Talaq – Men’s Right To Divorce

 According to the Quran ‘talaq’ is a right possessed by the men. This is because the actor of all the actions about ‘talaq’ are men. Women’s right to divorce is called ‘iftidaa’, which is the subject of another article.

The Almighty God commands:

 الطَّلَاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ.

That divorce (talaq) may be (pronounced) two times (twice). After each of them, you may keep (her) in good fellowship or let (her) go with kindness” (Al Baqara/The Cow 2:229)

 

The prefix ال = al”= elif’lam of the expression  الطَّلاَقُ = al-Talaqu in the verse above is a prefix that expresses capability (and in English a defined pronoun) making the subject of the sentence ‘that divorce (talaq)’. The significance of ‘that divorce’ has been explained in the Surah At-Talaq.

 

The Almighty God commands:

 

يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ 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 ذَوَيْ عَدْلٍ مِنْكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ ذَلِكُمْ يُوعَظُ بِهِ مَنْ كَانَ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الْآَخِرِ 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.

 

O Prophet, when you [Muslims] divorce women, divorce them by regarding their waiting period and keep count of the waiting period, and fear Allah, your Lord. Do not turn them out of their [husbands’] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah. And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a [different] matter.

[65.2] And when they have fulfilled their term, either retain them according to acceptable terms (maruf) [1] or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah. That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah – He will make for him a way out.
[65.3] And will provide for him from where he does not expect. And whoever relies upon Allah – then He is sufficient for him. Indeed, Allah will accomplish His purpose. Indeed Allah has set a measure (qadr) for all things.
 ” (At-Talaq/ The Divorce 65:1-3)

 

Just the way He did for everything, Allah has drawn the necessary boundaries of divorce.

 

Abdullah, son of Umar divorced his wife while she was on her menstruation period. When Umar asked this issue to the Messenger of Allah (p.b.u.h.), he replied: “Tell him to return to his wife and not to separate till she gets cleansed. And after she gets cleansed once more following her next period, he can either carry on their relationship or divorce without having sexual relationship. This is the waiting period Allah commands to be respected in case you divorce your wife.[2]”

 

Abdullah b. Umar states: “Our Prophet accounted my divorce as invalid and read me this verse:
“O Prophet! When you divorce women, divorce them taking notice of their waiting period (iddat)”.
Thus, divorce them at the beginning of the waiting period.[3]”

 

In other words, “…taking notice of their waiting period…” means that in case of divorcing wives, it is necessary that she is not on her menstruation period and that she had no sexual relationship with her husband during her clean period.

 

It has been related that the Messenger of Allah (p.b.u.h.) was very disturbed that the divorce of Abdullah b. Umar was not accomplished in compliance with the boundaries set by God[4]. Probably this is the reason he penalized Abdullah b. Umar with an additional clean period of delay. As he told Abdullah that he could divorce his wife not after the cleansing followed by her first menstruation, but after the cleansing of the next menstruation.

 

Many are the profits hidden behind the command. The man might be uncomfortable due to impossibility of sexual relationship with his wife on her menstruation period. The time the woman is cleansed after her menstruation is when the man mostly desires her, a desire that diminishes after the sexual intercourse. Divorce of husband from the wife on her clean period and without having intercourse, is a natural obstacle in front of the divorce.

 

With the pronunciation of ‘talaq’, the wife waits for the prescribed time in the house of her husband. This period is three clean periods long, naturally including three menstruation for those who have a regular menstrual cycle. Those who have irregular menstruation are required to wait for three months and those who come out to be pregnant are required to wait to the end of their pregnancy[5].

 

The criteria to be accomplished after the command “divorce them taking notice of their waiting period” is:

  1. Count the waiting period
  2. Do not drive her out of the house
  3. The woman herself should not abandon the house
  4. At the end of the waiting period, reconsider the decision and decide between keeping her with kindness or separate with kindness
  5. Have two witnesses in presence both while divorcing and either while returning to or leaving her.

 

Taking notice of the waiting period is a responsibility given to the man. This is a task that requires him to be concerned with his wife with tenderness and not in distance. If he does not take account of the waiting period, he might lose his rights by exceeding this time. The woman is supposed to give righteous information to her husband in relation to their course.
The Almighty God commands:

 

It is not lawful for them that they should conceal what Allah has created in their wombs” (Al Baqarah/The Cow 2:228)

She sins if she negates being on her course when she in fact is.

 

Some thought that “what Allah created in their wombs” refers to the child. However, concealing a baby is impossible. And, no woman would desire to bear a fatherless child. The only thing a woman in the mentioned conditions can hide is her menstrual bleeding.

 

It is important for the couple not to separate till the end of the waiting period. If the woman leaves or is forced to leave, both of them might find themselves relating to other people the negative sides of their partners what would expand the aloofness between the two and would leave an open door to evil intentioned people. And they would be those who would bear the consequences. This is what the verse “Whoever oversteps the bounds of God, he indeed does injustice to his own soul.” signifies.

The husband during this period might reconsider and change his decision with a better one. During this period, the wife is given the opportunity to convince her husband to renounce from this decision. During the waiting period the husband might decide to return to his wife. There is no obstruction to the behavior of the woman toward her husband. According to her desire she might strive to obtain his interest.

 

If he decides to return to his wife, the man should do this in compliance to the Maruf. On the contrary, if he decides to divorce he should do this with kindness [6]. He cannot attempt to return to his wife just to prolong the waiting period or just in order to harm his wife.
The Almighty God commands:

And when you divorce women and they reach their waiting period, then either retain them in good fellowship or set them free with liberality, and do not retain them for injury, so that you exceed the limits, and whoever does this, he indeed is unjust to his own soul; and do not take Allah’s communications for a mockery, and remember the favor of Allah upon you, and that which He has revealed to you of the Book and the Wisdom, admonishing you thereby; and be careful (of your duty to) Allah, and know that Allah is the Knower of all things.” (Al Baqara/The Cow 2:231)

 

The returning of the man to his wife is totally related with good intention. He can return to his wife without having to wait for the termination of the prescribed time.

 

The Almighty God commands: “their husbands have a better right to take them back in meanwhile the prescribed time, if they wish for reconciliation.” (Al Baqara/The Cow 228).
So, the man can return to his wife for reconciliation at the end of the prescribed time or previously. If the woman proves that her husband’s returning is evil intentioned, she can reject him. The demonstration of evil intention is quite difficult.

 

The previous Arabs were aware of ‘talaq’, man’s right to divorce. But, there were no limits to this. The man maintained the right to divorce his wife and return to her during the prescribed time; he could do repetitively as often as he wished. Thus, he did not accomplish his duty as a husband, nor left his wife to marry to a different man. The man even maintained the right to prohibit his ex-wife to remarry or build a life after the prescribed time[7]. Islam limited the limitless right of ‘talaq’ to three and provided the husband with the right to return for reconciliation at the first two. Islam negated this previously given permission after the third divorce. Furthermore the man that divorces his wife without having experienced any sexual intercourse after she has been cleansed after her menstrual discharge has used one of his divorcing rights. The decision for divorce at the end of the prescribed time has nothing to do with this. If reconciliation is decided, it still practically is counted as a divorce, after which the marriage has been reconstructed.

 

Whatever related to this point were all about divorce itself.

The verse: “That divorce (talaq) may be (pronounced) two times (twice).” has made it possible to happen only twice. On the contrary, women would be abused. Allah does not permit exploitation.

 

The Almighty God commands:

So if he divorces her for the third time, she shall not be lawful to him afterwards[8] until she marries another husband; then if he divorces her there is no blame on them both if they return to each other (by marriage), if they think that they can keep within the limits of Allah,” (Al Baqara/The Cow 2/230)

 

Both during the divorce and during the process at the end of the prescribed time the presence of witnesses is required. So the start and the termination of the process are acknowledged and the possibility of the devastation of the rights of any of the parts is avoided. The fact that the Qur’an has no precise requirements for the presence of witnesses in the beginning of a marriage but requires them for the divorce demonstrates the great importance given to this specific issue.

