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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 562Section

Translation · EN

its cause. If he says: "I intended that I had insulted you, or I love you, and I have returned you by my separation from that," it is not a return. If he speaks absolutely without intending anything, the return is valid. This was mentioned by Al-Qadi because he used the explicit term of return and joined it with what is possibly an explanation for its cause, and possibly something else, so the expression is not divested of its requirement due to doubt. This is the school of Ash-Shafi'i.

Section: It is not valid to suspend the return on a condition because it is the making of a private part lawful in an intended manner, so it resembles marriage. If he says: "I return you if you wish," it is not valid either. If he says: "Whenever I divorce you, I have returned you," it is not valid either, because he returned her before he possessed the right of return, so it resembles divorce before marriage. If he says: "If your father arrives, then I have returned you," it is not valid because it is a suspension upon a condition.

Section: If he returns her while one of them is in a state of apostasy (riddah), Abu Al-Khattab mentioned that it is not valid. This is the correct view of the Shafi'i school because it is the making of a private part lawful in an intended manner, so it is not valid during apostasy, just like marriage. Furthermore, the return is the confirmation of marriage, and apostasy contradicts that, so their combination is not valid. Al-Qadi said: "If we say that separation is hastened by apostasy, then the return is not valid because she has already become separated by it. But if we say that separation is not hastened, then the return is suspended; if the apostate among them embraces Islam during the waiting period ('iddah), the return is valid because we have determined that he returned her within his marriage, and because it is a type of retention, so apostasy does not prevent it, as if she were not divorced. If he does not embrace Islam during the waiting period, we determine that the separation occurred before the return." This is the opinion of Al-Muzani and the choice of Ibn Hamid. Such is how it should be in the case where he returns her after one of them embraces Islam."

Notes

(20) In B and M, there is an addition: "from". (21) In M: "raja'tuki" (I have returned you). (22) In A and M: "of the marriage". (23) In A, B, and M: "Abi" (Father of).

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