بَابُ الْخُلْعِ وَالطَّلَاقِ

(1) The statement: “Divorce is twice, etc.”: These two verses address revocable divorce, khul‘, and the final divorce. Regarding the first, His saying, “Divorce is twice”, clarifies that in the pre-Islamic era, the number of divorces was not fixed, allowing a man to divorce his wife multiple times (e.g., ten) and still take her back. He could revoke the divorce at the end of her waiting period, divorce her again, and repeat this cycle. A woman complained to Aishah about her husband’s repeated revocations and divorces, and when this was brought to the Messenger of Allah (ﷺ), the verse “Divorce is twice” was revealed. This means that revocable divorce, which allows revocation, is limited to two times, not more. After that, one must either keep her with kindness or release her with good treatment. This is a command in the form of a statement, as if to say: “Divorce revocably twice.” This interpretation is mentioned in Husayni, Zahidi, Baydawi, and Talwih, aligning with the views of Ash-Shafi‘i and Abu Hanifah. Another interpretation, specific to Abu Hanifah and favored by the authors of Kashshaf, Madarik, and Fakhr al-Islam, holds that this refers to the lawful method of divorce, not just revocable divorce. Lawful divorce is pronounced one at a time with intervals, not all at once. The term “twice” does not imply two divorces at once but rather repetition, as in “Then look again twice” [Al-Mulk: 4], meaning one look after another, not two at once. This is supported by the use of “marratan” (twice) instead of “ithnayn” (two), indicating a command in the form of a statement. Otherwise, it would imply falsehood, as two divorces can occur together. Ash-Shafi‘i permits pronouncing two or three divorces at once. The preferred rulings are: The best divorce is one pronounced in a clean period without intercourse, followed by no further divorce. The good method, per Hanafis, is three divorces in three clean periods or three months, contrary to Malik, who considers this innovated. Innovated divorce includes pronouncing two or three divorces in one clean period, in one statement, or one divorce in a period with intercourse or during menstruation with prior intercourse. Ash-Shafi‘i permits this except during menstruation. After one or two divorces, revocation is allowed during the waiting period if pronounced explicitly. If the waiting period ends or ambiguous terms are used, she is fully divorced and may remarry him or another. After three divorces, explicit or ambiguous, with or without compensation, she is not lawful to him until she marries another husband, as Allah states. Revocable divorce is addressed in two verses: “Divorced women shall wait…” [Al-Baqarah: 228], followed by “And their husbands have more right to take them back”, for one divorce, and “Divorce is twice”, for two divorces, followed by “Then, either keep [her] in an acceptable manner or release [her] with good treatment”, meaning after two divorces, either revoke with kindness or release by letting the waiting period end or pronouncing a third divorce in the third clean period. Revocation after the third divorce requires her to marry another husband who consummates the marriage and then divorces her, as in “And if he has divorced her…” [Al-Baqarah: 230]. After the waiting period of one or two divorces, the divorcing husband or another may marry her, as in “And when you divorce women and they have fulfilled their term…” [Al-Baqarah: 231]. This is the detailed explanation. Regarding the second, “And it is not lawful for you…”, commentators explain that Jamilah, the wife of Thabit ibn Qays, was averse to him despite his love for her. He had given her a garden as her dowry. She sought khul‘ by returning the garden, making it the cause of her divorce. He divorced her and took back the garden. The Messenger of Allah (ﷺ) encouraged her to stay for his sake, but she insisted on separation. He asked, “Will you return his garden?” She said, “Yes.” This was the first khul‘ in Islam, and this verse was revealed. The verse means it is not lawful to take back anything given as dowry unless both fear they cannot uphold Allah’s limits, i.e., discord arises, such as the wife’s rebellion, bad character, or lack of respect, or the husband’s unjust beating or abuse. If you fear they cannot uphold Allah’s limits in this manner, there is no blame on either for what she ransoms herself with to free herself. This is called khul‘, a final divorce. However, the term “khul‘” must be explicitly mentioned, e.g., the husband says, “I grant you khul‘ for a thousand dirhams, and I accept,” or the wife says, “I seek khul‘ from you for this, and you accept.” If the term “khul‘” is not used, e.g., the husband says, “I divorce you for a thousand,” or the wife says, “Divorce me for a thousand,” it is not khul‘ but a divorce for compensation. Khul‘ is permissible when needed, with anything valid as dowry being valid as compensation, though not vice versa. Taking compensation is disliked if the discord is from the husband, and taking more than the dowry is disliked if from the wife. Khul‘ is a transaction for her, allowing her to revoke or stipulate an option, limited to the session, and an oath for him, reversing rulings for him. This is detailed in fiqh books. Scholars differ on whether khul‘ is a dissolution or a divorce. Ash-Shafi‘i’s old opinion and Ibn Amr ibn Abbas hold it is a dissolution, not a divorce. Hanafis and Ash-Shafi‘i’s new opinion, one narration from Uthman, hold it is a divorce. Fakhr al-Islam explains that Allah mentioned one or two divorces followed by revocation, then khul‘ in “But if you fear that they will not keep [within] the limits of Allah…” [Al-Baqarah: 229]. He began with the husband’s action (divorce) and added the wife’s action (ransom). Mentioning the wife in “concerning that by which she ransoms herself” confirms the husband’s prior action (divorce, not dissolution), as ransom involves giving something for something. This indicates the compensation is for the wife, and the corresponding action (divorce) is for the husband, not dissolution, which involves both. The practical difference is that Hanafis count khul‘ as a divorce, while others do not. Thus, “And if he has divorced her…” [Al-Baqarah: 230] connects to “Divorce is twice” [Al-Baqarah: 229], not khul‘. Regarding the third, “And if he has divorced her…” [Al-Baqarah: 230], scholars differ. Most commentators connect it to “Divorce is twice”, meaning after one or two revocable divorces, a third divorce makes her unlawful to him forever until she marries another husband who consummates the marriage and divorces her. Then, there is no blame on the first husband and wife to remarry if they believe they can uphold Allah’s limits of marital rights, good companionship, and harmony. On this view, the khul‘ ruling is an interjection to clarify that it is also a divorce, indicating divorce can be without or with compensation. Jurists agree that mentioning divorce in “And if he has divorced her…” with the letter fa’ (then) after khul‘ indicates two things: divorce is valid after khul‘, per the fa’, and khul‘ is a divorce, not a dissolution, as dissolution would not be followed by divorce. This is supported by “concerning that by which she ransoms herself”, as explained in Tafsir al-Ahmadiyyah (summarized).

