Originally posted 2018-09-10 11:22:40.
This article deals with the issue of divorce in Islam, because this issue is a burning issue in India now. It is a hot issue in India as the triple instant divorce was ruled as unconstitutional by a bench of judges in Supreme Court. And this is why this article has been prepared in this time particularly.
The Meaning of Talaq (Divorce) literally and in Terminology
Talaq (Divorce) in the Arabic language in general refers to abandoning, setting free or releasing.
However, in Islamic jurisprudential term, talaq means termination of the bond of marriage with a specific word by the husband. In other words, talaq is ending the legitimacy of sexual intercourse between husband and wife.
What is Talaq (Divorce)?
The verdict of Islamic Jurisprudence about divorce might be weird to some Muslims and non-Muslims in general when they will hear for the first time that if a Muslim husband says to his wife: “you are divorced” or “I have divorced you” or other phrases that have been assigned for divorce in Arabic or other languages of the world, the divorce becomes effective instantly, even if the husband has just pronounced the word to joke or laugh. This is the ruling in Islamic jurisprudence regarding pronouncing the phrase, irrespective of the fact that the husband said the word in the presence of his wife or in her absence or there was any witness or not, in all cases the phrase of divorce becomes effective. However, they may need to authenticate in a written form with the related official authorities. Once, the husband has uttered the phrases of divorce the couple becomes strange to each other and the blessed marriage relation is broken, and it is useless to say then:” I did not know the ruling,” “I did not mean it,” or “I love my wife.” Suppose, if both are living with each other as husband and wife after the divorce, they will be regarded as sinners in Islamic Shari`ah. If the divorce is revocable, the husband has the right to bring her back to the bond of marriage during the period of Iddah (waiting time for women after divorce). If the period of `Iddah elapses, the only legal way for them is to make a new marriage agreement with a new marriage gift to her with new witnesses. However, if the divorce has been made thrice, the wife will not be allowed to return to the same man again unless she gets married with another man by her free will and after that she again is divorced by her new husband by his free will without prior agreement. By then, she can return to her first man with new marriage.
Divorce is like a Knife
Divorce in Islam is like a knife that is used for kitchen purposes, and when it is used in good things it is good and useful, but sometimes the knife falls into the hand of a criminal who uses it to kill an innocent person and at that time the usage is evil and harmful.
If a husband uses the right of divorce to terminate the marriage relationship when the life of the couple becomes unbearable hell, and the continuation of life together as husband and wife becomes impossible for some true reason, like constant quarrel, infertility of one of the spouses or they do not want to stay together, at this time the divorce is a normal and becomes an important treatment of the problem. And if the right of divorce was used, at this time, it is surely good and beneficial. But, when the right of divorce is used to harass a woman or humiliate her or to cut the marital relationship without a valid and reasonable cause, then undoubtedly it is an evil act and harmful thing.
Divorce in Islamic law is a very serious issue. In fact, the option of divorce reflects the true inclination of Islam for solving some important problems in marital life.
Divorce via Telephone and Text messages
As all financial contracts and transactions are carried out through modern means, the same the divorce is effective through all means of modern social communication, through letters, text messages, telephone, email, etc.
Minimum and Maximum Number of Divorces
According to Islamic Shari`ah, the maximum number of divorces is three, the minimum is one. In addition, the divorce is of three categories; the first, the divorce that gives both the right of returning to each other with their personal and individual reconciliation and this is called in Islamic jurisprudence “Raj`ee Talaq” (revocable). The second is “Talaq Ba’in sughra” (semi-irrevocable) when the divorce takes place and the days of `iddah ends without returning the wife. In this case, they can make marriage again with new marriage contract. The third “Talaq Mughallazah” (irrevocable divorce), and this ruling comes when a husband divorces three times. In this case, they are not allowed to return to each other even with a new marriage, except after she gets married to another man and get divorced again.
We can liken the divorce in Islam to firing with a gun or throwing an arrow which will wound someone or something in, whether the archer is serious or just joking, it will leave its impact without doubt.
What is Talaq (Divorce) in Islam?
There is another classification of divorce in terms of agreeing or violating the teachings of Qur’an and Sunnah. From this angle, the divorce is three types: better, good, and bad.
The First Category of Divorce
The first category of divorce is that which is given by a husband to the wife during her purity from menstruation during which they did not have a sexual intercourse and she is left until her three periods are finished and now they became strange to each other.
The Second Category of Divorce
The second is the good and this is when a husband divorces his wife thrice distributed on three periods, each divorce on each period of purity from her menstruation.
