Divorce: Islamic Limits and Regulations
Reprinted from OurDialogue.com
- Prohibition of divorce during menstruation
- Taking an oath of divorce
- Where the divorcee resides during the waiting period
- Repeated divorce
- Reconcile honorably or separate with kindness
- The woman's right to demand divorce
- The prohibition of ill-treatment to elicit divorce
- The prohibition of the oath of desertion
- Question from a reader: "Beget children or else ..."
- Is conditional divorce valid?
The Islamic Shareeah has placed a number of obstacles
in the ways of divorce in order to confine it within the narrowest
possible compass. Divorce without lawful necessity and without
first exhausting all the other means mentioned earlier of resolving
the conflict is unlawful and is prohibited in Islam. Some jurists
maintain, it is injurious to both husband and wife, unnecessarily
damaging the interests of the two, which, like the wasting of
property is haram. "Do not harm yourself
or others," the Prophet has instructed us.
People who divorce their spouses and marry others in order
to enjoy a variety of sexual partners are liked neither by Allah
nor by His Messenger. The Prophet called them "the tasters,"
saying: "I do not like the tasters,
men and women," and "Allah does not like the
tasters, men and women." Abdullah bin Abbas said, "Divorce
is (only) in the case of necessity."
Prohibition of divorce during menstruation
When divorce becomes necessary, it is not permissible for
the Muslim to implement it any time he pleases; he must wait
for a suitable time. According to the Shareeah, this suitable
time is when the woman is clean following her menstrual period
or the period of perpetual discharge following childbirth and
before her husband has resumed sexual relations with her, or
when she is pregnant and her husband is aware of her pregnancy.
The reason for prohibiting divorce during menstruation or
the period of puerperal discharge is that, since during such
periods sexual intercourse is haram, the idea of divorce may
come to a man's mind because of sexual frustration and nervous
tension. He is therefore advised to wait until his wife is clean
and to divorce her then, if he is intent on divorce, before the
resumption of marital relations.
Just as divorce during menstruation is haram, it is likewise
haram between menstruation periods (i.e. "the period of
purity") if the husband has had intercourse with his wife
following the termination of her previous period. Because it
is possible that she may have become pregnant from this union,
the husband may change his mind concerning divorce when he knows
that his wife is carrying a child, desiring to stay married to
her for the sake of the embryo in her womb. However, when the
wife is in the period of purity but he has not had intercourse
with her following the termination of her menses, or when she
is pregnant and he is aware of it, he will be able to ascertain
that his intention to divorce her is the result of deep-seated
antipathy, and accordingly is permitted to carry through with
the divorce. In the Saheeh of Al-Bukhari, it is transmitted that
'Abdullah bin Umar mentioned [such a]matter to the Messenger
of Allah, he became angry, saying: "He
must take her back. If he still wishes to divorce her, he may
do so when she is clean of the menstrual discharge before having
intercourse with her, for that is the period of waiting which
Allah has prescribed for divorce." He then referred
to the ayat, "O Prophet, when you
(men) divorce women, divorce them during the prescribed periods."
(65:1). Another version of this hadith reads: "He
commanded him to take her back and then divorce her when she
is clean from the menstrual discharge or (otherwise) is pregnant."
A question now remains: If a person does divorce his wife
during these prohibited periods, does the divorce become effective
or not? The prevailing opinion is that it does become effective,
although the husband will be considered sinful. However, some
jurists hold that, it does not become effective, as Allah did
not legislate it so and whatever is not legal cannot be correct
or enforced. Abu Dawood, on sound authority, has transmitted
that when Abdullah bin Umar was asked, "What would you say
if a man were to divorce his wife during menstruation?"
he related his own story of divorcing his wife during her period
and the Prophet's commanding him to take her back, disregarding
his pronouncement of divorce.
Taking an oath of divorce
It is not permissible for Muslims to take an oath of divorce,
vowing that if particular event does not occur, his wife will
be divorced, or to threaten her by saying that if she does this
or that particular thing, she will be divorced. In Islam an oath
may be expressed only in one specific manner, that is, in the
name of Allah alone. Apart from this, no other form of oath-taking
is permitted. The Prophet said, "Anyone
who swears by (anything) other than Allah, has committed shirk."
and "Whosoever wants to take an oath
should take it in the name of Allah or keep silent."
