Islamic Law of Divorce
It is a fact that the Islamic law of divorce holds superiority over all contemporary divorce laws. The reason for this is quite clear. The former is a law based on revelation, meaning its source is the Almighty and All-Knowing God, in whose essence no change or alteration is possible. According to the laws established by Him, every small and large thing in this world of water and clay performs its natural functions, and there is an extreme degree of harmony and compatibility; there is not even a minor disagreement or conflict anywhere. The forehead of all creatures is bowed before this absolute ruler. In contrast, the other law is one whose source is the human mind, which despite all its astonishing capabilities is still not free from defects and changes. The reason is that it undergoes an evolutionary process, meaning it passes from imperfection to perfection, and this perfection is also additional, not permanent or self-sustaining. Something considered complete and perfect at a particular time and era later becomes defective with changing circumstances. This applies to laws created by humans as well, regardless of the era in which they were made and no matter how eminent the legal experts who made them were. But despite this clear fact, why is it that in almost every era human law has been preferred over God’s law, and this situation still persists today? According to the writer, the reason is that after a short period in every era, God’s law did not remain in its original form; the human mind became involved in it in the form of interpretation and exegesis. The result was that more attention was focused on the partial laws formulated by jurists compared to the comprehensive laws sent by God, and these were considered immutable like general principles, as is the current state of Islamic laws, and the law of divorce is no exception to this. God’s comprehensive law was something else, and the قيل و قال of imitation-minded and detail-obsessed scholars and jurists has made it something else, as the readers will see ahead.
Status of Nikah :.
In the view of Islam, the status of marriage is extraordinary and it is described as a strong covenant, that is, a firm pledge. Allah Almighty says:
وَ اَخَذْنَ مِنْكُم مِّيْثَاقًا غَلِيظًا
And they (the married women) have taken from you a solemn covenant (a strong pledge).
From this verse, it is understood that marriage is essentially a social contract with two parties, the man and the woman. Islam places great emphasis on fulfilling contracts, whether these contracts are between two individuals or between two nations, and whether between Allah and His servants. In the Holy Quran, Muslims are instructed at more than one place to fulfill their promises and avoid breaking them. For example, it is stated:
وَاَوْفُوا بِالْعَهْدِ اِنَّ الْعَهْدَ كَانَ مَسْئُولًا
And fulfill the covenant, indeed the covenant will be questioned about.
Among the important qualities of the pious mentioned in the Quran, one significant quality is the fulfillment of promises. It is stated:
وَالَّذِينَ هُمْ لِاَمٰنٰتِهِمْ وَعَهْدِهِمْ رٰعُونَ
And they who are to their trusts and their promises attentive.
Elsewhere it is said:
بَلٰي مَنْ اَوْفٰي بِعَهْدِهٖ وَاتَّقٰي فَاِنَّ اللّٰهَ يُحِبُّ الْمُتَّقِيْنَ
Indeed, whoever fulfills his covenant and fears Allah – then indeed, Allah loves the righteous.
Even if this covenant is between disbelievers and Muslims, the teaching is to observe it and avoid breaking it unjustly. Allah Almighty says:
كَيْفَ يَكُوْنُ لِلْمُشْرِكِيْنَ عَهْدٌ عِنْدَ اللّٰهِ وَعِنْدَ رَسُوْلِهٖ اِلَّا الَّذِيْنَ عٰهَدْتُّمْ عِنْدَ الْمَسْجِدِ الْحَرَامِ فَمَا اسْتَقَامُوْا لَكُمْ فَاسْتَقِيْمُوْا لَهُمْ
How can there be for the polytheists a treaty with Allah and His Messenger except for those with whom you made a treaty near the Sacred Mosque? So as long as they are upright toward you, be upright toward them.
One of the major reasons the Jewish nation became detested in the sight of Allah was their breaking of covenants. The Quran mentions their breach of promises at several places. For example, Allah Almighty says:
اَوَ كُلَّمَا عٰهَدُوْا عَهْدًا نَّبَذَهٗ فَرِيْقٌ مِّنْهُمْ
And whenever they made a covenant, a party of them threw it away.
Protection of Marriage:
From the mentioned verses, it becomes clear that in Islam, the covenant and promise hold extraordinary importance, and breach of promise is viewed with disdain. As explained above, marriage is a contract established between spouses with their mutual consent. This contract lays the foundation of a family and concerns living a marital life together. Just as other social contracts may break due to various reasons, similarly, the marriage contract can also be dissolved. However, compared to other social contracts, such as a sales contract, the breaking of a marriage contract is a dangerous matter in terms of its consequences and effects. Therefore, Islamic Sharia has instructed utmost caution and prudence in this matter. Accordingly, Islamic Sharia has outlined all the necessary precautionary measures to protect the marriage and prevent disputes and conflicts between the parties. We briefly mention these precautionary measures here:
◈ Islam guides its followers, including both men and women, to thoroughly think and investigate before marriage and to carefully research all necessary matters. If a man feels the need to see his prospective wife, Sharia permits him to see her under a good pretext. The same authority is given to the girl’s guardian, and he is instructed not to marry her off without her consent. If a girl’s marriage is contracted before she reaches puberty, Islamic Sharia grants her the right to annul the marriage upon reaching puberty if she wishes. It is clear that marriage without the consent of both parties is forbidden in Islam.
