Islamic Perspectives

All you need to know about Muslim Divorce & Triple Talaq

The current controversy about triple Talaq in India proves that inaction can also produce results, albeit not the ones you may like to see. The basic principle in Islamic jurisprudence is to go to the Book of Allah- the Qur’an and the Sunnah (teachings) of Muhammadthe Prophet of Islam in case of any question in Islamic Law. That is all that we need to do in this case and it will become abundantly clear if triple Talaq in one sitting is a practice that must be insisted upon or abandoned in favour of what the Qur’an and Sunnah direct.

Islam came as a liberating force to take people out of slavery to their desires and make them obedient to Allah, their Creator. The most enslaved of people were (and sadly continue to be) women. In the days before Islam, women were commodities to be bought, sold and inherited. Islamput a stop to all thatin the 5th century itself. Islam asserted the individuality, integrity and power of women. Islam made them absolute owners of their property with their husbands having no right in it. Islam made them absolute owners of their person with the right to choose their husbands and to leave them even if the husband didn’t want it. Today in the 21st century, we live in a world where to this day, women in America and Europe are paid 80% of what men are paid, for the same work. Yet it is Islam which our media portrays as being backward.

It is not in the scope of this article to talk about the rights that Islam gives women, but the reality is that though Islam gives women their rights, it is Muslim men who deny them. Every single one of the violations of women’s rights that is happening in the world is traceable to men and patriarchal societies the world over. The triple Talaq issue is one such. I submit therefore that it is not the media but Muslim men who are responsible for the bad rap that Islam gets thanks to their behavior.

In terms of marriage, one of the many evils of the pre-Islamic era was the way women used to be divorced. Men would divorce their wives and take them back and divorce them again and take them back; all like a game. So Allahordered:

Baqara 2:229. The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful for you (men) to take back (from your wives) any of your Mahr which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul' (divorce initiated by the woman). These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are the Zalimun (wrong-doers).

230. And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allah. These are the limits of Allah, which He makes plain for the people who have knowledge.

Intention of the Shari’ah

  1. To make marriage easy and adultery difficult
  2. To make marriage quick and divorce, with time to permit reconciliation
  3. To save the marriage as far as possible

Narrated by 'Abdullah bin 'Umar (RA), that he had divorced his wife while she was menstruating. 'Umar bin Al-Khattab (RA asked Rasoolullahabout that. Rasoolullahsaid, "Order him (your son) to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again, whereupon, if he wishes to keep her, he can do so, and if he wishes to divorce her he can divorce her before having sexual intercourse with her; and that is the prescribed period which Allahhas fixed for the women meant to be divorced." [Bukhari Volume 7, Book 63, Number 178]

What’s the correct way?

1.     Give Talaq only during her clean period

2.     Give Talaq only once

3.     She continues to remain in the house as a wife with all privileges and duties except intimacy

If there is intimacy the Talaq is automatically cancelled

So the first thing to remember about Talaq is that it is to be given only in the clean period before having intercourse and that it is to be given once only. This is the Shari’ah, the Sunnah and is accepted as such by all the Imams of Fiqh, of every Madhab/Maslak. Anything else is a Bid’a (innovation) in number (more than once) or in time (during her menses). Therefore, to do so is Haraam. This is the law and it is the correct way to give Talaq.

The wisdom of this way is clear and favors the marriage and the woman because Islam seeks to preserve the marriage. That is the reason why Islam made marriage simple and easy and divorce permissible but with time to allow reconciliation. In most other religions there is no provision for divorce at all. If people want to be divorced, there is no scope for them to do it within their religion. They have to go out of their religion, to a civil court to have it done. Islam however provides a compassionate and robust mechanism within our religious law, where the divorce can be implemented without violating the rights of either party. That is the reason Islam gives plenty to time in the case of divorce for reconsideration and reconciliation. And in case the divorce is still given, then it makes it simple for the couple to get married again without any problem.

To explain: He gives her one Talaq for the first time and before her Iddah (waiting period) of three cycles or three months is over, they can get back together without any legal procedure.Nothing more need be said or done and they can live happily together to the end of their days as man and wife.

