruling exists, the agent cannot be judged to have performed it in that sense, whose root is command and prohibition. Whoever swears that she shall not go out except with his permission thereby intends to prevent her from allowing herself to disregard it and to deter her from believing that she need not observe his permission, confining her conduct to his command and prohibition; this purpose exists only with her knowledge of the permission, which must therefore accompany it and be a condition of it: if it occurs without that, there is a breach. She went out with the same attribute as before the permission, that of disregarding it: it is as if she had gone out before his permission. Permission, moreover, is information; the same was said of the word of Allah the Most High:

"I have proclaimed to you all alike"

Surah Al-Anbiya, 109

that is, "I have informed you"; likewise:

"an announcement from Allah and His Messenger"

Surah At-Tawba, 3

that is, an informing; and:

"so accept a war from Allah and His Messenger"

Surah Al-Baqara, 279

that is, inform yourselves of it; the word derives from permission: I have placed it within your permission and informed you of it. Without knowledge there is no informing, hence no permission; and the permission of the Lawgiver in His commands and prohibitions is not established except after knowledge, likewise that of the human being: this is why the permission cannot exist from his side (al-Tajrid of al-Qaduri, 12/6485-6486; al-Ikhtiyar, 4/67; al-Ishraf 'ala nakt masail al-khilaf, 4/298, no. 1642; al-Taj wa-l-Iklil, 2/325; Sharh Mukhtasar Khalil, 3/78; al-Sharih al-Kabir with al-Dasuqi's gloss, 2/433; Tahrir al-Mukhtasar, 2/398; al-Mughni, 10/47; al-Mubdi', 7/359; Kashshaf al-Qina, 5/355; al-Rawd al-Murbi', 2/400).

The Shafi'is, Abu Yusuf among the Hanafis, Malik in one transmission and the Hanbalis in one view hold that if the husband swore her to divorce if she goes out without his permission, feared she would go out without permission in his anger, contrived to permit her without her knowing, and she then went out: there is neither breach nor divorce, for she went out after the permission existed from his side; there is no more breach than if she had known, just as if someone dismisses his agent: the dismissal stands even if the agent does not know of it; likewise she becomes permitted without knowing. Permission is indeed the prerogative of the one who grants it, and knowledge of it the prerogative of the one who benefits; his oath was bound only to what belongs to him, the permission, not to what belongs to her, the knowledge. The name "permission" applies to his permission without her knowledge: his being the sole one to permit must therefore suffice for the existence of the condition, and the breach does not fall through it; just as if he says "if I stand up, you are divorced": she is divorced by his standing without her knowing. If knowledge were a condition of the permission, the knowledge of the one swearing would be a condition too; yet it is established that if she learns of it from someone else, it is valid, while if someone else permits her, it is not: this proves that knowledge is excluded from the rights of the permission, which is valid by the mere word. Moreover, he forbade the going out by oath and allowed the going out by permission: his bond with her combines prohibition and permission, and when permission meets permission while the one benefiting knows nothing of it, the rule of permission applies without the prohibition, like one who takes possession of property whose owner permitted him while unaware of that permission: the rule of permission applies to the property by virtue of the one who grants it, without the prohibition by virtue of the one who takes it; such is the ruling of this going out; its clarification: it is a permission after a permission, and the lack of knowledge has no effect on it as it would on property. She does not know of his permission, sometimes because of distance, sometimes sleep: it is agreed that if he permitted her while she slept and she went out unaware, there is no breach; likewise if he permitted her while she was far away and she went out without knowing he had permitted her: no breach; its clarification: it is an oath whose acquittal is suspended on the permission, so the lack of knowledge must not cause the breach, as with the sleeper and the forgetful (al-Hawi al-Kabir, 15/397-398; al-Ikhtiyar, 4/67; Tahrir al-Mukhtasar, 2/398; al-Tanbih, 1/179; al-Muhadhdhab, 2/96; Jawahir al-Uqud, 2/111; al-Mughni, 10/47; al-Insaf, 9/99).

Conditions for the validity of divorce suspended on a condition

Five conditions are required for divorce suspended on a condition to take effect.

