DIVORCE IN ISLAM
Permissible but Disliked
ALTHOUGH Islam permits divorce, it lays great emphasis on
it being a concession, and a measure to be resorted to only
when there is no alternative. Seeing it in this light, the Prophet
Muhammad said, “Of all things permitted, divorce is the most hateful
in the sight of God.”
When a man and a woman live together as husband and wife, it is but
natural that they should have their differences; it being a biological and
psychological fact that each man and woman born into this world are
by their very nature quite different from each other. That is why the
sole method of having unity in this world is to live unitedly in spite of
differences. This can be achieved only through patience and tolerance,
virtues advocated by the Prophet not only in a general sense, but, more
importantly, in the particular context of married life. Without these
qualities, there can be no stability in the bond of marriage.
In the marital
situation, the
best policy is for
each partner to
concentrate on the
plus points of the
other, while ignoring
the minus points.
If a husband and wife can see the value of this maxim and consciously
adopt it as the main guiding principle in their lives, they will have a far
better chance of their marriage remaining stable.
However, it sometimes happens, that unpleasantness crops up, and
goes on increasing between husband and wife, with no apparent
indication of their being able to smoothen things out themselves.
Their thinking about each other in a way that is conditioned by their
maladjustment, prevents them from arriving at a just settlement of
their differences based on facts rather than on opinions. In such a
case, the best strategy according to the Quran is to introduce a third
person who will act as an arbiter. Not having any previous association with the matters under dispute, he will remain dispassionate and will
be able to arrive at an objective decision acceptable to both parties.
For any arbiter to be successful, however, the husband and wife must
also adopt the correct attitude. Here is an incident from the period
of the four pious Caliphs, which will illustrate this point. When Ali ibn
Abi Talib reigned as the fourth Caliph, a couple complaining of marital
discord, came to him to request a settlement. In the light of the abovementioned
Quranic guidance, Ali ordered that
a board of arbiters, one from the husband’s
family and one from the wife’s family, be set
up, which should make proper enquiries into
the circumstances and then give its verdict.
This verdict was to be accepted without
argument by both sides.
A true believer should
wholeheartedly
accept the arbiters
and their verdict in
accordance with the
Quranic injunctions.
Once their verdict is
given, there should
be no further dispute
As recorded in the book, Jami al-Bayan, by
At-Tabari, the woman gave her consent, on
the book of God, whether the verdict was
for or against her. But the man protested
that he would not accept the verdict if it
was for separation. Ali said, “What you say is
improper. By God, you cannot move from here until you have shown
your willingness to accept the verdict of the arbiters in the same spirit as
the woman has shown.” This makes it clear that a true believer should
wholeheartedly accept the arbiters and their verdict in accordance with
the Quranic injunctions. Once their verdict is given, there should be no
further dispute.
TWO WAYS OF DIVORCING
However, it has to be conceded that life does not always function
smoothly. Despite all safeguards, it sometimes does happen that a
couple reach a stage of such desperation that they become intent on
separation. Here the Shariah gives them guidance in that it prescribes
a specific method for separation. The Quran expresses it thus: “Divorce
may be pronounced twice, then a woman must be retained in honour
or allowed to go with kindness”. ( 2: 229 )
This verse has been interpreted to mean that a man who has twice
given notice of divorce over a period of two months should remember
God before giving notice a third time. Then he should either keep his
spouse with him in a spirit of goodwill, or he should release her without
doing her any injustice.
This method of divorce prescribed by the Quran, i.e. taking three
months to finalize it, makes it impossible for a man seeking divorce
suddenly to cast his wife aside. Once he has said to his wife, “I divorce
you,” both are expected to think the situation over for a whole month.
If the man has a change of opinion during this period, he can withdraw
his words. If not, he will again say, “I divorce you,” and they must
again review the situation for a further month. Even at this stage, the
husband has the right to revoke the proceedings if he has had a change
of heart. If however, in the third month, he says, “I divorce you,” the
divorce becomes final and the man ceases to have any right to revoke
it. Now he is obliged to part with his wife in a spirit of good-will, and
give her full rights.
