The Correct Way of Divorce

(Talaq) in Islam

By Dr. Sheikh Suhaib Hasan

Divorce & Dissolution of marriages

1. Marriage is a civil contract and there is nothing wrong if it is subjected to termination on reasonable grounds. Disputes among the spouses are a common phenomenon which should not always lead to ending a marriage. If there are children involved, the matter becomes serious and needs to be tackled with patience and wisdom. A very important step is advised by the Quran for the benefit of the spouses before they take a step towards divorcing. It advises them to go for mediation. Allah All–Mighty said:

- ن�وإ ت ن�خ- قاق ن� -ه-ما ش- ن ن�ب عثوا ن�ف -ه- ن�م حكما ٱ ل ۦأ ن�م وحكما ن-ها ل -ن نأ لحا ير-يدا إ - ه يوفق- نإ نهم ٱلل ��ب ا -ن ن� ه إ -يما كان ٱلل عل

-يرا  خب“And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things].” (Al-Nisa: 35)

Either elders from both sides or a Shari ’a Council should be invited to take this task. Through mediation they can save their marriage either by way of unconditional reconciliation or by signing an agreement with some conditions mutually agreed between the two parties. A time could be set to show willingness on both sides to honour its terms and conditions. If reconciliation could not be reached either just after the mediation or because of breach of the agreement, they would be allowed to part from each other by formalising the divorce process. This is what is meant by the following verse:

-ن قا وإ ن- يتفر ه ن�ي -ه- من كلاf ٱلل عت hhhان ۦسhhh ه وك عا ٱلل -hhhوس  حك-يما

“But if they separate [by divorce], Allah will enrich each [of them] from His abundance. And ever is Allah Encompassing and Wise” (Al-Nisa: 130)

2. The Correct Way of Divorce.

If the mediation fails, a husband should follow the way in the Quran and Sunnah to pronounce Talaq. The following steps are needed.

(i) To pronounce a Talaq when the women is in her clean period and there has been no sexual contact during this period. The objective behind this requirement is to establish a real willingness on the part of the man to separate from his wife while he has no impediments to marital relations.

(ii) To pronounce Talaq only once, not twice or thrice. The objective behind this commandment is to let the women begin her Iddat period during which the man may take her back (known as Rujoo). If he doesn’t reconcile, the divorce will become binding by the end of the Iddat period (which is equal to three menstrual cycles of a woman). That is in line with the verse 228 of Surah Baqarah:

ه-ن ثلثة قرو -أنفس- ن ب قت يترب مطل ��و ن ن� ٱ“Divorced women remain in waiting for three periods”

As for the correct way of pronouncing Talaq, Allah says:

صوا -ه-ن وأ -ع-دت قوهن ل ساء فطل لن تم -ذا طل -ي إ ب لن ها ن�يhأي ٱ ن� ٱن ر -ه-ن ولا ي hhوت ر-جوهن م- بي لا ت ك ه رب لل قوا ت ن�ع-د و ن� ن� ن� من� ٱ ٱ �� م ن� ٱ ومن يتعد حدود لل ك حدود - وت ن -فح-ش مبي -ين ب ت -لا أن ي �إ ٱ ن� �� �� �� ن-hhك د ذل د-ث ب ه ي لل ر-ي لعhhل ه لا ت hhس ه- فق ظلم ن ن�لل ن� ٱ �ن ۥ ن� �ن ٱ

را -ذا ١  ن�أ ن فhhhhhhإ كوهن أجلهن ن�بل -hhhhhhس روف ن�فأ -م ن�ب ن أرو فhhhار-قوهن -م ��ب � ن ه-دوا ��عhhh ن�ذو ن""""""!وأ � ن ن�منك وأق-يمhhhوا

هدة hhٱلش -ل �ل -ك -ه- يوعhhظ ن�ذل hhان من ۦب م-ن ك ه- ن#ي -لل - ٱب م ي ن و ن� ٱ�$أخ- ن� ق- ومن ٱ ه يت عل ٱلل ه ن�ي رجا ۥل ٢ ن�م

“O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah, your Lord. Do not turn them out of their [husbands'] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah. And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a [different] matter. And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah. That is instructed to whoever should believe in

Allah and the Last day. And whoever fears Allah - He will make for him a way out” (Surah Talaq: 1-2)

So there are two clear objectives related to this commandment:

a) Normally a person divorces his wife in a moment of anger. Once the anger is gone, he comes to his senses and regrets his hasty action. What a relief to him when he comes to know that the first Talaq is revocable and he is allowed to take his wife back by simply saying to her: “I take you back”. Preferably, he should say it in the presence of two witnesses. One should realize that a marriage is a serious contract between a man and a woman. In all three acts i.e. the marriage, the time of divorce and the time of Rujoo’, two witnesses are required in accordance with this verse which speaks especially about divorce and Rujoo’.

As for marriage the Prophet (saw) has said:

“No marriage is valid without (the consent) of a guardian (of the woman) and two trustworthy witness” (Tabarani 18 142, Haithami, no 1247)

b) The Iddat period can also determine whether the woman is pregnant or not. Once her pregnancy is confirmed, the Iddat period is prolonged to a time when the woman delivers the baby.

A man is responsible to maintain his wife and house her during the entire period of Iddat. She must not be thrown out of the house. The verse quoted above is very clear on this issue as well. If she lives in the same house, though separately, there are more chances for them to reconcile and resume marital life.

If the divorce has been pronounced once and has become binding (because there was no reconciliation), but both parties wish to return to the marriage, then they may marry each other with a fresh dowry and by meeting the other requirements of a new Nikah.

3. What is said above is related to a marriage which has been consummated; the Arabic expression for such marriage is Dukhul.

If the marriage is not consummated i.e. the husband and wife were not together after Nikah (Known as Rukhsati in Indo-Pak culture), then the woman is not required to observe Iddat period after the Divorce. She is free of the marriage bond instantly.

Allah All-Mighty said:

تموهن م-نت- ثم طل م تم -ذا نك ذ-ين ءامنوا إ ل ها ن�يhأي ن# ن� ٱ ن� ٱ ل- أن تمسوهن ن�م-ن ق

حوهن عوهن وسر تدونه فمت ه-ن م- ع-د ت عل م�فما لك �ن �� ن� ن� ن�  سراحا جم-يلا

“O You who have believed, when you marry believing women and then divorce them before you have touched them, then there is not for you any waiting period to count concerning them. So provide for them and give them a gracious release.” (Al-Ahzab: 49)

Why is there no need for them to observe Iddat period?

Iddat is needed for a woman to preserve the rights of her husband such as:

1) She is still his wife and is not allowed to contract a fresh marriage.2) He is entitled to take her back.3) He is still responsible for her dwelling and maintenance.4) He should know whether she is pregnant or not? If so,

her Iddat is extended until she delivers the baby who is fathered by him.

When the marriage fails before it has even been consummated, there is no need for any of the above.

