Divorce is permissible from a responsible and autonomous person
Linguistic explanation: Hafiz Ibn Hajar (may Allah have mercy on him) states that linguistically, the meaning of divorce is “to untie a bond.” This word is derived from إطلاق, which means “to leave and abandon.”
Legal definition: Divorce means to untie the knot of marriage. Imam al-Haramayn says that even in the pre-Islamic era, the word “divorce” was used for this, and the Shariah maintained this terminology.
[Fath al-Bari: 435/10]
Divorce is classified into five types according to its ruling:
➊ Forbidden: when it is an innovation (bid’ah).
➋ Disliked: when given without any valid reason despite the correct circumstances.
➌ Obligatory: there are various cases, one of which is when both parties agree that separation is better.
➍ Recommended: when the woman is not chaste or modest, or neglects religious duties such as prayer to the extent that forcing her to perform them is not possible.
➎ Permissible: when the man dislikes the woman due to her bad character or other reasons.
[Nil al-Awtar: 313/4, Al-Mughni: 323/10]
The evidences for this are as follows:
➊ لَا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمُ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ …. [Al-Baqarah: 236]
“There is no sin upon you if you divorce women while you have not touched them.”
➋ الطَّلَاقُ مَرَّتَانِ [Al-Baqarah: 229]
“Divorce is twice.”
➌ It is narrated from Hazrat Umar (may Allah be pleased with him) that the Prophet (peace be upon him) divorced Hazrat Hafsa (may Allah be pleased with her) and then took her back.
[Sahih: Sahih Abu Dawood: 1998, Kitab al-Talaq: Bab fi al-Muraja’ah, Abu Dawood: 2283, Nasa’i: 213/6, Ibn Majah: 2016, Darimi: 160/2, Bayhaqi: 321/7, Ibn Hibban: 4275, Hakim: 197/2]
➍ Hazrat Laqit bin Sabrah (may Allah be pleased with him) mentioned to the Messenger of Allah (peace be upon him) about his wife’s foul language, and the Prophet (peace be upon him) said:
طلقها إذا
“Then divorce her.”
[Sahih: Sahih Abu Dawood: 129, Kitab al-Taharah: Bab fi al-Istinshar, Abu Dawood: 142, Ahmad: 211/4]
In a narration:
أبغض الحلال إلى الله الطلاق
“Among the lawful things, the worst thing in the sight of Allah is divorce.” This narration is weak.
[Weak: Irwa’ al-Ghalil: 2040, Abu Dawood: 2178, Kitab al-Talaq: Bab fi Karahiat al-Talaq, Ibn Majah: 2018, Hakim: 196/2, Bayhaqi: 322/7]
➊ It is narrated from Hazrat Aisha (may Allah be pleased with her) that the Messenger of Allah (peace be upon him) said:
لا طلاق ولا عتاق فى إغلاق
“Divorce does not occur by closing (Ighlaq).”
[Hasan: Sahih Abu Dawood: 1919, Kitab al-Talaq: Bab fi al-Talaq ‘ala Ghalat, Irwa’ al-Ghalil: 2047, Abu Dawood: 2193]
Ighlaq linguistically means to close or lock. This hadith has two meanings:
① Divorce given under compulsion does not take effect.
② Divorce given in extreme anger, when a person’s intellect is veiled, also does not take effect, as Imam Abu Dawood (may Allah have mercy on him) himself explained after this hadith:
الغلاق أظنه فى الغضب
“In my opinion, Ighlaq occurs in anger.”
➋ Hazrat Ibn Abbas (may Allah be pleased with them both) said:
طلاق السكران والمستكره ليس بجائز
“Divorce given by a person who is intoxicated or compelled is not valid.”
[Bukhari: 793/2]
➌ A similar meaning is narrated from Hazrat Uthman (may Allah be pleased with him).
[Sahih: Irwa’ al-Ghalil: 2045, Bayhaqi: 359/7]
Imam Malik (may Allah have mercy on him) was severely punished for this crime but firmly stood by his correct and solid position. He said that forced divorce does not take effect.
(Ahmad, Shafi’i, Ibn Qudamah) agree with this.
(Abu Hanifa) says forced divorce does take effect because it occurs from the responsible person.
[Al-Mughni: 350/10]
(The preferred view) The first position is preferred because it is proven by authentic hadiths.
Even if it is in jest
It is narrated from Hazrat Abu Hurairah (may Allah be pleased with him) that the Messenger of Allah (peace be upon him) said:
ثلاث جدهن جد وهزلهن جد ….
“There are three matters whose intention is required, and even jokingly saying them counts as intention: marriage, divorce, and returning (to a wife after divorce).”
