"Divorce is twice; then either to retain in the recognized manner or to release in fairness. And it is not lawful for you to take back anything from what you have given them, unless both apprehend that they would not beable to maintain the limits set by Allah. Now, if you apprehend that they would not maintain the limits set by Allah, then, there is no sin on them in what she gives up to secure her release. These are the limits set by Allah. Therefore, do not exceed them. And whosoever exceeds limits set by Allah, then, those are the transgressors. Thereafter, if he divorces her, she shall no longer remain lawful for him unless she marries a man other than him. Should he too divorce her, then there is no sin on them in their returning to each other, if they think they would maintain the limits set by Allah. And these are the limits set by Allah that He makes clear to a people who know." (2:229-230)

Commentary

The injunctions governing talaq (divorce) and nikah (marriage) appear in several verses throughout the Qur'an but the verses mentioned here consist of cardinal rules of procedure in cases of divorce. To understand these, it is necessary to know the status of Nikah in the Shari'ah of Islam.

Marriage, Divorce And The Rules Governing Them

One commonly known aspect of Nikah (marriage) is that of a mutual transaction and contract similar to transactions in buying and selling and in loans and payments. The second aspect is that of Sunnah and 'Ibadah. On this, there is a consensus of the whole ummah that nikah, being far above ordinary transactions and contracts, has the status of 'Ibadah and Sunnah (the act of worshipping Allah and following in the footsteps of the Prophet - sallallaahu 'alaihi wa sallam).

Therefore, in order that nikah be duly solemnized, there are, by the consensus of the ummah, some peculiar conditions which are not found in ordinary transactions of buying and selling.

First of all, nikah cannot take place between any man and any woman. Governing this, there is an absolute law of the Shari'ah under which several categories of men and women cannot be joined together in the bond of marriage.

Secondly, for all transactions and contracts, in order that they be concluded and finalized, witness is no condition. A witness is needed when parties differ, but nikah is not such a transaction. Here, in order that it be concluded, the physical presence of witnesses is a pre-condition. If a man and woman, the two of them mutually agree to have their marriage solemnized without witnesses, and even if, any one of the two never differs or retreats, that marriage is, according to the Shari'ah, still invalid, unless both respond to the proposal and acceptance before witnesses. However, the Sunnah is that 'nikah' must be solemnized with a public announcement. Similarly, there are many other conditions and rules of decorum that are either necessary or masnun in marriage.

According to Imam Abu Hanifah (ra), and several other leading Muslim jurists, the aspect of 'Ibadah (worship) and Sunnah in nikah dominates over the aspect of transaction and contract. Evidences from the Qur'an and Sunnah support it.

After this brief familiarity with the real nature of marriage, let us understand divorce. The outcome oftalaq (divorce) is to terminate the transaction and contract of nikdh (marriage). Just as the Shari'ah of Islam, by giving nikdh the status of an act of 'Ibadah, has kept it at a level higher than common transactions and contracts and has imposed on it several restrictions, very similarly, the termination of this deal has not been left free, as in common transactions, where the parties may terminate the deal as and when they elect to do so, and go on to make a fresh deal with someone else. It has rather made a pointedly wise legal framework which has been described in the verses under reference.

According to the drift of Islamic teachings, the transaction and contract of nikah should be for the whole life-span. The point of departure where it has to be broken or terminated should never be reached because the discontinuation of this deal affects not only the parties involved but goes on to destroy children, and their children, and at times, it may even cause whole families and tribes to end up with disturbed relations, which in turn, badly infects the whole society. Therefore, the teachings of the Qur'an and Sunnah have taken all necessary steps to remove impediments that may cause the breaking of this deal. The focal drive of instructions given in the Qur'an and Sunnah covering all problems and situations relating to the married couples is that this relationship should always keep on becoming stronger and stronger and may just never break. Should disagreements crop up, instructions were given to first try and understand each other's point of view and talk it out, and in the event of failure, ways of restraint, hard advice and warning were identified.

Should the tussle become serious and these elementary steps do not bring a resolution of crisis, the parties were then expected to set up a panel for arbitration comprising of the members of their immediate families who could help patch up the differences. The emphasis on making members of the family as sole arbitrators in the verse 'Then send one arbitrator from his people and one from her people' is certainly very wise since the tussle, if it escapes the immediate family circle, will only aggravate the situation and the parties may draw further apart.

