What is the legal implication if a husband declares divorce using terms of uncertainty or alternation ('or')?

Chapter on Divorce by Calculation

Al-Mughni

Book of Divorce

Book 39 · Issue 7 · Bab 3

Open in Qurani

Primary text

If a man says, "This one is divorced," and then adds, "but rather this one," the second statement is accepted as a confirmation of the divorce of the first, and the ruling applies to both. If he says, "This one or this one," referring to two, and then says, "but rather this one," it means the second one is divorced definitively, and the first and third are subject to doubt, as the 'or' clause followed the definitive statement about the second. If he says, "This one is divorced, or this one, or this one," the ruling is that the third one is divorced, and the doubt remains between the first two. If he says, "This one or this one, and this one," the third is linked to the doubt between the first two, or there is doubt concerning all three. If he states, "This one, and this one, or this one," the ruling is that the second wife is divorced definitively, and doubt remains between the first and third. In all cases where uncertainty remains, he must clarify. If he specifies one from the doubtful set, only that one is divorced. If he denies divorcing a specific one from the doubtful set, the others are divorced. If he does not clarify, lot drawing is performed among the doubtful ones, which is considered the sounder view by Al-Qadi.

Supporting text

If he says, "This one or this one," and then clarifies by saying, "It is the third one," she alone is divorced. If he denies divorcing her, the first two are divorced. If he says, "This one or this one, and this one," Al-Qadi and Muhammad bin Al-Hasan differ on whether the doubt pertains to the first and third or the second and third, but the view that the doubt remains between the first two and the third is favored.