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A judge’s ruling does not make the unlawful lawful or the lawful unlawful for someone who knows the true state of affairs. The judge rules only according to what is apparent—which is what he is religiously bound to do—and his ruling does not change what is actually lawful or unlawful for someone who knows the facts. Allah, Mighty and Majestic, says:
“Do not consume one another’s wealth unjustly, nor bring it before the judges so that you may knowingly consume a portion of other people’s wealth sinfully.” [al-Baqarah: 188]
The Messenger of Allah, may Allah bless him and grant him peace, said:
“I am only human, and you bring your disputes before me. Some of you may present their arguments more eloquently than others, so I rule in their favour according to what I hear. If I award anyone anything belonging by right to his brother, he must not take any of it, for I am only awarding him a piece of the Fire.”
The scholars unanimously agree on this regarding property. They differ, however, over whether a marriage bond may be dissolved or established by the apparent effect of a judicial ruling that conflicts with the actual circumstances. Mālik, may Allah have mercy on him, al-Shāfiʿī, and the majority of scholars held that property and sexual relations are alike in this respect, since all involve rights covered by the general wording of the Prophet’s statement, may Allah bless him and grant him peace: “If I award anyone anything belonging by right to his brother, he must not take any of it, for I am only awarding him a piece of the Fire.” An outward judicial ruling therefore does not make lawful anything in these matters that is actually unlawful.
Abū Yūsuf, Abū Hanīfah, and many of his followers said that this applies exclusively to property. Thus, suppose two men deliberately give false testimony that a man has divorced his wife, and the judge accepts their testimony because they appear to him to be upright—although they have deliberately lied or made a mistake. If he separates the husband and wife on the strength of their testimony, and the woman then completes her waiting period, one of the two witnesses may marry her even though he knows that his testimony was false. Since the outward ruling has made her eligible to marry, the witness and anyone else are alike in this respect. The judge’s decision and ruling have separated her from her husband and severed their marriage bond; otherwise, she would not have become lawful for another husband.
They cited the ruling on mutual imprecation as evidence. They argued that it is known that the wife secures separation from her husband only through her false oaths of imprecation: had the judge known that she was lying, he would not have separated her from her husband, but would instead have ruled that she must undergo