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Talaaq: Divorce on the Scales of Islamic Sharia'h

When a person wishes to worship Allah truly and properly, he must submit to Allah’s commands regardless of whether the commands are related to prayers, fasting, business transactions, marriage or divorce. And when not equipped with authentic Islamic knowledge (or when knowledge and understanding are not translated into action), and the person chooses to follow desires and whims over what’s prescribed in the noble guidance of Qur’an and the Prophet (saw), this will inevitably lead to problems in the various facets of the person’s life, especially in marital affairs.

Marital discord is not only exhibited by husbands but, in many cases, by wives, especially those influenced by the feminist movement or materialistic West, and who failed to turn completely to the Quran and Sunnah to live their lives. Such attitudes led to a great deal of marital discord among couples. Unfortunately, in many instances couples do not realise the steps needed to be taken to bring an end to such discord without hatred and desire for revenge; or for their marriage to return to its proper state, have been stipulated in the Quran and Sunnah over 1400 years ago.

The Prophet (saw) said: The lawful thing which Allah hates most is divorce.This hadith shows divorce is among the legal things that are Halal but not good. It is Halal because sometimes the situation is so complicated that a man is compelled to divorce, when it is reasonable and there is no way out. Divorce is not good because it is a cause of enmity and also a cause of Satans delight. The commonly quoted hadith, Marry and do not divorce for verily divorce causes the arsh (throne of Allah) to shake, is a fabricated and daeef (weak) narration deserving no consideration. Before delving into the key areas of divorce, it is worth pointing out that Divorce is a serious matter with no room for mockery or treating it lightly. The Prophet (saw) said: There are three matters in which it is not permissible to joke: marriage, divorce and emancipation (of slave).

The linguistic definition of Talaaq is the setting free. In the view of Islam, divorce means the immediate and future annulment of the marriage contract. This is confirmed in a plain declaration saying: I hereby divorce you! or indirectly saying, I hereby consider you unlawful to me! It can also be confirmed by a judge or in the absence of judge, a Muslim leader, on basis of the wifes request. This is known as Khulu. Divorce sometimes relieves the husband or wife of difficulty, when one of the two has a corrupt nature and a deficient faith; when the two do not agree in temper and purpose; or when their hearts repel and never go well together. Without love or agreement, the family structure collapses. The aim of the Shariah (Islamic law) is to establish a healthy family unit through marriage. If for some reasons it fails, there is no need to linger on under false hopes. Islam does not keep a couple tied in a loathsome chain to a painful and agonising position; instead, it allows divorce. It should only be resorted to when it becomes humanly impossible and due to unavoidable circumstances.

Causes behind Marital Discord and Divorce

Marriage is a co-operation aiming at creating a happy home and harmonious family. To achieve intimate relations, affection, and mercy, both husband and wife must abide by the laws of Shariah, committed to the teachings and orders of Allah and His Messenger. Marital discord and divorce rates are on the rise on a daily basis, due to the heedlessness of spouses towards the rights of Allah and the rights of each other. There are many contributing factors leading up to this bitter reality. Divorce rates have increased first and foremost as a result of transgressing the boundaries, not fulfilling the rights and duties set by Allah. And so Allah punishes a person or a married couple by causing destablisation within the marital relationship.

Divorce is increasing due to:

  1. Spouses disrespecting one another.
  2. Irresponsibility on the part of the husband. The Prophet (saw) said:&and the husband is the guardian of his household. Divorce is increasing due to the husband not treating his wife with kindness. The Prophet (saw) said during the farewell sermon: Treat your women well and be kind to them for they are your partners and committed helpers.
  3. Spouses not acknowledging each others good actions. The Prophet (saw) said: Whoever does not thank people, is not thankful to Allah.
  4. Women disobeying their husbands with regards to lawful or permissible matters. The Prophet said: If a woman prays her five obligatory prayers, fasts her month, guards her chastity, and obeys her husband, it will be said to her: Enter paradise from any door you desire.

