There is a common misconception that a man can say Talaq, Talaq, Talaq to his wife in a row and it will lead to Talaq. This is totally an unIslamic practice.
While marriage is the rule of life, and divorce only an exception, the latter must also be accepted as a reality. Indeed there already exist commandments to deal, accordingly, with such cases in both divine and human laws.
Just think of couples wasting away the whole of their lives in mental torment only because the conditions of separation and its consequences are hard to meet. It is as unnatural as anything can be.
Islam is a natural religion. Such a situation has not developed in Muslim communities because Islamic law on marriage and divorce provides for all, or almost all, eventualities. For example, when a woman wishes to divorce her husband, she has to put her case before a religious scholar, or a body of religious scholars. They then give consideration to her circumstances in the light of the Qur’an and the Hadith, and, if they find that there are reasonable grounds for separation, they decide in her favor. The reason that the woman must have scholars to act on her behalf is that women are more emotional than men-as has been proved by scientific research-and it is to prevent hasty and ill-considered divorces taking place that she is thus advised. If we seldom hear of Muslim women committing suicide, or being murdered by their in-laws, it is because they have the alterative - separation.
Separation, of course, is strongly advised against in the case of minor provocations. Are we not commanded by God to be tolerant and forgiving? It is meant only as a last resort, when it has become truly unavoidable.
Islamic law is thus fair to both husband and wife, unlike occidental law, which places an undue burden on the man, while Hindu society forces the woman into familial rejection, destitution and social ostracism.
Divorce in Islam
Nature demands that men and women lead their lives together. The ideal way of leading such a life is, according to the shari‘ah, within the bonds of marriage. In Islam, marriage is both a civil contract entered into by mutual consent of the bride and groom, and a highly sacred bond to which great religious and social importance is attached.
However, in the knowledge that an excess of legal constraints can lead to rebellion, such injunctions have been kept to a realistic minimum and have been formulated to be consistent with normal human capabilities. Moreover, their enforcement is less relied upon than the religious conditioning of the individual to ensure the maintenance of high ethical standards and appropriate conduct in marital affairs and family life.
The state of marriage not only lays the foundations for family life, but also provides a training ground for individuals to make a positive adjustment to society. When a man and woman prove to be a good husband and a good wife, they will certainly prove to be good citizens in the broad spectrum of their social group. This has been aptly expressed in a Hadith: “The best of you is one who is best for his family.” Ibn Majah, Sunan, Kitab an-Nikah, 1/636
The family being the preliminary unit for the training of human beings, its disintegration has an injurious effect on the society to which those human beings must individually make a positive contribution, if collectively they are to form a good and just nation. If the family no longer exists, it is the whole of humanity, which suffers.
Once a man and a woman are tied together in the bonds of matrimony, they are expected to do their utmost, till the day they die to honor and uphold what the Qur’an calls their firm contract, or pledge. (Qur’an, 4:21) To this end, the full thrust of the Shariah is leveled at preventing the occurrence of divorce; the laws it lays down in this regard exist primarily, therefore, as checks, not incentives.
Islam regards marriage as an extremely desirable institution, hence its conception of marriage as the rule of life, and divorce only as an exception to that rule. According to a Hadith, the Prophet Muhammad said, “Marriage is one of my Sunnah (way). One who does not follow it does not belong to me.” Ibn Majah, Sunan, Kitab an-Nikah.
When a mail and a woman live together as husband and wife, it is but natural that they should have their differences, it being a biological and psychological fact that each man and each woman born into this world are by their very nature quite different from each other. That is why the sole method of having unity in this world is to live unitedly in spite of differences. This can be achieved only through patience and tolerance; virtues advocated by the Prophet not only in a general sense, but, more importantly, in the particular context of married life. Without these qualities, there can be no stability in the bond of marriage. According to Abu Hurayrah, the Prophet said, “No believing man should bear any grudge against a believing woman. If one of her ways is not to his liking, there must be many things about her that would please him. “Muslim, Sahih, Kitab ar-Rada’, 2/1091
It is an accepted fact that everyone has his strengths and his weaknesses, his plus points and his minus points. This is equally true of husbands and wives. In the marital situation, the best policy is for each partner to concentrate on the plus points of the other, while ignoring the minus points. If a husband and wife can see the value of this maxim and consciously adopt it as the main guiding principle in their lives, they will have a far better chance of their marriage remaining stable.