[Hasan: Sahih Abu Dawood: 1920, Kitab al-Talaq: Bab fi al-Talaq ‘ala al-Hazl, Abu Dawood: 2194, Tirmidhi: 1184, Ibn Majah: 2039, Sa’id bin Mansur: 1603, Darqutni: 256/3, Hakim: 198/2, Tahawi: 18/3]
(Ibn Qayyim) According to the majority of scholars, divorce given jokingly also takes effect, and this is confirmed from the Companions and the Followers.
[A’lam al-Muwaqqi’in: 124/3]
When the woman is in a state of purity in which the husband has not had intercourse with her and she has not been divorced during her previous menstruation or obvious pregnancy
There are two types of divorce:
➊ Sunnah divorce
➋ Bid’ah divorce
The following conditions are necessary for Sunnah divorce:
➊ Divorce is not given during menstruation:
As Hazrat Ibn Umar (may Allah be pleased with them both) divorced his wife during menstruation, the Prophet (peace be upon him) was displeased with him.
[Bukhari: 4908, Muslim: 1471, Abu Dawood: 2180, Nasa’i: 213/6, Ibn Majah: 2019, Ahmad: 64/2]
➋ Divorce is not given during postpartum bleeding (nifas):
Because nifas is not a state of purity, and there is a hadith that divorce should be given in a state of purity, as the Prophet (peace be upon him) instructed Hazrat Ibn Umar (may Allah be pleased with them both):
مره فليرا جعها ثم ليمسكها حتى تظهر ثم تحيض ثم تطهر
“Tell him to take her back and keep her until she becomes pure, then menstruation comes again, then she becomes pure; then if he wishes, he may divorce her.”
[Bukhari: 4908, Kitab al-Tafsir: Bab Surat al-Talaq, Muslim: 1471]
➌ Divorce should be given in a state of purity in which the man has not had intercourse with the woman:
It is narrated from Hazrat Ibn Umar (may Allah be pleased with them both) that the Prophet (peace be upon him) said:
فليطلقها طاهرا قبل أن يمسها
“Divorce her in a state of purity before intercourse.”
[Also]
➍ Divorce should not be given in a state of purity if she was divorced in the previous menstruation, as in the hadith of Hazrat Ibn Umar (may Allah be pleased with them both) where the Prophet (peace be upon him) ordered him to keep his wife until she becomes pure, then menstruation comes again, then she becomes pure, and then divorce her in that purity.
[Bukhari: 5251]
If this condition were not necessary, the Prophet (peace be upon him) would have ordered divorce in the first purity after menstruation. Some scholars believe that divorce can be given in the first purity because there is a narration where the Prophet (peace be upon him) said:
ثم ليطلقها طاهرا أو حاملا
“Then divorce her in a state of purity or during pregnancy.”
Since there is no restriction here on the first or second purity, when the woman becomes pure from menstruation, divorce can be given in that purity.
The preferred view is that divorce should be given in the first purity. However, since the previous hadith is from Sahihayn and has more detail, it will also be accepted, meaning if a man divorces a woman during menstruation, he will not divorce her in the first purity but will leave one purity and divorce her in the second purity; if such a situation does not occur, then divorce will be given in the first purity.
➎ Only one divorce should be given:
As the Prophet (peace be upon him) was displeased with a person who gave three divorces at once, and during the time of the Prophet, three divorces given in one sitting were counted as one.
[Sahih: Sahih Nasa’i: 3189, Irwa’ al-Ghalil: 122/7, Nasa’i: 3430, 3435, Kitab al-Talaq: Bab al-Thalath al-Majmu’ah wa ma fihi min al-Taghliz]
(Bukhari) According to Sunnah, divorce is that a man divorces a woman once in a state of purity in which he has not had intercourse with her and appoints two witnesses.
[Bukhari: Before the hadith / 5251, Kitab al-Talaq]
(Ibn Qudamah) The prescribed divorce is that a man divorces a woman once in a purity in which he has not had intercourse with her, then leaves her until she completes her ‘iddah.
(Malik, Ahmad, Shafi’i) They have called this Sunnah divorce.
(Abu Hanifa) The Sunnah is to give three divorces to a woman, one in each purity.
[Al-Mughni: 326/10]
◈ Note that divorce given during pregnancy is Sunnah divorce and permissible, as narrated from Hazrat Ibn Umar (may Allah be pleased with them both) that the Prophet (peace be upon him) ordered:
ثم ليطلقها طاهرا أو حاملا
“Then divorce her in a state of purity or during pregnancy.”
