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  • The Social Shariah:(8) Divorce: [(iii) Procedure Of Divorce]

    Posted by Umer on June 26, 2020 at 3:15 am

    Whether a husband divorces his wife because of his own decision or does so at the demand of his wife, in both cases the procedure of divorce prescribed by the shariah is as follows:

    1. Divorce should be given keeping in consideration the iddat (waiting period). This means that it is incorrect to divorce a wife in a manner that separates her instantaneously. In all instances, it must be given so that it becomes effective after a specific waiting period. Iddat in religious parlance means the period in which a divorced or widowed lady cannot marry any other person. Since this period has been primarily fixed in order to ascertain whether a lady is pregnant or not, therefore it is necessary that divorce be given after a lady has completed her menstrual cycle in that period of cleanliness in which the husband did not have any sexual intercourse with his wife. Every Muslim should be fearful of his Lord about emotions of anger which on such instances do arise against the wife. Consequently, when the Prophet (sws) was told that ‘Abdullah ibn ‘Umar (rta) had divorced his wife during her menstrual cycle, he was very annoyed and remarked:

    مُرْهُ فَلْيُرَاجِعْهَا ثُمَّ لِيُمْسِكْهَا حتى تَطْهُرَ ثُمَّ تَحِيضَ ثُمَّ تَطْهُرَ ثُمَّ إن شَاءَ أَمْسَكَ بَعْدُ وَإِنْ شَاءَ طَلَّقَ قبل أَنْ يَمَسَّ فَتِلْكَ الْعِدَّةُ التي أَمَرَ الله أَنْ تُطَلَّقَ لها النِّسَاءُ

    Ask him to take her back and keep her in wedlock until she is through with her menstrual cycle and then once again passes through this cycle and then is through with it. [1] After this, he can either detain her [in wedlock] or divorce her before having sexual intercourse with her. Because it is this beginning of the iddat keeping regard of which the Almighty has directed [believers] to divorce their wives.[2]

    The Almighty has directed Muslims to carefully keep count of the period of iddat. Since divorce is a matter of great consequences, and a lot of legal issues arise for the man, the woman, their children and their whole family, it is essential that the time and date of divorce be properly accounted for. Moreover, it is essential that at the time of divorce, the state of the woman, the date when the iddat commenced and the date when it will end be kept track of. Whether the whole issue is ultimately settled within the family or has to be taken to court for settlement, in both cases it is this period of iddat which dictates the time span within which a husband can revoke his decision and take back his wife (ruju). Similarly, it is this period which will determine the time for which the husband is liable to keep his wife in the house and provide for her. Likewise, the time when the inheritance is to be given to her and the time when the divorce process is complete and the lady is free to marry again shall be ascertained from the iddat.

    2. Until the iddat period expires, the husband has the right to take back his wife. The Quranic words: (65: 2) فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْفَارِقُوهُنَّ بِمَعْرُوفٍ(thus when they approach their term appointed, either take them back on equitable terms or part with them on equitable terms (65:2)) refer to this fact. The Almighty has further explained in Surah Baqarah that just as the right to give divorce rests with the husband, this right to take back the wife also rests with him so that the Almighty has him granted one degree of superiority in status in administering the institution of family which is necessary to maintain order in it. This of course does not mean that only husbands have rights and wives have none. People must be aware that just as wives have certain duties regarding their husbands, they also have some rights. Mankind has never been ignorant of these rights; it is well aware of them. Consequently, it is the obligation of the husbands that besides asking their wives to fulfil their obligations towards them, they must also keep in mind their rights:

    وَبُعُولَتُهُنَّ أَحَقُّبِرَدِّهِنَّ فِي ذَلِكَ إِنْ أَرَادُوا إِصْلَاحًا وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ وَاللَّهُ عَزِيزٌ حَكِيمٌ (2:228)

    And if their husbands wish to reform affairs, they [— the husbands—] have greater right to take them back [in this waiting period] should they desire reconciliation. And just as according to [society’s] norms these women have obligations [towards their husbands], they also have rights, although men [as husbands] have a status above women. [This is the directive of Allah] and Allah is Mighty and Wise. (2:228)

