How many divorces remain if a woman, divorced fewer than three times, marries another man, is intimate with him, and is then divorced by or dies to the second husband, subsequently marrying the first husband?
Chapter on Divorce by Calculation
Al-Mughni
Book of Divorce
Primary text
If a wife is divorced fewer than three times, remarries another man, is intimate with him, and then returns to the first husband through a new marriage contract, she reverts to him based on the remaining number of divorces she had prior to the second marriage. This is the view held by the senior Companions of the Messenger of Allah (peace be upon him), including 'Umar, 'Ali, Abu [Bakr], Mu'adh, 'Imran ibn Husayn, and Abu Hurayrah. This is also the view of Sa'id ibn al-Musayyab, 'Ubaydah, Al-Hasan, Malik, Al-Thawri, Ibn Abi Layla, Al-Shafi'i, Ishaq, Abu 'Ubaydah, Abu Thawr, and Muhammad ibn Al-Hasan, and Ibn Al-Mundhir. The first husband retains the remaining count of divorces.
Supporting text
A second narration from Ahmad holds that she reverts to him on the basis of three full divorces. This is the position of Ibn 'Umar, Ibn 'Abbas, 'Ata', Al-Nakha'i, Shurayh, Abu Hanifah, and Abu Yusuf. Their reasoning is that the second husband's intercourse establishes permissibility (hill) broadly enough to encompass three divorces, just as it occurs after three divorces, since the second intercourse nullifies the three divorces, making it more likely to nullify fewer than three. The counter-argument states that the second husband's intercourse is unnecessary for establishing permissibility for the first husband and thus does not alter the ruling of the divorce, similar to the intercourse of a slave. Furthermore, the second marriage occurred before the completion of the three divorces, resembling a situation where she returns to him before the second intercourse. The claim that the second intercourse establishes general permissibility is rejected because it is not inherently establishing permissibility; rather, in the case of triple divorce, it marks the limit of prohibition, as evidenced by Quran 2:230, where 'until' denotes the final limit. The Prophet (peace be upon him) referred to the husband seeking this stratagem as 'Al-Muhallil' (the one making lawful) metaphorically, evidenced by his cursing him. Moreover, permissibility is only established where a prohibition exists, such as the triple divorce; here, she is already permissible to him without the three divorces having been exhausted. They claim the second intercourse abrogates the divorces, but it is rather the ultimate point of prohibition, and what is less than three divorces does not carry that level of prohibition to be abrogated.