Arab Law

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

Triple Ṭalāq 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

Abstract
This work analyzes one of the hottest and most tricky issues of the Muslim Family Law, i.e.,
whether in cases of divorce (ṭalāq), 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 Ẓ āhirites 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 ṭalāqs in one session amount to one, while the second point of view holds that
three repudiations in one session do not amount to any ṭalāq.

Keywords
ṭalāq, triple ṭalāq, divorce, three repudiations, Muslim Family Law, Ibn Taimiyah, Ibn
al-Qayim, ğamhūr, Shīʿa, Ẓ āhirite

* E-mail: muhammadmunir@iiu.edu.pk. 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).
© Koninklijke Brill NV, Leiden, 2013 DOI: 10.1163/15730255-12341247

Electronic copy available at: http://ssrn.com/abstract=1826942

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 (ṭalāq) has the effect of the third and final repudiation
whereas Imām Bāqar, Imām Ṣādiq (both Shīʿa Imāms), Ẓ āhirites (except
Ibn Ḥ azam), Ibn Taimiyah, Ibn al-Qayim, several tābiʿūn (Followers), and
most of the aḥ l al-ḥ adīth in India and Pakistan consider triple ṭalāq 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-ḥ adīth 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 ṭalāq al-sunnāh (ṭalāq in accordance with
the Sunnah) and its opposite ṭalāq 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-Ṣanāʾiʿ (Beirut: Dār Eḥia al-Turāth al-ʿArabī,
2000), 3:140; Muḥammad b. Aḥmād b. Rushd, Bidāyat al-Mujtahid, trans. Imran A.K.
Nyazee (Reading: Garnet Publishing Ltd., 1994), 2:75; Muḥammad b. Mufliḥ, Al-Furūʿ,
(Cairo: ʿĀlam al-Kutub, 1985), 5:370; Manṣūr al-Buhūtī, Sharḥ Muntaha al-Irādāt, (Bei-
rut: Dār al-Fikr, n.d.), 3:123-126; Muḥammad ʿAbdullah Rūprī, in M. Ṣiddique (Ed.),
Fatāwā Ahli l-Ḥ adīt, (Sargodha: Idārah Iḥyāʾ al-Sunnah al-Nabawiya, n.d.), 2:506-508.
2
Technically the different expressions for describing ṭalāq as ṭalāq al-sunnāh, ṭalāq
al-bidʿah, ṭalāq al-ḥ asan and ṭalāq al-iḥ san should not be called ‘modes’ or ‘forms’ of ṭalāq
because a ṭalāq is a ṭalāq. These expressions only refer to the conduct of the man pronounc-
ing a ṭalāq.

Electronic copy available at: http://ssrn.com/abstract=1826942

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

differ regarding the effect of ṭalāq al-bidʿah. Ṭalāq al-sunnāh can be further
divided into iḥ san and ḥ asan. In the iḥ san form, the husband pronounces
only one ṭalāq 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 ḥ asan form of ṭalāq is commonly misunder-
stood by most contemporary writers who believe that, in this manner of
divorce, three ṭalāqs must be spoken during three successive or consecutive
time-periods (ṭuhr) when the wife is not menstruating.3 This procedure is
incorrect for ḥ asan ṭalāq 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 ṭalāq 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 ḥ asan form, if the husband has pronounced one ṭalāq in a ṭuhr, he must not
pronounce ṭalāq for a second time until the next ṭuhr. He can do so still later, at anytime
during the subsistence of the marriage, say after three years, and whenever he does so, the
ṭalāq will be counted as the second ṭalāq. When the husband has pronounced ṭalāq for the
second time in a ṭuhr, he must not pronounce ṭalāq for a third time before the next ṭuhr,
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 ṭalāq. Tahir Mahmud argues
that the requirement of the next ṭuhr for the second and the third ṭalāqs, 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 ‘Ṭalāq, Ṭalāq, Ṭalāq’—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.
32 M. Munir / Arab Law Quarterly 27 (2013) 29-49

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 Ṭalāq

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

3.1. What Is Meant by Triple Ṭalāq?

There is no disagreement among the jurists regarding its validity when
triple ṭalāq is pronounced three times in three separate periods of purity
(ṭuhr). 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 ṭāliq thalāthan” (you are divorced thrice); secondly,
where divorce is uttered in three sentences in one session (mağlis) such as
“anti ṭāliq anti ṭāliq anti ṭāliq” (you are divorced, you are divorced, you are
divorced). The majority of Muslim jurists agree that triple ṭalāq (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 Ṭalāq?

