is recognized as proper in the Sacred Law, such as fulfilling the rights of marriage and treating her well. Or, “release her with good treatment,” meaning that he leaves her after the divorce until her waiting period has ended. It was also said that it means the third pronouncement of divorce.
Allah Most High says: “Or release her with good treatment.” The explicit terms by which divorce takes effect without intention are three: divorce, separation, and release. According to Abu Hanifah, however, the only explicit term is the word “divorce.” The general ruling is that if a free man divorces his wife once or twice after consummating the marriage, he may take her back without her consent so long as she remains in her waiting period. If he does not take her back before her waiting period expires, or if he divorces her before consummation, or separates from her by khulʿ, she is not lawful for him except through a new marriage contract with her consent and the consent of her guardian. If he divorces her three times, she is not lawful for him unless she marries another husband. As for an enslaved man, if he has a wife and divorces her twice, she is not lawful for him except after marriage to another husband.
The scholars differed when one of the spouses is enslaved. Most of them held that the number of divorces is determined by the husband: a free man has three pronouncements of divorce over his enslaved wife, whereas an enslaved man has only two over his free wife. Abd Allah ibn Masʿud said: “Divorce is determined by the men, and the waiting period by the women.” That is, the man’s status is considered in determining the number of divorces, while the woman’s status is considered in determining the length of the waiting period. This was also the view of Uthman, Zayd ibn Thabit, and Ibn Abbas. It was likewise held by Ata and Saʿid ibn al-Musayyib, and was the position of Malik, al-Shafiʿi, Ahmad, and Ishaq. Another group held that the woman’s status determines the number of divorces: an enslaved man has three pronouncements of divorce over his free wife, while a free man has only two over his enslaved wife. This was the view of Sufyan al-Thawri and the proponents of juristic reasoning.
Allah Most High says: “It is not lawful for you to take back anything of what you have given them”—that is, the dowries and other things that you have given them. He then made an exception for khulʿ, saying: “Unless they both fear that they cannot maintain the limits set by Allah.” This was revealed concerning Jamila bint Abd Allah ibn Abi Awfa—though it is also said that she was Habiba bint Sahl. She was the wife of Thabit ibn Qays ibn Shammas. She disliked him, while he loved her, and there was discord between them. She went to her father and complained to him about her husband, saying, “He mistreats me and beats me.” He said, “Return to your husband, for I dislike a woman continually raising her hands in complaint against her husband.”
She returned to him a second time, bearing marks from the beating, but her father again said to her, “Return to your husband.” When she saw that her father would not take up her complaint, she went to the Messenger of Allah, peace and blessings be upon him, and complained to him about her husband. She showed him the marks on her from his beating and said, “O Messenger of Allah, neither I nor he.” The Messenger of Allah, peace and blessings be upon him, sent for Thabit and said, “What is the matter between you and your wife?” He replied, “By the One who sent you as a Prophet with the truth, there is no one on the face of the earth more beloved to me than she, apart from you.” He then said to her, “What do you say?”
She disliked to lie to the Messenger of Allah, peace and blessings be upon him, when he asked her, so she said, “He has spoken the truth, O Messenger of Allah, but I fear that he will destroy me, so release me from him.” She also said, “O Messenger of Allah, I would not tell you something for which Allah would send down a revelation contradicting it. He is among the men most loving toward his wife, but I dislike him; neither I nor he.” Thabit said, “I gave her a garden. Let her return it to me, and I will release her.” He said to her, “Will you return his garden to him and have control over your own affair?” She said, “Yes.” The Messenger of Allah, peace and blessings be upon him, said, “O Thabit, take—”