Divorce (Part 1/2)
Islamic Law
يَاأَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمْ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ وَاتَّقُوا اللَّهَ رَبَّكُمْ لَا تُخْرِجُوهُنَّ مِنْ بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ وَتِلْكَ حُدُودُ اللَّهِ وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ لَا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَلِكَ أَمْرًا فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوَى عَدْلٍ مِنْكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ ذَلِكُمْ يُوعَظُ بِهِ مَنْ كَانَ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الْآخِرِ وَمَنْ يَتَّقِ اللَّهَ يَجْعَلْ لَهُ مَخْرَجًا وَيَرْزُقْهُ مِنْ حَيْثُ لَا يَحْتَسِبُ وَمَنْ يَتَوَكَّلْ عَلَى اللَّهِ فَهُوَ حَسْبُهُ إِنَّ اللَّهَ بَالِغُ أَمْرِهِ قَدْ جَعَلَ اللَّهُ لِكُلِّ شَيْءٍ قَدْرًا وَاللَّائِي يَئِسْنَ مِنْ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنْ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ وَأُوْلَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ وَمَنْ يَتَّقِ اللَّهَ يَجْعَلْ لَهُ مِنْ أَمْرِهِ يُسْرًا ذَلِكَ أَمْرُ اللَّهِ أَنزَلَهُ إِلَيْكُمْ وَمَنْ يَتَّقِ اللَّهَ يُكَفِّرْ عَنْهُ سَيِّئَاتِهِ وَيُعْظِمْ لَهُ أَجْرًا أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُمْ مِنْ وُجْدِكُمْ وَلَا تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ وَإِنْ كُنَّ أُولَاتِ حَمْلٍ فَأَنْفِقُوا عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ وَأْتَمِرُوا بَيْنَكُمْ بِمَعْرُوفٍ وَإِنْ تَعَاسَرْتُمْ فَسَتُرْضِعُ لَهُ أُخْرَى لِيُنفِقْ ذُو سَعَةٍ مِنْ سَعَتِهِ وَمَنْ قُدِرَ عَلَيْهِ رِزْقُهُ فَلْيُنفِقْ مِمَّا آتَاهُ اللَّهُ لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا مَا آتَاهَا سَيَجْعَلُ اللَّهُ بَعْدَ عُسْرٍ يُسْرًا(65 :1-7)
O Prophet! When you people divorce your wives, divorce them according to their waiting periods, and count accurately this waiting period, and fear God your Lord. [During this waiting period] turn them not out of their houses, nor should they [themselves] leave, except in case they are guilty of some open lewdness. And [remember] these are the bounds set by Allah and those who transgresses the bounds of Allah, it is they who wrong their own souls. You know not that God might thereafter create new circumstances. [Divorce your wives in this very manner]. Thus when they approach the end of their waiting period, either take them back on equitable terms or part with them on equitable terms. And [whether you want to keep them or depart from them, in both cases] call to witness two honest men among you. And [O you witnesses] establish this testimony for God. It is this thing to which those are exhorted who believe in God and in the Last Day. And [if] those who fear God [encounter any difficulty], God will find a way out for them and will provide them from where they cannot even imagine. And those who put their trust in God, for them Allah is enough [to help them]. God is sure to bring about His designs. And God has set a measure for all things. And those of your women who have ceased menstruating and they also who have not menstruated [in spite if reaching its age], if you have any doubts about them, then their waiting period is three months. And the waiting period of pregnant women is till they deliver the child. God will ease the hardship of [those among you] who fear Him. Such is the directive of God He has revealed to you. He who fears God, God shall brush away his sins and shall richly reward him. [During the waiting period] lodge these women in your homes according to your means. And do not harass them to make life intolerable for them. And if they are pregnant, maintain them until they deliver the child. And if they suckle your [child], give them their remuneration and decide this matter according to the custom after mutual consultation. And if you find yourselves in difficulty, another woman will suckle [the child]. Let the man of means spend according to his means and the man whose resources are restricted, spend according to what God has given him. God does not burden a person with more than He has given him. [Rest assured], after some difficulty, God will soon grant relief. (65:1-7)
If it becomes impossible for a husband and wife to get along with one another, there exists in divine religions the option of separation from one another. In religious parlance, this separation is called ‘طلاق’ (talaq: divorce). As per the traditions of Abraham’s creed, the Arabs were fully aware of it in the Jahiliyyah period. No doubt certain deviations and innovations had found their way in their concept, however, a study of their history reveals that the law of divorce that existed in their society was almost the same as what Islam presented.1 In the above quoted verses of Surah Talaq, the Almighty has revived with certain additions and amendments that very law. Certain details of this law are also mentioned in Surah Baqarah and Surah Ahzab, but a little deliberation shows that the basic verses in this regard are those of Surah Talaq stated above.