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

5
Q65:1.
 M. Munir / Arab Law Quarterly 27 (2013) 29-49 33

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 (ṣaḥ āba), 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 Ğamhūr

In 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 (ṣaḥ āba) as well as Followers (tābiʿūn), consensus, and
analogy.
First, the Qurʾān states that “Ṭalāq 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 ṭāliq, anti ṭāliq” 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 ṭuhr (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 ṭalāqahā, i.e., thereafter, if he divorced her) for
the third repudiation, which means that if the husband pronounced the
third repudiation in the same ṭuhr in the same session, then it will be valid,

6
Saḥnūn b. Saʿīd al-Tanūḥī, Al-Mudaūanah, (Beirut: Dār al-Ṣādir, n.d.), 2:68;
Muḥammad b. Qudāmah, Al-Muġnī, (Cairo: Dār al-Ḥ adīth, 1995), 8:243; Ibn Rushd,
supra note 1, at 74; Al-Kasānī, supra note 1, at 153; Kamāl ibn al-Humām, Fatḥ al-Qadīr
ʿalā l-Hidāyah (Cairo: Bulāq, n.d.), 3:25; Aḥmad b. Muḥammad al-Ṭaḥāwī, Sharḥ Mʿānī
al-Athār (Hyderabad: n.p., 1302 AH), 3:59; Burhān al-Dīn, Al-Farġhānanī al-Marġīnānī,
Al-Hidāyah, trans. Imran A.K. Nyazee (Bristol: Amal Press, 2006), 1:560.
7
Q2:229.
8
Q2:230.
34 M. Munir / Arab Law Quarterly 27 (2013) 29-49

effective, and binding, whether or not such a ṭalāq 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 ṭalāq 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 ṭalāq 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 Ḥ adīth 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 Ḥ afṣ b. Muġīrah al-Maḥzūmī 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 ṭalāq, see Baḥ th Haiʾat Kibār al-ʿUlāmā, “Ḥ ukm
al-ṭalāq al-thalāth bi-lafẓin wāḥ idin fī ḍawʾ al-kitāb wa l-sunnāh”, Muġallah al-Buḥ uth
al-Islāmiya, 1:3 (1397 AH), 28-173 (hereafter Baḥ th Haiʾat). Muġallah al-Buḥ uth al-Islāmiya,
1:3 (1397 AH)—a Saudi academic journal, has published the most comprehensive edition
on the issue of triple ṭalāq to date. Also see Muḥammad Sarfrāz Khan Ṣafdar, ʿUmdah
al-Asās fī Ḥ ukm al-Ṭalqāt al-Thalāth, (Gujranwala: Maktaba Ṣafdariya, 8th edn., 2010), 52.
This is one of the best works on triple ṭalāq in the Urdu language.
10
Q65:1.
11
Baḥ th Haiʾat, supra note 9, at 148-149.
12
The ğamhūr give many aḥ ādīth (pl. of ḥ ādīth) to support their point of view but Ibn
Taimiyah and Ibn al-Qayim have criticized all of them.
13
Literally, it means ṭalāq that severs relations between a husband and a wife. The fuqahā
differed on the meaning of battāʾ ṭalāq. Some argue that it means either one or three ṭalāq.
Others bring in two ṭalāq into it. See Ṣafdar, supra note 9, at 61-62.
 M. Munir / Arab Law Quarterly 27 (2013) 29-49 35

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 ṭalāq
spoken in one session are ineffective, then why would the Prophet
(PBUH) ask Rukānah to swear that he intended only one and not
three ṭalāq.15 Ṣafdar argues that if the word battā would not mean
that three ṭalāq are three, then why would the Prophet (PBUH) ask
Rukānah to swear because when metaphorical words are used for
ṭalāq, 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 ṭalāq at the time
of ʿUmar b al-Ḫ aṭtạ̄ b and the third at the time of ʿUthmān b. ʿAffān.16
Therefore, this Ḥ adīth is proof that three ṭalāq in one session are
counted as three.17
3. The ğamhūr cite the fatāwās of many Companions (ṣaḥ ābā), Follow-
ers (tābiʿūn), and Followers of the Followers (tabʿtābiʿūn) to support
their point of view. Maūlānā Muḥammad Amīn Ṣafdar, a harsh critic
of ahl al-ḥ adīth 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.) Muḥammad Maḥyddīn, (Beirut: Al-Maktaba al-Athariya,
n.d.), Ḥ adīth No. 2206; Al-Ḥ ākim Muḥammad b. ʿAbdullah, Al-Mustadrak ʿala al-Ṣaḥ īḥ ain,
(ed.) Muṣthafā ʿAbdul Qādar, (Beirut: Dār al-Kutub al-ʿIilmiyah, 1990), Ḥ adīth No. 2808,
2:199; Al-Dārquṭnī, Ḥ adīth No. 3978, 79, 2:39.
15
Ṣafdar, supra note 9, at 61.
16
See Abū Dāwūd, supra note 14, at 1:300.
17
See Ṣafdar, supra note 9, at 61-62. Ḥ adīth Rukānah is deliberately cited because it is
also used by the opponents to support their view. All other aḥ ādīth given by ğamhūr in
support of their view are severely criticized by the opponents. As explained below, the
opponents use the same Ḥ adīth to prove that three pronouncements are counted as one.
18
See Muḥmmad Amīn Ṣafdar, “Tīn ṭalāq aūr ḥ alālah”, Ḥ air al-Fatāwā, (ed.)
Muḥammad Anwar (Multan: Maktaba Imdādiya, 1999), 5: 419-433. M.A. Ṣafdar was a
harsh critic of ahl al-ḥ adīth in Pakistan and has written the most detailed criticism of their
views on ṭalāq in the above-mentioned work.
36 M. Munir / Arab Law Quarterly 27 (2013) 29-49

