Case: If a husband divorces his wife irrevocably then married her again, should he start over with the times of divorce or he should resume the left-over times of divorce? (1)
The first case is: If a husband divorces his wife irrevocably then takes her back in marriage, she will go back to him and he shall resume the left-over times of divorce without any disagreement among scholars.
If a husband divorces his wife then she marries another man and he consummates marriage with her then divorces her or dies and she marries the first husband, should she go back to him and he resumes the left-over times of divorce or should he start over?
It is controversial among scholars according two views:
The first view is: The view of the grand Companions of the Prophet (peace be upon him) such as `Umar, `Ali, Ubay ibn Ka`b, `Imran ibn Al Husayn, Abu Hurayrah and others (may Allah be pleased with them), the scholars of Hadith including Malik, Ash-Shafi`y and Ahmad that the wife should go back to the husband and resume the left-over times of divorce. They held the narration of Ibn Al Mubarak as a proof from `Uthman ibn Miqsam who told him that he heard Nubayh ibn Wahb narrating from a man of his people who reported from one of the Companions of the Messenger of Allah (peace be upon him) that the Messenger of Allah (peace be upon him) judged that when a man divorces his wife without reaching three-times divorce then he takes her back in marriage after she had married another who divorced her or died that she will go back to the first husband and he should resume the left-over times of divorce. (2)
They said: Marrying another person was a requisite for going back to the first husband after divorcing her for three times, then they should start over marriage and the times of divorce. However, the wife whom had been divorced one or two times then married another person then he divorced her or died, the second marriage did not affect the first marriage and did not make her lawful for the first husband because he could marry her even before she marries another person, thus it did not destroy the first relationship and did not add to it. So, when they go back in marriage, only the left-over times of divorce are counted.
The second view is: She goes back to the first husband and starts over marriage and the times of divorce which is the view of Ibn `Umar, Ibn `Abbas, and Abu Hanifah because the second marriage removed the effect of the first relationship after which the wife was made unlawful for her first husband, so it is more entitled to remove the effect of one or more times of divorce.
The second case is: If a husband divorces his wife irrevocably and she marries another and he consummates marriage with her then he divorces her or dies then she went back to her first husband, they will start over marriage and times of divorce without any disagreement among scholars.
(1) See: Sharh Fath Al Qadir 4/184, Al Mudawwanah 2/75, Al Istidhkar 6/200, and Zad Al Ma`ad 5/279.
(2) Ibn Al Qayyim said: Even if this narration contains a weak and unknown narrator, the grand Companions used to hold this view.