February 17, 2016 by Verse By Verse Quran Study Circle
In the Name of Allah, the Most Gracious, the Most Merciful
The commands governing talaq [divorce] and nikkah [marriage] appear in several ayaat throughout the Qur’an but the ayaat mentioned here consist of fundamental rules of procedure in cases of divorce. To understand these, it is necessary to know the status of nikkah in the Shari’ah of Islam.
Marriage, Divorce and the Rules governing them
One commonly known aspect of nikkah [marriage] is that of a mutual transaction and contract similar to transactions in buying and selling and in loans and payments. The second aspect is that of Sunnah and ‘ibadah. On this, there is a consensus of the whole Ummah that nikkah, being far above ordinary transactions and contracts, has the status of ‘ibadah and Sunnah [the act of worshiping Allah and following in the footsteps of the Prophet salAllahu ‘alayhi wa sallam].
In order that nikkah be duly solemnized, there are some conditions which are not found in ordinary transactions of buying and selling.
First of all, nikkah cannot take place between any man and any woman. Governing this, there is an absolute law of the Shari’ah under which several categories of men and women cannot be joined together in the bond of marriage.
Secondly, for all transactions and contracts, in order that they be concluded and finalized, witness is no condition. A witness is needed when parties differ, but nikkah is not such a transaction. Here, in order that it be concluded, the physical presence of witnesses is a pre-condition. If a man and woman, the two of them mutually agree to have their marriage solemnized without witnesses, and even if, any one of the two never differs or retreats, that marriage is, according to the Shari’ah, still invalid, unless both respond to the proposal and acceptance before witnesses. The Sunnah is that nikkah must be solemnized with a public announcement. Similarly, there are many other conditions and rules of decorum that are either necessary or masnoon in marriage.
After this brief familiarity with the real nature of marriage, let us understand divorce. The outcome of talaq [divorce] is to terminate the transaction and contract of nikkah [marriage].
Just as the Shari’ah, by giving nikkah the status of an act of worship, has kept it at a level higher than common transactions and has imposed on it restrictions, similarly, the termination of this deal has not been left free, as in common transactions, where the parties may terminate the deal as and when they elect to do so, and go on to make a fresh deal with someone else. It has rather made a pointedly wise legal framework which has been described in the ayaat under reference.
According to the Islamic teachings, the transaction and contract of nikkah should be for the entire lifespan. The point of departure where it has to be broken or terminated should never be reached because the discontinuation of this deal affects not only the parties involved but goes on to destroy children, and their children, and at times, it may even cause families and tribes to end up with disturbed relations, which in turn, badly infects the entire society. Therefore, the teachings of the Qur’an and Sunnah have taken all necessary steps to remove impediments that may cause the breaking of this deal. The focal drive of instructions given in the Qur’an and Sunnah covering all problems and situations relating to the married couples is that this relationship should always keep on becoming stronger and stronger and may never break. Should disagreements crop up, instructions were given to first try and understand each other’s point of view and talk it out, and in the event of failure, ways of restraint, advice and warning were identified.
Should the tussle become serious and these elementary steps do not bring a resolution of crisis, the parties were then expected to set up a panel for arbitration comprising of the member of the immediate families who could help patch up the differences. The emphasis on making members of the family as sole arbitrators in Surah an-Nisa ayah 35,
“And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people…” (4: 35)
is certainly very wise since the tussle, if it escapes the immediate family circle, will only aggravate the situation and the parties may draw further apart.
But there are occasions when all efforts for reconciliation fail and the parties in conflict rather than benefit by the desired results of the nikkah relationship, feel that being married together is a mutual punishment. Under such conditions, terminating this husband-wife relationship becomes, in itself, a way-out promising comfort and peace for the parties. Therefore, the Shari’ah did not patently confirm that the marriage relationship must remain unbreakable under all conditions. Going a step ahead, it framed a specific law for divorce and the dissolution of marriage. The right of divorce was given to man alone. This free choice was not given in the hands of women so that the disposition of being overtaken by transitory emotions, which is more pronounced in women as compared to men, may not become the cause of divorce.