(2) The statement: “And if you wish to exchange a wife…”: It is reported that in the pre-Islamic era, if a man admired another woman for her beauty, wealth, or perfection and wanted to marry her by divorcing his current wife, he would falsely accuse his wife of immorality to force her to ransom herself with what he gave her. He did this to marry the other woman and take back his wealth deceitfully. Allah prohibited this, saying, “And if you wish to exchange a wife…”, meaning if you desire to replace one wife with another for beauty or perfection, having given the first a great amount, do not take anything back, as it would be unjust and sinful. How can you take it when you have been intimate and they have taken a solemn covenant, meaning companionship, intimacy, or Allah’s firm covenant in “Then, either keep [her] in an acceptable manner or release [her] with good treatment” [Al-Baqarah: 229], or the Prophet’s (ﷺ) saying, “Treat women kindly…” This is the verse’s meaning. The author of Hidayah cites this to argue that if the discord is from the husband, taking compensation is disliked, as in the chapter on khul‘: If the discord is from him, it is disliked to take compensation, per “And if you wish to exchange a wife…” to “do not take [back] from it anything” [An-Nisa: 20]. The term “qintar” (great amount) indicates dowry can be any amount, as it means vast wealth. It is narrated that Umar said on the pulpit, “Do not exaggerate women’s dowries.” A woman responded, “Do we follow your words or Allah’s: ‘And you have given one of them a great amount’?” Umar said, “Everyone is more knowledgeable than Umar. Marry with what you wish.” This verse also clearly supports Abu Hanifah’s view that dowry is confirmed by valid seclusion, as Allah prohibits taking back wealth, justified by intimacy (seclusion without barrier), as in Madarik and Tafsir al-Ahmadiyyah (summarized).

