A woman whose husband divorced her three times before a judge, who ruled that they were separated by major divorce, then learned years later that the Sunnah in such a divorce is that it counts as one

The questioner : Connecting to our previous topic on divorce, one of the questions was thatThe questioner : If a person consults a scholar about a legal issue and the scholar issues a ruling for him, and he acts upon it, then he consults another scholar who holds the opposite view and believes the first ruling contradicts a fixed text in the religion, is the person allowed to return from his ruling? The example that actually happened to me is that I thought I had sent you a question through one of the brothers, and I want to receive the answer now, if Allah wills. A Saudi woman and her husband came to me, along with a friend who directed them to me. They said that this woman’s husband divorced her three times before a judge in Jeddah, saying, “You are divorced, then you are divorced, then you are divorced.” The judge there ruled that they were separated by major divorce, and they separated on that basis.

The Shaykh : And upon you be peace and the mercy of Allah.

The questioner : Years passed, and then it seems he or she was informed, or you heard, that they regretted their separation and wished to return. So they consulted many people, including the one who directed them to me, and they were told that some scholars hold that three divorces in one session count as one. The Shaykh of Islam, Ibn Taymiyyah (may Allah have mercy on him), and Ibn al-Qayyim, and others, had preceded them in this view. So she came to consult. I told them that the legal ruling is this: what is established in Sahih Muslim from the hadith of Ibn Abbas is that the three divorces were counted as one in the time of the Messenger of Allah (peace and blessings be upon him), the time of Abu Bakr, and part of the caliphate of Umar. Then Umar said, “I see that people have hastened in a matter in which they had been given respite, so if I were to allow them to proceed, I would allow them.” This text, of course, indicates that the three divorces were one, which was the Sunnah of the Messenger of Allah (peace and blessings be upon him). If the followers of the four schools of jurisprudence had followed Umar in his ruling and counted one as three, even though they did not consider the point that Umar considered, which was that he did so as a temporary measure to deter people from it, and his intention was not to make it a permanent law, should I rule that the three divorces that occurred in the court are void and invalid, and that they can now return to each other? Please advise us, may Allah reward you.

The Shaykh : What I see, and Allah knows best, is that it is necessary to distinguish. If the person who consulted adopted the ruling of the first scholar, then he is not allowed to return to the ruling of the second scholar who contradicts the first. But if he had not adopted it, he is in the process of seeking clarity. If he asked one scholar, then moved to another, and so on, until he settled on adopting the opinion of one of those scholars, then it can be said that he is not bound by the opinion of the first scholar because he had not adopted it. But since your question included whether the scholar can retract his ruling, we also say, as we said regarding the person who consulted, if the scholar issued a ruling for the person and it was implemented, the scholar can retract his ruling regarding others. But regarding this first person who consulted, it is said, “The matter is decided regarding that which you consult about.” And as came in some reports from Umar ibn al-Khattab (may Allah be pleased with him), that he issued a ruling on a share in inheritance based on an opinion, then he was asked about it later, perhaps a year later, and he issued a different opinion. He was told, “You previously ruled thus.” He said, “That was based on what we ruled at that time, and this is based on what we rule now.” So there is no way in the Shari'ah to retract a previous ruling and issue a new one in its place. This is a matter I see is not only prescribed, but also something that reason affirms, otherwise rulings would be corrupted, and the relationships between people would be corrupted, especially between spouses. If we suppose such a question: a judge ruled that a man was separated by major divorce, so he left her and she left him, and she went and married a second husband after the waiting period ended. Then another judge came and said, “No, this divorce is not a major divorce, it is just one revocable divorce.” What is to be done? That was based on what the first scholar ruled, and this is based on what the other scholar rules. For this reason, we see that the distinction mentioned relates to the scholar on one hand and the person who consulted on the other. The scholar can retract before his first ruling is implemented for the person who consulted. But if the first ruling was implemented and the matter was decided, he can return regarding another question that comes to him if he realizes he was wrong in his first ruling. Similarly, the person who consulted, if he had not adopted it but was seeking clarity, asking this one and that one, and finally settled on one of those opinions and adopted it, if a fourth or fifth opinion comes to him, he is not allowed to overturn the previous opinion, otherwise it would become a cycle with no end. This is what we understand from jurisprudence and the Salafi reports, and Allah knows best. In the name of Allah.