In addition, divorce rates are on the increase because of:

  1. Parents getting involved with the affairs of their married children, where they shouldnt be getting involved.
  2. Transgressing the boundaries Allah has set with regard to gambling-consuming intoxicants such as alcohol and illicit drugs, attending mixed weddings, music and singing, not adhering to the correct Islamic apparel, purchasing houses and cars through riba (usury and interest), in addition to insuring them through prohibited means.
  3. More and more Muslims are refraining from paying zakaat, and due to their neglect and abandonment of Salaat, which the scholars of Islam said is one of the fundamental contributors towards divorce.

Procedure of Divorce

There are two ways by which divorce takes place. One is known as Talaaq BidI (an innovated divorce), and the other is known as Talaaq Sunni (divorce carried out in accordance with the teachings of Muhammad (saw)). Talaaq Sunni entails the man uttering divorce at a time when he has not engaged in any sexual relations with her after her last menstruation, whilst his wife is in a state of purity. In other words, she is not menstruating or in a state of nifaas(post natal bleeding) and that he declares the divorce once only. And so if one of the previously mentioned conditions is violated, the divorce process is considered as having been carried out in an innovated manner.

Talaaq Bidi, is where a man divorces his wife while she is menstruating or is in a state of post natal bleeding, or that he divorces her after having sexual relations with her after her last menstruation, or that he divorces her by verbalising the divorce three times in one utterance or one same sitting. This is the overwhelming opinion of the majority of the scholars, except that Imaam Ash-Shafidid not consider the utterance of divorce at one time as an act of innovation. Imaam ash-Shafis opinion is refuted by hadith colleted from Bukhari and Muslim, whereby ibn Umar, the son of Umar ibn Al-Khataab (ra), divorced his wife when she was menstruating. So Umar (ra) asked the Prophet (saw) about his sons actions, to which he replied:Command him to take her back, and keep her till she is purified, then has another period, then is purified. If he wishes he may keep her and if she wishes he may divorce her before having sexual intercourse, for that is the iddah (period of waiting) which Allah commanded for the divorce of a woman.

This hadith provides many clear insights: It is prohibited to divorce during menstruation period; without the consent of a woman, a man can withdraw his decision within the specified waiting period (iddah); and it is an act of heresy (bidah) to divorce a woman in the state of purification after menses, in which sexual intercourse is carried out. Islamic scholars have differed on the issue of whether divorce uttered while a woman is in menses is actually counted. The majority of the scholars say divorce has taken place and it is to be counted. This is the opinion of Abu Hanifa, ash-Shafi, Maalik, Ahmad ibn Hanbal, An-Nawawi, and Al-Zaidiyyah. Those saying divorce has not taken place include the Dhaahiriyyah (the literalist school of thought), ibn Taymiyyah, his student ibn al-Qayim, and As-Sanaani. The correct opinion (and Allah knows best) is that of the majority of the scholars. That is, the one who divorces his wife whilst she is in a state of menses is counted as one divorce. This is in light of what ibn Umar himself has proclaimed in Saheeh Muslim and Bukhari that it was counted as one divorce against him.

Verbalising Divorce Thrice at One Time

What is the legal status of three divorces given together at a time? There are four famous different opinions among the scholars on this issue. The first opinion, which is the opinion of the four dominant schools of thought, is three divorces given together at a time befall and the woman is divorced. The second opinion is if the woman has carried out sexual intercourse, then three will befall, and if she hasnt, then only one will happen. The third opinion is from the Mutazilah and Shia, which says that three divorces at a time are nothing and have no legal status at all. The fourth opinion is this is only to be counted as one divorce. Among these different views the fourth opinion is the strongest and most logical.

The opinion that three divorces uttered at once is to be only counted as one is the opinion of Abu Bakr As-Siddiq, Umar ibn AL-Khataab during the first two years of his Khilaafah, Abdur-Rahmaan ibn Awf, one of the ten companions given the glad tidings of Jannah, Abdullah ibn Mas ud, Ali ibn Abi Taalib, ibn Abbaas, ibn Taymiyyah and his student ibn al-Qayim, ibn Rajab al-Hanbali, Ash-Shawkaani, ibn Baaz, ibn Uthaymeen, the great scholar of hadith Shaikh Al-Albaani, and many others (May Allah have mercy on them).