However, in the current Muslim society, the golden Islamic principle of marriage is viewed differently, as is evident to all. It is considered very bad that a man should see the girl who is to become his spouse under any pretext. Similarly, asking a woman for her consent is considered improper. Consequently, many marriages today take place without the consent of the parties. This un-Islamic custom is more prevalent among Muslims who are uneducated or devoted to customary religion. Such marriages often prove to be unbeneficial or even distressing for the spouses, and the inevitable result is divorce. If the mentioned Islamic principle is followed, the protection of marriage will be easier.
◈ No man can claim that he has all virtues and no faults, nor can any woman claim this. Therefore, a golden rule of social life is to overlook faults and focus on virtues; only then can the vehicle of family life run on the right track.
Following this principle is essential for establishing pleasant relations between spouses. It is evident that men and women are completely different, even opposite, in their psychology and nature. It is Allah’s perfect knowledge and power that He has not only united these opposites but made their existence an indispensable social necessity for each other. Neither party can live a happy life by ignoring the other. This union of opposites is presented in the Holy Quran as a sign of the existence of Allah Almighty. Allah says:
وَمِنْ اٰيٰتِهٖ اَنْ خَلَقَ لَكُمْ مِّنْ اَنْفُسِكُمْ اَزْوَاجًا لِّتَسْكُنُوْا اِلَيْهَا وَجَعَلَ بَيْنَكُمْ مَّوَدَّةً وَّرَحْمَةً اِنَّ فِيْ ذٰلِكَ لَاٰيٰتٍ لِّقَوْمٍ يَّتَفَكَّرُوْنَ
And among His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy. Indeed in that are signs for a people who reflect.
Even in this union, the natural element of difference exists. Therefore, it is obligatory upon both parties to always keep this natural difference in check and never let it exceed its natural limits. A man should always think that if his wife has some shortcomings or faults, she surely has some virtues as well, and it is not surprising if the shortcomings are actually beneficial for him. The Quran draws men’s attention to this wise aspect in these words:
وَعَاشِرُوْهُنَّ بِالْمَعْرُوْفِ فَاِنْ كَرِهْتُمُوْهُنَّ فَعَسٰي اَنْ تَكْرَهُوْا شَيْئًا وَّيَجْعَلَ اللّٰهُ فِيْهِ خَيْرًا كَثِيْرًا
Live with them in kindness; for if you dislike them, perhaps you dislike a thing and Allah makes therein much good.
Two common causes of divorce are: first, the man’s failure to provide maintenance and good treatment to the woman; second, the woman’s harsh speech and disobedience. Therefore, the Quran emphasizes men to live with women in kindness. Allah says:
وَعَاشِرُوْهُنَّ بِالْمَعْرُوْفِ
And live with them in kindness.
Overlook their shortcomings and adopt reconciliation instead of quarrels. It is said:
وَاِنِ امْرَاَةٌ خَافَتْ مِنْ بَعْلِهَا نُشُوْزًا اَوْ اِعْرَاضًا فَلَا جُنَاحَ عَلَيْهِمَا اَنْ يُّصْلِحَا بَيْنَهُمَا صُلْحًا وَالصُّلْحُ خَيْرٌ وَاُحْضِرَتِ الْاَنْفُسُ الشُّحَّ وَاِنْ تُحْسِنُوْا وَتَتَّقُوْا فَاِنَّ اللّٰهَ كَانَ بِمَا تَعْمَلُوْنَ خَبِيْرًا
And if a woman fears cruelty or desertion from her husband, there is no blame upon them if they make terms of settlement between them—and settlement is best. And present your obedience and avoid evil; indeed, Allah is ever Knowing of what you do.
Similarly, women are instructed to obey their husbands. The Quran calls those women righteous who obey their husbands and guard their chastity, as Allah says:
فَالصّٰلِحٰتُ قٰنِتٰتٌ حٰفِظٰتٌ لِّلْغَيْبِ بِمَا حَفِظَ اللّٰهُ
So righteous women are devoutly obedient, guarding in [the husband’s] absence what Allah would have them guard.