But there are occasions and situations when all efforts for reconciliation fail and the parties in conflict rather than benefit by the desired results of the nikah relationship, feel that being married together is a mutual punishment. Under such conditions, terminating this husband-wife relationship becomes, in itself, a way-out promising comfort and peace for the parties. Therefore, the Shari'ah of Islam did not, as did some other religions, patently confirm that the marriage relationship must remain unbreakable under all conditions. Going a step ahead, it has framed a specific law for divorce and the dissolution of marriage. The right of divorce was given to man alone in whom the ingredients of thought, end-perception and forbearance were more pronounced than in a woman. This free choice was not given in the hands of women so that the disposition of being overtaken by transitory emotions, which is more pronounced in women as compared to men, may not become the cause of divorce.

But women too, were not totally deprived of this right lest they are left with no alternative but to keep groaning under the cruelty of her husband. She was given the right to take her case to a court presided by a judge who qualifies as such under the rules of Shari'ah, present her complaint, prove her case, and get the marriage annulled, or secure a divorce. Then, as it is, Allah Almighty did entrust man with the free choice of divorce, but at the very first instance, it was declared that the use of this choice was very much detested and disapproved in the sight of Allah. It was permitted only in extreme situations of compulsion. It appears in Hadith: "Divorce is the most detested of lawful things with Allah."

The second restriction placed stipulated that this choice should not be used in extreme anger or fleeting displeasure. It was due to this wisdom that the pronouncing of divorce was forbidden during the period of menstruation, as well as, during a tuhr (the state of purity) in which the husband has had sexual intercourse with the wife. The pronouncing of divorce during menstruation and in a tuhr marked by intimacy was forbidden on the basis that it would become the contributing reason to elongate the 'iddah or 'waiting period' of the woman, which will aggravate her pain and worry. For these two situations, the noble Qur'an has this to say: Divorce ~ if it has to be given ~ should be given at a time when the 'iddah of the woman does not become longer without any reason. If divorce became effective during menstruation, that particular menstruation will not be counted in 'iddah. The count of 'iddah will begin from the next menstruation. And in a tuhr marked with intimacy, the chances of pregnancy exist, which would elongate the period of 'iddah, upto the time of delivery. Another reason for fixing the time of tuhr, mentioned earlier for the pronouncement of divorce is that it is quite possible that in the meantime the anger goes away, forgiveness and recompense follow and the very idea of divorce is withdrawn.

Now under the third restriction, the method adopted in breaking the marriage- contract and its annulment was not kept identical with that of the transactions and contracts of common buying and selling activity which releases the parties concerned of all obligations instantly once the contract is annulled. The first deal is all over and everybody gets the option to enter into another contract with some other party. In fact, in order to sever the marriage-relationship, talaq has been subjected to three stages. Then it was topped with the restriction of 'iddah since a lot of residual effects of the Nikah-relationship will remain active until the completion of 'iddah. Another marriage will not be lawful for the woman. Some restriction on the man would also continue.

The fourth restriction stipulates if divorce was given once or twice in clear and unambiguous words, nikah did not break instantly on the pronouncement of talaq; the marriage relationship continues till the completion of 'iddah. If the husband revokes the talaq, the previous nikah will remain valid.

This choice of ruju' (revocation or the act of taking back one's divorced wife) was restricted to only one or two taldqs, so that some cruel husband may not make a practice of giving talaqs, and then take her back and keep her as some captive. Therefore, came the injunction: If someone pronounces the third talaq as well, he now has no choice of ruju' (revocation), that is, he cannot take his wife back. In fact, even if they wish to remarry after mutual agreement, their being joined together in marriage a second time is not lawful, except in a peculiar manner which has been described later on.

The verses under study consist of important injunctions relating to this system of divorce. Now let us ponder over the words of these verses. In the beginning of the verse it was first said: 'talaq is twice'. Then, in the process of these two talaqs. a certain flexibility was provided by virtue of which the marriage was not totally annulled; instead, the man has the choice to return to his wife and retain her in his marriage. Or, he may elect not to do his ruju' (revocation) from the earlier pronouncements, allow the 'iddah to be completed and once the 'iddah is over, the marriage relationship will be terminated. This subject was stated in the words (then either to retain in the recognized manner or to release in fairness) that is, either, one must revoke divorce and retain his wife in his marriage, or, allow her 'iddah or the waiting period to be completed nicely and generously so that she can become free.

The third talaq (pronouncement of divorce) still remains unmentioned while the text takes up another problem in between, which generally comes up for- discussion under such conditions. The problem is that there are some cruel husbands who neither wish to retain their wives, nor care about their rights, nor give them divorce. The wife is placed in a situation of duress while the husband, taking advantage of her helplessness, demands some money or property from her, or as a last resort, demands that the mahr (dower) be forgiven, or returned in lieu of divorce. The Qur'an declares this to be haram (unlawful). It was said: it is not halal (lawful) for you that, in return for talaq, you take back from them money or mahr (dower) or anything else given by you.