But women too, were not totally deprived of this right lest they are left with no alternative but to keep groaning under the cruelty of her husband. She was given the right to take her case to a court presided by a judge who qualifies as such under the rules of Shari’ah, present her complaint, prove her case, and get the marriage annulled, or secure a divorce.
The second restriction stipulated that this choice should not be used in extreme anger or fleeting displeasure. It was due to this wisdom that the pronouncing of divorce was forbidden during the period of menstruation, as well as, during a tuhr [the state of purity] in which the husband has had sexual intercourse with the wife. The pronouncing of divorce during menstruation and in a tuhr marked by intimacy was forbidden on the basis that it would become the contributing reason to elongate the waiting period of the woman, which will aggravate her pain and worry.
For these two situations, the Qur’an says that divorce should be given at a time when the ‘Iddah of the woman does not become longer without any reason. If divorce became effective during menstruation, that particular menstruation will not be counted in waiting period. The count of waiting period will begin from the next menstruation. And in a tuhr marked with intimacy, the chances of pregnancy exist, which would elongate the period of ‘Iddah, up to the time of delivery. Another reason for fixing the time of tuhr, mentioned earlier for the pronouncement of divorce is that it is possible that in the meantime the anger goes away, forgiveness and recompense follow and the divorce is withdrawn.
Now under the third restriction, the method adopted in breaking the marriage- contract and its annulment was not kept identical with that of the transactions and contracts of common buying and selling activity which releases the parties concerned of all obligations instantly once the contract is annulled. The first deal is all over and everybody gets the option to enter into another contract with some other party. In fact, in order to sever the marriage-relationship, talaq has been subjected to three stages. Then it was topped with the restriction of ‘Iddah since a lot of residual effects of the nikkah-relationship will remain active until the completion of ‘Iddah.
Another marriage will not be lawful for the woman. Some restriction on the man would also continue.
The fourth restriction stipulates if divorce was given once or twice in clear and unambiguous words, nikkah did not break instantly on the pronouncement of talaq; the marriage relationship continues till the completion of ‘Iddah. If the husband revokes the talaq, the previous nikkah will remain valid.
The Choice of Ruju’ [Revocation of Divorce]
This choice of ruju’ [revocation or the act of taking back one’s divorced wife] was restricted to only one or two divorces, so that some cruel husband may not make a practice of giving divorce, and then taking her back and keeping her as a captive. Therefore, came the command: If someone pronounces the third talaq as well, he now has no choice of ruju’ [revocation]. He cannot take his wife back anymore. Even if they wish to remarry after mutual agreement, their being joined together in marriage a second time is not lawful, except in a peculiar manner which has been described later on.
The ayaat under study consist of important commands relating to this system of divorce. Now let us ponder over the words of these ayaat:
In ayah 229, it was said, “The divorce is twice.” In the process of these two divorces, flexibility was provided – the marriage was not totally annulled; instead, the man has the choice to return to his wife and retain her in his marriage. Or, he may elect not to do ruju’ [revocation] from the earlier pronouncements, allow the ‘Iddah to be completed and once the ‘Iddah is over, the marriage relationship will be terminated. This subject was stated in the words: Then, either keep (her) in an acceptable manner or release (her) with good treatment. Either, one must revoke divorce and retain his wife in his marriage, or, allow her ‘Iddah to be completed nicely and generously so that she can become free.
Giving Back the Mahr [Dowry]
The third talaq [pronouncement of divorce] still remains unmentioned while the text takes up another problem in between, which comes up under such conditions. The problem is that there are cruel husbands who neither wish to retain their wives, nor care about their rights, nor give them divorce. The wife is placed in a situation of duress while the husband, taking advantage of her helplessness, demands some money or property from her, or as a last resort, demands that the mahr [dowry] be forgiven, or returned in lieu of divorce. The Qur’an declares this to be haram [unlawful]. It was said: And it is not lawful for you to take anything of what you have given them. One exception was made in which forgiveness or return of mahr was made permissible. If the woman feels that she cannot do justice to the rights of her husband because of difference in temperaments and the man too, feels the same way, then this becomes a situation in which it is also permissible that divorce be given or taken in lieu of the forgiveness or return of mahr.
[SOURCE: Maarif-ul-Qur’an by Mufti Muhammad Shafi Usmani]