(1) The statement: “Allah has already ordained for you [Muslims] the dissolution of your oaths”: This means Allah made prohibiting the lawful an oath, requiring expiation. The end of the verse mentioning “dissolution of your oaths” relates to the beginning about prohibiting the lawful. It is narrated from Muqatil that the Messenger of Allah (ﷺ) freed a slave to expiate prohibiting Mariyah. Allah did not merely prescribe expiation but termed it an oath, as in Tafsir al-Ahmadiyyah (summarized). The author of Kashshaf says: If asked about the ruling on prohibiting the lawful, it is disputed. Abu Hanifah views it as an oath in all cases, considering the intended benefit of what is prohibited. If one prohibits food, it is an oath against eating it; a slave woman, against intimacy; or a wife, against ila’ (oath of abstinence) if no intent is specified. If one intends zihar (likening to a kin), it is zihar; if divorce, it is a final divorce. If two or three divorces are intended, it follows the intent. If one says, “I intended to lie,” it is a matter between him and Allah, not upheld in judgment. If one says, “All lawful things are unlawful to me,” it applies to food and drink if no intent is specified, otherwise per the intent. Ash-Shafi‘i does not view it as an oath but a cause for expiation only for women. If divorce is intended, it is revocable for him. Abu Bakr, Umar, Ibn Abbas, Ibn Mas‘ud, and Zayd say prohibiting the lawful is an oath.

(2) The statement: “Accept the garden and divorce her…”: This proves the legitimacy of khul‘, on which scholars unanimously agree. The details of khul‘ were discussed under “Divorce is twice”, which is relevant here.

(3) The statement: “The Prophet (ﷺ) made khul‘ a single final divorce”: Scholars differ on whether khul‘ is a divorce. Hanafis say it is a single final divorce, as do Uthman, Ali, Ibn Mas‘ud, Al-Hasan, Ibn al-Musayyib, Ata, Shurayh, Ash-Sha‘bi, Qabisah ibn Dhu’ayb, Mujahid, Abu Salamah, An-Nakha‘i, Az-Zuhri, Ath-Thawri, Al-Awza‘i, Mak-hul, Ibn Abi Najih, Urwah, Malik, and Ash-Shafi‘i in his new opinion. Ahmad and Ishaq say it is a separation and dissolution, not a divorce, as do Ibn Abbas and Ash-Shafi‘i in his old opinion. Our evidence is this Hadith and other narrations. The practical difference is that khul‘ reduces the number of divorces and her waiting period follows the second ruling, not the first, as in At-Taliq al-Mumajjad and Umdat ar-Ri‘ayah (summarized).

(1) The statement: “She sought khul‘ from her husband for everything she owned…”: In Ad-Durr al-Mukhtar, it is prohibitively disliked to take anything, including waiving her rights, if the discord is from the husband. If from the wife, it is not disliked, even if both are at fault or more than what was given, per the preferred view. Ash-Shamni validated the dislike of taking more. Multaqa’s phrasing, “no harm in it,” suggests it is mildly disliked, reconciling Fath’s rejection of dislike for taking more (per Jami‘ as-Saghir) with Ash-Shamni’s affirmation (per Asl). The first negates prohibition, the second affirms mild dislike, as clarified in Fath and followed in Bahr. The issue was disputed among the Companions, with texts from both sides, and Fath concludes Jami‘’s narration is stronger, though taking more is less preferable, as in Radd al-Muhtar (summarized).

