give him even more, because her remaining with him in this state is misery for both him and her, and it leads to separation. The Lawgiver forbids everything that gives rise to hatred and enmity. Thus, selling over a Muslim’s sale is forbidden lest it cause enmity; so what then of this?! The husband must therefore divorce her. The hadith concerning Thābit, may Allah be pleased with him, indicates this, for the Prophet ﷺ said: “Take back the garden and divorce her.” The basic implication of a command is that it is obligatory, and the majority’s view—that this is merely guidance—is open to question.

The view that it is obligatory is the stronger one. In al-Furūʿ, he says that some judges in his time compelled husbands to do this; and those who compelled it were guided to what is correct.

“Any wife or unrelated person whose voluntary donation is valid may validly offer it as compensation for her release, …”

His statement, “Any wife or unrelated person whose voluntary donation is valid may validly offer it as compensation for her release”: “Whose donation is valid” is a conditional clause; its condition is “is valid,” and its result is “may validly offer it.”

His statement, “is valid,” is a declarative legal ruling. As for the prescriptive ruling, it requires further detail, which will follow.

His statement, “voluntary donation”: a voluntary donation is the giving of wealth without compensation.

We must understand the difference between a voluntary donation and a transaction:

A transaction is dealing with property.

A voluntary donation is giving property without compensation. I shall give an example that clarifies this:

The guardian of an orphan may validly manage the orphan’s property, but he may not make voluntary donations from the orphan’s property; that is, he may not donate even a single piaster from the orphan’s wealth. As for managing it, he may manage all of it in the best manner.