However, one exception was made in which forgiveness or return of mahr (dower) was made permissible. Where the woman feels that she cannot do justice to the rights of her husband because of difference in temperaments and the man too, feels the same way, then this becomes a situation in which it is also permissible that divorce be given or taken in lieu of the forgiveness or return of mahr (dower).

After dealing with the above problem, the third talaq was mentioned in this manner: if that person goes on to pronounce the third talaq as well (something not liked by the Shari'ah), the transaction of nikah shall stand totally annulled. He has exhausted his choice to revoke his divorce and take his wife back. And since he transgressed the limits of Shari'ah by unnecessarily giving the third talaq, he must now have his punishment whereby it is not possible for them to remarry each other even if both of them agree to do so. Now, in order that they could remarry each other, the condition of such nikah is that the woman (after completing her period of Iddah following talaq) should enter into marriage with another man, fulfil matrimonial obligations and live with this other husband.

Thereafter, if by chance that other husband also divorces her (or dies), she could remarry the first husband after completing her 'iddah. The last sentence of the verse says: Should he too divorce her, then there is no sin on them in their returning to each other.

Detailed Injunctions Regarding Three Divorces At A Time

A close look at the style of the noble Quran makes it explicitly clear that the right method of pronouncing talaq stipulated by the Shari'ah is that one should, at the most, reach the limit of two talaqs and it is not appropriate to reach to the extent of a third talaq. After the use of words ^v'j^kJI in verse 229, the third talaq is identified in the words (Then, if he divorces her) wherein the letter 'alif noon' (if) is note-worthy. Here the hint in question is visibly present. Otherwise, the third talaq could simply be expressed by saying: 'The divorces are three.' Now the text, to the exclusion of expressions to this effect, has an expression of its own which carries a clear hint that one should not reach the stage of the third talaq.

This is why Imam Malik (ra) and several other jurists did not just permit the third talaq. They call it talaq al-bid'ah (the innovated talaq: divorce without the authority of the Qur'an and Sunnah). Some other jurists have ruled that three talaqs are permissible only on condition that these three talaqs be pronounced separately in three tuhrs (the state of post-menstrual purity). In the terminology used by these jurists this too has been termed as talaq al-sunnah. But none of them are proposing by this term that giving three talaqs in this manner is desirable, and is according to the Sunnah. In fact, this was given the name of talaq al-sunnah as opposed to talaq al-bid'ah for the simple reason that this form does not amount to bid'ah (an innovation in settled religious practice).

The gist of that which stands proved regarding the talaq count, on the authority of the guidance given by the Qur'an and Sunnah, and the practice of the Companions of the the Holy Prophet (sallallaahu 'alaihi wa sallam) and their followers is this: When no option, except that of talaq, is left, the best method of pronouncing talaq is to pronounce one talaq during the state oftuhr (purity) in which sexual intercourse has not taken place. Then, let this one talaq stay as such. As soon as the 'iddah finishes, the nikah relationship will automatically be finished with it. The Muslim Jurists have called it al-talaq al-ahsan and the respected Companions of the Holy Prophet (sallallaahu 'alaihi wa sallam) have declared it as the best method of talaq. Ibn Abi Shaybah (ra) has reported from Sayyidna Ibrahim al-Nakha'i (ra)that the noble sahabah favoured the method in which, after giving one talaq, nothing is done thereafter and the 'iddah of talaq - three menstruation periods - are allowed to expire so that the woman would become free.

From the words of the noble Qur'an mentioned earlier, the permission to pronounce upto two talaqs can also be deduced, but by the use of the word ^ljp'(twice) it has been pointed out that two talaqs should not be given in one utterance and at one time but should be given separately in two tuhrs (states of purity). The use of (Two talaqs are permissible) could also have helped prove the permission of two talaqs but the word suggests that the two talaqs should be given at two separate occasions, that is in two separate tuhrs (states of purity). (Ruh al-Ma'ani) (Note: The use of the adverb, 'twice' to stand for the Qur'anic word, 'marratan' in the accompanying translation is to cover this element of sequence and deferment for, lexically, 'twice' means — on two occasions or two times.)

In short, the limit of two talaqs stands proved from the words of the Qur'an. Therefore, by consensus of Imams and fuqaha' (Muslim Jurists), this talaq is included in Sunnah, that is, it is not a bid'ah (innovation). That the third talaq is undesirable is clearly indicated in the Qur'anic diction itself. That this is undesirable has not been questioned by anyone.