• First condition: the suspending condition must be non-existent at the time of the divorce, liable to exist in the future, that is, oscillating between being and not being. If the condition exists at the time of the suspension, as when he says "you are divorced if your brother is with us now" while he is, it is a valid immediate divorce that takes effect at once, not a suspended divorce. If the condition is certain to occur, as in "you are divorced if the sky is above us" or "you are divorced if you are pregnant" while she is, it is an immediacy (tanjiz) according to the majority of jurists. If he suspended it on something impossible of existence, such as "if camels pass through the eye of the tailor's needle, you are divorced", the divorce does not take effect according to the Hanafis and the Hanbalis in one view: his purpose is to affirm the negation, the condition being meant to bear and forbid, which is inconceivable here; the Malikis and the Hanbalis according to the school hold that it takes effect immediately (Bada'i' al-Sana'i', 3/37, 132; Durrar al-Hukam, 4/278; al-Bahr al-Ra'iq, 4/3; Ibn Abidin's gloss, 3/342; al-Taj wa-l-Iklil, 3/78, 88; Mawahib al-Jalil, 5/289; Sharh Mukhtasar Khalil, 4/55, 103; al-Sharih al-Kabir with al-Dasuqi's gloss, 3/286, 366; Tahrir al-Mukhtasar, 3/180; al-Sawi's gloss on al-Sharh al-Saghir, 5/363; Mughni al-Muhtaj, 4/516; Tuhfat al-Muhtaj, 9/574-575; al-Insaf, 9/42, 44).
• Second condition: the suspension must be contiguous with the speech. If he separates it by a pause, saying "you are divorced" then keeping silent then "if you enter the house", or by foreign speech, as in "you are divorced", then "give me water", then "if you do not enter the house", the divorce takes effect on him immediately, unless the pause is due to a need, as when he says "you are divorced" then draws breath out of necessity then says "if you enter the house, or the house of so-and-so": it remains suspended and takes effect only if she enters the house sworn upon (al-Bahr al-Ra'iq, 4/3; al-Ashbah wa-l-Naza'ir, p. 367; Ibn Abidin's gloss, 3/343; Tanqih al-Fatawa al-Hamidiyya, 1/260; Asna al-Mutalib, 3/278).
• Third condition: not intending thereby retaliation, that is, provoking her by the divorce. If he intends retaliation, the divorce takes effect immediately according to the Shafi'is: if she says to her husband "O fool, O wretch" and he replies "if I am such, you are divorced", intending to repay her by making her hear what she hates, as she provoked him with the hateful insult, the meaning being "if I am such in your claim, you are divorced", she is divorced at once, whether or not he is a fool or wretch. If he intends the suspension, the attribute is considered, that is, the vileness or the folly, as is the way of suspensions: if it is absent, she is not divorced. Likewise the attribute is considered if he spoke intending nothing, neither repaying her nor anything else, according to the soundest view, in consideration of the word's function: she is therefore not divorced if the attribute is absent. The second Shafi'i view: the attribute is not considered, the speech being carried to retaliation according to custom. If one says to him "O husband of the prostitute" and he replies "if my wife is such, she is divorced": she is divorced if he intends to free himself of her shame, as if he intended retaliation; otherwise the attribute is considered, the prostitute being the debauched woman. The Hanafis say: the condition of the suspended divorce is that retaliation not be intended; if she insults him with terms like "Cordovan" or "vile" and he says "if I am as you say, you are divorced", the divorce is immediate, whether or not he is such; the husband in most cases wants only to hurt her by the divorce as she hurt him. If he intends the suspension, saying "I intended the condition, namely: if I am a Cordovan or vile, let it be charged against me before Allah", nothing occurs as long as he is not a Cordovan or vile (Rawdat al-Talibin, 5/492-493; al-Najm al-Wahhaj, 7/594; Mughni al-Muhtaj, 4/538-539; Tuhfat al-Muhtaj, 9/585-587; al-Dibaj, 3/476-477; Sharh Fath al-Qadir, 4/128; al-Bahr al-Ra'iq, 4/3; al-Ashbah wa-l-Naza'ir, p. 367; Majma' al-Anhur, 2/65; Ibn Abidin's gloss, 3/343).
• Fourth condition: mentioning the conditioned act in the suspension, that is, the act of the condition, for the recompense attaches only to what exists. If he says "you are divorced if", it is idle speech according to the correct view on which the fatwa rests, the view of Abu Yusuf: she is not divorced because he did not complete his speech; likewise "you are divorced three times if not", or "or otherwise", or "if it were", or "if it were not". Muhammad said: she is divorced at once (Bada'i' al-Sana'i', 3/21; al-Bahr al-Ra'iq, 4/3; al-Ashbah wa-l-Naza'ir, p. 367; Ibn Abidin's gloss, 3/344).
• Fifth condition: the existence of a link, that is, an instrument among the instruments of the condition. The instruments or particles of the condition are: "if", "when", "as soon as", "all", "each time", "whenever (mata)", "at whatever time"; for "condition" (shart) derives from "sign" (sharit) meaning indicator, whence the "signs of the Hour", that is, its indicators; Allah the Most High said: "its signs have already come" (Surah Muhammad, 18). These particles were so named for their association with the verb, which is the sign of the breach: the recompense attaches only to what is liable to exist, namely acts, not nouns, since the idea of contingency is impossible in them.

