Darimi

(Commentary on Hadiths 2311 to 2315)

There are several issues discussed in these authentic hadiths. Some are mentioned here.

It is stated in these hadiths: «فَطَلَّقَهَا ثَلَاثًا» From this, one should not understand that three divorces (talaq) were given at once, because in other narrations, it is detailed that two divorces had already been given before this, and this was the third divorce.

Some scholars have made the issue of giving three divorces at once very complicated.

The first point is that giving three divorces in one sitting is itself wrong and against the Qur’an and Sunnah.

In the Noble Qur’an it is stated: « ﴿الطَّلَاقُ مَرَّتَانِ﴾ [البقره : 229]» Divorce should be given separately, and in the hadith of Sayyiduna Mahmud bin Labid radi Allahu anhu, it is mentioned that the Messenger of Allah sallallahu alayhi wa sallam was informed that a companion had given his wife three divorces at once, so the Prophet sallallahu alayhi wa sallam stood up angrily and said: “The Book of Allah is being played with while I am still among you.”

From this and similar hadiths, it is understood that giving three divorces at once is haram (forbidden).

If someone gives three divorces, will they take effect or not? There are four opinions on this matter:

(1) Not even one will take effect because doing so is haram.

(2) If the woman is one with whom intercourse has taken place (madkhul biha), then all three will take effect; if intercourse has not taken place, then only one will take effect.

Both of these positions are very weak in terms of evidence.

(3) According to the four Imams (a’immah arba‘a) and the majority, if three divorces are given at once, all three will take effect and the husband and wife will be separated.

In terms of evidence, this opinion is against the Qur’an and Sunnah, and it was the ijtihad (independent reasoning) of Sayyiduna ‘Umar radi Allahu anhu, which many of the noble companions opposed.

(4) The fourth opinion in this regard is that three divorces given at one time and in one sitting will be counted as only one revocable divorce (talaq raj‘i).

This ruling was prevalent and enforced during the Prophetic era, the caliphate of Abu Bakr, and the early years of the caliphate of Sayyiduna ‘Umar radi Allahu anhu, as is found in the narration of Sahih Muslim. Then Sayyiduna ‘Umar radi Allahu anhu, through his own ijtihad, enforced all three as a punishment for the people, but many companions—Sayyiduna Ibn ‘Abbas, Sayyiduna Ibn al-Zubayr, Sayyiduna Ibn ‘Awf, Sayyiduna Ibn Mas‘ud radi Allahu anhum, etc.—held the same fatwa as was in the time of the Messenger of Allah sallallahu alayhi wa sallam. Imam Ibn Taymiyyah and Ibn al-Qayyim rahimahum Allah also preferred this view, and this is also the fatwa of the Grand Mufti, Samahat al-Shaykh Ibn Baz rahimahullah, and this is the ruling in the courts of Saudi Arabia as well. This is the most correct opinion.

As for the maintenance (nafaqah) and residence (sukna) of a divorced woman, there is no difference of opinion that in the case of a revocable divorce (talaq raj‘i), the husband is responsible for the maintenance and residence of the divorced woman, and its wisdom is hidden in «﴿لَعَلَّ اللّٰهَ يُحْدِثُ بَعْدَ ذَلِكَ أَمْرًا﴾». However, after three divorces (talaq thalath), whether the husband is responsible for maintenance and residence or not, on this issue, some companions and successors (tabi‘in), the majority of scholars, and the Hanafis hold that maintenance is also obligatory on the husband in this case. But Imam Ahmad, Abu Thawr, the people of hadith, and many scholars and jurists say that for a woman divorced with three divorces (mubanat thalath), there is neither residence nor maintenance.

Imam al-Darimi rahimahullah also preferred this, and this is the correct position, as is established by the hadith of Sayyidah Fatimah bint Qays radi Allahu anha, which is completely authentic. As for the reference given by Sayyiduna ‘Umar and Sayyidah ‘A’ishah radi Allahu anhuma to the Book, they argued from the divine statements: « ﴿لَا تُخْرِجُوهُنَّ مِنْ بُيُوتِهِنَّ .....﴾ [الطلاق : 1]», « ﴿أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنْتُمْ .....﴾ [الطلاق : 6]», and « ﴿وَلِلْمُطَلَّقَاتِ مَتَاعٌ بِالْمَعْرُوفِ .....﴾ [البقره : 241]», and said that with these verses present, we will not accept the statement of a single woman; perhaps she remembered incorrectly or forgot.

The scholars have answered this by saying that the above-mentioned verses pertain to the maintenance of a woman in a revocable divorce, which, although general, is specified by the authentic hadith according to the principles.

Also, if the divorced woman is pregnant, then maintenance and residence are the husband’s responsibility until delivery, even if three divorces have been given, as is stated in the noble verse: «﴿وَإِنْ كُنَّ أُولَاتِ حَمْلٍ فَأَنْفِقُوا عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ .....﴾ [الطلاق : 6]».

And Allah knows best.