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 ʿAbd al-Barr,25 ʿAlāūddīn al-Kāsānī (d. 587),26 Ibn
al-Tīn,27 Al-Subkī,28 Ibn Ḥ ağar al-Haithamī,29 and Al-Dusūqī.30 Ḥ anbalī
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 Ḥ anafī
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
Muḥammad al-Marūazī, Iḥ tilāf al-Fuqahāʾ, Al-Samāraʾī (ed.), (Beirut: ʿĀlam al-
Kutub, 1986), 134.
22
Supra note 9, at 392; Abū Bakr M. Ibn ʿAbdullah ibn ʿArabī, Aḥ kām al-Qurʾān, (ed.),
ʿImād Zakī al-Bārudī (Cairo: al-Maktaba al-Tawfiqiya, n.d.), 1: 245.
23
Baḥ th Haiʾat, supra note 9, at 392.
24
Ibid.
25
Yūsuf b. ʿAbdullah Ibn ʿAbdul al-Barr, al-Kāfī fī Fiqh Ahl al-Madinah, (ed.),
Muḥammad Muḥammad Uḥayd (Riyāḍ: Maktabah al-Riyāḍ al-Ḥ adīthah, 1980), 2:572-
573; Muḥammad b. Aḥmad al-Dusūqī, Ḥ āshiat al-Dusūqī ʿala al-Sharḥ al-Kābir, (Beirut:
Dār al-Fikr, n.d.), 2:362.
26
Al-Kāsānī, supra note 1, at 154.
27
Ibn Ḥ ajr al-ʿAsqalānī, Fatḥ al-Bārī Sharḥ Ṣaḥ īḥ al-Bukhārī, ʿAbdullah b. Bāz &
Muḥibuddin al-Ḥ at ̣īb (eds.), (Madinah: Maktabat al-Madinah, n.d.), 9: 363.
28
Aḥmad b. Muḥammad Ibn Ḥ ajr al-Haithamī, Tuḥ fat al-Muḥ tāj fī Sharḥ al-Minhāj,
(Beirut: Dār Iḥyā al-Turāth al-ʿAabī, n.d.), 8:83; Šamshuddīn Muḥammad b. Abī al-ʿAbbās
al-Ramlī, Nihāiat al-Muḥ tāğilā Sharḥ al-Minhāğ (Beirut: Dār al-Fikr, 1984), 7:8.
29
Ibn Ḥ ağr al-Haithamī, Tuḥ fat al-Muḥ tāğ, 8:83.
30
Al-Haithamī, supra note 28, at 2:362.
31
See Muḥammad b. Qudāmah, Al-Muğnī, (ed.) Al-Sayed, Ḥ aṭt ̣āb & Ṣādiq (Cairo: Dār
al-Ḥ adīth, 1995), 10: 96-97; Abū Isḥāq Ibrāhīm b. ʿAlī b. Yūsuf al-Shirāzī, Muhad̠d̠ab fī
l-Fiqh l-Imām al-Shāfiʿī, (Cairo: n.d.), 4:287-288; Al-Dusūqī, supra note 25, at 2:361-362;
Muḥammad b. ʿAlī al-Shaūkānī, Naīl al-Aūṭār, ʿIṣāmuddin al-Ṣabābātī (ed.) (Cairo: Dār
al-Ḥ adīth, 1993), 8:19-20.
32
Abū Bakr Muḥammad b. Aḥmad al-Sarḫasī, Kitāb al-Mabsūṭ, (ed.), Sāmīr Muṣt ̣afa
Rabāb (Beirut: Dār Iḥya al-Turāth al-ʿArabī, 2002), 6:58; Al-Kāsānī, supra note 1, at 153;
and Ibn ʿArabī, supra note 22, at 1: 245.
33
Sarḫasī argues that if a husband divorced thrice, “three are effected [according] to us
[the Aḥ nāf ]; and Al-Zaidiyah from among the Shīʿa say only one [ṭalāq] is effected; and the
 M. Munir / Arab Law Quarterly 27 (2013) 29-49 37