As it is commanded, “Indeed Allah has set a measure (qadr) for all things (65:3), whatever explained to this point is component of this standard. All of them are demanding commands required to be accomplished in details.

 

The limitation of divorce to three times is in accordance with the human creation. The apology for a disagreeable act can be accepted twice at most, but it cannot be accepted the third time. This can be noticed even in the event that took place between Moses (a.s.) and Hidhir.

 

Once, Moses asked Hidhir: “Can I enjoin you to learn from you anything from the maturity and wisdom you were taught?” Hidhir replied: “Come with me, but you won’t be able to bear being with me. How can you possibly stand something you know nothing about its inner side? If you enjoin me don’t ask me questions till the moment I explain you what it is all about.” Moses (a.s.) had asked questions two times successively, so that Hidhir had told him: “If you ask one more question do not ask to stay with me anymore as you reached the maximum number (two) of forgiveness I can offer you.” After the third question Hidhir told Moses (a.s.): “This third time separates our paths from now and on.”[9] After the third time no apology or excuse is accepted. The same is valid for the divorce, after the third divorce declaration, the husband loses his right to apology and the partners divorce definitely. This divorce is in accordance with the human nature.

 

28.1. During the Period of the Prophet

According to Ibn Abbas Abdu Yezid divorced his wife, Ummu Rukane and married to a woman from the Muzeyne tribe. After a short time the woman had come to the Messenger of Allah with a hair in her hand and told him that the benefit she obtained from Abdu Yezid was not more than that hair in her hands, insinuating that Abdu Yezid was impotent and asking the Prophet to divorce them.

The Messenger of Allah (s.a.v.) had been deeply infuriated from all this. He had asked the son of the man, Rukane, and his brother to come and see him. Then he pointing to the children had asked the people present if they found the first in some traits and the other one in some other traits similar to Abdu Yezid. The presents had conceded.

The Messenger of Allah commanded Abdu Yezid to divorce her and he accomplished his requirement.

After that the Messenger of Allah told him: “Return to your previous wife, the mother of Rukane!”

Abdu Yezid replied: “O Messenger of Allah! I divorced her three times.”

The Messenger of Allah replied: “I know it. However return to her!” and right after read this verse: “O Prophet! When you divorce women, divorce them within their waiting period.” (Talaq/ Divorce 65:1)[10].

 

Still according to Ibn Abbas, the son of Abdu Yezid, Rukane, just like his father, divorced his wife three times as well and became very sorry for this action insufficiently weighed from his part. The Messenger of Allah asked him how he had divorced from this wife.

–         With three divorces, replied.

–         Were them all announced at the same time?

–         Yes.

–         Then it is one divorce and if you want to you can return to your wife.

He returned and reconciled immediately[11].

 

28.2. During the Period of the Companions

According to the relation of Ibn Abbas, during the period of the leadership of the Messenger of Allah, during the leadership of Abu Bekr and during the first two years of Umar’s leadership three divorces –verbally announced at the same time- corresponded to a single one. The son of Hattab, Umar, declared: “People are behaving swiftly in an issue they should be quite cautious. Is it possible to reshape this issue to their disadvantage?” And this is what he did[12].

After this the fatwa changed in an amazing manner. Even Abdullah b. Abbas, the raconteur of the previous hadiths changed his opinion. Mucahid relates: “Once I was in his company, when a man came and told Ibn Abbas that he had divorced his wife thrice. Ibn Abbas remained silent for a while. I thought that Ibn Abbas would direct the man back to his wife, in order to reconcile with her. Then he spoke: “One among you makes an irresponsible action and later starts to complain ‘Ibn Abbas!’, ‘Ibn Abbas!’.
The Almighty God commands: “And whoever fears Allah – He will make for him a way out.” (Talaq/Divorce 65/2).
You were not cautious in your behaviors toward Allah. This is why I couldn’t find you a way out of this trouble. You rebelled toward Lord. Now your wife is divorced from you.
The Almighty God commands: “O Prophet! When you divorce women, divorce them for their waiting period.” (Talaq/Divorce 65/1)[13].