Where the Divorcee resides during the waiting period
The Islamic Shareeah requires that the divorced woman
remains in her home, her husband's house, for the duration of
her iddah (waiting period). It is not permissible for her to
move from the house, as it is likewise not permissible for her
husband to evict her without a just cause. This requirement leaves
the way open, during the iddah following a first or second pronouncement
of divorce, for the husband to revert to his wife without the
requirement of remarriage. Her presence in the same house with
him makes it quite probable that the mutual sympathy and love
between them may be rekindled. If she is pregnant, the passing
of months will make her pregnancy obvious, which may be a further
inducement to him to change his mind. In any case, ample time
is at their disposal to reconsider the whole situation. With
the healing effect of time, feelings of antipathy may give place
to affection and reconciliation, and the revitalization of their
love may occur.
"...And fear Allah, your Lord.
Do not turn them out of their houses, nor shall they leave (of
their own accord) unless they commit some clear immorality; and
these are the limits set by Allah. And whoever transgresses Allah's
limits indeed wrongs his own soul. Thou knowest not; it may be
that Allah will afterwards bring some new thing to pass."
"If they must separate, it should
be done with dignity and kindness, without mutual abuse, injury,
recrimination, or infringement of rights, Says Allah Ta'ala:
"Either retain them in kindness or part with them in kindness..."
"For divorced women a provision
(shall be made) in kindness, a duty for those who are conscious
of Allah." (2:241).
The Muslim is allowed three chances, that is to say, three
pronouncements or acts of divorce on three different occasions,
provided that each divorce is pronounced during the time when
the wife is in the period of purity and he has had no intercourse
A husband may divorce his wife once and let the iddah pass.
During the period of iddah, the two have the options of being
reconciled without the necessity of remarriage. If, however,
this waiting period expires without reconciliation, they are
now fully divorced. Each of them is free to marry someone else
or to remarry each other; should they want to remarry each other,
a new marriage contract is required.
If after the first divorce the husband is reconciled with
his wife but later the hostility and conflict begin all over
again, all efforts at reconciliation and arbitration resulting
in failure, he may divorce her a second time in the same manner
as described above. In this case, too, he can return to her during
the iddah without remarriage, or after the iddah has expired
through a new marriage contract.
But it may happen that although he is reconciled with his
wife again after the second divorce, he may later divorce her
for the third time. This will then be a clear proof that the
hostility between the two of them runs very deep and that they
are incapable of living together. If this third divorce takes
place, it is not possible for the husband to return to his wife
during her iddah nor may he remarry her after the iddah unless
she has been married to another man, to live with him as a permanent
and true wife, and he then subsequently divorces her. It is,
however, totally prohibited for the other man to marry and divorce
her simply in order to make her halal for her first husband.
Those Muslims who utter three divorce pronouncements at one
time or in one statement are rebels against Allah's law and are
deviating from the straight path of Islam. Once the Prophet was
informed about a man who had pronounced three divorces at one
time. He got up in anger, saying, "Is
sport being made of the Book of Allah while I am (yet) among
you?" As a result, a man stood up and said, "O
Messenger of Allah, shall I not kill him?"
Reconcile honorably or separate with kindness
When the husband has divorced his wife and the period of iddah
is passing, he has two alternatives : either to reconcile with
her honorably - that is, to return to her with the intention
of living in peace and harmony, and not in order to torment or
harm her - or to free her and part with her in kindness by allowing
the iddah to expire without arguments and harsh words, and without
setting aside any of their mutual rights.
It is unlawful for him to return to her just because the iddah
is due to expire in order to torment her by prolonging the waiting
period, thus depriving her of the opportunity to marry someone
else. This was something that was done in the period of jahiliyyah.
Allah Ta'ala then prohibited this injury to women in a very decisive
manner, using a style of expression which makes the heart quake:
"And when you have divorced women
and they have fulfilled the term (of their iddah), either retain
them honorably or release them honorably; but do not retain them
in order to injure them, for this is transgression, and whoever
does this has wronged his own soul. And do not take the revelations
of Allah in mockery, but remember Allah's favor upon you and
what He has sent down to you of the Book and the Wisdom, to instruct
you by means of it. And be conscious of Allah, and know that
Allah is aware of everything." (2:231)
A little reflection upon this noble ayat of seven phrases,
containing warning after warning, reminder after reminder, ought
to be sufficient for anyone who has any feeling in his heart
or any hearing when it is recited.
The woman's right to demand divorce
The woman who cannot bear to live with her husband has the
right to free herself from the marriage bond by returning to
her husband the mahr (required marriage gift) and gifts he has
given her, or more or less than that according to their mutual
agreement. It is, however, preferable that he should not ask
for more than he has given her. Allah Ta'ala says:
"...And if you fear that the two
may not be able to keep to the limits ordained by Allah, there
is no blame on either of them if she redeems herself ..."
