Triple Talaq under Islamic Shari’ah

Recently, I had a chance to follow the thread of a group discussion on a social site concerning a fatwa relating to triple talaq. I found that some persons who even don’t know the meaning of talaq considered it as their prerogative right to comment on the opinions of religious authorities. I would urge them not to indulge in commenting on such issues without an adequate knowledge of the Qur’an and Hadeeth.  However, if you have any confusion regarding any religious issue you should better consult with some learned theologian who will eliminate your doubts in the light of the Qur’an and Sunnah. Sometimes even theologians differ among themselves on minor issues but each of them bases his interpretation and judgement on the Qur’an and Hadeeth, though you may or may not agree with them. So before dwelling on the issue of talaq one should have full understanding of the nature of nikah (marriage contract) under the Shari’ah. In a nutshell, nikah is both a civil contract under the law between the spouses as well as a sacrament according to Sunnah of  the prophet (PBUH) and Islamic ethics.

Under the Shari’ah the bond of marriage is treated as a sacred, permanent and enduring bond between the spouses until death separates them. Its objective is maintenance of the family which is the very basis of human society and the essential condition of the perfection of humanity. At the same time, it is meant to seek the pleasure of Allah and emulate the Sunnah of his messenger (PBUH).Talaq which means a rupture of this bond and a breakdown of the family brings in its wake disastrous consequences for the spouses and creates dissensions among the respective kinsmen. It is for this reason that the Messenger of Allah (PBUH) pronounced that ofall the permissible things the most reprehensible (abghadh) before Allah is talaq(Abu Daud). Islamic scholars have, therefore, cautioned against pronouncing talaq even as a joke. With a view to maintaining a viable family system the Shari’ah has made ample provisions for managing intra-family conflicts. In case of dissension the nearoneshave to persuade them to reconcile and make peace. If it does not work arbitrators are taken from both sides to resolve their conflict.  If all efforts for reconciliation fail, dissolution of marriage becomes an inevitable relief for both husband and wife. For this,Shari’ah has made two provisions: Talaq and Khula’. However, pronouncing talaq is a prerogative, i.e. an exclusive right of the male because as compared with the female he has more understanding and more capacity of forbearance and tolerance. As declared in the Qur’an: “Men folk possess a degree (of superiority) over them(women)” (Al-Baqarah: 238). And similarly: “Men are the guardians of women”(An-Nisa: 34). However, in case of incompatibility or irreconcilability in marriage the women too have been granted a right to seek separation from the husband in lieu of some material consideration.  This is known as the right of Khula’. Although the husband has the prerogative of pronouncing talaq he does not have absolute freedom to pronounce talaq in whatever manner and at whatever time he likes. First of all, there is an emphatic prohibition against pronouncing talaq peremptorily, arbitrarily or in rage.  It is also forbidden to pronouncetalaq during her menstruation or during a period of purity when he has performed sexual intercourse with her because in this case the woman’s waiting period (‘iddat) may prolong unnecessarily. A fair and just method is that one should pronounce talaq during a period of purity when he has had no sexual intercourse with her and then remain separated from her. Now either of two stepsmay be taken by the husband following this action: (1) the husband can return to his divorced wife before the expiry of the period of ‘iddat by having sexual intercourse with her. In this case his former nikah with her remains intact or (2) he does not return to her until ‘iddat is complete. In this case marriage stands dissolved and there is no need to pronounce a talaq for a second and third time.  Even if he intends to pronounce talaq for a second and third time he should do so within two separate periods of purity. In addition, the right to return and retain the woman has been limited to two times so that the womenfolk are not subjected to harassment and oppression unfairly by pronouncing talaq again and again and then retaining them with a view to keep them as captives within the wedlock. This was the case before the relevant verses of Surah Al-Baqarah were revealed. Now the ordinance is that a woman can be divorced only twice. Then either she is to be retained according to custom or released in fairness. The thirdtalaq becomes final and irrevocable. Even if the husband and wife wish to unite afterwards it is forbidden and unlawful. The Qur’an declares: “If he divorced her (finally) she will not be licit for him unless she marries some other man” (Al-Baqarah: 230). Thus this is the only way, that after the expiry of her ‘iddat the divorced woman marry some other man and if perchance the second husband divorces her after consummation of marriage or dies then the woman can lawfully remarry her former husband. This is known in juristic parlance as Halalah. This Qur’anic injunction is meant to chastise the divorcer.

