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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 388Section

Translation · EN

limiting it to the gathering. Furthermore, because he delegated her affair to her, it is similar to the phrase 'Your affair is in your own hands.' Our evidence is that it is the statement of those we have named from among the Companions. Al-Najjad narrated with his chain of authority from Sa'id ibn al-Musayyib that he said: Umar and Uthman ruled, regarding a man who gives his wife the choice, that she has the choice as long as they have not separated. From Abdullah ibn Umar, he said: As long as she is in her gathering. Similar statements are attributed to Ibn Masud and Jabir, and we do not know of any opponent among the Companions, so it was a consensus (ijma'). Also, it is a choice of delegation (tamlik), so it is immediate, like the choice of acceptance (in a contract). As for the tradition, the Prophet (peace be upon him) gave her the choice on a delayed basis, whereas our disagreement is regarding the absolute (unspecified) case. As for 'Your affair is in your hands,' it is an appointment of agency, and an agency spans across time unless it is restricted by a condition, unlike our issue.

Section: And his statement 'in her time' means immediately following his words, as long as they have not departed from the conversation they were in to something other than the mention of divorce. If they separate from that conversation to another, her choice is void. Ahmad said: If he says to his wife, 'Choose,' she has the choice as long as they are in that conversation. If the gathering lasts long and they move into a different conversation, and she has not chosen, she has no choice. This is the school of Abu Hanifah. Similar is the school of al-Shafi'i, with a disagreement reported from him; it was said he held it is restricted to the gathering, and it was said it is immediate. Ahmad also said: The choice is tied to the exchange of speech, that she answers him and he answers her; it is only a reply to speech. If she answers him at that moment, it is valid, otherwise there is nothing. The reasoning is that it is an absolute delegation, and if its acceptance is delayed beyond the first moment of possibility, it is invalid, as if she stood up from her gathering. If either of them stands up from the gathering before she chooses, her choice is void. Abu Hanifah said: It is void by her standing up but not his; based on his principle that the husband does not possess the right of revocation. In our view, he does possess the right of revocation, so it is void by his standing up, just as it is void by her standing up. If one of them is standing and mounts a beast or walks, the choice is void; if he sits, it does not become void. The difference between standing and sitting is that standing nullifies the thought and deliberation regarding the choice.

Notes

= The Chapter on Choice, from the Book of Divorce. Sunan al-Darimi 2/162. And Imam Ahmad, in: al-Musnad 3/328, 6/78, 153, 163, 171, 173, 202, 240, 248, 264. (4) In the original: 'they separate' (yaftariqa). (5) In B, M: 'to them both' (lahuma). (6) Dropped from: B, M.

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