three talaq in one session alq 27 1 (2013) 29-49

© Koninklijke Brill NV, Leiden, 2013 DOI: 10.1163/15730255-12341247

Arab Law Quarterly 27 (2013) 29-49 brill.com/alq

Arab LawQuarterly

Triple Talāq in One Session: An Analysis of the Opinions of Classical, Medieval,

and Modern Muslim Jurists under Islamic Law

Muhammad Munir*Chairman and Associate Professor, Department of Law, Faculty of Shariʿah and Law,

International Islamic University, Islamabad, Pakistan

AbstractThis work analyzes one of the hottest and most tricky issues of the Muslim Family Law, i.e., whether in cases of divorce (talāq), three repudiations spoken in one session equal one or three repudiations. There had been no disagreement regarding this issue among the four Sunni Schools of Jurisprudence until the end of the 7th century Hijrah when Ibn Taimiyah and Ibn al-Qayim challenged the position of the ğamhūr (majority of Islamic scholars). Before them only the Shīʿa and the Zāhirites had treated three pronouncements in one ses-sion as one. The ğamhūr has given very strong arguments in support of their point of view, whereas Ibn Taimiyah and Ibn al-Qayim have advanced very weak arguments in support of their view. The Shīʿa Imāmiyah School of Thought holds two opinions. According to one view, three talāqs in one session amount to one, while the second point of view holds that three repudiations in one session do not amount to any talāq.

Keywordstalāq, triple talāq, divorce, three repudiations, Muslim Family Law, Ibn Taimiyah, Ibn al-Qayim, ğamhūr, Shīʿa, Zāhirite

* E-mail: [email protected]. The author is also Visiting Professor at the University College of Islamabad. He wishes to thank Moulana Ammar Khan Nasir, Sham-sul Haq, Al-Hassan, Yasir Aman Khan, Dr Nʿamane Djeghim, Dody Muliawan, and Mah-vish Rani for their help. The help of Barrister Erum Ali Khan is acknowledged in editing an earlier draft of this work. I wish to thank Moazzam Wasti for editing this paper. The quota-tions from the Qurʾān in this work are taken, unless otherwise indicated, from the English translation by Muhammad Asad, The Message of the Qurʾān, Dār al-Andalus, Redwood Books Trowbridge, Wiltshire, UK, 1984 (reprinted, 1997).

30 M. Munir / Arab Law Quarterly 27 (2013) 29-49

1. Introduction

One of the most significant jurisprudential issues in Islamic legal history is whether the intended triple divorce has the effect of the third and final repudiation or should it be treated as a single pronouncement with the stated number having no effect. Many classical treatises in every Muslim school of thought contain detailed discussions stating, analyzing, rebut-ting, or approving the opinions and arguments of opposing schools and jurists. All four Sunni Schools of Jurisprudence argue that the intended triple divorce (talāq) has the effect of the third and final repudiation whereas Imām Bāqar, Imām Sādiq (both Shīʿa Imāms), Zāhirites (except Ibn Hazam), Ibn Taimiyah, Ibn al-Qayim, several tābiʿūn (Followers), and most of the ahl al-hadīth in India and Pakistan consider triple talāq in one session (mağlis) as a single pronouncement. The discussion in this work will, therefore, focus on: a clarification of the position of the ğamhūr (majority of jurists); an analysis of the positions of Ibn Taimiyah and Ibn al-Qayim on this issue; an overview of the position of ahl al-hadīth in India and Pakistan; and a clarification of the opinions of the Shīʿa Imāmiyah.

2. Types of Divorce in Islamic Law

Islamic law categorizes divorce as talāq al-sunnāh (talāq in accordance with the Sunnah) and its opposite talāq al-bidʿah.1 In the first type, the husband divorces his wife (with whom he has consummated the marriage) through a single pronouncement while she is in a pure state (not menstruating) during which time he has not had sexual intercourse with her. In the sec-ond type, the husband proclaims divorce while his wife is menstruating or in an impure state, having already established a conjugal relationship with her, which is not in accordance with a sunnāh divorce.2 Muslim jurists

1 ʿAlāūddīn Abū Bakr al-Kāsānī, Badāiʿ al-Sanāʾiʿ (Beirut: Dār Ehia al-Turāth al-ʿArabī, 2000), 3:140; Muhammad b. Ahmād b. Rushd, Bidāyat al-Mujtahid, trans. Imran A.K. Nyazee (Reading: Garnet Publishing Ltd., 1994), 2:75; Muhammad b. Muflih, Al-Furūʿ, (Cairo: ʿĀlam al-Kutub, 1985), 5:370; Mansūr al-Buhūtī, Sharh Muntaha al-Irādāt, (Bei-rut: Dār al-Fikr, n.d.), 3:123-126; Muhammad ʿAbdullah Rūprī, in M. Siddique (Ed.), Fatāwā Ahli l-Hadīt, (Sargodha: Idārah Ihyāʾ al-Sunnah al-Nabawiya, n.d.), 2:506-508.

2 Technically the different expressions for describing talāq as talāq al-sunnāh, talāq al-bidʿah, talāq al-hasan and talāq al-ihsan should not be called ‘modes’ or ‘forms’ of talāq because a talāq is a talāq. These expressions only refer to the conduct of the man pronounc-ing a talāq.

M. Munir / Arab Law Quarterly 27 (2013) 29-49 31

differ regarding the effect of talāq al-bid ʿah. Talāq al-sunnāh can be further divided into ihsan and hasan. In the ihsan form, the husband pronounces only one talāq while his wife is in a state of purity during which time he has not had sexual intercourse with her and does not revoke it until the end of the third purity. The hasan form of talāq is commonly misunder-stood by most contemporary writers who believe that, in this manner of divorce, three talāqs must be spoken during three successive or consecutive time-periods (tuhr) when the wife is not menstruating.3 This procedure is incorrect for hasan talāq because this is the minimum, not maximum, time period in which the three separate pronouncements must be completed.4

Muslim jurists further classify a valid divorce as either bāʾin (irrevocable) or rajʿī (revocable). A divorce is called bāʾin because the marriage has not been consummated or because of the number of talāq pronouncements. In the rajʿī divorce, the husband possesses the right to decide over his wife’s return, without there being a choice for her in the matter, provided that

3 See, e.g., D.F. Mulla, Mulla’s Principles of Mahomedan Law, 19th edn., in: M. Hidayatul-lah & Arshad Hidayatullah (Eds.), (New Delhi: LexisNexis Butterworth, 1990, 13th repr. 2005), 261; David Pearl & Werner Menski, Muslim Family Law, 3rd edn., (London: Sweet & Maxwell, 1998), 281; Alamgir Muhammad Sirajuddin, Shari‘a Law and Society: Tradi-tion and Change in South Asia, 2nd edn., (Karachi: Oxford University Press, 2001), 200; J.J. Nasir, The Islamic Law of Personal Status, 2nd edn., (London/Dordrecht/Boston: Gra-ham & Trotman, 1990), 119; Asaf A. Faizi, Outlines of Muhammadan Law, 4th edn., (New Delhi: Oxford University Press, 1999), 153; Asaf A. Faizi, in: Tahir Mahmud (Ed.), Out-lines of Muhammadan Law, 5th edn., (New Delhi: Oxford University Press, 2008), 121; Dawoud el-Alami & Doreen Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World (London/The Hague/Boston: Kluwer Law International, 1996), 23; Syed Khalid Rashid, in: V.P. Baharatiya (Ed.), Muslim Law, 4th edn., (Lucknow: Eastern Book Com-pany, 2004), 101; M. Tahir Mansuri, Family Law in Islam: Theory and Practice (Islamabad: Shariʿah Academy, 2006), 121.