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-Qayim

Before Ibn Taimiyah and Ibn al-Qayim, few if any major jurists vocally
and openly supported the view that three or more ṭalāq should be counted
as one. Today this view finds tremendous support among the ahl al-ḥ adīth
in India and Pakistan. However, ahl al-ḥ adīth 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., “Ṭalāq 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 ṭalāq 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 ṭalāq 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 ṭalāq] is affected.” Sarḫasī, supra note 32, at 6:58.
This is confirmed by Ḥ illī—a great Shīʿa jurist. See Nağmuddīn al-Ḥ illī, Sharāʿī al-Islām fī
Masāʾil al-Ḥ alālwa l-Ḥ arām, (ed.), Al-Siyad Ṣādiq al-Ḥ usainī (Beirut: Dār al-Qārī, 2004),
3:14. However, in another place in his book, Ḥ illī mentions two opinions, i.e., if two or
three ṭalāq are pronounced in one phrase, “then it is said: no ṭalāq is effective, and [it is also]
said: one ṭalāq is counted.” See Ḥ illī, Sharāiʿ, at 3:11.
34
Q2:229.
35
Šamshuddīn Ibn al-Qayim, Iğāthah al-Lafḥ ān min Masā’id al-Shaīṭān, (ed.) M.
Aḥmadʿ ʿIisā, (Manṣūrah: 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 Quṭbuddīn
al-Rāwandī, Fiqh al-Qurʾān, (ed.) Al-Siyad Aḥmad al-Ḥ usainī (Qum: Maṭbʿah al-Wilāiyah,
n.d.), 2:176.
36
Baḥ th Haiʾat, supra note 9, at 1:3 (1397), 153-54.
38 M. Munir / Arab Law Quarterly 27 (2013) 29-49

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 Ḥ adīth 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 Ḥ adīth used by the ‘three amounts to one’ camp is the
famous Ḥ adīth 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 Ḥ adīth (pl. aḥ adīth) given by

37
Rāwandī, supra note 35, at 2:177. He compares ṭalāq 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 ḥ ağğ] 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 ṭalāq.”, at 2:177.
38
Q2:230.
39
Baḥ th Haiʾat, supra note 9, at 154.
40
Muslim, Ṣaḥ īḥ , (ed.) M. Fuʾād ʿAbdul Bāqī, (Beirut: Dār Iḥ yāʾ al-Turāth al-ʿArabī,
n.d.), Ḥ adīth No. 1472, 2:1099; Aḥmad b. Ḥ anbal, Musnad al-Imām Aḥ mad b. Ḥ anbal,
(Beirut: Mu’sasat al-Risālāh, 2001), Ḥ adīth No. 2875, 5:61. Ibn al-Qayim and his follow-
ers consider this Ḥ adīth as their strongest argument. Ibn al-Qayim even asserts that the
15-year period in the Ḥ adīth was ijmāʿ (consensus) among the ṣaḥ āba about this issue. See
Šamsuddin Ibn al-Qayim, Zād al-Māʿd fī Hadyī Ḥ aīr al-ʿIbād, (ed.) Aḥmad ʿAlī Sulīmān
(Mansūrah: Dār al-Ğad al-Ğadīd, 2009), 4:100-101. Also see Ibn al-Qayim, supra note 35,
at 1:261.
41
Aḥmad, supra note 40, Ḥ adīth No. 2387, 4:215.
 M. Munir / Arab Law Quarterly 27 (2013) 29-49 39

ğamhūr in support of their view are not authentic. He asserts that such
Ḥ adīth are either weak or fabricated.42 Ibn Taimiyah considers the ruling
of ʿUmar (i.e., three ṭalāq 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 muḥ adith 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 ṭalāq is binding. The textual
evidence necessitates that only the ṭalāq 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 Ḥ anbalī scholars before him also consid-
ered three ṭalāq in one session to be counted as one.45 An interesting anal-
ysis of the works of Ḥ anbalī 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 Ḥ anbalī scholars, i.e., Al-Ḫ iraqī
(d. 334/945),47 Ibn al-Bannā (d. 471/1078),48 Ibn Qudāmah (d. 620/1223),49
42
Aḥmad Ibn Taimiyah, Mağmuʿ al-Fatāwā, (ed.) Al-Qāsim, ʿAbd al-Raḥmān &
Muḥammad (Riyāḍ: 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 Ḥ anbalī 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 Ḥ anbalī School.
47
ʿUmar al-Ḥ airaqī, Muḥ taṣar (Riyāḍ: Maktabat al-Māʿarif, 1988), 185.
48
Al-Hasan Ibn al-Bannā, al-Muqnīʿ fī Sharḥ Muḥ taṣar al-Ḥ airaqī (Riyāḍ: Maktabat
al-Rushd, 1994), 3:959-960.
49
Muḥammad Ibn al-Qudāmah, ʿUmdat l-Fiqh, Aḥmad Muḥammad al-Azīz (ed.),
(Beirut: al-Maktaba al-Athariyah, 2004), 105.
40 M. Munir / Arab Law Quarterly 27 (2013) 29-49

