"And when you have divorced women, and they have reached (the end of) their waiting period, then, either retain them as recognized or release them as recognized. And do not retain them with wrongful intent resulting in cruelty on your part. And whoever does this actually wrongs his own self. And do not take the verses of Allah in jest, and remember the grace of Allah on you and what He has revealed to you of the Book and the wisdom giving you good counsel thereby. And fear Allah, and be sure that Allah is all-knowing in respect of everything. And when you have divorced women and they have reached (the end of) their waiting period, do not prevent them from marrying their husbands when they mutually agree as recognized. This is how advice is given, to one of you who believes in Allah and in the Hereafter. This is more pure and clean for you. And Allah knows and you do not know." (2:231-232)

Commentary

In the previous two verses, it will be recalled, important rules of the law of talaq (divorce) were given. Also delienated there was the just and moderate system of divorce in Islam. Now some other relevant injunctions and rulings have been mentioned in the verses under discussion (231 - 232).

Special Instructions For Revocation Of Divorce Or Annulment Of Marriage

The first rule given in the first verse is: When women divorced revocably reach near the completion of their 'iddah (waiting period), the husband has two choices; either he may revoke his divorce and let her continue to be married to him or he may not revoke his divorce, discontinue the nikah relationship and release her totally.

But along with both these choices, the noble Qur'an places a restriction which requires that a wife, if retained, must be retained in accordance with a manner well-recognized and should it come to a parting of ways, even then, the parting should be in accordance with the rule as approved by the Shari'ah. Here, the word (in fairness), which appears separately at both the places, suggests that there are some conditions and rules governing the choice of retaining, similarly as there are, in the choice of releasing. When choice is made from either of the two options, it must be done in accordance with the method prescribed by the Shari'ah and not under the heat of spot anger or sentiments. Some of these rules of Islamic law appear in the Qur'an itself. Rest of the details have been given by the Holy Prophet (sallallaahu 'alaihi wa sallam)

For instance, should the thought of ugly consequences of separation after the incident of divorce produce a change of heart in favour of revoking it and keeping the marriage intact, then the Shari'ah has a method. It stipulates that the purpose in doing so should be to wash out past anger and displeasure and resolve to live anew in good family relationship with intention to give her the due rights. The purpose should not be to hold the woman in captivity or to harass and torture her. Therefore, the following words were said in the verse under reference: 'do not retain them with intent to harm them unjustly'.

The other method of raj'ah (revocation) has been mentioned in Surah Al-Talaq: 'And let two trustworthy persons from amongst you be witnesses; then, let witness be given if needed, precisely for the sake of Allah, (without fear or favour).' (65:2)

It means that anyone intending to take his wife back by raj'ah (revocation) should invite two trustworthy Muslims to act as witnesses. Out of the many advantages it has, one is the possible use of these witnesses in case there is a legal claim against raj'ah filed by the woman. Moreover, if the rule of having witnesses on raj'ah is not observed there is a possibility that someone, out of selfishness or Satanic instigation, comes up with a claim, even after the 'iddah has expired, that he had already done his raj'ah (revocation) before the expiry of 'iddah (waiting period). In order to eradicate these evils, the Holy Qur'an has directed that the act of revocation should have two trustworthy witnesses.

Looking at the other side of the matter, it is also possible that hearts remain heavy and anger does not go away even after the long span of 'iddah which has given them sufficient time for thinking. So, a termination of relationship may seem to be the choice, in which case the danger of hostile emotions flaring up is acute, which again may become contagious — starting from two persons, it could envelope two families and could become, for both, a danger for both this world and the Hereafter. To offset this danger, it was briefly said: 'Or release them in fairness,' that is, if you have to leave or free a wife and sever your relationship with her, that too, must be done in accordance with the recognised method. Some details of this method are given in the noble Qur'an itself; rest of the details stand proved through what the Holy Prophet (sallallaahu 'alaihi wa sallam) said and did. For instance, in the preceding verse, it was said: do not take back (without a valid ground admitted by the Islamic Law) that which you have already given to the woman as mahr (dower), in return for the divorce, or go about demanding some other compensation.

Then, in the following verse, it was said: 'for all divorced women, there is some benefit as recognized rightly due on those who fear Allah'. The explanation of: mata' or compensatory benefit to be given to a divorced wife is that she should be given some present or cash or a set of clothing at the least. Thus the fulfillment of some rights of the divorced wife has been made mandatory for the divorcing husband while the fulfillment of some others has been assigned to him in the form of kind treatment and good conduct. This is a chaste lesson in high morals and social manners which points to the fact that, just as the marriage was a transaction and mutual contract, the divorce is the termination of a transaction. There is no reason why the termination of this transaction should be a hotbed of enmity and hostility. The final annulment of the transaction should also be done decently and compassionately, that is, following talaq, the divorced wife should be given some benefits.