As to how detested and reprehensible the third talaq is stands proved by a hadith of the Holy Prophet (sallallaahu 'alaihi wa sallam). Imam al-Nasa'i (ra) reports on the authority of Mahmud ibn Labid (ra) that: The noble Prophet (sallallaahu 'alaihi wa sallam) was told about a man who had divorced his wife by pronouncing three talaqs simultaneously. He rose in anger, then said: 'What is this game being played with Allah's Book while I am present amongst you?' In the meantime, a man stood up and said: 'Ya Rasulallah! should I not kill him?' (Nasa'i, Kitab al-Talaq, vol. 2, p. 98)

(Note: Haafidh Ibn al-Qaiyyim (ra) has ruled that the isnad of this hadith is saheeh according to the conditions prescribed by Muslim (Zad al-Ma'ad). 'Allamah al-Mardini (ra) , in his al-Jauhar al-Naqi, calls the sanad of this hadith — saheeh, Ibn Kathir (ra) terms the isnad as excellent and Ibn Hajar (ra) finds this 'narrated by the reliable'.)

Based on this, Imam Malik and some other leading fuqaha' (jurists) have ruled that the third talaq is absolutely impermissible and that it is talaq al-bid'ah (a divorce based on innovation in religious practice and not supported by the Qur'an and Sunnah). Other Imams, by saying that three talaqs given in three tuhrs (states of purity) are included under sunnah talaq, have though excluded it from the purview of talaq al-bid'ah, but there is no difference of opinion as to its being undesirable.

To summarize, it can be said that the three stages of falaq (divorce) established by the Shari'ah of Islam in the form of three talaqs, do never mean that crossing these three stages are necessary or better. Instead, the intent of the Shari'ah is that the very initial step towards divorce is a detestable and reprehensible act. If such a step has to be taken under dire compulsion, it is only proper that its lowest possible stage, that is, one (pronouncement of) talaq be considered sufficient, allowing 'iddah (the waiting period) to take its course. Once the 'iddah is over, this very one talaq will become sufficient to sever the husband-wife relationship and the woman shall become free to marry another person. This method of talaq is called ahsan, that is, the best. In this method there is wisdom, and an element of advantage as well, since the option of reconciliation will remain open for the parties concerned in the event only one talaq has been given in clear words to that effect. Only taking the talaq back before the expiry of 'iddah will be sufficient to sustain the nikdh. And after the 'iddah has expired, the nikah will, no doubt, be broken and the woman set free, but there still will remain room for reconciliation between them, and should they reconcile and wish to remarry each other, the fresh nikah could be solemnized immediately.

But, should a person who does not stick with this method of ahsan talaq and goes on to pronounce one more talaq in clear and unambiguous words during the period of 'iddah, he then, completes two stages of the severance of nikah, which was unnecessary, and certainly not approved by the Shari'ah. However, two stages stand completed anyway. But the position, inspite of the completion of these two stages, stays where it was, that is, the choice of raj'ah (revocation) or return (to one's wife) during the period of 'iddah remains open and a fresh nikah could be made by the mutual agreement of the parties concerned after the expiry of the period of 'iddah. The only difference is that the husband has, by reaching the count of two talaqs, broken one more chain of his choices and arrived at the borderline from where the pronouncement of just one more talaq by him would end the matter for ever.

For one who has gone through these two stages of talaq, the instruction given later is: 'Then either to retain in the recognized manner or to release in fairness.' Here two injunctions have been communicated through the words. Firstly, revocation during 'iddah does not require fresh nikah; instead, only imsak, that is, retaining one's wife by revoking the talaq is sufficient. If this was done, the marriage relationship will stand reinstated on the very basis of the previous nikah.

Secondly, through this, the husband was instructed to take steps to effect his raj'ah (revocation) only if he intends to correct the situation and looks forward to living in peace and harmony; if not, he should pass this option so that the marriage relationship ends following the completion of'iddah. The concern here is that raj'ah (revocation) may not be done just to harass the woman without any intention of correcting the situation.

