wives whose marriages had been consummated. The fourth opinion is that the consolatory gift is more binding for a woman divorced before consummation whose dowry had not been specified. This is because Allah, Exalted is He, expressly prescribed it for her in His Book through a command, and a command entails obligation. He expressly mentioned giving it to a woman whose marriage had been consummated only when the Prophet ﷺ offered his wives a choice. That ruling applied specifically to the Prophet, not to other believers, as demonstrated by their consensus that no man is obliged to offer his wife such a choice. Her entitlement to the gift otherwise rests only on the apparent generality of His words, “And divorced women.” What is established through the apparent sense and general scope of a text is not equivalent to what is expressly prescribed by a command entailing obligation. Each of these opinions has some justification, but the clearest and soundest is that held by Mālik and all his followers.

Section

If we hold that the consolatory gift serves to comfort a woman upon separation from her husband, then no such gift is due in any separation she chooses without the husband having given cause for it. Examples include a woman who chooses separation because her husband is impotent, afflicted with leprosy, or insane, and an enslaved woman who is freed while married to an enslaved man and chooses to leave him. Nor is a consolatory gift due in any annulled marriage. This was stated by Ibn al-Qāsim. Ibn al-Mawwāz said, “If it is annulled [without divorce].” The apparent meaning of Ibn al-Qāsim’s statement is that no consolatory gift is due, whether the marriage is annulled before divorce—with or without a pronouncement of divorce—or the husband himself divorces her before the annulment.

There is disagreement concerning a woman delegated authority to divorce herself and one offered the choice of remaining married or separating. Ibn Khuwayz Mindād said that she is not entitled to a consolatory gift because she has chosen divorce. It is clear that a woman who chooses separation from her husband, without distress or sorrow over it, has no need for him to console her or soothe her feelings. Ibn Wahb, however, reported from Mālik that she is entitled to the gift. The reasoning is that, in both cases, the divorce ultimately proceeds from the husband who placed the decision in her hands. She may feel ashamed to choose him after he has offered her separation, and so choose to leave even though she dislikes doing so and wishes to remain with her husband.

As for women who obtain separation through khulʿ (compensated divorce), mubāraʾa (mutual release), or a negotiated settlement, there is agreement that they are not entitled to a consolatory gift. They desired separation from their husbands and purchased it through what they gave them, so they have no need of consolation. Likewise, a woman separated through mutual oaths of imprecation is not entitled to a consolatory gift.