Chapter: Doubt Concerning Divorce

Whoever doubts whether he has divorced [his wife], or whether its condition has been fulfilled, is not bound by it.

His statement, “Doubt concerning divorce,” means: Did he effect it? Has its condition occurred? Has the specified number occurred? Thus, doubt involves three matters: whether he effected it or not; whether its condition occurred or did not occur; and whether the number occurred or not.

No consideration is given to doubt concerning divorce, because the basic presumption is that the marriage remains intact. The evidence for this is the hadith of Abdullah ibn Zayd, may Allah be pleased with him, concerning a man who imagines that he has sensed something during the prayer. The Prophet, peace and blessings be upon him, said: “He should not leave until he hears a sound or finds an odor.” (1) The basic presumption, therefore, is that his state of purity remains unless there is evidence to the contrary, because he was initially certain of his purity and then doubted whether he had invalidated it. Doubt does not remove certainty. This proof is the foundational principle in this chapter.

As for the rationale: the basic presumption is that what exists remains as it was, that no change has taken place, and that matters remain as they are. Hence Allah, Exalted is He, says:

“And when you deliver their property to them, bring witnesses against them.” [al-Nisa 4:6]

For if you did not bring witnesses, you would remain liable for the property, since the basic presumption is that it remains in your possession and has not been delivered. Thus, we have one foundational proof from the sunnah and two legal maxims: “The basic presumption is that what exists remains as it was.” So long as the marriage exists, the presumption is that it continues. The second is: “Certainty is removed only by certainty.” On this basis, the author says: