English
Malik narrated from Mujbir from Abdullah ibn Umar (may Allah be pleased with them) that he said: If a man says, “If I marry so-and-so, she is divorced,” it is as he said upon marrying her. If he divorced her one, two, or three times, it is as he said. Narrated by Muhammad in Al-Muwatta.
Abdur-Razzaq narrated from Ma‘mar from Az-Zuhri that he said about a man who said, “Every woman I marry is divorced, and every slave I buy is free,” it is as he said. Ma‘mar said, “Is it not reported: ‘No divorce before marriage, no emancipation before ownership’?” He said, “That applies to a man saying, ‘So-and-so’s wife is divorced,’ or ‘So-and-so’s slave is free.’” Abu Bakr ar-Razi narrated from Az-Zuhri: The saying, “No divorce before marriage,” refers to a man told, “Marry so-and-so,” who says, “She is divorced,” which is nothing. But if he says, “If I marry so-and-so, she is divorced,” he divorces her upon marrying her.
Ibn Abi Shaybah narrated from Salim, Al-Qasim ibn Muhammad, Umar ibn Abdul-Aziz, Ash-Sha‘bi, An-Nakha‘i, Az-Zuhri, Al-Aswad, Abu Bakr ibn Amr ibn Harm, Abu Bakr ibn Abdur-Rahman, Abdullah ibn Abdur-Rahman, and Mak-hul ash-Shami about a man who said, “If I marry so-and-so, she is divorced,” or “The day I marry her, she is divorced,” or “Every woman I marry is divorced.” They said, “It is as he said,” or in some wording, “It applies to him.”
Commentary and footnotes (2)
Note 3
(3) The statement: “If a man says…”: Based on these narrations, Hanafis say that attaching divorce to the cause of ownership is valid. If he says to a non-wife, “If I marry you, you are divorced,” and marries her, the divorce occurs. Ash-Shafi‘i says this condition is invalid, and no divorce occurs, as a condition is like an immediate act. Just as immediate divorce is invalid without ownership, a condition is too. The response is that the condition “If I marry you, you are divorced” exists now, but the divorce occurs when the condition (marriage) is met, when ownership is established, unlike “If you enter the house, you are divorced,” where ownership is absent now and later, so no divorce occurs, as with immediate divorce of a non-wife. Thus, Ash-Shafi‘i’s use of “No divorce before marriage” is invalid. His other Hadiths are weak, per Tanzih’s author, who says they are false, with some narrators being fabricators or thieves. Our view is supported by Sa‘id ibn al-Musayyib, Ata, Hammad ibn Abi Sulayman, and Shurayh (may Allah have mercy on them). If argued that interpreting it as immediate is meaningless, as all know it, so it must mean conditions, the response is that it became clear after the Shariah’s ruling was established. In the pre-Islamic era, they pronounced immediate divorce before marriage, counting it as divorce upon marriage. The Shariah negated this in “No divorce before marriage” and other Hadiths, as in At-Taliq al-Mumajjad, Umdat ar-Ri‘ayah, and Fath al-Qadir (summarized). In Umdat al-Qari, Bukhari says: “Chapter: No divorce before marriage,” meaning no divorce before marriage exists. Al-Kirmani says Hanafis uphold divorce before marriage, and Bukhari refutes them. I say: Hanafis do not say divorce occurs before marriage, a view held by none. It is surprising that Al-Kirmani and his supporters say this, refuting them baselessly. Their argument hinges on conditions, e.g., a man saying to a non-wife, “If I marry you, you are divorced,” and upon marrying her, divorce occurs for Hanafis, contrary to Ash-Shafi‘i. This was discussed earlier, as was the dispute on sale and vows.
Note 1
ف: مذکورہ بالا روایتوں سے معلوم ہوتا ہے کہ اگر کوئی شخص یوں کہے کہ اگر میں فلاں عورت سے نکاح کروں تو اس پر طلاق ہے۔ یہ قول اس وجہ سے درست ہے کہ اس میں سَبَبِیَّتِ ملک کی طرف طلاق کی نسبت ہے اس لیے جب نکاح ہوگا تو طلاق واقع ہو جائے گا۔12 (ماخوذ از: تعلیق مجید، عمدۃ الرعایہ12)