Nowadays, many modern educated women think that by commanding obedience to husbands, Islam has lowered their status, whereas it has not lowered but elevated it. The family is like an institution, and like other social institutions, it is necessary to have a manager whose word is obeyed. The Quran decides that this position belongs to the man, but this does not mean that the man becomes a dictator. As the family manager, it is his duty to treat the woman kindly and fulfill her rights without reluctance. In return for this kindness and care, the woman is obliged to obey her husband. If either party neglects their duties, then the establishment and stability of marital life become impossible. The survival of the family requires both parties to pay attention to fulfilling their respective duties. Divorce occurs only when one party fails to fulfill their obligations.
Stages Before Divorce:
Among Muslims, due to their ignorance and the wrong guidance of scholars, the wrong custom has become common that divorce is given immediately, which is a clear violation of the Islamic law of divorce. The truth is that such a divorce does not actually take place. If this act occurs in a true Islamic state, the one who gives divorce will be severely punished. Islam is the only religion in the world whose law of divorce is fundamentally based on the principle of gradualness. If a Muslim wants to divorce his wife, he must go through several stages before this act, and only after that will the stage of divorce come. The details of these gradual stages are as follows:
◈ Women’s feelings and emotions are very delicate; they are like fragile glass that breaks with the slightest hurt. This is why women become very quickly agitated over minor matters, and sometimes this agitation manifests as disobedience to the husband. Due to this natural weakness of women, the Holy Quran advises men that if women disobey, they should not become angry or make any hasty decisions in reaction but should exercise patience. The wisdom of men lies in dealing with them with kindness and explaining with love. If despite this, they do not desist from disobedience, then they should be separated from the bedroom; if this measure also fails and they do not abandon their uncooperative behavior, then reluctantly, physical punishment may be given, hoping that this will make them return and prevent divorce.
Many women and some men think that Islam has insulted disobedient women by ordering physical punishment. This is their misunderstanding; they have viewed this punishment separately from its specific context, so they could not understand its wise purpose. The Holy Quran has prescribed this severe punishment to prevent divorce. In other words, it has adopted this last and apparently undesirable measure to save the family from breaking apart. This shows how much Islam dislikes divorce. It has accepted that a disobedient woman may be physically punished but has not accepted that she be abandoned, causing her and her children’s future to become bleak due to her ignorance. Moreover, the order for physical punishment is given only when the first two measures (advice and separation from the bedroom) fail; the failure of these measures proves that the negative tendencies in the woman are very strong. For a normal woman, this punishment is sufficient that the husband ends the marital relationship with her, but if a woman endures this punishment as well and does not abandon disobedience, it clearly shows that rebellion is in her nature. However, Islam does not order to abandon even this rebellious woman but proposes physical punishment to bring her back to the right path so that she leaves the path of disobedience, becomes obedient and submissive to her husband, and thus is saved from the destructive consequences of divorce.
But if physical punishment also proves ineffective and the woman continues to adopt the path of nushuz (disobedience and rebellion), then any fair-minded person will decide that now there is no option but divorce. But see the excellence of Islamic law that even then it pauses and orders that one member from each family of the man and woman be taken as arbitrators, and a family court be formed. This court should make every possible effort to reconcile the parties and prevent divorce. Allah Almighty promises that if they sincerely wish to reconcile, He will create unity between them.
If the family court also fails to reconcile the parties, then Islam grants both the man and the woman the option to separate, the man through divorce and the woman through khula (divorce initiated by the wife).
Law of Divorce :.
The law of divorce in Islam is mentioned in more than one Surah of the Holy Quran. For example, in Surah Al-Baqarah, it is stated:
الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ ۗ وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَن يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ ۖ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ ۗ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا ۚ وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَأُولَٰئِكَ هُمُ الظَّالِمُونَ ﴿٢٢٩﴾ فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ ۗ فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَن يَتَرَاجَعَا إِن ظَنَّا أَن يُقِيمَا حُدُودَ اللَّهِ ۗ وَتِلْكَ حُدُودُ اللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ ﴿٢٣٠﴾ وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ ۚ وَلَا تُمْسِكُوهُنَّ ضِرَارًا لِّتَعْتَدُوا ۚ وَمَن يَفْعَلْ ذَٰلِكَ فَقَدْ ظَلَمَ نَفْسَهُ ۚ وَلَا تَتَّخِذُوا آيَاتِ اللَّهِ هُزُوًا ۚ وَاذْكُرُوا نِعْمَتَ اللَّهِ عَلَيْكُمْ وَمَا أَنزَلَ عَلَيْكُم مِّنَ الْكِتَابِ وَالْحِكْمَةِ يَعِظُكُم بِهِ ۚ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِكُلِّ شَيْءٍ عَلِيمٌ ﴿٢٣١﴾ وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَن يَنكِحْنَ أَزْوَاجَهُنَّ إِذَا تَرَاضَوْا بَيْنَهُم بِالْمَعْرُوفِ ۗ ذَٰلِكَ يُوعَظُ بِهِ مَن كَانَ مِنكُمْ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۗ ذَٰلِكُمْ أَزْكَىٰ لَكُمْ وَأَطْهَرُ ۗ وَاللَّهُ يَعْلَمُ وَأَنتُمْ لَا تَعْلَمُونَ
Divorce is twice; then either keep [her] in an acceptable manner or release [her] with kindness. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep the limits of Allah. But if you fear that they will not keep the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah – it is those who are the wrongdoers. And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her or dies, there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah. These are the limits of Allah which He makes clear to a people who know. And when you divorce women and they have fulfilled their term [of waiting], either retain them according to acceptable terms or release them according to acceptable terms. And do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things. And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves in a lawful manner. This is advised to whoever among you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you do not know.