Now I come back to aberrant cases when a stupid or ignorant husband exercises his right (of giving talaq) in a manner which is contrary to the prescribed procedure. For instance, if he pronounces the tripletalaq in a single period of impurity, or pronounces it within a single period of purity at three different times, or pronounces it during three separate periods of purity during which he engaged in sexual intercourse with her, or pronounces triple talaq at one go at any time. Obviously, all such cases are aberrations and violative of the established procedure. But what is their consequence?

Scholars are agreed that barring talaq pronounced according to the prescribed procedure all instances of triple talaq pronounced irregularly will be treated as three talaq final and irrevocable. The same ruling applies when a person pronounces triple talaq in one sitting. According to the majority of theologians it will be regarded as three talaq and final and irrevocable. The stalwarts of Islam like Umar Faruq, Uthman, Ali, Abdullah Bin Abbas, Abdullah Bin Umar, Abdullah Bin ‘Amr, Abdullah Bin Masud (RA) and others were of the decided opinion that triple talaq pronounced at one go shall become final as three talaq. The leaders of the four principal juristic schools namely, Imam Abu Hanifah, Imam Malik, Imam Shafa’ee and Imam Ahmad bin Hanbal (RHA) held unanimously that triple talaqpronounced in one sitting shall be regarded as threetalaq. The matter was discussed in a conclave of Hai’atu Kibaril Ulama (The Council of Senior Theologians) of Saudi Arabia and after due deliberations declared that in the light of the Qur’an and Hadeeth talaq pronounced at one go shall have the effect of three talaq. These deliberations and their results were published in theMajallaal-Buhuthal-Islamiyyah of 1393 AH. Covering 150 pages this is regarded as an important scholarly document on this subject. Eminent scholars of Saudi Arabia who took part in these deliberations included: Sheikh Abdul Aziz bin Baz, Sheikh Abdullah bin Hamid, Sheikh Muhammad Al-Ameen Ash-Shanqeeti, Sheikh Suleiman bin Ubaid, Sheikh Abdullah Khayyat, Sheikh Muhammad Al-Harkan, Sheikh Ibrahim bin Muhammad Al Ash-Sheikh, Sheikh Abdur-Razzaq, Sheikh Saleh bin Ghassun, Sheikh Muhammad bin Jubair, Sheikh Abdul Majid Hassan, Sheikh Rashid bin Hunain, Sheikh Saleh bin Laheedan, Sheikh Mehdhar Aqeel, Sheikh Abdullah bin Ghadyan, and Sheikh Abdullah bin Al-Manee’.
A summary of the resolution of the Hai’atu Kibaril Ulamacan be seen on the following link:
http://islamtoday.net/bluetooth/artshow-32-6230.htm

In the light of the Qur’an and Hadeeth and keeping in view the rulings of the companions of the prophet (RA), their successors, and the successors of the successors, have resolved that triple talaq pronounced at one go shall have the effect of three talaq.  Saudi scholars have declared those two Ahadeeth of the prophet (PBUH) as weak and unreliable which have been cited by a group of dissenting theologians who hold triple talaq pronounced in a single sitting as a single talaq. In addition a large majority of the theologians in India, Pakistan, Bangladesh and Afghanistan hold the same opinion.

It follows that under the authority of the Qur’an and Hadeeth, the Islamic community has been unanimous during the past 1400 years over the issue that tripletalaq pronounced in one sitting is tantamount to threetalaq and forecloses the opportunity of raj’at or return to the divorced wife. The separated spouses become alien to each other for all practical purposes.  They cannot reunite by a fresh nikah if they desire so except by the procedure of Halalah as laid down in the Qur’an: “If he has (finally) divorced her then she will not be halaal for him afterwards unless she marries another person” (Al-Baqarah: 230).

Note: It is proven by history that during the reign of Umar Faruq (RA) triple talaq in one sitting was invariably treated as three talaq, final and irrevocable. None of the companions of the prophet (RA) diverged from this stand. There was a consensus of the community on this issue. The principal schools of fiqhare agreed on it.

I would, therefore, request the misguided persons not to post confusing and confounding comments on the social sites without adequate knowledge. They should desist from targeting Ulama because the Qur’an declares that “Verily of all my bondsmen Ulama are ones who fear me” (Al-Fatir: 28). I would, therefore, suggest that instead of initiating controversies on the internet they should better contact a learned ‘alim.