The details of this 'benefit' are that he should allow her to stay in the family house during 'iddah, pay for her total sustenance, pay the full amount of mahr (dower) if still unpaid while intercourse has already occurred; and in case the incident of divorce has occurred before intercourse, then half of the dower should be paid in good cheer. All these are obligatory rights which have to be given to a divorced woman necessarily; however, it is not only desirable but excellent as well, if the divorced wife, on her parting day, goes with some cash or at the least, with a set of clothing as parting gift. Subhan Allah, what a decent teaching it is ~ all that customarily causes quarrels and fights and takes families to ruin has been so wisely transformed into everlasting goodwill and peace.

After all these injunctions, it was said: anyone who acts against these divine commands will harm none but himself. It is obvious that Hereafter (the life to come) will be the place where every injustice and cruelty will be avenged in the sight of Allah and the oppressor is not going to move one step forward unless the oppressed is avenged. If we ponder with discernment and hindsight, we shall discover that, if some oppressor gets away with his cruelty against the oppressed, the evil consequences of this act do disgrace him, more than often, right here in this world. He may or may not comprehend it, but fairly often, he is overtaken by misfortunes which make him taste at least some retribution of his oppression during his life of the mortal world. This is what Shaykh Sa'di, may Allaah have mercy be on him, said in a Persian couplet: The oppressor presumed that he had hit me. But his weapon boomeranged back into his neck while it sailed past me!

The noble Qur'an has an approach which is wise, and a style that is special, when it does not describe law in the manner penal laws of the world are described. It rather explains its injunctions in a sympathetic and persuasive manner, showing its wisdom and describing the series of losses man suffers while acting against it, which, if duly understood, will render one incapable of embarking on such crimes. So, behind every law there comes the reminder that man must fear Allah and that man should never forget his accountability in the Hereafter.

Do Not Make Marriage And Divorce A Plaything

The second rule presented in this verse is that the word of Allah should not be taken lightly as some amusement: 'And do not take the verses of Allah in jest.' According to one explanation of the expression -- playing games with the verses of Allah or making a mockery of it — means acting against Divine ordinances in matters of marriage and divorce. The second explanation reported from Sayyidna Abu al-Darda' (radiallaahu 'anh) is that some people during pre-Islam Arabia would give divorce or free a slave, then they would go back on their word and start saying that this was all in fun; talaq (divorce) or 'itaaq (to free a slave) was not intended. Thereupon, this verse was revealed which gave the ruling that anyone going through divorce and marriage, even if it be playfully or jokingly, would find these enforced and the plea of 'having no intention' will not be accepted as valid.

The Holy Prophet (sallallaahu 'alaihi wa sallam) has said that there are three things in which acting seriously, or in jest, are both equal: One -- talaaq (divorce); two - 'itaaq (to free a slave); three — nikaah (marriage) (reported by ibn Marduwayh from Ibn al-'Abbas and Ibn al-Mundhir from 'Ubadah ibn al-Samit). This hadeeth has been reported from Sayyidna Abu Hurayrah (radiallaahu 'anh) in the following words: 'There are three things which take effect equally whether done seriously or jokingly. These are: The marriage, the divorce and the revocation of divorce.' (Mazhari) The Islaamic law governing these three is: Should a man and a woman go through the process of offer and acceptance before witnesses, even if it be without any intention or just in jest, the marriage stands solemnized anyway. Similarly, if divorce is given in clear words, without any intention, or just in jest, divorce takes effect; or revocation, if done, becomes valid too. Similarly again, if a slave is playfully declared to be free, the slave becomes free. Jest or fun are not taken as valid excuses.

After stating this injunction, the noble Qur'an then educates man, in its unique style, how he should obey Allah Almighty and fear the consequences of the life to come {akhirah). It was said: And remember the grace of Allah on you and what He has revealed to you of the Book and the wisdom giving you good counsel thereby. And fear Allah, and be sure that Allah is all-knowing in respect of everything' — It means: He knows the secrets hidden in your hearts, your intentions and your purposes. Therefore, when you have to release your wife from your marriage bond by giving divorce, you should do so with the intention of avoiding mutual disputes, loss of mutual rights and doing injustice, and not with the intention of releasing anger on your wife or disgracing or hurting her.

The Basic Rules Of Giving A Divorce

The third rule identified in this verse is: Should a man be left with no other option but divorce, then the basic and true method in the view of Shari'ah and Sunnah is that he should give one revocable divorce in clear and unambiguous words so that the choice of taking the wife back remains open. Words that cause sudden severance of marriage relationship should not be spoken. This is known as al-talaq al-ba'in, the divorce that cannot be revoked. In addition to this, reaching three talaqs must be avoided following which even fresh marriage between the couple becomes haram (unlawful). This point is indicated by the use of the universal and unqualified words in (when you have divorced women), because the injunction contained in this verse covers only one or two revocable talaqs. It does not concern the irrevocable three talaqs; but the Holy Qur'an, by not mentioning any related qualification, has suggested that the real talaq (divorce) is none other than the revocable talaq as approved by the Shari'ah. Other forms are not devoid of repugnance or undesirability.

