Abstract
The absence of a specific divorce formula in the Qur’an and hadith led Muslim jurists to debate the legal effects of a dizzying array of Arabic expressions. These expressions remain essentially unstudied by modern scholars of Islamic Studies. Classical jurists identified one class of these divorce expressions as “those which are bound with the stipulation of the [wife’s] wish for a divorce (al-ta‘liq bi’l-mashi’a).” In other words, what they inquired into the legal effect of the husband’s statement to his wife, “You are divorced if you wish.” This legal statement differs from the instruments of “granting the wife the option to dissolve the marriage” (khiyar) and “granting the wife ownership of her affair” (tamlik) because the husband explicitly grants his wife the authority to repudiate (tallaqa) him with a revocable divorce when he says “You are divorced if you wish,” unlike in the cases of khiyar and tamlik. In other words, classical jurists allowed the husband to bestow upon his wife the full power of repudiation, which they carefully restricted to men in virtually all other circumstances.
The goals of this paper are threefold. First, it traces the debates over the efficacy of the stipulations of the wife’s wishes in divorce pronouncements across the classical schools of the Hanafis, Shafi‘is, Malikis, Hanbalis, Zaydis, and Imami Shi‘a, as well as the earliest debates preserved in the Musannafs of ‘Abd al-Razzaq and Ibn Abi Shayba. Second, it highlights the substantial changes in the authority bestowed upon the wife that occur depending upon which Arabic particles and nouns which act like particles, such as idha, mata, and kullama, the husband employs in his divorce pronouncement. For example, many classical jurists restricted the wife’s authority to divorce her husband to the immediate session in which he stipulated her approval when he says “You are divorced if (in) you wish,” but they granted her the authority to divorce him indefinitely if he said “You are divorced when (mata) you wish.” Jurists also debated whether a woman could divorce her husband multiple times if he said “You are divorced every time (kullama) you wish.” The final goal of this paper is to assess the implications of the capacity for language to enhance female legal authority in domains traditionally restricted to men on the basis of scriptural sources.
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