[Muslim: 1471, Sahih Abu Dawood: 1910, Kitab al-Talaq: Bab fi Talaq al-Sunnah, Abu Dawood: 2181, Tirmidhi: 1176]
Divorce given in any other situation is forbidden.
This is called bid’ah divorce.
➊ Allah Almighty says:
يايُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ [At-Talaq: 1]
“O Prophet! When you divorce women, divorce them at their prescribed waiting period.”
➋ Hazrat Ibn Umar (may Allah be pleased with them both) divorced his wife Amina bint Ghafar during menstruation. Hazrat Umar mentioned this to the Messenger of Allah (peace be upon him), who was very displeased and said that he should take her back and keep her until she becomes pure from menstruation, then menstruation comes again, then she becomes pure, and if he wishes, he may divorce her in a state of purity before intercourse:
فتلك العدة كما أمره الله
“This is the ‘iddah that Allah has prescribed.”
[Bukhari: 4908, Kitab al-Tafsir: Bab al-Talaq, Muslim: 1471, Ahmad: 26/2, Tirmidhi: 1176]
Due to the contradiction with these clear texts, bid’ah divorce is forbidden.
There is disagreement about the occurrence of this (bid’ah) divorce and multiple such divorces occurring without a period of reconciliation between them:
(Jumhur, Imams of the four schools) say bid’ah divorce does take effect.
[Nil al-Awtar: 316/4]
Their evidences are as follows:
➊ The generality of the verses of divorce.
➋ Hazrat Ibn Umar (may Allah be pleased with them both) divorced his wife during menstruation, and the Prophet (peace be upon him) ordered reconciliation. Therefore, it is proven that divorce given during menstruation takes effect because reconciliation always occurs after divorce.
➌ Hazrat Ibn Umar (may Allah be pleased with them both) said:
حسبت على بتطليقه
“The divorce I gave during menstruation was counted against me.”
[Bukhari: 5253, Kitab al-Talaq: Bab ‘Idha Talaqt al-Ha’idh Ta’tad Bi Dhalik al-Talaq]
➍ It is narrated from Hazrat Ibn Umar (may Allah be pleased with them both) that the Prophet (peace be upon him) said:
هي واحدة
“This (divorce you gave) is one.”
[Sahih: Irwa’ al-Ghalil: 126/7, Ta’liqaat al-Radhiya ‘ala al-Rawdah al-Nadiyah: 247/2, Darqutni: 9/4]
➎ In a narration, the Prophet (peace be upon him) said to Hazrat Umar (may Allah be pleased with him): “Tell her to reconcile, then divorce her during ‘iddah:
وتحتسب التطليقة التى طلق أول مرة
“And the divorce she gave the first time will be counted.”
[Irwa’ al-Ghalil: 131/7, Bayhaqi: 326/7]
(Al-Albani) after detailed narration transmission preferred the view of the majority.
[Irwa’ al-Ghalil: 133/7]
Some scholars believe bid’ah divorce does not take effect, including the following notable ones:
(Ibn Taymiyyah) Bid’ah divorce does not take effect.
[Al-Fatawa: 32 – 5]
(Ibn Qayyim) agrees with this.
[Zad al-Ma’ad: 218/5 – 238]
(Ibn Hazm) considers this correct.
[Al-Muhalla: 358/9, Al-Malahim: 1945]
(Shawkani) prefers this.
[Nil al-Awtar: 319/4]
(Siddiq Hasan Khan) considers this preferred.
[Al-Rawdah al-Nadiyah: 106/2]
Their evidences are as follows:
➊ Allah Almighty says: “O Prophet (peace be upon him)! When you divorce women, divorce them during their ‘iddah.” [At-Talaq: 1]
In this ‘iddah, bid’ah divorce does not take effect. It is also established in principle that a ruling on something implies prohibition of its opposite, and prohibition indicates the corruption of the thing prohibited; therefore, a ruling cannot be established on a corrupt thing.
➋ The Prophetic hadith:
كل بدعة ضلالة
“Every innovation is misguidance.”
[Muslim: 1435]
Since bid’ah divorce is an innovation and every innovation is misguidance, how can a ruling be established from misguidance?
➌ A hadith states:
من عمل عملا ليس عليه أمرنا فهو رد
“Whoever does an action that is not in accordance with our command is rejected.”
[Bukhari: 2697, Muslim: 1718]
Since bid’ah divorce is neither commanded by Allah nor His Messenger (peace be upon him), it is rejected and cannot be counted.
(The preferred view) Bid’ah divorce does take effect; this position is stronger based on evidences.
There are four different opinions among scholars on this issue:
➊ All divorces take effect. This is the view of the majority and the four Imams.
➋ Not even one divorce takes effect because it is an innovation and forbidden. This is the view of Imam Ibn Hazm and a group of the Followers.
