Concept of Divorce

CategoriesDivorce [521]

 

In the name of Allah, the most Beneficent, the most Merciful

 

Concept of Divorce

Answer

 

Nikah (marriage) is an instinctive need of a man and woman, and a means for the preservation of mankind. Moreover, nikah is a desired act and its lifelong fulfilment and safekeeping have been stressed upon.

 

The purpose of marriage in Islam is that a man and woman build a home, live together in love, kindness and happiness. (Marriage- A form of Ibaadah p.19)

 

Unfortunately, in some cases, after a nikah takes place a person is deprived of the comforts and benefits of it. Instead, of the marriage being one of love and affection, hatred and animosity appear. Due to this strained and difficult relationship a desperate need is created for separation between the spouses. Islam has permitted the concept of talaq for such delicate and trying occasions so that each of the spouses may go their own ways and pass their lives in peace elsewhere. (The complete system of divorce-p27)

 

In the eyes of Allah (SWT), talaq is the most detestable of all the lawful acts.

 

It is reported from Ibn-Umar (RA) that the Prophet (SAW) said: “In the sight of Allah (SWT), the worst of all halal (lawful) acts is talaq.” (Sunan Ibn Majah p146 v.1)

 

The permissibility of issuing the talaq has been granted only in very extreme and severe cases because it causes separation and break up between two families. Furthermore, for future generations it often leaves a bitter taste for all to bear. (The complete system of Divorce-p31)

 

There are three types of talaq and the most severe is the issuing of three talaqs. This irrevocably severs the marriage, whether such talaq was issued over a period of time, in one sitting or in one breath.

 

Giving three talaqs in one sitting is unlawful, however, it is effective. Please carefully understand this distinction. The nature of an act in being both a crime and a sin does not stop it from taking effect.

 

As an example, killing unjustly is both a crime and a sin in character. Therefore, a person who is shot with a bullet gets killed immediately. His consequential death does not wait to discover if the bullet was fired legally or illegally.

 

Similarly, all sins and crimes are hemmed in by the same situation that their being a sin and crime does not stop them from taking effect.

 

In accordance with this principle, if a person gives his wife three talaqs, no doubt, he becomes the cause of anger for the Prophet (SAW) (the Hadith I’ll mention later), but, inspite of all this, it should bring forth the same effects as that of a permissible talaq, that is, three talaqs become effective. (Maariful Quran p.583 v.1)

 

There are numerous Ahadeeth where the Prophet (SAW) in spite of showing anger against the giving of three talaqs, enforced the three talaqs.

 

1.      Imam Nasaai (RA) reports on the authority of Mahmud Ibn-Labid that “the Prophet (SAW) was told about a man who had divorced his wife by pronouncing three talaqs simultaneously. Prophet (SAW) rose in anger and said: “What is this game being played with Allah’s book while I am present amongst you?” In the meantime a man stood up and said “Ya RassulAllah (Prophet of Allah) should I not kill him? (Nasaai P98v2)

 

Even though the Prophet (SAW) expressed extreme anger on the giving of three talaqs at one sitting, it is not reported anywhere that he ruled the mans talaq to be revocable (i.e. to let the man have his wife back).

 

2.      Imam Bukhari (RA) reports on the authority of Aaisha (RA) that “a man pronounced three talaqs to his wife. When the woman married elsewhere, the other husband also divorced her. The Prophet (SAW) was asked, “Is this women lawful?” He said, “Not unless the other husband has had intimacy with her as was done by the first husband.” (Bukhari P8 v2)

 

The words of this Hadith indicate that three talaqs were given at the same time.

 

Furthermore commentaries on Hadiths such as Fathul-Bari, Ummatul Qari, Al-Qastalani, confirm this interpretation of the Hadith i.e. that three talaqs were given at the same time and unless there occurs marital intimacy with the second husband, she will not become lawful for the first husband.

 

3.      Imam Bukhari (RA) reports of Uwaymir (RA) who did lian (sworn allegation of adultery) against his wife in the presence of the Prophet (SAW).Following that he said: “I shall be telling a lie if I retained her”. Then he gave her three talaqs before the Prophet (SAW) could give his verdict. (Bukhari P8 v2)

 

Abu Dharr (RA) on the authority of Sahl-Ibn –Sa’ad reports the incident with the following words: “then The Prophet (SAW) enforced it and that which happened in the presence of the Prophet (SAW) became established as sunnah.”

 

It is proven through full clarity that the Prophet (SAW) enforced the three simultaneously pronounced talaqs of Uwaymir (RA).

 

Furthermore it is not reported anywhere that the Prophet (SAW) ruled it to be one talaq, and, therefore, allowed the husband to retain his wife.

