al-Talaq (divorce)

 

• Prophet! When you (men} divorce women, divorce them in accordance with their prescribed waiting period. Keep to the completion of the waiting period and fear Allah, your Lord. Do not expel them from their homes, but do so only if they commit a clear

 

act of adultery. These are the limits set by Allah, and whoever transgresses the limits set by Allah has surely wronged his own soul. You do not know if Allah might qfterwards bring forth a new situation. [al-Talaq 65:1}

If matters between a married couple reach a critical point, and the hope for a successful reconciliation between them vanishes, then divorce imposes itself as the last resort for this tense situation.54

But if they separate (by divorce}, Allah will compensate each from

His abundance… [al-Nisa’ 4:130}

However, how will they separate? Although the question is short, its answer is lengthy:

 

– al-Ihsan wa’1-Ma’ruf (beneficence and kindness)

 

We have shown that married life in Islam is established on a firm foundation of ihsan and ma’ruf (beneficence and kindness). Likewise, if a marriage comes to an end,  it must also be  on the basis of ihsan and ma’ruf. Allah, the Exalted, says:

Divorce is allowable two times, then either stay together in

kindness or separate with beneficence… [al-Baqarah 2:229]

 

There is also the statement of the Exalted One:

When you have divorced women, and they have fulJi.lled their prescribed waiting period, either take them back in kindness or set themfree in kindness. But do not take them back to harm them so that you become transgressors. Whoever does that has oppressed his own soul … [al-Baqarah 2:231]

Also, the Exalted One says:

When they have fulJi.lled their prescribed waiting period, either take them back in kindness or set themfree in kindness… [at-Talaq 65:21

– The Procedure for Talaq (divorce)55

 

The noble Quran and the pure Sunnah have defined the procedure in which divorce is performed, and it is not fitting for a Muslim to transgress it. We can summarize this procedure with the following points:

 

• A husband divorces his wife by making one verbal declaration of divorce after she has purified herself from her menses, that is, after making major ritual bathing (ghusl). and before having sexual intercourse with her. He then avoids having sexual intercourse with her but does not fully divorce her until her waiting period (‘iddah) elapses. She remains in the same home in which she has lived with her husband during the days of the ‘iddah and should not leave it.

• If the husband wants to return to her during the ‘iddah, it is his right to do so, without needing her approval nor that of her guardian (wali). Also, there is no need for a new dowry (mahr).

• If he leaves her when her ‘iddah elapses, then he should leave her in kindness, for she is now separated from him.

• If he wants to marry her after her ‘iddah has elapsed,  it is allowable for him to do so. But this remarriage takes place through a new contract (‘aqd} as if he were marrying her for the first time.

• If he has returned to her or has married her a second time, and then wants to divorce her again, he divorces her in the exact manner as just described.

• If he divorces her a third time, she is forbidden to him until she has married another husband.

• If the woman is one who does not menstruate, either because she is too young or is too old, then he can divorce her whenever he wants, whether he had sexual intercourse with her or not. In this case, her ‘iddah is measured according to the lunar months and not menstrual periods.

This generalization is in need of details and proofs, which we shall supply in the following sections.

– The Wisdom of Three Divorces

 

Islam requires three divorces in order to grant a married couple time to bring their affairs into balance and to correct any flaws in their behavior. But when they fail to do this, Islam opens the way for the dissolution of the marriage.

But if they separate (by divorce}, Allah will compensate each from

His abundance… [al-Nisa’ 4:130]

Ibn al-Qayyim, may Allah have mercy on him, said, “Allah has perfected His legislation (fillar’) and completed His bounty for His worshipper by empowering him with the right to separate from his wife and to take another one. It might be that the first wife was not suitable for him and did not harmonize with him. Allah did not make her to be an iron collar around his neck, a chain on his leg and a burden on his back.”56

Allah has legislated that a husband separate from his wife in the most perfectly suitable manner for both of them. He divorces her once, during which time she waits for three menstrual periods, which in most cases is three months. 57 If his soul yearns for her, and he has a desire for her, and ifAllah, who changes hearts, directs his heart toward the love of her, then it will be possible that he finds a way to return to her and finds the door open. He has now returned to his lover and looks forward to a new future. What the hand of anger, and the temptations of Satan, had driven away now comes back to him.

However, the force of habits and the temptations of Satan are not secured to the point that the spouses will never return to their old ways. Thus, a second divorce is possible in such a case. But the hope is that the wife has now tasted the bitterness of divorce and the destruction of the home and that this will prevent her from doing those things that angered her husband. Also, the husband has tasted the pain of separating from her, which might prevent him from rushing into another divorce.

