Assalam Walaikum Wa Rehmat Ulla Hi Wa Bara Katu Hu.
As it is proven from the Quran and Sunnah, that three divorces cannot takes place at one time.
For example :
If a person wants to offer Fard Salah of Fajr, Zuhr and Asr on the time of Magrib, If he prays all the Salah on the time of Magrib. Only the Salah of Magrib will be accepted.
Another Example, when you go to Makkah for the Umra and throw the Stones to the Satan in a Turn if you throw 5 or 6 or how many stones you get in your hand, the Turn will be counted only as one.
This example is for the people who many a times say, that it can take place from both Method because it is the matter between the God and that Person. Yeah no one disagree with this, but when it comes to the Law of God, the things should be accepted as the God revealed.
Quran and Sunnah, Further states us and to get Unite and not to do Taffaraka. So May Allah almight accept this little effort. And Try to unite the Ummah. Ameen.
The Purpose of the topic is to tell that, Is there Ijma (Consensus) of Ummah on Talaq e Salasa ?.
Means Giving 3 divorce in one sitting, will it be counted as 3 or 1 ?.
This Method, is crystal Clear from the Quran and Sunnah that it will be counted as 3=1, not 3=3 in one sitting. And those who opposes it also agrees on it, because they couldn’t neglect it because their Proof starts from the Hadith where it is mentioned at the time of Prophet (s) and Abu Bakr (r) 3 Divorces at one time counted as 1 even in the starting years of Umar (r) but later on he imposed as a punishment. So no one could deny that.
But they claim, we know that it is against the Quran and Sunnah, and it was the Ijtehad of Umar (r) but Prophet (s) said “My Ummah will never gather upon error”. So this is why we believe in it.
So Inshallah, we will look at it whether there is Ijma of Ummar or not.
Before going into depth of the topic, we should have a look on the Definition and Conditions mentioned by the Ahlus Sunnah Scholars of Ijma and their Conditions.
“Ijma is the verbal noun of the Arabic word ajma’a, which as two meanings: to determine and to agree upon something.
Ijma has two types :
1. Ijma of Sahaba
2. Ijma of Ahl-Ilm on a certain Matter
Ijma of Sahaba is Hujjah only when, when it is unequivocally proven that Sahabas has gathered upon on certain matter because after the death of Prophet (s) Sahabas spreaded in different parts off the world. Some in Iraq, Some in Egypt, Some in Khurasan etc.
Ijma of Ahle-Ilm is Hujjah when all the Ahle-Ilm have done Ijma on it and it is only proven when other Ahle-Ilm known it.
The Ijma of Ahle-Ilm is further devided into two types:
1. Khabar-e-Ahad
2. Mutawatir
Khabar-e-Ahad is that when you find a Scholar Stating that there is Ijma, but it doesn’t know how many scholars agreed with this of the Same Era. Because even till today in Islamic History how many Scholars have been passed it is unknown to everyone. Khabar-e-Ahad is Zanni and Zanni cannot be Yaqeeni so how can it be acceptable according to Hanafi School of Thought.
Mutawatir Ijma is impossible, because it is only possible when there is a Ijma of Ahle-Ilm of an Era and they will meet the Mujtahid of another era to have Ijma with them, which is not possible.
Conditions of Ijma :
1. It is not Allowed to have Ijma on something which is not Proven from Quran and Hadith.
2. The Ijma against the Quran and Sunnah is impossible, and neither it is allowed. Since the Ijma itself has been proven from the Hadith of Rasul (s) so it should be according to Quran and Sunnah.
Imam Shafae (rah) says : It is unambigiously proven from the Ijma of Muslims that when a Muslim finds the Sahih Hadith of Rasul (s), so it is strictly forbidden for him to oppose it and to select any opinion [ Tazeem Al-Sunnah 28, Alam Al-Muaqain 2/282 ]
Imam Shakwani (rah) writes :
” In the Ijma even if one Mujtahid has differed, then the Madhhab of Jamhur Ahle-Ilm is that the Ijma has not taken Place and neither it is Hujjah. And Imam Al-Surfi said that opposing all the people of this Single Mujtahid saying cannot be called as odd, because that Mujtahid being amongst the Group of Mujtahid differs with them, so against it from the sayings of all Mujtahideens evidence cannot be established until he agrees with them it can never be called as consensus.”
And he writes on after explaining :
“Some times the saying of that Single Mujtahid against all of them is Haq”
And the same mentionedd that :
“If one or two Ahle-Ilm do differ in some in a matter, then it will not be called as Ijma but Ikhtelaf (difference) this is the Madhhab of Jamhur Ahle-Ilm”
Note : Muslim Al-Subut is the Famous Usool Book of Hanafis.
Famouse Book of Usool-e-Fiqh Sharh Al-Kawakib Al-Muneer 2/231 :
In the era of Sahaba a Tabae who reaches the level of Ijtihad, then this Mujtahid Tabae if he differs will of the Sahaba then it will not be known as Ijma, Many of the Ahle-Ilm and Fuqahha o Mutakin have this Madhhab and Imam Ahmad have also this Madhhab.
Imam Nawawi (rah) has told this to Ikhtelaf rather than Ijma because people have differed in it, by quoting the people who has differed
He quoted “Tawus (r) and Ahle-Zahir, Muhammad bin Ishaq, Muhammad bin Maqatal and Hajjaj bin Irtiqa differed with them” [ Sharh Muslim Al-Nawawi, Baab Al-Talaq ]
It is known that Tawus, Muhammad bin Ishaq and Hajjaj bin Irtiqa are amongst the 1st and 2nd century hijri, And Muhammad bin Maqatal is amongst the 2nd and 3rd century hijri.