(2) The statement: “The fragrance of Paradise is forbidden to her”: Al-Khazn states that most scholars permit khul‘ without discord or anger, though it is disliked due to severing ties without cause, per Thawban’s Hadith: “Any woman who requests divorce from her husband without harm, the fragrance of Paradise is forbidden to her,” narrated by Abu Dawud and Tirmidhi. Ibn Umar narrated the Prophet (ﷺ) said: “The most hated of lawful things to Allah is divorce,” narrated by Abu Dawud. The majority’s evidence for permitting khul‘ without discord is “And if they give something of it willingly, then eat it pleasantly and wholesomely” [An-Nisa: 4]. If she can gift her dowry without harm, it is more fitting for khul‘, which makes her master of herself. In Rahmat al-Ummah, the Imams agree that if a woman dislikes her husband for his appearance or bad companionship, she may seek khul‘ for compensation. If they mutually agree on khul‘ without cause, it is permissible and not disliked.

(1) The statement: “The most hated of lawful things to Allah is divorce”: Ash-Shafi‘i says all divorce is permissible, as in Hidayah. Our view, per Ad-Durr al-Mukhtar, is that divorce is permissible per the general verses, though some say the most correct view is prohibition except for pressing need or major issue, with the first view being the adopted one, as in Bahr. Their statement, “Its default is prohibition,” means the lawgiver set aside this default and permitted it, even recommending it for a harmful or prayer-neglecting wife. In Radd al-Muhtar’s gloss: The first view (permissibility) is supported by “So divorce them at their prescribed periods” [At-Talaq: 1] and “There is no blame upon you if you divorce women…” [Al-Baqarah: 236]. The Prophet (ﷺ) divorced Hafsah without suspicion or major issue, as did the Companions. Al-Hasan ibn Ali frequently married and divorced. The Hadith, “The most hated of lawful things to Allah is divorce,” narrated by Abu Dawud, means “lawful” includes permissible, recommended, obligatory, and disliked acts, as Ash-Shamni said, per Bahr (summarized). The response is that being hated does not negate being lawful, as lawful includes the disliked, which is hated, unlike lawful acts where abstention is not preferred. This supports the second view, as will be further affirmed. Their statement responds to Fath’s claim that permissibility negates prohibition except for major issues or suspicion, citing the Prophet’s divorce of Hafsah without these. This contradicts their claim that its default is prohibition due to ingratitude for marriage’s blessing, with permissibility for need of escape. The Hadith “The most hated of lawful things to Allah is divorce” is addressed in Bahr: This default indicates legal prohibition, but the lawgiver set it aside, making permissibility the legislated ruling, like marriage’s default prohibition permitted for procreation. Does this imply marriage is prohibited? The truth is divorce’s permissibility without need for escape, per the cited evidence. I say: The difference is clear. Marriage’s default prohibition was entirely lifted, leaving no prohibition except for external reasons. Divorce’s permissibility is inherent as it removes bondage, but its prohibition persists for severing marriage, which holds religious and worldly benefits. This aligns with prayer on usurped land—permissible and prohibited from different aspects. Divorce’s default prohibition remains, unlike marriage’s, which was lifted for procreation and world continuity. Divorce’s default prohibition persists except for permitting reasons, i.e., the need for escape, meaning “Its default is prohibition, permitted for need of escape.” Without cause, it is folly, ingratitude, and harm to her, her family, and children. Thus, its cause is the need for escape due to incompatible temperaments or enmity causing failure to uphold Allah’s limits, not limited to major issues or suspicion, as chosen in Fath. Without a permitting need, it remains prohibited, per “Then if they obey you, do not seek means against them” [An-Nisa: 34], meaning do not seek separation, and the Hadith “The most hated of lawful things to Allah is divorce.” Fath states: “Permissible” applies to times when the need is verified. When present, divorce is permitted, explaining the Prophet’s and Companions’ actions to avoid attributing frivolous harm to them. Bahr’s claim that permissibility without need for escape is incorrect if escape means without cause, as it contradicts “Permitted for need of escape.” If it means with need, it is correct. Bahr’s claim that Fath’s validation is a weak opinion contradicts our scholars, as the weak view limits permissibility to major issues or suspicion, while Fath validates non-restriction, per their general need, as clarified, showing no contradiction between the adopted view and Fath’s validation, per Fath al-Qadir.

