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 Arab Law
Quarterly
BRI LL Arab Law Quarterly27 (2013) 29-49 brill.comiaIq

Triple Talq in One Session:

An Analysis of the Opinions of Classical, Medieval,
and Modern Muslim Jurists under Islamic Law

Muhanunad Munir*
Chairmanand Associate Professor,DepartmentofLaw Faculty ofShari'ah and Law,
InternationalIslamic University, Islamabad Pakistan

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

Keywords
taldq, triple taldq, divorce, three repudiations, Muslim Family Law, Ibn Taimiyah, Ibn
al-Qayim, gamhr, Shfa, Z4hirite

* 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 N'amane 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 Qur'5n in this work are taken, unless otherwise indicated, from the English
translation by Muhammad Asad, The Message of the Qurdan, Dar al-Andalus, Redwood
Books Trowbridge, Wiltshire, UK, 1984 (reprinted, 1997).
@ Koninklijke Brill NV, Leiden, 2013 DOI: 10. 1163/15730255-12341247
30 M. Munir lArab Law Quarterly27 (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 (caldq) has the effect of the third and final repudiation
whereas Imim Bdqar, Imam Sddiq (both Shi'a Imdms), Zahirites (except
Ibn Hazam), Ibn Taimiyah, Ibn al-Qayim, several tdbi'in (Followers), and
most of the ablal-hadithin India and Pakistan consider triple talq in one
session (mailis) as a single pronouncement. The discussion in this work
will, therefore, focus on: a clarification of the position of the gambur
(majority of jurists); an analysis of the positions of Ibn Taimiyah and Ibn
al-Qayim on this issue; an overview of the position of ahlal-badithin India
and Pakistan; and a clarification of the opinions of the Shi'a Imimiyah.

2. Types of Divorce in Islamic Law

Islamic law categorizes divorce as taLiq al-sunndh (talqin accordance with
the Sunnah) and its opposite taldq al-bid'ah.' 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 sunnah divorce.2 Muslim jurists

' 'Aliaddin Abo Bakr al-Kasini, Baddi' al-Sandi (Beirut: Dar Ehia al-Turdth al-Arabi,
2000), 3:140; Muhammad b. Ahmad b. Rushd, Biddyat al-Mujrahid,trans. Imran A.K.
Nyazee (Reading: Garnet Publishing Ltd., 1994), 2:75; Muhammad b. Muflib, Al-Furi',
(Cairo: 'Alam al-Kutub, 1985), 5:370; Mansor al-Buhti, Sharb Muntaha al-Irdddt, (Bei-
rut: Dr al-Fikr, n.d.), 3:123-126; Muhammad 'Abdullah Rfpri, in M. Siddique (Ed.),
FatdwdAhli 1-Hadit,(Sargodha: Idarah lhyi' al-Sunnah al-Nabawiya, n.d.), 2:506-508.
2 Technically the different expressions for describing talq as taldq al-sunndh, taldq

al-bidah, taldq al-basanand talkq al-ibsan should not be called 'modes' or 'forms' of salq
because a aldq is a talq.These expressions only refer to the conduct of the man pronounc-
ing a taldq.
 M. Munir lArab Law Quarterly27 (2013) 29-49 31

differ regarding the effect of Pabiq al-bid'ah. Taldq al-sunndh can be further
divided into ibsan and hasan. In the ibsan form, the husband pronounces
only one talq 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 basan form of taldq is commonly misunder-
stood by most contemporary writers who believe that, in this manner of
divorce, three taldqs must be spoken during three successive or consecutive
time-periods (tuhr) when the wife is not menstruating.' This procedure is
incorrect for basan taliq because this is the minimum, not maximum, time
period in which the three separate pronouncements must be completed.'
Muslim jurists further classify a valid divorce as either bd'in (irrevocable)
or raj'i (revocable). A divorce is called bdin because the marriage has not
been consummated or because of the number of taliqpronouncements. In
the raj'idivorce, the husband possesses the right to decide over his wife's
return, without there being a choice for her in the matter, provided that

See, e.g., D.E Mulla, MuiisPrinciplesofMahomedan 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, 3rdedn., (London: Sweet
& Maxwell, 1998), 281; Alamgir Muhammad Sirajuddin, Shari'aLaw and Society: 7iadi-
tion and Change in South Asia, 2nd edn., (Karachi: Oxford University Press, 2001), 200;
J.J. Nasir, The Islamic Law ofPersonalStatus, 2nd edn., (London/DordrechtBoston: Gra-
ham & Trotman, 1990), 119; Asaf A. Faizi, Outlines ofMubammadan Law, 4thedn., (New
Delhi: Oxford University Press, 1999), 153; Asaf A. Faizi, in: Tahir Mahmud (Ed.), Out-
lines ofMuhammadan 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 andPractice (Islamabad:
Shari'ah Academy, 2006), 121.
In the hasan form, if the husband has pronounced one taldq in a tuhr, he must not
pronounce talkq 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
taldq will be counted as the second taldq. When the husband has pronounced taldq for the
second time in a tuhr, he must not pronounce raldq 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 talq. Tahir Mahmud argues
that the requirement of the next tuhr for the second and the third taldqs, 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 'Talkq, Taldq, Taldq'-JuristicRestoration of the True Islamic Law on Divorce", Inter-
nationaland 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 lArab Law Quarterly 27 (2013) 29-49

the marriage has been consummated. Thefuqahd'agreed about this because

of the words of the Exalted:

0 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, 0 man, although] thou knowest it not, after that
[first breach] God may well cause something new to come about.'

3. The dambairs Position Regarding Triple Taliq

Certain issues under this heading require a detailed discussion such as what
is triple talq? Is triple takq permissible? What is the gamhiar's position
regarding it? Is triple .aidq binding?