This prescribed method of divorce has ensured that it is a wellconsidered,
planned arrangement and not just a rash step taken in a
fit of emotion. When we remember that in most cases, divorce is the
result of a fit of anger, we realize that the prescribed method places a
tremendous curb on divorce. It takes into account the fact that anger
never lasts—tempers necessarily cool down after some time—and that
those who feel like divorcing their wives in a fit
of anger will certainly repent their emotional
outburst and will wish to withdraw from the
position it has put them in. It also takes into
account the fact that divorce is a not a simple
matter; it amounts to the breaking up of
the home and destroying the future of their
children. It is only when tempers have cooled
down that the dire consequences of divorce
are realized, and the necessity to revoke the
decision becomes clear.
The sole method
of having unity in
this world is to live
unitedly in spite of
differences. This can
be achieved only
through patience and
tolerance, virtues
advocated by the
Prophet.
When a man marries a woman, he has to say
only once that he accepts her as his spouse.
But for divorce, the Quran enjoins a three month period for it to be
formalized. That is, for marriage, one utterance is enough, but for a
divorce to be finalized, three utterances over a long period are required,
as prescribed by the Shariah. The purpose of this gap is to give the
husband sufficient time to revise his decision, and to consult the wellwishers
around him. It also allows time for relatives to intervene in
the hopes of persuading both husband and wife to avoid a divorce.
Without this gap, none of these things could be achieved. That is why
divorce proceedings have to be spread out over a long period of time.
All these preventive measures clearly allow frayed tempers to cool, so
that the divorce proceedings need not reach a stage that is irreversible.
Divorce, after all, has no saving graces, particularly in respect of its
consequences. It simply amounts to ridding oneself of one set of
problems only to become embroiled in another set of problems.
TRIPLE TALAQ (DIVORCE)
Despite all the preventive measures for a divorce, it does sometimes
happen that a man acts in ignorance, or is rendered incapable of
thinking dispassionately by a fit of anger. Then on a single occasion,
in a burst of temper, he utters the word “divorce” three times in a row,
“talaq, talaq, talaq!” Such incidents, which took place in the Prophet’s
lifetime, still take place even today. Now the question arises as to how
the would-be divorcer should be treated. Should his three utterances
of talaq be treated as only one, and should he then be asked to extend
his decision over a three-month period? Or
should his three utterances of talaq on a
single occasion be equated with the three
utterances of talaq made separately over a
three-month period?
The prescribed
method of divorce
over a period of three
months has ensured
that it is a wellconsidered,
planned
arrangement and not
just a rash step taken
in a fit of emotion.
There is a Hadith recorded by Imam Abu Dawud
and several other traditionists which can give
us guidance in this matter: Rukana ibn Abu
Yazid said “talaq” to his wife three times on a
single occasion. Then he was extremely sad at
the step he had taken. The Prophet asked him
exactly how he had divorced her. He replied
that he had said “talaq” to her three times in a row. The Prophet then
observed, “All three count as only one. If you want, you may revoke it.”
A man may say “talaq” to his wife three times in a row, in contravention
of the Shariah’s prescribed method, thereby committing a sin, but if he
was known to be in an emotionally overwrought state at the time, his
act may be considered a mere absurdity arising from human weakness.
His three utterances of the word talaq may be taken as an expression of
the intensity of his emotions and thus the equivalent of only one such
utterance. He is likely to be told that, having transgressed a Shariah
law, he must seek God’s forgiveness, must regard his three utterances
as only one, and must take a full three months to arrive at his final
decision.
In the first phase of Islam, however, a different view of divorce was
taken by the second Caliph, Umar ibn al-Khattab. An incident that
illustrates his viewpoint was thus described by Imam Muslim. In the
Prophet’s lifetime, then under the Caliphate of Abu Bakr and also
during the early period of the Caliphate of Umar, three utterances of
talaq on one occasion used to be taken together as only one utterance.