(1) The statement: “You disobeyed your Lord, and your wife is fully divorced from you”: For Hanafis, innovated divorce violates the two Sunnah forms: pronouncing three divorces in one statement or separately in one clean period, two divorces similarly, one divorce during menstruation, in a clean period with prior intercourse, or after intercourse in the following menstruation. If done, the divorce occurs, and he sins. Its occurrence, number, and sinfulness are disputed. The Imamiyyah say three in one statement or during menstruation do not occur. Tawus, Muhammad ibn Ishaq, Al-Hajjaj ibn Artat, An-Nakha‘i, Ibn Muqatil, and Az-Zahiriyyah say three together count as one. The majority of Successors and later scholars, including Al-Awza‘i, An-Nakha‘i, Ath-Thawri, Abu Hanifah and his companions, Malik and his companions, Ash-Shafi‘i and his companions, Ahmad and his companions, Ishaq, Abu Thawr, Abu Ubayd, and others, say three divorces occur, but he sins. Those who differ are considered anomalous, opposing the Sunnah people. Ash-Shafi‘i disregards the number, requiring only a clean period without intercourse. If three or two are pronounced, it is not innovated. Malik recognizes only one divorce as Sunnah and dislikes three, together or separate. Hanafis dislike more than one in a clean period, but not if separate across clean periods. On whether three in one statement is sinful, Ash-Shafi‘i says all divorce is permissible as a legislated act, incompatible with prohibition, unlike divorce during menstruation, where the prohibition is extending the waiting period, not the divorce. For us, innovated divorce occurs and is sinful, as its default is prohibition for severing marriage, which holds religious and worldly benefits. Permissibility is for need of escape. No need exists for combining three, but separate across clean periods is valid per evidence, as the need persists. Its permissibility as bondage removal does not negate prohibition for losing religious and worldly benefits. This was discussed under “The most hated of lawful things to Allah is divorce”. Our evidence is “Divorce is twice…” to “And if he has divorced her…”, implying no lawful divorce except thus, as it restricts the category. No divorce is legislated as three at once. One might assume it does not occur, per the Imamiyyah, but since its illegitimacy is for external reasons (forfeiting its legislated purpose) and regret allows mitigation, it may harm himself or not. Further evidence includes Ibn Abbas’s statement to one who divorced thrice, “You disobeyed your Lord,” Abdur-Razzaq’s narration from Ubadah ibn as-Samit, “She is fully divorced by three in disobedience,” At-Tahawi’s from Malik ibn al-Harith, and An-Nasa’i’s from Mahmoud ibn Labid, as in Al-Marqah, Umdat al-Qari, and Hidayah (summarized).

(1) The statement: “Let him take her back…”: In Hidayah, if a man divorces his wife during menstruation, the divorce occurs, and it is recommended to take her back. This Hadith indicates occurrence and encourages revocation. Some scholars say revocation is recommended, but the most correct view is that it is obligatory to act on the command’s reality and mitigate sin by lifting its effect (the waiting period) and avoiding harm from extending it. When she becomes clean, menstruates, then becomes clean, he may divorce or keep her. Hidayah cites Muhammad in Al-Asl (Al-Mabsut). At-Tahawi says he divorces her in the clean period following the first menstruation. Abu al-Hasan al-Karkhi says At-Tahawi’s view is Abu Hanifah’s, while Al-Asl’s is Abu Hanifah’s and his companions’. Al-Asl’s rationale is that Sunnah divorce requires a menstruation between divorces. Here, part of a menstruation separates, completed by the second, ensuring the second clean period is Sunnah-compliant. The other view holds that revocation nullifies the divorce’s effect, as if it did not occur during menstruation, so divorce in the following clean period is Sunnah. In Radd al-Muhtar, Al-Asl is the apparent narration, per Al-Kafi and the apparent school view. All agree that if he takes her back during menstruation, he withholds divorce until she becomes clean, menstruates, then becomes clean, not divorcing in the clean period of the menstruation divorce, as it is innovated, per Bahr and Minh. The author’s wording allows this. The statement: “That is the waiting period…”: For Ash-Shafi‘i, the reference is the clean period, and “laha” means “in”, supporting his view that the waiting period is by clean periods. If by menstruations, divorce would be commanded during menstruation, which is not so. We respond: For us, the reference is menstruation, and we do not concede “laha” means “in”. It indicates consequence (future), as in “Prepare for winter” or “Three days remain of the month,” meaning future. Az-Zamakhshari says on “So divorce them at their prescribed periods” [At-Talaq: 1], it means facing their waiting periods, as in Al-Marqah and Umdat al-Qari (summarized).

