Hadith 5264

أَوِ الْخَلِيَّةُ أَوِ الْبَرِيَّةُ أَوْ مَا عُنِيَ بِهِ الطَّلاَقُ، فَهُوَ عَلَى نِيَّتِهِ، وَقَوْلُ اللَّهِ عَزَّ وَجَلَّ : وَسَرِّحُوهُنَّ سَرَاحًا جَمِيلا سورة الأحزاب آية 49 ، وَقَالَ : وَأُسَرِّحْكُنَّ سَرَاحًا جَمِيلا سورة الأحزاب آية 28 ، وَقَالَ : فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ سورة البقرة آية 229 ، وَقَالَ : أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ سورة الطلاق آية 2 ، وَقَالَتْ عَائِشَةُ : " قَدْ عَلِمَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ أَنَّ أَبَوَيَّ لَمْ يَكُونَا يَأْمُرَانِي بِفِرَاقِهِ " .
Or I permitted, or he may say: "Now you are free," or "separated," or "Come, let me send you off properly." Similarly, in Surah Al-Baqarah it is stated: if he uses such a word from which divorce can be understood, then divorce will occur according to his intention. Allah the Exalted says in Surah Al-Ahzab «وسرحوهن سراحا جميلا‏»: "Release them with kindness," and in the same Surah He says «فإمساك بمعروف أو تسريح بإحسان‏ا‏»: "After that, either retain them according to the rule or release them with good conduct." And Aisha (may Allah be pleased with her) said that the Prophet (peace and blessings of Allah be upon him) knew well that my parents could not advise me to «فراق» (here «فراق» means divorce) from the Prophet (peace and blessings of Allah be upon him).
وَقَالَ الْحَسَنُ : نِيَّتُهُ ، وَقَالَ أَهْلُ الْعِلْمِ : إِذَا طَلَّقَ ثَلَاثًا فَقَدْ حَرُمَتْ عَلَيْهِ فَسَمَّوْهُ حَرَامًا بِالطَّلَاقِ وَالْفِرَاقِ وَلَيْسَ هَذَا كَالَّذِي يُحَرِّمُ الطَّعَامَ لِأَنَّهُ لَا يُقَالُ لِطَعَامِ الْحِلِّ حَرَامٌ ، وَيُقَالُ لِلْمُطَلَّقَةِ حَرَامٌ ، وَقَالَ : فِي الطَّلَاقِ ثَلَاثًا لَا تَحِلُّ لَهُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ.
Imam Hasan al-Basri said that in this case, the legal verdict will be based on his intention, and the people of knowledge have said that when someone gives his wife three divorces, she becomes forbidden for him. Here, the prohibition is established through the words of divorce and «فراق», and making a woman forbidden upon oneself is not like making food forbidden. The reason is that one cannot declare lawful food as forbidden, but a divorced woman is called forbidden. Allah the Exalted has said regarding a woman who has been divorced three times that she will not be lawful for the previous husband until she marries another husband.
وَقَالَ اللَّيْثُ : حَدَّثَنِي نَافِعٌ ، قَالَ : " كَانَ ابْنُ عُمَرَ إِذَا سُئِلَ عَمَّنْ طَلَّقَ ثَلَاثًا ، قَالَ : لَوْ طَلَّقْتَ مَرَّةً أَوْ مَرَّتَيْنِ فَإِنَّ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ أَمَرَنِي بِهَذَا ، فَإِنْ طَلَّقْتَهَا ثَلَاثًا ، حَرُمَتْ حَتَّى تَنْكِحَ زَوْجًا غَيْرَكَ " .
Nafi' said: When Ibn 'Umar was asked about person who had given three divorces, he said, "Would that you gave one or two divorces, for the Prophet (saws) ordered me to do so. If you give three divorces then she cannot be lawful for you until she has married another husband (and is divorced by him)."
Hadith Reference صحيح البخاري / كتاب الطلاق / 5264
Hadith Grading محدثین: أحاديث صحيح البخاريّ كلّها صحيحة
Explanation & Benefits
Maulana Dawood Raz
Hadith Commentary:
The narration of the fatwa of Imam Hasan al-Basri rahimahullah has been transmitted in a connected form by ‘Abd al-Razzaq.
The meaning is that if the intention of the one saying such words is divorce (talaq), then divorce will take place.
If the intention is of zihar (a form of pre-Islamic separation), then zihar will take place.
The Hanafis say that if he intends one or two divorces, then one irrevocable divorce (talaq bain) will occur; if he does not intend divorce, then it will be considered ila’ (an oath of abstention).
Imam Abu Thawr and al-Awza‘i said that by saying such words, he must give the expiation (kaffarah) of an oath.
Some have said that he must give the expiation of zihar. The Malikis say that by saying such words, three divorces will occur.
Some say that such a statement is futile (laghw) and nothing becomes binding by it.
In short, in this issue, al-Qurtubi has transmitted eighteen opinions from the Salaf, so the word “release” (rukhsat) is not to be taken as meaning divorce.
The intent of Imam al-Bukhari rahimahullah is that explicit divorce (talaq sareeh) is only that in which the word “divorce” (talaq) or its derivative is used, for example: “anti mutallaqah” (you are divorced), “tallaqtuki” (I have divorced you), “anti talaq” (you are divorced), or “alayki al-talaq” (divorce is upon you). As for other words such as separation (firaq), release (tasreeh), free (khaliyah), absolved (baree’ah), etc., divorce will only occur with them if the husband’s intention is divorce, because these words have other meanings besides divorce, as in this verse of Surah al-Ahzab:
(يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحًا جَمِيلًا)
(al-Ahzab: 49)
Here, by “tasreeh” (release), what is meant is to let go, not to give divorce, because divorce has already been mentioned before, and a woman who has not been consummated with (ghayr madkhulah) becomes irrevocably separated with a single divorce—where is the place for a second divorce?
In summary, in the verse, “tasreeh” and “fariquhunna” (separate from them) do not mean divorce, because divorce has already been mentioned above.
(Wahidi)
Source: Sahih Bukhari: Commentary by Maulana Dawood Raz, Page: 5264
Shaykh Abdul Sattar al-Hammad
Hadith Commentary:
(1)
Imam Bukhari rahimahullah mentioned in the chapter heading the statement of the scholars that declaring one’s wife unlawful (haram) and declaring food unlawful are two separate issues. Declaring food unlawful is a type of forbidding the permissible (tahrim mubah), which is not permitted, but a wife can be declared unlawful due to divorce, as is mentioned in the cited hadith. Ibn Umar radi Allahu anhuma states: When someone gives his wife three divorces, she becomes unlawful (haram) for him; that is, in this hadith, the word “haram” is used regarding the wife. In any case, the forbidding of the lawful (tahrim halal) does not apply in its absolute sense. For the wife, it is permissible (i.e., to declare her unlawful due to divorce), but for food, it is not permissible.

(2)
It appears that, according to Imam Bukhari rahimahullah, when someone declares his wife unlawful (haram) upon himself, it depends on his intention—whether by this he means divorce or an oath (qasam). This is why Imam Bukhari rahimahullah, after the chapter heading, cited the statement of Hasan al-Basri. It is the habit of Imam Bukhari rahimahullah that in disputed matters, he mentions the statements of various scholars and then expresses his own inclination. (Fath al-Bari: 9/463)
Wallahu a‘lam.
Source: Hidayat al-Qari: Commentary on Sahih Bukhari, Urdu, Page: 5264