    Since there is a high probability that in such affairs one is bound to be governed by emotions and extreme reactions and as a result may commit one blunder after another, these two attributes of God – Mighty and Wise – mentioned at the end of the verse serve a special purpose. While referring to this purpose, Imam Amin Ahsan Islahi writes:

    … God is ‘Aziz (Mighty); hence, it is only His right to give this directive and He is also Hakim (Wise); hence, whatever directive He gives is based on wisdom. Men should always submit to His directives without any hesitation whatsoever. If they oppose His directives, this would amount to challenging His honour and would only hasten to invite His wrath. Similarly, if they are naive enough to think that they are more wise and sagacious than the Almighty, they will be responsible for ruining the law and system of the society with their very own hands.[3]

    3. If the husband does not take back his wife within the iddat period, then once this period expires the relationship of wedlock will cease to exist. Consequently, the husband is directed to make up his mind once this period is approaching its end. He should decide if he has to revoke his decision and take her back or is to persist with his decision and sever his relationship with her. In both cases, the Almighty has directed him to follow the maruf (good conventions) of the society. The Almighty comforts such people by saying that those who remain fearful of Him should rest assured that they will be worthy of His help if they encounter any difficulty.

    It is pointed out in Surah Baqarah that if the husband decides to revoke his decision and take back his wife, then this should not be with the intention of hurting or harassing her. The verse of Surah Baqarah quoted above refers to this aspect in the words إِنْ أَرَادُوا إِصْلَاحًا. The revocation should not be to satisfy one’s desire by tormenting the wife. In fact, the underlying reason for this revocation should be to lead a congenial marital life, otherwise this would just be an act of oppression which shall greatly displease the Almighty in the Hereafter:

    وَإِذَا طَلَّقْتُمْ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ وَلَا تُمْسِكُوهُنَّ ضِرَارًا لِتَعْتَدُوا وَمَنْ يَفْعَلْ ذَلِكَ فَقَدْ ظَلَمَ نَفْسَهُ وَلَا تَتَّخِذُوا آيَاتِ اللَّهِ هُزُوًا وَاذْكُرُوا نِعْمَةَ اللَّهِ عَلَيْكُمْ وَمَا أَنزَلَ عَلَيْكُمْ مِنْ الْكِتَابِ وَالْحِكْمَةِ يَعِظُكُمْ بِهِ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِكُلِّ شَيْءٍ عَلِيمٌ(2:231)

    And when you have divorced your wives and they have reached the end of their waiting period, either retain them with kindness or let them go with kindness. But do not retain them with the intention of harm so that you commit excesses against them. And [you should know that] whoever does this, wrongs his own soul. And do not make a mockery of Allah’s commandments. Remember the favours He has bestowed upon you and the Law and the wisdom which He has revealed, of which He instructs you. And keep fearing Allah and know that He has knowledge of all things. (2:231)

    While explaining this verse, Imam Amin Ahsan Islahi writes:

    … in the previous verses, the implied meanings were stated positively, but here they are stated negatively in order to caution cruel husbands who could abuse the right of divorce as well as the right to revoke it in the iddat period. Such an attitude, of course, is outright injustice and amounts to playing with the shariah. Those who are bold enough to do this may think that they are oppressing their wives; however, in fact, they wrong their own selves. This is because those who toy with divine directives and exceed the limits set by the Almighty shall have to face a grievous punishment.

    In the end, a reminder is sounded regarding the blessings of the Almighty: He has made Muslims a chosen ummah and sent a Prophet to them from among them to guide them. He has also blessed them with a book to guide them regarding good and evil. It is composed of the precepts of law and wisdom. If they repay this great favour by violating the limits of the Almighty and toying with His shariah, then they should contemplate the consequences of such a behaviour. The verse goes on to warn Muslims to remain fearful of the Almighty and to keep in mind that He has knowledge of all their deeds. In other words, He is granting respite to people in spite of their mischief. However, once He decides to catch them, no one will be able to run away from His grasp.[4]

    Similarly, if a husband decides to part ways with his wife, he is directed to do so in a befitting manner. The words used in 2:220 are تَسْرِيْحٌ بِاِحْسَان. In this regard, the following directives have been given:

    Firstly, whatever amount of wealth, property, clothes, jewellery and other items that have been gifted to the wife by the husband they should not be confiscated by him. Here it should be clear that the verse is not referring to the nafqah (maintenance) and mahr (dower), which are the absolute rights of a wife and confiscating them is unthinkable. What is emphasized is that a husband should not take back any gifts he may have given her.

