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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 538Section

Translation · EN

it is the irrevocableness (baynunah). Our position is that it is a divorce that has occurred upon a woman with whom the marriage has been consummated, without fulfilling a number or compensation, so it is revocable (raj'i), just like his statement: "You are divorced." What they mentioned is not valid, because divorce is a legal ruling (hukm); if it is established, it is established in the entirety of the world, so it does not necessitate an increase. If he says: "You are divorced with the most intense divorce, or the most stringent, or the longest, or the broadest, or the shortest, or like the mountain, or like the magnitude of the mountain," and he has no intention, one revocable divorce occurs. Al-Shafi'i held this view. Abu Hanifah said, regarding all of them: It occurs as irrevocable. His two companions said: If he says: "Like the mountain," it is revocable. If he says: "Like the magnitude of the mountain," it is irrevocable. The reasoning for the two views is what has preceded, and also because he does not possess the authority to effectuate irrevocableness, for it is a legal ruling and is not up to him; we only establish irrevocableness through specific causes, such as khul', three divorces, or divorce before consummation, so he possesses the authority to initiate its cause, and thus it is established. If he intends to establish it without that, it is not established. It is possible that it is the most intense divorce for him or for her, and the most stringent, due to her hastening, or due to the love one of them has for the other and the hardship of parting upon him, so no additional matter occurs based on doubt. If he says: "You are divorced with the ultimate divorce, or its greatest," then it is the same according to the analogy of the school. It is possible that the ultimate divorce is three, because its ultimate [point] is its end, and the end of divorce is the third; and the necessity of it being the third is the occurrence of two. If he says: "The most complete divorce, or the most perfect," it is one, except that it is the sunni [type] of divorce, because it is the most complete and perfect divorce.

Section: If he says: "You are divorced with the most divorce, or all of it, or the entirety of it, or its end, or like the number of pebbles, or sand, or raindrops," she is divorced by three; because this necessitates a number, and because for divorce there is a minimum and a maximum; its minimum is one, and its maximum is three. If he says: "Like the number of the earth, or water," three occur. Abu Hanifah said: One irrevocable [divorce] occurs; because water and earth are from the names of genera, which have no count. Our position is that water has varied types and drops, and earth has varied types and parts, so it resembles pebbles. If he says: "O hundred times divorced," or: "You are a hundred divorced," she is divorced by three. If he says: "You are divorced like a hundred or a thousand," it is three. Ahmad said, regarding one who says: "You are divorced like a thousand divorces": It is three. Muhammad ibn al-Hasan and some of the followers of al-Shafi'i held this view. Abu Hanifah and Abu Yusuf said: If he had no intention, one occurs; because he did not state the number explicitly, and he only likened it to the thousand, and what is effectuated is not that which is likened to it. Our position is that his statement: "Like a thousand," is a comparison to the number specifically, because he did not mention anything else, so the number occurred, like his statement: "You are divorced, like the number of a thousand." In this is a refutation of what he said. If he says: "I intended that she is one divorce like a thousand in its difficulty," it is accepted regarding his conscience (diyanah). Is it accepted regarding the judicial ruling? It is derived from two narrations.

Section: If he says: "You are divorced from one to three," two divorces occur. Abu Hanifah held this view; because that which is after the limit is not included in it, just as in the Almighty’s saying: {Then complete the fast until the night}. It is only included if it is in the sense of "with," and that is contrary to its convention. Zufar said: One divorce occurs; because the beginning of the limit is not from it, like his saying: "I sold you from this wall to this wall." Abu Yusuf and Muhammad said: The three occur; because he spoke them, so it is not permissible to nullify them. Our position is that the beginning of the limit is included, as if he said: "I exited from Basra," for it indicates that he was in it. As for the end of the limit, it is not included by the requirement of the wording, and even if it allowed for inclusion and non-inclusion, we do not effectuate the divorce based on doubt. If he says: "You are divorced between one and three," one occurs; because it is that which is between them.

Section: If he says: "You are divorced one divorce in two," or: "one in two," and he intended by it

Notes

(4) In the Original, M: "wa-aghlaẓuhu". (5) In M: "li-ta‘ajjulihima". (6) In A: "aktharuhu". (7) In the Original, B, M: "al-talaq". (8) In M: "ba'inan".

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