If he doesn’t take her back then at the end of three months, they are divorced and both can get married to whoever they please. However, if they don’t and after some time (whatever the duration), if they want to get together again, they can get married again by contracting a fresh Nikah. It is as simple as that.

To return to the example of Talaq above, after the first Talaq, but within the Iddah period they get back together. Then some time passes, maybe a year or two (or more or less) some more conflict and he gives her another Talaq, again only once. She is now again in the Iddah (waiting period) period of the second Talaq. But before that ends people intervene and matters are resolved and they get back together.They remain married and can carry on as usual. Then a couple of years pass, more or less and the conflict surfaces again and he gives her one Talaq again. This time it is final and irrevocable. He can’t take her back as this is the third Talaq that Allahreferred to in the Ayah. The wisdom behind that is, thatTalaq has already happened twice (Talaq) and then if it happens again a third time, it means that this couple have really exhausted all possibilities of living together harmoniously and there is really no point in carrying on in the marriage. So Islam allows the marriage to end but only after giving more than ample time to reconcile.

About the period of Iddah Allahordered:

Talaq 65: 1. O Prophet! When you divorce women, divorce them at their 'Iddah (prescribed periods), and count (accurately) their 'Iddah. And fear Allah your Rabb (O Muslims), and turn them not out of their (husband's) homes, nor shall they (themselves) leave, except in case they are guilty of some open illegal sexual intercourse. And those are the set limits of Allah. And whosoever transgresses the set limits of Allah, then indeed he has wronged himself. You (the one who divorces his wife) know not, it may be that Allah will afterward bring some new thing to pass. (that they may come back together).

Talaq 65: 4.    And those of your women as have passed the age of monthly courses, for them the 'Iddah, if you have doubts (about their periods), is three months, and for those who have no courses (or irregular) their 'Iddah is three months likewise. And for those who are pregnant, their 'Iddah is until they deliver (their burdens), and whosoever fears Allah and keeps his duty to Him, He will make his matter easy for him.

We can see from these Ayaat that not only is the period of Iddah specified clearly but Allahspecifically orders people to adhere to it as it can lead to the rift that caused the divorce to be healed. To ignore this process and give all three divorces at one go is to try to circumvent the process specified in the Qur’an. Obviously this is not permissible. This is why even those who insist that triple Talaq is valid still call it Talaq ul Bid’a (Talaq of the innovation).

My fundamental question is that when you call it a Bid’a and you accept that Bida’at are misguidance and all misguidance is punishable, then why do you insist on a Bida’a when you have the method outlined in the Qur’an and Sunnah. If it is divorce you want, it is permitted and its method is clearly specified. Why not stick to that instead of insisting on something you yourself call an innovation and then put yourself in the position where it is creating so much suffering and put yourself in the way of censure and criticism unfairly leveled at Islam thanks to your own misrepresentation of what Islam actually orders?

So all that needs to be done in the question of the triple Talaq in one sitting, which is causing so much controversy, is to go to the Qur’an and Sunnah and the answer is clear; that it is a Bid’a (innovation). The solution is to stick to what Allahdecreed and what His Messengertaught.

How did the triple Talaq come into practice?

Historically speaking, triple Talaq happened in the time of Rasoolullahalso.

Ibn ‘Abbas (RA) stated explicitly that three divorces used to be counted as one in the time of Rasoolullahand [they conclude] what Imam Ahmad and others narrated from the story of Rukanah ibn ‘Abd al-‘Aziz ibn ‘AbdYazid: from ‘Ikrimah, the freed-slave of Ibn ‘Abbas, he said: “Rukanah ibn ‘AbdYazid, the brother of al-Muttalib, divorced his wife thrice in one sitting, and he became extremely grieved over it.” He said: “Rasoolullahasked him: ‘How did you divorce her?’ He said: ‘I divorced her thrice.’” Then, he (Rasoolullah) asked him, ‘In one sitting?’ He said: ‘Yes.’ He (Rasoolullah) said: ‘Those are [counted as] only one so take her back if you wish.’” He said: “So he took her back.” This is how Ibn Taymiyyah transmitted it in his Fatawa(3:22).