But if the third talaq is declared, then Allah’s command cannot be repulsed. It will be said to him, “You have indulged in your own desires by way of the first and second divorces. After this third talaq there is no easy way for you to go back to her!” When he knows that the third talaq is a final separation between him and her and that it is a decisive judgement, then he might refrain from allowing it to happen. He might refrain from it when he knows that after the third divorce his ex wife is not lawful for him unless:

She waits through three menstrual periods.

Then she marries a man who desires her in marriage and who fully intends to keep her as his wife.58

As part of her new marriage, she and her husband have sexual intercourse in a full and complete manner so that each of the newly married couple tastes the sweetness of the other in this sexual union. This will help to prevent the couple from rushing to a new separation. Now the former husband of this woman must wait until the second husband separates from

her through death, divorce or khul’.

She then waits for the end of the complete ‘iddah from her second husband.

In explaining the despair of the third divorce, each of the currently married spouses will know that there is almost no chance of returning to each other, even if it is the will of both to do so.

– al-Talaq is Two Times

 

In Sura al-Baqarah is this verse of the Exalted One:

Divorce is allowable two times, then either stay together in kindness or separate with beneficence… [al-Baqarah 2:229]

The intended meaning of talaq in this verse is the the revocable divorce (talaq raj’i) because there is no revocation after the third divorce. Imam Ahmad ibn Hanbal, may Allah have mercy on him, said, MI have carefully studied the Quran and found that every talaq in it is talaq raj’i59 except the verse of the Exalted One:

if he has divorced her a third time, then she is not lawful for him qfter that until she has married another husband… (al-Baqarah 2:230]

Allah, glorified and exalted be He, says: MDivorce is allowable two times” (al-talaq marratani). He did not use the term Mtwice divorced” (talqatani). This points to the fact that it is proper for divorce to occur one time after the other and not twice simultaneously.

Islam has limited the number of divorces in order to eliminate an ancient custom from the time of Jahiliyyah according to which a man was granted the right to divorce his wife as many times as he wished. He could also divorce her in a manner that enabled him to impose much harm on her, for she would remain suspended between two states, neither married nor divorced. Imam Malik, Imam al-Shafi’i and others reported from Hisham ibn ‘Urwah from his father who said, MA man used to divorce his wife, returning to her Just before the completion of her ‘iddah. That was his right, even if he divorced her a thousand times. Thus a man would fully intend to divorce his Wife, wait until her ‘iddah was about to elapse,

and then take her back just to divorce her again. He would then say to her, ‘By Allah, I shall never shelter you nor release you.”‘ Thus, Allah, the Exalted, revealed:

 

Divorce is  allowable  two  times,  then either stay  together  in kindness or separate with beneficence… [al-Baqarah 2:229]

From that day on, people accepted divorce in this new way, whether they had divorced according to the old way or not.

The one who reflects on this verse in Sura al-Baqarah notices that it contains the three divorces. A man came to the Prophet, the blessing and peace of Allah be upon him, saying, “O Messenger of Allah! I have seen the verse of Allah, the Exalted, ‘Divorce is allowable two times,· but where is the third divorce?” He said: “‘Separate with beneficence’ (al-tasrih bi

ihsan} is the third.”60 Also, Ibn Abi Hatlm reported from Yazid ibn Abi Habib who said, “‘Separate’ in the Book of Allah means divorce.”61

Toe term “two times” (marratani) in this verse indicates that this is the talaq after which a return is possible. However, the third divorce is the one after which a wife is no longer lawful for her first husband until she marries another husband according to the verse of the Exalted One:

if he has divorced her a third time, then she is not lawful for him qfter that until she has married another husband… [al-Baqarah 2:230}

Ibn Mas’ud, may Allah be pleased with him, gave this explanation (tafsir) for the verse of Allah “Divorce is allowable two  times:”  “It is the time during which a return is possible, that is, when a husband has divorced his wife one time or two times. Then he either keeps her and returns to her in kindness or he keeps quiet concerning her until her ‘iddah has elapsed, at which time she will be on her own.”

– Pronouncing the Three Divorces Simultaneously

 

A husband misuses the rtght of talaq if he divorces his wife three times during a period of purity after menstruation by pronouncing the three divorces in one statement or several statements. Some examples of this are: “You are divorced three times;” “You are divorced and divorced and divorced;” “You are divorced, then divorced, then divorced;” “You are divorced. You are divorced. You are divorced;” or “You are divorced three times, ten times, a hundred times, a thousand times.” There are many statements similar to these which a husband might use. But regardless of the expressions, his multiple divorce is forbidden, and only one divorce will be accepted from him.

