Divorce in Islam: Procedure and Rulings (by IslamOnline)
|Date: 09/Sep/2003Name of Mufti: Muzammil SiddiqiTopic: Divorce: Islamic Procedure & Rulings
Name of Questioner: K. from United States
Question: Dear scholars, As-Salamu `alaykum. Please explain what the proper Islamic procedure of divorce is. If a person divorces his wife in anger three times, is it counted one divorce or three divorces? In case he feels sorry about his words and wants to keep the marriage relationship, what is the proper procedure to annul the divorce? A detailed answer will be very much appreciated.
Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear brother in Islam, we commend your keenness on getting your self well-acquainted with Islam and its teachings, which is the way Allah has chosen for the welfare of His servants.
We must state clearly that divorce in Islam is the most abhorrent of all permitted things, and, as such, it must be resorted to only in extreme cases of necessity, and that too following certain stringent procedures and conditions. Among such procedures and conditions is: One must resort to divorce only after having exhausted all efforts of proper reconciliation and mediation. If, all efforts fail, while pronouncing divorce, one must be in a sober state of mind, and having clear intention to divorce. Just as marriage in Islam is contracted in a sober state of mind, and with clear intention, divorce must also be made in the same way.
In his answer to the question in point, Dr. Muzammil H. Siddiqi, former President of the Islamic Society of North America, states:
“Divorce is the most hateful thing to Allah, but it is allowed (halal) only in the case of absolute necessity. If a couple tried their best to reconcile their differences, but they still could not agree and they found impossible to live with each other, then only in that case they should separate in a proper and decent manner.
Divorce can be initiated by the husband or by the wife. The husband has the right to pronounce the words of divorce (talaq) to his wife. He can also give her a statement of divorce in writing.
The wife can seek divorce from her husband through khul`, but if he refuses to grant her request then she can seek the dissolution of marriage through the court of law. The Shari`ah has not given the right to a woman to divorce her husband, because only the husband has all the financial obligations of the family.
After divorce he will be responsible to provide her maintenance during her `iddah and if there are any children in the family then he will be responsible for their expenses. Thus to grant her that right equally with the husband while she has no financial obligation is unfair and unjust. The wife can, however, divorce her husband if her husband gave her that right either at the time of marriage or afterwards.
A husband who wants to divorce his wife should use the words of divorce with full awareness after much thinking and consideration. Using the words of divorce in haste or anger is not right. The proper procedure is to give divorce when a woman is not pregnant and is not going through her monthly menstrual cycle. Divorce can take place by saying one time “I have divorced you” (talluqtuki) or “You are divorced” (anti taliq).
After this the woman should spend the time of her `iddah. During the period of `iddah the husband can cancel his divorce and can resume the matrimonial relationship, but if it does not happen then the divorce takes effect and at the end of the `iddah period their marriage ends. There is no need to repeat the words of divorce more than once. Even one divorce is sufficient to terminate the relationship.
The provision of the second and third divorce is given for a husband who divorces his wife one time and then cancels his divorce, but then after sometime changes his mind and divorces her again second time. Then he changes his mind and resumes the relationship and then again after that he divorces her. The Shari`ah says that now this relationship should end.
Marriage is a serious matter. One cannot keep divorcing one’s wife and returning her back. After the third divorce he cannot take her back. The third divorce is called the “irrevocable divorce” (talaq mughallaz). The wife now becomes forbidden to her husband completely. She cannot go back to this husband who has divorced her three times, unless she marries another person who out of his own free will divorces her and then after the `iddah she and her previous husband want to remarry. This is called halalah in the language of the Shari`ah. This rule is given by the Shari’ah to reduce the occurrence of three divorces and to protect the honor of the woman.
Some people misuse this procedure out of ignorance or willingly. There are some people who think that the divorce (talaq) would not happen unless one makes the statement three times. There are others who repeat the words of divorce for emphasis and have no idea that this could be very serious. The jurists (fuqaha’) have discussed this issue for the last fourteen hundred years. There were some jurists who took the strict position that three divorces whether uttered at once or separately would be considered as three divorces. According to them, whether a person misused this right knowingly or unknowingly the affect would be the same. If some one uttered the words of divorce three times, then this would be talaq mughallaz and his wife would become totally forbidden for him and they could not reconcile without a halalah.
There are, however, some other jurists who emphasize the role of will in marriage and divorce. They say that if the husband used three divorces intentionally as three, then they will be counted as three, but if he repeated the words in anger or to emphasize his point then this is one divorce and he will have the right to resume the relationship with his wife. I feel that the second position is closer to the spirit of the Shari`ah. I am pleased to see that there are now some Hanafi jurists also who are inclined to this position. There were fatwas issued to this effect by the `Ulama’ of Deoband and Nadwa in India as well the `Ulama in Saudi Arabia.
The issue of a divorce given in anger is also important. The basic rule is that divorce must be uttered with full consciousness and without any coercion. If a person pronounced the words of divorce to his wife, in a fit of anger, while he lost all control over himself or due to the influence of intoxicants which he sinfully consumed, or he was forced by someone else to do so, then in all these cases his words of divorce are null and void and have no effect.
In conclusion, let me say that Muslims must protect their family life and must avoid divorce as much as possible. If it becomes necessary to have divorce then use the Islamic methods and procedures. Obviously we cannot give all the details here. Those who need more information they should consult special books on this subject or speak to those who are knowledgeable.”