6. Ibn Taymiyah's Disagreement with the Ijma^ about Divorce

[Alsunna Teacher]

VI. The Sixth Article
Ibn Taymiyah's Disagreement with the Ijma^ of the Muslims in the Divorce Issue
Imam Muslim related from ^Abdullah Ibn ^Abbas his saying: During the time of the Messenger of Allah, sallallahu ^alayhi wa sallam, Abu Bakr, and the beginning of ^Umar's Khilafah (Caliphate) the divorce pronounced thrice was deemed pronounced once.  Then ^Umar said what means: People have hastened in a matter with which they used to have patience.  We should carry this out upon them; he did that.  It is not permissible to act upon the seeming meaning of this Hadith [The correct meaning of the Hadith will be given soon.]. The answer for it is [twofold]:

1. Either it is said that it is da^if by shuthuth [Ash-Shuthuth is the case when a Hadith is shathth (see mahfuz).] as Imam Ahmad Ibn Hanbal ruled it. This was mentioned by Hafiz Ibn Rajab al-Hanbaliyy in his refutation to whoever said that the three in one pronouncement are one.  It is also ruled to be da^if by shuthuth, because it disagrees with what was confirmed about ^Abdullah Ibn ^Abbas that he passed the judgement upon whoever pronounced the divorce thrice all at once that it is deemed three.  This was mutawatir about Ibn ^Abbas.  Al-Bayhaqiyy mentioned in "as-Sunan-ul-Kubra" with his asanid (pl. of isnad) from eight of his trustworthy students that Ibn ^Abbas ruled that.

2. Or it is said: This is interpreted as that the meaning of the divorce three times was deemed one is that the battah divorce [A battah divorce is the three-time divorce when a man says to his wife: You are divorced the battah. Consequently, the divorced woman cannot return to her exhusband (the man who divorced her) except after her iddah from this divorce has expired, another man marries and has sexual intercourse with her, then he divorces her , and her ^iddah of the latter divorce has expired.] used to be used to emphasize the one-time divorce.  Then people started using it during the time of ^Umar to mean the three-time divorce. Consequently, ^Umar carried out his ruling according to their intentions.  The explanation of this is that the saying of the people: "You are divorced the battah" was used with the intention of emphasizing the one-time divorce, then it became famous to indicate the three-time divorce. Hence, the mathahib of the scholars were different about it. Some of them made the (word) battah and also the saying [of a man to his wife]: You are forbidden to me or you are ba'in [Ba'in refers to divorcing the wife three times, as much as a battah divorce is.] to indicate the three-time divorce. Others made the battah according to the intentions.  What shows that the matter as mentioned above is what is in some of the copies of Imam Muslim's Sahih of the Magharibah: During the time of the Messenger of Allah, Abu Bakr, and the beginning of ^Umar's Khilafah, the battah used to be one, as Hafiz Abu Bakr Ibn al-^Arabiyyy mentioned in his book: "al-Qabas ^ala Muwatta' Malik Ibn Anas".

In his explanation of al-Bukhariyyy, in his last, vast discussion of the issue of combining the three pronouncements, Hafiz Ibn Hajar mentioned that this Hadith should not be used to oppose the Ijma^ upon deeming the three pronouncements three in the time of ^Umar.  There is no disagreement in this issue. The disagreement that comes after the Ijma^ is a negligible disagreement.  As for what Hafiz Ibn Hajar conveyed that a disagreement was related about ^Aliyy and others, he did not convey it with determination. He meant that some people said that about ^Aliyy and others. This does not contradict the Ijma^ which he stated at the end of the discussion.  Had he believed what was conveyed about ^Aliyy and those who were mentioned with him confirmed, he would not have ended the discussion with his saying what means: There is Ijma^ upon the issue.

No disagreement was confirmed about any of the mujtahidun of Ahl-us-Sunnah in this issue.  Even Ibn Taymiyah who brought up this disagreement had stated the Ijma^ and said that whoever disagreed with it was a kafir.  Hafiz Abu Sa^id al-^Ala'iyy related this about him. Ibn Taymiyah is not a mujtahid.  This disagreement of his is like his disagreement in the issue of the perpetuity of Hell.  In his book "Minhaj-us-Sunnat-in-Nabawiyyah", Ibn Taymiyah had mentioned the Ijma^ upon the perpetuity of Paradise and Hell, and that no one disagreed except Jahm Ibn Safwan and that he was charged with kufr.  Then he infringed this Ijma^ and said: The fire of Hell will vanish.