This opinion has been reported by scholars past and present (al-salaf wa-1-khalaf) such as the Sahabah al-Zubayr ibn al-‘Awwam. ‘Abd al Rahman ibn ‘Awf, ‘Ali ibn Abi Talib, Ibn Mas·uct and Ibn ‘Abbas. It Is likewise the opinion of the Followers (tabi’un) and those who came after them such as Tawus. Khilas ibn ‘Amr, and  Muhammad  ibn Ishaq. It is the opinion of Dawud al-Zahiri and many of his companions. And the same opinion is reported from Abu Ja’far Muhammad ibn ‘Ali bin al Hasan and his son Ja’far ibn Muhammad and from other Shiite scholars. Finally, it is the opinion of some of the companions ofAbu Hanifah, Malik and Ahmad ibn Hanbal.62

This verse, “Divorce is allowable two times,” because of the way it is worded, means that divorce occurs one time after the other. A husband has no right to pronounce three divorces simultaneously. This issue of simultaneous pronouncements is treated similarly in the Book and the Sunnah for cases such as the oath of condemnation (li’an) . swearing an oath (qasamah), confessing fornication or adultery (zina’). remembering Allah Whikr), and requesting permission to enter a house (isti’ghan).

 

In the case of li’an, Allah, the Exalted, says:

 

As for those who accuse their wives but have no witnesses except themselves, the testimony of any of them must be four testimonies  by  Allah  that  he  is  speaking  the  truth.  The fifth testimony must be to invoke the curse of Allah on himself if he is telling a lie. But her punishment will be averted if she

testifies four times by Allah that her husband is telling a lie.

The fifth  testimony  must be  to  invoke  the  wrath  of Allah  on herself if he is speaking the truth. {al-Nur 24:6-9}

If a husband were to say.  “I testify by Allah with four testimonies that I am speaking the truth,” or if the wife were to say. “I testify four times by Allah that he is telling a lie,” then these would be considered as one testimony, not four.

In the case of qasamah, Allah. the Exalted, says:

 

0 you who believe! There should be two just men of your people to witness your testimony at the time of a bequest when death approaches any of you. Or, two other men could be witnesses if you are traveling through the land and the calamity of death befalls you. Detain both of them qfter prayer. But if you have doubts, then let them swear this oath by Allah: “We shall not take any bribe in this affair even though the beneficiary may be our near relative and we shall not hide the testimony of Allah, for then we will be sinners. ” But if it becomes known that these two are guilty of the sin ofperjury, then let two others, who are relatives deserving of inheritance, take their place. Let them

swear this oath by Allah: “Our testimony is truer than that of the other two, and we have never transgressed the truth, for otherwise we would be unjust men. ” Thus it is more likely that either they will bear true witness orfear that another oath will be taken in place of theirs. So fear Allah and obey what you hear. Allah does not guide a rebellious folk. [al-Ma’idah 5:1 06- 108]

Thus. in the matter of swearing an oath (qasamah).  if a person were to say, “I swear 50 times by Allah that this person is his killer,” this would be considered as only one oath.

 

In the case of confessing zina’:

 

If a person were to confess to committing zina’ by saying. “I confess four times that I committed zina’,” it would be considered as if he made only one confession.

 

In the case of remembering Allah:

 

The Messenger of Allah, the blessing and peace of Allah be upon him, said: “Glorify Allah (tasbih). praise Allah (tahmid) and magnify Allah

(takbir) 33 times after each prayer.” If a person were to remember Allah by saying, “I glorify, praise and magnify Allah 33 times,” he would not get the reward of this dhikr until he repeats each statement one time after the other. This holds true for other types of dhikr.

• In the case of requesting permission to enter a house, Allah, the Exalted, says:

• 0 you who believe! Let your slaves and your children who have not reached puberty ask your permission before entering your presence at three times of the day… [al-Nur 24:58}

• • If a visitor were to say, “I request permission three times to enter,” it would be considered that he asked only once.63

• These examples are not very different than the verse of the Exalted One “Divorce is allowable two times.” What we have observed in all these examples is agreeable with what we observe in this noble verse.64

 

– The Talaq of Innovation

 

A divorce is an innovated deviation from Islamic Law (talaq al-bid’ah) when a man divorces his wife by simultaneously declaring more than one divorce, or  by divorcing  her during her menses,  or by divorcing her during a period of purity but after having had sexual intercourse with her. However, the scholars of the Law (‘ulama’ al·fil!ari’ah) have differing

opinions regarding talaq al-bid’ah. The Hanaflyyah and a majority of scholars from the Malikiyyah, the .Shafi’iyyah and the Hanabilah have ruled that a husband’s talaq in this case is effective but that he is a sinner who has contradicted the legislated course for divorce.