    There are two exceptions to the above mentioned directive:

    First, if it is no longer possible to keep a marriage intact according to the limits set by Allah, and the family elders and the society also support the annulment, but a husband is unwilling to divorce his wife simply because he is concerned about losing wealth, property or other gifts he has given his wife, then the issue can be resolved in the following manner: the wife can give back part or all of the wealth gifted to her to relieve herself of her marital contract. In such cases, it would be lawful for the husband to accept these returned gifts.

    Second, if the wife is guilty of open sexual misconduct. Since such a behaviour destroys the very basis of the marital relationship, it is lawful for the husband to take back any gifts or wealth given to her.

    The Quran says:

    وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَأُوْلَئِكَ هُمْ الظَّالِمُونَ(2:229)

    And it is unlawful for you [on this occasion] to take back from them anything you have given them unless both husband and wife fear that they may not be able to keep within the bounds set by Allah. Then if you also feel that they will not be able to remain within the bounds set by Allah, there shall be no offence for either of them [regarding the gifts given by the husband] if the wife seeks divorce [by returning them to him] in ransom. These are the bounds set by Allah; so do not transgress them. And [you should know that] those who transgress the bounds of Allah are wrongdoers (2:229)

    وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ… وَإِنْ أَرَدْتُمْ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُبِينًا وَكَيْفَ تَأْخُذُونَهُ وَقَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنْكُمْ مِيثَاقًا غَلِيظًا (4:19-21)

    And do not treat them with harshness that you may take away what you have given them – except where they have been guilty of open lewdness… and if you decide to take one wife in place of another, even if you had given the latter a whole treasure of wealth take not the least bit of it back: Would you take it by slander and usurping [her] rights? And how can you take it when you have lain with each other and [at the time of marriage] they have taken from you a solemn covenant? (4:19-21)

    For this second situation, a person has been warned not to dare take back by slander any wealth gifted to his wife. Imam Amin Ahsan Islahi writes:

    … it is absolutely against the decency and integrity of a man to slander and accuse a lady with whom he had pledged to live forever under a firm marriage contract. It was she who had unveiled herself totally to him and both lived intimately and in great harmony with each other. How unseemly it is on the part of the husband that when relations had to be severed with her he should try to extract from her what he so willingly spent on her and should go as far as to malign and accuse her for this base purpose.[5]

    Secondly, the husband shall not be responsible to give the dower if the wife is divorced such that the husband has not touched her or her dower had not been fixed. However, if the dower had been fixed but a lady was divorced before having sexual relations with the husband, then the husband is liable to pay half the amount of the dower fixed except if the wife willingly forgoes the total amount or the husband pays the full amount. The Quran says:

    لَا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمْ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً… وَإِنْ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ إِلَّا أَنْ يَعْفُونَ أَوْ يَعْفُوَ الَّذِي بِيَدِهِ عُقْدَةُ النِّكَاحِ وَأَنْ تَعْفُوا أَقْرَبُ لِلتَّقْوَى وَلَا تَنسَوْا الْفَضْلَ بَيْنَكُمْ إِنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ (2:236-237)

    There is no blame on you in the matter of dower if you divorce women before touching them or before fixing their dower … and if you divorce them before touching them but after fixing of a dower for them, then the half of this fixed dower should be given to them, unless they forgo it or he forgoes it in whose hands is the marriage knot; and if you [men] forgo your right, it is nearer to piety. And do not forget your superiority among yourselves. For Allah sees well all that you do. (2:236-237)

    While commenting on this verse, Imam Amin Ahsan Islahi writes:

    Although the fact that the husband has divorced the wife before conjugal contact was made is one motive for the wife to forgo her right, the Quran here has urged the husband with regard to his honour and forbearance and his status as a husband to not desire from his wife to forfeit her share. Instead, he should show magnanimity in paying her the full amount. The Quran has appealed to him on three grounds to make this sacrifice: Firstly, the Almighty has given him the right to untie the marital knot just as he had the right to tie it. Secondly, it is more befitting for the stronger sex to show sacrifice and selflessness – the manifestations of true piety. Thirdly, the one degree of superiority a husband has been blessed with by being made the head of the family unit since he was naturally suited for this task requires that he take into account this aspect while dealing with the weaker sex. Its natural requirement is that he should be on the giving end rather than being on the receiving end.[6]

    Thirdly, a wife at the time of parting should be given some resources of life. The Quran says that this is an obligation of those who fear God and those who are righteous. If a lady is divorced even without going near her, a husband is exhorted to fulfil this obligation. The Quran says:

    وَلِلْمُطَلَّقَاتِ مَتَاعٌ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ (2:241)

    And divorced women should also be given some resources according to the norms [of the society] when they are sent off. This is an obligation on those who are fearful of God. (2:241)

    In Surah Ahzab, the words فَمَتِّعُوْهُنَّ وَ سَرِّحُوْهُنَّ سِرَاحاً جَمِيْلَا (but give them some resources [of life] and part with them in a befitting manner) are used to convey this meaning. In Surah Baqarah, this same directive has been given to husbands for wives whom they divorced without touching them or without fixing their dower. According to the Quran, the amount of these resources should be ascertained keeping in view the norms of the society and the financial status of the husband:

    وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ(2:236)

    And bestow on them some resources of life while parting from them, the wealthy according to his means, and the poor according to his means. This is an obligation on those who are righteous. (2:236)

    It is evident from these words that this is an obligation on the husband. If a person does not fulfil it, he might not be liable to any legal action because this is something which pertains to a person’s inner piety and virtue, but he would definitely be held liable in the Hereafter before his Lord, and in the Hereafter the weight and import of his virtuous deeds would suffer.

    4. If a husband revokes his decision within the iddat, the lady will continue to remain his wife, but does this mean that a husband can divorce his wife repeatedly in this fashion whenever he wants and then revoke the decision within the iddat? The Quran has answered this question by saying that a person can only twice exercise this right of divorcing his wife in the iddat and then revoking the decision in his marriage with a lady. The words used are: الطَّلَاقُ مَرَّتَانِ فَإمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ (this divorce may be pronounced twice, and then a woman must be retained with kindness or allowed to go with kindness). That is if a person divorces his wife and revokes his decision within the iddat, then he can exercise this right one more time in his life in his marriage. However, once he has used this authority twice, he can no longer use it again the third time. In such a situation, his wife would be permanently separated from him except if she marries some other person and he then also divorces her:

    فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنكِحَ زَوْجًا غَيْرَهُ فَإِنْ طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَنْ يَتَرَاجَعَا إِنْ ظَنَّا أَنْ يُقِيمَا حُدُودَ اللَّهِ وَتِلْكَ حُدُودُ اللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ (2:230)

    Then if a husband divorces his wife [for the third time], he cannot marry her until she has wedded another man. Then if this [second husband] also divorces her, it shall be no offence for either of them to return to each other, if they think that they can now keep within the limits set by Allah.And such are the bounds of Allah. He makes them clear to men who want to gain knowledge. (2:230)

    In case the same husband and wife want to remarry one another, the above quoted verse of the Quran has imposed three restrictions on them:

    Firstly, the wife should formalize her nikah (marriage contract) with someone else.

    Secondly, the second husband divorces her because for some reason the marriage cannot be pulled along.

    Thirdly, the two think that after re-marriage the two would be able to remain within the bounds set by the Almighty.