Also he said that the provisional divorce with the purpose of yamin [Al-Yamin is swearing by one of the Names or attributes of Allah.] does not occur when the provisional matter happens, and that only the kaffarah is due. In this, he infringed the Ijma^ of the scholars of al-'Islam that the provisional divorce occurs when the provisional matter happens, whether or not it was with the purpose of yamin. Hafiz Abu Sa^id al-^Ala'iyy reported also that Ibn Taymiyah had said that there had been Ijma^ upon this issue and whoever disagreed with it was a kafir. Is it allowed after all of that to consider one like this man an imam and mujtahid and thereby take his saying which is his ijtihad? The reporting about those people whom Ibn Taymiyah related that they took his saying was not confirmed.  It was ascribed to them.  A saying would not be confirmed about an imam just because it was ascribed to him.

We thank Allah that the Saudi courts discarded the opinion of Ibn Taymiyah in divorce. There is no justification for the Egyptian courts to agree with him (in this isssue), because this is a rejection of the Ijma^ of the four mathahib and others. The Saudi judges refused Ibn Taymiyah's opinion, because it is against the mathhab of Ahmad Ibn Hanbal, in addition to its disagreement with the Ijma^. Ahmad and all of his companions agree that Ahmad's mathhab is that the three divorce pronouncements all at once are deemed three.

Whoever takes the seeming meaning of the Hadith accuses ^Umar Ibn al-Khattab and Ibn ^Abbas with betrayal. As for their accusing ^Umar wih betrayal, it is their allegation that he ruled prohibiting the women, who were divorced three times by one pronouncement, upon their husbands except after they marry other men while he knew that the Messenger and Abu Bakr ruled differently. Additionally, this entails accusing ^Umar of kufr, because whoever perverts a ruling which he knows the Messenger of Allah enacted commits kufr.  Moreover, this entails accusing of betrayal the Companions who were at that time, like ^Aliyy, radiyallahu ^anh, for remaining silent, according to their claim, about the perversion of ^Umar. ^Umar said what means: We ask refuge with Allah of a problem without Abul-Hasan [Abul-Hasan is the kunyah of ^Aliyy Ibn Abi Talib.  The kunyah of a man is a name that starts with "Abu", meaning the father of.  ^Umar is praising ^Aliyy's intelligence and courage to solve problems.].  How is it appropriate with Abul-Hasan to be silent if he knew that it was different from the ruling of the Messenger. Praise to You Allah; this is a foul fabrication.

This is different from what ^Umar did concerning hitting the drinker of alcohol eighty times after he had been beaten forty times in the time of the Messenger and Abu Bakr, because this does not contain what the issue of the divorce had, as said by ^Aliyy Ibn Abi Talib: Whipping forty is a sunnah and whipping eighty is a sunnah (related by Muslim and others). It is not permissible to make this similar to that, since what ^Umar did in the issue of whipping does not entail annuling a ruling put by the Messenger of Allah, because the deed of the Messenger (whipping forty) does not include that other than this number is prohibited.

As for accusing Ibn ^Abbas of betrayal, whoever of them said that Ibn ^Abbas passed the judgement that the three pronouncements at one time are three in spite of his knowledge that the ruling of the Messenger of Allah is different than that [according to their claim], he attributed to him perverting the ruling of the Messenger of Allah intentionally.

The reason of changing the rules in the Egyptian courts that during our time, there was a judge who was infatuated with Ibn Taymiyah.  He revived his deviation agreeing with the desires of the ignorant and hasty people in divorce. He made them dare to pronounce the divorce thrice thinking that they could return these women.  This is according to one of the two sayings of Ibn Taymiyah.  The other saying of his is that pronouncing the divorce thrice is nothing. Whoever follows him in this saying returns to his woman who was divorced thrice without returning her to him or without renewal of marriage contract after she marries another man [If a woman is divorced once or twice by her husband, he can return her to him by saying: I return you to me.  This must be said before the expiration of three non-menstruating intervals of the woman, or else a new marriage contract is required. For the woman who is divorced three times by her husband, see our footnote on the battah divorce.].

