and the condition is subsequently fulfilled, scholars disagree as to the validity of such a suspension.
If he says, “Should I have intercourse with you lawfully, you are divorced beforehand,” and then does in fact have intercourse, the divorce most certainly does not take effect.
If he makes the divorce depend on her own choice while speaking to her directly, her choice must be exercised at once; but if he stipulates it while she is absent, or if he makes it depend on the choice of a third party, the requirement of immediacy does not apply according to the sounder opinion.
When the divorce has been suspended on his own choice and he says, “I choose,” though inwardly reluctant, it nonetheless takes effect; another view says that inwardly it does not.
The choice of a young girl or boy has no effect, though some hold that the choice of a discerning minor does. He may not retract before the choice is made.
If he declares, “You are divorced three times unless Zayd chooses one divorce,” and Zayd does opt for a single divorce, no divorce takes place; another opinion holds that a single divorce falls.
If he suspends the divorce on his own act and then performs that act while forgetting the suspension or under duress, the divorce, in the predominant view, does not take effect. The same applies when he makes it depend on the act of another person who is both aware of the suspension and concerned about it; otherwise, it most certainly does take effect.
Section
If he says, “You are divorced,” while signalling with two or three fingers, the multiplicity suggested by the finger-bones is ignored. If he also says, “Like this,” two divorces fall with two fingers and three with three. Should he swear that by the gesture he meant the folded fingers, he is believed on oath.
If a male slave says to his wife, “When my master dies you are divorced twice,” and the master has already said to him, “When I die you are free,” so that the slave is emancipated upon the master’s death, the sounder view is that the wife does not become unlawful for him; he still has the right to revoke the divorce and to contract a new marriage with her before she marries another man.
If he calls one of his two wives and the other answers, and he says to the respondent, “You are divorced,” thinking she is the one he had called, the wife he actually called is not divorced, whereas—according to the sounder opinion—the one who replied is.
If he suspends one divorce on her eating a whole pomegranate and another on her eating half a pomegranate, and she eats an entire pomegranate, two divorces occur.
An oath by divorce is any suspension intended to prompt, deter, or confirm a statement. Thus, if he says, “If I swear by divorce, you are divorced,” and then says, “If you do not go out…,” or “If you go out…,” or “If the matter is not as I have said, you are divorced,” the divorce tied to the oath immediately takes effect, and each of the others takes effect if its condition is realised.
But if he says, “When the sun rises,” or “When the pilgrims arrive, you are divorced,” this is not an oath by divorce, and the divorce linked to the oath does not take effect.