Talaq – Men’s Right To Divorce

ozkan — Mon, 20 Dec 2010 21:10:05 +0000

The Glorified Allah commands: “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)

According to Qur’an ‘talaq’ is a right possessed by the men. This is because the accomplisher of all the requirements about ‘talaq’ are men. Women’s right to divorce is called ‘iftidaa’. ‘Iftidaa’ will be explained later. In the verse above the Glorified Allah commands:

The prefix ___= elif’lam, in the merratan verse of _______= et-Talaqu, 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 Talaq. The Glorified Allah commands:

“O Prophet! When you divorce women, divorce them taking notice of their prescribed time, and calculate the number of the days prescribed. Be careful of (your duty to) Allah, your Lord. Do not drive them out of their houses, nor should they themselves go forth, unless they commit an open indecency; and these are the limits of Allah, and whoever goes beyond the limits of Allah, he indeed does injustice to his own soul. You do not know that Allah may after that bring about reunion.
[65.2] So when they have reached their prescribed time, then retain them with kindness( Maruf)[1] or separate them with kindness, and call to witness two men of justice from among you, and give upright testimony for Allah. With that is admonished he who believes in Allah and the latter day; and whoever is careful of (his duty to) Allah, He will make for him an outlet,
[65.3] And give him sustenance from whence he thinks not; and whoever trusts in Allah, He is sufficient for him; surely Allah attains His purpose; Allah indeed has appointed a standard for everything.” (Talaq/Divorce 65/1-3)

Just the way He did for everything, Allah has drawn the necessary boundaries of divorce. Abdullah, son of Omer divorced his wife while she was having menstruation. When Omer asked this issue to the Messenger of Allah (s.a.v.), 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 menstrual discharge, he can either carry on their relationship or divorce without having sexual relationship. This is the prescribed duration Allah commands to be respected in case you divorce your wife.[2]” Abdullah b. Omer 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 prescribed time”. Thus, divorce them at the beginning of the prescribed period.[3]”

In other words, “…taking notice of their prescribed time…” means that in case of divorcing your wife, it is necessary that she is not on her menstruation and that she had no sexual relationship with her husband during her clean period. It has been related that the Messenger of Allah (s.a.v.) was very disturbed by the fact that the divorce of Abdullah b. Omer was not accomplished in compliance with the boundaries set by Allah[4]. Probably this is the reason he penalized Abdullah b. Omer 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 menstrual discharge. 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 the wife from the husband when she is on her menstrual discharge, encountered with the impossibility of a sexual intercourse forms a natural obstacle in front of the divorce.

With the ‘talaq’, the wife waits for the prescribed time in the home of her husband. This period is three clean periods long, naturally including three menstrual discharges for those who have a regular menstrual cycle. Those who have irregular menstruations 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 prescribed time” is:

Take account of the prescribed time
Do not drive her out of the house
The woman herself should not abandon the house
At the end of the prescribed time, reconsider the decision and decide between keeping her with kindness or separate with kindness
Asking the presence of two witnesses

Taking notice of the prescribed time 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 prescribed time, 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 Glorified Allah commands: “It is not lawful for them that they should conceal what Allah has created in their wombs” (Al Baqara/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. The concealing of 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 discharge.

It is important for the couple not to separate till the end of the prescribed time. 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 goes beyond the limits of Allah, 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 prescribed time 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 prescribed time or just in order to harm his wife. The Glorified Allah commands: “And when you divorce women and they reach their prescribed time, 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 Glorified Allah 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, those of the ignorance era, 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 Glorified Allah 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: “Allah indeed has appointed a standard for everything.” (Talaq/Divorce 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 within 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 taking notice of their prescribed time.” (Talak/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 Friends of the Prophet

According to the relation of Ibn Abbas, during the period of the leadership of the Messenger of Allah, during the leadership of Ebu Bekr and during the first two years of Omer’s leadership three divorces –verbally announced at the same time- corresponded to a single one. The son of Hattab, Omer, 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 Glorified Allah commands: “And whoever is cautious (for his duty) to Allah, He will make for him an outlet” (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 Glorified Allah commands: “O Prophet! When you divorce women, divorce them taking notice of their prescribed time.” (Talaq/Divorce 65/1)[13].

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

28.3. The Period of Fukaha

All the sects, Hanefi, Shafii, Maliki and Hanbelli considered the three divorced pronounced verbally at once as three divorces. In other words, if a certain man told his wife “I divorced you with three divorces” or “I divorced you thrice”, even if the wife was during her menstrual discharge or cleansed, even if they had had any sexual intercourse during the cleansed period the wife was at, or even if they had never had any 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 ‘_’ in this verse: “______________________That divorce (talaq) may be (pronounced) two times (twice)” (Al-Baqara/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 ‘_’ stands for gender had no other choice but to transform totally this sentence of the verse. Serahsi declares: “The mubah number of divorces is two times and there is the third time.[15]” The addition “there is the third time” has been encompassed to this verse from the commands of the 230^th verse of Al-Baqara: “So if the man divorces his wife once more…” If there exists such a necessity as to encompass this phrase to the previous verse, then the possibility that the sign ‘_’ might stand to demonstrate gender is immediately excluded, as _____________ is a noun sentence. It shows continuity and ‘subut’ (coherence). Everyone who knows Arabic is able to notice and understand the mistake here.