In the light of these verses, the following important features of the Islamic law of divorce are understood: The first important feature of the Islamic law of divorce is that there is a waiting period of three months between pronouncing divorce and its becoming effective, as Allah Almighty says:
وَالْمُطَلَّقٰتُ يَتَرَبَّصْنَ بِاَنْفُسِهِنَّ ثَلٰثَةَ قُرُوْءٍ
And divorced women shall wait [as regards their marriage] for three menstrual periods.
Moreover, the husband’s right of revocation is limited to two divorces, as is clear from the phrase الطَّلَاقُ مَرَّتٰنِ, but many scholars and jurists have explained this to mean that the two divorces should be given in two separate sessions or two separate purity periods. Maulana Mufti Muhammad Shafi’ (may Allah have mercy on him) writes that the word مَرَّتٰنِ indicates that two divorces should not be given simultaneously or with one word but rather in two separate purity periods. From الطَّلَاقُ مَرَّتٰنِ also, the permission for two divorces could be inferred, but مَرَّتٰنِ suggests an order and delay, implying that if two divorces occur, they should be separate. For example, consider that if a person gives two rupees at once, it is not called giving twice. The purpose of the Quranic words “twice” is that two divorces should be given in separate purity periods.
In this regard, Qazi Sanaullah Panipati (may Allah have mercy on him) states:
Giving two divorces at once is disliked because the word مرتان indicates separation and implicitly the number. And الطلاق is for the genus of lam, so the analogy suggests that two divorces given together are not valid, and if two divorces are not valid, then giving three at once is even less valid because three is more than two.
However, I do not agree with this interpretation. الطَّلَاقُ مَرَّتٰنِ does not mean giving divorce in two separate sessions or purity periods but refers to two revocable divorces which a man has the right to give during his entire married life. That is, he may give one divorce during a state of purity and then revoke it within the waiting period, and later for some reason give a second divorce and again revoke it within the waiting period. After that, if he gives a third divorce, his right of revocation is lost, and the woman becomes separated from him.
Furthermore, الطَّلَاقُ مَرَّتٰنِ also intends to limit the number of divorces, which in the days of ignorance and early Islam was unlimited. It is narrated from Urwah bin Zubair (may Allah have mercy on him) that in the early days of Islam, people used to give unlimited divorces. Some would divorce their wives and when their waiting period was about to end, they would take them back, then divorce again merely to harass the wife. Then this command was revealed: الطَّلَاقُ مَرَّتٰنِ
The meaning of الطَّلَاقُ مَرَّتٰنِ explained above is confirmed by the practice of the famous companion Hazrat Rukana (may Allah be pleased with him). The incident of his divorce is mentioned in the books of Hadith. The Ahl al-Hadith follow this narration, which will be discussed later. Here it is only mentioned that he gave his wife the first divorce during the Prophetic era, the second during the era of Caliph Umar, and the third during the era of Caliph Uthman, thus divorcing her. This is the meaning of الطَّلَاقُ مَرَّتٰنِ….
The Holy Quran has addressed every excess that was practiced against women in the marital life of the Arabs. Among the Arabs, there was a form of divorce called Ilaa. Qatadah (may Allah have mercy on him) says that Ilaa was the divorce of the people of ignorance. Saeed bin Musayyib (may Allah have mercy on him) says that Ilaa was a form of harassment practiced by the people of ignorance when a man did not love his wife and did not want anyone else to marry her. He would swear that he would never approach her and leave her in such a state that she was neither divorced nor married. This practice was also prevalent in early Islam, but Islam fixed its duration.
The Quran has set the duration of this type of divorce at four months and commanded the husband to reconcile within this period; otherwise, it becomes a divorce. This divorce is classified as revocable divorce. Imam Darqutni (may Allah have mercy on him) narrated from Ishaq that Hazrat Umar (may Allah be pleased with him) said that after four months, it is considered one divorce, and the woman should complete her waiting period like a divorced woman.