Report of the Saudi Council of Senior Theologians
A Synoptic View
By way of an introduction, I would like to mention that persons belonging to the school of ghairmuqallideen(non-conformists who do not adhere to any of the prevalent juristic schools) have made it their habit to insist on their orthodoxy and raise unnecessary controversies about minor or contentious matters. One of such matters is that of triple talaq pronounced at one go.  Going against the consensus of the great majority of the Islamic community they assert that triple talaqpronounced in one sitting should be treated as onetalaq. Flaunting their argument as the starting point of their assault against the Muslim personal law in India the anti-Muslim elements have come forward to reform the Muslim society through a purported “amendment” of the Muslim personal law. They contend that if in matter of talaq a departure can be made from confirmed rulings of past centuries then why departures could not be made in respect of other issues? The limit was crossed when the media turned a purely legal issue into an object of anti-Muslim political propaganda.  This is a great fitnah for the Muslim community.

Since the report of the deliberations of the Saudi Council of Grand Ulama published in Majallaal-Buhuthal- Islamiyyah volume 1, number 3 (later translated into Urdu and published by the Al-Majma’Al-Ilmi of Darul Uloom, Mau, India) constitutes a categorical rebuttal of the stand of those who regard the Saudies as their sectarian brothers as well as that of anti-Islamic elements who cite the example of modernistic Middle-eastern countries while pleading the case of reform of Indian Muslim society, we reproduce here its summary to counteract this fitnah.

The Non-Conformist Position
The non-conformists hold that utterance of the wordtalaq thrice constitutes but one talaq. They make the following arguments in favour of their position:

The Qur’an declares: “Talaq is in two instances then either retain them according to custom or release them in fairness” (Al-Baqarah: 230). They contend that according to this verse the legitimate form of talaq is that it should be pronounced in two separate instances [marratain]. Here the term “instances” has been used, not “utterances”. Then in the following verse it is ordained that if a husband divorced his wife she cannot become halaal for him unless she marries another husband”. The provision forraj’at is for two “instances” not for two “utterances.” It follows that talaq pronounced in three separate instances only is to be regarded as regular and proper. Therefore, utterance of talaq thrice in one instance constitutes but a single talaq.

Imam Muslim, in his collection (Saheeh), has cited Taoosbin Abbas (RA) as narrating that, during the period of the Messenger of Allah (PBUH), Abu Bakr (RA) and first two years of the reign of Umar (RA) pronouncement of triple talaqwas regarded as one talaq. Then Umar (RA) said that the people are taking precipitate action in a matter where they had a respite. Would it not be better to enforce it (triple talaq). So he enforced it”. Muslim has recorded another narration citing Ibne Abbas (RA): “Abus-Sahbaa asked Ibn Abbas (RA) don’t you know that during the reign of Abu Bakr (RA) and early days of the reign of Umar (RA) three talaq was regarded as one talaq. He replied yes. But when a large number of people began divorcing their women was the only pint that Umar (RA) got compelled to enforcethem as three divorces.

The above narration clearly establishes that utterance of talaq thrice at one go was regarded as one talaq and that this practice was not cancelled during the time of the prophet (PBUH) but continued during the reign of Abu Bakr (RA) and in the early days of the reign of Umar (RA). Then why treat the narration ofIbne Abbas (RA) as weak and unreliable.

Imam Ahmad in his Musnad narrated a tradition through ‘Akramah bin Abbas (RA) who told that “Rukanah Bin AbdYazid (RA) from Bani Al-Muttalib divorced his wife in a single sitting then he fell in deep grief for her. The Messenger of Allah (PBUH) asked him: How did you divorce her? He replied I divorced her thrice. Then the prophet (PBUH) asked him again: Did you divorce her in a single sitting? He replied, yes. Then the prophet (PBUH) said: “Verily it is a single divorce. You may return to her if you so wish”. Ibne Abbas (RA) narrated that he then returned to her.

Ibnul Qayyim has in his I’lamal-mauqa’ain mentioned that Imam Ahmad was convinced of the authority behind the authenticity of this Hadeeth. But HafizIbneHajr has Iin his Talkhees, page 319) has referred to aHadeeth of Musnad Ahmad as ma’lul[defective]. Hafiz zahabi has also considered it as one of the weak Ahadeeth of Abu Daud Ibn Al Hasseen. In view of these comments mere accuracy of sanad does not establish the authenticity of the narrative (A’lam Marfu’a: 25).

ImamTaimiyyah and Ibnul Qayyim and others have contended that during the reign of Abu Bakr (RA) and first two years of the reign of Umar (RA) triple talaq at one go was considered to be onetalaq. All opinions expressed by the companions of the prophet (RA) contrary to this practice are from the post-Umar (RA) period. Umar (RA) by enforcing three talaq rule intended to curb the malpractice of the day and did not mean to make it an immutable rule for all time to come.