3.1. What Is Meant by Triple Talaq?

There is no disagreement among the jurists regarding its validity when
triple talaq 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 (maklis) within one
phrase such as "anti tdliq thaithan"(you are divorced thrice); secondly,
where divorce is uttered in three sentences in one session (maglis) such as
"antitdliq anti tdliq antimtliq" (you are divorced, you are divorced, you are
divorced). The majority of Muslim jurists agree that triple takq (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 Talaq?

If divorce is pronounced thrice in one phrase at once (i.e., "anti tdliq
thaldthan") or repeated three times in one session (i.e., "anti taliq, anti
tdliq, anti taliq"), or if divorce is uttered at three different times within one

' 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 (sahdba), Followers of the Com-
panions (tabiun), and fuqaha of the four Sunni Schools of Thought,
including the four founders and their disciples.'

3.2.1. Arguments of the Oambir

In support of their view, the gambir have presented many arguments from
the Qur'dn, the Sunnah of the Prophet (PBUH), opinions and fatdwd of
the Companions (sahaba) as well as Followers (tdbi'uin), consensus, and
analogy.
First, the Qur'dn states that " Talkq is twice; then either to retain in all
fairness, or to release nicely"! They argue that, according to the verse, if a
husband tells his wife, "anti tdliq, anti dliq" in one session then it is valid,
binding and effective. In the next verse, the Qur'an 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).'

The third repudiation mentioned in this verse may be pronounced in the

same tubr (period of purity between menstruations) in which the two were
pronounced. They argue that the Qur'in uses the conjuction 'fa' and not
the word 'thumma' (fa in *taldqahA,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 Sahnun b. Said al-Tanahi, Al-Mudafianah, (Beirut: Dar al-Sidir, n.d.), 2:68;

Muhammad b. Qudimah, Al-Mugni, (Cairo: DAr al-Hadith, 1995), 8:243; Ibn Rushd,
supra note 1, at 74; Al-Kastni, supra note 1, at 153; KamMi ibn al-Humim, Fath al-Qadir
'ald 1-Hiddyab (Cairo: Buliq, n.d.), 3:25; Ahmad b. Muhammad al-Tahawi, Sharb M'dni
al-Athar (Hyderabad: n.p., 1302 AH), 3:59; BurhAn al-Din, Al-Farghanani al-Marginani,
AI-Hiddyah, trans. Imran A.K. Nyazee (Bristol: Amal Press, 2006), 1:560.
' Q2:229.

' Q2:230.
34 M. Munir lArab Law Quarterly27 (2013) 29-49

effective, and binding, whether or not such a taldq was allowed or permis-
sible in essence.9 Similarly, the Qur'an says:

0 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."'

According to the majority, the first part of this verse is about 'ta/dqal-sunnah
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 taLiq 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."
Secondly, the gamhur have cited many Hadith from the Prophet
(PBUH), and fatdwds from the Companions and Followers to support
their point of view, as shown below: 12

1. The companion Fdtimah bint Qais was thrice-divorced by her hus-

band Abft Hafs b. Mugirah al-Mahzami 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 Rukinah b. 'Abd Yazid divorced his wife (battd)'3
in a single session, and was greatly saddened in his longing for her.

* For a detailed discussion of triple talaq, see Bahth HaiatKib4r al-'U/4md, "Hukm
al-tally al-thaLdth bi-lafzin wdbidin ft da al-kitab wa 1-sunnah", Mugallah al-Buhuth
al-I/lmiya, 1:3 (1397 AH), 28-173 (hereafter Bahth Hai'ar).Mugallahal-Buburhal-Islamiya,
1:3 (1397 AH)-a Saudi academic journal, has published the most comprehensive edition
on the issue of triple taldq to date. Also see Muhammad Sarfriz Khan Safdar, 'Umdah
al-Asdsf Idukm al-Talqdt al-Thalkth, (Gujranwala: Maktaba Safdariya, 8th edn., 2010), 52.
This is one of the best works on triple taldq in the Urdu language.
In Q65:1.
" Bahth Hai'at,supra note 9, at 148-149.
12 The gamhr give many abddith (pl. of hddith) to support their point of view but Ibn

Taimiyah and Ibn al-Qayim have criticized all of them.

B Literally, it means taldq that severs relations between a husband and a wife. The fuqabd
differed on the meaning of batd' tadq.Some argue that it means either one or three taidq.
Others bring in two taldq into it. See Safdar, supra note 9, at 61-62.
 M. Munir lArab Law Quarterly 27 (2013) 29-49 35

The Messenger of Allah asked him in which manner had he divorced

her? Rukanah 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. 4 According to some jurists and commentators, if three takq
spoken in one session are ineffective, then why would the Prophet
(PBUH) ask Rukanah to swear that he intended only one and not
three takq.'5 Safdar argues that if the word batt would not mean
that three taldq are three, then why would the Prophet (PBUH) ask
Rukdnah to swear because when metaphorical words are used for
talaq, the man's real intention assumes great significance, whether
the husband intended three or one. He further says, that the word
baud could also mean three. However, if three would be considered
as one, then the Prophet (PBUH) would never ask Rukanah to swear.
It is reported that Rukinah pronounced the second takiq at the time
of 'Umar b al-Hattib and the third at the time of 'Uthmdn b. 'Affin. 6
Therefore, this Hadith is proof that three taIdq in one session are
counted as three.17
3. The gamharcite thefatdwds of many Companions (sahdbd), Follow-
ers (tibi'fin), and Followers of the Followers (tab'tdbi'fin) to support
their point of view. Maulani Muhammad Amin Safdar, a harsh critic
of ahl al-hadith in Pakistan, has gathered forty-five such fadwds.

Thirdly, the gamhr cite ijmd' (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

" See Abfs Dawad, Sunan, (ed.) Muhammad Mahyddin, (Beirut: Al-Maktaba al-Athariya,
n.d.), H-adith No. 2206; Al-Hikim Muhammad b.'Abdullah, AI-Mustadrak alaal-Sahihain,
(ed.) Musthali 'Abdul Qidar, (Beirut: Dir al-Kutub al-Tilmiyah, 1990), Hadith No. 2808,
2:199; Al-Dirquni, Hadith No. 3978, 79, 2:39.
15 Safdar, supra note 9, at 61.