However, it sometimes happens, with or without reason, that unpleasantness crops up, and goes on increasing between husband and wife, with no apparent indication of their being able to smooth things out by themselves. Their thinking about each other in a way that is conditioned by their maladjustment prevents them from arriving at a just settlement of their differences, based on facts rather than on opinions. In such a case, the best strategy according to the Qur’an is to introduce a third party who will act as an arbiter. Not having any previous association with the matters under dispute, he will remain dispassionate and will be able to arrive at an objective decision acceptable to both parties.
For any arbiter to be successful, however, the husband and wife must also adopt the correct attitude. Here is an incident from the period of the four pious Caliphs, which will illustrate this point.
When ‘Ali ibn Abi Talib reigned as fourth Caliph, a married couple complaining of marital discord came to him to request a settlement. In the light of the above-mentioned Qur’anic guidance ‘Ali ordered that a board of arbiters, one from the husband’s family and one from the wife’s family, be set up, which should make proper enquiries into the circumstances and then give its verdict. This verdict was to be accepted without argument by both sides.
As recorded in the book, Jami’ al-Bayan, by at-Tabari, the woman said that she gave her consent, on the book of God, whether the verdict was for or against her. But the man protested that he would not accept the verdict if it was for separation. ‘Ali said, “What you say is improper. By God, you cannot move from here until you have shown your willingness to accept the verdict of the arbiters in the same spirit as the woman has shown.”
This makes it clear that a true believer should wholeheartedly accept the arbiters and their verdict in accordance with the Qur’anic injunctions. Once their verdict is given, there should be no further dispute.
Two Ways of Divorcing
However, it has to be conceded that life does not always function smoothly, like a machine. Despite all safeguards, it sometimes does happen that a couple reaches a stage of such desperation that they become intent on separation. Here the Shariah gives them guidance in that it prescribes a specific method for separation. The Qur’an expresses it thus: “Divorce may be pronounced twice, then a woman must be retained in honor or allowed to go with kindness.” Qur’an, 2:229
This verse has been interpreted to mean that a man who has twice given notice of divorce over a period of two months should remember God before giving notice a third time. Then he should either keep his spouse with him in a spirit of goodwill, or he should release her without doing her any injustice.
This method of divorce prescribed by the Qur’an, i.e. taking three months to finalize it, makes it impossible for a man seeking divorce suddenly to cast his wife aside. Once he has said to his wife (who should not at this time be menstruating), “I divorce you,” both are expected to think the situation over for a whole month. If the man has a change of opinion during this period, he can withdraw his words. If not, he will again say, “I divorce you,” (again his wife should be in a state of “purity”) and they must again review the situation for a further month. Even at this stage, the husband has the right to revoke the proceedings if he has had a change of heart. If, however, in the third month, he says,“I divorce you,” the divorce becomes final and the man ceases to have any right to revoke it. Now he is obliged to part with his wife in a spirit of good will, and give her full rights.
This prescribed method of divorce has ensured that it is a well-considered, planned arrangement and not just a rash step taken in a fit of emotion. When we remember that in most cases, divorce is the result of a fit of anger, we realize that the prescribed method places a tremendous curb on divorce. It takes into account the fact that anger never lasts -- tempers necessarily cool down after some time-¬and that those who feel like divorcing their wives in a fit of anger will certainly repent their emotional outburst and will wish to withdraw from the position it has put them in. It also takes into account the fact that divorce is a not a simple matter: it amounts to the breaking up of the home and destroying the children’s future. It is only when tempers have cooled down that the dire consequences of divorce are realized, and the necessity to revoke the decision becomes clear.