Preceding Divorce
Before circumstances reach an extent that divorce remains the only option, it should be the intense desire of every person to keep in tact the marital relationship as far as possible. On these very grounds, in Surah Nisa the Almighty has permitted the husband to reprimand his wife if she is guilty of challenging his authority. However, if all efforts of reformation fail and it becomes evident that this relationship cannot remain intact, the Almighty has asked Muslims to make a last ditch effort: the relatives of the couple, their clan and tribe and other well wishers should come forward and use their influence to set right the situation. The procedure outlined by the Qur’an in this regard is that one arbitrator should be appointed from the husband’s family and another from the wife’s family. Both of these arbitrators should try to reconcile the two in the hope that what the husband and wife could not accomplish themselves would be accomplished by the elders and well wishers of the two families. The Qur’an says:
وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِنْ أَهْلِهِ وَحَكَمًا مِنْ أَهْلِهَا إِنْ يُرِيدَا إِصْلَاحًا يُوَفِّقْ اللَّهُ بَيْنَهُمَا إِنَّ اللَّهَ كَانَ عَلِيمًا خَبِيرًا(35:4)
If you fear a breach between them two, appoint [two] arbitrators, one from his family, and the other from hers; if they wish for peace, Allah will create harmony between them: for Allah has full knowledge, and is acquainted with all things (4:35)
The last words of the verse subtly urge the couple to benefit from this scheme. If, instead of severing ties, they wish to create harmony among themselves they should keep in mind that the Almighty is benevolent. He will help them in redeeming the situation.
The Right to Divorce
The surah begins with the words: ‘إِذَا طَلَّقْتُمْ النِّسَاءَ’ (when you [people] divorce your wives). In this verse, in the subsequent ones also and in other verses of the Qur’an where the directive of divorce is mentioned, the husband has been regarded as the initiator of divorce. Moreover, in 2:237, the words ‘ِبيَدِه عُقْدَةُ الِّنكَاح’ (in his hands is the knot of marriage) are used for the husband. These words bear clear evidence to the fact that the Shari‘ah has granted the husband the right to divorce. The reason for this is quite obvious. A husband has always been charged with the responsibility of protecting his wife and providing for her because God has given him the natural ability to fulfill these responsibilities. On these very grounds, the Qur’an has regarded him to be the Qawwam (head of the family) and explicitly stated: ‘وَ لِلِّرجَالِ عَلَيْهِنَّ دَرَجَه’ (and the husbands hold a degree of superiority over them). Consequently, both the nature of the responsibility and the regard for his position entail that he be given the right to divorce. It is an understood fact that the institution of family is an essential requirement of a human being. Just as entrusting two parties with different responsibilities but granting them equal rights to establish an organization or to dismantle it cannot keep that institution intact, the familial institution also has similar requirements. If a lady, in lieu of her own protection and subsistence and those of her children, has given herself in the custody of a man through a contract, then the right to annul this contract cannot be given to the lady without the permission of the husband. This is in accordance with justice and fairness. If any other option is adopted, then this would be against justice, and would inevitably result in the dismemberment of the institution of family.
