العروة الوثقى الزيدية - موقع إسلامي يهدف لتعريف الزائر بفكر وتراث المسلمين الزيدية

The Question

Question: If a man divorces his wife with an innovated (bidʿī) divorce while, at the time, he believes it takes effect—being unaware that it is bidʿī and forbidden—and this man is a beginner in seeking knowledge and, in general, a muqallid of the madhhab, is it permissible for him to seek a fatwa from one who holds that bidʿī divorce does not take effect and to leave aside the words of the people of the madhhab, or not?

The Answer

Answer—and Allah is the One who grants success: Moving to the madhhab of a learned, upright scholar who fulfills the conditions of taqlīd is unobjectionable.
The proof for that is the saying attributed to the Prophet (May Allah bless him and his family and grant them peace): “My Household are like the stars: whenever one star sets, another rises,” and his saying (May Allah bless him and his family and grant them peace): “My Household are like Noah’s Ark…,” and similar reports are many.
And it is related that a group sought a fatwa from ʿAlī (peace be upon him) regarding a matter—I think it was the breaking of ostrich eggs during iḥrām—and the Commander of the Faithful issued them a fatwa that weighed upon them; whereupon the Prophet (May Allah bless him and his family and grant them peace) said: “Come to the concession,” and issued them a fatwa other than the fatwa of ʿAlī (peace be upon him).
One may also infer this from what Allah—Exalted is He—related of the judgment of Dāwūd and Sulaymān concerning the field when the sheep of some people strayed into it.
What also supports what we have said is the statement of the people of the madhhab: that imitating the living is superior to imitating the dead.
And, in general, it is supported by His—Exalted is He—saying: "Allah intends for you ease and does not intend for you hardship." [Al-Baqarah:185], and "He has not placed upon you in the religion any hardship." [Al-Ḥajj:78]. What may also indicate it, in general, is His—Exalted is He—saying to Ayyūb: "And take in your hand a bundle [of grass] and strike with it and do not break your oath." [Ṣād:44]—from which is taken the permissibility of exiting some straits of obligation, and that Allah wills this for His believing servants.
And what has come in the report from the Prophet (May Allah bless him and his family and grant them peace): “Indeed Allah loves that His concessions be taken just as He loves that His determinations be taken.”
Yes: this is not a matter of playing games or recklessness in religion. What concerns us here is the desire to escape major predicaments. As for playing games and recklessness, that is seeking out excuses in order to reach the unlawful—such as consuming usury, listening to song, drinking intoxicants, and the like.
Source : Min Thimār al-ʿIlm wa al-Ḥikmah vol.1