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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 460Section

Translation · EN

"al-Mujarrad," and Abu al-Khattab. Al-Shafi'i, Abu Thawr, and the People of Opinion (Ashab al-Ra'y) held the same view. Al-Qadi said in "al-Jami'": There are two viewpoints regarding the occurrence of the divorce, based on the two reports regarding one who swore: "I will not wear a garment made from her spinning," and then he wore a garment that contained some of her spinning (34).

Section: If he says, "Whenever you give birth to a child, you are divorced." She gives birth to three [children] at one time; she is divorced three times because the attribute of 'three' occurred while she was still a wife. If she gives birth to them in separate intervals from one pregnancy, she is divorced by the first two, and she becomes irrevocably separated by the third (35), and she is not divorced [by the third]. Abu Bakr mentioned this, and it is the view of al-Shafi'i and the People of Opinion. It was narrated from Ibn Hamid that she is divorced, because the time of irrevocable separation (baynunah) is the time of occurrence, and there is no contradiction between them. To us, the 'iddah ended with the birth of the child, so the divorce occurred while she was irrevocably separated, and it did not take effect, just as if he had said, "When I die, you are divorced." Ahmad has explicitly stated regarding one who says, "You are divorced (36) upon my death," that she is not divorced. Therefore, this is more appropriate. If he says, "If you give birth to a boy, you are divorced once, and if you give birth to a girl, you are divorced twice." She gives birth to both at one time; she is divorced three times. If she gives birth to them in two intervals, what it was conditional upon occurs with the first, and she becomes irrevocably separated by the second, and nothing occurs by it, except according to the opinion of Ibn Hamid. If the first of them is ambiguous, or the manner of their birth, she is divorced once with certainty, and the second is not incumbent upon him, although piety dictates that he should accept it. This is the view of al-Shafi'i and the People of Opinion. Al-Qadi said: The analogy of the school is that they should be drawn by lot. If he says, "If the first thing you give birth to is a boy, you are divorced once, and if it is a girl, you are divorced twice." She gives birth to both at one time; nothing occurs to her, because there is no 'first' between them, so the condition was not met. If she gives birth to them in two intervals, what it was conditional upon occurs with the first, and nothing occurs with the second.

Section: If he has four wives, and says, "Whenever one of you gives birth, her co-wives are divorced."

Notes

(34) Omitted from B. (35) In M: 'bi-al-thalath' (by the three). (36) In M: 'taliq' (divorced).

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