Scholars agree on the validity of ishhad (attestation) in muraja'ah (revocation of divorce) and talaq (divorce), but they disagree whether it is obligatory or recommended. The reason of their disagreement, I think, stems from their different understanding of the implication of amr (command) in the Qur'anic statement "وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ – And bring to witness two just men from among you", whether it denotes obligation or recommendation. Whilst the majority of scholars hold that the imperative sentence signifies recommendation (nadb), others argue that the command in the verse conveys its genuine rule of obligation (wujub) as there is no qarinah (supportive evidence) to convey amr (command) from wujub (obligation) to nadb (recommendation).
Definition of Talaq
Talaq linguistically means loosing and untying something. (Fayyumi, al-Misbah al-Munir, Vol. 2, p. 376)
Technically, talaq, as defined by the Hanafi jurist ibn Abdin, means: breaking the marriage knot in immediate effect or in future by uttering a special wording "i.e. talaq" or its equivalents. (Ibn Abdin, Rad al-Muhtar, Vol. 3, pp. 226-227)
Definition of Shahadah (Witness)
The Linguist ibn Mandhur defined shahadah linguistically as a decisive announcement. (Ibn Manzur, Lisan al-Arab, p. 494)
Technically, it means: to give a reliable information by someone of what he has seen or heard, by using shahadah wordings such as when someone says: "I attested (ashhadu) to something" or "I attested I saw something". (Ibn Nujim, Al-Bahr al-Ra'iq, Vol. 3, p. 409; Dardir, Al-Sharh al-Kabir, Vol. 4, p. 164; Shaybani, Nayl al-Ma'arib, Vol. 2, p. 470)
Therefore, the usage of the term shahadah (attestation) in divorce means: to bring two witnesses by the husband to witness to the divorce.
Review of Scholarly Views
Whilst scholars agree on the meaning and validity of ishhad (attestation) in talaq, they disagree whether it is obligatory or just recommended:
Thus, according to this view, unattested talaq is abid'i talaq (talaq violates the Sunnah ordained talaq) and the one who does such an act is a sinner.
Some modern scholars such as Ahmed Shaker, further argued that if a man divorced his wife without bringing two witnesses, his divorce is null and void and takes no effect. Because he violates Allah's commands. Thus, his talaq is invalid and takes no effect, i.e. his talaq is not counted and as if he did not do anything except a perforation of a sin, (Ahmed Shaker, Nizam al-Talaq fi al-Isalm, p. 80)
However, the majority of scholars agree unattested talaq is legally valid and binding. Even ibn Hazm, whom Ahmed Shakir claims to follow, agrees with this view as he said:
وَلَا نَعْلَمُ خِلاَفًا فِي أَنّ مَنْ طَلَقَ وَلَمْ يُشْهِدْ أَنّ الطَّلاَقَ لَهُ لاَزِمٌ وَلَكِنْ لَسْنَا نَقْطَعُ عَلَى أَنه إِجْمَاعٌ - ابن حزم مراتب الاجماع، صـ 72.
I do not know anyone disagreed with the view that unattested talaq is binding to the husband. But I am not sure if there is an ijma on this notion or not. (Ibn Hazm, Maratib al-Ijma, p. 72)
The disagreement among scholars about the obligation of ishhad in talaq stems from their different understanding of the implication of amr (command) "وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ – And bring to witness two just men from among you", whether it denotes obligation or recommendation. Also, each group presents a number of textual and rational arguments:
Evidences of Majority of Scholars
Majority of scholars agree that there is no reference in the Qur'an nor in the Sunnah to suggest that shahadah is obligatory in talaq nor it is a condition of the validity of talaq. They based their position on Qur'an and Sunnah as well as Ijma and Qiyas:
فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ – البقرة 2/65
And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah. (Qur'an 2:65)
In this verse, majority of scholars deduced that amr (command) in وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِنْكُمْ) - And bring to witness two just men from among you) denoting a recommendation and not signifying an obligation. This is similar to selling, as unattested selling contract is valid according to the majority of scholars. Ishhad in talaq is only meant to block the ways of denial of divorce and dispute. (Razi, Mafatih al-Ghayb, Vol. 30, p. 562)
The qara'in of this notion of recommendation comes from the application of the Prophet (saw) and his companions (raa) as discussed in the sub-suction below.
يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا – الأحزاب 33/49
O You who have believed, when you marry believing women and then divorce them before you have touched them, then there is not for you any waiting period to count concerning them. (Qur'an 33:49)
وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ ۚ وَلَا تُمْسِكُوهُنَّ ضِرَارًا لِّتَعْتَدُوا – البقرة 2/231
And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. (Qur'an 2:231)
الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ – البقرة 2/229
Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. (Qur'an 2:229)
In the last three verses mentioned above, Allah (swt) demonstrates divorce and its related rulings without referring to attestation. If the presence of the two witnesses is really a condition for the validity of divorce, Allah would explain to us such a condition. (Hasan Khalid & Adnan Najahm Ahkam al-Ahwal al-Shakhsiyah fi al-Shari'ah al-Islamiyah, p. 43)
عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ ـ رضى الله عنهما ـ أَنَّهُ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ عَلَى عَهْدِ رَسُولِ اللَّهِ صلى الله عليه وسلم فَسَأَلَ عُمَرُ بْنُ الْخَطَّابِ رَسُولَ اللَّهِ صلى الله عليه وسلم عَنْ ذَلِكَ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " مُرْهُ فَلْيُرَاجِعْهَا، ثُمَّ لِيُمْسِكْهَا حَتَّى تَطْهُرَ ثُمَّ تَحِيضَ، ثُمَّ تَطْهُرَ، ثُمَّ إِنْ شَاءَ أَمْسَكَ بَعْدُ وَإِنْ شَاءَ طَلَّقَ قَبْلَ أَنْ يَمَسَّ، فَتِلْكَ الْعِدَّةُ الَّتِي أَمَرَ اللَّهُ أَنْ تُطَلَّقَ لَهَا النِّسَاءُ ".
Abdullah ibn Umar narrated: that he had divorced his wife while she was menstruating during the lifetime of Allah's Messenger (saw) . Umar bin Al-Khattab asked Allah's Messenger (saw) about that. Allah's Messenger (saw) said, "Order him (your son) to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again, whereupon, if he wishes to keep her, he can do so, and if he wishes to divorce her he can divorce her before having sexual intercourse with her; and that is the prescribed period which Allah has fixed for the women meant to be divorced." (Bukhari 68:1; Muslim 18:3)
In the hadith, Prophet (saw) said to Umar: " مُرْهُ فَلْيُرَاجِعْهَا - Order him (your son) to take her back…" and he did mention ishhad. (Shawkani, Nayl al-Awtar, Vol. 6, p. 300)
This refers that ishhad is only recommended in talaq and does not affect its validity.
Shawkani, ibn Taymiyah and other classical scholars conveyed the ijma (consensus) of Muslim scholars that ishhad is not obligatory in divorce and raj'ah (revocation of divorce). (Ibid, vol. 6, p. 300; Mawza'i, Taysir al-Bayan, Vol. 4, p. 265, Ibn Taymiyah, Majmoo al-Fatawa, Vol. 33, p. 33)
Scholars drew an analogy between selling contracts and divorce as both of them are a relationship between to parties. They argue since ishhad is only recommended in selling and has no legislative remit, similarly, it is not obligatory in talaq. (Jassas, Ahkam al-Qur'an, Vol. 5, pp. 351-350)
Evidences of Second Group
Ibn Hazm and some contemporary scholars such as Muhammad Abu Zahrah, Ahmed Shaker and Albani argued that ishhad (attestation) is obligatory in divorce. They presented the following arguments:
وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ – البقرة 2/65
And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah. (Qur'an 2:65)
According to this group, the statement "أَشْهِدُوا - bring to witness" implies an imperative command. Thus, ishhad is an obligatory precession in talaq, based on the usuli qa'idah (maxim) which denotes that command basically signifies an obligation (wujub), unless there is a sarif (counter-evidence) to suggest otherwise. Thus, the one who did not bring witnesses in talaq is sinful because he violated Allah's command. (Muhammad Biltagy, Dirasat fi Ahkam al-Ausrah, p. 118; Ahmed Shaker, Nizam al-Talaq fi al-Islam, p. 11)
Majority of scholars, however, argues that amr (command) in this verse signifies a recommendation and not signifying an obligation. This is similar to the recommendation of ishhad in selling. Majority of scholars agree that the unattested selling contract is valid and binding. Similarly, ishhad is only recommended in talaq. (Razi, Mafatih al-Ghayb, Vol. 30, p. 562)
There are a lot of incidents in this answer prove that ishhad was not a necessary procedure for talaq. So, these events are considered qara'in for the amr to be for the recommendation, not for the obligation.