4. What is the meaning of the Quranic phrase, “divorce is twice”?

The verse 229 of Surah Al-Baqarah says:

تا ٱلطلق ��مر سا م - &%فإ ن روف ن� -م ن�ب ر-ي ن أ &�ت ن سhh ن' - -إ ��ب ا يح-hhل ولا ن� أن ن�لك خhhhذوا ��ت تمhhhوهن م-ما ن ا ن�ءات hhhh -لا ن�ش ألا يخافا أن إ

حhhدود يق-يما �لل م - ٱ ن�فhhإ ت ن�خ- ه- حhhدود يق-يما ألا ن� hhاح فلا ٱلل جنه-ما ن)تد ف-يما ن�عل ن� -ه- ٱ ك اۦب - ه- حدود ن�ت hhدوه فلا ٱلل ت �ت � ومن ن

ه- حدود يتعد -ك ٱلل -مون هم فأولhئ  ٱلظhل“Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah . But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon

either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah - it is those who are the wrongdoers.

Does this mean that a man is allowed to say to his wife “I divorce you” twice?

No, it means that a divorce can be invoked twice only in a marital life. For example, if the man divorces his wife for the first time in their marriage, he is allowed to take her back within the Iddat period. If they reconcile, the history of the Talaq given will remain in their marriage and cannot be erased. If some time later he gives Talaq again, this will be a second revocable divorce. Like the first one, if he takes her back within Iddat period they are still married; if they don’t reconcile, then the marriage ends with the Iddat.

Qs: Can the couple re-marry each other after the Iddat of the first or second Talaq has ended?

Yes, they can re-marry, either immediately after the Iddah is over or anytime later.

5. There are two more verses (no. 231 & 232) which deal with the situation after the first or the second Talaq.

(a) Verse n 231

-ذا تم وإ ساء ن�طل ن ٱلن كوهن أجلهن ن�فبل س- روف ن�فأ -م ن�ب ن أحوهن ر hhرو س -م ��ب �كوهن ولا ن -hhس رارا ن�ت -hhدو ضhh ت ت (�ل � ومن ن

ع ن�ي -ك ن� ه ظلم ن�فقhh ذل hhس ۥن ولا ن� خ-hhذوا ه- ءايت- تت �هhhزو ٱلل hhروا ك ن*و مت ٱ - ه- ن�ن ٱلل ك ن�عل كم أنhhزل وما ن� -تب- من ن�عل ن�ك ٱ

مhhة- ح- ن%و ن� -ه- يع-ظكم ٱ ۦب قhhوا ت ه ٱو ٱلل لمhhوا ن�و ه أن ٱ hhل ٱلل -ك بء -ي ن�ش  م�عل

“And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favour of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things.”

This verse shows some additional points:

I) Whether a man revokes his divorce or lets his wife separate from him, it should be done in a decent manner.

II) It is prohibited to revoke the divorce and take the woman back only in order to let her suffer.

III) Doing such an act is wrong. It is a mockery of the commandment of Allah. A man should be fearful to Allah who has blessed the mankind with His Book and wisdom.

(b) Verse no 232:

-ذا تم وإ اء ن�طل hhhhhس ن ٱلن لوهن فلا أجلهن ن�فبل hhhhhض أن ن�تن وجهن ن�ينك- -ذا ن,أ إ ا hhض نهم ن تر رو ن�ب م - ��ب ا �ن ن� -hhك ٱ يوعhhظ ذل

-ه- hhان من ۦب ك م-ن ن�م-نك ه- ن#ي -لل - ٱب م ي ن و ن� �$أخ-hh ٱ ا ن� ٱ -ك كى ن�ذل ن,أ ن�لكه &$وأ ه ن- لل لم ٱو ن�ي لمون لا ن�وأنت  ن�ت

“And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not.”

If the couple separate after a first or second talaq and do not reconcile within the Iddat period, they are considered to be divorced. However, they still have the option of re-marrying each other with a new marriage contract.

Can the woman’s guardian forbid her from marrying her former husband?The answer is “No”. He should not stop her at all. In the books of Tafsir, the following incident is quoted as background to the revelation of this verse:

“Ma’qil bin Yasar wed his sister (Jamal bint Yasar) to a Muslim man during the time of the Prophet (SAW). She remained with him until he pronounced one Talaq to her. He did not take her back until the Iddat period expired but she still longed for him and he longed for her. Then among several others, he proposed to her.Ma’qil said to him: “Man! I honoured you by wedding her to you but you divorced her? By Allah, she will never get back with you.” And Allah knew that he needed her and she needed him, so He revealed (this verse). When Ma’qil heard the revelation, he said: “I listen to my Lord and obey”. Then he called upon him and said: “I

wed her to you and I honour you” (The detailed version is transmitted by Abu Dawud, Tirmidhi, ibn Maja and others. Also Bukhari has a short version).

This verse also confirms the role of a Wali (Guardian) in the marriage. In the incident related above, a Wali (Ma’qil) wants to exercise his right to stop his sister from marrying the man who once divorced her. The verse does not negate his role as a Wali but advises him to give preference to the right of choosing her husband to the woman in his guardianship. He is asked to give his consent wholeheartedly.

The case of Ma’qil is a case of complete obedience to Allah and the Prophet once they issue their rulings.

6. What happens after a third Talaq?

Verse 229 of Surah Al-Baqara speaks about the first two revocable ‘Talaq’. The remaining part of the verse speaks about the way a woman can get her divorce from her husband, (known as Khul’a); this issue will be discussed later in this article.

Verse 230 then states:

-ن قها فhhhإ د ن�م- ۥله تح-hhhل فلا طل ى ن�ب جا تنك-ح حت ره ن ز ۥاغ ن�-ن قها فhhhhإ hhhhاح فلا طل ه-ما جن -ن يتراجعا أن ن�عل ا إ أن ظن حدود يق-يما �لل ا ك ٱ - ه- حدود ن�وت نها ٱلل -ق يبي ��ل لمون ن  ن�ي

“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah . These are the limits of Allah, which He makes clear to a people who know.”

This is the third Talaq and is irrevocable. The man who divorced his wife once, then reconciled; then he divorced her a second time and again reconciled; he has now exhausted his rights to revoke a divorce and can no longer reconcile with his wife if he gives her a third Talaq.

But what if he regrets and wants to still stay with her in marriage? The truth is that a re-marriage is going to be very difficult for such a couple. There are clearly too many problems in their marriage for

them to reconcile as the situation stands. The Quran encourages them to move on with their lives and to marry other people. Perhaps in the future, after some time has passed and the two people have matured and become wiser, they may be able to re-marry. But the Quran insists that the woman must marry someone else first. Only if her second marriage ends, either in a divorce or in death, can she reconsider marrying her first husband again. If she decides that she would like to give him another chance, then a new marriage contract with a new Dower will be necessary.

7. It is incredibly important to state here that the woman’s marriage to her second husband must be real and legitimate. It cannot be a marriage of convenience, designed to end in divorce so that she becomes lawful for her first husband.

