What is the ruling regarding the prescribed punishment (Hadd) if four witnesses testify that a man had intercourse with his ex-wife after divorcing her three times?
Chapter on Divorce by Calculation
Al-Mughni
Book of Divorce
Primary text
If a man divorces his wife three times, and four witnesses testify that he subsequently had intercourse with her, the prescribed punishment (Hadd) must be inflicted upon him. This is because the triple divorce renders her a stranger, and specifically one more strictly forbidden than other strangers, as she is prohibited for him both in cohabitation and in marriage. This ruling is established by Ahmad.
Supporting text
If the man denies the divorce and has intercourse with her, and only then is the evidence of the divorce presented, no Hadd is inflicted. This is the view of Al-Sha'bi, Malik, the people of Hijaz, Al-Thawri, Al-Awza'i, Rabi'ah, Al-Shafi'i, Abu Thawr, and Ibn Al-Mundhir. The reasoning is that his denial of the divorce suggests forgetfulness, which constitutes a doubt (shubhah) that wards off the Hadd. Furthermore, ascertaining his knowledge at the time of intercourse is only possible through his confession. If he confesses to intercourse while knowing he had pronounced three divorces, this constitutes an admission of adultery, subject to the rules governing admission of adultery.