    In the first and second conditions, the word “nikah” only implies the legal marital knot and the word “divorce” implies the divorce that one gives one’s wife when it is no longer possible to keep the marriage intact. Imam Amin Ahsan Islahi writes:

    The real thing is that nikah is a known term referring to a marriage contract which takes place between a man and a woman with the intention of living together forever in the bond of matrimony. If this intention does not exist in a nikah, then in reality it is not a nikah; it is more of a plot conspired by a man and a woman. The option of divorce in marriage, upheld by the shariah, is not part of the original scheme; it is only a last resort to deal with insolvable situations. Consequently, the true nature of a nikahis that it should be solemnized with the intention of living together as husband and wife permanently. If a person honours a nikah only for a certain fixed period, then this is called mutah, and it is totally prohibited in Islam. Similarly, if a person solemnizes a nikah with a lady and then divorces her just to provide her with a legal excuse to marry the first husband, then in religious parlance this is called halalah and, like mutah, it is also totally prohibited in Islam. A person who does such a despicable thing is like a pimp or pander or as a Hadith says that such a person plays the role of “a rented out bull for breeding” and a person who does this and he who has it done are cursed by the Almighty.[7]

    The third condition has been imposed in order to make divorce a very serious affair so that people do not carelessly indulge in it. They should only divorce their wives while remaining fearful of the Almighty and when they think that there is no possibility of keeping the marriage intact. Similarly, when they embark upon marrying someone, they should do so with sincerity of purpose and with the intention of creating a harmonious relationship. It is not befitting for a believer to adopt an attitude contrary to this.

    Our jurists add to the above mentioned three conditions and say that a lady can only be divorced from this second husband once the two have had sexual intercourse. Without this, she is not legally allowed to become the wife of her first husband. They generally present the following three reasons in support of their view:

    Firstly, the verb تَنْكِحَ (she marries) has been used by the Quran. In this verb, the act of marriage has been attributed to the lady. However, since a lady does not contract marriage, rather a man does, so, تَنْكِحَ here necessarily implies sexual intercourse.

    Secondly, the word زُوْجاً غَيْرَهُ (another husband) are used after تَنْكِحَ. The word زُوْجاً is clearly pointing to the fact that the marriage has already taken place; hence, it is imperative that تَنْكِحَ here necessarily imply sexual intercourse.

    Thirdly, it has been reported that once the Prophet (sws) stopped a lady from marrying her first husband by saying that she is not legally allowed to marry him until she has had sexual intercourse with the first.

    The answer to the first and the second of these arguments is clearly given by the Quran:

    وَإِذَا طَلَّقْتُمْ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَنْ يَنكِحْنَ أَزْوَاجَهُنّ(2:232)

    And when you have divorced your wives and they have reached the end of their waiting period, do not prevent them from marrying their future husbands. (2:232)

    It is evident from this verse that the act of marriage has been attributed to the lady and the word أزْوَاجَهُنّ is used in the same sense as زُوْجاً غَيْرَهُ, but it is obvious that the words أَنْ يَنكِحْنَ refer to the marital knot and cannot in any way be construed for sexual intercourse.

    Moreover, it is quite strange to contend that the act of marriage cannot be attributed to the lady. One might dare ask that if this is not possible, then can sexual intercourse be attributed to her. Viewed on similar grounds, it is a man who in fact does it and not a woman.

    As far as the third argument is concerned, it has arisen because of not understanding a Hadith. The way Imam al-Bukhari has narrated it in his al-Sahih clearly shows that the lady had gotten married only to become legally permissible for the first husband. Consequently, when she lied by saying that her husband was unable to establish marital contact with her, the Prophet (sws) scolded her and told her that she could now only go back to her first husband after tasting her second husband. This of course is not a condition that he imposed; it is the case of stating an impossibility: the implied meaning being that if according to her, her second husband does not have the ability to copulate with her, then she can only be divorced from him after he copulates with her – which of course he will never since, according to her, he is not capable of it. Thus if anything can be adduced from this Hadith, it is prohibition of halalah. It does not in anyway support the view of the jurists.