The wife of Thabit bin Qais came to the Prophet and said,
"O Messenger of Allah, I do not approach Thabit bin Qais
in respect of character and religion, but I do not want to be
guilty of showing anger to him." The Prophet asked her about
what she had received from him. She replied, "A garden".
He asked, "Will you give him back
his garden?" "Yes", she said. The Prophet
then told Thabit, "Accept the garden
and make one declaration of divorce."
It is not permissible for a woman to seek divorce from her
husband unless she has borne ill-treatment from him or unless
she has an acceptable reason which requires their separation.
Said the Prophet, "If any woman asks
her husband for a divorce without some strong reason, the fragrance
of the Garden will be forbidden to her."
The prohibition of ill-treatment to elicit divorce
It is haram for the husband to torment and mistreat his wife
in order to compel her to seek a divorce so that she will return
to him all or part of the property he has given her. Only if
the wife is guilty of clear immorality, may her husband demand
the return of all or part of the mahr to him. In this regard
Allah Ta'ala says:
"...Nor should you treat them with
harshness in order that you may take away part of what you have
given them, unless they are guilty of open lewdness."
It is also haram for a husband to take back anything from
his wife because he hates her and wants to divorce her so he
can marry another woman. As Almighty Allah says:
"But if you decide to take one
wife in place of another, even if you have given one of them
a heap of gold, do not take (back) anything of it; would you
take it back by slander and a manifest wrong: And could you take
it back, when each of you has been privately with the other,
and they (the wives) have taken a solemn covenant from you?"
The prohibition of the oath of desertion
One of the aspects of Islam's concern for the rights of women
is that it prohibits a man to be so angry with his wife as to
discontinue sexual relations with her for a period which she
cannot bear. If this abandonment of sexual relations is accompanied
by an oath on his part, he is given a limit of four months in
which to calm down and revert to her. If he comes to his norms
and resumes sexual relations before the expiration of the four
months, it is possible that Allah may forgive him for his excesses
and open the door of repentance to him; however, he must still
do the penance prescribed for a broken oath. If, on the other
hand, this period expires and he has not returned to her, his
wife is divorced from him as a just punishment for his neglect
of her rights.
Some jurists hold that the divorce is automatic at the expiry
of four months and no judgment from a court is needed. Others,
however, require that at the end of the period the matter should
be referred to the judicial authority, who will then give them
the option of reconciliation or divorce. [Added: That is variable
in keeping the laws of various countries, but religiously they
are automatically divorced.]
Such an oath of abstention from the wife is technically known
in the Shareeah as eela. Concerning it Allah Ta'ala says:
"For those who take an oath of
abstention from their wives, a waiting period of four months
(is ordained); if they return, indeed, Allah is Forgiving, Merciful.
But if their intention is firm for divorce, then, indeed, (Allah)
is Hearing, Knowing." (2:226-227)
This period of four months has been specified to give the
husband ample time to calm himself and to restore the relationship
of his volition. Moreover, four months is normally regarded as
the maximum period a woman can endure separation from her husband.
Commentators on the Qur'an narrate the following incident in
support of this opinion:
Caliph Umar found that a woman's husband had been gone on
a military expedition for a long time. He then asked his daughter
Hafsah, the widow of the Prophet, "How long can a woman
endure separation from her husband?" She replied, "Four
months." Subsequently, the caliph of the Believers decided
that he would not send a married man away from his wife for a
period exceeding four months.
Question from a Reader: "Beget children or else ..."
QUESTION: I have been married for four years during
which my parents-in law have put too much pressure on me to beget
children, going to the extent of forcing me to have surgery and
to try to conceive through the test-tube baby technique. We even
have three frozen embryos waiting to be placed inside me for
gestation. I went through too much stress and agony right from
the beginning. However, the cause for my failure to conceive
lies with my husband and this is clear from tests carried out
on both of us. He had promised me never to divorce me, but now
he is saying that he cannot refuse his parents request
to divorce me. He also says that he obtained a ruling from scholars
in Deoband that he must obey his parents in this request. I have
told him that it is better for the two of us to live in our own
house, but he has not provided me with that, although it is not
difficult for him to do so. He says that there is much pressure
on him, with his father threatening to disinherit him. Furthermore,
the father is insisting that I will have to spend my waiting
period in my parents home. It is now several months since
we are separated with him living abroad, and he has not yet acted
on his parents request. I will be grateful for your advice.