As a consequence of the above analysis, if a wife wants to separate from her husband, she cannot divorce him; on the contrary, she will demand divorce from him. In general circumstances, it is hoped that every gentleman, seeing that there is no other way out, would accept this demand. However, if this does not happen to be the case, a wife can turn to the court of law. When the state of affairs deteriorates to this extent, then there is a precedence set by the Prophet (sws) in this regard for the judicial forums: If it becomes certain that a wife has great aversion to her husband and does not want to live with him any more, then the court should order the husband to divorce her and if he wants he can have back all the wealth and property that he gifted to her except the mahr (dower).
Ibn ‘Abbasnarrates that the wife of Thabit Ibn Qays once came to the Prophet (sws) and said: ‘O Messenger of Allah, I do not have any complaint regarding his character and person; however, I fear that I will lose my faith’2. When the Prophet heard this complaint, he said: ‘Would you return his orchard?’. She showed her consent. At this, the Prophet (sws) directed Thabit to accept the orchard and separate her by pronouncing one divorce sentence.3
The Procedure of Divorce
Whether a husband divorce his wife because of his own decision or does so at the demand of his wife, in both cases the procedure of divorce prescribed by the Shari‘ah is as follows:
1. Divorce should be given keeping in consideration the ‘Iddat (waiting period). This means that it is incorrect to divorce a wife in a manner that separates her instantaneously. In all instances, it must be given so that it becomes effective after a specific waiting period. ‘Iddat (waiting period) in religious parlance means the period in which a divorced or widowed lady cannot marry any other person. Since this period has been primarily fixed in order to ascertain whether a lady is pregnant or not, therefore it is necessary that divorce be given after a lady has completed her menstrual cycle in that period of cleanliness in which the husband did not have any sexual intercourse with his wife. Every Muslim should be fearful of his Lord about emotions of anger which on such instances do arise against the wife. Consequently, when the Prophet (sws) was told that ‘Abdullah Ibn ‘Umar had divorced his wife during her menstrual cycle, he was really annoyed and remarked:
مره فليراجعها ثم ليمسكها حتى تطهر ثم تحيض ثم تطهر ثم إن شاء أمسك بعد وإن شاء طلق قبل أن يمس فتلك العدة التي أمر الله أن تطلق لها النساء (بخارى رقم: 5251 )
Ask him to take her back and keep her in wedlock until she is through with her menstrual cycle and then once again passes through this cycle and then is through with it. After this, he can either detain her [in wedlock] or divorce her before having sexual intercourse with her. Because it is this beginning of the ‘Iddat keeping regard of which the Almighty has directed [believers] to divorce their wives. (Bukhari, No: 5251)
The Almighty has directed Muslims to carefully keep count of the period of ‘Iddat. Since divorce is a matter of great consequences, and a lot of legal issues arise for the man, the woman, their children and their whole family, it is essential that the time and date of divorce be properly accounted for. Moreover, it is essential that at the time of divorce, the state of the woman, the date when the ‘Iddatcommenced and the date when it will end be kept track of. Whether the whole issue is ultimately settled within the family or has to be taken to court for settlement, in both cases it is this period of ‘Iddatwhich dictates the time span within which a husband can revoke his decision and take back his wife (ruju‘). Similarly, it is this period which will determine the time for which the husband is liable to keep his wife in the house and provide for her. Likewise, the time when the inheritance is to be given to her and the time when the divorce process is complete and the lady is free to marry again shall be ascertained from the ‘Iddat.
2. Until the ‘Iddatperiod expires the husband has the right to take back his wife. The Qur’anic words: ‘فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْفَارِقُوهُنَّبِمَعْرُوفٍ’ (thus when they approach their term appointed, either take them back on equitable terms or part with them on equitable terms (65:2)) refer to this fact. The Almighty has explained in Surah Baqarah that just as the right to give divorce rests with the husband, the right to take back the wife also rests with him so that he be granted a superior status in administering the institution of family which is necessary to maintain order in it.
