What is the extent of the judge's authority to divorce the Muuli if he refrains from both reconciliation (Fi'ah) and divorce?
General Chapter
Al-Mughni
Book of the Oath of Abstention (Ila')
Primary text
If the Muuli refrains from both reconciliation and divorce, and the judge stands in his place, the judge possesses the same authority over divorce as the Muuli possessed. The judge has the discretion to pronounce one, two, or three divorces, or to dissolve the marriage (Faskh). This is the apparent position of Imam Ahmad. The justification is that the judge acts as the Muuli's representative, thereby inheriting his prerogative concerning divorce, similar to a legal agent appointed for this purpose. This action is not considered an excess beyond her right, as her right is separation, which can manifest in various forms, and the judge may see benefit in imposing a perpetual prohibition on her return due to the Muuli's ill intent.
Supporting text
Al-Shafi'i holds that the judge is limited to only one divorce, as fulfilling the right (of separation) is achieved thereby, and no increase beyond fulfilling the right is permissible, just as one cannot exceed the required debt payment for someone who defaults. The judge's statement, "I have separated between you," constitutes dissolution (Faskh), while saying, "I divorce one," constitutes one divorce, and "three," constitutes three divorces.