entered into a contract not for its own sake, but only to dissolve it, while the former effected an annulment not for its own sake, but only to reverse it. This is a feeble, newly devised stratagem. Abū ʿAbd Allāh Ibn Batta wrote a treatise refuting it, citing reports from the early generations, some of which I have mentioned elsewhere.

“The Third Stratagem”

When they cannot devise a stratagem concerning the act to which the oath relates, they devise one concerning the divorce invoked in the oath, seeking to invalidate it by scrutinizing its conditions. Some later followers of al-Shāfiʿī thus began examining how the marriage contract was concluded, hoping to discover something that would render it invalid, so that they could conclude that divorce does not take effect in an invalid marriage. According to one of al-Shāfiʿī’s two positions and one of the two positions reported from Ahmad, a marriage contracted by a sinful guardian is invalid. Since sinfulness is prevalent among many people, this opinion finds a ready market as a stratagem for setting aside an oath of divorce. I have even seen someone write a treatise on this issue with the aim of devising a stratagem to avert divorce.

Yet you find that those who employ this stratagem examine how the marriage contract was concluded, and invoke the invalidity of a sinful guardian’s authority, only when divorce is pronounced—even though many, or most, scholars hold that divorce does, in principle, take effect in an invalid marriage. As for intercourse and sexual enjoyment, which Muslims unanimously agree are impermissible in an invalid marriage, they do not examine the matter then. Nor do they examine it in connection with inheritance or the other legal consequences of a valid marriage, but only when divorce takes effect.

This is a form of making a mockery of Allah’s verses and scheming against them. It is brought about solely by swearing oaths of divorce and the need to prevent divorce from taking effect.