The Quran does not call this divorce but uses only the word “Ilaa.” Calling it divorce is the work of the Hanafi jurists. From the words of the Quran, it appears that after four months, the husband will be asked whether he wants to reconcile with his wife or divorce her. One of these two actions is necessary. If he reconciles, fine; otherwise, he will be compelled to divorce. If he neither reconciles nor divorces, then the court will divorce them and separate them. (Compiled)
In this type of divorce, which is extremely painful, the husband’s right of revocation is retained, as Allah’s command is:
لِّلَّذِيْنَ يُؤْلُوْنَ مِنْ نِّسَآئِهِمْ تَرَبُّصُ اَرْبَعَةِ اَشْهُرٍۚ فَاِنْ فَآءُوْ فَاِنَّ اللّٰهَ غَفُوْرٌ رَّحِيْمٌ
Those who swear not to have relations with their wives must wait four months. But if they return, then indeed, Allah is Forgiving and Merciful.
It is clear that in Islam, the correct and preferred divorce is that in which the door of revocation remains open during the waiting period.
◈ The second important feature of the Islamic law of divorce is that just as the man has the right to divorce, the woman also has the right to obtain freedom from her husband by giving the amount of her dowry. Allah Almighty says:
فَلَا جُنَاحَ عَلَيْهِمَا فِيْمَا افْتَدَتْ بِهٖ
There is no blame upon them in that by which she ransoms herself.
This is called Khula in Islamic jurisprudence.
◈ The third feature is that if the husband does not reconcile within the waiting period but later wants to take the wife back and the woman also agrees, he may do so. In this regard, the woman’s family is advised not to prevent this reconciliation. Allah Almighty says:
فَلَا تَعْضُلُوْهُنَّ اَنْ يَّنْكِحْنَ اَزْوَاجَهُنَّ اِذَا تَرَاضَوْا بَيْنَهُمْ بِالْمَعْرُوْفِ
So do not prevent them from marrying their [former] husbands if they agree among themselves in a lawful manner.
It is evident from this that reconciliation is a highly preferred matter in Islam. It is lamentable for those scholars who, contrary to the purpose of the Quran, prevent spouses from reuniting merely because the ignorant husband uttered the words of triple divorce in anger or ignorance.
◈ The fourth important feature of the Islamic law of divorce is that after revocable divorce, it is forbidden to expel the woman from the house unless she has committed an indecent act.
◈ The fifth important feature is that upon completion of the waiting period, whether the woman is taken back or released, i.e., the divorce becomes effective, the testimony of two reliable witnesses is necessary. The latter two important features are mentioned in Surah At-Talaq in these words:
يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ ۖ وَاتَّقُوا اللَّهَ رَبَّكُمْ ۖ لَا تُخْرِجُوهُنَّ مِن بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ ۚ وَتِلْكَ حُدُودُ اللَّهِ ۚ وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ ۚ لَا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَٰلِكَ أَمْرًا ﴿١﴾ فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ
O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah, your Lord. Do not turn them out of their houses, nor shall they [themselves] leave, unless they are committing a clear immorality. And those are the limits [set by] Allah. And whoever transgresses the limits of Allah has certainly wronged himself. You do not know; perhaps Allah will bring about after that a [different] matter. And when they have fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And take for witness two just men from among you and establish the testimony for [the acceptance of] Allah. And if you fear [an enemy] from among them two, then appoint two others from among those whom you accept as witnesses and let them testify.
Nowadays, among Muslims, the prevalent form of divorce openly violates all these aspects of the Quranic law of divorce, yet they claim to believe in the Book of Allah. The corruption is not limited to triple divorce but the entire Muslim society is filled with un-Islamic customs and traditions. This is not the place to describe these social corruptions. However, it is necessary to examine in detail the corruption of triple divorce that has spread in Muslim society due to erroneous fatwas of scholars. This corruption has destroyed the lives of thousands of innocent women and children and darkened their futures.
Triple Divorce (Three Divorces):
The Hanafi jurists say that if a husband gives his wife three divorces (triple talaq) at once in the same sitting, they will become effective immediately, meaning it will be a final divorce (talaq ba’in) and his wife will become unlawful for him, and without a second marriage (halala), she will not be lawful for him again. This is the well-known Hanafi school of thought and has been practiced for a long time in many Muslim countries. However, the Ahl al-Hadith viewpoint is that three divorces given in one sitting should be considered as one divorce, and the husband retains the right of reconciliation (ruju’) during the waiting period (‘iddah). The Imami (Shia) school also holds this view. In the writer’s opinion, this is the correct view. The former view is entirely against the Quran. A detailed discussion on this will follow.