It has been notified that that the fatwas given from Abdullah b. Umar, Abdullah b. Mes’ut, Umar b. Abdulaziz and Mervan b. El-Hakem have been in this direction[14].

 

28.3. The Period of Fuqaha (Scholars)

All the sects, Hanafi, Shafii, Maliki and Hanbali considered the three divorces pronounced at once as three divorces. In other words, if a man told his wife “I divorced you with three divorces” or “I divorced you thrice”, even if the wife was during her menstrual period or cleansed, or if they had sexual intercourse during the clean period of the wife, or if they had never had sexual intercourse during their whole matrimonial life, no matter how long it had been, the man was considered to have divorced his wife.

Some of those, who gave the fatwa in this direction, claim that the ‘ال’ in this verse: “الطلاق مرتان That divorce (talaq) may be (pronounced) two times (twice)” (Al-Baqarah/ The Cow 2:229) stands for gender.

 

According to this interpretation, the meaning of this verse becomes: “The man may divorce his wife two times, the utmost.” On the other hand, there is no contradiction about the fact that the divorce is of three announcements. For this reason those who claim that the ‘ال’ stands for gender had no other choice but to transform totally this sentence of the verse.

Sarakhsi declares:
“The mubah number of divorces is two times and there is the third time.[15]” The addition “there is the third time” was made to this expression by being cited from the verse 230th  of Al-Baqara: “So if the man divorces his wife once more…” If there is the necessity of adding this expression, then the possibility that the article ‘ال’ might point at the gender is immediately excluded, because الطلاق مرتان is a noun clause. It shows continuity and ‘subut’ (coherence). Everyone who knows Arabic is able to notice and understand the mistake here.

 

According to Ibn Humam this verse shows that the divorce in compliance with the sunnah is of two timely different announcements, as there are serious contradictions between scholars in relation to the divorce pronounced thrice in a single time[16]. This view is as unacceptable as the other, because the contradiction about the verses doesn’t affect the verses at all.

Many scholars declared that the word مرة=marra in the verse الطلاق مرتان points to the presence of time periods.

Al-Kasani of the Hanafi sect declares: “The command ‘That divorce (talaq) may be (pronounced) two times (twice)’ of the Almighty God means “it is at two times”. If a man gives another man two coins, it can’t be said that he gave him something twice, because it hasn’t been given at two different occasions. The structure of the verse is an affirmative noun clause. However, its meaning is imperative. Assigning the affirmative meaning to the sentence may cause the meaning of the sentence to be possibly in contradiction to the decree in the verse, because individuals can behave in contradiction to the verse by pronouncing more than one divorce at the same time. There are examples of affirmative statements being used as imperative statements [17]. For example, “The divorced women keep themselves in waiting for three courses…”[18] stands for “…they must wait for three courses”; while the verse “The mothers suckle their children for two whole years…[19]”, stands for “…they must suckle their children”.

There are numerous verses having this same structure. But, it is incorrect to interpret the previous verse as the Almighty God had commanded men ‘to divorce their wives twice, in case they wanted to divorce them’. The command to divorce their wives in two phases- into two different times- is a prohibition to announce the divorce twice at the same time, as they are in contradiction with each other. In that case the unification of divorces would be totally forbidden or considered prohibitive[20].

These scholars give one single support to this issue; this is the verbal command of the Prophet to announce the divorces separately. They claim that the command of doing them separately is a command that forbids the unified annunciation of divorces. This demonstrates that the unification of the divorces is forbidden or prohibitive[21]. So, the unified announcement of divorces although totally forbidden or prohibitive by religion becomes valid to be accomplished.

The unification of divorces would be forbidden by Allah and His Messenger, while the theologians would declare that “the divorce is both forbidden and valid”. In order to make such a declaration the interruption of the relationship between verses would not be sufficient, so the verse shown as evidence to this declaration would be necessary to be distorted. The result of this is that families can be destroyed in a moment. It is obvious that there is no way of such a view to be acceptable.

