Chapter 1 – Its Pillars
Book of Divorce (Al-Ṭalāq)
It is the removal of the condition of marriage without anything in return with the formula of Ṭāliq.
(In it various chapters – Chapter One: Regarding its Pillars)
(And they are) four (the formula, the [male] divorcer, the [female] divorcee and witnesses) for the formula (and the explicit words) used in the formula are (you, or this, or so and son)1 and her name is mentioned, or anything that indicates her specifically (or my wife, for example, is Ṭaliq). According to us, these are the only words appropriate for pronouncing divorce (and it is not sufficient to say you are Ṭalāq) even though the use of a verbal-noun as an active participle is correct and with the intention of it in which case it conveys the meaning of Ṭāliq, because of how it is mentioned in the textual evidence, due to consensus, and due to the continuity of being a wife. Further, because verbal-nouns are only used in meanings other than what they were coined for as a metaphor, even if their usage as an active participle is popular, and that is still not enough for it to be used in the case of the word Ṭalāq.2 And neither can one say Muṭallaqāt (and nor Muṭallaqah, or I divorced so and so based on the popular opinion) because it is not explicit in it as it is an informative statement, and to transfer its meaning to a creative statement is against the principle, hence only those formulas what are agreed upon must be sufficed upon and those are the contract formulas. To assume those rulings in the case of divorce is conjecture, whereas the textual evidence implies the word Ṭāliq and not any other word, and hence it will suffice.
And from this point the response to those the proponents of its occurrence, namely al-Shaykh in one of his verdicts resorting to the argument that a past-tense formula when used in other than it is also transferred to a creative statement. Although the author’s suggestion that it is invalid based on [a popular] opinion alludes that he might have accepted its validity.
- In Arabic, all of these nouns are feminine, anti, hādhihi, fulānah.
- Al-Shahīd al-Thānī cites four different reasons why no other word can be used in the divorce formula. The first evidence is that what appears in the traditions is restricted to what was earlier mentioned. The second evidence is that there is a consensus on this matter amongst the Imāmī Shī’ī jurists. Thirdly, he cites the principle of continuity which indicates that if we were to use any other word in the divorce formula, we are still left in a state of doubt whether a legal divorce has truly taken place or not. In this state of doubt, the principle of continuity states that we must presume the continuation of the woman remaining his wife. Finally, he agrees that a verbal-noun is very often used as an active-participle, but says its popularity in general is not enough for us to permit the use of the verbal-noun Ṭalāq, because essentially it is still being used as a metaphor.