As we have written earlier, the three divorces relate to three different times in the marital life. These three separate divorces were mistakenly combined by some companions during the Prophetic era and the Rashidun Caliphate. They thought they had the authority to give three divorces either at three separate times or all at once. Obviously, their interpretation was contrary to the spirit of the Quran. Imam Nasai (may Allah have mercy on him) narrates from Mahmood bin Labid that the Prophet Muhammad (peace be upon him) was informed about a man who had given his wife three divorces at once. The Prophet (peace be upon him) stood up in anger and said:
“Is the Book of Allah being toyed with, while I am among you?” Upon hearing this, a man stood up and said, “O Messenger of Allah! أَلَا أَقْتُلُهُ؟ Shall I not kill him?”
Despite the Prophet’s displeasure, many companions in anger gave their wives three or even more divorces at once and later regretted it when their anger subsided. Over time, this incorrect method of divorce became widespread and remains prevalent in Muslim societies today.
From the narrations that have reached us, a scholarly review shows that during the time of the Prophet (peace be upon him), the approach to such divorces was different. If the Prophet (peace be upon him) was certain that the three divorces were given in a moment of anger and the husband’s intention was not to permanently separate from his wife, he would consider the divorce revocable (talaq raj’i) and order the husband to reconcile. But if it was certain that the husband’s intention was to permanently separate, then he would separate the parties.
Examples of both decisions exist in the books of hadith. The best example of the former decision is the divorce of Hazrat Rukana (may Allah be pleased with him). This divorce is mentioned in various hadith collections such as Tirmidhi, Abu Dawood, Ibn Majah, and Darimi with different chains of narration. Most scholars have considered the narration of Imam Abu Dawood (may Allah have mercy on him), which contains the word البتة, as authentic. This word was commonly used among Arabs for three divorces but did not explicitly mean three, which is why the Prophet (peace be upon him) considered Hazrat Rukana’s divorce as revocable. However, Imam Ibn Taymiyyah (may Allah have mercy on him) researched that some unknown narrators in Abu Dawood’s chain were criticized by Imam Bukhari (may Allah have mercy on him) and other muhaddithin, so Ibn Taymiyyah preferred the narration found in Imam Ahmad ibn Hanbal’s Musnad as stronger in terms of chain and gave it preference. The narration from Musnad Ahmad is as follows:
Ibn Abbas (may Allah be pleased with him) narrated that Rukana (may Allah be pleased with him) gave his wife three divorces in one sitting. He was deeply distressed by this. The Messenger of Allah (peace be upon him) asked him, “How did you divorce her?” He said, “I gave three divorces.” The Prophet (peace be upon him) asked, “All in one sitting?” He said, “Yes.” The Prophet (peace be upon him) said, “This is one divorce. If you wish, you may reconcile.” So Rukana reconciled.
The second example is that of Hazrat Uwaymir Ajlani (may Allah be pleased with him), who performed ‘li’an’ (mutual cursing) with his wife in front of the Prophet (peace be upon him) and then said: “O Messenger of Allah! I would be lying if I kept her with me.” Then Uwaymir gave her three divorces before the Prophet (peace be upon him) gave any ruling.
Hazrat Abu Dharr (may Allah be pleased with him) narrated this incident from Hazrat Sahl bin Sa’d (may Allah be pleased with him) and said:
Then the Messenger of Allah (peace be upon him) enforced it. Whatever happened in front of the Messenger of Allah (peace be upon him) became Sunnah. Sahl (may Allah be pleased with him) said that I was present at that time with the Messenger of Allah (peace be upon him). After that, the Sunnah regarding those who performed li’an was that they were separated and never combined again.
In both these incidents, the divorce is clearly mentioned. The severity of the latter incident is evident from the fact that Hazrat Uwaymir (may Allah be pleased with him) performed li’an with his wife in front of the Prophet (peace be upon him) and then divorced her. This shows that the companion was extremely displeased with his wife and was not willing to keep her under any circumstances, which is why the Prophet (peace be upon him) separated them. But in the case of Hazrat Rukana (may Allah be pleased with him), a completely different approach was adopted. Seeing his distress and sorrow, the Prophet (peace be upon him) understood that the three divorces were given in a fit of anger and the intention was not permanent separation, so he allowed reconciliation.
From these two divorce incidents, the legal principle derived is that a ruling should not be given merely by looking at the apparent form of the event but it is necessary to study the circumstances and conditions under which the act of divorce occurred.
Keeping this legal principle in mind, the meaning of the narration becomes very clear, which states that during the time of the Prophet (peace be upon him), during the caliphate of Hazrat Abu Bakr Siddiq (may Allah be pleased with him), and the first two years of Hazrat Umar’s (may Allah be pleased with him) caliphate, the rule was that three divorces were considered as one. Then Hazrat Umar (may Allah be pleased with him) said that people were hastening in this matter where they had time, so it would be appropriate to enforce it on them, and he enforced it.
