because it is a separation to remove harm, so it is final (ba'in), like the separation for impotence (unnah). And because if it were revocable (raj'i), the harm would not be repelled, as he would take her back, and the harm would remain. Abu Hanifah said: The divorce occurs as final upon the expiration of the waiting period (iddah). The argument for the first view is: It is a divorce that occurred upon a woman with whom the marriage has been consummated, without [providing] compensation or [the completion of] a number [of pronouncements], so it is revocable, like divorce in cases other than ila'. It differs from the separation for impotence, because that is an annulment due to a defect, while this is a pronouncement of divorce. Furthermore, if he were permitted to take her back, the harm would not be repelled from her, whereas here, the harm is repelled from her; for if he takes her back, another period is set for him. Also, the impotent man may have been despaired of [regarding] his intercourse, so there is no benefit in taking her back, while this [muli] is not incapable, and his taking her back is evidence of his desire and his cessation from harming her, so they differ. And Allah the Almighty knows best.

1304 - Issue; He said: (If he divorces on his behalf three times, it is three.)

The sum of the matter is that when the muli refuses to perform both the fay'ah and the divorce, and the judge takes his place, he possesses [the authority of] divorce to the extent that the muli possesses it, and the choice lies with him; if he wills, he divorces once, if he wills, two, if he wills, three, and if he wills, he annuls. The Qadi said: This is the apparent [meaning] of Ahmad's words. Al-Shafi'i said: He has none but one; because the fulfillment of the right is achieved by it, so he does not possess [the authority for] any excess over it, just as he does not possess [the authority for] excess over the fulfillment of a debt in the case of one who refuses. Our position is that the judge stands in his place, so he possesses [the authority of] divorce to the extent that he [the husband] possesses it, just as if he had appointed him as an agent for that. This is not an excess over her right; for her right is separation, but it varies [in form], and the judge may see the benefit in forbidding her to him and preventing him from taking her back, due to his knowledge of his bad intention and the achievement of the benefit in his distancing [from her]. Abu 'Abd Allah [Ahmad bin Hanbal] said: If he says: I have separated you two, it is an annulment. If he says: I have divorced [you] once, it is one. And if he says: Three, it is three.