1303 - Issue; He said: (If he does not divorce, the judge divorces for him.)

The sum of the matter is that when the husband who has taken an oath of abstinence (muli) refuses to perform the fay'ah (return) after the waiting period, or the excused person refuses to perform the fay'ah with his tongue, or he refuses to perform intercourse after the removal of his excuse, he is ordered to divorce. If he divorces, the divorce he effected occurs, whether it was one or more. The judge does not have the authority to compel him to more than one pronouncement of divorce; because the fulfillment of her right is achieved by it, for it leads to final separation and release from his harm. If he refuses to divorce, the judge divorces for him. This is the opinion of Malik. There is another narration from Ahmad that the judge does not have the authority to divorce for him; because in cases where the husband is given a choice between two matters, the judge does not take his place, such as the choice given to a man who converts to Islam while having more than four wives, or [marrying] two sisters. Based on this, he [the judge] imprisons him and imposes restrictions upon him until he performs the fay'ah or divorces. Regarding al-Shafi'i, there are two opinions, corresponding to the two narrations. Our position is that in matters where substitution is permissible and the beneficiary is specified, and the person upon whom the duty lies refuses, the judge takes his place, such as in the payment of a debt, and it differs from the [case of] choice, for there the beneficiary is not specified. This is the more correct [view] in the school. The judge does not have the authority to order a divorce nor to effect one unless the woman requests it; because it is her right. The judge only fulfills the right for her, so it cannot be [done] except upon her request.

Section: The divorce that is incumbent upon the muli is revocable (raj'i), whether he effected it himself or the judge divorced for him. Al-Shafi'i said the same. Al-Athram said: I asked Abu 'Abd Allah [Ahmad bin Hanbal] about the muli: If he divorces her? He said: It counts as one, and he has a greater right to her. From Ahmad, there is another narration that the separation by the judge is final (ba'in). Abu Bakr mentioned both narrations. The Qadi [Abu Ya'la] said: The text clearly stated by Ahmad regarding the judge's separation is that it is final; for in the narration of al-Athram: It was asked of him, if the authority divorces for him, does it count as one? He said: If he divorces, it is one, and he is more entitled to her; as for the separation by the authority, there is no revocation in it. Abu Thawr said: The divorce of the muli is final, whether he divorced or the judge divorced for him.