The dreadful practice of Halala is a misuse of the Quranic term “She is not Halal for him” i.e. how to make her Halal for the first husband. We will explain this later, under the Topic of three Talaq (triple divorces).

8. The woman will also observe the Iddat period after the third Talaq. She will not be entitled to maintenance and housing and her husband will have no right to reconciliation. The Iddat period is only to determine whether she has conceived or not. If she is pregnant, her Iddat will last until she gives birth to the baby.

Let us here quote the Hadith of Fatima bint Qais who was divorced three times by her husband. Were they three divorces at one time or at different times? The first narrative speaks of three divorces without any explanation but the second one makes it clear that they were pronounced separately.

First narrative:

(3517) Fatima bint Qais (Allah be pleased with her) reported that she had been married to Abu 'Amr b. Hafs b. al-Mughira and he divorced her with three pronouncements. She stated that she went to Allah's Messenger (saw) asking him about abandoning that house. He commanded her to move to the house of Ibn Umm Maktum, the blind. Marwan refused to permit the divorced woman leaving her house (before the 'Idda was over). 'Urwa said that 'A'isha objected to (the words of) Fatima bint Qais. This Hadith has been transmitted through another chain of narrators (Sahih Muslim).

Second narrative:

(3518): Ubaidullah b. 'Abdullah b. 'Utba reported that 'Amr b. Hafs b. al-Mughira set out along with 'Ali b. Abi Talib (ra) to the Yemen and sent to his wife the one pronouncement of divorce which was still

left from the (irrevocable) divorce; and he commanded al-Harith b. Hisham and 'Ayyash b. Abu Rabi'a to give her maintenance allowance. They said to her: By Allah, there is no maintenance allowance for you, except in case you are pregnant. She came to Allah's Prophet (may peace he upon him) and mentioned their opinion to him, whereupon he said: There is no maintenance allowance for you. Then she sought permission to move (to another place), and he (the Prophet) permitted her. She said: Allah's Messenger, where (should I go)? He said: To the house of Ibn Umm Maktum and, as he is blind, she can remove her outer garments in his presence and he would not see her. And when her 'Idda was over, Allah's Prophet (saw) married her to Usama b. Zaid. Marwan (the governor of Medina) sent Qabisa b. Dhuwaib in order to ask her about this Hadith, and she narrated it to him, whereupon Marwan said: We have not heard this Hadith but from a woman. We would adopt a safe (path) where we found the people. Fatima said that when these words of Marwan were conveyed to her: There is between me and you the word of Allah, the Exalted and Majestic: “Do not turn them out of their houses”. She asserted: This is in regard to the revocable divorce; what new (turn can the event take) after three pronouncements (separation between irrevocable). Why do you say there is no maintenance allowance for her if she is not pregnant? Then on what ground do you restrain her? (Sahih Muslim)

These are the few points understood from her episode:

1. A man can divorce his wife in her absence.2. The husband had divorced her twice previously. On his way to

Yemen, he sent her the third and final divorce.3. She was allowed by the Prophet (SAW) to pass her Iddat

period at a different house (in this case, at her blind cousin’s house) because her own house was not safe.

4. According to her, the Prophet (SAW) did not allow her any maintenance. Her claim was contested by ‘Umar ibn Khattab, the second Caliph, who considered that a woman in her position is entitled to both maintenance and housing. But the majority of the companions did not agree with him on this issue.

Why?

First: The Hadith of Fatima bint Qais which says very clearly that the Prophet (SAW) did not allow her housing and maintenance after the third Talaq.

Secondly: The husband is obliged to provide both these facilities in a revocable Talaq only (ie after first or second Talaq) because he has the right to revoke the divorce, which is not the case with the third Talaq.

To summarise, the Sunnah way of divorce is as follows:

1. To pronounce it only once when the wife is in the state of purity and there has been not intercourse with her during that period of purity.

2. She is allowed to stay in the matrimonial home until the Iddat comes to an end.

3. The Iddat of a woman is her three menses except i) if she is pregnant, then it lasts until the delivery of the child. ii) If she has passed menopause, then it is three lunar months.

4. The husband is responsible for her maintenance during her Iddat period.

5. The husband is allowed to revoke the divorce during the Iddat period.

6. He should have two witnesses when he revokes the divorce.7. If he revokes it, then they resume their marital life without

any interruption.8. But if he doesn’t revoke it by the end of Iddat, the divorce

becomes binding and they are no longer husband and wife.9. The man is obliged to pay her the full dowry amount if he has

not yet paid it. 10. Though they are separated now because of the divorce,

they can still remarry each other if they so wish, but with a new contract of marriage which meets all the conditions of a fresh marriage.

11. The same procedure is to be followed if the man divorces her a second time after their reunion.

12. If he divorces her a third time, he is never allowed to remarry her except in one case only. This is that she marries someone else purely for the sake of marriage, not for the sake of Halala ( legalise her marriage to the first husband by going through a temporary marriage with another person), and that marriage ends in a divorce or widowhood.

Chapter: Divorcing three times at one occasion

We have already mentioned, in light of the first verse of Surah Al-Talaq, that the right way of divorce is to pronounce it only once, to let the woman begin her Iddat period during which her husband is allowed to reconcile. It means that he is not allowed to pronounce divorce twice or thrice in one meeting. If that is the case, then what is the meaning of verse Surah Al-Baqara (no.229):

“Talaq is two times”

In the previous chapter we have explained the meaning of this phrase and the process of Talaq. We need to further understand that when a word is repeated by a person, we have to see whether it was words or an action. If it is just words, it can be repeated countless times, for example as a learning exercise (a teacher asking a student to repeat a certain word) or it attracts some reward (saying Subhan Allah, Al-Hamdu lillah, Allah-u-Akbar 33 times after each prayer and any other similar Dhikr).

But if that saying demands an action or results in an action, then its repetition is no more than confirmation of the original word. Examples:

1. You see your child running towards the road to cross it. You shout to him: stop, stop, stop. It doesn’t mean that he has to stop three times. It only means emphasis upon your command of asking him to stop.

2. Divine commandment to pray five times a day: It does not

mean that you offer all five prayers at one time. But to offer each prayer at its prescribed time. You cannot offer your Zuhur prayer, for example, for two days, five times a day. And if you did, it would not be accepted.

3. Let us take another example from the Quran where the word “three times” (Thalatha Marratin) has occurred.

ها ذ-ين يhأي ٱل ذ-نكم ءامنوا ت -ي ن""""�"ل ذ-ين ن' ٱل ن)ملك منك ن�أ ذ-ين ن� ل ٱو ن�ل لغhhوا ن�حلم ن�ي ٱ ثلث ن�م-نك h ل- من �)مر لوة- ن�ق hhر- ص ن�ف ن� ٱ

-يابكم تضعون وح-ين د- ن�وم- ٱلظه-يرة- من ث ��ع-شا صلوة- ن�ب ن� ٱر ثلث �)ع ن ك س ن�ل ن�ل ك ن�عل ه- ولا ن� ن�عل &�جنا ن� ده ن �.�ب � ن

كم طوhhhفون ن�عل ك hhض ن�ب � على ن �/ب -ك ن0 hhذل ن ك ه يبي لكم ٱلل �)أي ا ن� ه ٱ لل -يم ٱو م�حك-ي عل

“O you who have believed, let those whom your right hands possess and those who have not [yet] reached puberty among you ask permission of you [before entering] at three times: before the dawn prayer and when you put aside your clothing [for rest] at noon and after the night prayer. [These are] three times of privacy for you. There is no blame upon you nor upon them beyond these [periods], for they continually circulate among you - some of you, among others. Thus does Allah make clear to you the verses; and Allah is Knowing and Wise.” (Al-Nur: 58)

“Three times” here is bound with three different occasions as described in this Ayah.