    The text of the Hadith is as follows:

    عَنْ عِكْرِمَةَ أَنَّ رِفَاعَةَ طَلَّقَ امْرَأَتَهُ فَتَزَوَّجَهَا عَبْدُ الرَّحْمَنِ بْنُ الزَّبِيرِ الْقُرَظِيُّ قَالَتْ عَائِشَةُ وَعَلَيْهَا خِمَارٌ أَخْضَرُ فَشَكَتْإِلَيْهَا وَأَرَتْهَا خُضْرَةً بِجِلْدِهَا فَلَمَّا جَاءَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَالنِّسَاءُ يَنْصُرُ بَعْضُهُنَّ بَعْضًا قَالَتْ عَائِشَةُ مَا رَأَيْتُ مِثْلَ مَا يَلْقَى الْمُؤْمِنَاتُ لَجِلْدُهَا أَشَدُّ خُضْرَةً مِنْ ثَوْبِهَا قَالَ وَسَمِعَ أَنَّهَا قَدْ أَتَتْ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَجَاءَ وَمَعَهُ ابْنَانِ لَهُ مِنْ غَيْرِهَا قَالَتْ وَاللَّهِ مَا لِي إِلَيْهِ مِنْ ذَنْبٍ إِلَّا أَنَّ مَا مَعَهُ لَيْسَ بِأَغْنَى عَنِّي مِنْ هَذِهِ وَأَخَذَتْ هُدْبَةً مِنْ ثَوْبِهَا فَقَالَ كَذَبَتْ وَاللَّهِ يَا رَسُولَ اللَّهِ إِنِّي لَأَنْفُضُهَا نَفْضَ الْأَدِيمِ وَلَكِنَّهَا نَاشِزٌ تُرِيدُ رِفَاعَةَ فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَإِنْ كَانَ ذَلِكِ لَمْ تَحِلِّي لَهُ أَوْ لَمْ تَصْلُحِي لَهُ حَتَّى يَذُوقَ مِنْ عُسَيْلَتِكِ قَالَ وَأَبْصَرَ مَعَهُ ابْنَيْنِ لَهُ فَقَالَ بَنُوكَ هَؤُلَاءِ قَالَ نَعَمْ قَالَ هَذَا الَّذِي تَزْعُمِينَ مَا تَزْعُمِينَ فَوَاللَّهِ لَهُمْ أَشْبَهُ بِهِ مِنْ الْغُرَابِ بِالْغُرَابِ

    Ikramah narrates that Rafaah divorced his wife. Thereafter she married Abd al-Rahman ibn al-Zubayr al-Qurazi. Aishah says that she came to her wearing a green cloak and complained of her husband and showed her, her bruises – women do help one another – so when the Prophet (sws) came by, Aishah said: “I have only seen Muslim women being treated in such a way. Her skin is greener than her cloak.” Ikramah says that when her husband came to know that she had complained to the Prophet (sws), he also came over to the Prophet (sws) along with his two sons from his other wife. Upon seeing her husband, she got hold of the end of her cloak letting it hang from her hand and remarked: “My only complaint is that whatever he has is no more than this [soft cloth].” At this, ‘Abd al-Rahman said: “O Prophet (sws) of Allah! She has told a lie. I am very strong and can satisfy her; the truth of the matter is that she is disobedient and wants to go back to Rafaah.” When the Prophet (sws) heard this, he said: “If this is the case, then you shall not be permissible for Rafaah unless ‘Abd al-Rahman tastes you.” Then, upon seeing the sons of ‘Abd al-Rahman, the Prophet (sws) remarked: “Are these your sons?” When he replied in the affirmative, the Prophet said: “Do you tell such lies [O ‘Abd al-Rahman’s wife]. By God! These [young boys] resemble ‘Abd al-Rahman more than a crow resembles another crow.”[8]

    5. Whether the husband decides to divorce his wife or to take her back, in both cases the Quran directs him to call in two Muslim witnesses on his decision. The witnesses are directed to remain steadfast on the evidence they give. The reason for this directive is to ensure that either of the parties is not able to refute a decision made and to resolve any other dispute that may arise in this regard. Moreover, this would make the matter very transparent for the people and settle doubts and confusions that may surface.