(2) The statement: “Then divorce her while clean or pregnant”: Ash-Shafi‘i say this Hadith indicates menstruation and pregnancy can coincide, and a pregnant woman’s divorce is permissible if menstruating, as her waiting period (delivery) is not extended. For us, a pregnant woman does not menstruate; any blood is istihadah (non-menstrual bleeding). I say: The Hadith does not prove a pregnant woman menstruates but suggests she does not, equating divorce permissibility for clean and pregnant women. Since divorcing a menstruating woman is innovated, it indicates a pregnant woman does not menstruate, thus equated with the clean, as in Bazl al-Majhood.

(3) The statement: “If a man says…”: Based on these narrations, Hanafis say that attaching divorce to the cause of ownership is valid. If he says to a non-wife, “If I marry you, you are divorced,” and marries her, the divorce occurs. Ash-Shafi‘i says this condition is invalid, and no divorce occurs, as a condition is like an immediate act. Just as immediate divorce is invalid without ownership, a condition is too. The response is that the condition “If I marry you, you are divorced” exists now, but the divorce occurs when the condition (marriage) is met, when ownership is established, unlike “If you enter the house, you are divorced,” where ownership is absent now and later, so no divorce occurs, as with immediate divorce of a non-wife. Thus, Ash-Shafi‘i’s use of “No divorce before marriage” is invalid. His other Hadiths are weak, per Tanzih’s author, who says they are false, with some narrators being fabricators or thieves. Our view is supported by Sa‘id ibn al-Musayyib, Ata, Hammad ibn Abi Sulayman, and Shurayh (may Allah have mercy on them). If argued that interpreting it as immediate is meaningless, as all know it, so it must mean conditions, the response is that it became clear after the Shariah’s ruling was established. In the pre-Islamic era, they pronounced immediate divorce before marriage, counting it as divorce upon marriage. The Shariah negated this in “No divorce before marriage” and other Hadiths, as in At-Taliq al-Mumajjad, Umdat ar-Ri‘ayah, and Fath al-Qadir (summarized). In Umdat al-Qari, Bukhari says: “Chapter: No divorce before marriage,” meaning no divorce before marriage exists. Al-Kirmani says Hanafis uphold divorce before marriage, and Bukhari refutes them. I say: Hanafis do not say divorce occurs before marriage, a view held by none. It is surprising that Al-Kirmani and his supporters say this, refuting them baselessly. Their argument hinges on conditions, e.g., a man saying to a non-wife, “If I marry you, you are divorced,” and upon marrying her, divorce occurs for Hanafis, contrary to Ash-Shafi‘i. This was discussed earlier, as was the dispute on sale and vows.

(1) The statement: “Returned her to him…”: Meaning to Rukanah, i.e., he ordered revocation. For Ash-Shafi‘i, final divorce is revocable per this interpretation: If one is intended, it is one; two, then two; three, then three; if no divorce is intended, it is not divorce. Abu Hanifah agrees, except that this statement causes one final divorce, whether one or two are intended. If three are intended, it is three. Consider that return for him is renewing the marriage. The dispute with Ash-Shafi‘i is in two points: the validity of revocation and the validity of intending two. We deny both, while Ash-Shafi‘i affirms them. For Malik, it is three, as in Al-Luma‘at and Al-Musawwa (summarized).