4 In the hasan form, if the husband has pronounced one talāq in a tuhr, he must not pronounce talāq for a second time until the next tuhr. He can do so still later, at anytime during the subsistence of the marriage, say after three years, and whenever he does so, the talāq will be counted as the second talāq. When the husband has pronounced talāq for the second time in a tuhr, he must not pronounce talāq for a third time before the next tuhr, but he can do so still later, at anytime during the subsistence of the marriage and whenever he does so, the pronouncement will be counted as the third talāq. Tahir Mahmud argues that the requirement of the next tuhr for the second and the third talāqs, thus, prescribes the minimum limitation, not the maximum limitation and its purpose is to provide to the husband, at least about a month for reconciliation each time. See Tahir Mahmud, “No more ‘Talāq, Talāq, Talāq’—Juristic Restoration of the True Islamic Law on Divorce”, Inter-national and Comparative Law Review, XII (1992), 5; Tahir Mahmud, The Muslim Law of India, 3rd edn., (New Delhi: LexisNexis Butterworths, 2002), 105-106.


the marriage has been consummated. The fuqahāʾ agreed about this because of the words of the Exalted:

O Prophet! When you [intend to] divorce women, divorce them with a view to the waiting-period appointed for them, and reckon the period [carefully], and be con-scious of God, your Sustainer. Do not expel them from their homes; and neither shall they [be made to] leave unless they become openly guilty of immoral conduct. These, then, are the bounds set by God—and he who transgresses the bounds set by God does indeed sin against himself: [for, O man, although] thou knowest it not, after that [first breach] God may well cause something new to come about.5

3. The Ğamhūr’s Position Regarding Triple Talāq

Certain issues under this heading require a detailed discussion such as what is triple talāq? Is triple talāq permissible? What is the ğamhūr’s position regarding it? Is triple talāq binding?

3.1. What Is Meant by Triple Talāq?

There is no disagreement among the jurists regarding its validity when triple talāq is pronounced three times in three separate periods of purity (tuhr). Jurists have, however, disagreed on the form of triple divorce: first, where divorce is pronounced thrice in one session (mağlis) within one phrase such as “anti tāliq thalāthan” (you are divorced thrice); secondly, where divorce is uttered in three sentences in one session (mağlis) such as “anti tāliq anti tāliq anti tāliq” (you are divorced, you are divorced, you are divorced). The majority of Muslim jurists agree that triple talāq (three pronouncements within one sentence or three phrases in one session) is not permissible. They argue that it is an innovation, the performance of which is prohibited. However, if this type of divorce is performed, the overwhelming majority of Sunni jurists consider it valid, binding, and effective.

3.2. Legal Effect of Triple Talāq?

If divorce is pronounced thrice in one phrase at once (i.e., “anti tāliq thalāthan”) or repeated three times in one session (i.e., “anti tāliq, anti tāliq, anti tāliq”), or if divorce is uttered at three different times within one

5 Q65:1.


period of purity or menstruation without any revocation, this has the effect of the third and final repudiation according to the majority of jurists among the Companions of the Prophet (sahāba), Followers of the Com-panions (tābiʿūn), and fuqahā of the four Sunni Schools of Thought, including the four founders and their disciples.6

3.2.1. Arguments of the ĞamhūrIn support of their view, the ğamhūr have presented many arguments from the Qurʾān, the Sunnah of the Prophet (PBUH), opinions and fatāwā of the Companions (sahāba) as well as Followers (tābiʿūn), consensus, and analogy.

First, the Qurʾān states that “Talāq is twice; then either to retain in all fairness, or to release nicely”.7 They argue that, according to the verse, if a husband tells his wife, “anti tāliq, anti tāliq” in one session then it is valid, binding and effective. In the next verse, the Qurʾān mentions the third repudiation saying:

Thereafter, if he divorces her, she shall no longer remain lawful for him unless she mar-ries a man other than him. Should he (the second husband) also divorce her, then there is no sin on them in their returning to each other, if they think they would maintain the limits set by Allah. These are the limits set by Allah that he makes clear to people who know (that Allah is alone capable of setting these limits).8

The third repudiation mentioned in this verse may be pronounced in the same tuhr (period of purity between menstruations) in which the two were pronounced. They argue that the Qurʾān uses the conjuction ‘fa’ and not the word ‘thumma’ ( fa in talāqahā, i.e., thereafter, if he divorced her) for the third repudiation, which means that if the husband pronounced the third repudiation in the same tuhr in the same session, then it will be valid,

6 Sahnūn b. Saʿīd al-Tanūhī, Al-Mudaūanah, (Beirut: Dār al-Sādir, n.d.), 2:68; Muhammad b. Qudāmah, Al-Mugnī, (Cairo: Dār al-Hadīth, 1995), 8:243; Ibn Rushd, supra note 1, at 74; Al-Kasānī, supra note 1, at 153; Kamāl ibn al-Humām, Fath al-Qadīr ʿalā l-Hidāyah (Cairo: Bulāq, n.d.), 3:25; Ahmad b. Muhammad al-Tahāwī, Sharh M ʿānī al-Athār (Hyderabad: n.p., 1302 AH), 3:59; Burhān al-Dīn, Al-Farghānanī al-Margīnānī, Al-Hidāyah, trans. Imran A.K. Nyazee (Bristol: Amal Press, 2006), 1:560.

7 Q2:229.8 Q2:230.


effective, and binding, whether or not such a talāq was allowed or permis-sible in essence.9 Similarly, the Qurʾān says:

O Prophet! When you [intend to] divorce women, divorce them with a view to the waiting period appointed for them, and reckon the period [carefully], and be con-science of God, your Sustainer. [. . .] These, then, are the bounds set by God—and he who transgresses the bounds set by God does indeed sin against himself.10

According to the majority, the first part of this verse is about talāq al-sunnāh and the second part (i.e., these, then, are the bounds set by God—and he who transgresses the bounds set by God does indeed sin against himself ) is about the triple talāq in one phrase or three different phrases in one session because if it is not effective and binding, he would not be transgressing the limits set by God.11

Secondly, the ğamhūr have cited many Hadīth from the Prophet (PBUH), and fatāwās from the Companions and Followers to support their point of view, as shown below:12

1. The companion Fātimah bint Qaīs was thrice-divorced by her hus-band Abū Hafs b. Mugīrah al-Mahzūmī and the Prophet (PBUH) refused her any maintenance. The opponents argue that, in this case, the repudiation was the third and final statement (which is effective and binding) and not three repudiations within one phrase or within three phrases in one session.

2. It is reported that Rukānah b. ʿAbd Yazīd divorced his wife (battā)13 in a single session, and was greatly saddened in his longing for her.