4. Even if this word ‘two times” (Marratan/Marratayn)’ is used for an event, it means “two separate events”. For example, in Surah Bani Isra’il, Allah All-Mighty speaks about the Israelites who caused corruption two times in the past. He says:

نا hhhلى ن�وقض- -ي إ ء-يل بن hhhhر - -تب- ف-ي ن'إ ن�ك دن ٱ -hhhس ف-ي ن�لتض- ن$أ ن� ن- ٱ ت لن ن�مر -يرا علوfا ن�ولت  كب

“And We conveyed to the Children of Israel in the Scripture that, "You will surely cause corruption on the earth twice, and you will surely reach [a degree of] great haughtiness.” (Al-Isra: 4)

The Almighty then speaks about their first corruption, followed by a period of their rise and prosperity, and then He speaks about their second corruption in the land and how their temple was devastated in verse 5 to 8.

Similarly, the word “Divorce is two times (At-Talaq Marratan)” does not mean to pronounce it twice at one sitting. No! It means that the first two divorces are revocable, but each one of them must be a single divorce followed by an Iddat period during which the husband can take his wife back. And as the next verse states, there is permanent divorce after a third talaq:

Surah Al-Baqarah (no.230)

-ن قها فإ د ن�م- ۥله تح-ل فلا طل ى ن�ب جا تنك-ح حت ره ن ز ۥاغ ن�

“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him.”

-ن قها فhhhhإ hhhhاح فلا طل ه-ما جن -ن يتراجعا أن ن�عل ا إ أن ظن حدود يق-يما �لل ا ٱ

“And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah.”

ك - ه- حدود ن�وت نها ٱلل -ق يبي ��ل لمون ن  ن�يThese are the limits of Allah, which He makes clear to a people who know.”

Here the procedure of each divorce is explained.

i) Each divorce is followed by an Iddat period.ii) The husband is entitled to take his wife back after the first

divorce and even after the 2nd divorce. But he is not entitled to take her back after the third divorce.

iii) If he did not take her back after the first divorce or the second divorce, he is allowed to remarry her if she is willing to join him once again.

iv) But he is not entitled to remarry her after the third divorce at all.

v) The only possibility for him to remarry her is if she happens to marry someone else in a proper marriage. If this marriage ends in a divorce or death of the husband, then after her Iddat period is over, the first husband is allowed to remarry her if she is willing.

vi) The whole process is declared as “the limits of Allah (Hududallah) and transgressing those limits is declared as a “wrong-doing” (Zulm) in three Ayat, all in the context of Talaq.

ه-  لل تدوه ومن يتعد حدود ه- فلا ت لل ك حدود - ٱت � �ن ٱ ن� -مون لظhل -ك هم ٱفأولhئ

“These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah - it is those who are the wrongdoers.” (Al-Baqara : 229)

روف أ -م كوهن ب س- ن أجلهن فأ ساء فبل لن تم -ذا طل ن وإ �ن ن� ن� ٱ ن� تدو ومن ت كوهن ض-رارا ل س- رو ولا ت -م حوهن ب (�سر �ن ن� �� �ن

سه -ك فق ظلم ن ع ذل ۥي ن� �ن ن� ن�“And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself.” (Al-Baqara: 231)

ها -ي يhأي ب -ذا ٱلن تم إ ساء ن�طل قوهن ٱلن -ه-ن فطل -ع-دت ل صوا ن�وأ��ع-د م ن� ٱ قوا ت ه ٱو ٱلل ك ر-جوهن لا من�رب -ه-ن ن�م- ن�ت hhوت ن ولا بي ر ن�ي ن�

-لا -ين أن إ ت ��ي -فح-ش ن ��ب ن ��مبي ك - حدود ن�وت �لل حدود يتعد ومن ٱه- سه ظلم ن�فق ٱلل ۥن ن�

“O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah, your Lord. Do not turn them out of their [husbands'] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah . And whoever transgresses the limits of Allah has certainly wronged himself.” (Talaq: 1)

The end of this verse is very meaningful:

ر-ي لا ه لعل ن�ت د-ث ٱلل د ن�ي -ك ن�ب را ذل  ن�أ “You know not; perhaps Allah will bring about after that a [different] matter.”

Abdullah Yusuf Ali explains it as follows.

“5508: A reconciliation is possible, and is indeed recommended at every stage. The first serious difference between the parties are to be submitted to a family council on which both sides are represented (4: 35); divorce is not to be pronounced when mutual physical attraction is at an ebb (n 5506); when it is pronounced, there should be a period of probationary waiting: dower has to be paid and due provision has to be made for many things on equitable terms; every facility has to be given for reconciliation till the last moment, and impediments are provided against hasty impulses

leading to rupture. “Thou knowest not of perchance Allah will bring thereafter some new situation””

So by pronouncing all three divorces at one time and then believing it to be three, it means that the person doesn’t care about the limits set down by Allah. So what should be the duty of the Muslim jurists in such a case? Let him transgress the limits of Allah and be one of the wrong doers (Zalim)? Let him go to hell for his wrong-doing? Or they should try to correct him and let him and his wife avoid the terrible consequences of his folly? Let these three divorces be counted as one revocable Talaq. Let the man have enough time to think and ponder over his hasty act. Let him have a chance to take his wife back and save the family from fracture. And our solution is not a product of our own mind. No, it is accordance with the teachings of the Quran and the Sunnah of the Prophet (SAW).

Chapter: the judicial verdict of the Caliph ‘Umar bin Khattab on triple Talaq.

1. The following sayings of Abdullah bin Abbas in “Sahih Muslim” are decisive statements about the whole issue:

(3491): Ibn 'Abbas (Allah be pleased with them) reported that the (pronouncement) of three divorces during the lifetime of Allah's Messenger (saw) and that of Abu Bakr (rad0 and two years of the caliphate of Umar (rad) (was treated) as one. But Umar b. Khattab (rad) said: Verily the people have begun to hasten in the matter in which they are required to observe respite. So he imposed it upon them.

(3492): Abu Sahba' said to Ibn 'Abbas (Allah be pleased with them): Do you know that three (divorces) were treated as one during the lifetime of Allah's Apostle (saw), and that of Abu Bakr (rad), and during three (years) of the caliphate of Umar (rad)? Ibn Abbas (Allah be pleased with them) said: Yes.