6 See Abu Diwud, supra note 14, at 1:300.

" See Safdar, supra note 9, at 61-62. Hadith Rukdnah is deliberately cited because it is
also used by the opponents to support their view. All other ahdith given by gambfir in
support of their view are severely criticized by the opponents. As explained below, the
opponents use the same Hadith to prove that three pronouncements are counted as one.
" See Muhmmad Amin Safdar, "Tin talaq afir haldLah", Hair al-Fardwd, (ed.)
Muhammad Anwar (Multan: Maktaba lmdadiya, 1999), 5: 419-433. M.A. Safdar was a
harsh critic of abl al-hadith in Pakistan and has written the most detailed criticism of their
views on talq in the above-mentioned work.
36 M Munir lArab Law Quarterly 27 (2013) 29-49

final repudiation. Scholars who have made this claim include Imim
al-Shafi'l," Abu Bakr al-Rizi, 20 Aba Bakr al-Marazi, ' Ibn al-'Arabi, 22
Al-Baji,2 Ibn Rajb, 24 Ibn 'Abd al-Barr,2''Alifiddin al-KIsani (d. 587) ,26Ibn
al-Tin, 7 Al-Subki," Ibn Hagar al-Haithami,' and Al-Dusuqi." Hanball
sources before Ibn Taimiyah suggest that there was a consensus among
them on this issue." Abfi Bakr al-Sarkhasi (d. 483), Kasini of the Hanaft
School, and Ibn al-'Arabi (d. 543) of the Maliki School, attribute the opin-
ion that triple divorce takes the effect of only one divorce to the Shi'a.3
Moreover, both these jurists mention only the views of the Shi'a 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. 3 Moreover, if there were

" Supra note 9, at 392,

2" Ibid
' Muhammad al-Martiazi, Ihtildf al-Fuqabd', Al-Samaral (ed.), (Beirut: 'Alam al-
Kutub, 1986), 134.
22 Supra note 9, at 392; Abfo Bakr M. Ibn 'Abdullah ibn 'Arabi, Abkdm al-Qur'dn, (ed.),

'Imad Zaki al-Birudi (Cairo: al-Maktaba al-Tawfiqiya, n.d.), 1: 245.

23 Bahth Hai'at,supra note 9, at
392.
24 Ibid.

1 Yusuf b. 'Abdullah Ibn 'Abdul al-Barr, al-Idf fl Fiq Abl al-Madinah, (ed.),

Muhammad Muhammad Uhayd (Riyad: Maktabah al-Riyid al-Hadithah, 1980), 2:572-

573; Muhammad b. Ahmad al-Dusfiqi, Hdhiatal-Dusuqi 'ala al-Sharh al-Kdbir, (Beirut:
Dar al-Fikr, n.d.), 2:362.
26 Al-Kisani, supra note 1, at 154.

27 Ibn Hajr al-'Asqalini, Fath al-Bari Shark Sahih al-Bukhdri, 'Abdullah b. Biz &

Muhibuddin al-Hatib (eds.), (Madinah: Maktabat al-Madinah, n.d.), 9: 363.

28 Ahmad b. Muhammad Ibn Hajr al-Haithami, Tubfar al-Muhedjft Sharh al-Minhdj,

(Beirut: Dar Ihyi al-Turath al-'Aabi, n.d.), 8:83; Samshuddin Muhammad b. Abi al-'Abbas
al-Ramli, Nidiat al-Mubtdfild Sharh al-Minhdi (Beirut: Dar al-Fikr, 1984), 7:8.
29 Ibn Hagr al-Haithami, Tuhfat al-Muhted, 8:83.

30 Al-Haithami, supra note 28, at 2:362.

' See Muhammad b. Qudamah, Al-Mulni, (ed.) Al-Sayed, Hatab & Sidiq (Cairo: Dir
al-Hadith, 1995), 10: 96-97; Abfi Ishiq Ibrahim b. 'Ali b. Yesuf a-Shirizi, Mubaddabf
1-Fiqh I-Imdm al-ShAdfi, (Cairo: n.d.), 4:287-288; Al-Duseqi, supra note 25, at 2:361-362;
Muhammad b. 'Ali al-Shaikani, Nail al-Az2.tdr, 'Isimuddin al-Sabibiti (ed.) (Cairo: Dar
al-Hadith, 1993), 8:19-20.
32 Abu Bakr Muhammad b. Ahmad al-Sarhasi, Kitab al-Mabsat, (ed.), Samir Mustafa

Rabib (Beirut: Dar thya al-Turith al-'Arabi, 2002), 6:58; Al-Kasani, supra note 1, at 153;
and Ibn 'Arabi, supra note 22, at 1: 245.
33 Sarlasi argues that if a husband divorced thrice, "three are effected [according] to us

[the AbndfJ; and Al-Zaidiyah from among the Shi'a say only one [taldq] iseffected; and the
 M. MunirlArab Law Quarterly 27 (2013) 29-49 37

disagreements among the Sunni jurists before Al-Sarkhasi and Al-Ksani,

they would have definitely mentioned them, given their arguments, and
analyzed and rebutted the same.
Finally, the last argument of the gamhar is qiyds (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 taldq should be counted
as one. Today this view finds tremendous support among the ahlal-badith
in India and Pakistan. However, ahl al-hadith 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 Shi'a scholars are also
given, where necessary.
Ibn Taimiyah and Ibn al-Qayim use the same Qurdnic verse mentioned
above, i.e., " Taladq is twice; then either to retain in all fairness, or to release
nicely',3 4 and argue that the word 'marratdn' means 'marratdn ba'da mar-
rah' (i.e., one after the other).3 1 This means, they argue, that the ta/4q 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 tal4q one, three, or one thousand times. 6 Rwandi
argues that "three repudiations are not effective when pronounced in one

