Marriage, Divorce and their Rules [Part 2]

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February 17, 2016 by Verse By Verse Quran Study Circle

 

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In the Name of Allah, the Most Gracious, the Most Merciful

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[Explanation in the light of Surah Al-Baqarah Ayaat 229230]

Part 1

He has exhausted his choice to revoke his divorce and take his wife back. And since he transgressed the limits of Shari’ah by unnecessarily giving the third talaq, he must now have his punishment whereby it is not possible for them to remarry each other even if both of them agree to do so. For them to remarry each other, the condition of such nikkah is that the woman (after completing her period of ‘Iddah following talaq) should enter into marriage with another man, fulfill matrimonial obligations and live with this other husband. Thereafter, if by chance that other husband also divorces her (or dies), she could remarry the first husband after completing her ‘Iddah.

Detailed injunctions regarding three divorces at a time

We learn from the Qur’an that the correct method of pronouncing divorce is that a man should at the most reach the limit of two divorces. It is not appropriate to reach the extent of a third divorce. We learn this from the choice of words in the Qur’an.

In ayah 229, Allah subhanahu wa ta’ala is, “The divorce is twice [al-talaqu marataan].” And in ayah 230, He says, “And if he has divorced her (for the third time)…” The “if” in the ayah is of significance. If divorce was thrice, Allah subhanahu wa ta’ala would have explicitly stated so in words such as: The divorces are three. The choice of words gives a hint that one should not reach the stage of the third divorce.

This is why Imam Maalik and other jurists did not permit the third divorce. They call it talaq-al-biddah [the innovated divorce]. Other jurists have ruled that three divorces are permissible only on condition that they be pronounced separately in three tuhrs [the state of post-menstrual purity].

The practice of the Companions radhiAllahu ‘anhum was: When no option except divorce is left, the best method of pronouncing divorce is to pronounce on divorce during the state of purity in which sexual intercourse has not taken place. Then, let this divorce stay as such. As soon as the waiting period finishes, the nikkah relationship will automatically be finished with it. The Muslim jurists have called it al-talaq al-ahsan – and the Companions radhiAllahu ‘anhum declared it as the best method of divorce. 

From the words of the Qur’an, the permission to pronounce up to two divorces can be deduced, but by the used of the word marataan [twice] it has been pointed out that two divorces should not be given in one utterance. They should be given separately in two states of purity.

To summarize, it can be said that the three stages of established by the Shari’ah of Islam in the form of three divorces, never mean that crossing these three stages are necessary or better.

Instead, the intent of the Shari’ah is that if such a step has to be taken under dire compulsion, it is only proper that its lowest possible stage, that is, one (pronouncement of) divorce be considered sufficient, allowing ‘Iddah [the waiting period] to take its course. Once the waiting period is over, this one talaq will become sufficient to sever the husband-wife relationship and the woman shall become free to marry another person. This method of divorce is called ahsan, that is, the best.

In this method there is wisdom and an element of advantage as well. The option of reconciliation remains open for the parties if only one divorce has been given. Only taking the divorce back before the expiry of the waiting period will be sufficient to sustain the nikkah. And after the ’Iddah has expired, the nikkah will be broken and the woman set free, but there still will remain room for reconciliation between them, and should they reconcile and wish to remarry each other, the fresh nikkah could be solemnized immediately.

[Giving Talaaq (Divorce) Three Times at Once is Bid’ah]

Three Divorces given Unlawfully are Effective

The immediate, rational and conventional answer to this question is that the nature of an act us being a crime and a sin does not stop it from taking effect anywhere. Killing unjustly is a crime and a sin. But one who is shot with a bullet, or struck with a sword, gets killed after all. His death does not wait to discover if the bullet was fired legally or illegally. Stealing is a crime and a sin by the consensus of all religions, but that which has been stolen leaves the possession of the owner. Similarly, all sins and crimes are hemmed in by the same situation that their being sin and crime does not stop them from taking effect.

In accordance with the dictates of this principle, the false steps taken, such as ignoring of concessions given by the Shari’ah and giving three divorces unnecessarily, bypassing all stages of divorce one has, though despicable does not make the divorce ineffective. The three divorces at the same time are effective but such an action negates the choice of raj’ah [revocation] and the choice of fresh nikkah.

[He pronounced divorce three times but the qaadi wrote it down as one divorce]

[SOURCE: Maarif-ul-Qur’an by Mufti Muhammad Shafi Usmani]

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