    The above paragraphs explain the correct way of divorce. If a person divorces his wife according to this prescribed way or takes her back during the iddat period, then his decisions shall stand legally implemented. However, if divorce is given in violation of the prescribed way, then this is a legal case that would require a court ruling. Two similar cases of importance which came before the Prophet (sws) are as follows:

    The first of these is the case of ‘Abdullah ibn ‘Umar (rta). When he divorced his wife during her menstrual cycle, ‘Umar (rta) presented his case before the Prophet (sws). The Prophet (sws) expressed great anger when he was informed of these details and said: “Ask him to take her back and retain her in wedlock until she enters her period of purity and then again passes through her menstrual cycle and is pure again. Then, if he wants, he can permanently retain her or divorce her without having intercourse with her because this is the beginning of ‘iddat keeping regard of which the Almighty has directed a husband to divorce his wife.” [9]

    The second case is that of Rukanah ibn ‘Abdi Yazid.By gathering all the narratives of this case, the whole situation that comes to light is that he had divorced his wife three times in one go. He then felt ashamed and presented his case before the Prophet (sws). The Prophet (sws) inquired: “How did you divorce her?” He replied: “I divorced her three times in one go.” The Prophet (sws) again inquired: “What was your intention?” He answered that he wanted to divorce her once only. The Prophet (sws) told him to reply on oath which he did and then said: “If this is the matter, then take her back. Only one divorce has been implemented.” Rukanah remarked: “O Prophet of Allah! I had divorced her three times.” The Prophet said: “I know, take her back and this is not the proper way of divorcing a wife. The Almighty has said that if one must divorce his wife, he should do so keeping in consideration the iddat.” [10]

    The foundations on which the decisions of the Prophet (sws) are based in both the above quoted cases are:

    i. If divorce is not given according to the prescribed procedure but there is a possibility to make amends for the violation, then the sanctity of the law demands that amends be made.

    ii. A person has the right to explain his statements. If he says that a particular statement was uttered by him without any intention or with full intention, his explanation can be accepted.

    iii. If a person says that he has divorced his wife three times, then this can mean that he has in fact divorced her three times and this can also be a statement that portrays the severity and intensity of his decision. Since both these possibilities exist when these words are said, hence any explanation of the speaker regarding the meaning in which he used them should also be acceptable.

    However, this does not mean that if there exists evidence contrary to the explanation made, then such an explanation be accepted. A court has full authority to reject such an explanation if it is not satisfied. Consequently, when Umar (rta) observed that people were no longer careful in uttering the divorce sentence he declared that he would not even accept a statement of explanation from the husband and three divorces pronounced would be counted as three. [11]

    (Javed Ahmed Ghamidi)

    (Translated by Dr. Shehzad Saleem)


    [1]. This directive of not giving divorce unless she has entered her period of purity after the second menstrual cycle is meant to make sure as much as possible whether his wife was pregnant or not.

    [2]. Al-Bukhari, Al-Jami‘ al-sahih, 938, (no. 5251).

    [3]. Amin Ahsan Islahi,Tadabbur-i Qur’an, vol. 1, 533.

    [4]. Ibid., vol. 1, 539.

    [5]. Ibid., vol. 1, 271.

    [6].Ibid., vol. 1, 548.

    [7]. Ibid., vol. 1, 537.

    [8]. Al-Bukhari, Al-Jami‘ al-sahih, 1027, (no. 5825).

    [9]. Al-Bukhari, Al-Jami‘ al-sahih, 938, (no. 5251); Muslim, Al-Jami‘ al-sahih, 628, (no. 3657).

    [10]. Abu Da’ud, Sunan, vol. 2, 267, 270, (nos. 2196, 2206); Ibn Majah, Sunan, vol. 2, 521, (no. 2051); Al-Tirmidhi, Al-Jami‘ al-kabir, vol. 2, 466, (no. 1177), Ahmad ibn Hanbal, Musnad, vol. 1, 438, (no. 2383). These narratives have weak chains of narration; however, if they are collected and collated, this weakness is dispelled

    [11]. Muslim, Al-Jami‘ al-sahih, 630, (no. 3673)

    Umer replied 3 years, 7 months ago 1 Member · 8 Replies
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