According to the Imamiyyah Shiites, a divorce is not effective when the three declarations are made simultaneously or when talaq is pronounced while the wife is menstruating because it is an illegal innovation (bid’ah muharramah). The Prophet, the blessing and peace of Allah be upon him, said: “Whoever performs an action which is not a part of our affairs has that action rejected.”65

lbn Taymiyyah and lbn al-Qayyim take the position that talaq al-bid’ah is not effective and that declaring three divorces simultaneously is considered one divorce. Their proof for this is the Hadith of Ibn ‘Umar which is reported by Malik in al-Muwatta’ from Nafi’. may Allah be pleased with him:66 “During the time of the Messenger of Allah, the blessing and peace of Allah be upon him, ‘Abd-Allah ibn ‘Umar had divorced his wife while she was menstruating. ‘Umar ibn al-Khattab asked the Messenger of Allah, the blessing and peace of Allah be upon him, about that matter. The Messenger of Allah, the blessing and peace of Allah be upon him, said: ‘Order him to get back with her and to keep her until she purifies herself from this menses. has another menses, and purifies herself again. Afterwards, if he wills, he may keep her, or if he wills, he may divorce her before having sexual intercourse with her. This is the ‘iddah (the waiting period) according to which Allah has ordered that women be divorced.'”

 

lbn Taymiyyah and Ibn al-Qayyim draw the following conclusions from this Hadith:

 

• The statement of the Messenger, the blessing and peace of Allah be upon him, “Order him to get back with her (fa-1-yuraji’ha) .” does not mean that the divorce was effective. On the contrary, it means the  exact opposite because Ibn ‘Umar physically separated himself from his wife, for it was customary that when a man divorced his wife they physically separated from each other. The Messenger’s words to ‘Umar were “Order him to get back with her,” not, “Return to her for remarriage (fa-1- yartaji’ha).” “Getting back with each other” (muraja’ah), which is a mutual action by two parties. means that she went back to him physically so that

they be reunited as they were before because the divorce was  not effective. He could divorce her only during the time permitted by Allah.

 

The term “muraja’ah,” which is the verbal noun (masdar) of the verb “yuraji’,” is being used in the Hadith and the previous explanation according to its linguistic meaning.

 

Although this same term is now used

in reference to a revocable divorce (al-talqah al-raJiyyah), this is a usage according to the legal terminology introduced by the jurisprudents (fuqaha’) after the time of the Prophet. This new usage as a legal term is not a meaning found  originally in the Quran. Instead, the terms used in the Quran in reference to a return after the first or the second divorce are “al-radd” and “al-imsak.” For example, see Sura al-Baqarah 2:228, 229 and 231. The term “muraja’ah” is used in the Quran with a different legal meaning than that adopted by the fuqaha’. Its usage in the Quran is in reference to a return after the third divorce, that is, after a divorced woman has married another husband, is divorced from him, and then

returns to the first husband on a new marriage contract. See Sura al

Baqarah 2:230.67

• If the divorce between lbn ‘Umar and his wife were finalized, i.e.. it was the third divorce, then there would not have been any benefit in ordering a return so that he could divorce her a second time. On the contrary. such an order would have been harmful to  both  of them because it would have increased the number of divorces, lengthened the ‘iddah and punished both spouses.

• The Messenger did not order Ibn ‘Umar to have witnesses for returning to his wife as Allah and His Messenger had ordered in the case of a return based on a new marriage contract. Ifthe divorce were effective, he would have ordered lbn ‘Umar to have witnesses for the return.