(1) قوله: فردها إليه إلخ : أي إلى ركانة أي أمر بالرجعة وطلاق ألبتة عند الشافعي رجعية لهذا التأويل، وقال: إن أراد بها واحدة فواحدة، وأراد ثنتين فثنتان، وإن أراد ثلاثا فثلاث، وإن لم يرد بها الطلاق فليست بطلاق، وقال أبو حنيفة كذلك إلا أن عنده يقع بهذا القول تطليقة بائنة واحدة، سواء نوى واحدة أو ثنتين، وإن نوى ثلاثا فثلاث، فتأمل الرد عنده تجديد النكاح، فحاصله: أن الخلاف مع الشافعي في موضعين صحة الرجوع وصحة نية الثنتين، فمنعناهما وأثبتهما الشافعي ، وعند مالك ثلاث، اللمعات» و«المسوى» ملتقط منهما.

(1) The statement: "Three matters..." means whoever marries, divorces, or takes back (his wife) and says, "I was joking and did not intend the meanings of these actions," his statement is not considered. The divorce occurs, the marriage is established, and the taking back is affirmed. The same ruling applies to all contracts, such as sales, gifts, and other transactions. These three were specifically mentioned due to the emphasis on matters related to intimacy and the importance attached to it, as stated in Al-Luma’at. In Al-‘Alamgiriyyah, it is mentioned: "The divorce of one who jokes or plays is effective," as cited in Ad-Durr al-Mukhtar.

(1) The statement: "There is no consideration for divorce under coercion"—Ash-Shafi’i adhered to the hadith of compulsion and said: Divorce and emancipation under coercion do not occur. According to us, these are valid based on these narrations and by analogy to their validity in jest. The foundational principle in our view is that any contract that cannot be annulled is not prevented from taking effect due to coercion. Likewise, whatever is valid in jest is also valid under coercion, as mentioned in Al-Luma’at. Therefore, Al-Hidayah states: "The divorce of a coerced person is effective, contrary to Ash-Shafi’i’s view."

(2) The statement: "Narrated by Muhammad with his chain"—In Musannaf Ibn Abi Shaybah, it is mentioned that Ash-Sha’bi considered the divorce of a coerced person permissible. The same was said by Ibrahim, Abu Qilabah, Ibn Mas’ud, and Shurayh. Ibn Hazm also reported that it was authentically narrated from Az-Zuhri, Qatadah, Sa’id ibn Jubayr, and others. Abu Hanifah and his companions adopted this view. Al-Faraj ibn Fadalah narrated from ‘Amr ibn Sharahbil that a woman coerced her husband to divorce her, so he divorced her, and ‘Umar upheld the divorce. A similar narration is reported from Ibn ‘Umar and ‘Umar ibn ‘Abd al-‘Aziz, as mentioned in ‘Umdat al-Qari’.

(3) The statement: "Except the divorce of an insane person..."—This refers to the divorce of a ma’tuh (mentally deficient). Here, ma’tuh refers to an insane person, not the commonly understood meaning of one lacking maturity or experience. Rather, it denotes a severe mental disorder. This is mentioned in Al-Bahr as the definition of insanity. It includes the ma’tuh, and the best distinction between the two is that a ma’tuh is one with weak comprehension, incoherent speech, and poor judgment, but he does not strike or insult, unlike an insane person. This is cited in Ar-Radd al-Muhtar and Al-Kawkab ad-Durri, derived from both.

(1) The statement: "The pen is lifted for three..."—Therefore, Fath al-Qadir states: "The divorce of a child is not valid, even if he comprehends. The same applies to an insane person, a sleeping person, and a ma’tuh, as they are like the insane."

(2) The statement: "If an intoxicated person divorces, his divorce is valid"—This means the divorce of an intoxicated person is effective according to us. This is also Ash-Shafi’i’s view in his most authentic opinion. Al-Karkhi and At-Tahawi preferred that it is not valid, which is one of Ash-Shafi’i’s two opinions, because sound intention requires sanity, which is absent in intoxication, similar to anesthesia or medication. Our evidence is that intoxication results from a sinful cause (consuming intoxicants), so it is treated as if the person is still accountable to deter him. If someone drinks and becomes intoxicated, losing his sanity due to the intoxication, we say his divorce is not valid. This is mentioned in Al-Hidayah and Fath al-Qadir, derived from both.