The conclusive opinion of these great companions and scholars is from authentic texts, which shed light on this controversial issue. The following hadith reported by Muslim is one of the main sources of evidence, whereby ibn Abbaas (ra) narrated: In the time of Allahs Messenger (saw), Abu Bakr, and the first two years of the caliphate of Umar, the three pronouncements of divorce were regarded as one divorce. So Umar said: People have made haste in an affair they used to practice with patience, so supposing we execute it on them, so he executed it on them.

Uttering Divorce during Anger

Anger is of three types. The first type is when anger is so intense, a person becomes no longer aware of what he is doing or saying. In this case the divorce does not count according to the majority of the scholars, because he is like one who is insane and mad, one who has lost all power of reason. The second is when his anger is intense but he understands what he is saying and doing, however the anger is so intense and he cannot control himself because the argument trading of insults or fighting has gone on too long, so his anger intensifies because of that. In this case, there is difference of opinion among the scholars. The most correct view is that divorce does not count because the Prophet (saw) said: There is no divorce and no freeing of slaves when it is done by force or in a state of intense anger.[iv] The third is mild anger. This is what happens when the husband is upset with his wife, or he is disappointed about something his wife has done. This mild anger is not so intense to make him lose his power of reasoning or self-control; hence the divorce is valid, according to the majority of the scholars. This is the correct answer regarding divorce uttered in anger, as was stated by ibn Taymiyyah and ibn al-Qayyim (May Allah have mercy on them).

Iddaah: Period of waiting

Iddah is a period during which a woman waits after the death of her husband or divorce, and she is not allowed to marry during this period. The Muslim jurists have unanimously agreed on it as being waajib (obligatory), due to the explicitness of the Quranic injunction, whereby Allah saying: The divorced women shall wait concerning themselves for three monthly periods.[v]

There are three types of Iddah. The first one is of birth-a woman must wait until she delivers her child before she can remarry. A common erroneous idea among people is a pregnant woman cannot be divorced. Rather there is a consensus on this point among the scholars that this is a Sunnah divorce and heresy (bidah). There is no dispute regarding its validity.

The second type is the Iddah of menses, meaning a woman is not allowed to marry until she has three menstruations. As soon as the third period ends, Iddah ends. This is the view of many of the elite companions such as Umar, Ali and ibn Masud, and it was narrated by ibn al-Qayyim. This is also the view by the majority of contemporary scholars such as ibn Baaz and Uthaymeen.

The third type is the Iddah of months, which applies to women who have passed the age of menstruation. In this case, the Iddah is three months. As for a woman who is divorced by her husband before he has consummated his marriage with her, then there is no waiting period that applies to her, according to the Quran (Al-Ahzaab S:33 , V:49 ).

The woman whose husband has divorced her once or twice is instructed to spend her Iddah duration within her husbands house. Any woman leaving her home without the permission of her husband after he has uttered either the first or second divorce is in violation of the injunctions of Allah and His Messenger. A woman whose divorce is revocable (i.e. first or second divorce) may still uncover in front of her husband and adorn herself by applying make-up and perfume. She may speak to him and he may speak to her; she may sit with him and do anything with him apart from intercourse. The only instance in which he may have sexual relations with her is if he takes her back.

If the husband kisses and embraces his wife with the intention of taking her back, then taking her back is valid. To be on the safe side however, he should not fondle his wife until after he has clearly stated he is taking her back.

In the case where a husband is not sure as to whether he uttered the word of divorce at all, or as to the number of divorces he has uttered, then he should act on the basis of what is certain. So if he is not sure whether he has divorced her or not, the basic principle is divorce has not taken place, because in this instance marriage is something which is certain, and divorce is something concerning uncertainty. Based on the juristic principle certainty cannot be overridden by doubt, if the husband is uncertain as to whether he has divorced his wife once or twice, he should assume he has divorced her once, because this is what is certain.