These scholars also cited a narration claiming the Prophet (saw) considered the unattended talaq is not counted:
عَنْ مُطَرِّفِ بْنِ عَبْدِ اللَّهِ، أَنَّ عِمْرَانَ بْنَ حُصَيْنٍ، سُئِلَ عَنِ الرَّجُلِ، يُطَلِّقُ امْرَأَتَهُ ثُمَّ يَقَعُ بِهَا وَلَمْ يُشْهِدْ عَلَى طَلاَقِهَا وَلاَ عَلَى رَجْعَتِهَا فَقَالَ طَلَّقْتَ لِغَيْرِ سُنَّةٍ . وَرَاجَعْتَ لِغَيْرِ سُنَّةٍ أَشْهِدْ عَلَى طَلاَقِهَا وَعَلَى رَجْعَتِهَا وَلاَ تَعُدْ – أبو داود 13/12، وابن ماجة 10/2103
Mutarrif ibn Abdullah narrated: Imran ibn Husayn was asked about a person who divorces his wife, and then has intercourse with her, but he does not call any witness to her divorce nor to her restoration. He said: "You divorced against the sunnah and took her back against the sunnah. Call someone to bear witness to her divorce, and to her return in marriage, and do not repeat it." (Abu Dawud 13:12; ibn Majah 10:2103)
They argue the Prophet (saw) said (ولا تَعُدْ - don't count it). But this reading is false because it means, as noted by the commentators, it means do not repeat it, which is very close in pronunciation:
من عاد يعود، أي ولا تعُدْ إلى ترك الإشهاد على الطلاق ولا على الرجعة.
"It (the term) comes from Aada (returned or did again) ya'udu i.e. don't leave the ishhad again for talaq and raj'ah." (Saharnafuri, Badhl al-Majhood, Vol. 8, p. 153)
In addition, while this narration was narrated by Ibn Majah and Abu Dawud, this part id only mentioned in the later's version which can be a mistake by the later narrator. (Ibn al-Mulaqin, Al-Badr Al-Munir, Vol. 8, p. 131)
However, if this tradition cannot stand as an evidence, if understood in that incorrect way, since it is a mawquf narration (ascribed to a companion, not to the Prophet). (Ibn Hajar al-Asqalani, Bulugh al-Maram, Vol. 1, p. 331)
Shawkani mentioned that this hadith is not valid proof because it is based on the personal ijtihad of one of the Companions. In fact, Imran ibn Husayn was a non-jurist Companion and the fatwas of the . In addition, he disagreed in this opinion with the jurist Companions. (Shawkani, Nayl Al-Awtar, Vol. 5, p. 7)
Thus, this tradition as well as the rest of their argument are problematic and cannot stand as a valid evidence for the obligation of ishhad in divorce because it contradicts the unequivocal evidences.
After reviewing the opinions of majority of scholars and the other group, the preponderant opinion in my view is the position of the majority of scholars who view that ishhad (attestation) is not obligatory in divorce and is only recommended and that unattested talaq is valid and takes effect (counted). Because their evidences and argumentation are stronger. However, Ibn Hazm and some contemporary scholars such as Ahmed Shaker, Muhammad Abu Zarhrah and Albani contended that ishhad (attestation) is obligatory in divorce. Ahmed Shaker, further argues unattested talaq is null and void and takes no effect. But the later views are not classically or legally accepted as they are void of any evidences and there is no classical scholar claimed that ishhad is a condition for the validity of talaq (for it to be counted), let alone the counter narrations and arguments for the validity of such a procedure.
Ahmed Shaker, Nizam al-Talaq fi al-Islam
Fayyūmī, al-Misbah al-Munir
Ibn Abdin, Rad al-Muhtar
Ibn Hajar al-Asqalani, Bulugh al-Maram,
Ibn Hazm, al-Muhla
Ibn Nujim, Al-Bar al-Ra'iq
Ibn Taymiyyah, Majmu al-Fatawa
Jassas, Ahkam al-Qur'a
Mawza'i, Taysir al-Bayan
Shawkani, Nayl al-Awtar
Zayla'i, Tabieen al-Haqa'q
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