1236 - Issue: He said: "And no divorce occurs for a woman in her waiting period ('iddah) from a Khul' (divorce initiated by the wife), even if he addresses her with it."

The entirety of this matter is that a woman who has undergone Khul' is not subject to further divorce under any circumstances. This is the opinion of Ibn Abbas, Ibn al-Zubayr, Ikrimah, Jabir ibn Zayd, al-Hasan, al-Sha'bi, Malik, al-Shafi'i, Ishaq, and Abu Thawr. It was narrated from Abu Hanifah that an explicit, specified divorce does affect her, but not metonymic (kinayah) expressions or a general divorce, such as saying: "Every wife of mine is divorced." A similar view was narrated from Sa'id ibn al-Musayyib, Shurayh, Tawus, al-Nakha'i, al-Zuhri, al-Hakam, Hammad, and al-Thawri, based on what was narrated from the Prophet, peace be upon him, that he said: "A woman who has undergone Khul' is subject to divorce as long as she is in her waiting period (1)."

Our argument is that this is the position of Ibn Abbas and Ibn al-Zubayr, and we know of no one who opposed them in their time. Also, because she is not lawful for him except through a new marriage contract, his divorce does not affect her, similar to a woman divorced before consummation or one whose waiting period has expired. Furthermore, because he does not possess dominion over her private parts, his divorce does not affect her, like a stranger. Additionally, since a general divorce does not occur for her, nor is she divorced by metonymy, an explicit and specified divorce does not affect her, just as it does not before consummation. There is no difference whether he addresses her directly, saying "You are divorced," or does not address her directly, such as saying "So-and-so is divorced." As for their hadith, we find no basis for it, and the authors of the Sunan collections did not mention it.

Section: Revocation (raj'ah) is not established in Khul', whether we say it is an annulment (faskh) or a divorce (talaq), according to the opinion of most scholars, including al-Hasan, Ata', Tawus, al-Nakha'i, al-Thawri, al-Awza'i, Malik, al-Shafi'i, and Ishaq. It was narrated from al-Zuhri and Sa'id ibn al-Musayyib that they both said: The husband has the choice between retaining the compensation—in which case he has no right of revocation—or returning it, in which case he has the right of revocation. Abu Thawr said: If the Khul' was pronounced using the word 'divorce,' he has the right of revocation, because revocation is one of the rights of divorce and is not nullified by compensation, like the right of wala' (patronage) with manumission. Our response is His statement, exalted is He: "For that which she ransomed herself" (4). It is only a ransom if she is freed by it from his grip and authority; if he had the right of revocation, she would still be under his jurisdiction. Also, the intent is to remove harm from the woman, so if it were permissible to take her back, the harm would return. It differs from wala', because manumission cannot be separated from it, whereas divorce can be separated from revocation, as in the case before consummation and when the number of pronouncements is completed.

Section: If he stipulates in the Khul' that he has the right of revocation, Ibn Hamid said: The condition is void, but the Khul' remains valid. This is the opinion of Abu Hanifah and one of the two narrations from Malik, because Khul' is not invalidated by the corruption of its compensation, so it is not invalidated by a corrupt condition, like marriage. It is also a term that necessitates irrevocability (baynunah); thus, if he stipulates revocation along with it, the condition is void, like a triple divorce. It is possible that the Khul' is invalidated and the right of revocation is established. This is the explicit text of al-Shafi'i, because the condition of compensation and the condition of revocation are contradictory (5); if they are both stipulated, they fall away, leaving only the divorce itself. Thus, we establish revocation by default, not by condition. Furthermore, he stipulated in the contract something that contradicts its implication, thus invalidating it, as if he had stipulated that he may not dispose of the sold item. If we rule for its validity, al-Qadi said: The specified compensation falls away, because he was not content with it as compensation until he added the condition; if the condition falls, the reduction he made because of it must be added back, making it unknown, so it falls and the specified amount in the contract becomes due. It is also possible that the specified amount becomes due, because they were both satisfied with it as compensation, so no other amount is due, as if it were free from the condition of revocation.

Section: If he stipulates an option (khiyar) for her or for him for a day or more, and the woman accepts, the Khul' is valid, and the option is void. Abu Hanifah held this view regarding when the option is for the man. He said: If he gives the option to the woman, the option is established for her, and the divorce does not occur. Our argument is that the cause for the occurrence of divorce has been found, which is the verbal pronouncement of it.