Imam Ibn Rashd Qurtubi Maulud (560-595 H) a Maliki Jurist :
There is consensus of all the Ulemas that giving 3 divorce on separate times the divorce taken place, But there is difference when instead of separate if the divorce is given in one sitting 3 times then whether the divorce will taken place or not, Jumhar Fuqahha are of the opinion it can be, but Ahle Zahir and one Jammat of the Ulemas are of the view that it will be counted only as 1 Rujui divorce, and we on the basis of Proofs of Shariah are of the view that those people who are of the view that Talaq e Salasa in one time will be counted as 3 are finishing the wisdom Shariah rules.
It is obvious that in this Jammat of Ulema, it includes those Ima of Maliki which are found before Ibn-e-Rashd in the 3rd, 4th and the 5th Hijri. For instance Qazi Ahmad bin Baqi Bin Makhlad, Muhammad bin Abdul Salam Khashi and other Ahle-Ilm of this era which i quote in this article.
Imam Talmasani Ibrahim bin Yahya Maliki (633 H) :
Allama Qastalani writes in Sharh of Sahih Bukhari :
Maliki Imam Sheikh Khalil in Ishaq Junadi Misri in his book Al-Tusahi Sharh Jama Al-Fahat has written Imam Talmasani Ibrahim bin Yahya bin Musa Abu Ishaq said in our Maliki Madhhab there is a Fatwa Divorce given 3 times in one sitting would be considered as one. Imam Talmasani said this has been mentioned in the book Kitab Al-Nuwadar Walziyadat Al-Ibn e Abi Ziyad but i myself didn’t see it. [ Irshad Al-Sari 8/127 ]
Note : Saying of Imam Khalil that he himself didn’t see it, doesn’t mean that Imam Talmasani quoted it wrong. Because other Ulemas also quoted it that’s why Maliki also have this opinion.
He quoted the book of Ibn-e-Abi Ziyad who was the scholar of 398 or 389 H.
Imam Al-Mazi Muhammad Bin Ishaq and Qazi Hajjaj bin Irtiqa (The Scholars of the Era of Abu Hanifah and Imam Malik) :
Imam Qastalni writes :
“In Ala-Sharaf Ala Madhhab Ala-Sharaf of Wazir Yahya bin Muhammad Bin Habira Al-Shayabani Al-Baghdadi Hanbali writes In it, in one sitting 3 divorces will take place as one, amongst them were Imam Al-Mazi Muhammad Bin Ishaq and Qazi Hajjaj bin Irtiqa”
Wazir Yahya bin Muhammad Bin Habira Al-Shayabani Al-Baghdadi Hanbali was a scholar of 499-560 H ( See Seera Alam Al-Nubla 20/426-232 )
See that a Hanbali Scholar of 560 Hijri is telling about the scholars of the era of Imam-e-Azam Abu Hanifah (rah),
Muhammad bin Ishaq and Qazi Hajjaj bin Irtiqa is amongst the view that 3 divorces in one sitting cannot take place.
As they were of the era of Abu Hanifah (rah), they were also in the era of Imam Malik (rah) because they were amongst 1st and 2nd Century Hijri.
These 2 scholars have also quoted by Imam Badar-ud-Din Aini Hanafi in Sharah of Bukhari Ummatdul Qari 1/534.
Imam Abu-Abdullah Muhammad Qurtubi 672 H:
Imam Abu-Abdullah who died in the same year of Imam Nawawi (r).
He adopted the same way of Imam Nawawi and quoted Jamhur Salaf but didn’t called it Ijma rather showed Ikhtelaf by quoting the opposing scholars.
“Our Ulema (Means Maliki Jurists) have stated that giving 3 talaqs in a sitting and on its taking place have Ima-e-Fatwa (Means Maliki Jurists) have consensus, and Jamhur Salaf have the same Maddhab, and Tawus and some Ahle-Zawahir have adopted the way of Shazuz and said that 3 talaqs would be considered as one, this has been narrated also from Muhammad bin Ishaq and Hajjaj bin Irtiqa and from them also it has been narrated that these talaqs even will not take place. Maqatal aslo have this Maddhab, From Dawud Zahiri has been narrated same, and from Hajjaj this saying is famous but Jamhur Salaf and Ima-e-Fatwa consider it. [ Tafsir Qurtubi 3/219 ]
After quoting these scholars, he also quote other Maliki Scholars which breaks the Consensus of them too.
“There is consensus of everyone that whosever gives 3 talaq he is considered as damind, but there is difference that how much talaq will take place. Therefore companions like Hazrat Ali, Ibn-e-Masud, Ibn-e-Abbas, Zubair bin Awam, Abdur-Rehman bin Awf (May Allah be pleased with them all) will considered these type of 3 talaq to 1. And the same has been narrated from Mashaykh of Kurtuba Ibn-e-Zanbah, Ahmad bin Baqi, Muhammad bin Abdul Salam Khashi type of scholars who are pious and Faqi. Furthermore Zabakh bin Al-Khabab and except this also one Jammat have a same Fatwa” [ Tafsir e Qurtubi 3/132 ]
Imam Qurtubi called it Difference not Ijma, that how much talaq will take place.
Imam Qurtubi previously stated the consensus of Ima-e-Fatwa of Maliki Jurists and he breaks it by quoting from a more big scholar of Malikis Imam Ahmad bin Maghiz that many of the Sahabas and Maliki Jurists like Ibn-e-Zanbah and Ahmad bin Baqi etc, were of the same view of Ahlul Hadith. All these scholars were from 2nd to 4th Century Hijri.
InshAllah, more will be added.