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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 385Section

Translation · EN

or he said: "Divorce my wife." The companions of Abu Hanifah said: That is restricted to the gathering; because it is a type of giving a choice, similar to if he said: "Choose." Our argument is that it is an absolute agency (tawkil), so it is [effective] over time, like agency in a sale. Once this is established, he has the right to divorce her as long as he does not revoke it or have intercourse with her. He has the right to divorce her once or three times, just like the wife. He does not have the right to place the affair in the hand of anyone other than one who is permissible to appoint as an agent, which is a person of sound mind. As for the child and the insane person, it is not valid to place the affair in their hands; if he does so, and one of them divorces her, the divorce does not occur. The Ashab al-Ra'y (the Hanafi school) said: It is valid. Our argument is that they are not people of capacity (ahl al-tasarruf), so their action is not valid, just as if he had appointed them as agents in manumission (itq). If he places it in the hand of an infidel or a slave, it is valid; because they are from those whose own divorce is valid, so appointing them as agents in it is valid. If he places it in the hand of a woman, it is valid; because appointing her as an agent in manumission is valid, so it is valid in divorce, just like a man. If he places it in the hand of a child who understands divorce, this is based on the validity of his divorce for his own wife, and that has already passed. Ahmad explicitly stated here that his agency is measured by his own divorce, as he said: "If a child says: 'Divorce my wife three times,' and he divorces her three times, it is not binding on her until he understands divorce. Consider if this child had a wife and he divorced her, would his divorce be valid?" So he measured his divorce by the agency in his divorce for himself. Likewise, if he places the affair of a young girl or an insane woman in her hands, she does not possess that. Ahmad explicitly stated this regarding a young girl to whom he said: "Your affair is in your hand," and she said: "I have chosen myself." It is nothing until one like her understands. This is because it is an action by virtue of agency, and she is not a person of capacity. The apparent meaning of Ahmad's words is that if she understands divorce, her divorce occurs, even if she has not reached puberty, as we established regarding the child if he divorces. Regarding the child, there is another narration: his divorce does not occur until he reaches puberty, and thus it is derived for her; because she is like him in meaning. And Allah knows best.

Section: If he places it in the hands of two people, or appoints two people as agents for the divorce of his wife, it is valid, and neither of them has the right to divorce individually unless he granted him that; because he only consented to their action together. This is the view of al-Hasan, Malik, al-Thawri, al-Awza'i, al-Shafi'i, Abu Ubayd, and Ibn al-Mundhir. If one of them divorces her once, and the other three times, one divorce occurs, and this is the view of

Notes

(1) In the original: "three".

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