To match this, it was said (::). The word, Tasrih means to untie, to free, to release. Through this, it was pointed out that in order to sever relations, no additional talaq, or for that mater, no other action is necessary. That the 'iddah (waiting period) expires without revocation is, in itself, sufficient to end the marriage relationship. Abu Dawud (ra) reports on the authority of Abu Razin al-Asadi that, following the revelation of this verse, a man asked the Holy Prophet (sallallaahu 'alaihi wa sallam) 'Allah Almighty has said: (Divorce is twice). Why the third talaq was not mentioned here?' He said: 'The expression (To release in fairness) which follows immediately, is the third talaq.' (Ruh ai-Maani). It means, according to the consensus of 'ulama', that the act of the total severance of marriage relationship which would come out of the third talaq, would be taken care of by this mode of action, that is, by not revoking the divorce during the period of'iddah. Now, just as, by placing the restrictive condition of (in recognized manner) along with (retaining), the instruction was given that the wife, if retained after the revocation of talaq pronouncement {raj'ah), should be retained in good grace. Very similarly, by placing the restrictive condition of jUlit (in fairness) along with (release), the instruction was given that talaq is the dissolution of transaction and gentlemen go through their transactions and contracts in good taste and manners and in the event dissolution of contract becomes necessary, that too, should not be done with anger or altercation, instead, that should be done with charity, kindness and grace, for instance, while saying goodbye to the divorced wife, let her depart with some presents, such as clothing and its likes.

This is mentioned in the Qur'an: 'So, give them benefit — the rich man according to his means and the poor one according to his means.' (2:236)

And, if he, in spite of this, elects not to do so, rather, going a step farther, pronounces the third talaq as well, he now has reached a dead end where he has, quite unreasonably and unnecessarily, done away with all his options, ignoring in that process, graces allowed by the Shari'ah. The punishment he now deserves is that raj'ah (revocation) will not be possible, and without the wife marrying someone else, the couple's being re-united in marriage will also be not possible.

Three Divorces Given Unlawfully Are Effective

The immediate, rational and conventional answer to this question is that the nature of an act in being a crime and a sin does not stop it from taking effect anywhere. Killing unjustly is a crime and a sin. But one who is shot with a bullet, or struck with a sword, gets killed after all. His death does not wait to discover if the bullet was fired legally or illegally. Stealing is a crime and a sin by the consensus of all religions, but that which has been stolen as such leaves the possession of the owner anyway. Similarly, all sins and crimes are hemmed in by the same situation — that their being sin and crime does not stop them from taking effect.

In accordance with the dictates of this principle, the false steps takers such as, the ignoring of concessions given by the Shari'ah and shooting upto three talaqs unnecessarily, bypassing all choices of talaq one has, no doubt, became a cause of anger for the Holy Prophet (sallallaahu 'alaihi wa sallam) as stated in the previous report, and for this reason, this act was considered 'undesirable' by the consensus of the ummah, and impermissible' by some; but, if inspite of all this, someone has taken such a step, it should bring forth the same effect as would be that of a permissible talaq, that is, three talaqs become effective and not only the choice of raj'ah (revocation) but also the very choice of fresh nikdh stands negated.

And the decision of the Holy Prophet (sallallaahu 'alayhi wa sallam) is a testimony that he, in spite of his showing anger against giving three divorces, enforced the three talaqs, several incidents relating to which appear in books of ahaadeeth, The 'ulama' who have written regular books on this subject have collected these incidents therein. Recently, "Umdah al-Athath' , a book written on this subject by Maulana Abu al-Zahid Muhammad Sarfaraz (ra) has been published and is sufficient enough. Quoted here are only three ahaadeeth.

The report by Mahmud ibn Labid (ra) mentioned earlier with reference to al-Nasa'i (ra) does record the expression of extreme anger by the Messenger of Allah (sallallaahu 'alaihi wa sallam) on the giving of three talaqs at one time, so much so, that some sahabah (Companions) thought that the person deserved being killed. But this is not reported anywhere that he ruled the man's talaq to be a revocable talaq and let the man have his wife back.

On the contrary, the second report that follows clearly indicates that the Holy Prophet (sallallaahu 'alaihi wa sallam) has enforced the three simultaneous talaqs of Sayyidna 'Uwaymir (ra) in spite of displeasure. Very similarly, Qadi Abu Bakr ibn al-'Arabi (ra) has, in relation to the previously quoted hadith of Mahmud ibn Labid (ra), reported that the Holy Prophet (sallallaahu 'alaihi wa sallam) had enforced his three talaqs similar to the three talaqs of Sayyidna 'Uwaymir (ra). His words are: 'So, the Holy Prophet (sallallaahu 'alaihi wa sallam) did not reject it. He enforced it instead. As it appears in 'Uwaymir al-'Ajlani's hadith of Li'an, the Holy Prophet (sallallaahu 'alayhi wa sallam) had enforced his three talaqs and had not rejected it.'