ANSWER: I am not sure whether an outline of the Islamic
view on the different aspects of this problem will go a long
way in helping the parties to sort it out. It appears to me that
at least some of the parties are not interested even to find
out the Islamic view. The husbands father, for example,
threatens to disinherit his son if he does not divorce his wife.
Has he bothered to find out whether this option is open to him
under the Islamic law? The fact is that no parent, or anyone
for that matter, may disinherit an heir for any reason. The identity
of the heirs and their respective shares are a matter that Allah
Himself has determined in a very elaborate system of inheritance
which He has laid down in the Quran. For anyone to try
to disinherit any one of his heirs is an act of aggression on
Allahs authority. It represents a claim of equality with
Allah, since a law can be amended only by one who is either equal
or superior to the one who made the law. That is not accepted
On the other hand, begetting children is also something that
Allah determines in His wisdom. He says in the Quran: "He grants whosoever He wills female offspring,
and He gives male offspring to whomever He wills; Or He may give
them both male and female, and He may leave others sterile. He
is All-Knowing, Able.." (42: 49-50) These two verses
spell out very clearly the fact that the creation of human being,
or any other creatures, is a matter of Allahs will which
is free of all restrictions and influences. If He has determined
that a certain couple will not have children, there is no way
that they will get a child, no matter what medical treatment
and technology is available to them. On the other hand, if He
decides to give a couple a child against all indications that
show that the couple could not have a child, nothing will prevent
His will. There was a case of a woman in Scotland who had an
operation to stop her getting pregnant. This operation is practically
the total answer to unwanted pregnancies. Yet she was pregnant
in a few months. I have a friend who was told by a top specialist
in Britain that there was no possibility that his wife would
ever get pregnant, and before the year was out she had given
birth to the first of her children. With her background, my reader
should fully understand this. It is certainly wrong that her
husbands family are putting so much pressure on her in
the matter of having a child.
I do not know whether it is wise to use the test-tube technique
in this case, but then again, it was not the Islamic view that
the family sought before deciding on a particular line of action.
To determine whether the embryos that have been produced though
this technique should be placed in the womans womb for
gestation or left to die is an intricate question that could
be answered only after a thorough study of the case. However,
if she conceives through this method, the child is illegitimate
unless both the sperms and the egg were taken from the couple
themselves. The use of a third party is not acceptable.
On the question of divorce, I think my reader should review
her situation with her husband and his family very carefully.
From what she writes, it appears that it may be in her interest
that this marriage is dissolved. However, the way she is trying
to keep her marriage suggests that she has not given up on her
husband yet, and that she believes that if left to themselves,
she and her husband can still make their marriage successful.
That is perhaps the reason for her attempt to settle with her
husband in their own home. I can tell her that this is her right
if her husband can afford that. It is also her right to be given
a chance to solve her problems in consultation with her husband,
or through the appointment of two arbiters, one from her family
and the other from her husbands family.
As for the rulings her husband claims to have had from the
scholars of Deoband, I feel that, if true, the ruling does not
take all factors into consideration. What we need to remember
is that a scholar gives his ruling on the basis of the question
which is put to him. If he is asked whether a husband should
obey his father when he tells him to divorce his wife, the scholar
is likely to answer that he should, provided all other methods
have been exhausted. If the question is qualified with the introduction
of certain factors that affect the case, the answer is likely
to differ. Therefore, our reader should request her husband to
agree that the two of them should apply together for a ruling,
after both of them agree on the phraseology of the question.
He will be surprised that the answer is certain to be different.
Hence, we should not read too much in the answer he has already
What I should say when a reader puts to me a general question
whether he should obey his father if he asks him to divorce his
wife is to tell him that his wife also has rights which he must
make sure to respect and fulfill. Judging only by the information
my reader has supplied, I feel that if her husband divorces her
for the reason he has given, he may be guilty of injustice. Allah
does not accept injustice, even when it is the result of a son
obeying his parents.
The Prophet, peace be upon him, says: "No
creature may be obeyed in what constitutes disobedience to the
Creator." In a Qudsi Hadith, Allah is quoted as saying:
"My servants, I have forbidden Myself
injustice, and have made injustice forbidden among you. Do not
be unjust to one another."
If her husband divorces my reader only to please his parents,
without considering her rightful claims, then he could easily
be guilty of injustice. It is wrong of him to do that. The least
he is expected to do is to try to give his wife her full rights,
including a fair chance to look at what is needed to make their
marriage successful. That could be through proper discussion
between the two of them, or through the mediation of two arbiters,
or in consultation with other people who could give a neutral
opinion. Whatever is decided at the end should be based on full
justice on both parties.
