As for Mālik, he regarded the command concerning the consolatory gift (muṭʿah) as merely recommended, basing himself on the Almighty’s words at the end of the verse:

“as a rightful duty upon those who excel in doing good” (al-Baqarah 2:236).

In other words, it is incumbent upon people who act graciously and adorn themselves with virtue; and whatever belongs to the realm of generosity and beneficence is not strictly obligatory.

The jurists then disagreed about a divorced woman who is still in her waiting period: is she obliged to observe iḥdād (the abstention from adornment observed during mourning)? Mālik maintained that she is not required to do so.

Chapter: The Appointment of Two Arbiters

The scholars are unanimously agreed that it is permissible to appoint two arbiters when discord arises between the spouses and their respective circumstances—namely, which of them is in the right—are unclear, in light of the Almighty’s statement:

“If you fear a breach between them, then appoint an arbiter from his family and an arbiter from hers” (al-Nisāʾ 4:35).

They likewise concur that the two arbiters should come from the families of the husband and the wife—one on his side, the other on hers—unless no suitable relative is available, in which case outsiders may be chosen. They also agree that if the arbiters disagree, their ruling carries no weight, whereas their decision to reconcile the couple is binding even without any mandate from the spouses.

They differed, however, over whether the arbiters may dissolve the marriage if both of them deem separation necessary: must they obtain the husband’s permission, or may they act without it?

Mālik and his followers held that the arbiters’ verdict—whether to separate or to reconcile—is effective without any prior authorization from either spouse. Al-Shāfiʿī, Abū Ḥanīfah, and their companions responded that the arbiters have no authority to pronounce separation unless the husband explicitly delegates that power to them.

Mālik’s proof is the report transmitted from ʿAlī ibn Abī Ṭālib, in which he said about the two arbiters: “It is up to them to separate the spouses or to keep them together.” Al-Shāfiʿī and Abū Ḥanīfah adduce the foundational rule that the right of divorce belongs solely to the husband or to someone he appoints.

Within the Mālikī school itself there is a difference regarding two arbiters who pronounce triple divorce: does that count as just one or as three? Abū al-Qāsim held that it counts as one, whereas Ashhab and al-Mughīrah said it counts as three if the arbiters utter all three.

The underlying principle is that divorce remains in the husband’s hand unless evidence proves otherwise. Al-Shāfiʿī and Abū Ḥanīfah further cite what is related in that same report of ʿAlī: he said to the arbiters, “Do you know what is incumbent upon you? If you see fit to reconcile, reconcile; and if you see fit to separate, separate.” The woman replied, “I consent to the Book of God and to whatever it decrees for me and against me.” The man said, “As for separation, no.” ʿAlī then declared, “By God, you will not leave until you acknowledge what the woman has acknowledged.” They argue that this shows he required the husband’s consent.

Mālik, however, likens the arbiters to a ruler, and according to Mālik a ruler may pronounce divorce to prevent harm once that harm has been established.