 

4.      Hasan ibn Ali (RA) said (in a long Hadith, after divorcing his wife): “Had I not heard my father (Ali) narrating from my grandfather the Prophet (SAW) say: “when a man pronounces three divorces, then his wife will no longer remain lawful for him, unless she marries another man”, I would have taken my wife back.” (Sunan al-Bayhaqi)

 

To sum up despite the fact that three talaqs invited the anger of the Prophet (SAW) there consequences in any event was that all three talaqs were ruled effective. (Extracted from Maariful-Qur’an p583-586 v1)

 

The action taken by Umar Faruq (RA)

 

So far we have understood that holding three talaqs as three, was a decision of the Prophet (SAW). However at this point an incident related to Umar (RA), which has been reported in Sahih Al-Muslim raises a problem. The words are:

 

“It has been reported from Ibn-Abbas (RA) that during the times of the Prophet (SAW), Abu Bakr (RA) and during the first two years of the caliphate of Umar (RA) three talaqs were taken as one. So Umar (RA) said “people are becoming haste prone in a matter in which there was a room for deferment for them. Therefore it would be appropriate if we enforce it on them.” Then he enforced it on them.” (Sahih Al Muslim P447v1)

 

The question which arises is as stated earlier with the support of several hadiths, that the Prophet (SAW) himself enforced three talaqs on those who gave three talaqs simultaneously then what would be the meaning of the aforementioned incident that during the times of the Prophet (SAW), during Abu Bakr (RA) time, and up to two years of Umar (RA) caliphate, three talaqs were taken as one when Sayyidina Umar Farooq (RA) gave the ruling about three talaqs.

 

Imam Nawawi (RA) writes that this order is related to a particular form of three talaqs in which someone might say three times: “You are given talaq, you are given talaq, you are given talaq, or he might say, “I give you talaq, I give you talaq, I give you talaq.”

 

This situation has two possibilities.

 

1.      The pronouncer may have said these words with the intention of giving three talaqs

 

2.      The three repeated pronouncements were simply for the solace of emphasis without intention of giving three talaqs

 

This is proven by the Hadith of Rukana (RA), which says that he had divorced his wife with the word of “albattah”.

 

The Arabs used to use the word for three talaqs but the sense of three was not clear in it. Rukanah (RA) said, “I never intended three talaqs with this word. In fact I wanted to give one, talaq. The Prophet (SAW) put him on oath, which he swore. Then, he ruled it to be only one talaq.

 

This Hadith proves as generally agreed upon that the Prophet (SAW) ruled Rukana’s talaq to be one only when he declared an oath that he did not intend to give three talaqs.

 

This too proves, that he had not pronounced the words of three talaqs explicitly and clearly, otherwise there would have remained no possibility of his having not intended three talaqs, i.e. all three talaqs will occur.

 

The scholars of Hadith have analysed this narration thoroughly in the context of all the other narrations. Imam Ibn Hajr deals with it in detail in his book, Fath al-Bari.

One of the meanings mentioned by the scholars is that, this narration is specific to only one situation, that is, when a person pronounces three divorces, but the repetition is only for emphasis and not to issue another divorce. In the early days, people were morally more sound and reliable and thus when they said, it was only for emphasis and not to issue another divorce; it was taken at face value.

Umar (RA) however, observed in his time that, people were becoming morally corrupt. Bad habits such as deceiving, cheating and lying had become prevalent. As a consequence he declared that, people’s statements would not be accepted as far as the courts are concerned. If a man is adamant that he only repeated the words to emphasize, then this will be between him and Allah (SWT). 

Furthermore, this declaration of Umar (RA) was made publicly in the presence of the Sahaba’s (companions) and Tabi’in (their successors). Rejection by any one of them has not been reported. Therefore, Imam Ibn-Abd al-Barr al-Maliki has reported a consensus on this as it is stated in Al-Zurqani: Sharh Al-Muatta:

 

“The overwhelming majority of the scholars of Shariah are of the view that three simultaneous talaqs become effective. In fact Ibn-Abd al-Barr, while reporting ijma (consensus) on this has said “The contrary i.e. (three talaqs constituting one talaq) is not worth consideration. (Al-Zurqani P167v3)

 

Imam Nawawi in Sharh Muslim has said: “Imam Shafi, Imam Malik, Imam Abu Hanifah, Imam Ahmad and a large number of earlier and later ulama have said that three talaqs do become effective. (Sharh Muslim P478v1)

 

The course of action for the Muslim community has been laid down with the consensus of the Sahabahs and Tabi’in, that giving three talaqs certainly is a cause of the anger of the Prophet (SAW), but despite this anyone who commits this mistake will end up finding that his wife has become unlawful for him. (Maariful Qur’an P586-589 v1)

 

Concept of Halalah

 

When a woman is divorced three times, this divorce is irrevocable which means that the husband cannot take her back unless she marries another man first.

 

The general misconception is that marrying another is a solution provided by Shariah in order for the husband and wife to get back together. This is not correct. The meaning of Halalah is that if the woman after being divorced and after observing her iddah (waiting period) wished to marry another man, she can do so. This second husband on his own accord divorces her after having sexual intercourse with her then after observing the iddah, she can remarry her first husband. (The Complete system of Divorce P53)

 

It should be borne in mind that this is not a solution provided by the Shariah. Once three divorces are pronounced, the marriage is over and there is no getting together again.

 

If the marriage was performed on the condition of Halalah or by fixing a fee to be paid to the second man then this is a grave sin and unlawful. (Bahr-ur-Raaiq P63v4)

 

The Prophet (SAW) said “Allah’s curse is on the one who makes a contract or agreement for Halalah.” (Both the one who carries out Halalah and the one who it is done for) (Sunnah Tirmzi P213 v1)

 

Allah Knows Best.

 

Mohammed Tosir Miah

 

Darul Ifta Birmingham.

About the author