As to what her husband tells our reader of the pressure and
stress he is under, may I remind him that in Islam, a man is
considered a shepherd in his own household. He should take care
of his family as a shepherd takes care of his flock. He must
not let that pressure produce injustice at his own hands to those
who he is supposed to look after. It is he who will be asked
by Allah on the Day of Judgment whether he has taken care of
his flock, or his wife in this case. As he remembers his duty
toward his parents, he should also remember that the Prophet,
peace be upon him, has told us all: "Take
care of your women."
Is he acting on the Prophets advice when he divorces
his wife to please his parents when she has done them no wrong?
Is Conditional Divorce Valid?
Having tried hard to discipline his wife, without much success,
a man writes down what he wants her to do. He gives her that
paper after he has written clearly at the bottom of it: "Disobedience
of these instructions would be tantamount to divorce." She
nevertheless disobeys his instructions and he immediately stops
his marital relationship with her. Is she actually divorced?
Do they require a remarriage, if they wish to resume their marital
Islam views marriage and divorce very seriously. The Prophet
says that there are three matters which must be taken seriously,
whether they are said in earnest or jest. These are: "marriage,
divorce and freeing of a slave." If we reflect for a moment
on this wisdom of making all talk on the freeing of slaves serious,
we understand how much Islam cares for the feelings of those
who are in a position which makes them vulnerable to abuse by
other people. Let us imagine for a moment a slave whose master
tells him that he would be free after three days or when he has
completed a particular assignment, etc. Then three days later,
or on the completion of the assignment, the master tells the
slave that he was only joking and that he did not expect him
to take his words seriously. The slave would be broken-hearted
and he could easily harbor ill feelings toward his master. Now
that slavery has disappeared, thanks to Allah, such a cruelty
does not take place. We can appreciate, however, how Islam cares
for the feelings of those who are vulnerable.
As we all know, Islam has allowed divorce because it is needed
as a solution for social problems. However, a husband who wishes
to divorce his wife must abide by the rules which Allah has laid
down, and the Prophet has explained and elaborated, for the divorce
to be proper and valid. For example, a husband must make sure
that the time is appropriate for him to divorce his wife. It
is forbidden for a man to divorce his wife when she is in her
menstruation period or after they had sexual intercourse during
a period of cleanliness from menstruation. It is also forbidden
to divorce her three times on the same occasion. But hardly any
divorcing husband pauses to consider whether the time is right
for him to divorce. The majority of people tend to think that
unless they pronounce the word of divorce three times, the divorce
is not valid. They thus hasten to utter something which Allah
has forbidden. They earn his displeasure and land themselves
in trouble. When the Prophet was told that a man divorced his
wife three times together, he was very angry. He said to his
companions: "Is Allah's book to be
taken lightly when I am still alive among you?" (Related
by An-Nassaie). Abdullah ibn Abbas reports that Rukana ibn Abd
Yazeed divorced his wife three times on the same occasion, and
he was very sad for having done so. The Prophet asked him: "How have you divorced her?"
He answered: I have divorced her thrice. The Prophet asked: "On the same occasion?" When
the man answered in the affirmative, the Prophet said: "That is a single divorce. You may remarry
her if you wish."
The Islamic system does not allow for conditional divorce.
Thus, if someone says to his wife, "you are divorced in
three months time, or at the end of the year, or when I have
arrived at my office, etc." she continues to be his wife
at the end of the period he has specified or on his arrival at
his office. This is simply unacceptable as a way of divorce.
Many prominent scholars are of the view that a conditional divorce
is not valid. The family law of Egypt which has been based on
the Islamic law, does not recognize such a divorce.
I am more inclined to the ruling given by Imam ibn Taimiyah,
that a conditional divorce is considered on the basis of the
circumstances of each case. When a man tells his wife that she
is divorced if she does something he specifies, then he will
have to answer a simple question: would he prefer to see his
marriage terminated rather than see his wife do what he told
her not to do? Or was he simply using the threat of divorce in
order to frighten her into obeying his instructions? If he says
that his statement was only meant as a warning, then no divorce
takes place as a result of her disobedience. On the other hand,
if he insists that he meant his statement as divorce, because
he would rather divorce her than see her doing what she did,
then that is a divorce. In this latter case, the man has clearly
meant his words to be a divorce. Hence, the divorce takes place.
This means that each case is treated on its merits and according
to the intention of the husband.
[If we apply this rule to the case in question, the husband
should judge his intentions at the time he wrote the note and
come to his own conclusion.]