Divorce before consuming the Marriage

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February 18, 2016 by Verse By Verse Quran Study Circle

bismilla_BW

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

do not forget

Tafseer Al-Baqarah Ayaat 236 – 237

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“There is no blame upon you if you divorce women you have not touched nor specified for them an obligation. But give them [a gift of] compensation – the wealthy according to his capability and the poor according to his capability – a provision according to what is acceptable, a duty upon the doers of good.” [al-Baqarah 2: 236]

Allah subhanahu wa ta’ala allowed divorce after the marriage contract and before consummating the marriage. Ibn ‘Abbas, Tawus, Ibraheem and Al-Hasan Al-Basri said that “touched” mentioned in the ayah means sexual intercourse. The husband is allowed to divorce his wife before consummating the marriage or giving the dowry if it was deffered.

The Gift at the Time of Divorce

Allah subhanahu wa ta’ala commands the husband to give the wife (whom he divorces before consummating the marriage) a gift of a reasonable amount, the rich according to his means and the poor according to his means, to compensate her for her loss. Al-Bukhari reported in his Saheeh that Sahl ibn Sa’ad and Abu Usayd said that Allah’s Messenger salAllahu ‘alayhi wa sallam married Umaymah bint Sharahil. When she was brought to the Prophet he extended his hand to her, but she did not like that. The Prophet salAllahu ‘alayhi wa sallam then ordered Abu Usayd to provide provisions for her along with a gift of two garments.

[Iddah (Waiting period) and Muta’h (alimony)]

Ayah 237 – the Wife gets Half of Her Mahr is she is divorced before the Marriage is consummated

Untitled“And if you divorce them before you have touched them and you have already specified for them an obligation, then (give) half of what you specified – unless they forego the right or the one in whose hand is the marriage contract foregoes it. And to forego it is nearer to righteousness. And do not forget graciousness between you. Indeed Allah, of whatever you do, is Seeing.” [al-Baqarah 2: 237]

This ayah is not a continuation of the gift mentioned in the previous ayah (i.e., divorce before the marriage is consummated). Ayah 237 requires the husband to relinquish half of the appointed Mahr [dowry] if he divorces his wife before the marriage is consummated. If it was discussing any other type of gift, then it would have been mentioned that way, especially when this ayah follows the previous ayah related to this subject. Allah subhanahu wa ta’ala knows best. Giving away half of the bridal-money in this case is the agreed practice according to the scholars. So, the husband pays half of the appointed Mahr if he divorces his wife before consummating the marriage.

This is the instruction unless the wife forfeits the dowry and relieves the husband from further financial responsibility. Allah subhanahu wa ta’ala says, “or the one in whose hand is the marriage contract foregoes it,” meaning the husband agrees to remit it.

‘Amr bin Shu’ayb said that his grandfather narrated that the Prophet salAllahu ‘alayhi wa sallam said:

وَلِيُّ عُقْدَةِ النِّكَاحِ الزَّوْج

“The husband is he who has the marriage tie.”

Ibn Marduwyah also reported this Hadithhadeeth, and it is the view chosen by Ibn Jarir. The hadeeth states that the husband is the person who holds the marriage tie in his hand, as it is up to him to go on with the marriage or end it. On the other hand, the wali [guardian] of the wife is not allowed to give away any of her rightful dues without her permission, especially the dowry.

Allah subhanahu wa ta’ala says, “And to forego it is nearer to righteousness.” Ibn Jarir said, “Some scholars said that this statement is directed at both men and women. Letting go of what is your due right is from piety. Allah subhanahu wa ta’ala commands us to be gracious even at the time of parting. It means that we should refrain from illicit statements, vulgarity, name calling, anger and hurt at the time divorce. It was a contract where two people came together who hoped that they would start a family and live together forever. However, things did not work out between them. They were different and incompatible – there is no blame upon them if they decide to separate their ways. Other people too should refrain from speaking evil about the divorced couple or harming them in anyway. Remember, graciousness and righteousness in everything that you do.

[Being Kind to the Divorced Wife]

Allah subhanahu wa ta’ala is seeing of all that we do. Even if our evil plots are hidden from the people Allah subhanahu wa ta’ala knows it all. Therefore, watch your conduct, your heart, your thoughts and your speech.

May Allah subhanahu wa ta’ala protect us from the evil whisperings of our souls, cleanse our hearts of its filth and guide us to the right conduct in every area of life, aameen.

DOWNLOAD PDF: Tafseer Al-Baqarah Ayaat 236 – 237

رَبَّنَا تَقَبَّلْ مِنَّا ۖ إِنَّكَ أَنتَ السَّمِيعُ الْعَلِيم                
“Our Lord, accept [this] from us. Indeed You are the Hearing, the Knowing.” [Al-Baqarah 2: 127]

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