on the Scales of Islamic Sharia'h
By Bilal Abu Aisha
Ar-Raja - Taking back a wife after a divorce
If a man divorces his wife and this is the first or second talaaq, referred to as talaaq raja, and she has not ended her Iddah, then hecan take his wife back by saying: I am taking you back or I am keeping you. Apart from verbalising he is taking her back; the husband may do some action intending thereby to take her back, such as having intercourse with the intention of taking her back. The Sunnah is, taking back the wife should be done in the presence of two just Muslims, according to Quran (At-Talaaq S:52 , V:2 ). If the Iddah has ended following a first or second divorce, there has to be a new marriage contract. In this case he has to propose marriage like any other man, to her guardian and to her. When she and her guardian agree and they agree upon a mahr (dowry), then the marriage contract is completed. This must be done in the presence of two just witnesses. If however, he divorces his wife for a third time, she becomes unlawful to her first husband until she marries a second husband in a genuine marriage, which is consummated. Allah says (interpretation of the meaning): The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness& and He also said: And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband.
The last divorce, known amongst Muslim Jurists as Talaaq Baa-in, refers to the third divorce according to the overwhelming majority of the scholars. This is in light of the hadiths from Bukhari and Muslim whereby a woman came to the Prophet (saw) saying: O Messenger of Allah, Rifaaah divorced me thrice, then I was married to Abd al-Rahmaan ibn al-Zubayr al-Qurazi, but he has nothing with him except something like this fringe. The Prophet (saw) said: Perhaps you want to go back to Rifaaah? No, (it is not possible), unless and until you enjoy sexual relations with him (i.e. Abd al-Rahman), and he enjoys the sexual relation with you.
An-Nawawi said: This hadith indicates that the woman who has been divorced by a third talaaq is not permissible to the man who has divorced her until she has been married by another husband, who has intercourse with her then separates from her, and she completes her Iddah. Merely drawing up the marriage contract with her does not make her permissible to the first husband. This is the view of all the scholars among the companions, the taabieen (their direct successors), and those who came after them.