Khulu: Divorce initiated on the part of the wife

The linguistic definition of khulumeans to take off the clothes or to take out. According to Sharia terminology, khulurefers to a womans right of cancellation of her marriage. Just as a man can divorce if he has a genuine objection, similarly, a woman may also have a khuluif she has a genuine excuse, and after returning the dowry (mahr or sadaaq). Some of the valid reasons for a woman to ask for a Khuluinclude disliking her husbands treatment (such as being hot tempered, over-strict, one who criticises her and rebukes her for the slightest mistake or shortcoming). Another valid reason is she may dislike her husbands physical appearance due to some deformity or ugliness, or one of his faculties is lacking. Other reasons a woman may instigate divorce is if her husband is lacking in religious commitment. For example, he doesnt pray, or does not fast in Ramadan without a proper excuse, or he goes to parties, whereby the barriers of Allah are transgressed (such as fornication, drinking alcohol, listening to singing and musical instruments). A woman may also ask for a divorce is if the husband deprives her of her rights of spending on her maintenance, clothing, and other essential needs, when he is able to provide these things; or, if her husband does not give a woman her conjugal rights and thus keep her chaste due to being impotent, or because he is unfair in the division of his time among co-wives. It is crucial to point out there must be a valid reason behind asking for a khulu. The Prophet (saw) said: If any woman asks for divorce from her husband without any specific reason, will not smell the fragrance of paradise.

The Iddah of a woman divorced by khuluis not the same as that of a woman who did not instigate the divorce. If the woman divorced by khuluis pregnant then her Iddah lasts until she gives birth, according to scholarly consensus[vi]. But if she is not pregnant, the scholars differed concerning her Iddah. Most of the scholars said she should wait for three menstrual cycles, because of the general meaning of the verse: And divorced women shall wait (as regards their marriage) for three menstrual periods. The correct view (and Allah knows best) is, it is sufficient for a woman divorced by khuluto wait for one menstrual cycle only. This is deduced from the hadith whereby the Prophet (saw) told the wife of Thaabit ibn Qays, when she divorced him by Khulu, to wait out the Iddah for one menstrual cycle[vii]. This hadith refers specifically to Khuludivorce, whereas the verse quoted above speaks of divorce in general. As for the permissibility of taking back a divorced wife by Khuluduring the Iddah, ibn Kathir (May Allah have mercy on him) said:There is unanimous agreement that the man who has divorced his wife by Khulumay take her back during the Iddah.

Ar-Raj’a – Taking back a wife after a divorce

If a man divorces his wife and this is the first or second talaaq, referred to astalaaq raja, and she has not ended her Iddah, then hecan take his wife back by saying: I am taking you back or I am keeping you. Apart from verbalising he is taking her back; the husband may do some action intending thereby to take her back, such as having intercourse with the intention of taking her back. The Sunnah is, taking back the wife should be done in the presence of two just Muslims, according to Quran (At-Talaaq S:52 , V:2 ). If the Iddah has ended following a first or second divorce, there has to be a new marriage contract. In this case he has to propose marriage like any other man, to her guardian and to her. When she and her guardian agree and they agree upon amahr (dowry), then the marriage contract is completed. This must be done in the presence of two just witnesses. If however, he divorces his wife for a third time, she becomes unlawful to her first husband until she marries a second husband in a genuine marriage, which is consummated. Allah says (interpretation of the meaning): The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness& and He also said: And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband.

The last divorce, known amongst Muslim Jurists as Talaaq Baa-in, refers to the third divorce according to the overwhelming majority of the scholars. This is in light of the hadiths from Bukhari and Muslim whereby a woman came to the Prophet (saw) saying: O Messenger of Allah, Rifaaah divorced me thrice, then I was married to Abd al-Rahmaan ibn al-Zubayr al-Qurazi, but he has nothing with him except something like this fringe. The Prophet (saw) said: Perhaps you want to go back to Rifaaah? No, (it is not possible), unless and until you enjoy sexual relations with him (i.e. Abd al-Rahman), and he enjoys the sexual relation with you.