The second hadeeth, that of Sayyidah 'Aa'ishah (radiallaahu 'anha) appears in Saheeh al-Bukhari in the following words: A man pronounced three talaqs on his wife. When the woman married elsewhere, the other husband also divorced her. The noble Prophet (sallallaahu 'alaihi wa sallam) was asked: 'Is this woman halaal (lawful)?' He said: 'Not unless the other husband has had intimacy with her as was done by the first husband.'

The words of the the report indicate that the three talaqs were given at the same time. Commentaries on Hadeeth, such as Fath al-Bari, 'Umdah al-Qari, al-Qastalani, confirm this reading of the report, that is, three talaqs were given at the same time. And the hadeeth carries the decision thereupon, that the Holy Prophet (sallallaahu 'alaihi wa sallam) made these three talaqs effective and ruled that, unless there occurs marital intimacy with the second husband, she will not become lawful for the first husband, simply by having been divorced by the former.

The third report is that of Sayyidna 'Uwaymir al-'Ajlani (ra), who did his Li'aan) (sworn allegation of adultery) against his wife in the presence of the Holy Prophet (sallallaahu 'alayhi wa sallam), and following that, he said: So when they were through with Li'aan, 'Uwaymir (ra) said: 'I shall be telling a lie if I retained her.' Then, he gave her three talaqs before the Holy Prophet (sallallaahu 'alaihi wa sallam) could give his verdict. (Saheeh al-Bukhari including Fath al-Bari Saheeh Muslim page 289, volume 1)

And Abu Dharr (ra) has, on the authority of Sayyidna Sahl ibn Sa'd (ra), reported this incident in the following words: 'Then the Holy Prophet (sallallaahu 'alayhi wa sallam) enforced it, and that which happened in the presence of the Holy Prophet (sallallaahu 'alayhi wa sallam) became established as Sunnah.' Sa'd (ra) says: 'On this occasion, I was present when this occured before the Holy Prophet (sallallaahu 'alaihi wa sallam). So, following that, the pracvice became common that they should be separated after which the two should never be united.' (Abu Dawood) In this hadeeth, it is proved with full clarity that the Holy Prophet (sallallaahu 'alayhi wa sallam) has enforced the three simultanously-pronounced talaqs of Sayyidna 'Uwaymir (ra) ruling these as three.

And in the previous report of Mahmud ibn Labid (ra) as well, as corroborated by the report of Abu Bakr ibn al-'Arabi (ra), it is mentioned that three talaqs were enforced but, even if this was not so, at least this much is not reported anywhere that the Holy Prophet (sallallaahu 'alaihi wa sallam) ruled it to be one revocable divorce pronouncement, and allowed the husband to retain his wife.

To sum up, the three ahadeeth under reference prove that, despite the fact of three simultaneous talaqs which invited the extreme anger of the Holy Prophet (sallallaahu 'alaihi wa sallam), their consequence, in any case, was that all three talaqs were ruled effective.

The Action Taken By Sayyidna Farooq Al-A'zam

Now the above discussion proves this much that holding three talaqs as three was a decision of the Holy Prophet himself (sallallaahu 'alaihi wa sallam). However, at this point, an incident related to Sayyidna Faruq Al-A'zam (radiallaahu 'anh), which has been reported in Saheeh Muslim and several other books of Hadeeth, raises a problem. The words are: 'It has been reported from Sayyidna ibn 'Abbas (radiallaahu 'anhuma) that during the times of the Holy Prophet (sallallaahu 'alaihi wa sallam) and during the first two years of the caliphate of Sayyidna 'Umar (radiallaahu 'anh) three talaqs were taken as one. So, Sayyidna 'Umar (radiallaahu 'anh) said: 'People are becoming haste-prone in a matter in which there was a room for deferment for them. Therefore, it would be appropriate if we enforce it on them.' Then he enforced it on them. (Saheeh Muslim, page 477, volume 1)

This declaration of Sayyidna 'Umar al-Farooq (radiallaahu 'anh) was made publicly in the presence of Sahaabah (Companions) and Tabi'een (their successors) (radiallaahu 'anhum ajma'een) -- after consultation with Sahabah having expertise in Fiqh. Rejection or hesitation by any one of them has not been reported. Therefore, Imam Ibn 'Abd al-Barr al-Maliki (ra) has reported a consensus on this; the following words appear in al-Zurqani Sharh al-Mu'atta: 'The overwhelming majority of the scholars of Shari'ah is of the view that three simultaneous talaqs become effective.' In fact, Ibn 'Abd al-Barr (ra), while reporting ijma' (consensus) on this, has said: 'The contrary of this is not worth consideration.' (al-Zurqani: Sharh al-Mu'atta: page 167, v.3)

