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Three Divorces at One Instance with Special Reference to the Fatawa Of “THREE DIVORCES AT ONE INSTANCE WITH SPECIAL REFERENCE TO THE FATÓWÓ OF IBN TAYMIYYAH” M. A. AWAL Thesis Submitted to the University of Birmingham For the Degree of M. Phil Department of Theology Faculty of Arts The University of Birmingham March1997 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. Acknowledgement I would like to assert my gratitude to Dr. Jorgen S. Nielsen, director of the centre for the study of Islam and Christian - Muslim Relation, Selly Oak Colleges; who has been very helpful to me since my first admission till completing the thesis as a writing up status. I should record my sincere thanks to Dr. Sigvard Von Sicard. He has helped me for extention the date for the submissition of this thesis. I should record my respect and sincere thanks to Dr. M. I. Suruty. Who kindly took the responsibility of supervision of my thesis. He has been providing me the best possible help and positive criticism with valuable ideas which enable me to prepare my thesis for submission. My thank also to Dr. R. Amin and Dr. Huda of Aberdeen for their valuable suggestions and some corrections. All the staff of the centre for the study of Islam and Christian-Muslim Relations and registration (Arts) department, University of Birmingham and the library staff and friends are deeply thanked for their co-operation and valuable help and time throughout the research work and preparation of this thesis. My heartiest thanks to my son Ma‘sūm Billah for typing the whole manuscript in the computer. My thanks also goes to my wife for her patience with the children ; to look after them alone while I was preparing my thesis. I wish and pray to Allah for their success. Abstract "Three Divorces at one instance with special reference to the Fatãwa of ibn Taymiyya." The legal issue concerning three divorces at one instance and one sitting has been regarded as highly controversial. Muslims opinion on this issue all along 1400 years remained divided. Juristic development on this controversial issue can be divided into three phases: 1. From the time of Prophet (saws) up to two years of the Khilafah of äUmar. 2. From the Caliph äUmar to the period of the Imãm ibn Taymiyyah (1263- 1328AD/661-728AH) 3. From the Imãm ibn Taymiyyah (1328AD/728AH) to date. An attempt has been made to present the views of the most prominent Jurists who support the legal effect of three divorces at one instance as absolutely irrevocable and the legal views of Jurists who consider the matters as one revocable divorce. The selection of the celebrated works representing both views are such that they cover all three phases mentioned above on this legal issue. Concerning the first view, the verdict (Qarãr) of the fatãwa on the subject "Three divorces in one instance by the renowned Islamic Organisation of Saudi Arabia "Dãr al-Iftã" which has sanctioned by the honourable Shaykh Abdul Aziz ibn Abdullah ibn Bãz, the President of Dãr al-Iftã, the grand Muftï of the kingdom of Saudi Arabia. And the very recent views of leading Hanafï scholars of India under the leadership of Hadrat Mawlana Sayed Asäad Madani, Amir al-Hind have been translated. As regards to the second view the relevant pages of the celebrated fatãwa of the Imam ibn Taymiyyah has been translated. This study also presents the evaluation of both views, and is divided into two chapters. The chapter one is sub-divided into two sections. Section one includes a brief introduction of divorce, its Classification and revocation. Section two contains the English translation of above mentioned two contemporary legal verdicts on this issues. The chapter two presents the English Translation of the relevant aspects of the fatãwa of the Imam ibn Taymiyyah. The Conclusion deals with a critical evaluation of both legal views enabling Muslims who are divided in this issue to decide by themselves whenever they confront with such problems. CONTENTS Page Transliteration Table with Arabic Terminology CHAPTER ONE 1-55 Introduction 1 Section One 3-27 Introduction (of the section one) 3 Difinition of Divorce 10 Other Schools of Laws 12 Classification of Divorce 12 The View Point of Imãm Mãlik 14 The View Point of Imãm Shafiäï 14 Divorce during Menstruation is effective or not? 17 How to recourse with the wife 18 The method of Rujäat 20 Criticisim on Safïäi's view 22 Regarding the presence of witness