When a man marries a woman, he has to say only once that he accepts her as his spouse. But for divorce, the Qur’an enjoins a three-month period for it to be formalized. That is, for marriage, one utterance is enough, but for a divorce to be finalized, three utterances are required, between which a long gap has been prescribed by the shari‘ah. The purpose of this gap is to give the husband sufficient time to revise his decision, and to consult the well-wishers around him. It also allows time for relatives to intervene in the hopes of persuading both husband and wife to avoid a divorce. Without this gap, none of these things could be achieved. That is why divorce proceedings have to be spread out over a long period of time.
All these preventive measures clearly allow frayed tempers to cool, so that the divorce proceedings need not reach a stage that is irreversible. Divorce, after all, has no saving graces, particularly in respect of its consequences. It simply amounts to ridding oneself of one set of problems only to become embroiled in another set of problems.
Despite all such preventive measures, it does sometimes happen that a man acts in ignorance, or is rendered incapable of thinking coolly by a fit of anger. Then on a single occasion, in a burst of temper, he utters the word “divorce” three times in a row, “talaq, talaq, talaq!” Such incidents, which took place in the Prophet’s lifetime, still take place even today. Now the question arises as to how the would-be divorcer should be treated. Should his three utterances of talaq be treated as only one, and should he then be asked to extend his decision over a three-month period? Or should his three utterances of talaq on a single occasion be equated with the three utterances of talaq made separately over a three-month period? There is a Hadith recorded by Imam Abu Dawud and several other traditionists which can give us guidance in this matter: Rukana ibn Abu Yazid said “talaq” to his wife three times on a single occasion. Then he was extremely sad at the step he had taken. The Prophet asked him exactly how he had divorced her. He replied that he had said “talaq” to her three times in a row. The Prophet then observed, “All three count as only one. If you want, you may revoke it.” Fath al-Bari, 9/275
A man may say “talaq” to his wife three times in a row, in contravention of the shari‘ah’s prescribed method, thereby committing a sin, but if he was known to be in an emotionally overwrought state at the time his act may be considered a mere absurdity arising from human weakness. His three utterances of the word talaq may be taken as an expression of the intensity of his emotions and thus the equivalent of only one such utterance. He is likely to be told that, having transgressed a shari‘ah law, he must seek God’s forgiveness, must regard his three utterances as only one, and must take a full three months to arrive at his final decision.
In the first phase of Islam, however, a different view of divorce was taken by the second Caliph, ‘Umar ibn al-Khattab. An incident that illustrates his viewpoint was thus described by Imam Muslim.
In the Prophet’s lifetime, then under the Caliphate of Abu Bakr and also during the early period of the Caliphate of ‘Umar, three utterances of talaq on one occasion used to be taken together as only one utterance. Then it occurred to ‘Umar ibn al-Khattab that in spite of the fact that a system had been laid down which permitted the husband to withdraw his first, or even second talaq, men still wanted to rush into divorce. He felt that if they were bent on being hasty, why should not a rule be imposed on them binding them to a final divorce on the utterance of talaq three times in a row. And he proceeded to impose such a rule.
This act on the part of the second Caliph, apparently against the principles of the Qur’an and Sunnah, did not in any way change the law of the shari‘ah. To think that this led to any revision of Islamic law would be to misunderstand the situation: the Caliph’s order merely constituted an exception to the rule, and was, moreover, of a temporary nature. This aptly demonstrates how the Islamic shari‘ah may make concessions in accordance with circumstances.
Each law of the shari‘ah may be eternal, but a Muslim ruler has the power to make exceptions in the case of certain individuals in special sets of circumstances. However, such a ruling will not take on the aspect of an eternal law. It will be purely temporary in nature and duration.
It is a matter of Islamic historical record that when any such person was brought before ‘Umar for having uttered the word talaq three times on one occasion, he held this to be rebellious conduct and would order him to be flogged on the back. Fath al-Bari, 9/275
Perhaps the most important aspect of this matter is that when ‘Umar gave his exceptional verdict on divorce being final after the third utterance on a single occasion of the word talaq, his position was not that of a powerless ‘alim (scholar) but of a ruler invested with the full power to punish-as a preventive measure-anyone who went against Qur’anic injunctions. This was to discourage haste in divorce. By accepting a man’s three talaqs on the one occasion as final and irrevocable, he caused him to forfeit his right to revoke his initial decision, thus leaving him with no option but to proceed with the divorce.