(3493): Abu al-Sahba' said to Ibn 'Abbas: Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one during the lifetime of Allah's Messenger (may peace be upon him) and Abu Bakr. He said: It was in fact so, but when during the caliphate of 'Umar (saw) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one).

This narrative of Ibn Abbas establishes the following facts:

i) There had been cases of triple divorces during the times of the Prophet (SAW) and subsequent periods.

ii) There had been a practical consensus during the time of the Prophet (SAW) and the subsequent period on considering the triple divorces as one Talaq.

iii) The caliph ‘Umar knew about the said verdict. This is why he is suggesting to the elite around him: should we not make it binding upon them as a punishment?

Iv) And when there had been no objection, he gave his order to consider a triple divorce as three Talaqs.

Why did he do that?

Could he go against the established Sunnah of the Prophet (SAW)? Here comes his rule as Caliph. He has taken a number of disciplinary

acts to correct the deviant behaviour in society. For example, he ordered that shops selling alcohol should be set on fire. There had been no fixed penalty for drinking alcohol. After consulting with the companions, he fixed the punishment for drinking as eighty lashes as well as deportation to a foreign land for one year. On the other hand, he suspended the punishment of chopping the hands of a thief during the year of famine, the year 18th of Hijrah. His argument was: why should I cut his hands for stealing food if I am not able to provide food to let him survive? In our own times (year 2020), because of corona virus, almost every country of the world has exercised its executive right to curtail public right of free movement and has forced them to remain inside the four walls of their houses. Furthermore, in some places heavy fines are levied on anyone breaking that rule by coming out to travel unnecessarily or for not wearing face masks. So Syyedina ‘Umar also wanted to correct the behaviour of a section of society who misused the institution of divorce for their own benefits. The context of Umar’s time is crucial to understand his change to the talaq rules. During his time a number of foreign lands like these of Byzantium and Persian Empire were conquered. The Arabs were exposed to the women and slave girls of the newly conquered areas. They could easily marry such women as well as their wives who naturally were not happy with their husbands on this matter. Now just to satisfy his wife, someone would say “Talaq, Talaq, Talaq” (three times) to his new wife. He knows in his heart he is entitled to take her back within the Iddat period as the triple Talaq is still considered as one revocable Talaq, while his first wife would be convinced of the departure of the second wife. This practice became an ugly device to cheat women. What Syyedina Umar did was to curtail the right of a man to take his wife back within the Iddat period by declaring the Triple Talaq as a valid decree absolutely. It was a disciplinary act to bring deviants back to the right track. He could never change the Sunnah way of Talaq for ever. It was an order of temporary effect similar to the one about the expulsion of a drinker to a foreign land for a year. Later, this practice had been abandoned completely. His order could be explained in this way: “O men! By giving a triple Talaq, you think that you would deceive your first wife as you intended to revoke this Talaq later but I will not let this deception come true. I declare your triple Talaq as a valid Talaq as good as Three Talaqs given separately. Your second wife would no more be Halal for you.” No doubt that it had been an act of Ta’zir; a punishment allowed at the discretion of the Caliph. One could say that this may lead to the practice of Halala i.e. in line with Ayah 230 of Surah Al-Baqara:

-ن قها فhhhإ د ن�م- ۥله تح-hhhل فلا طل ى ن�ب جا تنك-ح حت ره ن ز ۥاغ ن�-ن قها فhhhhإ hhhhاح فلا طل ه-ما جن -ن يتراجعا أن ن�عل ا إ أن ظن حدود يق-يما �لل ا ك ٱ - ه- حدود ن�وت نها ٱلل -ق يبي ��ل لمون ن  ن�ي

“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah . These are the limits of Allah, which He makes clear to a people who know.”

But, there is a difference between a natural Halala as ordained in this Ayah and the one which is artificially done. The first one is a real marriage contracted by the divorcee after a triple Talaq for the sake of marriage and not with the intention of a temporary marriage in order to facilitate her return to her first husband. The second is only a temporary marriage. The second husband is already told to divorce the woman after consummating this marriage in order to facilitate her remarriage to her first husband. This type of Halala is condemned in Islam. Sayyedina Umar took a firm stand on this wrong practice. He used to say: Bring me the person who does this Halala (i.e. the second husband) and the one for whom this Halala is done (i.e. the first husband) and let me stone them to death. His call was an echo of these sayings of the Prophet (SAW)

“Allah curses the one who does Halala and the one for whom it is done.” (Al-Baihaqi 7:208, Abu Dawud 2076-2077, Al-Tirmidhi 1119-1120). And he also said:

“Should I not tell you about the hired bull?” (Al-Baihaqi, No.1936)

There is a point to reflect for the scholars and Muftis in our present times who keep on citing the ruling of Sayyedina Umar on triple divorce but they hopelessly fail to accept his stand on Halala. Once they accept his ruling on triple divorce, they unknowingly pave the way for a distressed couple, who may have sought a Fatwa from them on this issue, to seek the course of haram Halala, which was condemned by the Prophet (SAW) and by Sayyedina Umar as well. This artificial Halala is nothing but prostitution which is punishable in Islam.

Furthermore, Sayyedina Umar used to not only admonish the husband who pronounced a triple divorce but flog him as well. Moreover, according to a report transmitted by Isma‘ili’ in his Musnad, Sayyedina Umar regretted before his last days on this earth, three things which he did or failed to do. One of them was his act of declaring triple Talaq as an absolute, irrevocable Talaq.

Here two questions are normally raised:

1. What about those Ahadith which suggest that even the Prophet (SAW) accepted triple Talaq as an absolute irrevocable Talaq?

2. What about a number of the companions including Abdullah bin Abbas who gave Fatwa in favour of a triple Talaq.

Let us answer these two questions in the following chapter.

Chapter: On Ahadith about Triple Talaq

Ibn Taimiyya reiterates in many of his Fatawa that there is not a single authentic Hadith which could prove that the Prophet (SAW) approved this practice. On the contrary, he showed his extreme anger when such a case was mentioned to him. As for the Fatawa of some of the companions like Ibn Abbas, Ibn Umar and others in favour of this practice, they were issued after the ruling made by Sayyedina Umar. But on the other hand, the very same companions were found with Fatawa of opposite opinion i.e. the triple Talaq is to be considered as one revocable Talaq. So we are right to assume that they stood with the original opinions approved by the Prophet (SAW) but due to the ruling made by Sayydina Umar because of the reason already explained in the previous chapter, they sometimes adhered to the second opinion as well. So let us take first such Ahadith which had been advanced by the proponents of the second opinion.

1. Al-Bukhari transmitted in Bab man Jawwaz Al-Talaq Al-Thalath from A’ishah that a man divorced his wife thrice, and she remarried and was divorced, so the Prophet (saw) was asked: “Is she permissible for the first (husband)? He said: “No, until he tastes her honey just as he first tasted (it)” Hafiz (Ibn Hajar) in al-Fath (9:321) inclined towards (the view) that this incident is different from the incident of the wife of Rifa’ah (in which three divorces were issued separately). Hafiz said: “The proof is in the apparent (meaning) of his statement “he divorced her thrice” as it is apparent in them having been issued together.”