in the Rujah 26 Section Two 28-55 Contemporary opinion on the subject of three Divorcess in one Instance 28 Translation of the verdict of Dãr al-ïfta 29 View Points of those who opined that "three divorces in one instance" are legally as one 39 First Justification 40 Second Justification 41 Third Justification 43 Fourth Justification 43 Fifth Justification 44 The verdict of leading Hanafï Schools of India 45 The Basis for the Evidence of nonconformist jurists 47 CHAPTER TWO 56-99 The English Translation of the legal verdict of ibn Taymiyyah on three divorces at one instance from his book Fatãwã 56 The two lawful and unlawful grounds for divorce 73 CONCLUSION 100-123 The First Opinion 103 The Second Opinion 108 APPENDIX 124-153 Footnotes for Chapter One 124 Footnotes for Chapter Two 128 Footnotes for Conclusion 129 Glossary 133 Bibliography 146 Transliteration Table with Arabic Terminology l ل Ò LÉm ء Hamzah m م b MÊm ب BÉ n ن t NËn ت TÉ w و th WÉw ث ThaÒ h ه j HaÒ ج JÊm y ي h YaÒ ح aÒ× ah/at ة kh TÉ Marbutah خ KhaÒ d د DÉl a أ dh FatÍa د DhÉl i إ r Kasrah ر RaÒ z Dammah ’ u ز ZaÒ É آ s Alif Maddah س SÊn Ê إي sh Ya Maddah ش ShÊn Ë أو Î Waw Maddah ص SÉd Ì ض DÉd Ï ط TÉÒ Ð ظ ZÉÒ ع ÑAyn Ñ gh غ Ghayn f ف FÉÒ q ق QÉf k ك KÉf As for the Hamzah of continuity (hamzat al-wasl) it has been retained, e.g. as in ÑAbd al-GaffÉr, ÑAbd al Ghani except in two cases: (a). Where the word ÑAbd precedes the divine name AllÉh, i.e. ÑAbddullah, not ÑAbd AllÉh. (b). Where it is preceeded by AbË; in this case it is written as Abul-×usayn, not AbË al-×usayn Some Arabic terms commonly used in this Thesis are as follows: SWT: ØubÍÉnahu wa taÑÉlÉÒ. i.e. His glorification and highness (AllÉh Himself). SAWS: Øall AllÉhu Ñalaihi wa Sallam. i.e. May Allah (SWT) has mercy upon him and bless him (the Prophet MuÍammad saws). A.S: ÑAlaihis SalÉm / ÑAlaihimus SalÉm (Peace and blessing of AllÉh be upon him /them) The name of the Companions of the Prophet MuÍammad (saws). should be read with (r.a.a.) RaÌiya AllÉhu ÑAnhu / ÑAnhÉ/ ÑAnhumÉ/ ÑAnhum/ ÑAnhunna (May AllÉh (SWT) be pleased with him /her them etc.). CHAPTER - ONE Three divorces at one instance with special reference to the FatÉwÉ of the ImÉm AÍmad ibn Taymiyyah Introduction: The ImÉm Shaykh al-IslÉm AÍmad ibn Taymiyyah, who lived in the 13th/14th century, was an eminent scholar, MuÍadditha, jurist and historian of IslÉm.1 He wrote voluminously on almost every aspect of IslÉm. He was very systematic and thorough but because of the colossal opposition from different groups of ÑUlamÉÒ and constant political persecution of the then ruling esoteric, much of his writings, fatÉwÉs and contributions were certainly lost.2 Apart from his intellectual and religious pursuits involving scholastical issues of ÑAqÊdah (cult and creed) and theological deliberation between the AshÑarites and ×anbalites, his deep devotion to the juristic problems and Islamic Fiqhb created a new horizon in the field of IjtihÉdc . For the purpose of this research work, it is envisaged to explain in detail the juristic opinion of the ImÉm ibn Taymiyyah. Alongside it opinions of other schools of thought have also been outlined. Now a days it is known to the many learned people that most of the work of the ImÉm ibn Taymiyyah has been preserved, compiled and published under the title of MujmËÑ FatÉwÉ of Shaykh al-IslÉm ibn Taymiyyah. The works were systematized and compiled by Shaykh Abd al Rahman ibn MuÍammad ibn QÉsim al- ÑAsÊmÊ Al NajdÊ al ×anbalÊ. His son MuÍammad assisted him in this great task and the works were printed in 37 volumes under His Royal Highness King Fahd project of a Scholar of Prophet MuÍammad's(saws) tradtions. b The Subject which discuss about Jurisprudence in IslÉm. c Independent judgement in a legal or theological question, based on the interpretation and application of the four UsËl. 1 publication, Saudi Arabia. The juristic opinion of the ImÉm ibn Taymiyyah regarding divorce has been edited in volume 33 of the series.3 As per the requirement of this research work "Three Divorces at one instance with special reference to the FatÉwÉ of ibn Taymiyyah", we are presenting the English Translation of the legal verdict of ibn Taymiyyah on three divorces at one instance from his famous book FatÉwÉ In the translation work I have written within the braket to make the idea clearwith an introduction on the legal implication of three divorces at one instance.
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