The Hanafis say: with these particles, when the condition occurs the oath is released and the divorce takes effect, that is, if the condition occurs once the divorce takes effect by it and does not occur a second time: linguistically they require neither generality nor repetition; with the act occurring once the condition is fulfilled and the oath has no ground, the effect of the condition having ceased by its single occurrence. Exception: "each time" (kullama): the divorce repeats with the repetition of the condition until three divorces fall, for "each time" requires the generalization of acts. Allah the Most High said:

"each time their skins are burned away, We replace them with new skins"

Surah An-Nisa, 56

and He said:

"each time they try to leave it, they are returned to it"

Surah Al-Hajj, 22

the burning of the skins and the desire to leave are repeated: they are acts. If the husband says to his wife "each time you enter the house, you are divorced", she enters: she is divorced; she enters again: she is divorced; she enters again: she is divorced; and there is nothing beyond three divorces in the Law: nothing occurs beyond them (Bada'i' al-Sana'i', 3/21; al-Hidaya, 1/251; Tabyin al-Haqa'iq, 2/233; al-Jawhara al-Nayyira, 4/429-432; al-'Inaya, 5/346-347; Durrar al-Hukam, 4/280).

The Shafi'is say: the instruments of suspension by condition and by attributes are many, among them "if", which is the mother of the chapter, as in "if you enter the house, you are divorced"; "who" (man), as in "whichever of my wives enters the house is divorced"; "when"; "whenever (mata)", "at whatever time", with the addition of "ma"; "each time" (kullama), as in "each time one of my wives enters the house she is divorced"; "at whatever moment", as in "at whatever moment you enter the house, you are divorced". There are also "since", "whatever" in the sense of the conditional "whatever"; "whatever it be" (ayyan ma); "when" (ayyana) which generalizes the times like "mata"; "where" and "wherever" which generalize the places; "how" and "however" for suspension on states. These instruments require neither immediacy nor delay in the conditioned when the suspension is on an existent such as entering, outside the khul'; in the khul' they convey immediacy in some of its forms, such as "if" and "when": "if you guarantee me a thousand, you are divorced", or "when you guarantee me a thousand, you are divorced"; they convey immediacy likewise in suspension on the wish, as in "you are divorced if you wish", or "when you wish", for it is a transfer of ownership according to the correct view, unlike "whenever you wish". These instruments likewise do not require repetition in the conditioned: when it occurs once, without forgetfulness or coercion, the oath is released and its occurring a second time has no effect, except "each time": suspension by it conveys repetition (al-Hawi al-Kabir, 10/208-209; al-Muhadhdhab, 2/88; al-Najm al-Wahhaj, 7/561-562; al-Iqna', 2/445-446; Mughni al-Muhtaj, 4/510-511; Tuhfat al-Muhtaj, 9/497-499; al-Dibaj, 3/453-454).