9 For a detailed discussion of triple talāq, see Bahth Haiʾat Kibār al-ʿUlāmā, “Hukm al-talāq al-thalāth bi-lafzin wāhidin fī dawʾ al-kitāb wa l-sunnāh”, Mugallah al-Buhuth al-Islāmiya, 1:3 (1397 AH), 28-173 (hereafter Bahth Haiʾat). Mugallah al-Buhuth al-Islāmiya, 1:3 (1397 AH)—a Saudi academic journal, has published the most comprehensive edition on the issue of triple talāq to date. Also see Muhammad Sarfrāz Khan Safdar, ʿUmdah al-Asās fī Hukm al-Talqāt al-Thalāth, (Gujranwala: Maktaba Safdariya, 8th edn., 2010), 52. This is one of the best works on triple talāq in the Urdu language.

10 Q65:1.11 Bahth Haiʾat, supra note 9, at 148-149.12 The ğamhūr give many ahādīth (pl. of hādīth) to support their point of view but Ibn

Taimiyah and Ibn al-Qayim have criticized all of them. 13 Literally, it means talāq that severs relations between a husband and a wife. The fuqahā

differed on the meaning of battāʾ talāq. Some argue that it means either one or three talāq. Others bring in two talāq into it. See Safdar, supra note 9, at 61-62.


The Messenger of Allah asked him in which manner had he divorced her? Rukānah said that he divorced her thrice in a single session whereas he had intended only one. The Prophet (PBUM) asked him to swear in the name of God that he had intended only one, which he did.14 According to some jurists and commentators, if three talāq spoken in one session are ineffective, then why would the Prophet (PBUH) ask Rukānah to swear that he intended only one and not three talāq.15 Safdar argues that if the word battā would not mean that three talāq are three, then why would the Prophet (PBUH) ask Rukānah to swear because when metaphorical words are used for talāq, the man’s real intention assumes great significance, whether the husband intended three or one. He further says, that the word battā could also mean three. However, if three would be considered as one, then the Prophet (PBUH) would never ask Rukānah to swear. It is reported that Rukānah pronounced the second talāq at the time of ʿUmar b al-Hattāb and the third at the time of ʿUthmān b. ʿ Affān.16 Therefore, this Hadīth is proof that three talāq in one session are counted as three.17

3. The ğamhūr cite the fatāwās of many Companions (sahābā), Follow-ers (tābiʿūn), and Followers of the Followers (tabʿtābiʿūn) to support their point of view. Maūlānā Muhammad Amīn Safdar, a harsh critic of ahl al-hadīth in Pakistan, has gathered forty-five such fatāwās.18

Thirdly, the ğamhūr cite ijmāʿ (consensus) in support of their view. Many scholars maintain the existence of a consensus amongst the scholars that the triple divorce, pronounced once, has the effect of a third and

14 See Abū Dāwūd, Sunan, (ed.) Muhammad Mahyddīn, (Beirut: Al-Maktaba al-Athariya, n.d.), Hadīth No. 2206; Al-Hākim Muhammad b. ʿAbdullah, Al-Mustadrak ʿala al-Sahīhain, (ed.) Musthafā ʿAbdul Qādar, (Beirut: Dār al-Kutub al-ʿIilmiyah, 1990), Hadīth No. 2808, 2:199; Al-Dārqutnī, Hadīth No. 3978, 79, 2:39.

15 Safdar, supra note 9, at 61. 16 See Abū Dāwūd, supra note 14, at 1:300.17 See Safdar, supra note 9, at 61-62. Hadīth Rukānah is deliberately cited because it is

also used by the opponents to support their view. All other ahādīth given by ğamhūr in support of their view are severely criticized by the opponents. As explained below, the opponents use the same Hadīth to prove that three pronouncements are counted as one.

18 See Muhmmad Amīn Safdar, “Tīn talāq aūr halālah”, Hair al-Fatāwā, (ed.) Muhammad Anwar (Multan: Maktaba Imdādiya, 1999), 5: 419-433. M.A. Safdar was a harsh critic of ahl al-hadīth in Pakistan and has written the most detailed criticism of their views on talāq in the above-mentioned work.


final repudiation. Scholars who have made this claim include Imām al-Shāfiʿī,19 Abū Bakr al-Rāzī,20 Abū Bakr al-Marūazī,21 Ibn al-ʿArabī,22 Al-Bājī,23 Ibn Rajb,24 Ibn ʿ Abd al-Barr,25 ʿ Alāūddīn al-Kāsānī (d. 587),26 Ibn al-Tīn,27 Al-Subkī,28 Ibn Hağar al-Haithamī,29 and Al-Dusūqī.30 Hanbalī sources before Ibn Taimiyah suggest that there was a consensus among them on this issue.31 Abū Bakr al-Sarkhasī (d. 483), Kāsānī of the Hanafī School, and Ibn al-ʿArabī (d. 543) of the Mālikī School, attribute the opin-ion that triple divorce takes the effect of only one divorce to the Shīʿa.32 Moreover, both these jurists mention only the views of the Shīʿa jurists and criticize the same. This can be interpreted that the Sunni jurists were in agreement on giving the triple divorce the effect of three separate divorces carried out in accordance with the Sunni divorce.33 Moreover, if there were

19 Supra note 9, at 392,20 Ibid.21 Muhammad al-Marūazī, Ihtilāf al-Fuqahāʾ, Al-Samāraʾī (ed.), (Beirut: ʿĀlam al-

Kutub, 1986), 134.22 Supra note 9, at 392; Abū Bakr M. Ibn ʿAbdullah ibn ʿArabī, Ahkām al-Qurʾān, (ed.),

ʿImād Zakī al-Bārudī (Cairo: al-Maktaba al-Tawfiqiya, n.d.), 1: 245.23 Bahth Haiʾat, supra note 9, at 392.24 Ibid.25 Yūsuf b. ʿAbdullah Ibn ʿAbdul al-Barr, al-Kāfī fī Fiqh Ahl al-Madinah, (ed.),

Muhammad Muhammad Uhayd (Riyād: Maktabah al-Riyād al-Hadīthah, 1980), 2:572-573; Muhammad b. Ahmad al-Dusūqī, Hāshiat al-Dusūqī ʿala al-Sharh al-Kābir, (Beirut: Dār al-Fikr, n.d.), 2:362.

26 Al-Kāsānī, supra note 1, at 154. 27 Ibn Hajr al-ʿAsqalānī, Fath al-Bārī Sharh Sahīh al-Bukhārī, ʿAbdullah b. Bāz &

Muhibuddin al-Hatīb (eds.), (Madinah: Maktabat al-Madinah, n.d.), 9: 363.28 Ahmad b. Muhammad Ibn Hajr al-Haithamī, Tuhfat al-Muhtāj fī Sharh al-Minhāj,

(Beirut: Dār Ihyā al-Turāth al-ʿAabī, n.d.), 8:83; Šamshuddīn Muhammad b. Abī al-ʿAbbās al-Ramlī, Nihāiat al-Muhtāğilā Sharh al-Minhāğ (Beirut: Dār al-Fikr, 1984), 7:8.

29 Ibn Hağr al-Haithamī, Tuhfat al-Muhtāğ, 8:83.30 Al-Haithamī, supra note 28, at 2:362.31 See Muhammad b. Qudāmah, Al-Muğnī, (ed.) Al-Sayed, Hattāb & Sādiq (Cairo: Dār

al-Hadīth, 1995), 10: 96-97; Abū Ishāq Ibrāhīm b. ʿAlī b. Yūsuf al-Shirāzī, Muhaddab fī l-Fiqh l-Imām al-Shāfiʿī, (Cairo: n.d.), 4:287-288; Al-Dusūqī, supra note 25, at 2:361-362; Muhammad b. ʿAlī al-Shaūkānī, Naīl al-Aūtār, ʿIsāmuddin al-Sabābātī (ed.) (Cairo: Dār al-Hadīth, 1993), 8:19-20.