Rules Of The Remarriage Of The Divorced Women

The second verse stops the unjust treatment meted out to divorced women, that is, they are discouraged to marry again. In some cases the first husband generally opposes the idea of his divorced wife marrying someone else and considers this to be a violation of his honour. In some families, even guardians of the divorced woman stop her from marrying a second time — some of them often do that out of greed hoping to let her marry only when there is some financial gain for them. There are times when the divorced woman agrees to remarry her former husband but the guardians and relatives develop a sort of hostility towards him after the incident of divorce. As such, they oppose their remarriage even after both of them agree to it. Stopping free women, without any valid reason admitted by Islamic law, from marrying at their choice, is a grave injustice whether it comes from the former husband or from the guardians of the woman. This injustice has been prevented through this verse.

This verse was revealed in the background of an incident of this nature. It appears in Saheeh al-Bukhaari that Sayyidna Ma'qil ibn Yasar (radiallaahu 'anh) had given his sister in marriage to someone. He divorced her and the period of'iddah expired as well. Following that, this man was sorry for what he did and wished to remarry her. His wife, that is, the sister of Ma'qil ibn Yasar (radiallaahu 'anh) also agreed to it. When this man talked to Ma'qil about it, he said, of course, in anger against the man's act of divorce: 'I did you an honour. I gave you the hand of my sister and you did this to me. You divorced her. Now you have come again to me so that I can let you marry her once again. By Allah, she will not go back in your nikah now.'

There was another incident concerning a cousin of Sayyidna Jabir ibn 'Abdullah (radiallaahu 'anh) similar to the one above. Thereupon, this verse was revealed in which the approach of Ma'qil and Jabir (radiallaahu 'anhuma) was declared to be undesirable and impermissible. The noble Sahaabah (Companions) (radiallaahu 'anhum) were true lovers of Allah Almighty and His Messenger (sallallaahu 'alaihi wa sallam). Such was the beneficence of the verse that Ma'qil ibn Yasar's anger cooled down as he heard it. He himself went to his former brother-in-law and gave his sister in his marriage once again and then gave kaffaarah (expiation) for his oath. Similarly, Jabir also carried out the instruction.

Keeping in view the form of address used here, this verse includes husbands who have given a divorce as well as the guardians of the women. Both have been commanded: 'do not prevent them from marrying their husbands when they mutually agree with fairness.' They may even be their previous husbands who had divorced them or they may be others. But a condition has been imposed here which is: 'when they mutually agree with fairness.' It means: When a man and woman agree to marry in accordance with the rules set by the Shari'ah, then, do not stop them from getting married. Here it was hinted that the absence of an agreement between the two, or compulsion from any quarter, is a valid reason for people around to stop them. Or, it may be that there is mutual agreement of the couple but it is not in accordance with the method prescribed by the Shari'ah. For instance, the couple may agree to live together without marrying; or may, in between them, enter into a new nikah illegitimately after three talaqs. Still more, should there be an intention to marry another husband during the period of 'iddah, every Muslim, specially those closely related to the man and woman concerned, have a right to stop them from doing so. In fact, it is waajib or obligatory to stop them within the limits of one's ability.

Similarly, if a girl wishes to marry outside her kaf (equal, like) without the permission of her guardians, or wishes to enter into nikah (marriage) on a dower which is less than her mahr al-mithl (a dower approximately similar to the one customary in her family) then this affects the family. Since she has no right to do this, her consent is also not in accordance with the method prescribed by the Shari'ah. In this situation, the guardians of the girl have a right to stop her from thismarriage. However, the words: 'When they mutually agree' do point out that a sane and pubert girl cannot be given in marriage without her consent or permission.