• If Ibn ‘Umar’s prohibited divorce, which he declared during his wife’s menses. were made effective. then corruption. which Allah and His Messenger hate, would have occurred. This corruption would not have been eliminated by his return to her, after which a divorce would still be allowable. because the precedent of allowing a prohibited act would have been established. Allah and His Messenger are exalted above giving such an order. Also, there would have been no benefit in the Prophet’s specific order to return if the talaq were valid, for Ibn ‘Umar could have chosen to

 

return to her, if he desired her. And if he had no desire for her, he could not have been obligated to return to her. There is no legislated basis that promotes  the  common good (maslahah fil}ar’iyyah)  by ordering a  return after a divorce has been established. Instead, there is an increase in corruption. The Messenger, the blessing and peace of Allah be upon him, is necessarily exalted above any command from which an increase of corruption results. Allah and His Messenger have forbidden the innovated divorce (talaq bid’i) in order to prevent corruption. How then could they order that which would increase corruption?68

– The Oath of Condemnation

 

The previous Hadith of lbn ‘Umar and the conclusions drawn from it establish an important principle concerning divorce. Muslim jurisprudents use it to prove that a declaration of divorce is without effect if it is made during the wife’s menses. We shall now similarly review the issue of the oath of condemnation (li’an or mula’anah). The following Hadith is reported by Ahmad and the “Two Sheiks” (al-Bukhari and Muslim) from Sahl ibn Sa’d who said: ‘”Uwaymir al-‘Ajlani came to the Prophet, the blessing and peace of Allah be upon him, and said, ‘O Messenger of Allah! What advice would you give to a man who finds another man with his wife? Should he kill him, and thus he himself be put to death for murder? What should he do?’ The Messenger of Allah, the blessing and peace of Allah be upon him, said: ‘Allah has revealed a Quran verse concerning you and your wife. Go and bring her.’ So they swore the oath of condemnation in the presence of the  Messenger  of Allah, the blessing and peace of Allah be upon him, while I (Sahl ibn Sa’d) and some others were there. When it was  over,  ·uwaymir  said, Messenger of Allah! If I keep her as a wife. then I have lied concerning her.· So he divorced her three times before the Messenger of Allah, the blessing and peace of Allah be upon him, had ordered him to do so.”

In the version of the Hadith according to Muslim and Ahmad, this ruling is given: “His separation from her is an obligatory Sunnah in the matter of the oath of condemnation.” In another narration, it is reported that after having said “then I have lied concerning her,” ‘Uwaymir said: “She is divorced. She is divorced. She is divorced.” It is not reported in any of the narrations that the Messenger of Allah. the blessing and peace ofAllah be upon him, objected to what ‘Uwaymir said. The clarification of this matter  is in accordance to what al-Shawkani  has said:  “The Prophet, the blessing and peace of Allah be upon him, remained silent about the three simultaneous proclamations of talaq because the oath of condemnation itself effectuates a divorce. . and so there is no need for a

husband to declare any talaq after that.”69

 

– The Position of ‘Umar Concerning Three Simultaneous Divorces

 

During the time of the Messenger of Allah, the blessing and peace of Allah be upon him, and Abu Bakr and during the first two years of ‘Umar’s caliphate, three simultaneous declarations of talaq used to be considered one declaration. Then ‘Umar ibn al-Khattab, may Allah be pleased with him, said, “People are rushing into a matter that used to be

one of lengthy deliberation for them. How would it be ifwe were to enforce this on them.” And so he executed this order.70 Therefore, whoever declared three divorces at one time became fully separated from his wife, and his triple talaq was not considered one declaration as was the case during the time of the Messenger of Allah, the blessing and peace of Allah

be upon him.

lbn al-Qayyim says in !’lam al-Muwaqqi’in: “‘Umar’s authorization to enforce the three simultaneous declarations of talaq when people practiced this type of divorce was a disciplinary punishment for them. He authorized it because people were opposing what Allah had legislated concerning divorce, which is to be invoked one time after the other, so that they might return to the Sunnah. He enacted this rule in regards to that particular time.” lbn al-Qayyim continues by saying: “However, acting in the public good (maslahah) today requires a return to the Book and to what is authentically reported in the Sunnah concerning the  days of the Prophet, the blessing and peace of Allah be upon him, and the first caliphate. This means that a husband can choose  between keeping his wife (imsak) and divorcing her (tasrih) in the first talaq and then again in the second talaq. . But if he definitively declares the third talaq, then the

matter will be out of his hands. By this time, a couple would have tried three times to make their marriage work but failed in their attempts.”71 

– The Conditional Divorce (al-talaq al mu-allaq)

 

Divorce is divided into two types: unconditional (munjaz) and conditional (mu’allaq). The talaq munjaz is a divorce which occurs in a straightforward manner without being conditioned by any qualifications or oaths. Some examples of munjaz declarations are: “You are divorced;” “You are the one divorced;” “She is divorced;” “You are the divorced one;” or “I have divorced you.” These are clear, unambiguous statements. This form of declaring talaq is without disagreement among the scholars, providing the conditions that we have detailed above have been met.