The Hanbalis say: the instruments of condition used in divorce and manumission are six: "if", "who", "when", "whenever (mata)", "at whatever time" and "each time" (kullama); none requires repetition except "each time". If he says "if you stand", or "when you stand", or "whenever (mata) you stand", or "at whatever time you stand", or "whichever of you stands is divorced", and she stands, she is divorced; even if the standing repeats, the divorce does not repeat, the wording not requiring repetition. If he says "each time you stand, you are divorced" and she stands, she is divorced; if the standing repeats, the divorce repeats, the wording requiring repetition. Abu Bakr said of "at whatever time" that it requires repetition, since it is used for it; the correct view is that it does not, for it is a noun of time resembling "when".

All these instruments entail delay when they are free of the particle of negation (lam): if he joins it to them, "if" remains with delay; "when" has two views: immediacy, for it is a noun of time resembling "whenever (mata)"; or delay, for it was devoted to the condition and has the meaning of "if". And if it bears both, the divorce does not occur in doubt. The other instruments entail immediacy, for they demand it. If he says "if I do not divorce you, you are divorced" without intending a specified time and no indication determines it, the divorce occurs only as the term draws near, namely the end of a portion of the life of one of them. If he says "whenever (mata) I do not divorce you, you are divorced", or "at whatever time I do not divorce you, you are divorced", or "whichever of you I do not divorce is divorced", and a time enabling her divorce passes without his divorcing her, she is divorced. If he says "when I have not divorced you, you are divorced", does she become divorced at once or at the end of the life of one of them? Two views. If he says "each time I do not divorce you, you are divorced" and a time enabling three divorces passes without his divorcing her, she is divorced three times, for the meaning is "each time I keep silent about divorcing you, you are divorced": he kept silent three times in three periods. The speech of the Malikis does not go beyond that of the other schools (al-Mughni, 7/242-243; al-Kafi, 3/190-191; al-Muharrar fi-l-Fiqh, 2/63; al-Mubdi', 7/237-238; al-Insaf, 9/62; Kashshaf al-Qina, 5/328, 330; Matalib Uli al-Nuha, 5/401).

The lapse of divorce suspended on a condition

If a man says to his wife "you are divorced if you do such a thing", or "if you enter the house", the outcome depends on the state in which she performs the act sworn upon.