32 Abū Bakr Muhammad b. Ahmad al-Sarhasī, Kitāb al-Mabsūt, (ed.), Sāmīr Mustafa Rabāb (Beirut: Dār Ihya al-Turāth al-ʿArabī, 2002), 6:58; Al-Kāsānī, supra note 1, at 153; and Ibn ʿArabī, supra note 22, at 1: 245.

33 Sarhasī argues that if a husband divorced thrice, “three are effected [according] to us [the Ahnāf ]; and Al-Zaidiyah from among the Shīʿa say only one [talāq] is effected; and the


disagreements among the Sunni jurists before Al-Sarkhasī and Al-Kāsānī, they would have definitely mentioned them, given their arguments, and analyzed and rebutted the same.

Finally, the last argument of the ğamhūr is qiyās (analogy). They argue that since divorce is the husband’s right, he can exercise it in stages or all at once just like entering into a marriage contract.

3.2.2. Arguments of Ibn Taimiyah and Ibn al-QayimBefore Ibn Taimiyah and Ibn al-Qayim, few if any major jurists vocally and openly supported the view that three or more talāq should be counted as one. Today this view finds tremendous support among the ahl al-hadīth in India and Pakistan. However, ahl al-hadīth scholars have not added anything new to the debate. They only repeat the arguments given by Ibn Taimiyah and Ibn al-Qayim, therefore, their arguments will be discussed in greater detail below. However, the arguments of Shīʿa scholars are also given, where necessary.

Ibn Taimiyah and Ibn al-Qayim use the same Qurʾānic verse mentioned above, i.e., “Talāq is twice; then either to retain in all fairness, or to release nicely”,34 and argue that the word ‘marratān’ means ‘marratān baʿda mar-rah’ (i.e., one after the other).35 This means, they argue, that the talāq in which the husband has the right to exercise revocation, is to divorce her twice, one after the other and it does not make any difference whether the husband pronounces talāq one, three, or one thousand times.36 Rāwandī argues that “three repudiations are not effective when pronounced in one

Imāmiya [the Twelvers] say nothing [no talāq] is affected.” Sarhasī, supra note 32, at 6:58. This is confirmed by Hillī—a great Shīʿa jurist. See Nağmuddīn al-Hillī, Sharāʿī al-Islām fī Masāʾil al-Halālwa l-Harām, (ed.), Al-Siyad Sādiq al-Husainī (Beirut: Dār al-Qārī, 2004), 3:14. However, in another place in his book, Hillī mentions two opinions, i.e., if two or three talāq are pronounced in one phrase, “then it is said: no talāq is effective, and [it is also] said: one talāq is counted.” See Hillī, Sharāiʿ, at 3:11.

34 Q2:229.35 Šamshuddīn Ibn al-Qayim, Iğāthah al-Lafhān min Masā’id al-Shaītān, (ed.) M.

Ahmadʿ ʿIisā, (Mansūrah: Dār al-Ğad al-Ğadīd, 2005), 1: 256, 269-271. According to Rāwandī (a Shīʿa commentator), ‘marratān means daf ʿatān’ (i.e., two times). See Qutbuddīn al-Rāwandī, Fiqh al-Qurʾān, (ed.) Al-Siyad Ahmad al-Husainī (Qum: Matbʿah al-Wilāiyah, n.d.), 2:176.

36 Bahth Haiʾat, supra note 9, at 1:3 (1397), 153-54.


phrase” and “if a person divorced in one phrase he has not divorced twice or three times”.37

Ibn Taimiyah and Ibn al-Qayim also argue that the Qurʾānic verse, “Thereafter, if he divorces her, she shall no longer remain lawful for him unless she marries a man other than him. Should he too divorce her, then there is no sin on them in their returning to each other, if they think they would maintain the limits set by Allah”,38 means that if he had divorced her for the third time in a single repudiation in one phrase twice or thrice, then she is not lawful for him until she marries someone else.39

The most important Hadīth used by them in support of their view is the one reported by ʿAbdullah b. ʿAbbās who said: “The divorce in the period of the Messenger of Allah (PBUH), Abū Bakr and in the first two years of the caliphate of ʿUmar, if pronounced thrice at once was counted as one, but ʿUmar gave it effect against them”.40

The second Hadīth used by the ‘three amounts to one’ camp is the famous Hadīth Rukānah mentioned above and reproduced here. Ibn ʿAbbās said: “Rukānah divorced his wife thrice in a single session and was greatly saddened in his longing for her. The Messenger of Allah questioned him, ‘How did you divorce her?’ He replied, ‘I divorced her thrice in a single session’. The Prophet (PBUH) said ‘that is a single divorce, return to her by revocation if you want’.”41 According to Ibn Taimiyah, no one dur-ing the time of the Prophet (PBUH) who had exclaimed divorce thrice at one time, was considered by the Prophet (PBUH) to have performed a legally valid divorce. In his view, all the Hadīth (pl. ahadīth) given by

37 Rāwandī, supra note 35, at 2:177. He compares talāq with liʿān and says, “just like in liʿān swearing four times is obligatory, but if four [oaths] are uttered in one phrase, it will not be effective, and similarly, if [during the hağğ] seven stones are thrown together to hit devil [a symbolic hitting of devil called ramī], it will not be effective (i.e., counted as seven times), so is [the issue of ] the talāq.”, at 2:177.

38 Q2:230.39 Bahth Haiʾat, supra note 9, at 154.40 Muslim, Sahīh, (ed.) M. Fuʾād ʿAbdul Bāqī, (Beirut: Dār Ihyāʾ al-Turāth al-ʿArabī,

n.d.), Hadīth No. 1472, 2:1099; Ahmad b. Hanbal, Musnad al-Imām Ahmad b. Hanbal, (Beirut: Mu’sasat al-Risālāh, 2001), Hadīth No. 2875, 5:61. Ibn al-Qayim and his follow-ers consider this Hadīth as their strongest argument. Ibn al-Qayim even asserts that the 15-year period in the Hadīth was ijmāʿ (consensus) among the sahāba about this issue. See Šamsuddin Ibn al-Qayim, Zād al-Māʿd fī Hadyī Haīr al-ʿIbād, (ed.) Ahmad ʿAlī Sulīmān (Mansūrah: Dār al-Ğad al-Ğadīd, 2009), 4:100-101. Also see Ibn al-Qayim, supra note 35, at 1:261.

41 Ahmad, supra note 40, Hadīth No. 2387, 4:215.


ğamhūr in support of their view are not authentic. He asserts that such Hadīth are either weak or fabricated.42 Ibn Taimiyah considers the ruling of ʿUmar (i.e., three talāq means three) in the nature of ‘discretionary punishments’, which can be used when needed. He mentions that ʿUmar’s ruling was opposed by his opponents amongst the Companions because this ruling did not differentiate between those who deserved punishment because they had pronounced talaq intentionally, while fully aware of its consequences, and others who had pronounced it in ignorance, i.e., while being unaware of its consequences.43 Unfortunately, Ibn Taimiyah does not give any evidence in support of his claim (that ʿUmar’s ruling was dis-cretionary in nature) and it is not possible to find any muhadith or any jurist among the ğamhūr who considers it as such. Instead, the latter always treated it as a legal, not a political, ruling.