And Al-Nawawi (ra) says in Sharh Muslim: Imam al-Shafi'ee (ra), Imam Malik (ra), Imam Abu Hanifah (ra), Imam Ahmad (ra) and a large number of earlier and later 'ulama' have said that three talaqs do become effective. And Taw'us (ra) and some Zahiri adherents have said what becomes effective with this is one talaq only. (Sharh Muslim, page 475, volume 1)

Imam al-Tahawi (ra) says in Sharh Ma'ani al-Athar: So, Sayyidna 'Umar (radiallaahu 'anh) addressed people on this subject publicly, and present among those were Companions of the Holy Prophet (sallallaahu 'alaihi wa sallam) who knew about the method practiced prior to this during the time of the Holy Prophet (sallallaahu 'alaihi wa sallam). But no one from among them challenged it and no one from among them rejected it. (Sharh al-Ma'ani p. 29, v.2)

In the event cited above, no doubt, the course of action for the Muslim community has been laid down with the consensus of Sahaabah and Tabi'een (radiallaahu 'anhum), warning that giving three talaqs simultaneously is certainly a cause of the anger of the Holy Prophet (sallallaahu 'alaihi wa sallam), and therefore undesirable, but despite this, anyone who commits this mistake will end up finding that his wife has become unlawful for him, and thereafter, not to become lawful again, unless she goes through the process of marrige and divorce with another man.

Intellectually and theoretically, two questions arise here. First: As stated earlier with the support of several hadeeth reports, it stands proved that the Holy Prophet (sallallaahu 'alaihi wa sallam) has himself enforced three talaqs on those who gave three talaqs simultaneously. They were not permitted by him to revoke the divorce pronouncements or enter into a fresh marriage contract.

What would then be the meaning of what Sayyidna 'Abdullah ibn 'Abbas (radiallaahu 'anhuma) said in relation to this incident, that is, during the times of the Prophet (sallallaahu 'alaihi wa sallam), during the Siddiqi caliphate, and upto to two years, during the Faruqi caliphate, three talaqs were taken as one when Sayyidna Farooq al-A'zam (radiallaahu 'anh) gave the ruling about three talaqs.

The second question is that if it is accepted that three talaqs were taken as one during the times of the Holy Prophet (sallallaahu 'alaihi wa sallam) and the Siddiqi caliphate, how it was that Sayyidna Farooq al-A'zam (radiallaahu 'anh) changed this decision? And even if, supposedly, a mistake was made by him, how did all the Sahaabah present there accept it?

Both these questions have been answered variously by respected fuqahaa' and muhadditheen. The most clear and unburdened answer given is the one by Imam Nawawi (ra) which he has reported in Sharh Muslim calling it 'the most authentic' suggesting that this executive order of Sayyidna Farooq al-A'zam (radiallaahu 'anh) and the total agreement (Ijmaa') of the noble Sahaabah (radiallaahu 'anhum) upon it, should be related to a particular form of three talaqs in which someone might say three times: 'You are divorced, you are divorced, you are divorced' - or he might say: 'I divorce you, I divorce you, I divorce you'.

This situation, meaning-wise, has two possibilities. (1) The pronouncer may have said these words with the intention of giving three talaqs. (2) The three repeated pronouncements were simply for the sake of emphasis without any intention of giving three talaqs, and it is obvious that the knowledge of intention can come only through the statement of the pronouncer. During the blessed times of the Holy Prophet (sallallaahu 'alaihi wa sallam), truth and honesty were common and dominant. If, after using such words, someone stated that he did not intend to give three talaqs, instead, the words were said repeatedly just for the sake of emphasis, the Holy Prophet ig, would then confirm his sworn statement and rule that this was only one talaq.

This is corroborated by the hadeeth of Sayyidna Rukana (ra) which says that he had divorced his wife with the word, 'albattah'. This word was spoken for three talaqs in common Arab usage but the sense of three was not clear in it. Sayyidna Rukana (ra) said: 'I never intended three talaqs with this word. In fact, I wanted to give one talaq'. The Holy Prophet (sallallaahu 'alaihi wa sallam) put him on oath to which he swore. Then, he ruled it to be only one talaq.

