Surah Al-Baqara (2) — Ayah 229

(Ayah229) ➊ According to the narrations of Umm al-Mu’minin Aisha (may Allah be pleased with her) and other Companions, in the early days after migration, following the pre-Islamic custom, men would divorce their wives multiple times and then take them back repeatedly, with the intention of causing hardship to the wife. To prevent this situation, this verse was revealed.
➋ In {”اَلطَّلَاقُ“}, the definite article “al” is for specification, so the translation is “this divorce,” meaning the divorce mentioned in the previous verse, after which the husband can take his wife back during the waiting period; this is allowed only twice.
➌ { فَاِمْسَاكٌۢ بِمَعْرُوْفٍ اَوْ تَسْرِيْحٌۢ بِاِحْسَانٍ:} means that after giving the first or second divorce, if the husband intends to reconcile, he should do so within the waiting period; this is “keeping her in a good manner.” If he does not intend to reconcile, he should not take her back, but rather let the waiting period pass, and the wife will automatically be separated; this is “releasing her with kindness.” The benefit of this is that after the waiting period, although the woman is free to marry any man she wishes, she also has the option to remarry her previous husband. However, after the third divorce, the husband can neither take her back during the waiting period nor remarry her after the waiting period, as will be mentioned in the next verse.
➍ { وَ لَا يَحِلُّ لَكُمْ اَنْ تَاْخُذُوْا …:} It is not permissible for the husband to harass his wife and take back the dowry from her. (See Nisa: 20) However, in the case of khul‘, if the husband agrees to divorce in exchange for compensation, then this return is permissible.
➎ {فِيْمَا افْتَدَتْ بِهٖ:} This mentions khul‘, meaning if a woman wants to separate from her husband and the husband is not willing to divorce her, then the woman can free herself by giving up her dowry or whatever is mutually agreed upon between the husband and wife or decided by the judge in court, as compensation. Then, whether the husband himself accepts the compensation and lets her go, or if he is not willing, the judge can order him to accept the compensation and let her go, and if he still does not comply, the court can annul the marriage. Since this is not actually a divorce but a separation initiated by the woman, it is called khul‘, and its waiting period is one menstrual cycle. [ ترمذی : ۱۱۸۵، عن الربیع بنت معوذ رضی اللہ عنہ ] This is so it can be determined whether the woman is pregnant, and during the waiting period, the husband cannot take her back.

229. 1. That is, the divorce in which the husband is given the right of revocation (within the 'iddah period) is twice. Revocation is possible after the first and second divorce, but not after the third. In the pre-Islamic era, this right was unlimited, which was a burden on women. It should also be known that many scholars rule that three divorces in one sitting are valid. 229.2 Meaning, to retain her in a good manner. 229.3 Meaning, by giving the third divorce. 229.4 This explains Khul': if a woman seeks separation, the husband can take back the mahr he gave. If the husband refuses, a court can order the divorce or annul the marriage. In both cases, the 'iddah is one menstrual cycle (Sources: Abu Dawud, Tirmidhi, etc.). Along with giving the woman this right, it is also strongly emphasized that the woman should not demand separation, i.e., divorce from her husband without any valid excuse. If she does so, the Prophet ﷺ has stated a severe warning for such women that they will not even smell the fragrance of Paradise. (Ibn Kathir, etc.)

229. Divorce (revocable) [307] is twice. Then, either keep [the wife] in an acceptable manner or release her with kindness [308]. And it is not lawful for you to take back anything of what you have given them [309], unless both fear that they will not be able to keep within the limits set by Allah [310]. But if you fear that they will not be able to keep within the limits of Allah, then there is no blame upon either of them if she gives something for her release [311]. These are the limits set by Allah, so do not transgress them. And whoever transgresses the limits of Allah, then such are the wrongdoers.

[307]
Prevention of Unlimited Divorces:

In the Age of Ignorance, there was also a custom among the Arabs that a man had the right to give his wife an unlimited number of divorces. If a man became displeased and resolved to trouble and distress his wife, he would do so by giving her a divorce and then taking her back during the waiting period, then divorcing her again and taking her back again, and this cycle would continue endlessly. He would neither keep the woman properly with him nor set her free so that she could marry someone else. Thus, Hazrat Aishaؓ says that a man would give his wife as many divorces as he wished and would take her back during the waiting period, even if he gave her a hundred or more divorces. Until one (Ansari) man said to his wife: "By Allah! I will neither divorce you so that you can be separated from me, nor will I keep you." The woman asked: "How is that?" He replied, "I will divorce you, and when your waiting period is about to end, I will take you back." Hearing this answer, the woman went to Hazrat Aishaؓ and told her of her plight. Hazrat Aishaؓ remained silent until the Messenger of Allahﷺ arrived. Hazrat Aishaؓ narrated the incident to him, and he too remained silent until this verse was revealed:
﴿اَلطَّلَاقُ مَرَّتٰنِ .....﴾ [ترمذي۔ ابواب الطلاق، اللعان]