On the other hand, the Caliph had it in his power to fully compensate any woman affected by this ruling. For instance, he was in a position to guarantee her an honorable life in society and if, due to being divorced, she was in need of financial assistance, he could provide her with continuing maintenance from the government exchequer, baitul mal, etc.
Today, anyone who cites ‘Umar’s ruling as a precedent in order to justify the finality of a divorce based on three utterances of the word talaq on a single occasion should remember that his verdict will remain. Unenforceable for the simple reason that he does not have the powers that ‘Umar, as Caliph, possessed. ‘Umar’s verdict was that of a powerful ruler of the time and not just that of a common man. It is necessary at this point to clear certain misunderstandings which have arisen about the extent of agreement which existed on ‘Umar’s ruling. Of all the Prophet’s Companions who were present at Medina at that time, perhaps the only one to disagree was ‘Ali. As a result of this, certain ‘ulama have come to the conclusion that the Prophet’s followers (Sahabah) had reached a consensus (‘ijma) on this matter. Rawai’ ai-Boyan, 1/334
But the consensus reached was not on the general issue of divorce, but on the right of Muslim rulers to make temporary and exceptional rulings, as had been done by ‘Umar. It is obvious that the Companions of the Prophet could never have agreed to annul a Qur’anic injunction or to modify for all time to come a prescribed system of divorce. All that was agreed upon was that exceptional circumstances warranted exceptional rulings on the part of the Caliph. He was entitled to punish in any manner he thought fitting, anyone who digressed from the shari‘ah. This right possessed by the ruler of the time is clearly established in the shari‘ah. Many other instances, not necessarily relating to personal disputes, can be cited of his exercise of this right.
The Meaning of Provision
In Islamic jurisprudence, the material arrangements that a man makes for his divorced spouse are termed “divorce provision.” There is a consensus among Muslim scholars that this provision in no way means life-long maintenance, there being absolutely no basis for this in the divine scriptures. The concept of maintenance for life is, in fact, a product of modem civilization. It was never at any time enshrined in divine laws, either in Islam, Judaism or Christianity. In material terms ‘provision’ simply takes the form of a gift handed over by the man on parting, so that the woman’s immediate needs may be catered for, and in all cases, this is quite commensurate with his means.
But the Qur’an makes it explicit that the parting must above all be humane and that justice must be done: “Provide for them with fairness; the rich man according to his means, and the poor according to his. This is binding on righteous men. Do not forget to show kindness to each other... reasonable provision should also be made for divorced women. That is incumbent on righteous men.” Qur’an, 2:236.
When divorce takes place before the settling of the dowry and the consummation of the marriage, even then the man must give the woman money or goods as a gesture of goodwill. In this instance the question of his repaying dowry money does not arise. The Qur’an is also quite explicit on this,
“Believers, if you marry believing women and divorce them before the marriage is consummated, you have no right to require them to observe a waiting period. Provide well for them and release them honorably.” - Qur’an, 33:49.
This “waiting period” (iddah) actually applies to a woman who has been married for some time and who may, subsequent to the divorce, discover that she is pregnant. This statutory waiting period of three months makes her position clear and then the man is required to pay her additional compensation if she is expecting his child. But again there is no question of maintenance for life, for the Qur’an seeks a natural solution to all human problems. It would, therefore, be wholly against the spirit of the Qur’an for a woman to be entitled to life maintenance from the very man with whom she could not co¬exist. Such a ruling would surely have created a negative mentality in society. The Qur’an again has the answer: “If they separate, God will compensate each of them out of His own abundance: He is Munificent, Wise.’’ - Qur’an, 4:130
The munificence of God refers to the vast provision that God has made for his servants in this world.
In various ways God helps such distressed people. For example, when a woman is divorced, it is but natural that the sympathy of all her blood relations should be aroused. And, as a result, without any pressure being put on them, they are willing to help and look after her. Besides, a new will power is awakened in such a woman and she sets about exploiting her hidden potentialities, thus solving her problems independently. Furthermore, previous experiences having left her wiser and more careful, she feels better equipped to enter into another marital relationship with more success.
