you?’” Both ‘Alī ibn Abī Tālib and ‘Umar ibn al-Khattāb—may Allah be pleased with them both—would rebuke anyone who divorced his wife three times in a single utterance. This is also Mālik’s position.
Section
Likewise, the form of divorce known as mubāra’a (mutual release), as practised in our land and used by people to divorce their wives, is an innovated form of divorce that no one should undertake. It is permissible only when it takes the form of khul‘ (divorce in exchange for compensation): the wife gives something from her property, relinquishes a right owed to her, or undertakes to bear the expenses of pregnancy, breastfeeding, or something similar that may lawfully serve as compensation for such a divorce. This must occur in the circumstances in which Allah—Blessed and Exalted is He—has permitted it: when the defiance is on the wife’s part and the husband has done nothing to harm her in the matter. Allah—Mighty and Majestic—says:
“If you fear that they will not keep within Allah’s limits, there is no blame upon either of them concerning what she gives to secure her release.” [Al-Baqara: 229]
He also says:
“But if they willingly give up to you anything of it, then take it in satisfaction and ease.” [Al-Nisā’: 4]
Thus, if a man’s wife defies him or commits adultery or some other offence, he may not mistreat her until she pays to secure her release from him. Nor can he justify doing so by invoking the words of Allah—Mighty and Majestic:
“Do not constrain them in order to take back part of what you have given them, unless they commit a clear indecency.” [Al-Nisā’: 19]
For the exception here is disjunctive, not a qualification of the preceding prohibition. The verse means: Do not constrain them in order to take back part of what you have given them; however, if they commit an indecency, you may accept whatever they willingly offer to secure their release. Here, “clear indecency” means that she assails his honour, abuses him verbally, or disobeys his commands. This is because every indecency described in the Quran as “clear” concerns speech, whereas every unqualified mention of indecency, without its being described as “clear,” refers to unlawful sexual intercourse.
Some scholars have understood the exception as qualifying the preceding prohibition, and have therefore permitted a man whose wife defies him to make life difficult for her until she pays to secure her release. Others have understood “clear indecency” here to mean adultery and have likewise treated the exception as qualifying the prohibition. They have therefore permitted a man who discovers that his wife has committed adultery to retain her in marriage and make life difficult for her until she pays to secure her release, citing the words of Allah—Mighty and Majestic:
“Do not constrain them in order to take back part of what you have given them, unless they commit a clear indecency.” [Al-Nisā’: 19]