Ibn Taimiyah asks how the ğamhūr can consider triple divorce imper-missible and yet also claim that the resultant talāq is binding. The textual evidence necessitates that only the talāq al-sunnāh can be binding, argues Ibn Taimiyah. If this divorce is considered by the Lawgiver to be imper-missible but valid, what purpose is served by the division of divorce into the permissible and the prohibited, charges Ibn Taimiyah. If this were true, it would lead to the existence of a contradiction in the legal rulings, but Allah is far removed from making contradictory rulings.44

Ibn Taimiyah asserts that some Hanbalī scholars before him also consid-ered three talāq in one session to be counted as one.45 An interesting anal-ysis of the works of Hanbalī scholars before Ibn Taimiyah was carried out by Matroudi who did not find any evidence of such an argument, as was claimed by Ibn Taimiyah.46 Out of five Hanbalī scholars, i.e., Al-Hiraqī (d. 334/945),47 Ibn al-Bannā (d. 471/1078),48 Ibn Qudāmah (d. 620/1223),49

42 Ahmad Ibn Taimiyah, Mağmuʿ al-Fatāwā, (ed.) Al-Qāsim, ʿAbd al-Rahmān & Muhammad (Riyād: Dār ʿAlam al-Kutub, 1991), 33:12-13.

43 Ibid., 33:16-17.44 Ibid., 24-25.45 Ibid., 33:11.46 See Abdul Hakim Al-Matroudi, The Hanbalī School of Law and Ibn Taimiyah: Conflict

or Conciliation (London: Routledge, 2006), 177. This is perhaps the best work on the influ-ence of Ibn Taimiyah on the Hanbalī School.

47 ʿUmar al-Hairaqī, Muhtasar (Riyād: Maktabat al-Māʿarif, 1988), 185.48 Al-Hasan Ibn al-Bannā, al-Muqnīʿ fī Sharh Muhtasar al-Hairaqī (Riyād: Maktabat

al-Rushd, 1994), 3:959-960.49 Muhammad Ibn al-Qudāmah, ʿUmdat l-Fiqh, Ahmad Muhammad al-Azīz (ed.),

(Beirut: al-Maktaba al-Athariyah, 2004), 105.


Bahāʾ al-Dīn al-Maqdisī (d. 624/1227),50 and Al-Majd Abū l-Barakāt (d. 652/1254), Ibn Taimiyah’s grandfather, only al-Majd has mentioned that Hanbalī scholars were split on the status of a triple talāq, but he did not mention any dispute about its legal effects.51 Ibn al-Qayim, Ibn Taimi-yah’s main disciple, mentions that “I don’t find any Hanbalī scholar [before Ibn Taimiyah] except the grandfather of Ibn Taimiyah who supports the view of Ibn Taimiyah”.52 Even this may be going too far because Al-Mardāwī mentions that Ibn Taimiyah told him that his grandfather, Al-Majd, used to issue secret fatāwā that three divorces amounted to one only.53 As dis-cussed above, this was not Al-Majd’s public opinion.

4. Evaluation of the Arguments from Both Sides

A thorough analysis and evaluation of the arguments of both sides (i.e., ‘three means three’ camp and the ‘three means one’ camp) is required to conclude this discussion. The ğamhūr have severely criticized both the contents as well as the narrators of the Hadīth used by the ‘three means one’ camp.

The ğamhūr question the Hadīth reported by Ibn ʿAbbās that “the talāq at the time of the Prophet (PBUH), Abū Bakr and the first two years of khilāfat of ʿUmar . . .” and ask, what is meant by talāq in this Hadīth? If it means every form of talāq, then a person divorcing his wife in three suc-cessive tuhr periods would also be considered to have pronounced only one. Ibn Taimiyah and his followers do not accept this. Abū Bakr al-Baihaqī argues that Bukhārī did not check its authenticity because this Hadīth is against Ibn ʿAbbās’s other reports.54 The main points against this Hadīth are given below:

50 ʿAbdur Rahmān al-Maqdisī, al-ʿUddah Sharh al-ʿUmdah (Cairo: Dār al-Hadīth, 2003), 451-425.

51 Al-Majd Abū l-Barakāt, al-Muharrar fī al-Fiqh (Riyād: Maktabat al-Māʿarif, 2nd edn., 1984), 2:51, 56.

52 Ibn al-Qayim, supra note 35, at 1:292.53 ʿAlī al-Mardāwī, al-Insāf, (ed.) al-Fāqī (Beirut: Mū’assast al-Tārikh al-ʿArabī, n.d.),

8:453-454.54 Abū Bakr al-Baihaqī, Sunan al-Kubrā, ed. ʿAthā (Beirut: Dār al-Kutub al-ʿIlmiyah, 1st

edn. 1994), 7:337.


(1) This Hadīth is narrated by Tāwūs,55 but is against the reports of all other students of Ibn ʿAbbās.56 The report is not authentic.57 Tāwūs is considered by the ğamhūr as a liar and fabricator of Hadīth, and attributing them to the Companions.58

(2) ʿUrwah b. al-Zubair reported that ʿĀyshah informed him that the wife of Rifāʿa al-Quradī came to the Prophet (PBUH) and said, “Messenger of Allah, Rafāʿa has divorced me thalāthān (thrice). After him I married ʿAbdur Rahmān b. Zubair al-Quradī who is flaccid (i.e., impotent).” The Messenger of Allah (PBUH) said, “Perhaps you want to return to Rafāʿa? No, not until he experiences your sweetness and you experience his (i.e., the marriage is

55 His full name is Abū ʿAbdur Rahmān Tāwūs b. Kisān (d. 106/725). See Muhammad Ibn Saʿd, Tabaqāt al-Kubrā, (ed.) Muhammad ʿAbdul Qādar, (Beirut: Dār al-Kutub al-ʿIlmiyah, 1990), 5:537; Muhammad Ibn Ismāʿīl al-Bukhārī, Al-Tārīh al-Kabīr (Haydera-bad: Dāʾiratu l-Māʿrif al-Islāmiya, n.d.), 4:365; ʿAbdur Rahmān b. Muhammad al-Tamīmī, al-Jarh wa l-Taʿdīl (Beirut: Dār Ihyāʾ al-Turāth al-ʿArabī, 1952), 4:500; and Muhammad b. Ahmad al-Dahabī, Siyar Iʿlām al-Nubalāʾ, (ed.) Shuʿaib al-Arnāūth, (Beirut: Muʾsasa al-Risālāh, 3rd edn. 1985), 5:38.

56 Ibn Rushd, supra note 1, at 73. 57 The chain of its narrators is doubtful because in some narrations Tāwūs reports from

Ibn ʿAbbās; in others Tāwūs reports from Abī al-Sahba from Ibn ʿAbbās and in others Abī al-Ghawzā reports from Ibn ʿAbbās. There are problems with its contents as well. Abī al-Sahba reports in one narration, “don’t you know when a man divorced his wife thalāthan (thrice) before consummation of his marriage with her, it was considered one”. But in another narration, he states that “don’t you know that the talāq, at the time of the Prophet . . .”. See Muslim, supra note 40, Hadīth No. 3491-3493. Also available, at <http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/hadith/muslim/009.smt.html> (last visited 03/02/2011); and ʿAbdur Razzāq b. Humām, Musannaf, (ed.) Habībur Rahmān al-ʿAzamī, (Beirut: Al-Maktab al-Islāmī, 1403 AH), Hadīth No. 11336, Vol. 6, p. 392. See Abī Dāwūd Sulīmān, supra note 14, Hadīth No. 2200. In this report Tāwūs reports from Abī al-Sahbā who reports from Ibn ʿAbbās. And ʿAbdullah, supra note 14, Hadīth No. 2792, 2: 214. In the last report Abī al-Ghawzā reports from Ibn ʿAbbās.

58 In another report, Abī al-Sahbā is said to have asked Ibn ʿAbbās whether he knew that three talāq, at the time of the Prophet, Abū Bakr and the early three years of ʿ Umar’s Hilāfat was considered as one? Ibn ʿAbbās affirmed this fact: “Yes, it was so”. Muslim, supra note 40, Hadīth No. 1472, 2:1099. Abī al-Sahbā who is considered either weak or ‘mağhūl ’ (unknown), is reported to have asked Ibn ʿAbbās: “tell me something that you hate the most [to tell]”, and Ibn ʿAbbās would narrate this episode. Muslim, supra note 40, Hadīth No. 1472, 2:1099.


consummated)”.59 By comparing this Hadīth with Hadīth Tāwūs, there seems to be two situations: (1) that the Arabic word al-thalāth in Hadīth ʿ Āyshah and Hadīth Tāwūs means that three divorces were either separately pronounced (i.e., on three different occasions) or they were pronounced in one phrase (such as ‘I divorce you thrice’). If they were pronounced in one phrase, then Hadīth ʿ Āyshah is more authentic as it is reported both by Imām Bukhārī as well as Imām Muslim and it must prevail. It would mean that three talāq when pronounced in one phrase makes a wife illegal for the husband, and she is not allowed to marry him again until she has married some-one else, and is subsequently divorced from him after consumma-tion of her (second) marriage. However, if the word al-thalāthan is given the meaning of three divorces on three different occasions, then Hadīth Tāwūs (talāq at the time of the Prophet) does not prove anything in this discussion. Giving the word al-thalāthan to mean three talāq on three different occasions in the Hadīth reported from ʿĀyshah and interpreting it to be three talāq in one phrase (in one setting) in the Hadīth reported by Tāwūs cannot be accepted.

(3) The fatwā of Ibn ʿAbbās is against Hadīth Tāwūs. Other students of IbnʿAbbās such as Saʿūd b. Jubayr, ʿAtā b. Abū Rabāh, Mujāhid, ʿAkramah, ʿAmr b. Dīnār, Mālik b. al-Huwayrat, Muhammad b. Eyās b. al-Bukūr and Maʿāia b. Abū ʿAyāsh al-Ansārī, report from Ibn ʿAbbās that he considered three talāq [in one phrase or stated thrice in one session] as three.60

(4) Several great muhadīthūn have mentioned that should the Hadīth be authentic this is about a ‘gyair mad khulan bihā’ woman (with whom the marriage has not yet been consummated).61

(5) It is argued that pronouncing three talāq in one phrase or in three sentences in one session was a prohibited act; was condemned by

59 Bukhārī, Sahīh, Hadīth No. 5260 and Muslim, supra note 40, Hadīth No. 1433. The words above are that of Bukhārī. In a similar Hadīth narrated by Bukhārī it is related from ʿĀyshah that a man divorced his wife three times and she married (someone else) and the Prophet (PBUH), was asked if she was lawful to the first husband. He said, “No, until he experiences her sweetness as the first one did.” Bukhārī, Sahīh, Hadīth No. 5261.

60 Baihaqī, supra note 54, Hadīth No. 14982, 7:552; Saūkānī, supra note 31, Hadīth No. 2860, 6:276.

61 Ibid. Mārdīnī argues that Tāwūs himself stated that this Hadīth is about “gyair mad hulan bihā”. ʿAllāūdūn ʿAlī b. ʿUthmān al-Mārdīnī, Al-Ğaūhar al-Naqī ʿalā al-Baihaqī (Bei-rut: Dār al-Fikr, n.d.), 7:331.


the Prophet (PBUH); and was considered as istihzāʾ bi-kitāb allah (mockery with God’s law). If this is so, then could the Companions (sahāba) dare to carry out this illegal act (three divorces in one phrase or three phrases in one session) at the time of the Prophet, Abū Bakr, and in the beginning of ʿUmar’s rule? Were the Compan-ions pronouncing bidʿī talāq all the time and were committing this bidʿah for fifteen years? Safdar asserts that it is a very serious allega-tion against the Companions.62

(6) Many jurists have attempted to defend this solitary Hadīth from Ibn ʿAbbās but one has to be very careful when doing this because it concerns a matter of halāl (permitted) and harām (prohibited), and any Hadīth which is not even acceptable to its reporter cannot be accepted in haste.

(7) Moūlānā Sarfrāz Khān argues that if a bad practice existed at the time of the Prophet (PBUH) it does not necessarily imply that he knew about it and that such practice was taking place with his per-mission. He points out that certain practices existed at that time of which the Prophet (PBUH) had no knowledge. Moreover, since the above Hadīth is neither the saying nor the act of the Prophet, then why should it be raised to the status of a textual authority?63 He quotes Ibn Hazam who argues that “there is nothing in this Hadīth which proves that the Prophet (PBUH) treated three talāq as one or counted them as one. Nor does it reveal that the Prophet (PBUH) ordered this practice to be maintained when he knew about it because what is counted as a proof is only acceptable if the Prophet (PBUH) said something, did it himself, or approved of it.”64

(8) It is very clear that this Hadīth is not the Sunnah of the Prophet (PBUH), i.e., part of his sayings or acts or something tacitly approved by him. Baihaqī quotes from Imām Shāfiʿī that this report seems to be abrogated because it is not possible that he would give fatwā against it.65

62 Safdar, supra note 18, at 5:439.63 Safdar, supra note 9, at 84.64 Abū Muhammad ʿAlī b. Ahmad Ibn Hazm, Al-Muhallā bi l-Athār (Beirut: Dār al-

Fikr, n.d.), 9:392.65 Baihaqī, supra note 54, Hadīth No. 14983, 7:552. Abū Dāwūd also considers this

report of Ibn ʿAbbās as superseded. See Abū Dāwūd, supra note 14, Hadīth No. 2195, 2:259.


(9) Maūlānā Sarfrāz Khān argues that the Hadīth [the talāq at the time of the Prophet (PBUH), Abū Bakr and the first two years of the khilāfat of ʿUmar, were considered as one] does not mean that three talāq in one session were considered as one. It simply means that at that time people used to pronounce one talāq instead of three. Thereafter, if the husband wanted, he would give a sec-ond and a third in two successive tuhr periods, or he would wait until the end of the third tuhr period when the wife would become free from him. This Hadīth does not tell us that at that time three talāq used to be pronounced but would be counted as one.66

(10) This Hadīth does not mention that three talāq in one phrase or in three phrases in one session were counted as one. It only says, “al-talāq ʿalā ʿahde rasūlullah . . .” (i.e., the talāq at the time of the Prophet) without specifying the type of talāq.67

(11) Since Tāwūs’s report was about a well-known social fact at that time, then why is it that only one man (who does not have good reputation among the muhadithūn) reported it? Such a well-known societal fact, instead, should have been reported by many of his contemporaries.