An-Nawawi said: This hadith indicates that the woman who has been divorced by a third talaaq is not permissible to the man who has divorced her until she has been married by another husband, who has intercourse with her then separates from her, and she completes her Iddah. Merely drawing up the marriage contract with her does not make her permissible to the first husband. This is the view of all the scholars among the companions, the taabieen (their direct successors), and those who came after them.

Verbalising Divorce Thrice at One Time

What is the legal status of three divorces given together at a time? There are four famous different opinions among the scholars on this issue. The first opinion, which is the opinion of the four dominant schools of thought, is three divorces given together at a time befall and the woman is divorced. The second opinion is if the woman has carried out sexual intercourse, then three will befall, and if she hasn’t, then only one will happen. The third opinion is from the Mutazilah and Shia, which says that three divorces at a time are nothing and have no legal status at all. The fourth opinion is this is only to be counted as one divorce. Among these different views the fourth opinion is the strongest and most logical.

The opinion that three divorces uttered at once is to be only counted as one is the opinion of Abu Bakr As-Siddiq, Umar ibn AL-Khataab during the first two years of his Khilaafah, Abdur-Rahmaan ibn Awf, one of the ten companions given the glad tidings of Jannah, Abdullah ibn Mas ud, Ali ibn Abi Taalib, ibn Abbaas, ibn Taymiyyah and his student ibn al-Qayim, ibn Rajab al-Hanbali, Ash-Shawkaani, ibn Baaz, ibn Uthaymeen, the great scholar of hadith Shaikh Al-Albaani, and many others (May Allah have mercy on them).

The conclusive opinion of these great companions and scholars is from authentic texts, which shed light on this controversial issue. The following hadith reported by Muslim is one of the main sources of evidence, whereby ibn Abbaas (ra) narrated: In the time of Allahs Messenger (saw), Abu Bakr, and the first two years of the caliphate of Umar, the three pronouncements of divorce were regarded as one divorce. So Umar said: People have made haste in an affair they used to practice with patience, so supposing we execute it on them, so he executed it on them.

Uttering Divorce during Anger

Anger is of three types. The first type is when anger is so intense, a person becomes no longer aware of what he is doing or saying. In this case the divorce does not count according to the majority of the scholars, because he is like one who is insane and mad, one who has lost all power of reason. The second is when his anger is intense but he understands what he is saying and doing, however the anger is so intense and he cannot control himself because the argument trading of insults or fighting has gone on too long, so his anger intensifies because of that. In this case, there is difference of opinion among the scholars. The most correct view is that divorce does not count because the Prophet (saw) said: There is no divorce and no freeing of slaves when it is done by force or in a state of intense anger.[iv] The third is mild anger. This is what happens when the husband is upset with his wife, or he is disappointed about something his wife has done. This mild anger is not so intense to make him lose his power of reasoning or self-control; hence the divorce is valid, according to the majority of the scholars. This is the correct answer regarding divorce uttered in anger, as was stated by ibn Taymiyyah and ibn al-Qayyim (May Allah have mercy on them).

Iddaah: Period of Waiting

Iddah is a period during which a woman waits after the death of her husband or divorce, and she is not allowed to marry during this period. The Muslim jurists have unanimously agreed on it as being waajib (obligatory), due to the explicitness of the Quranic injunction, whereby Allah saying: The divorced women shall wait concerning themselves for three monthly periods.[v]

There are three types of Iddah. The first one is of birth-a woman must wait until she delivers her child before she can remarry. A common erroneous idea among people is a pregnant woman cannot be divorced. Rather there is a consensus on this point among the scholars that this is a Sunnah divorce and heresy (bidah). There is no dispute regarding its validity.

The second type is the Iddah of menses, meaning a woman is not allowed to marry until she has three menstruations. As soon as the third period ends, Iddah ends. This is the view of many of the elite companions such as Umar, Ali and ibn Masud, and it was narrated by ibn al-Qayyim. This is also the view by the majority of contemporary scholars such as ibn Baaz and Uthaymeen.