The Third Category of Divorce
The third is the bad or heretical one which this applies when a husband divorces his wife randomly three divorces in one phrase, such as: “Three divorces are to you” or “I divorce you the three divorces”. And the question is if a husband divorces his wife the three divorces in one word or on the bad way what is the ruling? Is the divorce effective or not, will the divorce be counted or not. In this regard, the four authentic schools of Islamic jurisprudence view that the divorce is effective and the wife and husband become strange to each other, however, the husband is sinner and violator the tradition of the Prophet (peace be upon him).
Different Schools of Islamic Jurisprudence on the Instant Triple Talaq
It is worth-mentioning that the instant triple talaq is a disputed issue amongst the Muslim jurists. And there is more than one opinion in this subject.
One of the opinions says that the way of divorce is deifying the instruction of Islamic Shari`ah, therefore, the instant triple talaq is nothing, fruitless and useless and no divorce will happen. This view has been attributed to some Tabi`een or the students of the companions of the Prophet Muhammad (peace be upon him).
In addition, there is another opinion that concludes that in the case of instant triple talaq only one divorce will occur and the spouses can reconcile with each other and they will remain husband and wife. And this conclusion has been attributed to Ibn Taymiyah (1263- 1328 A.D.) and his pupil Ibn al-Qayyim((1292–1350 A.D.) the famous and great scholars of Islam.
Nevertheless, the issue of talaq (divorce) belongs to the Muslims, and the ruling is one of the Islamic personal laws of the Muslim family, so it is unreasonable to intervene in this matter by any party except the Muslim scholars and jurists.
It is noteworthy that this is the issue the Indian bench of judges has regarded as unconstitutional. The triple talaq or instant talaq in Islam is a burning issue in India.
The Right of Divorce for Woman
It is noteworthy that a wife also has the right of separation from her husband which is called in Islamic jurisprudence “Khul`a”. So Khul`a is not instant but it is a procedure through which a woman can divorce her husband. In Islam, the right of khula` for a wife refutes the claim of some people who think that a wife has no right to divorce even if she is not happy with her husband or if there is an irremediable marital problem. Divorce in Islam is like a bitter medicine or surgery, which is used only when it is necessary. However, some Muslims now use divorce as the food, not like the medicine and this is the real problem. As well as, the divorce is the most detest thing to Allah the Almighty. Allah has permitted for divorce but that does not mean that it is something pleasant to Allah and the Messenger (peace be upon him).
Divorce in Hinduism
In this context, it is necessary to refer to the idea of divorce in Hinduism. In fact, the ancient Hindu literature does not have the concept of divorce as well as the Sanskrit and Hindi language is void of the word of talaq or divorce. The word talaq in Hindi now has been borrowed from Arabic and Urdu. According to Hinduism, if her husband dies, she must burn herself with her husband’s dead body and this is called Sati. On the other hand, some Hindu commentators think that the burning in Sati tradition is metaphor that means a widow has to burn her desires in life totally. If she lives, lives like a dead, her eating must be simple away from pleasure and her dress must be free of adornment, as it is not permissible for her to marry a second marriage. Additionally a wife may establish a sexual relationship with a foreign man to obtain children if her husband is barren and this is called Neog and the type of sexual intercourse is permissible, rather a meritorious action. However, there is a clear change in the tradition of Sati and in the prohibition of second marriage for a woman specially after the advent of Islam to the Indian subcontinent.
What is Halalah in Islam?
Halalah is the second marriage of a woman who was divorced three divorces from her husband and became strange to him and both became separated. After that the woman was married to another man with her choice and free will but by chance the second marriage was also unsuccessful and ended on divorce, then the divorced woman after waiting three periods is allowed to return to first husband through a new marriage. The marriage of the divorcee with another man without prior agreement for divorce is called Halalah (permission) because this marriage if divorce follows is permission for her to return to the first Husband.
Is Halalah Permissible in Islam?
The scholars of Islam view that marriage for a fixed time or temporary marriage is prohibited and against the Islamic law, and if any person marries for definite period, or intends to become a mediator and justification for her return to the first husband -as sometimes happens in Muslim families in India- is not permissible in Islam, rather, this act causes the anger of Allah the Almighty and everyone who conducts or officiates such marriages deserves curse from Allah the Almighty.
The issue of instant triple talaq (divorce) is surely contrary to the spirit of Islamic law. The husband who gives three divorces in one word in one sitting is sinful and blameworthy before Allah the Almighty, because he violated the divine guidance and the command of the Prophet Muhammad (peace be upon him) although the divorce is effective. If a person utters foul word or insulting phrase the word will hurt the addressee who will be angry once the word is heard and the excuse of ignorance and forgetfulness will not work. It is recommended for the girls and boys who are ready for marriage to study the issues of divorce and marriage, rights and duties, because this will help to continue the marital relationship and avoid the family problems. The solution is not to cancel the triple instant divorces, if people began violating the traffic rules we will not abolish the traffic rules rather we will try to make people aware of the rules.