Imimiya (the Twelvers] say nothing [no taldql is affected." Sarhasi, supra note 32, at 6:58.
This is confirmed by Uilli-a great Shi'a jurist. See Nagmuddin al-Hilli, Shard'i al-Islamft
Masd'ilal-Haklwa1-Hardm, (ed.), Al-Siyad Sidiq al-Husaini (Beirut: Dir al-Qari, 2004),
3:14. However, in another place in his book, Hilli mentions two opinions, i.e., if two or
three !alqare pronounced in one phrase, "then it is said: no taldq is effective, and [it is also]
said: one taldq is counted." See Hilli, Shardi',at 3:11.
14 Q2:229.
" Samshuddin Ibn al-Qayim, Igathah al-Lahan min Masd'id al-Shairdn, (ed.) M.
Ahmad' 'lisa, (Mansiirah: DMt al-Gad al-6adid, 2005), 1: 256, 269-271. According to
Rawandi (a Shi'a commentator), 'marratdn means daf'ardn'(i.e., two times). See Qutbuddin
al-Rawandi, Fiqhal-Quran,(ed.) Al-Siyad Abmad al-Husaini (Qum: Matb'ah al-Wildiyah,
n.d.), 2:176.
" Bahth Harat,supra note 9, at 1:3 (1397), 153-54.
38 M. Munir lArab Law Quarterly27 (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 Qur'anic 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 Hadith used by them in support of their view is the
one reported by 'Abdullah b. 'Abbis who said: "The divorce in the period
of the Messenger of Allah (PBUH), Abui Bakr and in the first two years of
the caliphate of 'Umar, if pronounced thrice at once was counted as one,
but 'Umar gave it effect against them".40
The second Hadith used by the 'three amounts to one camp is the
famous Hadith Rukdnah mentioned above and reproduced here. Ibn
'Abbas said: "Rukinah 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'." 4 1 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 Hadith (pl. abadith) given by

3 Rawandi, supra note 35, at 2:177. He compares ta/Aq with li'dn and says, "just like in
li'dn swearing four times is obligatory, but if four [oaths] are uttered in one phrase, it will
not be effective, and similarly, if [during the bag] seven stones are thrown together to hit
devil [a symbolic hitting of devil called rami], it will not be effective (i.e., counted as seven
times), so is [the issue of] the tlq.", at 2:177.
" Q2:230.
31 Bahth Hai'at,supra note 9, at 154.

4a Muslim, Sahb, (ed.) M. Fu'ld 'Abdul Biqi, (Beirut: Ddr Ihyd' al-Turdth al-Arabi,
n.d.), Hadith No. 1472, 2:1099; Ahmad b. Hanbal, Musnad al-Imdm Ahmad b. Hanbal,
(Beirut: Mu'sasat al-Risilh, 2001), Hadith No. 2875, 5:61. Ibn al-Qayim and his follow-
ers consider this Hadith as their strongest argument. Ibn al-Qayim even asserts that the
15-year period in the Hadith was ijmd'(consensus) among the sahdba about this issue. See
Samsuddin Ibn al-Qayim, Zdd al-Midi Hadi Hair al-'Ibdd, (ed.) Ahmad 'All Sulimin
(Mans~rah: Dar al-6ad al-Gadid, 2009), 4:100-101. Also see lbn al-Qayim, supra note 35,
at 1:261.
" Ahmad, supra note 40, Hadith No. 2387, 4:215.
 M Munir lArab Law Quarterly 27 (2013) 29-49 39

gamhir in support of their view are not authentic. He asserts that such
Hadith are either weak or fabricated.42 Ibn Taimiyah considers the ruling
of 'Umar (i.e., three taldq means three) in the nature of 'discretionary
punishments', which can be used when needed. He mentions that 'Umar'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.13 Unfortunately, Ibn Taimiyah does
not give any evidence in support of his claim (that 'Umar's ruling was dis-
cretionary in nature) and it is not possible to find any muhadith or any
jurist among the gamhrwho considers it as such. Instead, the latter always
treated it as a legal, not a political, ruling.
Ibn Taimiyah asks how the gamhar can consider triple divorce imper-
missible and yet also claim that the resultant taiq is binding. The textual
evidence necessitates that only the taldq al-sunndh 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."
Ibn Taimiyah asserts that some Hanball scholars before him also consid-
ered three talDq in one session to be counted as one. An interesting anal-
ysis of the works of Hanbali 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. 6 Out of five Hanbali scholars, i.e., Al-Hiraqi
(d. 334/945),47 Ibn al-Banna (d. 471/1078)," Ibn Qudamah (d. 620/1223),9

12 Ahmad lbn Taimiyah, Magmu' al-Fardwd, (ed.) Al-Qasim, 'Abd al-Rahmin &

Muhammad (Riyad: Dar 'Alam al-Kutub, 1991), 33:12-13.

' Ibid., 33:16-17.
4 Ibid., 24-25.
15 Ibid., 33:11.
" See Abdul Hakim Al-Matroudi, The Hanbali School ofLaw 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 Hanbali School.
1 'Umar al-Hairaqi, Mutasar (Rivid: Maktabat al-M'arif, 1988), 185.

