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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 10 · صفحة 567فصل

الترجمة · EN

Ahmad alluded to it, saying: "There is no oath in marriage or divorce." This is the view of Abu Hanifah, because the revocation (raj'a) is not something that can be validly offered, so she is not asked to swear an oath regarding it, just like the prescribed penalties (hudud). The first view is preferable due to the saying of the Messenger of Allah, peace be upon him: "The oath is upon the defendant." Furthermore, because it is a human right, the truthfulness of the claimant is possible, so an oath is mandatory, as in cases of wealth. If she refuses to take the oath, the judge said: "A judgment is not rendered based on refusal (nukul), because it is something that cannot be validly offered." It is possible that the husband may be asked to take the oath, and he would have the right to revoke her, based on the view that the oath is returned to the claimant; this is because once her refusal was established, the truthfulness of the husband became apparent, and his side was strengthened. The oath is legislated in the right of the person whose side is strengthened, and that is why it is legislated in the right of the defendant due to his side being strengthened by possession in tangible assets, and by the original principle of the freedom from liability in debts. This is the school of al-Shafi'i.

Section: If the husband claims during her waiting period that he had revoked her yesterday, or a month ago, his statement is accepted; because once he has the right to revoke, he has the right to acknowledge it, just like divorce. This is the position of al-Shafi'i, the scholars of opinion (ashab al-ra'y), and others. If he says after the expiration of her waiting period: "I had revoked you during your waiting period," and she denies it, [her statement is accepted by their consensus]; because he is claiming it at a time when he does not possess her, and the original principle is its absence and the occurrence of the final separation (baynuna). If their disagreement is in a time where it is possible for her waiting period to have expired or to have continued, and she starts by saying: "My waiting period has expired," and he says: "I had indeed revoked you," and she denies it, his statement is not accepted; because her report regarding the expiration of her waiting period is acceptable as it is possible, so his claim for the revocation becomes one made after the judgment of her waiting period's expiration, and thus it is not accepted. If he precedes her with the claim, saying: "I had indeed revoked you yesterday," and she says: "My waiting period had expired before your claim," his statement is accepted; because his claim for the revocation was made before the judgment of her waiting period's expiration at a time when the outward appearance supports the acceptance of his statement, so her statement cannot be accepted thereafter to invalidate it. If he went first, saying: "I have revoked you," and she said: "My waiting period had expired before your revocation."

الحواشي

(24) Its documentation has preceded in: 6/525. (25) In B, there is an addition: "scholars". (26) In A: "their consensus is that her statement is the one to be accepted". (27) In A: "the period".

السابقمجلد 10 · صفحة 567التالي
السابق10·567التالي