This of course does not mean that only husbands have rights and wives have none. People must be aware that just as wives have certain duties regarding their husbands, they also have some rights. Man is not ignorant of these rights; he is well aware of them. Consequently, it is the obligation of the husbands that besides asking their wives to fulfill their obligations towards them, they must also keep in mind their rights:
وَبُعُولَتُهُنَّ أَحَقُّبِرَدِّهِنَّ فِي ذَلِكَ إِنْ أَرَادُوا إِصْلَاحًا وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ وَاللَّهُ عَزِيزٌ حَكِيمٌ (2 :228)
And if their husbands wish to reform affairs, they [— the husbands— ] have greater right to take them back [in this waiting period] should they desire reconciliation. And [this is because there is no doubt that] just as according to [society’s] norms these women have obligations [towards their husbands], they also have rights, although men [as husbands] have a status above women. [This is the directive of Allah] and Allah is mighty and wise. (2:228)
Since there is a high probability that in such affairs one is bound to be governed by emotions and extreme reactions and as a result may commit one blunder after another, these two attributes – Mighty and Wise – mentioned at the end of the verse serve a special purpose. While referring to this purpose, Imam Amin Ahsan Islahiwrites:
The Almighty is ‘Aziz (Mighty); hence, it is only His right to give this directive and He is also Hakim (Wise); hence, whatever directive He gives is based on wisdom. Men should always submit to His directives without any hesitation whatsoever. If they oppose His directives, this would amount to challenging His honor and only hasten to invite His wrath. Similarly, if they are naive enough to think that they are more wise and sagacious than the Almighty, they will be responsible for ruining the law and system of the society with their very own hands.4
3. If the husband does not take back her wife within the ‘Iddat period, then once this period expires the relationship of wedlock will cease to exist. Consequently, the husband is directed to make up his mind once this period is approaching its end. He should decide if he has to revoke his decision and take her back or is to persist with his decision and sever his relationship with her. In both cases, the Almighty has directed him to follow the ma‘ruf (good conventions) of the society. The Almighty comforts them by saying that those who remain fearful of Him should rest assured that they will be worthy of His help if they encounter any difficulty.
It is pointed out in Surah Baqarah that if the husband decides to revoke his decision and take back his wife, then this should not be with the intention of hurting or harassing her. The verse of Baqarah quoted above refers to this aspect in the words ‘إِنْ أَرَادُوا إِصْلَاحًا’. The revocation should not be to satisfy one’s desire by tormenting the wife. In fact, the underlying reason for this revocation should be to lead a congenial marital life, other wise this would just be an act of oppression which shall greatly displease the Almighty in the Hereafter:
وَإِذَا طَلَّقْتُمْ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ وَلَا تُمْسِكُوهُنَّ ضِرَارًا لِتَعْتَدُوا وَمَنْ يَفْعَلْ ذَلِكَ فَقَدْ ظَلَمَ نَفْسَهُ وَلَا تَتَّخِذُوا آيَاتِ اللَّهِ هُزُوًا وَاذْكُرُوا نِعْمَةَ اللَّهِ عَلَيْكُمْ وَمَا أَنزَلَ عَلَيْكُمْ مِنْ الْكِتَابِ وَالْحِكْمَةِ يَعِظُكُمْ بِهِ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِكُلِّ شَيْءٍ عَلِيمٌ(2 :231)
And when you have divorced your wives and they have reached the end of their waiting period, either retain them with kindness or let them go with kindness. But do not retain them with the intention of harm so that you commit excesses against them. And [you should know that] whoever does this wrongs his own soul. Do not make a mockery of Allah’s commandments. Remember the favors He has bestowed upon you, and the Law and the wisdom which He has revealed, of which He instructs you. Fear Allah and know that He has knowledge of all things.
While explaining this verse, Imam Amin Ahsan Islahiwrites:
In the previous verses, the implied meanings were stated positively, but here they are stated negatively in order to caution cruel husbands who could misuse the right of divorce as well as the right to revoke it in the ‘Iddat period. Such an attitude, of course, is outright injustice and amounts to playing with the Shari‘ah. Those who are bold enough to do this may think that they are oppressing their wives; however, in fact, they wrong their own selves. This is because those who toy with divine directives and exceed the limits set by the Almighty shall have to face a grievous punishment.