The third type is the Iddah of months, which applies to women who have passed the age of menstruation. In this case, the Iddah is three months. As for a woman who is divorced by her husband before he has consummated his marriage with her, then there is no waiting period that applies to her, according to the Quran (Al-Ahzaab S:33 , V:49 ).

The woman whose husband has divorced her once or twice is instructed to spend her Iddah duration within her husbands house. Any woman leaving her home without the permission of her husband after he has uttered either the first or second divorce is in violation of the injunctions of Allah and His Messenger. A woman whose divorce is revocable (i.e. first or second divorce) may still uncover in front of her husband and adorn herself by applying make-up and perfume. She may speak to him and he may speak to her; she may sit with him and do anything with him apart from intercourse. The only instance in which he may have sexual relations with her is if he takes her back.

If the husband kisses and embraces his wife with the intention of taking her back, then taking her back is valid. To be on the safe side however, he should not fondle his wife until after he has clearly stated he is taking her back.

In the case where a husband is not sure as to whether he uttered the word of divorce at all, or as to the number of divorces he has uttered, then he should act on the basis of what is certain. So if he is not sure whether he has divorced her or not, the basic principle is divorce has not taken place, because in this instance marriage is something which is certain, and divorce is something concerning uncertainty. Based on the juristic principle certainty cannot be overridden by doubt, if the husband is uncertain as to whether he has divorced his wife once or twice, he should assume he has divorced her once, because this is what is certain.

Khulu: Divorce initiated on the part of the wife

The linguistic definition of khulumeans to take off the clothes or to take out. According to Sharia terminology, khulurefers to a womans right of cancellation of her marriage. Just as a man can divorce if he has a genuine objection, similarly, a woman may also have a khuluif she has a genuine excuse, and after returning the dowry (mahr or sadaaq). Some of the valid reasons for a woman to ask for a Khuluinclude disliking her husbands treatment (such as being hot tempered, over-strict, one who criticises her and rebukes her for the slightest mistake or shortcoming). Another valid reason is she may dislike her husbands physical appearance due to some deformity or ugliness, or one of his faculties is lacking. Other reasons a woman may instigate divorce is if her husband is lacking in religious commitment. For example, he doesnt pray, or does not fast in Ramadan without a proper excuse, or he goes to parties, whereby the barriers of Allah are transgressed (such as fornication, drinking alcohol, listening to singing and musical instruments). A woman may also ask for a divorce is if the husband deprives her of her rights of spending on her maintenance, clothing, and other essential needs, when he is able to provide these things; or, if her husband does not give a woman her conjugal rights and thus keep her chaste due to being impotent, or because he is unfair in the division of his time among co-wives. It is crucial to point out there must be a valid reason behind asking for a khulu. The Prophet (saw) said: If any woman asks for divorce from her husband without any specific reason, will not smell the fragrance of paradise.

The Iddah of a woman divorced by khuluis not the same as that of a woman who did not instigate the divorce. If the woman divorced by khuluis pregnant then her Iddah lasts until she gives birth, according to scholarly consensus[vi]. But if she is not pregnant, the scholars differed concerning her Iddah. Most of the scholars said she should wait for three menstrual cycles, because of the general meaning of the verse: And divorced women shall wait (as regards their marriage) for three menstrual periods. The correct view (and Allah knows best) is, it is sufficient for a woman divorced by khuluto wait for one menstrual cycle only. This is deduced from the hadith whereby the Prophet (saw) told the wife of Thaabit ibn Qays, when she divorced him by Khulu, to wait out the Iddah for one menstrual cycle[vii]. This hadith refers specifically to Khuludivorce, whereas the verse quoted above speaks of divorce in general. As for the permissibility of taking back a divorced wife by Khuluduring the Iddah, ibn Kathir (May Allah have mercy on him) said:There is unanimous agreement that the man who has divorced his wife by Khulumay take her back during the Iddah.