" Al-Hasan Ibn al-Bann5, al-Muqni ft Sharb Mubtarar al-Hairaqi(Ri: Maktabat

al-Rushd, 1994), 3:959-960.
" Muhammad Ibn al-Qudamah, 'Umdat 1-Fiqh, Abmad Muhammad al-Aziz (ed.),
(Beirut: al-Maktaba al-Athariyah, 2004), 105.
40 M. Munir lArab Law Quarterly 27 (2013) 29-49

Baha' al-Din al-Maqdisi (d. 624/1227),Io and Al-Majd Abu 1-Barakdt

(d. 652/1254), Ibn Taimiyah's grandfather, only al-Majd has mentioned
that Hanbali scholars were split on the status of a triple taldq, but he did
not mention any dispute about its legal effects.' Ibn al-Qayim, Ibn Taimi-
yah's main disciple, mentions that "I don't find any Hanbali scholar [before
Ibn Taimiyahl except the grandfather of Ibn Taimiyah who supports the
view of Ibn Taimiyah".52 Even this may be going too far because Al-Mardawl
mentions that Ibn Taimiyah told him that his grandfather, Al-Majd, used
to issue secretfardwd that three divorces amounted to one only." 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 gamhir have severely criticized both the
contents as well as the narrators of the Hadith used by the 'three means
one camp.
The gamhirquestion the Hadith reported by Ibn 'Abbas that "the 'taiq
at the time of the Prophet (PBUH), Abu Bakr and the first two years of
khibifat of 'Umar..." and ask, what is meant by taldq in this Hadith? If it
means every form of taldq, 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. Abit Bakr al-Baihaqi
argues that Bukhari did not check its authenticity because this Hadith is
against Ibn 'Abbas's other reports.5 4 The main points against this Hadith
are given below:

'Abdur Rahman al-Maqdisi, al-'Uddah Sharh al-'Umdah (Cairo: Dir al-Hadith,

2003), 451-425.
5' Al-Majd Abu 1-Barakat, al-Muharrarfial-Fiqh (Riyid: Maktabat al-Mi'arif, 2nd edn.,
1984), 2:51, 56.
5 Ibn al-Qayim, supra note 35, at 1:292.

'Ali al-Mardawi, al-Indf (ed.) al-Fiqi (Beirut: M'assast al-Trrikh al-'Arabi, n.d.),
8:453-454.
1 AbO Bakr al-Baihaqi, Sunan al-Kubrd, ed. 'Ath (Beirut: Dir al-Kutub al-'llmiyah, Ist
edn. 1994), 7:337.
 M. Munir lArab Law Quarterly27 (2013) 29-49 41

(1) This Hadith is narrated by Tawus," but is against the reports of all
other students of Ibn 'Abbis. 56 The report is not authentic. 57 Tiwcjs
is considered by the gamhras a liar and fabricator of Hadith, and
attributing them to the Companions.5 1
(2) 'Urwah b. al-Zubair reported that 'Ayshah informed him that the
wife of Rifi'a al-Quradi came to the Prophet (PBUH) and said,
"Messenger of Allah, Raff'a has divorced me thalbthin (thrice).
After him I married 'Abdur Rahman b. Zubair al-Quradi who is
flaccid (i.e., impotent)." The Messenger of Allah (PBUH) said,
"Perhaps you want to return to Rafa'a? No, not until he experiences
your sweetness and you experience his (i.e., the marriage is

' His full name is Abit'Abdur Rahman TawOs b. Kisan (d. 106/725). See Muhammad
Ibn Sa'd, Tabaqdt al-Kubrd, (ed.) Muhammad 'Abdul Qddar, (Beirut: Dir al-Kutub
al-'llmiyah, 1990), 5:537; Muhammad Ibn Ismail al-Bukhir, Al- Trih al-Kabir(Haydera-
bad: Di'iratu 1-Ma'rif al-Islimiya, n.d.), 4:365; 'Abdur Rahmin b. Muhammad al-Tamimi,
al-Jarh wa 1-Ta'dil (Beirut: Dir Ihya' al-Turith al-'Arabi, 1952), 4:500; and Muhammad b.
Ahmad al-Dahabi, Siyar flam al-Nubal', (ed.) Shu'aib al-Arniath, (Beirut: Mu'sasa
al-Risilih, 3rdedn. 1985), 5:38.
51 Ibn Rushd, supra note 1, at 73.
57 The chain of its narrators is doubtful because in some narrations Tawus reports from

lbn 'Abbas; in others TIwas reports from Abi al-Sahba from Ibn 'Abbis and in others
Abi al-Ghawza reports from Ibn 'Abbas. There are problems with its contents as well.
Ab al-Sahba reports in one narration, "don't you know when a man divorced his wife
thaldthan (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 *aldq, at the time of
the Prophet...". See Muslim, supra note 40, Hadith No. 3491-3493. Also available, at
<http://www.usc.edu/schools/college/crcclengagement/resources/texts/muslim/hadith/
muslim/009.smt.html> (last visited 03/02/2011); and 'Abdur Razziq b. Humam,
Musannaf (ed.) Habibur Rahmin al-'Azami, (Beirut: Al-Maktab al-Islimi, 1403 AH),
Hadith No. 11336, Vol. 6, p. 392. See Abi Daw~id Suliman, supra note 14, Hadith
No. 2200. In this report Thwas reports from Ab al-Sahb who reports from lbn 'Abbis.
And 'Abdullah, supra note 14, Hadith No. 2792, 2: 214. In the last report Abi al-Ghawzi
reports from Ibn 'Abbis.
" In another report, Abi al-Sahbi is said to have asked Ibn 'Abbas whether he knew that
three taldq, at the time of the Prophet, Abu Bakr and the early three years of 'Umar's Hildfat
was considered as one? Ibn 'Abbis affirmed this fact: "Yes, it was so'. Muslim, supra note
40, Hadith No. 1472, 2:1099. Abi al-Sahba who is considered either weak or 'maghal'
(unknown), is reported to have asked Ibn 'Abbis: "tell me something that you hate the
most [to tell]", and Ibn 'Abbis would narrate this episode. Muslim, supranote 40, Hadith
No. 1472, 2:1099.
42 M. Munir lArab Law Quarterly27 (2013) 29-49