Comments on the Hadith of Ayesha (RA):

The Hadith itself doesn’t indicate that the man had pronounced divorce thrice collectively. This case is that of Rifa’ah Al-Quradi who divorced his wife and in accordance with the narrative given by Imam Muslim: He gave her the last one of the three divorces” (no.1433). By this authentic narrative, it becomes crystal clear that his case was not of a triple Talaq given at one time.

2. Al-Bukhari also transmitted in that chapter the story of ‘Uwaymir al-‘Ajlani regarding li’an, where ‘Uwaymir said therein after the mutual imprecation: “I would have lied upon her, O Messenger of Allah, if I keep her,” so he divorced her thrice before the Messenger of Allah (saw) commanded him. ‘Allamah Al-Kawthari said: “And it has not come in a narration from the narrations that he (SAW) condemned him for this, so it proves the occurrence of three together, because the Messenger (saw) would not have left the people to understand the occurrence of three with one issuance if this understanding was incorrect, and the entire ummah understood that from it, even Ibn Hazm, since he said: ‘He only divorced her

when he assumed that she was his wife, and were three not to occur together, he would have condemned him for that.” End (quote) from al-Ishfaq ‘ala Ahkam al-Talaq.

Comments on the Hadith about ‘Uwaimir al-‘Ajlani:

The main point to consider here is whether the pronouncement of triple Talaq was a part of Li’an process or not. The answer is: that was not the part of li’an because in a similar case of Hilal bin ‘Umayya and his wife, no such triple Talaq was done. The Prophet (SAW) simply separated both of them after they had sworn five times, the way it has been described in Surah An-Nur. So what ‘Uwaimir has done was unnecessary and had no impact on the outcome of the Li’an process. After Li’an, both are separated forever. They can never remarry each other later. On the other hand, if the triple Talaq was affected they were allowed to remarry once a proper Halala was done. So the separation between both them was due to Li’an without any consideration of the Triple Talaq. But here a question arises. Why did the Prophet (SAW) not forbid him from pronouncing triple talaq?

The famous Hanafi scholar Anwar shah Kashmiri answered this question by saying: “It is not necessary to have complete agreement between the story and whatever is mentioned there as a narrative. It is quite possible that he might have divorced his wife on three occasions separately but the narrator of this incident put it ‘as a triple Talaq’ as an outcome of the whole process” (Faiz- ul-Bari)

The other answer is given by a great Hanafi jurist of the past, Al-Sarakhshi. He said: the man was very furious at that time. The Prophet (SAW) might have kept quiet, only to save him from any further punishments had his anger boiled over. So he simply reminded him that the couple could never be together again.

3. Al-Bayhaqi transmitted in his al-Sunan al-Kubra (7:336) from Suwayd ibn Ghafalah, he said: ‘A’ishah al-Khath’amiyyah was with al-Hasan ibn ‘Ali (rad), when ‘Ali (rad) was killed, she said: “May you take joy in the caliphate!” He said: “You are expressing glee over the death of ‘Ali?! Go, for you are divorced” meaning “thrice.” He said: So she covered (herself) with her garment and she sat (in waiting) until her waiting period ended, and then he dispatched to her the leftover which remained of hers from her dowry, and ten thousands (coins) as charity. When the messenger came to her, she said: “A small commodity from a parting lover.” When her statement reached him, he wept, and then he said: “Were it not that I heard my grandfather” or “I heard my father that he heard my grandfather say: “Whichever man divorced his wife thrice in the periods,” or “Thrice” ambiguously, “She is not permissible for him until she marries a husband besides him,” I would have taken her

back.” Its chain is authentic. Ibn Rajab al-Hanbali al-Hafiz said this after he quoted this Hadith in his book Bayan Mushkil al-Ahadith al-Waridah fi anna l-Talaq al-Thalath Wahidah, as found in al-Ishfaq (p 24), and al-Haythami cited it in Majma’ al-Zawa’id, (4: 339- Bab Mut’at al-Talaq) from al-Tabari and he said: “And there is weakness in its narrators, and they have been declared trustworthy.”

Comments

This narration is reported through two Asanid and both of them have very weak reporters. In first Isnad, there is Muhammad bin Humaid Al-Razi who is declared a big liar (Kaddab) by Abu Zur’a and Al-Nasai. Imam Bukhari says about him: He is to be checked (Fihi Nazar), Salih said: I did not see a man so bold to say (untruthful) things.

The second reporter in this Isnad is Salama bin Fadl Al-Qurashi. Abu Hatim said: Munkar in Hadith. Abu Zur’a said: I do not know him. In the second Isnad there is ‘Imran bin Muslim who had been Rafidi (Shi’a with extreme views). So this report has to be rejected outright.

4. That which al-Nasa’i transmitted from Mahmud ibn Labid has passed, about the one who divorced his wife thrice, so the Messenger of Allah (saw) became angry at him. Ibn al-‘Arabi mentioned it in opposition to the Hadith of Ibn ‘Abbas in the chapter, and he said: “It is opposed to the Hadith of Mahmud bin Labid, since there is an explicit mention in it that the man issued divorce thrice together, and the Prophet (saw) did not reject it, but he enforced it.” Allamah al-Kawthari said: “Perhaps, he intended the narration of other than al-Nasa’i (because there is nothing in the narration of al-Nasa’i which states clearly that he enforced it), and Abu Bakr al-‘Arabi is a Hafiz, extremely vast in narration, or he intended that had he rejected it, it would have been mentioned in the Hadith, and his (SAW) anger also proves their occurrence, and this is sufficient (to prove) what he intended.” Comments on the Hadith of Mahmood bin Labid.

This Hadith refutes clearly what the proponents of the validity of triple divorce want to promote. Was not the Prophet (saw) angry when he was told about the triple divorce to such an extent that he stood up and said: “The Book of Allah is ridiculed while I am still among you” (Al-Nasai)? The additional narrative that “He enforced it and did not reject it” is not proved by any authentic source. It should be noted as well that Mahmud bin Labid was born during the times of the Prophet (SAW) and it is hard to prove that he heard this from the Prophet (SAW).