The Sunnah Method of Divorce:

This verse put an end to this social evil and allowed the man the right to divorce and take back his wife only twice. The prescribed and best method of giving divorce is that the man gives his wife one divorce in a state of purity and lets the entire waiting period pass. In jurisprudential terminology, this is called "Talaq Ahsan." The second method is to give one divorce in one period of purity, the second in another, and the third in a third period; this is called "Hasan." The benefit of the first method is that even after the waiting period has passed, if the husband and wife agree to reconcile, it is possible through renewal of marriage.
One Session, Three Divorces:
The third method is to give all three divorces at once. This is called "Talaq Bid'iyyah" and is a major sin. [هدايه، كتاب الطلاق] Although, according to some jurists, even in this case all three divorces take effect, according to the Sunnah, only one divorce takes effect, as is clear from the following hadiths:
(1) Hazrat Ibn Abbasؓ says that during the time of the Messenger of Allahﷺ, Hazrat Abu Bakrؓ, and the first two years of Hazrat Umarؓ's caliphate, three divorces given at once were counted as only one. Then Umarؓ said: "People have started hastening in a matter in which they had respite and leniency, so why should we not enforce three divorces upon them?" Thus, Hazrat Umarؓ enforced this law. [مسلم، كتاب الطلاق، باب طلاق الثلاث]
(2) Abu Sahba said to Sayyiduna Ibn Abbasؓ: "Do you know that during the time of the Messenger of Allahﷺ, the caliphate of Hazrat Abu Bakr Siddiqؓ, and even for three years of Hazrat Umarؓ's caliphate, three divorces were made into one?" Ibn Abbasؓ replied, "Yes." [ بحواله، ايضاً]
(3) Abu Sahba said to Hazrat Abbas: "Tell me one issue: during the time of the Messenger and Hazrat Abu Bakr Siddiqؓ, were three divorces not counted as one?" Hazrat Ibn Abbas replied, "Yes, it was so." Then, when the time of Hazrat Umarؓ came, the practice of giving three divorces at once became common, so Hazrat Umarؓ enforced all three upon them. [حواله ايضاً]
Although the above three hadiths are separate, their content is almost the same, and from these hadiths, the following points are evident:
1. Until the early two or three years of the Prophetic eraﷺ, the era of Siddiqؓ, and the early Farooqi era, people were involved in the innovation of giving three divorces at once, and this habit had continued from the Age of Ignorance and was not completely eradicated even in the Prophetic era. Thus, in the Prophetic era, a person gave three divorces at once, so the Prophetﷺ stood up in anger and said: "Is the Book of Allah being played with like this in my lifetime?" Seeing this state, a person sought permission: "Should I not kill this criminal?" But the Prophetﷺ, out of compassion, did not permit the killing of this criminal. [نسائي، كتاب الطلاق، باب طلاق الثلاث المتفرقه- ابو داؤد، كتاب الطلاق باب نسخ المراجعه بعد التطليقات الثلاث] From this incident, it can be estimated how great a sin and detestable act it is, from the Shariah perspective, to give three divorces in one sitting.
2. People were rebuked and reprimanded for this bad habit because this method was against the Book and Sunnah. However, until 15 AH, three divorces given at once were practically considered as one, and despite people's disobedience and foolishness, their right of return was not taken away from them.
3. The words of Hazrat Umarؓ «فَلَوْ اَمْضَيْنَاهُ عَلَيْهِمْ» are clear evidence that his decision was for disciplinary and corrective purposes so that people would desist from this bad habit. He enforced this decision through an official proclamation. Thus, it was a temporary and provisional ordinance, not permanent like the Book and Sunnah.
4. If Hazrat Umarؓ had any Shariah basis before him, he would certainly have deduced and informed the people, as he did when taking the lands of Iraq into public ownership, and all the Companionsؓ agreed with his deduction. If he had deduced from any verse or hadith and informed the people before enforcing this decision, then indeed, the status of this decision could have become Shariah-based and permanent.

Is the Issue of Three Divorces in One Sitting a Matter of Consensus?