The talaq mu’allaq is a divorce which occurs by way of a qualification. An example of this is “If you enter the house you are divorced.” Sheik Ahmad Shakir, may Allah have mercy on him, says in his valuable book, Nizam al-Talaq.fi-l-Islam: “Every kind of talaq mu’allaq is not correct and not effective because it is not a form ofpermissible divorce. A man has no authority to divorce except in accordance with what Allah, glorified and exalted be He, has permitted. Also, by conditioning his divorce on a future event, he turns his declaration of talaq into a false statement because establishing  a  divorce  can _only  be  based  on  pre-existing conditions.  It cannot be dependent on what might occur in the future.” He continues by saying: “All the evidences that we have presented to prove the illegality of the innovated divorce (talaq bid’i) are valid concerning the judgement that the conditional divorce is also illegal.“72

– Swearing an Oath to Divorce

 

Swearing an oath that might result in divorce is an innovation (bid’ah), and every bid’ah is a means of going astray, and every means of going astray leads to the Hellfire. This innovation never existed at the time of the Messenger of Allah, the blessing and peace of Allah be upon him. The oath resulting in divorce was first innovated by al-Hajjaj ibn Yusuf al Thaqafi. lbn Taymiyyah explains what had occurred at that time: “The Sunnah concerning the pledge of allegiance (bay’ah) is that people should give their bay’ah just as they make a contract for things such as business transactions or marriage; or they should state their conditions on which they will pledge their allegiance and then say: ·we pledge allegiance to you based on these conditions.’ This is how the Ansar pledged allegiance to the Prophet, the blessing and peace of Allah be upon him, on the Night of ‘Aqabah. But, when al-Hajjaj started introducing many corrupt practices, one of them was to force people to swear an oath of allegiance to the Caliph ‘Abd al-Malik ibn Marwan (d. 86 AH/705 CE) based on these conditions: They had to swear to divorce, to free their slaves, to treat it as an oath to Allah, and to give charity from their wealth. These four oaths are the earliest innovated oaths related to the bay’ah. Thereafter, later generations of leaders, whether caliphs or kings, introduced many more conditional oaths than those of al-Hajjaj, and the habits of these people concerning innovated oaths varied greatly. May the one who introduced

innovated oaths cany the sin of the evil consequences caused by these oaths.”73 Elsewhere in the same book he says, “Swearing an oath to divorce is an innovated novelty in this religious community (ummah).”74

An authentic narration from ‘Ikrimah regarding a judgement on swearing to divorce states, “It is following the footsteps of fil!aytan, so it is not binding.” Also, an authentic narration from Shurayh and lbn Mas’ud states, “The divorce of talaq mu’allaq is not binding.”75

Swearing an oath to divorce comes under the statements of the Messenger, the blessing and peace of Allah be upon him, concerning swearing any oath: “Whoever swears an oath, let him swear by Allah or let him be silent.” “Allah has forbidden you from swearing oaths by your fathers.” “Whoever swears an oath by other than Allah has surely associated partners with Allah.”

Toe essential point related to divorce is that the divorce that has been legislated by Allah is the revocable divorce (talaq raj’i). This is when a man divorces his wife with one declaration (talqah) while she is in a state of ritual purity after menstruation, and he has not yet had sexual intercourse with her. She stays safely with him in the house in which they have been living until her prescribed waiting period (‘iddah) is completed. Allah, the Exalted, says .. Jear Allah, your Lord. Do not expel themfrom their homes, but

do so only if they commit a clear act of adultery (al-Talaq 65:1] This is thejudgement ofAllah, and these are His limits: These are

the limits set by Allah, and whoever transgresses the limits set by Allah has surely wronged his own soul (al-Talaq 65:1]

One might ask, “How can a husband keep a woman, whom he has just divorced, in his house? Or, how can a wife stay safely in a house the owner of which has just divorced her?” Allah, the Knower of the inner aspects of affairs. the Perfectly-Informed of a soul’s innermost thoughts, says:

…..You do not know if Allah might qfterw ards bring forth a new situation. ” (al-Talaq 65:1/.