The commentators of the Qu’ran neither considered the meaning and the positioning of the word مرة=merra, nor did they underline the connection of the 229th verse of Al-Baqara with the surah Talaq[22].

The scholars instead of establishing rules should have endeavored to understand the Qur’an. The desire to establish laws and command has led the scholars to incorrect conclusions.

Despite all these clear verses, in contradiction to the Qur’an and to the human nature, in the current Islamic world the usage of all the three divorce announcements all at once, in other words the right of the man to tell his wife “I divorced you with three divorces” has been accepted from all the four famous sects and from the Zahiri sect. Now let’s evaluate the inaccuracy from another point of view.

In the verse: “الطلاق مرتان That divorce (talaq) may be (pronounced) two times (twice)” (2:229), the word ‘مرة ’ translated as ‘times’ stands for period and phase including the meaning ‘جزء من الزمان =cuz’un min az-zaman’[23]. In the first verse of the Surah Talaq it has been underlined and explained that this period is the prescribed time for women to wait. So the man may divorce his wife only once during the waiting period. The next verse is as follows:

“So when they (the women) have reached their waiting period, then retain them with kindness (Maruf)[24] or separate them with kindness…”

 

The verse which states “That divorce (talaq) may be (pronounced) two times (twice)” has commanded that a divorce of this type can be performed only two times. Therefore, a man cannot divorce his wife more than once during one waiting period.
The verse which states “That divorce (talaq) may be (pronounced) two times (twice)” has commanded that a divorce of this type can be performed only two times. Therefore a man cannot divorce his wife more than once during the waiting period.

[1] Maruf is something known as well. That knowledge comes from the tradition, laws or Holy Scriptures. That knowledge must be conform Qur’an and Messenger’s Teachings.
[2] Bukhari, Talaq, 1, 3, 44, 45; TEFSİRU Sureti-t Talaq, 1; Muslim, Talaq 1, 14. Nesai, Talaq, 13, 15, 19, İbn Madje, Talaq, 1, 3; Darimi, Talaq 1, 2. Muvatta, Talaq 53; Ebu Davud, Talaq 4. Tirmidi, Talaq. (The paragraphe is the Translation of Bukhari, Talaq 1.)
[3] Abu Dawood, Talaq, 4.
[4] Bukhari, Ahkam, 13.
[5] Baqara-The Cow 2/229; Talaq-Divorce 65/4.
[6] Baqara-The Cow, 2/231; Talaq-Divorce, 65/2
[7] Jassas, Ahkamu-l Qur’an, Book II, page 73; Rashit Riza, Tefsiru-l Menar. Kairo, Book III, page 38.
[8]This way the man has used the third and last right he had to divorce.
[9] Kahf, 18/66-78
[10] Ebu Davud, Talaq, 10.
[11] Ahmed b. Hanbel, Musned, 1/265. The author says that this hadeeth is absolutely sahih – term used for the hadeeths that are transmited from reliable sources.
[12] Muslim, Talaq, 2. Nesai, Talaq, 8; Ebu Davud, Talaq, 10.
[13] Ebu Davud, Talaq, 10.
[14] Al-Muwatta, Talaq, 1.
[15] Es-Sarakhsi, al-Mabsut, Book VI, page 5.
[16] Kemal b. el-Humam, Muhammed b. Abdilvahid es-Sivasi. Sharhu-l Fethu-l Kadir. Daru-l Firk. Beirut. Book IV. Page 70.
[17] The translation is done from the original version.
[18] Baqara, The Cow, 2/228
[19] Baqara, The Cow, 2/233
[20] El-Kasani, el- Bedaius-Sanai. Book III, Page 94.
[21] El-Kasani, el-Bedaius-Sanai, Book III page 94.
[22] The Commentaries that I read, are in the same lines. Ex. Kurtubi, İbn Kesir, Kadi Beydavi, Ebu’s Suud and Fethu-l Kadir
[23] Mufredat, M-R issue.
[24] Al-Muwatta, Talaq 11.
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Date: Apr 21, 2017
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