Nikaḥ– a blessing: Nikah or marriage is a great blessing of Allah which, as required, should be maintained with care. Allah, the Exalted, reminds us of the virtues of this blessing: “And of His signs is that He created for you, from yourselves, mates that you may find tranquillity in them; and He placed between you affection and mercy. Indeed in that are signs for the people who think.” (30:21) Allah, the Exalted, made marriage a virtuous permissible act for many reasons. He wanted man to endure as His vicegerent on the earth enforcing the laws ordained by Him and reforming whatever corruption takes place in it, and for the very reason, the Divine Wisdom ordained Nikah, a firm union of man and woman, as a polite process of human procreation along the other benefits that it has. A mere union of man and woman could assure a natural human procreation but it would not have procreated children who could reform the world and enforce the Divine Law in it; Nikah was the way to insure procreation of such a pious generation.
Islam has laid much emphasis on maintaining the sacred bond of marriage with utmost care so that no one dares to break the tie, for it not only affects the couple but also renders life of the children miserable and causes tension between the families. Islam has, therefore, set up clear directives for both husband and wife to sustain and strengthen the bond.
If any misunderstanding arises between a husband and wife, they first should try to sort it out on their own. If it is the wife’s fault, the husband should, according to Islam, makes her realize the fault in a kind or harsh manner as required. On the other hand, a husband is asked not to take his wife as a maid servant; she does indeed have rights over her husband that must be fulfilled. Besides providing proper accommodation and maintenance, she also deserves attention and care in respect of other physical and mental needs. As a Ḥadith says that the best among people are those who are the best to their families, apparently a person cannot be a good person in the views of his family if he does not fulfil the rights.
Ṭalaq– a necessary evil: If a couple fails to sort out a disagreement that has occurred between them on their own, they should reach out to the elders from both the families to reconcile between them. In short, utmost care should be taken in respect of mending and maintaining the tie. However, sometimes the situation worsens day by day and all attempts by the couple and their families turn to be unsuccessful and it seems more appropriate to break the tie than keeping it. At this point, Islam allows the husband to break the marriage in a manner stipulated by the Shariah, and this process of breaking the tie is called Ṭalaq (divorce). The best way to apply Ṭalaq is to pronounce only one Ṭalaq observing two conditions: (1) when the wife is in ritually pure condition (i.e. not in her menstrual cycle) and (2) the husband has not had sex with her in that ritually pure period. In this case, it will be a revocable divorce and the husband, if he wants, may resume his marital relation with his wife without having to reconduct the Nikaḥ. The couple may even remarry if the expiration of the waiting period called Iddah is over. Though the wife divorced in this manner may marry someone else yet it, at the same time, allows the couple to reconduct the marriage and resume the relationship.
Ṭalaq – the unilateral right of the man to divorce his wife: Manas compared to woman usually has a better ability when it comes to take a serious decision. A comparative study of men and women in terms of their respective physical, emotional and intellectual strength and weakness is enough to make one realize that men do indeed have more strength and ability to carry our great especially the hard tasks which are usually very difficult for women to do and therefore men are supposed to rule and take care of them and the other affairs. Better than trying to act like a ‘rationalist’, we should try to reflect over what the Creator of men and women says in this regard. It is narrated in the Holy Quran: “But the men have a degree over them [in responsibility and authority].” (2:228) and “Men are in charge of women.” (4:34) The Qur’an is clear in that men should lead women in the journey of life and take decisions when required though they should at the same time consult and ask their women as to what they see in the matter concerned. That is the reason only men are given the right to give divorce.
Khul’ (or Khula as usually pronounced): On the other hand, it is not that women have been deprived of the right to separation in the absolute sense. If a wife wants separation, either because her husband is not fulfilling her rights or for some other reason, she is entitled by the Shariah to demand divorce from her husband. If it is proved that the woman is really oppressed, the man is required to fulfil her rights that she is entitled to as per the Shariah or answer to her demand for divorce without or with an exchange of an agreed upon amount of money. But if the husband refuses to give divorce, the wife may consult a Shariah court or council so that the Qaḍi (Islamic judge) may force the husband to divorce his wife. Thus the wife will be considered a divorcee and may marry some other man after completion of her Iddah- the post-divorce waiting period. Khul’ entails Ṭalaq Ba’in, an irrevocable divorcewhich implies that if the man and woman (who are no longer husband and wife) want to live together again, the husband cannot take her back as his wife without reconducting Nikah with consent of both the parties.
Types of Ṭalaq: Ṭalaq basically is divided into three types: Ṭalaq Raj’i (revocable), Ṭalaq Ba’in (minor irrevocable) and Ṭalaq Mughallaẓ (major irrevocable).
Ṭalaq Raj’i: Using clear unambiguous terms in divorce such as ‘I divorce you’, is called Ṭalaq Raj’i which does not terminate the bond with immediate effect but lets it last until the period of Iddah– the post-divorce waiting period– is over, hence the man may reunite, if he wants, with his wife anytime within Iddah without having to reconduct the Nikah as marriage is still intact. In doing so, consent of the wife is not required as per the Shariah.
