What are the conditions for the permissibility of remarriage for a thrice-divorced woman to her first husband?
General Chapter
Al-Mughni
Book of Reconciliation (Return During 'Iddah)
Primary text
Three conditions are required for the thrice-divorced woman to become permissible to her first husband. The first condition is that she must marry another husband, and that marriage must involve consummation. If a female slave is sexually possessed by her master, she is not permitted to return to her first husband, according to the divine saying: "Until she marries a husband other than him" (Quran 2:230), because the master is not considered a husband in this context. If she is possessed under a misconception (shubha), she does not become lawful, based on the established proof. The second condition is that the subsequent marriage must be valid (sahih). The third condition is that she must be sexually penetrated by the second husband in the vagina (farj). The solution is contingent upon the tasting of the honey (dhawq al-'usayla), which occurs only through penetration into the vagina, the minimum of which is the insertion of the glans (hashafa). If the glans is inserted without an erection, she is not permitted, as the ruling depends on tasting the honey, which does not occur without erection.
Supporting text
Regarding the first condition, some scholars among the Shafi'is hold that if a master frees his female slave after divorcing her, he may resume marital relations with her, arguing that divorce pertains only to the marital relationship. However, the explicit text of the Quran, "...then if he divorces her, she will not be lawful to him afterward until she has married a husband other than him" (Quran 2:230), prohibits it unless the condition is met. Furthermore, the sexual organ cannot legitimately be both unlawful and permissible. Concerning the second condition, some early opinions, including those of Al-Hasan, Al-Sha'bi, Hammad, Malik, Al-Thawri, Al-Awza'i, Ishaq, Abu 'Ubayd, and the Ashab al-Ra'y, alongside Al-Shafi'i's later position (al-Jadid), mandate a valid marriage. An older view from Al-Shafi'i (al-Qadim) suggests a corrupt marriage suffices, as it fulfills the general text and the Prophet (peace be upon him) cursed the Tahil (marrying solely to permit re-marriage) and the one for whom it is done, even though the marriage itself was invalid. Concerning the third condition, if the penetration is not in the vagina or is in the anus, it does not permit her return, as the Prophet (peace be upon him) tied the permissibility to the tasting of the honey. If the penis is cut off, she is permitted if the remaining part equals the glans and is inserted; otherwise, she is not. If the man is a eunuch (khasiyy), spayed (maslul), or injured (mawju'), she becomes lawful through his intercourse, as he penetrates like a normal male, and the emission of semen is not a condition for making her lawful, which is the view of Al-Shafi'i. Abu Bakr related a narration from Ahmad that a eunuch does not permit her because he cannot emit semen and thus does not taste the honey, though the operative practice follows the narration that permits it, arguing that the first view stemmed from the eunuch's typical inability to perform intercourse or emission.