The majority of jurists maintain that choice (takhyīr) and empowerment (tamlīk) have one and the same legal effect, for ordinary linguistic usage dictates that whenever a person vests someone with control over a matter—allowing him either to act or to refrain—he has in fact given him the option.

Mālik, however, considers the husband’s words to his wife, “Choose me” or “Choose yourself,” to be, in legal parlance, an explicit indication of final separation, drawing on the Prophet’s—peace and blessings be upon him—offering his wives the option, for the meaning understood from that wording was precisely separation. Hence Mālik holds that if, in a case of tamlīk, the husband later alleges he did not intend divorce, his claim is rejected, because the expression plainly transfers the power of divorce to her.

Al-Shāfiʿī, by contrast, since he does not regard the wording as an unequivocal text, makes the ruling hinge on the husband’s intention.

Thus the crux of the dispute lies in whether priority should be given to the apparent wording or to the alleged intent; al-Shāfiʿī applies the same reasoning to takhyīr.

All agree, nevertheless, that the husband may contest the number of divorces when the formula is one of tamlīk, because that wording conveys no definite indication—let alone an explicit one—of a particular tally.

Mālik and al-Shāfiʿī further hold that if, under tamlīk, the wife pronounces a single divorce upon herself, it is revocable, since divorce is to be interpreted according to its legally recognized form, namely the divorce of the Sunnah. Abū Ḥanīfah, however, rules that it is irrevocable, arguing that if the husband retained the right to take her back, the tamlīk she sought—and the purpose he intended—would be futile.

Those who allow the wife, under tamlīk, to pronounce three divorces and deny the husband the right to dispute the number reason that tamlīk, in their view, means transferring everything the husband possessed of the power of divorce into the wife’s hand, leaving her free to decide whatever number she wishes.

Conversely, those who restrict tamlīk—or choice—to a single pronouncement do so because that is the minimum to which the term “divorce” applies, and as a precaution in favor of men; for the rationale behind placing the power of divorce in men’s hands rather than women’s is women’s lesser discernment, the predominance of desire, and the likelihood of ill conduct.

The majority of scholars hold that if the woman chooses her husband, no divorce takes place, in light of the earlier report from ʿĀʾishah. Al-Ḥasan al-Baṣrī is reported to have said that if she chooses her husband, one divorce occurs, but if she chooses herself, it counts as three.

Accordingly, three points of disagreement emerge in this issue:

1. That neither formula effects a divorce at all;
2. That they do produce a separation between the spouses;
3. That choice and tamlīk differ regarding what is thereby placed in the wife’s control—namely, that choice grants final separation, whereas tamlīk grants less than that. If one adopts final separation, some say she controls only one pronouncement, others all three. If she controls but one, some deem it revocable, others irrevocable.

As for the legal status of the words the wife uses in responding to takhyīr or tamlīk, this is governed by the same rules that apply to divorce formulas in general—whether explicit, allusive, or ambiguous; the details will follow in the forthcoming discussion of divorce terminology.