The questioner : The Shaykh : Abu Malik, peace be upon you... but he was busy and could not come.

The Shaykh : And peace be upon you, or peace be upon you and upon him, if Allah wills, we will see him again.

The questioner : I say that he adopted the ruling. If he is a follower, meaning a layperson, what is adoption here? He does not distinguish between the evidences to say, “I am convinced by this” or “I am convinced by that.” So here, only the action remains.

The Shaykh : You know the statement of the scholars that they mention: “The layperson has no school of jurisprudence; his school is the school of his scholar.” But we say, better than their statement, obviously, is the statement of the Lord of the Worlds: So this layperson asked the people of knowledge and they issued a ruling for him, so it is obligatory for him to adopt it. If doubt or uncertainty arises in his heart, then he moves to ask another. But if nothing of doubt or uncertainty arises in his heart, it means the ruling has reached him. So we do not concern ourselves now with the distinction that the Salafis adopt, which is a correct and real distinction, but it is not appropriate to apply it now in what we are dealing with in this example. There is following, there is imitation, there is independent legal reasoning. The important thing—and peace be upon you—as I say on such an occasion, this verse actually gives us very important jurisprudence regarding the care of the individuals of the Muslim community. The verse divides individuals into two categories: the knowledgeable and the unknowledgeable, and it obligates each category with what is not obligated on the other. It obligates the category that is unknowledgeable to ask the knowledgeable. So when the knowledgeable answers him, this becomes his school. We return to the statement that the layperson has no school of jurisprudence; his school is the school of his scholar. But this is a reality, and the Shari'ah supports it. If a person consults and is issued a ruling or decision, and doubt and uncertainty remain in his heart, he should not rule exactly like the knowledgeable person. If he has doubt and uncertainty about a ruling that he should issue, he must be scrupulous until the truth becomes clear to him. Similarly, the ignorant layperson, if he consults a scholar and is not convinced by his ruling, the previous distinction applies, and he moves to another scholar until he is issued an opinion that he is reassured by.
Here, it is necessary to remind you of the condemnation we discussed in a previous topic, where it was mentioned that a man said he divorced his wife while angry. How do we know that? He is only condemned for this statement. Similarly, here, when a man asked a mufti and the mufti issued a ruling, and his heart found peace with that ruling, it means he did not adopt that ruling. It means that the Sharia evidence was not established for him. As you know, the Sharia evidence for the scholar is "Allah said" or "The Messenger of Allah said." The Sharia evidence for the non-scholar is "the scholar said." This is a point where, in reality, I know many Salafi scholars, and others besides them, who have some confusion or strictness such that they may make it obligatory for the general Muslim public and the ignorant among them to take up an issue with its evidence. First, this is impossible. Second, this is contrary to the way of the righteous Salaf. A man would come and ask one of the Companions, and the Companion would issue a ruling for him. It was very rare for him to say, "Allah said such and such, and the Messenger of Allah said such and such," contrary to what many of our Salafi brothers think, that it is obligatory for the mufti to accompany his ruling with evidence. The word "obligatory" must be removed. As for what is "good" (hasan), that is a separate matter. Yes, because if we examine all the rulings transmitted to us through the Salafi reports, it is very rare to find a ruling accompanied by "Allah said" or "The Messenger of Allah said." So, if the questioner is issued a ruling and he doubts that ruling, he is like the scholar who doubts whether a hadith is authentic or not. It is not permissible for him to adopt it or adopt the ruling it contains. Similarly, the layperson, unless he is issued a ruling and his heart does not find peace with it and his chest does not open to it, so he goes and asks another, and he finds peace with that one. Here, the man is condemned for not following his desire. And here comes the saying of the Messenger (peace be upon him): So the matter is very clear: this questioner who asked the first mufti and adopted his ruling—how does he know if it is correct or wrong? But he knows that this is a scholar, even if in his opinion he might be one of the most ignorant people, as is the reality. This is a matter with no end. But the important thing is that in his opinion, he is a scholar. So he asked, which means he applied the noble verse: "If you are answered, you have adopted it, so it became a Sharia ruling for him. As long as he has adopted it, he should not rely on another opinion, especially if he feels that there is a desire in his soul for that other opinion. Therefore, in answer to your question, "How does he know?" He knows by the statement of the scholar. That is his evidence. I think this completes the answer to the question, if Allah wills.