These are the reasons why, to this day, the Ummah has not reached consensus on Hazrat Umarؓ's decision, and the claim of those who claim consensus is false. Because regarding triple divorce, the following four types of groups exist:
1. The first group considers Hazrat Umarؓ's decision as temporary and disciplinary and regards the Sunnah of the Prophet as the standard for all times. According to them, three divorces in one sitting count as only one. This group includes the Zahiris, Ahl-e-Hadith, and Shia (as well as Qadianis, who have been declared non-Muslim, also believe in only one divorce). In addition, some broad-minded scholars among the followers of the four Imams also hold this view, and some accept it under extreme necessity.
2. The second group consists of the followers (Muqallids), the majority of whom consider Hazrat Umarؓ's decision as legislated and permanent, though they regard the act itself as a major sin.
3. The third group has gone to the other extreme. According to them, it is permissible for one divorce to take effect in one sitting, but if two, three, or more divorces are given, not even one takes effect. They say that giving more than one divorce at a time is an act of disobedience and against the Sunnah, i.e., an innovation, about which the Prophet said: «مَنْ اَحْدَثَ فِيْ اَمْرِنَا هَذٰا مَالَيْسَ مِنْهُ فَهُوْرَدٌ» [متفق عليه] "Whoever introduces into our religion something that is not part of it, it is rejected." Therefore, such innovative divorces are all rejected, void, and invalid. Thus, not even one divorce will take effect. Some Shia are included in this group, as well as Muhammad bin Arta'ah and Muhammad bin Muqatil (Hanafi) [ شرح مسلم للنووي،ج 1۔ ص 470]
4. And there is also a small number of people who count three divorces in one sitting as one for a woman who has not been consummated with, and as three for a consummated woman. [زادالمعادج 4ص 67] Consider: can an issue in which there is so much disagreement and four groups exist be called "consensus"? The bad habit of giving more than one divorce in one sitting is a relic of the Age of Ignorance, which returned after the death of the Messenger of Allahﷺ, and Hazrat Umarؓ took three types of measures to eradicate this habit:
1. He would give corporal punishment to those who gave three divorces in one sitting.
2. Counting three divorces in one sitting as three was, in fact, a punishment, which Hazrat Umarؓ enforced.
3. And when people, instead of controlling their habit, started talking about "halalah," he prescribed the punishment of stoning for both the one who arranged and the one who underwent halalah. In this way, this mischief was suppressed for some time. Thus, in the Farooqi era, the reform of this sin was such that the door of halalah was strictly closed. But today, the tragedy is that whether followers or non-followers, no one considers giving three divorces at once a crime. Ignorance has increased to such an extent that not only the common people but even the elite think that three divorces are necessary for separation. Whereas the best and prescribed method of divorce is to give only one divorce and let the waiting period pass, so that even after the waiting period, if the spouses wish to reconcile, the issue can be resolved through renewal of marriage. However, if mutual hatred and discord have become so severe that the man has decided never to keep his wife in the marital bond and, to satisfy his anger and resentment, wants to complete the number three and give an irrevocable divorce, then he should do so by giving one divorce in each period of purity, so that after the third divorce, for their future reunion,
﴿ حَتّيٰ تَنْكِحَ زَوْجًا غَيْرَهٗ﴾
no other way remains. In today's era, in not considering three divorces in one sitting as an act of disobedience or a major sin, both followers and non-followers are alike. No one thinks about what punishment should be given to such a criminal, so that the Sunnah of Hazrat Umarؓ may also be revived. However, there is this difference: after this crime, the Ahl-e-Hadith show such a criminal the way of the Sunnah of the Prophet, while some Hanafi scholars guide towards the unlawful act of halalah.

Sending Three Divorces to the Wife by Mail:

