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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 523

Translation · EN

the divorcee, and it does not remove the divorce from the one upon whom it has fallen, [nor is there a possibility] that the divorcee is someone other than the one upon whom the lot fell. Therefore, if he remembered that the divorcee was someone else, she would be unlawful to him. If the prohibition were lifted or the divorce removed, it would not return by [mere] remembrance. Thus, the prohibition must remain after the drawing of lots, just as it was before it. Al-Khiraqi has stated regarding one who divorced his wife and did not know whether he divorced her once or thrice, and [regarding] one who swore by divorce not to eat a date, then it fell into a pile of dates and he ate one of them: his wife is not permissible for him until he knows that she is not the one upon whom the oath fell. He declared her unlawful despite the fact that the original state is the continuation of the marriage, and the oath of prohibition did not oppose it; so [this case] here is even more deserving of that [caution]. This is the ruling in every situation where divorce occurs upon a specific woman and then becomes ambiguous with another, such as if he sees a woman through a window (rawzana) or while turning away and says, "You are divorced," without knowing her identity among his wives. Likewise, when he causes the divorce to occur upon one of his wives in the case of the bird and similar instances, all of his wives become unlawful to him until the divorcee is identified, and the support (nafaqah) of all of them must be provided because they are restricted to him. If he draws lots among them, the lots provide no benefit, and it is not permissible for the one upon whom the lots fell to marry; because it is possible that she is not the divorcee, and it is not permissible for the husband to [have relations with] anyone else; because of the possibility that she is the divorcee. Our companions said: If he draws lots among them and the lot falls upon one of them, the ruling of divorce is established upon her, so marriage becomes permissible for her after the completion of her waiting period ('iddah), and the others become permissible for the husband, just as if the divorce were upon one [of them] who was not specified. They argued based on what we mentioned from the narration of Ali, and because she is a divorcee whose identity is not known, so it resembles the case where he...

Notes

(7) In M: "and for the possibility". (8) In M: "we mentioned". (9) In A: "not". (10) Al-rawzana: the window/niche. Al-Alfaz al-Farsiyya al-Mu'arraba 72. And see: Al-Mu'arrab by al-Jawaliqi 212 and its footnote. (11) In the original, B, M: "it occurred". (12) In A: "marriage". (13) In the original, M: "one". (14) In A: "her identity".

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