In the end, a reminder is sounded regarding the blessings of the Almighty: He has made Muslims a chosen Ummah and sent a Prophet to them from among them to guide them. He has also blessed them with a book to guide them regarding good and evil. It is composed of the precepts of faith and law. If they repay this great favor by violating the limits of the Almighty and toying with His Shari‘ah then they should contemplate the consequences of such a behavior. The verse goes on to warn Muslims to remain fearful of the Almighty and to keep in mind that He has knowledge of all their deeds. In other words, He is granting respite to people in spite of their mischief. However, once He decides to catch them, no one will be able to run away from His grasp.5
Similarly, if a husband decides to part ways with his wife he is directed to do so in a befitting manner. The words used in 2:220 are ‘تَسْرِيْحٌ بِاِحْسَان’. In this regard, the following directives have been given:
Firstly, whatever amount of wealth, property, clothes, jewellery and other items have been gifted to the wife by the husband, they should not be confiscated by him. Here it should be clear that the verse is not referring to the Nafqah (maintenance) andMahr (dowry), which are the absolute rights of a wife and confiscating them is unthinkable. What is emphasized is that a husband should not take back any gifts he may have given her.
There are two exceptions to the above mentioned directive:
First, if it is no longer possible to keep a marriage intact according to the limits set by Allah, and the family elders and society also supports the annulment, but a husband is unwilling to divorce his wife simply because he is concerned over losing wealth, property or other gifts he has given his wife, then the issue can be resolved in the following manner: the wife can give back part or all of the wealth gifted to her to relieve herself of her marital contract. In such cases, it would be lawful for the husband to accept these returned gifts.
Second, if the wife is guilty of open sexual misconduct. Since such a behavior destroys the very basis of the marital relationship, it is lawful for the husband to take back any gifts or wealth given to her.
The Qur’an says:
وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَأُوْلَئِكَ هُمْ الظَّالِمُونَ(2 :229)
[If you decide to depart from them, then on this occasion] it is unlawful for you to take back from them anything you have given them unless both the husband and wife fear that they may not be able to keep within the bounds set by Allah. Then if you also feel that they will not be able to remain within the bounds set by Allah, there shall be no offence for either of them [regarding the gifts given by the husband] if the wife seeks divorce [by returning them to him] in ransom. These are the bounds set by Allah; do not transgress them. [And you should know that] those who transgress the bounds of Allah are wrongdoers (2:229)
وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ…. وَإِنْ أَرَدْتُمْ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُبِينًا وَكَيْفَ تَأْخُذُونَهُ وَقَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنْكُمْ مِيثَاقًا غَلِيظًا (4: 19-21)
And do not treat them with harshness that you may take away what you have given them – except where they have been guilty of open lewdness… And if you decide to take one wife in place of another, even if you had given the latter a whole treasure of wealth take not the least bit of it back: Would you take it by slander and usurping [her] rights? And how could you take it when you have lain with each other and [at the time of marriage] they have taken from you a solemn covenant? (4:19-21)
For this second situation, a person has been warned not to dare take back by slander any wealth gifted to his wife. ImamAmin Ahsan Islahiwrites:
It is absolutely against the decency and integrity of a man to slander and accuse a lady with whom he had pledged to live forever under a firm marriage contract. It was she who had unveiled herself totally to him and both lived intimately and in great harmony with each other. How unseemly it is on the part of the husband that when relations had to be severed with her he should try to extract from her what he so willingly spent on her and should go as far as to malign and accuse her for this base purpose.6
Secondly, the husband shall not be responsible to give the dower if the wife is divorced such that the husband has not touched her or her dower had not been fixed. However, if the dower had been fixed but a lady was divorced before having sexual relations with the husband, then the husband is liable to pay half the amount of the dower fixed except if the wife willingly forgoes the total amount or the husband pays the full amount. The Qur’an says:
لَا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمْ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً وَإِنْ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ إِلَّا أَنْ يَعْفُونَ أَوْ يَعْفُوَ الَّذِي بِيَدِهِ عُقْدَةُ النِّكَاحِ وَأَنْ تَعْفُوا أَقْرَبُ لِلتَّقْوَى وَلَا تَنسَوْا الْفَضْلَ بَيْنَكُمْ إِنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ (2:236-7)
There is no blame on you in the matter of dower if you divorce women before touching them or before fixing their dower and if you divorce them before touching them but after the fixation of a dower for them, then the half of this fixed dower should be given to them, unless they forgo it or he forgoes it in whose hands is the marriage knot; and if you [men] forgo your right, it is nearer to piety. And do not forget your superiority among yourselves. For Allah sees well all that you do. (2:236-7)
While commenting on this verse, Imam Amin Ahsan Islahiwrites:
Although the fact that the husband has divorced the wife before conjugal contact was made is one motive for her wife to forgo her right, the Qur’an here has urged the husband with regard to his honour and forbearance and his status as a husband to not desire from his wife to forfeit her share. Instead he should show magnanimity in paying her the full amount. The Qur’an has appealed to him on three grounds to make this sacrifice: Firstly, the Almighty has given him the right to untie the marital knot just as he had the right to tie it. Secondly, it is more befitting for the stronger sex to show sacrifice and selflessness – the manifestations of true piety. Thirdly, the one degree of superiority a husband has been blessed with by being made the head of the family unit since he was naturally suited for this task requires that he take into account this aspect while dealing with the weaker sex. Its natural requirement is that he should be on the giving end rather than being on the receiving end.7
Thirdly, a wife at the time of parting should be given some resources of life. The Qur’an says that this is an obligation of those who fear God and those who are righteous. If a lady is divorced even without going near her, a husband is exhorted to fulfill this obligation. The Qur’an says:
وَلِلْمُطَلَّقَاتِ مَتَاعٌ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ (2 :241)
And divorced women should in all cases be given some resources according to the norms of the society when they are sent off. This is an obligation on those who are fearful of God. (2:241)
In Surah Ahzab, the words ‘فَمَتِّعُوْهُنَّ وَ سَرِّحُوْهُنَّ سِرَاحاًجَمِيْلَا’ (But give them some resources [of life] and part with them in a befitting manner) are used to convey this meaning. InSurah Baqarah, this same directive has been given to husbands for wives whom they divorced without touching them or without fixing their dower. According to the Qur’an, the amount of these resources should be ascertained keeping in view the norms of the society and the financial status of the husband:
وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ(2 :236)
And bestow on them some resources of life, the wealthy according to his means, and the poor according to his means. This is an obligation on those who are righteous. (2:236)
It is evident from these words that this is an obligation on the husband. If a person does not fulfill it, he might not be liable to any legal action because this is something which pertains to a person’s inner piety and virtue, but he would definitely be held liable in the Hereafter before his Lord, and in the Hereafter the weight and import of his virtuous deeds would suffer.
4. 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 Qur’an 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 one lady. The Qur’anic words 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 (2:230)
If a husband divorces his wife [for the third time], he cannot marry her until she has wedded another man. But 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.Such are the bounds of Allah. He makes them clearto men who want to gain knowledge. (2:230)
In case the same husband and wife want to remarry one another, the Qur’an 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. ImamAmin Ahsan Islahiwrites:
The real thing is that Nikahis 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 Shari‘ah, is not part of the original scheme; it is only a last resort to deal with insolvable situations. Consequently, the true nature of a Nikah is that it should be solemnized with the intention of living together as husband and wife permanently. If a person honors a Nikah only for a certain fixed period, then this is called ‘Muta‘h’, 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 ‘Muta‘h,’ 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 rental male species for breeding’ and a person who does this and he who has it done are cursed by the Almighty’.8
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.