➌ If intercourse has occurred with the divorced woman, all three divorces take effect; otherwise, only one takes effect. This is the view of a group of companions of Hazrat Ibn Abbas (may Allah be pleased with them both) and Imam Ishaq.
➍ Whether intercourse has occurred or not, only one revocable divorce takes effect. The more correct view is that of Hazrat Ibn Abbas (may Allah be pleased with them both) and Imam Ishaq.
(The preferred view) The last opinion is the most correct and preferred.
[Al-Rawdah al-Nadiyah: 106/2]
The preferred position is that such divorces do not take effect, meaning three divorces given at once do not count as three but only as one, and the evidences are as follows:
➊ Allah Almighty says:
الطَّلَاقُ مَرَّتَانِ [Al-Baqarah: 229]
“Divorce is twice.”
The word مرتان “marrah” is dual, meaning one time followed by the second time, i.e., with an interval. It does not mean two divorces given at once, as the following verse also supports:
وَالَّذِينَ لَمْ يَبْلُغُوا الْحُلُمَ مِنْكُمْ ثَلاثَ مَرَّاتٍ [An-Nur: 58]
“This verse uses the plural ‘marat’ which is a plural of ‘marrah.’ After this word, three times are mentioned with intervals, not together (i.e., one before dawn, the second at noon, the third after Isha prayer). Therefore, it is understood that the first verse also refers to divorces given with intervals, not together.”
➋ It is narrated from Hazrat Ibn Abbas (may Allah be pleased with them both) that the Prophet (peace be upon him) said:
كان الطلاق على عهد رسول الله وأبى بكر وسنتين من خلافة عمر طلاق الثلاث واحدة
“During the time of the Prophet, Abu Bakr’s caliphate, and the first two years of Umar’s caliphate, three divorces given in one sitting were counted as one. Umar said that people hastened in a matter that was made easy for them, so we should enforce it.” Thus, he enforced it on them (i.e., ordered that three divorces given at once count as one).
[Muslim: 1472, Kitab al-Talaq: Bab Talaq al-Thalath, Abu Dawood: 21990, Nasa’i: 145/6]
➌ Hazrat Abu Rukana (may Allah be pleased with him) gave his wife three divorces in one sitting and then regretted it. The Prophet (peace be upon him) said to Abu Rukana:
إنها واحدة
“Those three divorces are one.”
(Ahmad: 265/1, Bulugh al-Maram: 1009, Shaykh Subhi Hallaq said it is Hasan. Al-Ta’liq ‘ala Subul al-Salam: 212/6)
➍ In a narration, the Prophet (peace be upon him) told Abu Rukana to reconcile with Umm Rukana. He said, “I gave her three divorces.” The Prophet (peace be upon him) said:
قد علمت راجعها
“I know; you reconcile with her.”
[Hasan: Sahih Abu Dawood: 1922, Kitab al-Talaq: Bab Naskh al-Muraja’ah ba’d al-Talaqat al-Thalath, Abu Dawood: 2196]
If all three divorces took effect, the Prophet (peace be upon him) would not have ordered Abu Rukana to reconcile but would have advised Umm Rukana to marry someone else.
➎ It is narrated from Hazrat Mahmood bin Labid (may Allah be pleased with him) that the Prophet (peace be upon him) was informed that a man gave his wife three divorces at once. The Prophet (peace be upon him) stood up angrily and said:
أيلعب بكتاب الله وأنا بين أظهر كم
“Is the Book of Allah being toyed with while I am still among you?”
[Weak: Weak Nasa’i: 221, Kitab al-Talaq: Bab al-Thalath al-Majmu’ah wa ma fihi min al-Taghliz, Nasa’i: 3430]
From all these evidences, it is clear that if a person gives three divorces at once to his wife, it counts as one. Hazrat Ibn Abbas (may Allah be pleased with them both), Hazrat Zubair bin Awwam (may Allah be pleased with him), Hazrat Abdur Rahman bin Awf (may Allah be pleased with him), Hazrat Ali (may Allah be pleased with him), Hazrat Ibn Mas’ud (may Allah be pleased with him), Imam Makrama, and Imam Tawus also hold this ruling.
[Ighathat al-Lahfan: 329/1, Fath al-Bari: 456/10]
(Ibn Taymiyyah) agrees with this.
[Al-Fatawa: 16/3 – 17]
(Ibn Qayyim) prefers this position.
[Zad al-Ma’ad: 241/5, A’lam al-Muwaqqi’in: 30/3]
(Ibn Baz) says three divorces given at once count as one.
[Al-Fatawa al-Islamiyyah: 49/3]
