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Halala After Divorce
Plz share the link of Lecture/discussion by Ustad Javid Ahmad Ghamid sahib on the concept of Halala ( re-marriage with ex husband)
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Halala After Divorce
updated 4 months, 2 weeks ago
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Ghamidi Sahab writes:
“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
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“.
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
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.”
(Excerpt from Meezan: Javed Ahmed Ghamidi)
(English Rendering by Dr. Shehzad Saleem)
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For video lectures:
(Part-1)
Please refer to the video below from 1:05 to 28:16
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(Part-2)
Please refer to the video below from 1:07 to 13:10
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