 

Points of Importance

 

– The Return (al-raj’ah)

 

A husband has the light to return to his wife as long as she is still in her prescrtbed waiting pertod (‘iddah).76 He indicates his return to her

through an expression or an action which will be clearly understood as his return to her. Also, it is incumbent on him that there are witnesses for this return. Sa’id ibn al-Musayyab, al-Hasan al-Basrt, lbn Sirtn, al Zuhrt, ‘Ata’, Tawus and al-Thawri said, “If he had intercourse with her, then he has returned to her.” They also said, “His return to her should be declared before witnesses.” The Sunnah indicates that he should declare his return before he embraces her, kisses her, or has sexual intercourse with her.

Imam Malik, may Allah be pleased with him, said, “If he has sexual intercourse with her durtng the ‘iddah with the intention of returning to her but did not know that he should declare this before witnesses, then it is still considered as raj’ah.” Imam Abu Hanifah and his companions said, “If he has sexual intercourse with her, or touches her with desire, or looks to her prtvate parts with desire, then this is considered as raj’ah.”

This is also the statement of al-Tuawrt who said, “It is incumbent on him to have witnesses.”77 Allah, glorified and exalted be He, has ordered the witnessing of the return in the noble Quran:

When they have fulftlled their prescribed waiting period, either take them back in kindness or set them free in kindness, and let twojust persons among you witness this… [al-Talaq 65:2]

 

Allah, the Mighty and Sublime, does not discriminate between returning and divorcing in regard to having witnesses.

 

al-Tabari78 narrates in his Tafsir from lbn ‘Abbas who said, “If a husband wants to return to his wife before her ‘iddah is complete, then there should be two witnesses, for Allah, the Exalted, says ‘let two just persons among you witness this.’ This is necessary for a divorce or a return.” Also, he narrates from ‘Ata’ who said, “Marriage requires witnesses, divorce requires witnesses, and returning requires witnesses.”

If the ‘iddah of the wife has been completed after the first or the second divorce, then she is on her own. However, her husband can return to her, with her approval and on a new marriage contract in accordance with the verse of Allah, the Exalted:

… their husbands have a better right to return to them at that time, if they wishfor reconciliation… [al-Baqarah 2:228]

al-Bukhari and al-Tirmidhi report a Hadith from Ma’qil ibn Yassar concerning the cause of the revelation of this verse. Ma’qil had married off his sister to one of the Muslims during the time of the Prophet, the blessing and peace of Allah be upon him. She stayed with him for a certain time, and then he divorced her by declaring one talqah. But he did not return to her until her ‘iddah was completed, for he desired her and she desired him. However, when he asked her to remarry him, her brother, Ma’qil, told him, “O you disgraceful onet I honored you by way of her, I married her off to you, and then you divorced her. By Allah! She will never return to you.” But Allah knew his need for her and revealed this verse. When Ma’qil heard it he said, “Hearing and obedience are for Allah.” He called him and said to him, “I will many her off to you and I will honor you.”

The point of this Hadith is that her husband wanted to return to her in order to reconcile with her. Had he intended to harm or harass her, then returning to her would be forbidden (haram) because Allah prohibits a return in order to cause harm:

…But do not taJce them back to harm them so that you become transgressors… [al-Baqarah 2:231]

 

 

REFERENCES:

• [trans. note: In the original text. Sheik Ghazi has here a lengthy three page footnote which contains his answer to Jeremy Bentham’s view that divorce should not be allowed. I have decided not to translate It for it adds nothing significant to the Islamic understanding of divorce. which the Sheik clearly explains in this book. As I have indicated above In Chapter 1 , footnote 23, reference to statements of non-Muslim thinkers in support of Islamic beliefs and practices is generally not advisable.)
• The following Hadith is narrated from lbn ‘Abbas and other Sahabah: “Divorce is performed In four different ways, two of them are allowable (halal) and two of them are forbidden (haram). The two halal ways are when a man divorces his wife while she Is in a state ofritual purity after her menstruation and before having sexual intercourse with her. or when he divorces her while she is clearly known to be pregnant. The two haram ways are when a man divorces his wife during her menstruation. or when he divorces her after having sexual intercourse with her, not knowing if she has become pregnant or not.· This is reported by al-Daraqutni and others.
•  See I’lam al-Muwaqqi’tn, vol.3, p.59.
• This means that he divorces her by a revocable divorce (talqah raj’iyyah) during her time of purity after menstruation and without having had sexual intercourse with her.
• [Trans. note: The desire should be mutual. See Chapter 4, Section 3 for the matter of contrived marriages.)
• This refers to a divorce from a marriage which was consummated.
• This Hadith Is reported by ‘Abd al-Razzaq. Sa’id ibn Mansur. al-Bayhaqi and others from Abu Razayn al-Asri.