During the Prophetic era, the intention of the divorcer was taken into account when deciding about triple talaq. This approach continued during the caliphate of the first caliph (may Allah be pleased with him) and also during the first two years of Hazrat Umar Farooq’s (may Allah be pleased with him) caliphate, as mentioned above. So why should the intention of the divorcer not be considered in today’s circumstances? If the husband swears that his intention was not to divorce his wife by giving three divorces but the words came out in anger, then this divorce should be considered revocable (talaq raj’i) because the purpose of Islamic divorce law is that when the spouses want to reunite, they should be allowed to do so. But if after investigation it is found that the husband did not divorce in a momentary passion but it was a well-thought-out decision and he is not willing to take his wife back, then separation should be enforced provided he is ready to fulfill all the obligations that become legally binding upon him in case of separation from his wife.
As for the decision of Hazrat Umar Farooq (may Allah be pleased with him), it was a temporary ijtihad (juristic reasoning) suited to the specific circumstances and issues of that time. The ruler has the right to ijtihad, which is why no companion disagreed with his decision at that time.
Imam Tahawi (may Allah have mercy on him) writes: So Hazrat Umar (may Allah be pleased with him) addressed the people with this ruling. Among those people were companions who had knowledge of the method during the time of the Prophet (peace be upon him), and none of them denied or rejected it.
The narrations (actions of the companions) that consider triple talaq as final divorce belong to that same period. Hazrat Umar Farooq’s ijtihadi decision, which some scholars have called a punitive ruling, does not have the status of the original Islamic law of divorce. The current circumstances require adopting the decision of the Prophetic era to save thousands of Muslim families from destruction. It should not be forgotten that during the Prophetic era and the Rashidun Caliphate, Muslims had political power. Moreover, remarriage of divorced and widowed women was easy in their society. Those divorced women who had no one to care for them were under the state’s responsibility. These conditions no longer exist, so using Hazrat Umar’s ijtihadi decision as proof that triple talaq has occurred is short-sighted. Every fatwa should be considered in its specific context.
Correct Method of Divorce :.
Islam has prescribed the correct method of giving divorce as pronouncing it to a woman in a state of purity without intercourse, and then letting her go. After the completion of the waiting period (iddah), the divorce automatically takes effect. Before the iddah ends, the husband has the right to reconcile. After the iddah, the woman can be taken back through a second marriage (nikah-e-thani), provided she is willing to return. A narration in Sunan Abu Dawood states that when a man is compelled to divorce his wife, he should give one divorce. If there is no intention of reconciliation, then he should leave it as it is until the iddah is completed. The reason is that among lawful things, divorce is the most disliked by Allah:
اَبْغَضُ الْحَلَالِ اِلَى اللّٰهِ الطَّلَاقُ
Among lawful things, divorce is the most disliked by Allah.
Many semi-literate Muslims mistakenly believe that divorce does not take effect unless the words of divorce are said three times. It is necessary to remove this misconception. When divorce takes effect by saying it once, then repeating the words of divorce is useless and does not affect the essence of the divorce. Generally, the repetition of the words of divorce is done to emphasize the divorce or the husband, in a state of anger, increases the number of divorces, for example, saying, “I have given you a hundred divorces.” Although this act is blameworthy, the nature of the divorce remains the same, meaning it will be considered as one revocable divorce. If a person commits this inappropriate act more than once, he is certainly deserving of punishment. There is a narration about Hazrat Umar (may Allah be pleased with him) that if a person who gave three divorces in one sitting was brought to him, he would have him flogged.
Clarification of a Misunderstanding :.
It is generally understood that giving three divorces in one sitting or one period of purity is against the Sunnah, and this is undoubtedly against the Sunnah. However, giving three divorces in separate sittings or periods of purity is considered according to the Sunnah. This idea is not correct. Just as giving three divorces in one sitting is against the Sunnah, similarly giving divorces in three separate sittings or periods of purity is also against the Sunnah. The difference is only in degree. The former is an innovation in divorce, and everyone agrees on this, but the latter has been excluded from the category of innovation because it leaves room for the husband to think and for the possibility of revocation. But the correct view is that this method of divorce is also against the Sunnah.
Maulana Mufti Muhammad Shafi’ (may Allah have mercy on him) wrote: This is why Imam Malik (may Allah have mercy on him) and many other jurists did not consider the third divorce permissible; they called it an innovation in divorce. Other jurists have only considered three divorces permissible on the condition that they are given in three separate periods of purity. In the terminology of these jurists, this is also referred to as a Sunnah divorce, but this does not mean for anyone that giving three divorces in this way is recommended and beloved; rather, compared to the innovation in divorce, it is called Sunnah divorce in the sense that it is not considered an innovation.
Return to the Sunnah :.
If a person gives divorce against the Sunnah, for example: pronouncing three divorces at once in one sitting, such a person should be warned, and this act should be declared invalid, and he should be brought back to the Sunnah (the original law).