(12) How the Companions of the Prophet could keep quiet when ʿUmar allegedly innovated the rule, i.e., that three talāqs in one session will be considered as three?

The ğamhūr have criticized both the contents as well as the narrators of Hadīth Rukānah despite the fact that some of them use it to support their point of view. This Hadīth is quoted by Imām Ahmad b. Hanbal in his Mus-nad and its narrators in the chain are Saʿd b. Ibrāhīm from Muhammad b. Ishāq from Dāwūd b. al-Hisūn from ʿAkramah from ʿAbdullah b. ʿAbbās. Since the opponents have used this Hadīth as a proof for their point of view, the ğamhūr treat it as a shād (exception) and severely criticize all

66 This is how Imām ʿUbaīdullah b. ʿAbdul Karīm and Abū Zarʿ al-Rāzī understood this Hadīth. See Baihaqī, supra note 54, Hadīth No. 14983, 7:552; and Safdar, supra note 9, at 87.

67 Abū Saʿīd Sharafuddīn Dehlvi’s criticism is the most scornful by an ahl al-hadīth scholar. Surprisingly, his views are reproduced in Fatāwa Tanāiyah which is considered as the most authentic of ahl al-hadīth’s collection of legal edicts. See Maūlānā Tanāullah Amratsarī, Fatāwa Tanāiyah, (ed.) M. Dāwūd Rāzī (Lahore: Maktaba Ashāb al-Hadīth, 2010), 2:216. Dehlawī was a top Indian ahl al-hadīth scholar but supported the opinion of ğamhūr on this issue.


the narrators except ʿAbdullah b. ʿAbbās. Their main criticism is summed up below:

(1) In one version of Hadīth Rukānah reported by Imām Ahmad,68 one of the narrators Muhammad b. Ishāq (other narrators are: Saʿd b. Ibrāhīm, Dāwūd b. al-Hisūn, and ʿAkramah) is not trustworthy for Imām Nasāʾī;69 Imām Abū Hātam describes him as daʿīf;70 Imām Dār Qutnī, Sulīmān Tamīmī, Hishām b. ʿUrwah, ImāmYahyā b. Saʿūd al-Qattān consider him a kaddāb (liar);71

(2) Imām Ahmad himself supported the view of the ğamhūr;(3) The ğamhūr argue that Rukānah pronounced only one talāq and

not three and this narration was supported by Rukānah’s family;(4) It is reported that Saʿīd b. Ibrāhīm was a singer and thereby his nar-

ration cannot be accepted;(5) Muhmmad b. Ishāq is considered by Imām Mālik as dağğāl (anti-

Christ) and a kaddāb.72 According to ʿUrwah, he had fabricated Hadīth earlier and was punished for the same.

(6) Dāwūd b. al-Hisūn was accused of being a kariğite. ʿAllāma Dahabī called him a munkir al-hadīth (one who denies Hadīth);73

(7) ʿAkrama (mentioned in this Hadīth) was also a kariğite and used to attribute Hadīth to ʿAbdullah b. ʿAbbās. In addition, Saʿīd b. al-Musaib, Imām ʿAtā and Imām Sirīn, considered him a liar.74

(8) There are authentic reports from ʿAbdullah b. ʿAbbās in which he considers three talāq in one session as valid, binding, and effective.75

68 This version is reported by Imām Ahmad, See Imām Ahmad, supra note 40, 1:265; Baihaqī, supra note 54, 7:339.

69 Abū ʿAbdur Rahmān al-Nasāʾī, al-Dʿafāʾ wa l-Matrūkīn, (Beirut: Muʾsasa al-Kutub al-Thaqāfiyah, 1985), 211.

70 Abū Hātam, Kitāb l-ʿIlal, 1:433.71 Šamshuddīn al-Dhahabī, Mizān al-ʿIitidāl fī Naqd al-riğāl (Beirut: Dār al-Kutub

al-ʿIlmiyah, 1995), 3:21.72 Abū Bakr Khātīb Baghdādī, Tārīkh Baghdād (Beirut: Dār al-Gharb al-Islāmī, 2002),

1:223. 73 Imām Sufyān b. ʿ Eināiah says that we use to avoid his Hadīth. Imām ʿ Abbās Durī calls

him weak. Dhahabī, supra note 71, 3:9, 10. For more details, see Safdar, supra note 9, at 109-110.

74 See Dhahabī, supra note 71, 3: 96.75 For an interesting discussion of the quality of the above-mentioned Hadīth and the

trustworthiness or otherwise of those who narrated it from IbnʿAbbās, see Safdar, supra note 18, at 5: 435-437.


(9) The version of this Hadīth in Abū Dāwūd does not prove that three talāq shall be counted as one because its chain has an unknown person from Banī Abū Rāfiʿ. This is why Imām Naūaūī described this Hadīth as daʿīf (of weak authority).76 Ibn Hazm opined that a weak Hadīth cannot be a proof.77 Such a weak Hadīth cannot be used to make something legal or illegal.

(10) According to authentic reports, Rukānah had pronounced ʿtalāq battāʾ and not triple talāq.78

It can be concluded from the above criticism that the Hadīth of Ibn ʿ Abbās, i.e., talāq at the time of the Prophet . . ., is not authentic; secondly, it shall not be called Hadīth of the Prophet but is a narration attributed to Ibn ʿAbbās, who himself, as reported in many other Hadīth, considered three talāq in one session as valid, binding, and effective; thirdly, if it is accepted as authentic, it does not say three talāq used to be counted as one. It only mentions that people used to pronounce one talāq; fourthly, declaring three talāq as one and treating three talāq of ‘gyair mad khulan bihā’ (woman with whom the marriage has not been consummated) to be hav-ing the same legal effect as all other forms of talāq, cannot be accepted because of its contents as well as its narrators; fifthly, Hadīth Rukānah can-not be accepted as all the narrators are very daʿīf (weak) and were known for fabricating Hadīth. In case the Hadīth is authentic even then it shows that three talāq are counted as three otherwise why would the Prophet ask Rukānah to swear that he intended one; and finally, how can daʿīf ahadīth

76 Yahyā b. Sharaf b. Husaīn al-Naūaūī, Sharh al-Muslim (Beirut: Dār Ihyā al-Turāth al-ʿArabī, 1392 AH), 1:478.

77 Ibn Hazm, supra note 64, at 10:168. Khalīl Ahmad Sahāranpūrī (d.1346 AH) argues that according to Mustadrak, the unknown (majhūl ) man was Muhammad b. ʿUbaidullah b. Abū Rāfīʿ, who was very weak narrator. Khalīl Ahmad Sahāranpūrī, Bad l al-Majhūd, 3:69. Imām Bukhārī calls him ‘munkar al-hadīth; Imām Ibn Muʿīn calls him ‘laisa bi-shīin’ (he is nothing); Abū Hātam describes him as a weak authority and ‘munkar al-hadīth’; according to Imām Dār Qutnī, he was ‘matrūk’; and Dhahabī says that muhaddithūn con-sider him weak and that he is a very weak narrator. See Dhahabī, supra note 71, 3:593, 555. Ibn ʿAddī describes him as a Shīʿa from Kufā. See Ahmad b. Haghr al-ʿAsqalānī, Tahdīb al-Tahdīb (Haiderabad: Maktabam a’-ʿārif al-Nidhāmiyah, 1326 AH), Hadīth No. 2849, 6:269.

