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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 283

Translation · EN

The divorce takes place by it when she gives it to him, in the case where he suspended her divorce on her giving it to him, and nothing else is binding upon her, according to the analogy (qiyas) of what preceded it. The Qadi and his companions among the jurists said: She returns to him what she took of her dower (sadaq); because she caused the loss of the sexual access (bud') and he did not obtain the compensation due to its ambiguity; therefore, the value of what she caused the loss of is incumbent upon her, which is the dower. Our argument is what has preceded, and also that she did not commit to the specified dower for him, nor to the dower of the like (mahr al-mithl), so it is not binding upon her, just as if he had said: "If you enter the house, you are divorced." Furthermore, the substitute for the specified dower has been fulfilled through intercourse, so how could it be obligatory without the consent of the one upon whom it is due! The most similar view to the school of Ahmad is that the khul' for an unknown amount is like a bequest for it. From this category is if he enters into khul' with her for the belongings in her house; if there is any property in it, it belongs to him, whether it is little or much, known or unknown. If there is no property in it, then he is entitled to the least amount that the name of 'property' applies to. According to the view of the Qadi, she owes him the amount specified in the dower. This is the view of the People of Opinion (Ashab al-Ra'y). The justification for both views is what has preceded. Fourth: That he enters into khul' with her for the fetus of her slave-girl, or her sheep, or other animals, or says: "For what is in their wombs or their udders," then the khul' is valid. It is narrated from Abu Hanifa that the khul' is valid for what is in her womb, but is not valid for her fetus (haml). Our argument is that her fetus is what is in her womb, so the khul' for it is valid, just as if he said: "For what is in her womb." Once this is established, if the offspring comes out alive, or there is some milk in her udders, it belongs to him. If nothing comes out, the Qadi said: He is entitled to nothing. This is the view of Malik and the People of Opinion. Ibn 'Aqil said: He is entitled to the dower of the like (mahr al-mithl). Abu al-Khattab said: He is entitled to the specified amount. If he enters into khul' with her for what her palm trees produce, or what her slave-girl bears, it is valid. Ahmad said: If he enters into khul' with his wife for the fruit of her palm trees for years, it is permissible; if her palm trees do not bear fruit, she satisfies him with something. It was said to him: "And if her palm trees bear fruit?" He said: "This is better than that." It was said to him: "Is this correct?" He said: "Yes, it is permissible." It is possible that Ahmad's statement, "she satisfies him with something," means: He is entitled to the least amount that the name of fruit or

Notes

(9) In MSS A, B, and M: "and in". (10) In MSS A, B, and M: "and it was narrated". (11) Dropped from: A, B, and M. (12) In MSS B and M: "to her".

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