If we look at this Hadith in the light of the Ayaat of the Qur’an we can see that the Hadith is the implementation of the Ayaat and supports them. The man gave three Talaq in one sitting and the Prophetoverruled it and said that it only counts as one. So what must we in India do? Do what Muhammadour prophet did. He is our guide. He is the one we follow. His word is the final authority. So follow him. Who can object to that? This is the ruling that Ibn Taymiyya, Ibn Al Qayyim and others also ruled as being the correct understanding of the Hadith. However, we need not go to Ibn Taymiyya when we have the ruling of the Messengerof Allahwhich supersedes everyone else.

I am aware of all the scholarly arguments used to justify triple Talaq in one sitting. My submission to my learned brothers is, ‘All your arguments are in the end, conjecture and deductive reasoning. In contrast to that you have the actual orders of Allahas revealed in His Book, the Qur’an and you have the action of the Messengerin response to that order. Why do you give precedence to conjecture in the face of this evidence? What Rasoolullahdid, we know for certain. Why he did it is somebody’s opinion. It is at best an informed guess. It is not actual observed, recorded fact. Rasoolullah’s action is what was observed and recorded. His intention was in his heart. However, his action is exactly in keeping with, supporting and in obedience to the orders of Allah. So why leave what is clear and choose what is doubtful?’

This practice of ruling that three Talaq in one sitting is counted as one, continued in the time of the first of the Rashidun Caliphs, Abu Bakr (RA). In the time of Omar ibn Al-Khattab (RA), this started becoming a problem and so Omar ibn Al-Khattab (RA) applied his standard ruling in all such matters where he said, ‘When Rasoolullahwas alive, Allahused to tell him what was in people’s heart. Today we don’t have that information, so we will go with what is apparent.’ So if a person gave his wife three Talaqs at one time, it was taken as three and not one. This was done to punish the man for doing Haraam.

How is it punishment? In Islam the entire responsibility of getting married and all its expense is the sole responsibility of the man – not even his family, but he himself. When he gives Talaq to his wife she leaves with all her Mehar, any gifts she received from him or his family during the tenure of their marriage and he is now high and dry and alone. If he now wants to get married, he has to go through all the expense all over again. Meanwhile when her Iddat (waiting period) is over, in the Islamic system where there is no taboo on marrying a divorcee, she will get a proposal and get married and live happily with a new husband while her ex-husband is wandering around alone. If he wants to get married, he has to go through the entire process and expense all over again. If there are children from her previous marriage the husband has to support them until they reach a stage when they are not in need of support. This means that he pays for their upkeep, education all the way to university, until they are earning their own livelihood and for their marriages. All this is expense and punishment for him.

The wife can get married and her new husband is not liable to spend a single paisa (cent) on the upkeep of his wife’s children from her previous marriage. They are entirely their father’s responsibility. As for the wife, she is rid of a silly man who was more than likely not much of a husband anyway. If she doesn’t get married and he wants to marry her again, he can’t do that until she gets married to someone else, the marriage is consummated and she is divorced again or he dies. So she is gone as far as he is concerned. That is his punishment for being hasty in divorcing by pronouncing divorce thrice instead of once which is the correct Islamic way.

Incidentally you must immediately correct anyone who say, ‘In Islam you can say Talaq three times and you are free.’ You must tell them, ‘In Islam if you pronounce Talaq three times, you have committed Haraam and your neck is in the noose with Allah. You are not free at all. You will be punished when you meet Allahas you have violated the Shari’ah and have committed a crime in Huqooqul Ibaad (Rights of the people) which Allahpromised not to forgive unless the person (your divorced wife in this case) forgives first.’ Anyone giving three Talaq at the same time is playing with the law of Allahand so is liable for punishment from Allah.

Marriage in Islam is an act of worship because if it is done according to the Sunnah of Rasoolullahit is something that Allahwill reward us for. The key is to ensure that we do it in accordance with the Sunnah.