78 Abū Dāwūd, supra note 14, at 1:301; Baihaqī, supra note 54, 7:339; Shaūkānī, supra note 60, 6:246. According to Naūaūī, some narrators thought ‘battā’ to be three and, there-fore, use the word ‘thalātha’ (three) mistakenly. Naūaūī, supra note 76, 1:478.


(weak reports), such as, ‘the talāq at the time of the Prophet . . .’ as well as Hadīth Rukānah be used as proof for making something legal or illegal.

The question is why did both Ibn Taimiyah and Ibn al-Qayim so vigor-ously support the view that three talāq in one session are counted as one? According to Ibn al-Qayim, a Muftī at the time of Ibn Taimiyah issued a fatwā saying that if anyone asserted that three talāq in one session would be counted as one, he would become an infidel (kāfir) and an apostate (murtad).79 It is this fatwā that infuriated Ibn Taimiyah and a result he challenged it. Ibn al-Qayim says, that “some people have issued a fatwā declaring all those who oppose his point of view (i.e., three means three) as murtad and kāfir”.80 Both Ibn Taimiyah and Ibn al-Qayim were severely punished after they had rendered their fatwā that three talāq in one session means one.81 Ibn Taimiyah was not even supported by some of his disci-ples. Shamshuddīn al-Dhahabī, a student of Ibn Taimiyah’s, disagreed with him on this issue because until that time it was only the opinion of the Shīʿa School of Thought.82 As discussed above, probably this is the reason why Sarkhasī and Al-Kasānī mention that ‘three talāq in one session amounting to one’ is the opinion of Rawāfid (Shīʿa).

5. Position of the Shīʿa Imāmiyah

The position of the Shīʿa Imāmiyah has already been discussed briefly. They consider three pronouncements in one session as harām (illegal). ʿAllāma Hillī, a great Shīʿa jurist, argues that if a person uttered three talāq in one session, nothing [no talāq] is affected.83 However, in another place in his book, Hillī mentions two opinions; if two or three talāq are pro-nounced in one phrase, “then it is said: no talāq is affected, and [it is also] said: one talāq is counted”.84 Allāma Hillī’s assertion that there is a second opinion in the school is important. According to the leading Shīʿa Imām, Abū Jaʿfar, “avoid marrying women who are divorced three times in one session because they have husbands [still married to their previous

79 Ibn al-Qayim, supra note 35, at 1:292, 294.80 Ibid.81 Muhammad b. Ismāʿīl al-Sanʿanī, Subl al-Salām Sharh Bulūğ al-Marām, (ed.)

M. ʿAbdul ʿAzīz al-Khaūlī (Lahore: Dār Nashr al-Kutub al-Islāmiah, n.d.), 3:175.82 Safdar, supra note 9, 49.83 Hillī, supra note 33, at 3:14. Also see Sarkhasī, supra note 32, at 6:58.84 Hillī, supra note 33, at 3:11.


husbands]”.85 In other words, three talāq in one session amounts to one only and the husband can revoke it if he wants. Thus, there are two opin-ions within the Shīʿa Imāmiyah School of Thought. According to one view, three talāq in one session amounts to one and according to the second view, nothing will be affected.

According to the Zaīdīyah from among the Shīʿa, only one [talāq] is affected.86 Qutbuddin al-Rāwandī compares talāq with liʿān and says, “just like in liʿān swearing four times is obligatory, but if four [oaths] are uttered in one phrase, it will not be effective, and similarly, if [during the hajj] seven stones are thrown together to hit the devil [a symbolic hitting of devil called ramī], it will not be effective (i.e., counted as seven times), so is [the issue of ] the talāq”.87According to Al-Rāwandī, “marratān means daf ʿ atān” (i.e., two times).88

Conclusion

To sum up this work, if divorce is pronounced thrice in one phrase at once or repeated three times in one session or the divorce is uttered at three dif-ferent times within one purity or menstruation without any revocation, this has the effect of the third and final repudiation according to the major-ity of jurists among the Companions of the Prophet (sahāba), Followers of the Companions (tabiʿūn), those who came after them, and the fuqahā of the four Sunni Schools of Thought, including the four founders of those schools and their disciples. The majority of Muslim jurists, i.e., the Hanafites, Mālikites, Shāfiʿites, and the Hanbalites, agree that three pro-nouncements in one session are not permissible but when pronounced will be effective, valid, and binding in law. According to Ibn Taimiyah, Ibn al-Qayim, the Zāhirites, the Shīʿa Imāmiyah, and many ahl al-hadīth, three pronouncements, even if intended by the husband to be three in one

85 Al-Kafi, Vol. 2, p. 178.86 Sarhasī, supra note 32, at 6:58.87 Rāwandī, supra note, 36, at 2:177. Ibn al-Qayim gives the same argument. See Ibn

al-Qayim, supra note 35, at 1: 301. However, ramī or the symbolic stoning of devil is a worship and the thrower has to recite ‘Allah O Akbar’ (God is great) with every stone. Talāq on the other hand is the most hated thing to God and the analogy of worship over a hated thing is wrong. Similarly, liʿān (a husband accusing his wife of sex with someone else) is hadd, which may not be implemented if there is the slightest doubt. There is no analogy between talāq, the most hated to God, and a hadd, the penalty for which is fixed by God.

88 Ibid.


session, would amount to only one repudiation. Both camps have given many arguments from the Qurʾān, the Sunnah and the sayings of the Companions (sahāba) in support of their view but each is bitterly con-tested by the other. The strongest argument of ‘three amounts to one’ camp was the Hadīth reported by Ibn ʿAbbās, i.e., talāq at the time of the Prophet . . ., however, this is not a Hadīth, as it was only a report by Ibn ʿAbbās, who did not attribute it to the Prophet (PBUH), neither was it the practice of the Prophet (PBUH) nor his approval. Ibn ʿAbbās himself con-sidered three talāq in one session as three. Even if were to be accepted as an authentic report it does not say that three talāq in one session used to be counted as one. It only mentions that people used to pronounce one talāq. The Hadīth Rukānah cannot be accepted as all the narrators are daʿif (weak) and are known for fabricating Hadīth. In case the Hadīth were authentic even then it shows that three talāq are counted as three otherwise why would the Prophet ask Rukānah to swear that he had intended only one and not three. Weak reports such as, “the talāq at the time of the Prophet . . .” as well as the Hadīth Rukānah cannot be used as the basis for declaring something legal or illegal. The reason for Ibn Taimiyah and Ibn al-Qay-imin vigorously opposing the ğamhūr’s position is that a Muftī in their times had issued a fatwā stating that anyone supporting the view that three talāq amounted to one, was an infidel and an apostate. Ibn Taimiyah and Ibn al-Qayim started a campaign against that fatwā and both were severely punished for their position on talāq because until their time ‘three amount-ing to one’ was only attributed to the Shīʿa.

three talaq in one session alq 27 1 (2013) 29-49

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