5. Al-Tabrani transmitted the story of ibn ‘Umar’s divorce of his wife while she was menstruating, and he added at its end: “O Messenger of Allah! Had I divorced her thrice, would it be (allowed) for me to take her back?” He said: “Then, she would have separated from you, and it would be a sin.” Al-Haythami said after citing it in Majma’ al-Zawaid (4:336): “And al-Tabarani narrated it, and in it is Ali ibn Sa’id al-Razi. Al-Daraqutni said: “He is not that (strong)”, and (others) besides him glorified him, and the rest of its narrators are trustworthy. The weak slave (may Allah pardon him) says: Al-Dhahabi wrote a biography of Ali ibn Sa’id al-Razi in Mizan al-I’tidal (3:131- Biography: 5850), and he said: “A hafiz, well-travelled, itinerant. Al-Daraqutni said: He is not that (strong), he was isolated in (narrating) things. I say: He heard Jubarahm ibn Al-Muqhallis and ‘Abd al-A’la ibn Hammad. Al-Tabrani, al-Hasan ibn Rashid and a group narrated from him. Ibn Yunus said: “He would understand and memorise.” Hence it is clear that no one spoke ill of him besides al-Daraqutni, and he criticised him using only light words, and al-Dhahabi was not satisfied with them. Isra’il ibn Yunus declared him trustworthy, and al-Dhahabi considered him a Hafiz. Hence, the Hadith of the like of him will not be rejected, and it is corroborated by what has preceded from the author (Muslim) (Hadith 354) through the route of Nafi’: He said: “Then, when ibn ‘Umar was asked about a man that divorced his wife while she was menstruating, he would say: ‘And if you divorced her thrice, you would have disobeyed your Lord in that which He commanded you in terms of (the procedure of) divorcing your wife, and she would become separated from you.” The outward of it (suggests) that he heard that from the Messenger of Allah (saw).

Comments on the Hadith of Abdullah bin Umar

This Hadith talks about a separate issue: i.e. the divorce while the wife is in her menses. It has nothing to do with triple divorce except for an additional narrative given by Al-Baihaqi: “so I said, O messenger of Allah! Had I divorced her three times, would it be allowed for me to take her back?” He said No, she was to be separated and it would be a sin” (Al-Baihaqi : 7:334). This addition is not acceptable because of one of its reporters, ‘Ata-Al-Khurasani. Sa’eed bin Al-Musayyib declared him a liar. Shu’ba declares him as a man forgetting a lot. Ibn Hibban said: “A man with a lot of speculation, very bad in his memory, errs a lot and doesn’t know (what he is saying). When such things are found in abundance in his narrations, he was rejected.” Furthermore, there is another weak reporter known as Shu’aib bin Ruzaiq.

6. Al-Nasa’i drew proof for the occurrence of three (divorces issued) together from the story of Fatimah bint Qays, in which it is mentioned that he sent to her (a messenger) with three pronunciations of divorce. She said: “The Messenger of Allah (saw)

said: “Maintenance and shelter is only for the woman when the husband has (the right of) revocation over her.” And it has occurred from al-Daraqutni (4:11,12) through the route of Abu Salamah: “Hafs ibn ‘Amr ibn al-Mughirah divorced Fatimah bint Qays with one statement thrice.” (This is) from that which proves that these three were (issued) together. Based on this, al-Nasa’i’s drawing proof from this story is correct. However, that which contradicts this was transmitted by Muslim, since it has come in it: “He divorced her with the last of three divorces” and in some narrations: “He divorced her with a divorce that remained from her divorce.” (This is) from that which proves that the three did not occur together. Hence, the weightier (view) is that it is not correct to use the story of Fatimah bint Qays as proof due to the contradiction in the narrations, or due to the narration of Muslim being stronger than the narration of al-Daraqutni. And Allah knows best.

Comments on the Hadith of Fatima bint Qais:

Did her husband divorce her three times collectively or separately? The narrative given by Imam Muslim is decisive.

7. ‘Abd al-Razzaq (2:393) and al-Tabarani –and the wording is his- transmitted from ‘Ubadah ibn al-Samit, he said: One of my ancestors divorced his wife a thousand times, so his children proceeded to the Messenger of Allah (saw), and they said: “O Messenger of Allah! Indeed, our father divorced our mother a thousand times. Does he have a way out?” He said: “Verily, your father did not have the fear of Allah (Exalted is He) such that He should make for him in his matter a way out! She is separated from him with three (divorces), not on (the way of) Sunnah, and the nine hundred and ninety seven are a sin on his neck.” Al-Haythmi said in Majma al-Zawa’id (4:338, Bab fiman Tallaqa Akthara min Thalath): “And in it is ‘Ubayd Allah ibn al-Walid Al-Wassafi al-‘Ijli, and he is weak,” I say: Ahmad said of him: “His hadiths are written for knowledge” as found in al-Mizan (3:17). This is why I mentioned this Hadith of his, as support, not as independent (evidence).

Comments on the hadith of Ubada ibn Samit:

It is a weak hadith because of two reporters: Yahya ibn Al-‘Ala and Ibrahim ibn Ubaidullah. The latter is an unknown person. And when he says: “one of his ancestors divorced his wife a thousand times” who could be that ancestor? His own father, let alone his grandfather did not witness the times of Prophet (SAW).

8. ‘Abd al-Razzaq transmitted in his Musannaf (6:393-hadith: 11340) through the route of al-Thawri from Salamah ibn Kuhayl from Zayd

ibn Wahb that (the case of) a man who divorced his wife a thousand times was raised to ‘Umar and he said: I was only playing.” So ‘Umar (rad) overcame him with the whip, and he said: “Only three of those would have been sufficient for you!” Al-Bayhaqi (7:334) transmitted it also through the route of Shu’bah from Salamah ibn Kuhyal, and both routes and their narrators are the narrators of the group.

Comments on another decision of Umar about triple divorce:

This report by Abdul Razzaq is another evidence to show why he was motivated to declare a triple Talaq as binding because he saw the people treating the issue of Talaq as a joke. So, as a punishment, he made it binding upon them.

9. Al-Bayhaqi (7:334) transmitted through the route of Sa’id ibn Mansur: Sufyan narrated to us from Shaqiq, he heard Anas ibn Malik say: ‘Umar ibn Al-Khattab (ra) said about the man that divorces his wife thrice before he penetrates her, he said: “They are three. She is not permissible for him until she marries a husband besides him.” And when he was brought to him, he would punish him.

Umar’s Fatwa is about a woman whose marriage is not consummated and who is given Triple Talaq. We have explained the stand of the Caliph Umar on Triple Talaq.

10. ‘Abd al-Razzaq (7:394) transmitted from Ibrahim ibn Muhammad from Sharik ibn Abi Namir, he said: A man came to ‘Ali and he said: “Indeed, I divorced my wife the number of ‘arfaj (plants).” He said: “You take three from the (number of) ‘arfaj (plants) and you leave the rest.” Ibrahim said: Abu l-Huwayrith reported to me from ‘Uthman ibn ‘Affan the like of that. Sharik ibn Abi Namr is “truthful, erring” as found in al-Taqrib, but he is corroborated by what al-Bayhaqi (7:334) transmitted from two routes from ‘Ali (ra) about the one who divorced his wife thrice before he penetrates her, he said: “She is not permissible for him until she marries a husband besides him.”

Comments on the Fatwa of Sayyedina Ali:

It is similar to the one mentioned above. The isnad itself is weak. There is a similar report given by al-Daraqunti which contains two very weak reporters: Isma’il bin Abi Umayya Al-Qurashi and ‘Uthman bin Qatar. The latter is reported to have narrated a number of fabrications being attributed to reliable authorities.