(3) The statement: "The divorce of a slave woman is two divorces"—This means, according to us, the divorce of a slave woman is two, whether her husband is free or a slave. The divorce of a free woman is three, whether her husband is free or a slave. Ash-Shafi’i said: "The number of divorces depends on the status of the men, based on the verse: 'Divorce is twice...' (2:229)." Our evidence is this hadith, and the interpretation of what Ash-Shafi’i cited is that the execution is related to the men, as mentioned in Al-Hidayah.

(4) The statement: "Her waiting period is two menstrual cycles"—Al-Hidayah states: "If she is a slave, her waiting period is two menstrual cycles, based on this hadith. This is because slavery reduces the waiting period by half, and a menstrual cycle cannot be divided, so it is completed as two cycles." ‘Umar (may Allah be pleased with him) alluded to this by saying, "If I could, I would have made it one and a half cycles." Al-Maraqi states: "The apparent meaning of the hadith indicates that the waiting period is based on the woman’s status, not the freedom or slavery of the husband, as is our view. It also shows that the waiting period is based on menstruation."

(5) The statement: "He did not count that as anything"—This means it was not counted as a divorce—neither three, nor one, nor an irrevocable or revocable divorce. This was the view of most Companions, and Abu Hanifah and Ash-Shafi’i held this opinion. This hadith refutes those who say that if a woman is given the choice and chooses her husband, it counts as one revocable divorce. Malik held this view. Ibn al-Humam said: "The one given the choice has the choice in that sitting by the consensus of the Companions." Al-Mudhaffar said: "If a man says to his wife, 'Choose between yourself and me,' and she says, 'I choose you' or 'I choose myself,' it results in a revocable divorce according to Ash-Shafi’i and an irrevocable divorce according to Abu Hanifah. Our evidence is the statement of ‘Umar and ‘Abdullah ibn Mas’ud." Tirmidhi said: "Most scholars and jurists from the Companions and those after them in this matter followed the opinion of ‘Umar and ‘Abdullah, which is also the view of Ath-Thawri and the people of Kufa." This is taken from Al-Maraqi and Jami’ at-Tirmidhi.

(1) The statement: "If a man declares his wife unlawful for him, it is an oath for which he must make expiation..."—Scholars differed regarding the wording of tahrim (declaring unlawful). Some said it is not an oath. If a man says to his wife, "You are unlawful to me," or "I have made you unlawful," and he intends divorce, it is a divorce. If he intends zihar (declaring her like his mother’s back), it is zihar. If he intends to prohibit her essence or is vague, he must make expiation for the oath by the wording itself. If he says this to his female slave and intends emancipation, she is emancipated. If he intends to prohibit her essence or is vague, he must make expiation for the oath. If he says to food, "I have made it unlawful for myself," there is no consequence. Ash-Shafi’i held this view. If he did not intend anything, there are two opinions from Ash-Shafi’i: one is that he must make expiation for the oath, and the other is that there is no consequence, as it is meaningless and does not entail any rulings. A group held that it is an oath. If a man says this to his wife or female slave, he does not owe expiation unless he has intercourse with her, just as if he swore not to have intercourse with her. If he prohibits food, it is like swearing not to eat it, so he owes no expiation unless he eats it. This was the view of Abu Hanifah and his companions, as mentioned in Al-Khazin. This narration supports our view. Al-Kamalayn states: *"Our Imam Abu Hanifah used the verse, 'Allah has already ordained for you the dissolution of your oaths...' (66:2), as evidence that declaring the lawful unlawful is an oath, as Allah called tahrim an oath, necessitating expiation according to Abu Hanifah, contrary to Ash-Shafi’i. It was responded that the obligation of expiation does not necessarily mean it is an oath, as it is possible that Allah used the term 'oath' metaphorically. ‘Abdur-Razzaq narrated from Ash-Sha’bi that a man swore an oath along with tahrim, and Allah rebuked him for the tahrim and prescribed expiation for the oath. Qatadah said, 'He declared her unlawful, and it was an oath.' Ash-Sha’bi’s statement aligns with Ash-Shafi’i’s view, while Qatadah’s supports our view, which is the apparent meaning of the Qur’an."*