Then it occurred to Umar ibn al-Khattab that in spite of the fact that a
system had been laid down which permitted the husband to withdraw
his first, or even second talaq, men still wanted to rush into divorce.
He felt that if they were bent on being hasty, why should not a rule be
imposed on them binding them to a final divorce on the utterance of
talaq three times in a row. And he proceeded to impose such a rule. This
act on the part of the second Caliph, apparently against the principles
of the Quran and sunnah, did not in any way change the law of the
Shariah. To think that this led to any revision of Islamic law would be to
misunderstand the situation: the Caliph’s order merely constituted an
exception to the rule, and was, moreover, of a temporary nature. This
aptly demonstrates how the Islamic Shariah may make concessions in
accordance with circumstances.
Each law of the Shariah may be eternal, but a Muslim ruler has the power
to make exceptions in the case of certain individuals under special
circumstances. However, such a ruling will not take on the aspect of an
eternal law. It will be purely temporary in nature and duration. Various
traditions in this connection show that the second Caliph’s treatment of
certain persons was not in consonance with the Shariah. The rulings he
gave on these occasions were in the nature of
executive orders that were consistent with his
position as a ruler. If he acted in this manner,
it was to punish those who were being hasty
in finalizing the divorce procedure.
For marriage, one
utterance is enough,
but for a divorce to
be finalized, three
utterances are
required, between
which a long gap has
been prescribed by
the Shariah.
It is a matter of Islamic historical record that
when any such person was brought before
Umar for having uttered the word talaq three
times on one occasion, he held this to be a
rebellious conduct and would order him to be
flogged. Perhaps the most important aspect
of this matter is that when Umar gave his
exceptional verdict on divorce being final after the third utterance of
the word talaq on a single occasion, his position was not that of an
alim (scholar) but of a ruler invested with the full power to punish—as
a preventive measure—anyone who went against Quranic injunctions.
This was to discourage haste in divorce. By accepting a man’s three
talaqs on the one occasion as final and irrevocable, he caused him to
forfeit the right to revoke his initial decision, thus leaving him with no
option but to proceed with the divorce.
On the other hand, the Caliph had it in his power to fully compensate
any woman affected by this ruling. For instance, he was in a position
to guarantee her an honourable life in society and if, due to being
divorced, she was in need of financial assistance, he could provide her
with continuing maintenance from the government exchequer.
Today, anyone who cites Umar’s ruling as a precedent in order to
justify the finality of a divorce based on three utterances of the word
talaq on a single occasion, should remember that his verdict will
remain unenforceable, for the simple reason that he does not have
the powers that Umar, as Caliph, possessed.
Umar’s verdict was that of a powerful ruler of
the time and not just that of a common man.
It is necessary at this point to clear certain
misunderstandings which have arisen, about
the extent of agreement which existed on
Umar’s ruling. Of all the Prophet’s Companions
who were present at Madinah at that time,
perhaps the only one to disagree was Ali. As
a result of this, certain ulama (scholars) have
come to the conclusion that the Prophet’s
followers had reached a consensus on this
matter. But the consensus reached was not on the general issue of
divorce, but on the right of Muslim rulers to make temporary and
exceptional rulings, as had been done by Umar. It is obvious that the
Companions of the Prophet could never have agreed to annul a Quranic
injunction or to modify for all time, a prescribed system of divorce.
The prescribed
method of divorce
ensures that it is
a well considered,
planned arrangement
and not just a rash
step taken in a fit of
emotion.
All that was agreed upon was that exceptional circumstances
warranted exceptional rulings on the part of the Caliph. He was
entitled to punish—in any manner he thought fitting—anyone who
digressed from the Shariah. This right possessed by the ruler of the
time is clearly established in the Shariah. Many other instances, not
necessarily relating to personal disputes, can be cited of the exercise of
this right.