consummated)".5 By comparing this Hadith with Hadith pwuis,

there seems to be two situations: (1) that the Arabic word al-thalth
in Hadith'Ayshahand Iadith Tdwuis 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 Hadith'Ayshah is more
authentic as it is reported both by Imam Bukhari as well as Imam
Muslim and it must prevail. It would mean that three takq 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-thaldthan is
given the meaning of three divorces on three different occasions,
then Hadith Tiwuis (,tabiq at the time of the Prophet) does not prove
anything in this discussion. Giving the word al-thaldthan to mean
three talq on three different occasions in the Hadith reported from
'Ayshah and interpreting it to be three .takqin one phrase (in one
setting) in the Hadith reported by Twins cannot be accepted.
(3) Thefatwd of Ibn 'Abbas is against Radith Tjwtis. Other students of
Ibn'Abbas such as Sa'fid b. Jubayr, 'Ata b. Abft Rabih, Mujahid,
'Akramah, 'Amr b. Dinar, Malik b. al-Huwayrat, Muhammad b.
Eyds b. al-Bukutr and Ma'aia b. Abo 'Ayash al-Ansiri, report from
Ibn 'Abbas that he considered three talaq [in one phrase or stated
thrice in one session] as three. 0
(4) Several great muhadithun have mentioned that should the Hadith
be authentic this is about a 'gyair mad khulan bihd' woman (with
whom the marriage has not yet been consummated)."
(5) It is argued that pronouncing three 'taliqin one phrase or in three
sentences in one session was a prohibited act; was condemned by

* BukhAri, Saibh, Hadith No. 5260 and Muslim, supranote 40, Hadith No. 1433. The
words above are that of Bukhdri. In a similar Hadith narrated by BukhAri it is related from
'Ayshah 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." Bukhiri, Sahih, Hadith No. 5261.
* Baihaqi, supra note 54, Hadith No. 14982, 7:552; Saikini, supra note 31, Hadith
No. 2860, 6:276.
" Ibid. Mardini argues that Iawis himself stated that this Hadith is about "gyair mad
hulan bihd". 'Allifidfin 'Ali b.'Uthmin al-Mdrdini, Al-6afiharal-Naqi'aldal-Baihaqi(Bei-
rut: Dar al-Fikr, n.d.), 7:331.
 M. Munir lArab Law Quarterly27 (2013) 29-49 43

the Prophet (PBUH); and was considered as istihza' bi-kitdb allah

(mockery with God's law). If this is so, then could the Companions
(sahdha) dare to carry out this illegal act (three divorces in one
phrase or three phrases in one session) at the time of the Prophet,
Abi Bakr, and in the beginning of 'Umar's rule? Were the Compan-
ions pronouncing bid'i taldq all the time and were committing this
bid'ah 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 Hadith from
Ibn 'Abbas but one has to be very careful when doing this because
it concerns a matter of baldl (permitted) and hardm (prohibited),
and any Hadith which is not even acceptable to its reporter cannot
be accepted in haste.
(7) Mofldni Sarfriz Khan 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 Hadith is neither the saying nor the act of the Prophet, then
why should it be raised to the status of a textual authority?3 He
quotes Ibn Hazam who argues that "there is nothing in this Hadith
which proves that the Prophet (PBUH) treated three talq 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."6
(8) It is very clear that this Hadith is not the Sunnah of the Prophet
(PBUH), i.e., part of his sayings or acts or something tacitly
approved by him. Baihaqi quotes from Imam Shafi that this report
seems to be abrogated because it is not possible that he would give
fatwd against it.65

62Safdar, supra note 18, at 5:439.

(13 Safdar, supra note 9, at 84.
64 Abfi Muhammad 'All b. Ahmad Ibn Hazm, Al-Muhalid bi I-Athr (Beirut: Dir al-
Fikr, n.d.), 9:392.
65 Baihaqi, supra note 54, Hadith No. 14983, 7:552. Abai Dawad also considers this
report of Ibn 'Abbis as superseded. See Abi Diwisd, supra note 14, Hadith No. 2195,
2:259.
44 44. Munir/Arab Law Quarterly27 (2013) 29-49

(9) Madlini Sarfraz Khan argues that the Hadith [the talkq at the
time of the Prophet (PBUH), Abli Bakr and the first two years
of the khibifat of 'Umar, were considered as one] does not mean
that three taLdq in one session were considered as one. It simply
means that at that time people used to pronounce one taldq instead
of three. Thereafter, if the husband wanted, he would give a sec-
ond and a third in two successive *tuhrperiods, or he would wait
until the end of the third tuhr period when the wife would become
free from him. This Hadith does not tell us that at that time three
taiq used to be pronounced but would be counted as one. 6
(10) This Hadith does not mention that three taldq in one phrase or in
three phrases in one session were counted as one. It only says,
"al-rabIq 'ald 'ahde rasilullah..."(i.e., the taldq at the time of the
Prophet) without specifying the type of taliq.67
(11) Since Tawus'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 mubadithan)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
'Umar allegedly innovated the rule, i.e., that three tabdqs in one
session will be considered as three?

The gamhr have criticized both the contents as well as the narrators of
HadithRukdnah despite the fact that some of them use it to support their
point ofview. This Hadith is quoted by Imim Ahmad b. Hanbal in his Mus-
nadand its narrators in the chain are Sa'd b. Ibrahim from Muhammad b.
Ishaq from Diwud b. al-Hisin from 'Akramah from 'Abdullah b. 'Abbis.
Since the opponents have used this Hadith as a proof for their point of
view, the tamhir treat it as a shdd (exception) and severely criticize all

" This is how Imim 'Ubaidullah b.'Abdul Karim and Ab Zar' al-Razi understood this
Hadith. See Baihaqi, supra note 54, Hadith No. 14983, 7:552; and Safdar, supra note 9,
at 87.
Aba Said Sharafuddin Dehlvi's criticism is the most scornful by an ah al-badith
scholar. Surprisingly, his views are reproduced in Fatdwa Tandiyah which is considered as
the most authentic of ahl al-badith's collection of legal edicts. See Ma0lina Tanaullah
Amratsari, Fatdwa Tandiyah, (ed.) M. Dawfid Rizi (Lahore: Maktaba Ashib al-Hadith,
2010), 2:216. Dehlawi was a top Indian ahl al-hadithscholar but supported the opinion of
gamhir on this issue.
 M. Munir /Arab Law Quarterly27 (2013) 29-49 45

the narrators except 'Abdullah b. 'Abbas. Their main criticism is summed

up below:

(1) In one version of Iadith Rukdnah reported by Imam Ahmad,ss one

of the narrators Muhammad b. Ishiq (other narrators are: Sa'd b.
Ibrahim, Diwid b. al-Hisin, and 'Akramah) is not trustworthy for
Imam Nasi'i;69 Imam Abi Hatam describes him as da'ifo Imam
Dar Qutni, Sulimin Tamimi, Hisham b. 'Urwah, ImimYahy& b.
Sa'ujd al-Qattan consider him a kadldb (liar);"
(2) Imam Ahmad himself supported the view of the gamhr;
(3) The jamhir argue that Rukinah pronounced only one taldq and
not three and this narration was supported by Rukinah's family;
(4) It is reported that Said b. Ibrahim was a singer and thereby his nar-
ration cannot be accepted;
(5) Muhmmad b. Ishliq is considered by Imim Malik as dagIl (anti-
Christ) and a kaddb.72 According to 'Urwah, he had fabricated
Hadith earlier and was punished for the same.
(6) Ddwaid b. al-Hisain was accused of being a kariite.'Allama Dahabi
called him a munkir al-hadith(one who denies Hadith);7 1
(7) 'Akrama (mentioned in this Hadith) was also a karikite and used to
attribute Hadith to 'Abdullah b. 'Abbas. In addition, Said b.
al-Musaib, Imim 'Ata and Imam Sirin, considered him a liar.74
(8) There are authentic reports from 'Abdullah b. 'Abbas in which he
considers three taldq in one session as valid, binding, and effective.7 1

* This version is reported by Imam Ahmad, See Imim Ahmad, supra note 40, 1:265;
Baihaqi, supra note 54, 7:339.
"' Abu 'Abdur Rahmin al-Nasa'i, al-D'afd' wa 1-Matrukin, (Beirut: Mu'sasa al-Kutub
al-Thaqdfiyah, 1985), 211.
70 Ab Hatam, Kidb 1-Tal, 1:433.
Samshuddin al-Dhahabi, Mizan al-'litidilft Naqd al-rigdl (Beirut: Dir al-Kutub
al-'llmiyah, 1995), 3:21.
7 Abi Bakr Khitib Baghdadi, Tdrikh Baghddd (Beirut: Dir al-Gharb al-Islimi, 2002),

1:223.
71 Imim Sulyan b. 'Eindiah says that we use to avoid his Hadith. Imim 'Abbas Duri calls

him weak. Dhahabi, supra note 71, 3:9, 10. For more details, see Safdar, supra note 9, at
109-110.
7 See Dhahabi, supra note 71, 3: 96.

75 For an interesting discussion of the quality of the above-mentioned Hadith and the
trustworthiness or otherwise of those who narrated it from Ibn'Abbis, see Safdar, supra
note 18, at 5: 435-437.
46 M. Munir /Arab Law Quarterly27 (2013) 29-49

(9) The version of this Hadith in Abfi Dawid does not prove that
three *tabiqshall be counted as one because its chain has an
unknown person from Bani Abfi Rdfi'. This is why Imim Naiai
described this Hadith as da'if (of weak authority) 6 Ibn Hazm
opined that a weak Hadith cannot be a proof." Such a weak
Hadith cannot be used to make something legal or illegal.
(10) According to authentic reports, Rukinah had pronounced '.takq
8
battd' and not triple talq.1

It can be concluded from the above criticism that the Hadith of Ibn 'Abbis,
i.e., talaq at the time of the Prophet..., is not authentic; secondly, it shall
not be called Hadith of the Prophet but is a narration attributed to Ibn
'Abbiis, who himself, as reported in many other Hadith, considered three
taldq in one session as valid, binding, and effective; thirdly, if it is accepted
as authentic, it does not say three raliq used to be counted as one. It only
mentions that people used to pronounce one taldq; fourthly, declaring
three taldq as one and treating three talaq of 'gyair mad khulan bihd'
(woman with whom the marriage has not been consummated) to be hav-
ing the same legal effect as all other forms of takq, cannot be accepted
because of its contents as well as its narrators; fifthly, lfadith Rukdnah can-
not be accepted as all the narrators are very da'if(weak) and were known
for fabricating Hadith. In case the Hadith is authentic even then it shows
that three ta/dq are counted as three otherwise why would the Prophet ask
Rukanah to swear that he intended one; and finally, how can da'ifahadith

76 Yalbyd b. Sharaf b. Husain al-Na~aiil, Sharh al-Muslim (Beirut: Dir Ilhy al-Turith
al-'Arabi, 1392 AH), 1:478.
" Ibn Hazm, supra note 64, at 10:168. Khalil Ahmad Saharanpari (d.1346 AH) argues
that according to Mustadrak, the unknown (majhal) man was Muhammad b. 'Ubaidullah
b. Aba Riff, who was very weak narrator. Khalil Ahmad Sahiraipari, Badl al-Majhrid,
3:69. Imam Bukhari calls him 'munkar al-hadith;Imam lbn Mu'in calls him 'laisa bi-shrin'
(he is nothing); Abfi Hitam describes him as a weak authority and 'munkar al-hadith';
according to lmim Da.r Qutni, he was'matrak'; and Dhahabi says that muhaddithan con-
sider him weak and that he is a very weak narrator. See Dhahabi, supra note 71, 3:593, 555.
Ibn 'Addi describes him as a Shi'a from Kufa. See Ahmad b. Haghr al-'Asqalini, Tabdib
al-Tabdib (Haiderabad: Maktaban a'-'arif al-Nidhimiyah, 1326 AH), Hadith No. 2849,
6:269.
" Ab Diwid, supranote 14, at 1:301; Baihaqi, supra note 54, 7:339; Shafikani, supra
note 60, 6:246. According to Naltami, some narrators thought 'band' to be three and, there-
fore, use the word 'thalitha' (three) mistakenly. Narnaii, supra note 76, 1:478.
 M. Munir lArab Law Quarterly 27 (2013) 29-49 47