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 Ḥ anbalī scholars were split on the status of a triple ṭalāq, 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 Ḥ anbalī 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 Ḥ adīth used by the ‘three means
one’ camp.
The ğamhūr question the Ḥ adīth reported by Ibn ʿAbbās that “the ṭalāq
at the time of the Prophet (PBUH), Abū Bakr and the first two years of
khilāfat of ʿUmar . . .” and ask, what is meant by ṭalāq in this Ḥ adīth? If it
means every form of ṭalāq, then a person divorcing his wife in three suc-
cessive ṭuhr 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 Ḥ adīth is
against Ibn ʿAbbās’s other reports.54 The main points against this Ḥ adīth
are given below:

50
ʿAbdur Raḥmān al-Maqdisī, al-ʿUddah Sharḥ al-ʿUmdah (Cairo: Dār al-Ḥ adīth,
2003), 451-425.
51
Al-Majd Abū l-Barakāt, al-Muḥ arrar fī al-Fiqh (Riyāḍ: Maktabat al-Māʿarif, 2nd edn.,
1984), 2:51, 56.
52
Ibn al-Qayim, supra note 35, at 1:292.
53
ʿAlī al-Mardāwī, al-Inṣāf, (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.
 M. Munir / Arab Law Quarterly 27 (2013) 29-49 41

(1) This Ḥ adīth is narrated by Ṭāwūs,55 but is against the reports of all
other students of Ibn ʿAbbās.56 The report is not authentic.57 Ṭāwūs
is considered by the ğamhūr as a liar and fabricator of Ḥ adīth, and
attributing them to the Companions.58
(2) ʿUrwah b. al-Zubair reported that ʿĀyshah informed him that the
wife of Rifāʿa al-Quraḍī came to the Prophet (PBUH) and said,
“Messenger of Allah, Rafāʿa has divorced me thalāthān (thrice).
After him I married ʿAbdur Raḥmān b. Zubair al-Quraḍī 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 Raḥmān Ṭāwūs b. Kisān (d. 106/725). See Muḥammad
Ibn Saʿd, Ṭabaqāt al-Kubrā, (ed.) Muḥammad ʿAbdul Qādar, (Beirut: Dār al-Kutub
al-ʿIlmiyah, 1990), 5:537; Muḥammad Ibn Ismāʿīl al-Bukhārī, Al-Tārīḥ al-Kabīr (Haydera-
bad: Dāʾiratu l-Māʿrif al-Islāmiya, n.d.), 4:365; ʿAbdur Raḥmān b. Muḥammad al-Tamīmī,
al-Jarh wa l-Taʿdīl (Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 1952), 4:500; and Muḥammad b.
Aḥmad al-D̠ ahabī, 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 Ṭāwūs reports from
Ibn ʿAbbās; in others Ṭāwūs reports from Abī al-Ṣahba from Ibn ʿAbbās and in others
Abī al-Ghawzā reports from Ibn ʿAbbās. There are problems with its contents as well.
Abī al-Ṣahba 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 ṭalāq, at the time of
the Prophet . . .”. See Muslim, supra note 40, Ḥ adīth 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,
Muṣannaf, (ed.) Ḥ abībur Raḥmān al-ʿAẓamī, (Beirut: Al-Maktab al-Islāmī, 1403 AH),
Ḥ adīth No. 11336, Vol. 6, p. 392. See Abī Dāwūd Sulīmān, supra note 14, Ḥ adīth
No. 2200. In this report Ṭāwūs reports from Abī al-Ṣahbā who reports from Ibn ʿAbbās.
And ʿAbdullah, supra note 14, Ḥ adīth No. 2792, 2: 214. In the last report Abī al-Ghawzā
reports from Ibn ʿAbbās.
58
In another report, Abī al-Ṣahbā is said to have asked Ibn ʿAbbās whether he knew that
three ṭalāq, at the time of the Prophet, Abū Bakr and the early three years of ʿUmar’s Ḥ ilāfat
was considered as one? Ibn ʿAbbās affirmed this fact: “Yes, it was so”. Muslim, supra note
40, Ḥ adīth No. 1472, 2:1099. Abī al-Ṣahbā 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, Ḥ adīth
No. 1472, 2:1099.
42 M. Munir / Arab Law Quarterly 27 (2013) 29-49