Ṭalaq Ba’in: Using words that do not explicitly imply divorce such as ‘Go to your mom’s or ‘I have left you’, entail irrevocable divorce provided such words are uttered with the intention of divorce. This will terminate the marriage with immediate effect and the only way left for the couple to reunite is by reconducting the Nikah.
Ṭalaq Mughallẓ: Giving three Ṭalaqs altogether or separately whether in one sitting or more is called Ṭalaq Mughallẓ, resulting in termination of the bond with immediate effect as well as prohibition of reconducting the Nikah for the couple unless the conditions of Shar’i Ḥalalah are fulfilled which then will permit them to marry again. To explain it further, if the divorcee wife marries some other man on her own and has sex with her new husband and then the man dies or divorces her of his own free will, it will permit her ex-husband to marry her again after termination of her Iddah, the waiting period she has to observe after divorce by her second husband or his death. Allah, the Exalted, says in the Qur’an:“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 .” (2:230) This is what Ḥalalah means as stipulated in the Qur’an. The following conditions must be met for Ḥalalah to be valid: (1) The second Nikah must be conducted in accordance with the Shariah (2) The second husband must have had sex with her (3) The second husband must have divorced her of his own free will or passes away and (4) She must have completed her ‘Iddah. Conditional Nikah under the pretext of Ḥalalah is forbidden.
Three Ṭalaqs in one go: There is no significant difference of opinions among the scholars on rulings related to Ṭalaq Raj’i and Ṭalaq Ba’in. There is, however, no difference either between the jurists if a person gives Ṭalaq, which itself is the least liked action among all the permissible acts, in an unapproved way such as divorcing thrice when the woman is in her menstrual period, or divorcing three times separately in the same period of ritual purity (ṭahur– when a woman is not in her menstrual period) or divorcing three times separately in three different periods of ritual purity in which he has had sex with her or pronounces three divorces in one go, the Ummah unanimously agrees that in all the above cases three Ṭalaqs will occur except in one which has been disputed over i.e. triple divorce or three Ṭalaqs issued in one sitting. If a person gives three Ṭalaqs in one sitting, according to the majority of the scholars all the three will take effect. The same has been reported to be the opinion of ʿUmar, ʿUthman, ʿAli, ʿAbdullah ibn ʿAbbas, ʿAbdullah ibn ʿUmar, ʿAbdullah ibn ʿAmr, and ʿAbdullah ibn Masʿūd (may Allah be pleased with them) from among the jurist Companions. Besides, all the four leading scholars namely Imam Abū Ḥanfifah, Imam Malik, Imam al-Shafi’i and Imam Aḥmad ibn Ḥanbal unanimously held that three divorces in one sitting will take effect. The Islamic scholars in India, Pakistan, Bangladesh and Afghanistan also advocate the same. Having discussed the issue in 1393 AH in Saudi Arabia, a prominent group of scholars also concluded that in the light of the Qur’an and Sunnah and as reported from the Companions, the Successors and the later scholars three divorces issued in one sitting altogether will take effect. However, an insignificant group of scholars from among the Ghair Muqallidin (or Ahl-e-Ḥadith as they call themselves) opine that in the case in discussion only one will take place, relying on arguments that have been rejected by the majority of the scholars of Ḥadith and Fiqh.
As discussed, the Ummah throughout the centuries has been maintaining that triple Ṭalaq in one go will be counted as three according to the Qur’an and Sunnah. Hence, if a person gives three Ṭalaqs in one sitting, he will no longer have the choice to reunite with her wife, not even by reconducting Nikah with mutual consent. He may, however, marry her again if conditions of Ḥalalah are fulfilled, as mentioned above, in accordance with the Shariah i.e. when she marries another man who then have sex with her and then divorces her of his own free will or dies, only then it will be permissible for the former to marry her ex-wife once she completes her ‘Iddah. Many such cases occurred during the caliphate of ʿUmar al-Faruq (may Allah be pleased with him) and each time they were decreed as three and not a single Companion is reported to object the decree. Later on, the majority of the scholars including the four Imams and their able disciples adopted the same. We deliberately avoided substantiating the issue with relevant evidences as we intended not to make it a lengthy discussion. Those interested may check my article on the same (The Issue of Triple Ṭalaq) in which I have included the verdict issued by the Saudi scholars that contains all the related evidences.