It is strange that most scholars and jurists accept that three divorces in one sitting are an innovation in divorce, and according to some, unlawful and forbidden, yet they insist that they do take effect.
Maulana Mufti Muhammad Shafi’ (may Allah have mercy on him) writes:
Reaching three divorces by exhausting all the powers of divorce, although it causes the displeasure of the Messenger of Allah (peace be upon him) as mentioned in the previous narration, and for this reason, according to the majority of the Ummah, this act is disliked and according to some, unlawful. Yet despite all these points, if someone does so, its effect should be the same as a valid divorce, meaning three divorces take place, there is no option for revocation, and the option for a new marriage is also removed.
Some scholars have claimed consensus on this. Allama Zarqani (may Allah have mercy on him) wrote in Sharh al-Muwatta that the majority of the Ummah agree on the occurrence of three divorces, and according to Ibn Abdul Barr (may Allah have mercy on him), there is consensus on this, and if there is any opposing opinion, it is not to be considered.
Shaykh al-Islam Imam Nawawi (may Allah have mercy on him) wrote that Imam Shafi’i (may Allah have mercy on him), Imam Malik (may Allah have mercy on him), Imam Abu Hanifa (may Allah have mercy on him), Imam Ahmad (may Allah have mercy on him), and many scholars of the Salaf and Khalaf believe that three divorces do take effect, however, according to Tawus (may Allah have mercy on him) and some of the Ahl al-Zahir, only one divorce takes place.
The jurists like Tawus (may Allah have mercy on him) and Ikrimah (may Allah have mercy on him) do not only hold the fatwa that three divorces in one sitting are counted as one revocable divorce, but they also believe that this method is against the Sunnah, and therefore those who violate it should be brought back to the Sunnah. This is also the view of Ibn Ishaq (may Allah have mercy on him).
This view is supported by the incident of Abdullah bin Umar (may Allah be pleased with him) regarding divorce. He divorced his wife during her menstruation. When Hazrat Umar (may Allah be pleased with him) mentioned this to the Prophet (peace be upon him), he became angry upon hearing it and then said: He should take her back until she becomes pure, then she menstruates again, then becomes pure, and after that, if he wants to divorce, he should do so in a state of purity without intercourse. This is the ‘iddah (waiting period) during which Allah has commanded women to be divorced.
, Hadith: 5251, and Sahih Muslim, Divorce, Chapter: Prohibition of Divorcing a Menstruating Woman… Hadith: (4)-1471
Most scholars and jurists have probably not considered this aspect of the law, and if they did, for some reason, they overlooked it because the purpose of legislation is to establish justice and equity among members of society, meaning one individual should not oppress another. This is why the Quran uses the words “Hudood Allah” (limits set by Allah) for it. In other words, the law sets a limit beyond which transgression causes harm to society. Similarly, every law desires to be implemented as it is. Even in worldly governments, respect for the law and full compliance is considered mandatory, and violation leads to punishment. Then how has it been established regarding the Islamic law of divorce that full compliance is not necessary and non-compliance will not be subject to accountability?
Considering this background, one must admit that the current method of triple divorce is not only an injustice to the woman and her children but is equivalent to outright oppression. It is surprising that despite witnessing this injustice firsthand, the effects of this incorrect method of divorce have been accepted, whereas it should have been that whoever violates the Islamic law of divorce should be punished and compelled to revert to the law. But the situation is quite the opposite; instead of punishment, under the guise of triple divorce, they are given the opportunity to play with the lives of women and children.
If you ask any Mufti whether a person who prayed Maghrib with two rak’ahs instead of three has his prayer accepted, the immediate answer will be no; he is at fault. He will never issue a fatwa saying the prayer was accepted but it is an innovation and the worshipper is at fault. Similarly, if a Muslim with the prescribed nisab (minimum amount) pays less zakat than required, every Dar al-Ifta will issue the same fatwa that zakat has not been paid because he violated the Islamic law of zakat. If there is an Islamic state, that incompetent person will be whipped and forced to pay zakat according to the prescribed nisab.
But these same esteemed Muftis and great scholars adopt a completely different approach when it comes to violating the Islamic law of divorce. Those who give three divorces are not told that your divorce has not taken effect because it was given against the rule; you must give divorce according to the original law if you truly want to sever the marital bond. On the contrary, they are told that the divorce has taken effect but you have committed a sin.
Given the current religious and moral condition of Muslims and the political and economic crises the Ummah is facing, there are only two alternatives for Muslims regarding divorce. One is to consider the three divorces in one sitting, which is common nowadays, as one revocable divorce. The second alternative is to declare it invalid and tell the one who gave the divorce to take back his wife and divorce her according to the Sunnah in a state of purity without sexual intercourse and observe the ‘iddah. If he wants to take her back, he should do so within the ‘iddah; otherwise, he should separate from her with good conduct. Every other method is an innovation and unlawful.