Whoever considered Ibn Taymiyah among the mujtahidun who are allowed to be followed is far from being right. How could it be so when Ibn Taymiyah is the one who said that the world is eternal by kind, i.e., Allah did not precede in existence the kind of the world, but He preceded in existence the specific elements (individual members) only? The Muslims have agreed to charge with kufr whoever says that the world is eternal with Allah, whether he made it eternal by kind only or by kind, constituents, and elements.  Ibn Taymiyah stated that in five of his books as we mentioned previously.

How did these people infatuated with Ibn Taymiyah dare to consider him a mujtahid when al-'Islam is one of the prerequisites of a mujtahid, and whoever says those sayings is definitely kafir?

Let us mention what al-Mardawiyy said in "al-'Insaf"Vol 9 page 4: His saying: If he said: You are divorced, or divorce is incumbent upon me and the like intending three times, the woman is divorced thrice.  However, there two renditions in case one did not intend anything or said: You are divorced and intended the three-time divorce. Know that the correct saying in the mathhab that his saying: You are divorced, or divorce is incumbent upon me and the like is explicit in divorce, whether it was uncoditional, provisional, or sworn upon.  It is stated and most of the [Hanabilah] companions follow it and many of them affirmed it.  Whether it is explicit of being three or one will come later; it is said to be metonymical. The author of "al-Qawa^id-ul-Fiqhiyyah" and followed it in "al-'Usuliyyah" said what means: If one intended by it (the divorce statement) what is less than three, does what he intended specifically occur or does the three-time divorce occur by it, considering his statement an explicit statement of the three-time divorce? There are two opinions in this issue for the companions [of the Hanbaliyy mathhab].

Shaykh Taqiyy-ud-Din, may Allah have mercy upon him, mentioned that his saying: The divorce is incumbent upon me and the like is a yamin agrred upon by the wise people, nations, and fuqaha'.  He came with this opinion employing the statements of Imam Ahmad, may Allah have mercy upon him.  The author of al-Furu^ said what means: This [saying of Ibn Taymiyah] is in disagreement with the explicit statements of Imam Ahmad.

Shaykh Taqiyy-ud-Din, may Allah have mercy upon him, said also what means: If one swore by it like [saying]: Divorce is incumbent upon me and intended the nathr with it, he fulfils a kaffarah according to Imam Ahmad, may Allah have mercy upon him. The author of al-Furu^ mentioned about him in the chapter on al-'Ayman and supported it in his book "A^lam-ul-Muwaqqi^in" along with the previous saying [The statement of al-Mardawiyy is ended.].

Ibn Taymiyah's claim of the agreement of the wise people, nations, and fuqaha' that one's saying: The divorce is incumbent upon me and the like is a yamin is refuted by the author of al-Furu^in his saying: This [saying of Ibn Taymiyah] is in disagreement with the explicit statements of Imam Ahmad. Surely, it appears that he claimed the consensus in a matter that Ahmad stated differently. The purpose of Ibn Taymiyah by doing that is to support his opinion, which is against ijma^, that the divorce pronounced in the manner of yamin does not occur; only a kaffarah is due.  It is clear that the goal of Ibn Taymiyah in this is to support his desire. In this exposition is another benefit that Ibn Taymiyah and his student Ibn al-Qayyim al-Jawziyyah attribute to Ahmad Ibn Hanbal, may Allah be reward  him, that he said: Whoever claims Ijma^ is a lier. Do you not see his haphazard talk in his claim of the agreement of the wise people, nations, and fuqaha'. Moreover, the statements of Ahmad of Ijma^ in several issues were confirmed.

This issue of divorce in which Ibn Taymiyah deviated is the same issue that Hafiz al-^Ala'iyy said: Ibn Taymiyah reported the Ijma^ upon the occurrence of the three-time divorce by one pronouncement and the occurrence of the provisional divorce if the provision happened, then he infringed the Ijma^ in both matters.  Hafiz Shams-ud-Din Ibn Tulun related this about Hafiz al-^Ala'iyy in "Thakha'ir-ul-Qasr fi Tarajimi Nubala'-il-^Asr".