‘Iddah– a Divine enjoinment: ‘Iddah (literally ‘counting’) refers to the period of time that follows a woman’s divorce or death of her husband in which she is obliged to observe certain specific rulings enjoined by the Shariah. The length of this waiting period may vary somewhat based on the reason of separation and biological condition of the divorcee or widow. In line with the Qur’anic and Prophetic injunctions, the whole Ummah is unanimous on that a woman must observe her ‘Iddahas a religious obligation (wajib/farḍ) following the death of her husband or separation by way of Ṭalaq or Khul’. Thus observing ‘Iddah becomes obligatory for two reasons:
‘Iddah after the death of husband: If the wife happens to be pregnant at the time his husband dies, she will observe ‘Iddah till the child is born irrespective of the length of the period i.e. no matter the remaining time of pregnancy exceeds four months and ten days or falls short of them. Allah, the Exalted, says: “And for those who are pregnant, their term is until they give birth.” (65:4) The verse unconditionally enjoins that a pregnant woman should observe ‘Iddah till she gives birth whether she is a widow or a divorcee as it has also been clearly mentioned in the Ahadith. If a widow is not pregnant then she will have to observe ‘Iddah for four months and ten days whether she menstruates or not and whether she has had a chance of completely undisturbed privacy (khalwat ṣaḥiḥah) or not. Allah, the Exalted, says in the Qur’an: “And those who are taken in death among you and leave wives behind – they, [the wives, shall] wait four months and ten [days].” (2:234)
‘Iddah for separation by way of Ṭalaq or Khul’: If a woman happens to be pregnant at the time of Ṭalaq or Khul’, she will observe ‘Iddah till the child is born whether it exceeds three months or falls short of them as Allah, the Exalted, said: “And for those who are pregnant, their term is until they give birth.” (65:4) If she realizes to be pregnant a few days later after divorce or her husband’s death, she will observe ‘Iddah for all the remaining months even if it lasts 9 months. As for a woman who was not pregnant when separation either by Ṭalaq or Khul’ took place, then if she is a menstruating lady, she will observe ‘Iddah for consecutive three menstrual cycles in line with the Qur’anic injunction:“Divorced women shall wait concerning themselves for three monthly periods.” (2:228)Once the third period is over, she will come out of her ‘Iddah. Apparently since the length of menstrual cycle varies from woman to woman, ‘Iddah of menstruating women may last more or less than three months.
A divorcee who isn’t menstruating or has entered menopause, will be obliged to observe three months as the waiting period as Allah, the Exalted, says: “And those who no longer expect menstruation among your women – if you doubt, then their period is three months, and [also for] those who have not menstruated.” (65:4)
There is no ‘Iddah for a woman who has been divorced after Nikah before presumptive consummation of marriage (khalwat ṣaḥiḥah) as the Qur’an says: “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.” (33:49) There is no ‘Iddah for a divorcee if it takes place before Khalwat Saḥiḥah but a window must observe even if her husband dies before presumptive consummation of marriage. In view of the general meaning of verse 234 of Surat al-Baqarah and the Prophetic injunctions reported in this connection, the whole Ummah is unanimous on that if a woman is divorced after marriage yet before Khalwat Saḥiḥah she will be entitled to half the amount of Mahr.
Wisdom behind the enjoinment of ‘Iddah: The mandate of ‘Iddah has a lot of benefits with respect to our worldly life as well as the life to come of which we want to mention a few: (1) Observing ‘Iddah helps one to attain pleasure of Allah by way of acting upon his command for obedience to Allah is worship and worship brings one closer to Him (2) To make sure about pregnancy of the woman concerned so as to eliminate any potential doubt concerning the father of the child [if the woman were to remarry and get pregnant right away](3) To exemplify the gravity of being deprived of a great blessing of Allah. (4) To make people realize the importance and sanctity of Nikaḥ so as toprevent them from taking marriage to be a light affair. (5) To let the woman live some time with the memory of her husband whom she has lost and slowly get over her grief.
Some related rulings:
The ‘Iddat period begins immediately after divorce of a woman or death of her husband even if she comes to know about it later.
A divorcee or a widow must not leave her house until the period is over.
If she finds it difficult to observe her ‘Iddah at her marital home, she may spend the period at her paternal home or even somewhere else. (Al-Qur’an, 65:1 )
It is not allowed for a divorcee or widow to get married before termination of the ‘Iddah period. However, one may make an allusive proposal to her. (Al-Qur’an, (2:234-235)
A woman in ‘Iddah following her husband’s death should avoid using perfume, adornments, kohl, oil that has fragrance, henna and attractive clothes.
If her husband passes away on the first day of a lunar month, she will calculate three months from that date, irrespective of whether the months are of 29 days or 30 days and thus her waiting period will be over on 11th (of the fifth Islamic lunar month following her husband’s death). But if the husband dies during the month, her ‘Iddah will be for 130 days. Some scholars, on the other hand, say that she will calculate fourth months from the day her husband died and then will add ten more days to complete the ‘Iddah. For example, if her husband passed away on 11th Muḥarram then she will come out of her ‘Iddah on 26th Jumada al-Ula.
Whether after divorce or death of her husband, if a woman neglects the mandate of ‘Iddah by not observing it at all or abandoning it midway through, it will be a grave sin on her part for violating the commandment of Allah. Such a woman must turn to Allah in repentance, seek forgiveness and complete her ‘Iddah.
It comes under the husband’s responsibility to provide his wife with maintenance as long as she is in ‘Iddah.
Mohammad Najeeb Qasmi (www.najeebqasmi.com)