What is the ruling on maintenance (nafaqah) for a wife if the husband doubts the number of divorces pronounced, and she is within her waiting period?
Chapter on Divorce by Calculation
Al-Mughni
Book of Divorce
Primary text
If a husband divorces his wife and doubts the number of pronouncements, he must proceed based on the certainty, which is one divorce. This was stated by Ahmad in the narration of Ibn Mansur regarding a man who uttered words of divorce without knowing if it was once or thrice; he stated that one divorce is incumbent upon him and she remains his until he is certain of more. This is the view of Abu Hanifa and Al-Shafi'i, as anything exceeding the certain number is a doubted divorce and is not binding, similar to doubting the existence of divorce itself. Given this, the rulings applicable to a single divorce, such as the permissibility of revocation, remain in effect.
Supporting text
If the husband revokes the marriage during the waiting period, maintenance becomes obligatory, but he must not have intercourse until he is certain of the exact number of divorces, because he is certain of the prohibition (haram) but doubtful concerning the permissibility (halal). Al-Kharqi stated that intercourse and similar acts are forbidden to him, which aligns with a position of Malik. However, another view attributed to Malik holds that the highest possible number of divorces in doubt (three) must be assumed, leading to certainty of prohibition because he is certain of the divorce occurring and doubtful about its removal by revocation; doubt does not remove certainty, similar to doubting the exact location of ritual impurity on clothing—the impurity remains until the entire garment is washed. However, maintenance is not removed by a single divorce, so it remains because it was established and its removal was not certain. The apparent view of others among our colleagues (Shafi'is/Hanbalis) is that if he revokes the marriage, she becomes permissible for him, which is the view of Abu Hanifa and Al-Shafi'i, and reflects the apparent statement of Ahmad in the narration of Ibn Mansur. This is because the prohibition that revocation nullifies is removed by revocation with certainty. Prohibitions vary: some are lifted by revocation, some by a new marriage contract, and some by a new marriage after another husband and consummation. If one is certain of the lesser degree, the ruling of the higher degree is not established, as someone certain of minor ritual impurity does not incur the ruling of major ritual impurity; the prohibition of prayer is lifted by minor purification. This differs from the garment; washing only part of it does not remove the certainty of impurity in that part. The analogy here is doubting impurity on the rest of the garment when impurity on one part is certain; washing the clean part does not remove the certainty of impurity on the first part. Similarly here, the prohibition is lifted by revocation which removes the certainly established part of the prohibition. Alternatively, one may argue against the certainty of prohibition itself, since revocation is permissible according to the apparent madhhab; thus, he is certain of permissibility rather than prohibition.