(weak reports), such as, 'the ta/q at the time of the Prophet...' as well as
11adith Rukinah 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 .talqin one session are counted as one?
According to Ibn al-Qayim, a Mufti at the time of Ibn Taimiyah issued a
fatwd saying that if anyone asserted that three taldq in one session would
be counted as one, he would become an infidel (kdfir) and an apostate
(murtad).9 It is this fatwd that infuriated Ibn Taimiyah and a result he
challenged it. Ibn al-Qayim says, that "some people have issued a fatwd
declaring all those who oppose his point of view (i.e., three means three) as
murtad and kdfir".8 o Both Ibn Taimiyah and Ibn al-Qayim were severely
punished after they had rendered theirfatwd that three taliqin one session
means one.' Ibn Taimiyah was not even supported by some of his disci-
ples. Shamshuddin al-Dhahabi, a student of Ibn Taimiyah's, disagreed with
him on this issue because until that time it was only the opinion of the
Shi'a School of Thought.82 As discussed above, probably this is the reason
why Sarkhasi and Al-Kasani mention that 'three taldq in one session
amounting to one' is the opinion of Rawifid (Shi'a).

5. Position of the Shi'a Imimiyah

The position of the Shi'a Imdmiyah has already been discussed briefly.
They consider three pronouncements in one session as harmm (illegal).
'Allama Hilli, a great Shi'a jurist, argues that if a person uttered three ta/q
in one session, nothing [no taldq] is affected.8 3 However, in another place
in his book, Hilli mentions two opinions; if two or three talaq are pro-
nounced in one phrase, "then it is said: no taldq is affected, and [it is also]
said: one.taldq is counted"." Allama Hilli's assertion that there is a second
opinion in the school is important. According to the leading Shi'a Imdm,
Abit Ja'far, "avoid marrying women who are divorced three times in one
session because they have husbands [still married to their previous

" Ibn al-Qayim, supra note 35, at 1:292, 294.

" Ibid.
" Muhammad b. Isma1l al-San'ani, Subl al-Salam Sharh Bulig al-Maram, (ed.)
M. 'Abdul 'Aziz al-Khaili (Lahore: Dar Nashr al-Kutub al-Islimiah, n.d.), 3:175.
" Safdar, supranote 9, 49.
" Hilli, supra note 33, at 3:14. Also see Sarkhasi, supra note 32, at 6:58.
" Hhill, supra note 33, at 3:11.
48 M. MunirlArab Law Quarterly27 (2013) 29-49

husbands]".1 In other words, three *taliqin one session amounts to one

only and the husband can revoke it if he wants. Thus, there are two opin-
ions within the Shi'a Imimiyah School of Thought. According to one view,
three taldq in one session amounts to one and according to the second
view, nothing will be affected.
According to the Zaidiyah from among the Shi'a, only one taldql is
affected." Qutbuddin al-Rawandi compares talq with li'dn and says, "just
like in li'dn swearing four times is obligatory, but if four [oaths] are uttered
in one phrase, it will not be effective, and similarly, if [during the hayi]
seven stones are thrown together to hit the devil [a symbolic hitting of
devil called rami], it will not be effective (i.e., counted as seven times), so
is [the issue of] the taliq"."According to Al-Rawandi, "marratdn means
dafardn" (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 (sabdba), Followers of
the Companions (tabi'un), those who came after them, and thefuqahd 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, Milikites, Shifi'ites, 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 Zihirites, the Shi'a Imimiyah, and many ahl al-badith,three
pronouncements, even if intended by the husband to be three in one

" Al-Kafi, Vol. 2, p. 178.

6 Sarhasi, supra note 32, at 6:58.
R
Juwandi, supra note, 36, at 2:177. Ibn al-Qayim gives the same argument. See Ibn
al-Qayim, supra note 35, at 1: 301. However, rami or the symbolic stoning of devil is a
worship and the thrower has to recite'Allah 0 Akbar (God is great) with every stone. Taldq
on the other hand is the most hated thing to God and the analogy of worship over a hated
thing is wrong. Similarly, Iirn (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 taldq, the most hated to God, and a /add, the penalty for which is fixed by God.
x* Ibid.
 M. Munir lArab Law Quarterly 27 (2013) 29-49 49

session, would amount to only one repudiation. Both camps have given
many arguments from the Qur'in, the Sunnah and the sayings of the
Companions (sahdba) 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 Hadith reported by Ibn 'Abbis, i.e., tabiq at the time of the
Prophet..., however, this is not a Hadith, as it was only a report by Ibn
'Abbis, who did not attribute it to the Prophet (PBUH), neither was it the
practice of the Prophet (PBUH) nor his approval. Ibn 'Abbas himself con-
sidered three ta/4q in one session as three. Even if were to be accepted as an
authentic report it does not say that three talaq in one session used to be
counted as one. It only mentions that people used to pronounce one taldq.
The Hadith Rukinah cannot be accepted as all the narrators are da'if(weak)
and are known for fabricating Hadith. In case the Hadith were authentic
even then it shows that three taliq are counted as three otherwise why
would the Prophet ask Rukinah to swear that he had intended only one
and not three. Weak reports such as, "the taliqat the time ofthe Prophet..."
as well as the Hadith Rukdnah 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 jamhur's position is that a Mufti in their
times had issued afatwd stating that anyone supporting the view that three
talq amounted to one, was an infidel and an apostate. Ibn Taimiyah and
Ibn al-Qayim started a campaign against thatfatwa and both were severely
punished for their position on taliqbecause until their time 'three amount-
ing to one' was only attributed to the Shi'a.