Towards the end of verse 232 there are three sentences appearing one after the other. The first one is: 'These injunctions are for those who believe in Allah and the Last Day.' Here it was hinted that the necessary outcome of believing in Allah and the Last Day, (the Day of Judgment) is that man should observe, practice and be bound by these Divine injunctions in toto. Those who fall short in following these injunctions should realize that their 'Iman or belief is in disarray. In the second sentence, it was said: 'adherence to these injunctions is for you a modality of purity and cleanliness.' It has been suggested here that the result of acting contrary to these injunctions is defilement with the pollution of sin, and involvement in discord and strife; for instance, if sane, pubert and young girls were categorically prevented from marriage, it would, on one hand, be an act of cruelty to them and a denial of their rights and on the other, this would put their modesty and chastity in danger. Thirdly, if God forbid, they get involved in sin, the resulting curse will also fall on those who prevented them from marrying. And it is quite possible that, much before the curse of the life to come (the akhirah), the misfortune of these helpless women may drive men to the outside limits of wars and murders, as is not uncommon even now. If that happens, much before the curse of the akhirah, their deeds will become a curse for them right here in this world. And if they were not, categorically at least, prevented from marriage, but were forced to enter into marriage with a person not of their choice and liking, that too will result in perpetual hostility, discord and strife, or talaq (divorce) and khul' (Divorce at the instance of wife against compensation). Its unpleasant effects are obvious. It was, therefore, said that in not preventing them from marrying the husbands of their choice there is for you easy access to purity and cleanliness.

In the third sentence it was said: 'and Allah knows (that which is good for you) and you do not know'. The purpose of this statement is that people who prevent divorced women from marrying see some benefits coming to them according to their conjecture, for instance, the notion of retaining honour and prestige or the hope of extracting some money on the pretext of their marriage. In order to remove this Satanic deception and unjust expediency, it was said: Allah Almighty knows very well what is suitable or beneficial for you -- so, when injunctions are given, these considerations are already taken care of. Since you do not know the reality of things and the end of affairs, you go ahead with your imperfect thoughts and faulty opinions, taking such things to be suitable or beneficial at times, while in them there is nothing but ruin and destruction for you. The assumed honour and prestige that you uphold will be rolling in dust if divorced women were to go out of control. And when you think of illegitimate monetary gains, it is likely that these may get you involved in intrigues and conflicts which may become dangerous not only for your money but also for your life.

The Qur'anic Strategy About The Enforcement Of A Law

At this point here, the Holy Qur'an presents a law to the effect that preventing divorced women from marrying as they choose is prohibited. Now, in order that acting in accordance with this law becomes easy, and that a climate of acceptance is generated in the public mind, these three sentences have followed after the initial declaration of the law. In the first sentence man is induced to be ready for action in accordance with this law by warning him against the accountability of the Day of Judgment and the subsequent punishment of crimes. In the second sentence, man is persuaded to abide by the law by telling him about evils caused by acting against it and many a harm that such contravention may bring to humanity. In the third sentence it was said that your own betterment lies in abiding by the law given by Allah Almighty. If, in acting against it, you have some expedient gain in mind, that then, is an outcome of your short-sightedness and insensitivity to consequences.

This manner and style of the Holy Qur'an does not end here; in fact, it runs throughout all injunctions. When a law is identified, along with it comes the warning that Allah is Almighty and that there is accountability and punishment in the Hereafter. With the beginning ill fi, and the end of each law there are affixes and suffixes like (Fear Allah) and (Allah is All-Aware of what you do) and (Allah is watchful of what you do). The Qur'an is, for the whole world, and for the generations to come till the Day of Doom (Qiyamah), a complete code of life, and a law covering all aspects of living. Of course, it does describe restrictive ordinances and legal punishments, but the manner in which these are handled is unique, not to be found in the law books of the whole world. The diction it has is more sympathetic than authoritarian. In the description of each law, there is an objective approach that no man should, by disobeying it, become deserving of punishment. This is not something like the governments of the contemporary world which make a law, publish it and then anyone who acts against it is left out to go through his punishment.

Moreover, a rather long-term benefit that comes out of this method of Qur'an and its special style, is that man, once he has sensed it, does not start abiding by the law simply because he knows that acting against it would bring some sort of punishment in the mortal world; much contrary to this, he starts worrying about the displeasure of Allah Almighty and the punishment that would come in the Hereafter (akhirah) and this very concern of his renders his outside and inside, his open and his secret, all even - one and indivisible. He cannot act against the law even at a place where there are no chances at all of his being policed, openly or secretly, because he believes that Allah Almighty, great is His Majesty, is present everywhere, watching and knowing everything down to the minutest particle. This is the reason why every Muslim abided by the law considering it to be an ideal of his life as a result of the principles of clean social living taught by the Qur'an.

Aside from identifying limits and restrictions of law, the distinction of a Qur'anic system of government is that by using the tools of persuasion and warning, it raises the standards of human morals and character to heights where legal limits and restrictions become second nature to him, before which he makes his personal desires and preferences take the back seat. A hard look into the history and governments of nations and the roster of crimes and punishments they offer would show that law alone has never reformed any nation or individual. The police and the army alone have never succeeded in rooting crimes out unless the fear of Allah Almighty and the realization of His supreme greatness is impinged on human hearts. That which helps prevent crimes is, in reality, the fear of Allah and the fear of accountability on the Day of Judgment. If this is not there, nobody can keep anybody away from crimes.

» Posted by Seifeddine-M on 16th August 2011

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