11. Malik transmitted in his Muwatta (Talaq al-Bikr, p 207) from ‘Ata ibn Yasar, he said: A man can asking ‘Abd Allah ibn ‘Amr ibn al-‘As

about a man that divorced his wife thrice before he touches her. ‘Ata said: I said: “The divorce of a virgin is only one.” Abd Allah ibn ‘Amr said: “You are only a storyteller! One (divorce) separates her, and three makes her forbidden until she marries a husband besides him.”

12. ‘Abd al-Razzaq (Hadith 11343) transmitted from Ma’mar from al-A’mash from Ibrahim from ‘Alqamah, he said: A man came to ibn Mas’ud and he said: “I divorced my wife ninety nine times, and I asked (the people of knowledge) and it was said to me: ‘She is separated from me.” Ibn Mas’ud said: “Indeed they love to separate you from her.” He said: “So what do you say, Allah have mercy on you?” He thought he will find a dispensation for him. Thereupon, he said: “Three separates her from you, and the rest is transgression.”

13. ‘Abd al-Razzaq (11344) transmitted from Ma’mar from al-Zuhri from Salim from ibn ‘Umar, he said: “Whoever divorces his wife thrice, she is divorced, and he has disobeyed his Lord.” And Al-Bayhaqi transmitted through the route of ‘Ubayd Allah ibn ‘Umar from Nafi’ from ibn ‘Umar, he said: “When a man divorces his wife thrice before he penetrates her, she is not permissible for him until she marries a husband besides him.”

14. Malik transmitted in al-Muwatta’ (Bab Talaq al-Bikr, p 208) from Mu’awiyah ibn Abi Ayyash al-Ansari that he was sitting with ‘Abd Allah ibn Zubayr and ‘Asim ibn ‘Umar. He said: Muhammad ibn Iyas ibn al-Bukayr came to them and he said: “A man from the people of the desert divorced his wife thrice before he penetrated her so what do you two opine?” ‘Abd Allah ibn al-Zubayr said: “No statement has reached us on this matter, so go to ‘Abd Allah ibn ‘Abbas and Abu Hurayrah, for indeed I left him with ‘A’ishah, so ask them and then come to us and inform us.” He went and asked them. So Ibn ‘Abbas said to Abu Hurairah: “Answer him, O Abu Hurairah! For indeed a complicated (matter) has come to you.” Abu Hurairah said: one separated her, and three makes her impermissible until she marries a husband besides him.” Ibn Abbas said the like of this.

Comments on No.11 to No.14.

Among these companions, there are those like Ali, ibn Mas’ud and Ibn ‘Abbas who are found with both opinions. For example note these two Athar as transmitted by Abu Daud:

‘Ikrima reported that Ibn Abbas used to say: “If the person says: you are divorced thrice at the same time, it is to be taken as one.” Ta’us, swearing by Allah says: By Allah! Ibn Abbas did not declare this type of Talaq except to be One Talaq.” (‘Aun-ul-Ma’bud Sharh Sunan Abu Dawud, 2:227)

And there were others like ibn Umar, Abdullah ibn ‘Amr ibn As, Abu Huraira, Anas, ‘Uthman who agreed with the Fatwa of the Caliph ‘Umar. It is quite obvious that they did not like to go against the ruling of the Caliph for the very same reason which we have explained above. But there were other matters in which they insisted upon their own views.

Sayyedina Umar used to forbid the people from performing Tamattu’ Hajj (Umra and Hajj together with interruption between two of them). His son Abdullah took the opposite opinion and when he was asked he said: should I follow the commandments of my father or that of the Messenger of Allah?

Ammar bin Yasir once accompanied ‘Umar in a journey. At one point, they did not find water to do their ablution (Wudu). Ammar did Tayammum (dry ablution) and prayed while ‘Umar was hesitant to pray until he got hold of the water. Later ‘Ammar said to him: O the ruler of the Believers! If you wish, because of that right which I owe you, I would not narrate this (opinion) to anyone at all. (Muslim)

Conclusion

1. There is no authentic Hadith that can approve the validity of triple Talaq.

2. The Fatawa of a number of the companions vary between allowing it or discarding it. Those that allow it were in line with the ruling of Sayyedina ‘Umar.

3. There is nothing wrong in concluding that ‘Umar’s ruling was due to certain circumstances which led him to arrive at this decision as a disciplinary act.

4. The authentic ruling on Triple Talaq remains as described in the answer of Abdullah bin Abbas to the question raised by Abu al-Sahba as narrated by Imam Muslim and as approved by the Hadith of Rukana bin ‘Abd Yazid.

5. According to the Quran, for a married woman whose marriage is consummated, the divorce should always be followed by ‘Iddat during which only one act is allowed by the husband: to take her back if he so wishes. If he does not do that, then his Talaq would be binding at the end of the Iddat period.

6. For the woman whose marriage is not consummated, no Iddat is required. Hence the first Talaq is enough to end the marriage.

7. In both cases the couple are allowed to remarry with a fresh Nikah.

The wisdom behind adopting this opinion:

1. The majority of our people in the present times are totally ignorant of the right way of pronouncing a divorce. They think

that to pronounce the word “Talaq” three times is the only way to end a marriage. Once the man regrets what he has done, he keeps on asking the scholars for a way out to rectify his blunder. Is it not the duty of a person of knowledge to advise him on this issue in line with the Sunnah of the Prophet (SAW)?

This type of triple Talaq is known, among all of Ahl-us-Sunnah as an innovative (Bid’a) Talaq. Should Bid’a be accepted or rejected? A’isha, (RA), the mother of the believers reported that the Messengers of Allah (saw) said: “Whoever innovates anything in this matter or ours (i.e. the Deen of Islam) is to be rejected. Anas (RA) reported a similar saying: “Whoever does anything not in line with this matter is to be rejected.” So it is worthy to be rejected and not to be endorsed.

2. Even the non-Muslims ridicule the practice and see it as a transgression of the rights of a woman.

3. The supreme court of India in 2019 has passed a ruling on triple divorce as a criminal act which attracts a heavy fine and three years prison sentence. It was due to a failure on the part of the Muslims to advance their case in the right way. Had they adopted the opinion based upon the right way of pronouncing Talaq i.e. one revocable Talaq and rendering the triple Talaq as one revocable Talaq, the court would not have felt the need to interfere in the matter.

4. Logically and morally, what is the best for a married couple who has committed this innovative way of Talaq? To make this Talaq binding and then let the couple go through an ignominious way of an artificial way of Halala, a disgrace to the honour and dignity of the woman? Or to declare this innovative Talaq as one revocable Talaq where the man is allowed to take his wife back within her Iddat period? For those who want to keep the house united, the decision is obvious.

May Allah Almighty accept this effort of mine, forgive us all our sins, and guide the Muslims to greater knowledge and good character.And may the peace and blessings of Allah Almighty be upon the blessed Messenger Muhammad.

Dr Sheikh Suhaib HasanLondonJuly 2020.