According to Ibn-I 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 are the theologians, which declared that the word ___ =merra in the verse __________ points to the presence of phases, as well. El-Kasani from the Hanifi sect declares: “The command ‘That divorce (talaq) may be (pronounced) two times (twice)’ of the Glorified Allah means into two phases. If a man gives to another two grams of something, it can’t be concluded that he gave him something twice for as long as it hasn’t been given into two different periods. The structure of the verse is both that of the informing statement and that of an imperative commanding sentence. So, the verse by encompassing the structure of a statement, the information included cannot possibly be in contradiction with the command, while the individual can, because in certain times, more than one divorce can be given at the same time. There are times when the informing statement is used instead of or as an imperative statement[17]. So that, “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 with this same structure. But, it is incorrect to interpret the previous verse as the Glorified Allah 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 adequate 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 adequate”. 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 altered. 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 __=merra, nor did they underline the connection of the 229^th verse of Al-Baqara with the surah Talak[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: “_____________= That divorce (talaq) may be (pronounced) two times (twice)” (Al-Baqara/The Cow 2/229), the word ‘_’ translated as ‘times’ stands for period and phase including the meaning ‘__________=cuz’un mine’z-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 prescribed time. The next verse is like this:

“So when they (the women) have reached their prescribed time, 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 the prescribed time.

[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, Talak, 1, 3, 44, 45; TEFSİRU Sureti-t Talak, 1; Muslim, Talak 1, 14. Nesai, Talak, 13, 15, 19, İbn Madje, Talak, 1, 3; Darimi, Talak 1, 2. Muvatta, Talak 53; Ebu Davud, Talak 4. Tirmidi, Talak. (The paragraphe is the Translation of Bukhari, Talak 1.)

[3] Ebu Davud, Talak, 4.

[4] Bukhari, Ahkam, 13.

[5] Bakara-The Cow 2/229; Talak-Divorce 65/4.

[6] Bakara-The Cow, 2/231; Talak-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] Kehf, 18/66-78

[10] Ebu Davud, Talak, 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, Talak, 2. Nesai, Talak, 8; Ebu Davud, Talak, 10.

[13] Ebu Davud, Talak, 10.

[14] Muvatta, Talak, 1.

[15] Es-Serahsi, el-Mebsut, Bokk 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] Bakara, The Cow, 2/228

[19] Bakara, 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] El MUvatta, Talaq 11.

Talak- the man’s right to divorce

ozkan — Tue, 25 Aug 2009 14:41:12 +0000

The Glorified Allah commands:

“That divorce (talak) 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)

According to Qur’an the ‘talak’ is a right possessed by the man. This because the accomplisher of all the requirements related with ‘talak’ are the men. The woman’s right to divorce is called ‘iftida’. ‘Iftida’ has been explained in another chapter.

The Glorified Allah commands:

“O Prophet! When you divorce women, divorce them taking notice of their prescribed time, and calculate the number of the days prescribed. Be careful of (your duty to) Allah, your Lord. Do not drive them out of their houses, nor should they themselves go forth, unless they commit an open indecency; and these are the limits of Allah, and whoever goes beyond the limits of Allah, he indeed does injustice to his own soul. You do not know that Allah may after that bring about reunion. [65.2] So when they have reached their prescribed time, then retain them with kindness( Maruf) or separate them with kindness, and call to witness two men of justice from among you, and give upright testimony for Allah. With that is admonished he who believes in Allah and the latter day; and whoever is careful of (his duty to) Allah, He will make for him an outlet, [65.3] And give him sustenance from whence he thinks not; and whoever trusts in Allah, He is sufficient for him; surely Allah attains His purpose; Allah indeed has appointed a standard for everything.” (Talak/ 65/1-3)

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

Take account of the prescribed time
Not drive her out of the house
The woman herself shouldn’t abandon the house
At the end of the prescribed time, reconsider the decision and decide between keeping her with kindness or separate with kindness
Asking the presence of two witnesses

The taking notice of the prescribed time is a responsibility given to the man. If he decides to return to his wife, the man should do this in compliance to the Maruf. In contrary, if he decides to divorce he should do this with kindness. He cannot attempt a returning back to his wife just to prolong the prescribed time or just in order to harm his wife. The Glorified Allah commands: “And when you divorce women and they reach their prescribed time, 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 the good intention. He can return back to his wife without having to wait for the termination of the prescribed time. 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 verse: “That divorce (talak) may be (pronounced) two times (twice).” has made it possible to happen only twice. In contrary, women would be abused. Allah does not permit exploitation.

Islam and Qur'an » talak

Talaq – Men’s Right To Divorce

Talak- the man’s right to divorce