consummated)”.59 By comparing this Ḥ adīth with Ḥ adīth Ṭāwūs,

there seems to be two situations: (1) that the Arabic word al-thalāth
in Ḥ adīth ʿĀyshah and Ḥ adīth Ṭāwūs 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 Ḥ adīth ʿĀyshah 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 ṭalāq 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 Ḥ adīth Ṭāwūs (ṭalāq at the time of the Prophet) does not prove
anything in this discussion. Giving the word al-thalāthan to mean
three ṭalāq on three different occasions in the Ḥ adīth reported from
ʿĀyshah and interpreting it to be three ṭalāq in one phrase (in one
setting) in the Ḥ adīth reported by Ṭāwūs cannot be accepted.
(3) The fatwā of Ibn ʿAbbās is against Ḥ adīth Ṭāwūs. Other students of
IbnʿAbbās such as Saʿūd b. Jubayr, ʿAṭā b. Abū Rabāḥ, Mujāhid,
ʿAkramah, ʿAmr b. Dīnār, Mālik b. al-Ḥ uwayrat, Muḥammad b.
Eyās b. al-Bukūr and Maʿāia b. Abū ʿAyāsh al-Anṣārī, report from
Ibn ʿAbbās that he considered three ṭalāq [in one phrase or stated
thrice in one session] as three.60
(4) Several great muḥ adīthūn have mentioned that should the Ḥ adīth
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 ṭalāq in one phrase or in three
sentences in one session was a prohibited act; was condemned by

59
Bukhārī, Ṣaḥ īḥ , Ḥ adīth No. 5260 and Muslim, supra note 40, Ḥ adīth No. 1433. The
words above are that of Bukhārī. In a similar Ḥ adīth 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, Ṣaḥ īḥ , Ḥ adīth No. 5261.
60
Baihaqī, supra note 54, Ḥ adīth No. 14982, 7:552; Saūkānī, supra note 31, Ḥ adīth
No. 2860, 6:276.
61
Ibid. Mārdīnī argues that Ṭāwūs himself stated that this Ḥ adīth is about “gyair mad
ḥ ulan bihā”. ʿAllāūdūn ʿAlī b. ʿUthmān al-Mārdīnī, Al-Ğaūhar al-Naqī ʿalā al-Baihaqī (Bei-
rut: Dār al-Fikr, n.d.), 7:331.
 M. Munir / Arab Law Quarterly 27 (2013) 29-49 43

the Prophet (PBUH); and was considered as istihzāʾ bi-kitāb allah

(mockery with God’s law). If this is so, then could the Companions
(ṣaḥ āba) 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 ṭalāq all the time and were committing this
bidʿah for fifteen years? Ṣafdar asserts that it is a very serious allega-
tion against the Companions.62
(6) Many jurists have attempted to defend this solitary Ḥ adīth from
Ibn ʿAbbās but one has to be very careful when doing this because
it concerns a matter of ḥ alāl (permitted) and ḥ arām (prohibited),
and any Ḥ adīth 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 Ḥ adīth 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 Ḥ azam who argues that “there is nothing in this Ḥ adīth
which proves that the Prophet (PBUH) treated three ṭalāq 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 Ḥ adīth 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
Ṣafdar, supra note 18, at 5:439.
63
Ṣafdar, supra note 9, at 84.
64
Abū Muḥammad ʿAlī b. Aḥmad Ibn Ḥ azm, Al-Muḥ allā bi l-Athār (Beirut: Dār al-
Fikr, n.d.), 9:392.
65
Baihaqī, supra note 54, Ḥ adīth No. 14983, 7:552. Abū Dāwūd also considers this
report of Ibn ʿAbbās as superseded. See Abū Dāwūd, supra note 14, Ḥ adīth No. 2195,
2:259.
44 M. Munir / Arab Law Quarterly 27 (2013) 29-49

(9) Maūlānā Sarfrāz Khān argues that the Ḥ adīth [the ṭalāq 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 ṭalāq in one session were considered as one. It simply
means that at that time people used to pronounce one ṭalāq instead
of three. Thereafter, if the husband wanted, he would give a sec-
ond and a third in two successive ṭuhr periods, or he would wait
until the end of the third ṭuhr period when the wife would become
free from him. This Ḥ adīth does not tell us that at that time three
ṭalāq used to be pronounced but would be counted as one.66
(10) This Ḥ adīth does not mention that three ṭalāq in one phrase or in
three phrases in one session were counted as one. It only says,
“al-ṭalāq ʿalā ʿahde rasūlullah . . .” (i.e., the ṭalāq at the time of the
Prophet) without specifying the type of ṭalāq.67
(11) Since Ṭāwūs’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 muḥ adithūn) 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 ṭalāqs in one
session will be considered as three?

