What is the ruling on marital relations (consummation) if one man swears by triple divorce that his wife is divorced if the bird is a crow, and the other swears his wife is divorced if the bird is not a crow, and the bird's identity remains unknown?
Chapter on Divorce by Calculation
Al-Mughni
Book of Divorce
Primary text
One of them has certainly committed divorce, though the specific person is undetermined. Rulings such as maintenance (nafaqah), clothing (kiswah), and lodging (sukna) remain in effect for both men because the certainty of each man's marriage remains, and the occurrence of his divorce is doubtful. However, Al-Qadi stated that consummation becomes forbidden for both men because one of them has certainly committed divorce, making his wife forbidden, and since determination is impossible, both relations are prohibited, analogous to the case where one of two identical items becomes impure.
Supporting text
The opinion of Al-Shafi'i and the Ashab al-Ra'y is that consummation is not forbidden for either man because the continuation of their marriage is ruled upon, and divorce has not been established against either one specifically. They differentiate this from the case where a man divorces one of two specific wives, where the dissolution of one marriage is certain.