• First case: she performs the act or enters the house while still in this marriage: he breaches his oath without any disagreement among the jurists, and she is divorced by that breach, the condition of the breach having occurred at a time when the divorce is incumbent upon him.
• Second case: she performs it after a divorce, during the waiting period of return. If he suspended his divorce on an attribute, as in "if you enter the house, you are divorced", then divorced her with a revocable divorce, then took her back before the waiting period ended, and the attribute occurs in her entering the house during the waiting period: she is divorced, with no disagreement among the jurists of the four schools: it is not a renewed marriage and no situation prevents the divorce from taking effect.
• Third case: she performs it after her waiting period has ended. If he said "if you do such a thing you are divorced three times", or "if you enter the house", or "if you speak to so-and-so, you are divorced three times", then separated from her by khul' or a revocable divorce whose waiting period expired, then she performs the act sworn upon: nothing falls upon him, by consensus, and the divorce does not take effect, for she is now a stranger and the locus of the divorce is non-existent. The oath bore on the entering only once, and it occurred in a state where it can produce no effect, the oath having been released by that entering; moreover the suspension preceded this marriage and therefore produces nothing, as if he had suspended her divorce on the marriage; the locus of obligation is when the oath is not limited to a time that expires; but if its time expires, nothing further occurs upon her.
• Fourth case: he swore or suspended her divorce on the performance of an act, such as entering the house, then divorced her once or twice, her waiting period expired, she returned to him before another husband by a new contract, then she performs the act sworn upon after her return: does the divorce take effect? The jurists differ. The Hanafis, the Malikis and the Hanbalis according to the school: what he swore falls upon him if something of that marriage remains, provided his first divorce was short of the limit; the locus of obligation is when the oath is not limited to a time that expires; if the time expires, the oath does not return, as in "if I or you enter the house tomorrow, you are divorced": he separates from her then takes her back, she enters after the term: no breach; and even if she is still in his marriage and acts after the term: no breach. Harb said: I asked Ahmad: a man said to his wife "you are divorced three times if you enter this house", then divorced her once and she became separated from him, then she entered the house? He answered: no divorce falls upon her then, for she entered while no longer his wife; but if she returns to him, the oath returns to him, and he remains under his oath. I said: he meant, then, only this woman? He answered: I do not know, and he showed hesitation about it (Mas'il Harb al-Kirmani, 1/466; see also al-Mudawwana al-Kubra, 5/10-12; al-Taj wa-l-Iklil, 3/54-55; Mawahib al-Jalil, 5/271; Sharh Mukhtasar Khalil, 4/41; al-Sharih al-Kabir with al-Dasuqi's gloss, 3/263; Tahrir al-Mukhtasar, 3/152; al-Mughni, 7/275; al-Insaf, 8/423-424; al-Rawd al-Murbi', 2/364). The Shafi'is in the most apparent view: if she enters or performs the act after returning to him by a new marriage before marrying another, the divorce does not take effect, the marriage suspended upon having ceased. Second view: it takes effect, the marriage existing at both the suspension and the attribute, and the interposition of the separation having no effect, being neither the time of the utterance nor that of the occurrence. Third view: it takes effect if she separated without the three divorces, for the one returning in the second marriage retains what remained of the first husband's divorces with its attribute, namely the suspension on the act sworn upon; unlike if she had separated through the three: he then exhausted the divorces on which the suspension bore, and the return is upon new divorces (al-Hawi al-Kabir, 10/28 and 15/402-403; Rawdat al-Talibin, 5/368-369; al-Najm al-Wahhaj, 7/513-514; Mughni al-Muhtaj, 4/476; Tuhfat al-Muhtaj, 9/398; al-Dibaj, 3/423; Ikhtilaf al-Ulama of al-Marwazi, p. 180-181).
• Fifth case: he swore "if you do such a thing, you are divorced", then divorced her once or twice, she married another husband who consummated the marriage, then she returned to her first husband and performs the act sworn upon, such as entering the house: does the divorce take effect? Abu Hanifa, Abu Yusuf, the Malikis, the Shafi'is in one view and the Hanbalis according to the school: it takes effect upon her (Bada'i' al-Sana'i', 3/126-128; al-Mudawwana al-Kubra, 5/10-12; al-Taj wa-l-Iklil, 3/54-55; Mawahib al-Jalil, 5/271; Sharh Mukhtasar Khalil, 4/41; al-Sharih al-Kabir with al-Dasuqi's gloss, 3/263; Tahrir al-Mukhtasar, 3/152; al-Mughni, 7/275; al-Insaf, 8/423-424; al-Rawd al-Murbi', 2/364). The Shafi'is in the most apparent view: it does not take effect if she acts after returning to him by a new marriage after having married another, the marriage suspended upon having ceased. Second view: it takes effect, the marriage existing at both the suspension and the attribute. Third view: it takes effect if she separated without the three, for the same reasons as above. Muhammad and Zufar said: she returns to him with what remains of the three divorces (Bada'i' al-Sana'i', 3/126-128; Tabyin al-Haqa'iq, 2/240; al-'Inaya, 5/365; Majma' al-Anhur, 2/68).
• Sixth case: he said "you are divorced three times if you do such a thing, or if you enter the house", then divorced her three times; after her waiting period expired she married another, then married the first swearing husband, then performs the act sworn upon or enters the house: the divorce does not take effect upon her, by consensus, for nothing remains of the right of divorce upon which he suspended it: she returned with a new right of divorce. Imam Ibn al-Mundhir, may Allah have mercy on him, said: all those whose reports we preserve among the scholars agree that if a man says to his wife "you are divorced three times if you enter this house", then divorces her three times, then, after her waiting period expired, she married another, then the swearing husband remarried her, then she entered the house, no divorce falls upon her; this is the school of Malik, al-Shafi'i, Abu Thawr and the partisans of reasoned opinion, the right of divorce of that ownership having expired (al-Ishraf 'ala madhahib al-ulama, 5/245-246, and the preceding sources).