After Divorce
The question that arises immediately after divorce is of ways and means to meet one’s necessary expenses. . One’s answer is to resort to the Islamic law of inheritance. If women were to be given their due share according to Islamic law, there would be no question of a woman becoming destitute. But, sad to say, the majority of Muslim women fail to get their due share of inheritance from their deceased fathers and husbands as stipulated by Islamic law. If they could do so, this would be more than enough to meet such emergencies.
However, Islam has not just left women’s financial problems to the vagaries of inheritance, because parents are not invariably in possession of property that can be divided among their children. Further arrangements have been made under the maintenance law, but this has no connection with the law of divorce. The answer to this question must be sought therefore in the Islamic law of maintenance. Here we shall briefly describe some of its aspects:
1. In case the divorced woman is childless or the children are not earning, according to Islamic law, the responsibility for her maintenance falls on her father. That is, her situation will be the same as it was before marriage.
To quote from Path al-Qadir (A standard book on Islamic Law):
The Father is responsible for bearing the expenses of his daughter till her marriage, in the event of her having no money. The father has no right to force her to earn, even if she is able to. When the girl is divorced and the period of confinement is over, her father shall again have to bear her expenses.
2. If the divorced woman has a son who is an earning member of the family, the responsibility for her maintenance falls entirely upon him.
All that rightfully belongs to a wife will be the duty of the son to provide, that is, food, drink, clothes, house and even servants, if possible. Ibn ‘Abidin, Ramal-Mukhtar ‘ala ad-Durr al-Mukhtar, 2/733
3. In the case of the father being deceased, and where even her children are unable to earn, her nearest relatives such as brothers or uncles are responsible for her upkeep. In the absence of even this third form, the Islamic shari‘ah holds the State Treasury (baitul mal) responsible for bearing her expenses. She will be entitled to receive the money for her necessities.
Because of the number of provisions made under Islamic law for women it has never been the case in Islamic history that Muslim divorced women have been cast adrift, helpless, with no one to look after them.
Indian columnist, Khushwant Singh has remarked that we do not hear of Muslim women committing suicide or being tortured like Hindu women, which is a proof that Islam has already given them adequate liberty and has- made enough provision for them to be supported in times of emergencies.
A new dimension has been added to the issue since the women of this day and age can leave their homes to work, and are therefore not as entirely dependent on men as they used to be in the past: there is no need then to make laws which provide for them at the expense of their men folk. When they are earning like men, what is the point in making such a law? Only in exceptional cases, surely, do they need to be looked after, and ways and means of doing so can generally be worked out quite satisfactorily on a personal level.
By Molana Waheed ud Din Khan: http://cpsglobal.org
Notes
1. Encyclopaedia Britannica (1984), vol. 7, pp. 163Q64.
2. Ibid.
3. Ibid.
4. Bertrand Russell, Autobiography, (London, 1978), pp. 563-564.
5. The Hindustan Times, (New Delhi), October 12, 1985.
6. Abu Dawud, Sunan, Kitab at-Talaq, 2/255.
7. Qur’an, 2:236.
8. Qur’an, 33:49.
9. Qur’an, 4:130.
10. Ibn Majah, Sunan, Kitab an-Nikah, 1/636.
11. Qur’an, 4:21.
12. Ibn Majah, Sunan, Kitab an-Nikah.
13. Abu Dawud, Sunan, Kitab at-Talaq, 2/255.
14. Muslim, Sahih, Kitab ar-Rada’, 2/1091.
15. Qur’an, 2:229.
16. Fath al-Bari, 9/275.
17. Fath al-Bari, 9/275.
18. Rawai’ ai-Boyan, 1/334.
19. A standard book on Islamic Law.
20. AI-Shaokani, Fath al Qadir, 3/344.
21. Ibn ‘Abidin, Ram al-Mukhtar ‘ala ad-Durr al-Mukhtar, 2/733.
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