Aaisha (Radiyallahu ‘Anha) reports that Rasoolullahsaid: “The Nikah with the most Baraka is that Nikah wherein the least expense was incurred.” (Musnad Ahmad)

Abu Hurayrah (RA) said: Rasoolullahsaid: “If someone whose religious commitment and attitude pleases you proposes marriage, then marry [your female relative under your charge] to him. If you do not do that, there will be tribulation in the land and much corruption.” (Tirmidhi, Ibn Majah, considered sahih by Albani).

Unfortunately, in India, Muslims have turned their own law upside down and have made marriage extremely difficult and expensive and loaded all the expense on the bride and her family which is not the way of Islam at all. Add to this the evil of dowry which we have adopted with the result that men have no shame in demanding it and parents of the bride are forced to cough up the ransom for their daughter. We have all kinds of shameless ways of asking for it. Add to this all the different Haraam customs and practices that we practice in our weddings and the entire process is a punishment for the woman and her family. On top of that Muslim men are misusing the Talaq and instead of following the Sunnah are committing Haraam and divorcing their wives without giving themselves a chance at reconciliation which Islam intends.

This has resulted in a huge number of Muslim women being abandoned by their husbands who divorced them in a fit of anger or because of their ignorance about the way to divorce their wives. Added to this is the taboo in India of marrying a divorced woman that is again unislamic, which results in young girls being condemned to live their lives as virtual widows unable to get married again.

What must also be acknowledged, is that the reason for the hardship that Muslim women are facing is not the triple Talaq but the unnecessary expenses that brides and their families incur to get married. Nobody talks about that while everyone is raving about triple Talaq. I say to them, ‘Recognize and own the problem, if you want a solution. If you are going to ignore the real cause of the problem and focus on one of its fallouts, then the problem will still remain.’ Ask yourself what will be achieved as far as avoiding hardship to the bride if she gets divorced in three months instead of instantly, when her hardship is directly related to the money her family spent on her wedding, despite the fact that Islam specifically prohibited it? Muslims like to talk about Islam only when they are in trouble. They happily ignore the values of Islam and when as a result of that they get into trouble, they start calling out to Ulama to help them. Ask them which A’alim gave them permission to pay dowry or to spend millions in useless, showing off to conduct a wedding that people forget half an hour later anyway? What caused hardship to the bride is not the Talaq but the fact that her father spent a fortune on her marriage.

 

The usual excuse given is that if they don't pay dowry and don't have all the needless functions, then their daughter will remain unmarried. My answer is, 'Even if that is so, which is better? That she remains in your house unmarried and you still have your wealth which you and your daughter can use? Or you spend that wealth uselessly and she returns home to live with you anyway? Only, now you have lost your wealth and are in debt?' So even in a worst case scenario, paying dowry and incurring expenses for ostentatious weddings is a completely useless act. And prohibited and Haraam in Islam and punishable before Allah.

It is therefore very important to counsel married and to-be married people to follow the Sunnah in marriage and in Talaq. Conduct simple weddings with the bride’s family not incurring any expense at all. And if a Talaq becomes inevitable, then do it the Sunnah way – one Talaq only in the clean period – and not commit Haraam by giving Talaq thrice at the same time. Unfortunately, since this is not mentioned many Muslims believe that they have to give Talaq thrice compulsorily in order to divorce their wives, whereas the reality is that to do so is Haraam and a major sin punishable by Allah.

It is the responsibility of those planning to get married to learn the rules that govern marriage and ensure that they follow them. Imams must make the proper way to give Talaq a topic of the Juma (Friday) Khutba and educate their congregations. Community organizations must organize marriage workshops where young couples and counseled on the correct Islamic way of getting married. And finally, all ostentatious marriages and marriages where dowry has been taken must be boycotted, especially by community leaders, family elders and religious scholars. Only then will the seriousness of this matter be driven home to people so that this obnoxious social evil of expensive marriages and express Talaqs will be eradicated. Marriage is a serious responsibility and a commitment for which the spouses and their families are accountable to Allah. May Allahguide us to demonstrate the beauty of Islam by practicing it and not bring Islam into disrepute because of our own ignorance and misguidance.

Mirza Yawar Baig is an International Speaker, Coach, Trainer and specialist in global leadership and can be reached at  yawarbaig$gmail.com

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