Those who regard the husband as the determining factor say: if the husband is a slave, his divorce becomes irrevocable at the second pronouncement, whether his wife is free or enslaved. This is the view of Mālik, al-Shāfiʿī, and, among the Companions, ʿUthmān ibn ʿAffān, Zayd ibn Thābit, and Ibn ʿAbbās—despite the disagreement transmitted from him, the more widely reported opinion is the one just mentioned.

Others maintain that the ruling is tied to the wife. Thus, if the wife is a slave, her divorce becomes irrevocable at the second pronouncement, regardless of whether the husband is free or a slave. Among the Companions who held this opinion are ʿAlī and Ibn Masʿūd; among the later jurists, Abū Ḥanīfah and others.

A still rarer view, more unusual than the two preceding, is that the ruling follows whichever of the spouses is enslaved. This was stated by ʿUthmān al-Battī and others, and is also reported from Ibn ʿUmar.

The source of this disagreement lies in the question: Does the decisive factor here stem from the woman’s slave status or the man’s?

Whoever says the decisive factor belongs to the one who holds the right of divorce concludes that the ruling is determined by men. Whoever says it belongs to the party upon whom the divorce falls regards it as one of the rulings attached to the divorced woman and therefore compares it to the waiting period (ʿiddah). All are agreed that the waiting period is determined by women—that is, its reduction follows the wife’s slave status.

The first group cite as evidence a report transmitted from Ibn ʿAbbās, raised to the Prophet—peace and blessings be upon him—who said:

“Divorce is in the hands of men, and the waiting period is for women.”

Yet this ḥadīth is not authenticated in the canonical collections.

Those who take into account whichever of the two is enslaved reason that the operative cause is simply slavery itself; neither maleness nor femaleness, when combined with slavery, plays any additional role.

Issue Three

As for the very principle that slavery affects the number of divorces required for an irrevocable separation, some have claimed it to be a point of consensus. Abū Muḥammad Ibn Ḥazm and a group of Ẓāhirī scholars, however, dissent, holding that free persons and slaves are equal in this respect.

The cause of the dispute is the tension between the apparent wording of the texts and analogical reasoning (qiyās). The majority adopt the reduction by analogy, likening the divorces of slaves to the prescribed limits (ḥudūd) established for them, and all agree that slavery reduces the prescribed penal limits.

The Ẓāhirīs, on the other hand, proceed from the principle that in legal obligations the slave’s ruling is identical to that of the free person unless explicit evidence dictates otherwise—and for them evidence must be a clear text from the Qur’an or Sunnah. Because they found no sound, transmitted proof, they deemed the slave to remain under the general rule. They also consider the analogy between divorce and penal limits unsound: the reduction of a ḥadd is meant as a concession to the slave on account of his diminished status, and because indecency is not deemed as reprehensible from him as from a free person. By contrast, reducing the number of divorces is a matter of added severity, for making the prohibition operative after two pronouncements is harsher than after three, given the regret that may ensue. The Law, they argue, has opted for the middle course: if revocation were always possible, the wife would suffer hardship and distress, while if final separation occurred after a single pronouncement, the husband would be afflicted by remorse and find the matter unduly difficult. Through this balanced legislation Allah has combined both interests.

For that reason, we hold—and Allah knows best—that anyone who considers three divorces pronounced at once to be binding has in fact undermined the wisdom inherent in this divinely ordained Sunnah.