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

66
This is how Imām ʿUbaīdullah b. ʿAbdul Karīm and Abū Zarʿ al-Rāzī understood this
Ḥ adīth. See Baihaqī, supra note 54, Ḥ adīth No. 14983, 7:552; and Ṣafdar, supra note 9,
at 87.
67
Abū Saʿīd Sharafuddīn Dehlvi’s criticism is the most scornful by an aḥ l al-ḥ adīth
scholar. Surprisingly, his views are reproduced in Fatāwa T̠anāiyah which is considered as
the most authentic of aḥ l al-ḥ adīth’s collection of legal edicts. See Maūlānā T̠anāullah
Amratsarī, Fatāwa T̠anāiyah, (ed.) M. Dāwūd Rāzī (Lahore: Maktaba Aṣḥāb al-Ḥ adīth,
2010), 2:216. Dehlawī was a top Indian ahl al-ḥ adīth scholar but supported the opinion of
ğamhūr on this issue.
 M. Munir / Arab Law Quarterly 27 (2013) 29-49 45

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

up below:

(1) In one version of Ḥ adīth Rukānah reported by Imām Aḥmad,68 one

of the narrators Muḥammad b. Isḥāq (other narrators are: Saʿd b.
Ibrāhīm, Dāwūd b. al-Ḥ isūn, and ʿAkramah) is not trustworthy for
Imām Nasāʾī;69 Imām Abū Ḥ āṭam describes him as daʿīf;70 Imām
Dār Quṭnī, Sulīmān Tamīmī, Hishām b. ʿUrwah, ImāmYaḥyā b.
Saʿūd al-Qaṭṭān consider him a kaḏ ḏ āb (liar);71
(2) Imām Aḥmad himself supported the view of the ğamhūr;
(3) The ğamhūr argue that Rukānah pronounced only one ṭalāq 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) Muḥmmad b. Isḥāq is considered by Imām Mālik as dağğāl (anti-
Christ) and a kaḏ ḏ āb.72 According to ʿUrwah, he had fabricated
Ḥ adīth earlier and was punished for the same.
(6) Dāwūd b. al-Ḥ isūn was accused of being a kariğite. ʿAllāma D̠ ahabī
called him a munkir al-ḥ adīth (one who denies Ḥ adīth);73
(7) ʿAkrama (mentioned in this Ḥ adīth) was also a kariğite and used to
attribute Ḥ adīth to ʿAbdullah b. ʿAbbās. In addition, Saʿīd b.
al-Muṣaib, Imām ʿAṭā and Imām Sirīn, considered him a liar.74
(8) There are authentic reports from ʿAbdullah b. ʿAbbās in which he
considers three ṭalāq in one session as valid, binding, and effective.75

68
This version is reported by Imām Aḥmad, See Imām Aḥmad, supra note 40, 1:265;
Baihaqī, supra note 54, 7:339.
69
Abū ʿAbdur Raḥmān al-Nasāʾī, al-Ḍ ʿafāʾ wa l-Matrūkīn, (Beirut: Muʾsasa al-Kutub
al-Thaqāfiyah, 1985), 211.
70
Abū Ḥ āṭam, 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 Khāṭīb Baghdādī, Tārīkh Baghdād (Beirut: Dār al-Gharb al-Islāmī, 2002),
1:223.
73
Imām Ṣufyān b. ʿEināiah says that we use to avoid his Ḥ adīth. Imām ʿAbbās Durī calls
him weak. Dhahabī, supra note 71, 3:9, 10. For more details, see Ṣafdar, 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 Ḥ adīth and the
trustworthiness or otherwise of those who narrated it from IbnʿAbbās, see Ṣafdar, supra
note 18, at 5: 435-437.
46 M. Munir / Arab Law Quarterly 27 (2013) 29-49

(9) The version of this Ḥ adīth in Abū Dāwūd does not prove that
three ṭalāq shall be counted as one because its chain has an
unknown person from Banī Abū Rāfiʿ. This is why Imām Naūaūī
described this Ḥ adīth as daʿīf (of weak authority).76 Ibn Ḥ azm
opined that a weak Ḥ adīth cannot be a proof.77 Such a weak
Ḥ adīth cannot be used to make something legal or illegal.
(10) According to authentic reports, Rukānah had pronounced ʿṭalāq
battāʾ and not triple ṭalāq.78

It can be concluded from the above criticism that the Ḥ adīth of Ibn ʿAbbās,
i.e., ṭalāq at the time of the Prophet . . ., is not authentic; secondly, it shall
not be called Ḥ adīth of the Prophet but is a narration attributed to Ibn
ʿAbbās, who himself, as reported in many other Ḥ adīth, considered three
ṭalāq in one session as valid, binding, and effective; thirdly, if it is accepted
as authentic, it does not say three ṭalāq used to be counted as one. It only
mentions that people used to pronounce one ṭalāq; fourthly, declaring
three ṭalāq as one and treating three ṭalāq 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 ṭalāq, cannot be accepted
because of its contents as well as its narrators; fifthly, Ḥ adīth Rukānah can-
not be accepted as all the narrators are very daʿīf (weak) and were known
for fabricating Ḥ adīth. In case the Ḥ adīth is authentic even then it shows
that three ṭalāq are counted as three otherwise why would the Prophet ask
Rukānah to swear that he intended one; and finally, how can daʿīf aḥ adīth