Nowadays, the practice has become common that first the wife is sent to her parents' home, and later, at some time, three written divorces are sent to her by mail. This is a very wrong method, and its reasons are as follows:
1. Three divorces at one time is an act of disobedience and a major sin. It is an innovation, as is clear from the above explanations.
2. During the waiting period, the maintenance and residence of the divorced woman are the husband's responsibility, and the divorced woman is still his wife, from whom he has the right to take her back, which he forfeits. During this period, he also wants to be relieved of the burden of maintenance, which is legally obligatory upon him.
3. Keeping the woman with him during the waiting period is also necessary so that perhaps harmony may develop in the circumstances. The divine intent is that the stability of the marital bond should remain intact. Although divorce has been permitted in unavoidable circumstances, the Messenger of Allahﷺ said: «اَبْغَضُ الْحَلاَلِ اِلَي اللّٰهِ الطَّلاَقُ» [ابو داؤد، كتاب الطلاق] "Of all the lawful and permissible things, the most disliked by Allah is divorce." Therefore, Allah's pleasure lies in the man taking his wife back during the waiting period after divorce, and he even has the right to do so forcibly; that is, even if the woman is not willing, he has the right to do so, so that the path of separation is closed and the path of reconciliation is opened.
4. At the time of the woman's departure after the waiting period, the presence of two just witnesses is also necessary [65/2], and by sending divorces by letter, this command cannot be fulfilled. For the importance of witnesses, see the footnotes of Surah Talaq. Now the question is, what should be the punishment for the criminal who gives three divorces at once in today's era? Although this issue deserves the attention of the scholars and grand muftis, in my opinion, the punishment should be the expiation for zihar, because both acts fall under
﴿مُنْكَرًا مِّنَ الْقَوْلِ وَزُوْرًا﴾
(a reprehensible and false statement), and for several reasons, they are similar. The expiation for zihar is to free a slave, or to fast for two consecutive months, or to feed sixty poor people. Today, the era of slavery is over, but among the remaining two punishments, the scholars can prescribe either one for such criminals. Until a punishment is prescribed for them, they will never even realize their crime. In this way, this evil custom and innovation can be discouraged, and it is also necessary for the scholars to prescribe such a punishment, because by remaining silent and indifferent, to let a sinful act continue is also an act of disobedience. Therefore, such a criminal should be punished, and only one divorce should be counted, so that the Sunnah of the Prophet is followed, as well as the Sunnah of Umar.
[308] That is, she should be sent off with something according to his means; she should never be sent away empty-handed or driven out of the house.

[309]
Taking Back What Was Given to the Divorced Woman is a Sin:

That is, both the dower and other items (such as jewelry, clothes, etc.) that the husband has given to his wife as a gift. It is not permissible to take back a gift from anyone even in normal circumstances, and the Messenger of Allahﷺ likened the act of taking back a gift to a dog that vomits and then licks it up again. [بخاري، كتاب الهبة، باب هبة الرجل لامراته] For a husband who divorces his wife, it is even more shameful that at the time of parting, instead of giving her something more, he demands the return of previous gifts he had given her.

[310]
Mutual Settlement Between Spouses:

If discord arises between husband and wife, or there is a fear of it, and they think that perhaps they will not be able to fulfill Allah's commands regarding good marital relations, and there is no shortcoming on the husband's part in fulfilling the wife's rights, then if the woman gives up some of her rights or gives some wealth (even if it was given by the husband himself) to persuade the husband not to divorce her, this is also permissible. An example of this is that Ummul Momineen Hazrat Sawda رضی اللہ عنھا bint Zam'a, when she became old, in order to please the Messenger of Allahﷺ and also fearing that he might divorce her, gave her turn to Hazrat Aishaؓ. [بخاري كتاب الهبة باب هبة المراة لغير زوجها الخ]

[311]
Rulings of Khula:

If the situation becomes more strained and the woman definitely wants to free herself from her husband, then whatever ransom amount they mutually agree upon will be valid, and after receiving that amount, the man will divorce her. An irrevocable divorce will take effect on the woman; in Shariah terminology, this is called khula. Thus, Hazrat Abdullah bin Abbasؓ says that the wife (Jameela) of Thabit bin Qais (bin Shamas Ansari), who was the sister of Abdullah bin Ubayy the hypocrite, came to the Messenger of Allahﷺ and said: "O Messenger of Allah, I do not find any fault in Thabit bin Qais regarding his religion or character, but I do not want to be guilty of ingratitude to my husband as a Muslim." The Prophet said: "Alright, will you return the garden that Thabit gave you (as dower)?" She said, "Yes, I will." The Prophet said to Thabit bin Qais: "Take back your garden and divorce her." [بخاري، كتاب الطلاق، باب الخلع و كيف الطلاق فيه] It is not necessary that the ransom amount be equal to the dower; it can be less or more. However, the jurists have considered taking more as disliked, and if the matter cannot be settled mutually, the woman can approach the court. In this case, after reviewing all the circumstances, whatever ransom the court decides will be enforced, and the woman will not be free from that man until she pays the ransom and the man or the court divorces her. Here, it is also noteworthy that Jameela bint Abi did not present any reasonable cause for khula. Thabit bin Qais was fully fulfilling her rights, and his character was not objectionable. Jameela bint Abi had only a natural aversion because Thabit bin Qais was dark-skinned, and she herself, being the sister of Abdullah bin Ubayy (the chief of the hypocrites), had an aristocratic mindset. However, she was a true believer. Thus, the Messenger of Allahﷺ considered only this natural aversion as a valid reason and ordered khula.