This hadeeth appears in al-Tirmidhi (ra), Abu Dawud (ra), Ibn Majah (ra) and al-Darimi (ra) with different chains of authorities and in different words. Some of the words also indicate that Sayyidna Rukana (ra) had given three talaqs to his wife. But, Abu Dawud (ra) has preferred the position that Sayyidna Rukana (ra), in reality, had given talaq by using theword 'albattah'. Since this word was used for three talaqs in common usage, some narrator has interpreted it as three talaqs. In any case, this hadith proves, as generally agreed upon, that the Holy Prophet (sallallaahu 'alaihi wa sallam) ruled Sayyidna Rukana's talaq to be one only when he declared on oath that he did not intend to give three talaqs. This too, indeed, proves that he had not pronounced the words of three talaqs explicitly and clearly, otherwise there would have remained no possibility of his having not intended three talaqs and consequently, there would have been no need to question him.

The incident clarifies that if the words of talaq had two possibilities about whether the husband had actually intended to give three talaqs or he had used the words of divorce thrice just for the sake of emphasis, and had actually intended to give one talaq only, the Holy Prophet (sallallaahu 'alaihi wa sallam) ruled only after a solemn declaration under oath, that it was one because those were the days of truth and honesty and the chance that someone would take a false oath was far too remote. This practice continued during the caliphate of Sayyidna Siddeeq al-Akbar (radiallaahu 'anh) and during the first two years of the caliphate of Sayyidna Farooq al-A'zam (radiallaahu 'anh). It was during his time that Sayyidna Farooq al-A'zam (radiallaahu 'anh) realized that the standard of truth and honesty was on the decline now, and according to the prophecy made in hadith will further decline in the future. On the other hand, incidents became numerous wherein those who pronounced the words of divorce three times started declaring that their intention was that of one talaq only. It was then realized that should the practice of ruling (three talaqs as) one talaq following confirmation of the statement of intent by the pronouncer of talaq continue like this into the future, it will not be too far when people start misusing this concession given by the Shari'ah and go about lying that their intention was for one talaq just to take a wife back. All Sahaabah (radiallaahu 'anhum), finding the intelligence and far-sightedness of Sayyidna Farooq al-A'zam (radiallaahu 'anh) in the management of religion (deen) as correct, agreed with him. These were blessed people who knew the thinking of the Holy Prophet (sallallaahu 'alaihi wa sallam).

They came to the conclusion that, should he be present in their particular time, surely he too, would not rule on the basis of the intention hidden in hearts and on the statement given by the person concerned. Therefore, the law he made for this purpose declared that whosoever repeats the word of talaq three times will find his very three talaqs ruled as effective. His contention -- that he had intended to give only one talaq — would not be considered (in the courts) as valid.

In the foregoing incident related to Sayyidna Farooq al-A'zam (radiallaahu 'anh), the words of the report themselves confirm the subject under discussion. He said: People are becoming haste-prone in a matter in which there was a room for deferment for them. Therefore, it would be appropriate if we enforce it on them.

This explanation of the executive order of Sayyidna Farooq al-A'zam (radiallaahu 'anh), and the consensus of the noble Sahaabah (radiallaahu 'anhum) on it, is confirmed by Hadeeth reports as well. It automatically supplies answers to the two questions referred to above.

The problem is resolved as we know that a particular talaq (divorce) given by the word 'three', or the repetition of the word talaq with the intention of 'three', were ruled as three after all — even during the time of the Holy Prophet (sallallaahu 'alaihi wa sallam). The ruling of 'one' concerns a talaq in which thalaath or 'three' is not mentioned clearly or in which the act of giving three talaqs is not admitted and instead, it is claimed that the count of three was for emphasis only.

Then the other question - when the Holy Prophet (sallallaahu 'alaihi wa sallam) had already ruled three divorce prnouncements to be one, why did Sayyidna 'Umar (radiallaahu 'anh) act otherwise and how did the noble Companion agree with it? — is also eliminated because, in this particular situation, Sayyidna 'Umar (radiallaahu 'anh) has blocked the indiscriminate use of the leave given by the Holy Prophet (sallallaahu 'alaihi wa sallam). God forbid, there is no trace of doubt here about any decision of the Holy Prophet (sallallaahu 'alaihi wa sallam) having been reversed. Now that all doubts have been removed, let Allaah be praised.

The purpose here does not warrant going into comprehensive and exhaustive details on the subject of three talaqs. That appears in extensive details in Hadeeth commentaries and several 'ulamaa' have explained it in detailed treatises. Here, this much is sufficient to understand the subject. And Allaah ('azza wa jal) is our supporter and helper. (Ma'aariful Qur'aan)

See also:

Three Divorces In One Sitting - http://www.muftisays.com/blog/Seifeddine-M/1098_02-02-2011/three-divorces-in-one-sitting.html

» Posted by Seifeddine-M on 10th August 2011

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