• The term “separate” (al-tasrih) appears In the noble Quran four times. in al-Baqarah 2:229 and 231 and in al-Ahzab 33:28 and 49.
• This list of opinions is taken from Mqjmu’at Fatawa Shaykh al-Islam Ibn Taymiyyah, vol.33, p.9. [trans. note: 1) Although some readers might be surprised by the inclusion of the Zahiriyyah and the Shi’ah, it Is well-known that lbn Taymiyyah often includes the opinions of a wide range of Islamic groups and sects when he discusses a matter of jurisprudence (flqh) as will as of creed (‘aqldah). 2) In his original text, Sheik Qhazi includes a short paragraph about modern Egyptian law on divorce, which I have chosen not to Include here.)
• [trans. note: There is some confusion in the way Sheik Qha2i presents this argument. for the commentators (mufassirun) agree that this verse refers to requesting permission to enter at three separate times of the day, not making three requests at one of the stipulated times. It should be understood that one must make a new request at each time rather than making three requests simultaneously, which would then be valid all day long. Another related issue not mentioned by Sheik Qhazi is the Hadith in which a person made three requests to enter ‘Umar’s home but then left when there was no response. He made three separate requests; he did not make three requests at once and then leave. See the ArabicEnglish version of Sahib al-Bukhari, vol.8. p. 173.)

 

1. See lbn al-Qayyim, I’lam al-Muwaqqi’in. vol.3, p.4.
2. See al fil].awkani, Nayl alAwtar, vol.6, p. 143.
3. See al-Muwatta·. vol.4, p.96. This is an authentic Hadith narrated by al-Bukhari and Muslim from Malik.
4. See al-Shaykh Ahmad fillakir. Nizam al Talaqji-lIslam, p.30.  [trans.  note: This entire paragraph appears in the original text as a footnote explaining the term “muraja”ah.• I felt that the importance of this explanation required its inclusion in the main text. Also, I added a few minor points of explanation that do not appear in Sheik Qhazi’s footnote.)

• The discussion of these points can be found in MqJmu’at Fatawa Shaykh al-Islam Ibn Taymiyyah. vol.33, p.22.

 

See Nayl al-Awtar, vol.7, pp. 12-13. [trans. note: Imam al-fillafl’i makes the same point in his Risalahfi Usul al Fiqh that the process of li’an ends the marriage (see the translation

by Majid Khadduri, pp.146- 148). This is what is meant by the ruling of Ahmad and Muslim that the separation is an “obligatory Sunnah.” As al-Sllafl’i explains throughout his Risalah, the Sunnah of the Prophet details many obligations that are only implied by the Quran.

Some other obligations concerning li’an that are found only in the Sunnah are a husband’s denial of paternity if the wife is pregnant and the right of a judge to overturn this denial should the child show clear signs of resemblance to the father.I

• This is reported by Muslim and Ahmad.

• See !’lam al-Muwaqqi’in. vol.3. p.34. [trans. note: lbn al Qayyim is indicating that ‘Umar’s authorization to enforce three simultaneous declarations of divorce was a form of ijtihad necessary for the circumstances prevalent at that time. Writing over  years after the time of ‘Umar. Ibn al-Qayyim is reminding the Muslims that following the Sunnah of the Prophet ls the best course of action but that the exigencies of particular circumstances might permit the ·u1ama’ and rulers to exercise ijtihad based on the Quran and the Sunnah.)
• [trans. note: In Sheik Qhazi’s original text, a paragraph following this one explains that In modern Egyptian law the talaq mu’allaq ts considered Illegal.)
• See Ibn Taymiyyah, al-Qawa’i.d al-Nuraniyyah al-Fiqhiyyah, p.323.

• See Ibn Taymiyyah. al-Qawa’i.d al-Nuraniyyah al-Fiqhiyyah, p.952.
• See Jamal al-Din al-Qas!mi, Mahasin al-Ta’wil, vol.3, p.594.
• This Is valid for the first and second divorces only. not for the third.
• See al-Qurtubi, vol.3, p. 121.
• [trans. note: This Is Abu Ja’far Muhammad ibn Jarlr al-Tabar!, who died in 310 AH/922 CE. His exegesis is known as Jami’ al-Bayan ‘an Ta’wil Ay al-Quran.J

 

BOOK REFERENCE:

BOOK: “ MARRIAGE & DIVORCE 

“DR. MUHAMMAD JAMIL GHAZI