76
Yaḥyā b. Sharaf b. Ḥ usaīn al-Naūaūī, Sharḥ al-Muslim (Beirut: Dār Iḥyā al-Turāth
al-ʿArabī, 1392 AH), 1:478.
77
Ibn Ḥ azm, supra note 64, at 10:168. Khalīl Aḥmad Sahāranpūrī (d.1346 AH) argues
that according to Mustadrak, the unknown (majhūl ) man was Muḥammad b. ʿUbaidullah
b. Abū Rāfīʿ, who was very weak narrator. Khalīl Aḥmad Sahāranpūrī, Baḏl al-Majhūd,
3:69. Imām Bukhārī calls him ‘munkar al-ḥ adīth; Imām Ibn Muʿīn calls him ‘laisa bi-shīin’
(he is nothing); Abū Ḥ āṭam describes him as a weak authority and ‘munkar al-ḥ adīth’;
according to Imām Dār Quṭnī, he was ‘matrūk’; and Dhahabī says that muḥ addithūn 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 Aḥmad b. Ḥ aghr al-ʿAsqalānī, Tahḏīb
al-Tahḏīb (Haiderabad: Maktabam a’-ʿārif al-Nidhāmiyah, 1326 AH), Ḥ adīth 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.
 M. Munir / Arab Law Quarterly 27 (2013) 29-49 47

(weak reports), such as, ‘the ṭalāq at the time of the Prophet . . .’ as well as
Ḥ adīth 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 ṭalāq 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 ṭalāq 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 ṭalāq 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 ṭalāq in one session
amounting to one’ is the opinion of Rawāfiḍ (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 ḥ arām (illegal).
ʿAllāma Ḥ illī, a great Shīʿa jurist, argues that if a person uttered three ṭalāq
in one session, nothing [no ṭalāq] is affected.83 However, in another place
in his book, Ḥ illī mentions two opinions; if two or three ṭalāq are pro-
nounced in one phrase, “then it is said: no ṭalāq is affected, and [it is also]
said: one ṭalāq is counted”.84 Allāma Ḥ illī’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
Muḥammad b. Ismāʿīl al-Ṣanʿanī, Subl al-Salām Sharḥ Bulūğ al-Marām, (ed.)
M. ʿAbdul ʿAzīz al-Khaūlī (Lahore: Dār Nashr al-Kutub al-Islāmiah, n.d.), 3:175.
82
Ṣafdar, supra note 9, 49.
83
Ḥ illī, supra note 33, at 3:14. Also see Sarkhasī, supra note 32, at 6:58.
84
Ḥ illī, supra note 33, at 3:11.
48 M. Munir / Arab Law Quarterly 27 (2013) 29-49

husbands]”.85 In other words, three ṭalāq 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 ṭalāq 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 [ṭalāq] is
affected.86 Qutḅ uddin al-Rāwandī compares ṭalāq 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 ḥ ajj]
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 ṭalāq”.87According to Al-Rāwandī, “marratān means
daf ʿatān” (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 (ṣaḥ āba), 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
Ḥ anafites, Mālikites, Shāfiʿites, and the Ḥ anbalites, 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 Ẓ āhirites, the Shīʿa Imāmiyah, and many ahl al-ḥ adīth, three
pronouncements, even if intended by the husband to be three in one
85
Al-Kafi, Vol. 2, p. 178.
86
Sarḫasī, 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. Ṭalāq
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
ḥ add, which may not be implemented if there is the slightest doubt. There is no analogy
between ṭalāq, the most hated to God, and a ḥ add, the penalty for which is fixed by God.
88
Ibid.
 M. Munir / Arab Law Quarterly 27 (2013) 29-49 49

session, would amount to only one repudiation. Both camps have given
many arguments from the Qurʾān, the Sunnah and the sayings of the
Companions (ṣaḥ āba) 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 Ḥ adīth reported by Ibn ʿAbbās, i.e., ṭalāq at the time of the
Prophet . . ., however, this is not a Ḥ adīth, 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 ṭalāq in one session as three. Even if were to be accepted as an
authentic report it does not say that three ṭalāq in one session used to be
counted as one. It only mentions that people used to pronounce one ṭalāq.
The Ḥ adīth Rukānah cannot be accepted as all the narrators are daʿif (weak)
and are known for fabricating Ḥ adīth. In case the Ḥ adīth were authentic
even then it shows that three ṭalāq 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 ṭalāq at the time of the Prophet . . .”
as well as the Ḥ adīth 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
ṭalāq 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 ṭalāq because until their time ‘three amount-
ing to one’ was only attributed to the Shīʿa.