The fifth argument of the opponents is that tripletalaq should be taken as analogous to multiple testimony of li’aan. If somebody says I testify four times that I have seen my wife committing adultery it will be counted as one testimony. Sheikh Shanqeeti (RHA) has rejected this analogy as dubious because a husband’s reliance on one testimony in li’aan is liable to be rejected while a single talaq becomes effective.

The Opinion of the Majority
The opinion of the majority of the companions of the prophet (RA), their successors and the leading jurisprudents is that triple talaq pronounced at one go effectuates three talaq at once. Their reasoning based on consensus and analogy is as follows:

The Qur’an says: “O prophet, when you people divorce women, divorce them at a time when the period of ‘Iddat(waiting period) may start. And count the period of ‘Iddat, and fear Allah, your Lord. Do not expel them from their houses, nor should they go out, unless they come up with a clearly shameless act. These are the limits prescribed by Allah. And whoever exceeds the limits prescribed by Allah wrongs his own self. You do not know (what will happen in future), it may be that Allah brings about a new situation thereafter, [for reconciliation] (At-Talaq: 1).This verse clearly specifies that Allah has permitted that talaq which is followed by ‘iddat (waiting period). A man has an option of returning to her before the expiry of ‘iddat or releasing her from marriage bond in fairness. Although this option cannot be exercised if triple talaq is pronounced at one go this verse implies that this will become effective. Had it not been so the divorcing man would not have been held guilty of committing atrocity on himself nor the door of coming back would have been closed on his face. The Qur’anic verse that “If a manfears Allah, He will make a way out (makhraj) for him. Ibne Abbas (RA) has interpreted makhraj in the sense of raj’at. Replying to a questioner who had divorced his wife thrice he said: “If a man fears Allah, He will make a way out for him”. Because you did not fear Allah, there is no way out for you. You defied Allah, therefore, your wife is separated from you. Now there is no doubt about it that anybody who has pronounced triple talaq to his wife has committed atrocity on his own self. Now, if somebody argues that tripletalaq must be construed as one talaq certainly he has not bothered to fear Allah and keep within limits so that Allah would make a way out for him.

In the collections of Bukhari and Muslim, Ayesha (RA) has been cited as narrating that “Once a man divorced his wife. Then she married another man who divorced her before contacting her sexually. The Messenger of Allah (PBUH) was asked whether she is halaal for the first husband. The prophet replied (PBUH): No, unless her nectar is tasted by the second husband like the first husband.”

Now if the narration of Ayesha (RA) is compared with that of Ibne Abbas (RA) two situations emerge: (1) either both mean by talaq triple talaqat one go, or (2) they mean three talaqpronounced in three separate instances. If the meaning is triple talaq at one go then the Hadeethof Ayesha (RA) is most reliable because of its unanimous narration. It clearly specifies that the divorced woman became haraam for the first husband in the consequence of triple talaq and cannot remarry her first husband unless she marries a second husband, has sexual engagement with him then is divorced by him. If on the contrary the narration of Ibne Abbas (RA) assumed three talaq pronounced in three different instances then to argue that triple talaq at one go means one talaq is absurd. Similarly to argue that the Hadeeth of Ayesha (RA) implies three different instances while the Hadeeth of Ibne Abbas (RA) refers to combined triple talaq is unjustified. In addition to the narration of Ayesha (RA) there are numerous other authenticAhadeeth which prove that triple talaqin one utterance becomes effective like three talaqpronounced in three separate instances.

Some jurists like Ibne Qudama Hanbali (RHA) have equated the right of divorce to the property right. Just as a property can be disposed of as a whole or in parts similarly a woman can be divorced by triple talaqcombined in one utterance or in three separate instances.

Barring some persons all scholars agree that talaqpronounced as a joke also becomes effective by virtue of a Hadeeth narrated by Abu Hurairah (RA), “There are three matters whose seriousness is seriousness and whose joke is seriousness: Divorce, marriage and raj’at.”

Ibne Qayyimand Qurtubi (RHA) have held that the majority of the companions of the Messenger of Allah (RA), their successors and the leaders of the four juristic schools agree on the principle that triple talaq of one utterance has the effect of three actual talaq and becomes final and irrevocable.

In the end the Council of Senior Theologians resolved that: “After examining the problem and exchanging opinions and reviewing the objections raised by some members the Council resolved to adopt the position that triple talaq of a single utterance becomes effective like three separate talaq (Majalla Al-Buhuth Al-Islami, vol. 1, no. 3, page 165).

Mohammad Najeeb Qasmi (www.najeebqasmi.com)

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