Does a divorce occur if a husband swears to his wife by divorce that she will not return before sunrise, knowing that she returned before the Fajr athan, and this was during the marriage contract period and before consummation?
The preponderant opinion is that a wife's obedience before consummation is due to her guardian, not her husband. As long as she is with her family, she is under their authority, and her family manages her affairs. As for a conditional divorce, it occurs if the wife does what it was conditioned upon, and it results in a minor irrevocable divorce unless the husband has had a valid seclusion ( sahiha) with her. If the husband pronounces the three divorces in a single utterance, she becomes irrevocably divorced from him with a major irrevocable divorce, according to the preponderant opinion. Ibn Taymiyyah held that a conditional divorce does not occur if the one who made the oath did not intend to effect it, and he is then obliged to offer expiation for an oath (kaffarat ). However, as long as the woman has not done what was sworn upon and returned to her home before the specified time, the divorce does not occur upon her.
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