Islamic rules of divorce

 

The husband and wife should live with love and affection. If both of them fulfill their mutual duties properly i.e. the husband takes care of the needs of the wife and the wife, obeys the husband according to the tenets of Islam, then an ambience of love can be easily maintained.

 

3 Ways of Reconciliation

 

If, for some reason the relations between the husband and wife become strained and the wife continues her disobedience then the husband is advised to follow these methods 1. First, the husband should advise the wife 2. If it does not work, then the husband should separate the wife's bed i.e. the husband should stop having sexual intercourse with the wife. 3. The husband should admonish them and beat them lightly.

 

Allah Ta'ala says in the Holy Quran, Surah an Nisa -34, "And for those women about whom you have the fear of disloyalty, admonish them, sleep separately from them and may give them a light beating."

 

Before pronouncing divorce, the husband should use all these methods for reconciliation and should carefully consider the after-effects of the divorce. But according the Islamic Law, it is not Obligatory (Farz) for the husband to use these methods. The presence of the wife is not obligatory be present, nor is it necessary to inform the wife either. If the husband wants to divorce the wife, he is strongly advised to pronounce a Talaaq E Raja'i .i.e. Revocable Divorce instead of a Talaaq e Bain i.e. (Irrevocable Divorce) or a Talaaq e Mughalliza (Final Divorce i.e. saying talaaq 3 times at once). This has been stressed so that during the Iddah (the waiting period), the husband can reconsider his decision. If the wife is at fault, then she will have some time to correct herself. If someone ignores all this advice, even then the Divorce will be effective.

 

Pronouncing 3 Talaq In A State Of Anger

 

About pronouncing divorce in a state of anger, Radd ul Muhtaar Vol II pg vol. 463 has described 3 states of anger. Out of those 3 states, in 2 states, divorce (Talaaq) will be considered as effective and in 1 state it is not.

 

1. A state of (mild) anger in which the person's has not lost his reason .i.e. he knows and understands whatever he is saying and also understands the effect of his words and actions- A divorce pronounced in this state is effective.

 

2. Very high, almost maniacal, anger in which the person has lost his reason .i.e. he does not know or understand whatever he is saying or doing nor does he understand the effects of his words or actions- A divorce pronounced in this state is not effective. His other dealings like buying, selling etc are also not considered as proper.

 

3. A state of anger which is high but the person has not yet lost his reason, .i.e. the person still understands his words and actions and also understands the effects of these words and actions- According to the opinion of the Hanafi school of Jurisprudence, divorce pronounced in this state is effective.

 

The ruling of the second state of anger is applicable when 2 just witnesses testify about the anger as being maniacal or the person pronouncing the divorce states that on oath. All this when the person's maniacal anger is well known among the people.

 

As given in Radd ul Muhtaar Vol II Pg no. 463

 

If any person ignores all this advice given by the Shariah and pronounces a final divorce without carefully considering the consequences of his move, even then according to the Holy Quran and the Hadith divorce will be affected and the person pronouncing the divorce will be considered a sinner before Allah Ta'ala. If the anger of the husband is not too intense (as described), the absence of the wife or the wife's lack of knowledge about the divorce, do not make the divorce ineffective. As and when Divorce is pronounced, it becomes effective. If one divorce has been pronounced, one becomes effective, if 3 have been pronounced, 3 will become effective. In the absence of the wife, it is necessary that the divorce should be directed towards the wife or she should be clearly named.

 

The Shariah Ruling Regarding Pronouncing 3 Divorces Simultaneously

 

Pronouncing 3 divorces simultaneously is certainly against the teachings of the Holy Quran and the Hadith and is a sin. When a divorce is pronounced without considering the move carefully, the partners will face many more difficulties. Therefore, the method of pronouncing 3 divorces simultaneously should not be used and awareness about this should be created among Muslim men, so that this method which is against the Shariah should not be resorted to and this sinful course of action is blocked. In spite of all this, if someone pronounces a triple talaq, it is effective.

 

Sunan Abu Dawood, Book of Divorce pg no.306 has a Tradition, ' It has been narrated on the authority of Hadhrat Sahl bin Sa'ad (May Allah be well pleased with him), that he when he was asked about the incident of Hazrat Uwaimir Ajlani (May Allah be well pleased with him) he replied that he pronounced triple talaq to his wife before the Holy Prophet Sallallahu alaihi wa sallam and the Holy Prophet Sallallahu alaihi wa sallam declared it as effective.

 

This Hadith shows that Triple Talaq cannot be declared as null and void. The consensus of the Sahabah, the Tab'ien and the Four Great Imams and the Imams of the Ahle Sunnah is that Triple Talaq is affected.

 

When this matter has been established by the Sahabah, the Tabien, the Jurists (Fuqaha) and the Hadith-experts (Muhaddithin), any other opinion against this cannot be accepted. A point worth considering is that if a person breaks any law of state in a state of anger, then that person will be held accountable for it and will be punished and when the same person breaks an Islamic law, then excuses are given and reasons are put forth. Muslims are bound by the laws given in the Holy Quran and the H, so the opinion that a Triple Talaq pronounced in a state of anger or keeping the wife unaware of it is not tenable is not acceptable.

 

Can woman give divorce?

 

In the Shariah, the right to divorce has been given to the man and not to the woman because in the married life, the husband is responsible for all the economic and other such affairs and the responsibility of the wife to obey her husband.  As long they are bound by marriage, it is necessary for the husband to provide maintenance to the wife and take care of her housing and other affairs.  In all these matters, the husband has to perform the duties and is responsible for them.  The wife can stay in the house and benefit from what the husband provides.  She is free of responsibilities.  For this reason, it is justice to give the husband the right to end the relationship and refuse the responsibilities.  Allah Ta'ala says about the husband:

 

Translation: …….in his hands is the knot of the marriage.

 

Apart from this, the woman is easily overwhelmed by anger and other emotions.  In her menses, the woman suffers from restlessness and anxiety.  The decision-taking ability of a woman is less than that of a man.  The wisdom of a woman is naturally less than that of a woman.  For this reason, she is called as "Naqis Ul Aql" i.e. defective in mind in the Hadith.  Many cases of divorce happen only because a woman demands them.

 

A woman remains busy in taking care of the house and in bringing up the children.  For this reason, she cannot pay attention to other matters.  It must not be that because of tiredness due to work, and some excess committed by the husband, the woman ends up using her right of divorce and repents and rues later on.  For all these reasons, the woman is not given the right to divorce. 

 

In light of the above details, it becomes obvious that giving the right of divorce to the husband is correct.  However if the

wife is facing injustice and she wants separation, she may take course to Khula (annullment of marriage).

 

Saying 'Talaq' without the intention of divorce:

 

The ruling in the light of the Hadith is that if any person says the word, "Talaq," then the intention is not considered, as the word "Talaq" is used only for separation between the couple.  It has got no other usage and sense.  Thus, if the husband used the word "Talaq," without any intention, even then divorce occurs.  As given in Sunan Abu Dawood, Vol. 1, Pg No. 298, Hadith No: 1875:

 

Translation of Hadith:  It has been narrated on the authority of Hadhrat Abu Hurairah (May Allah be well pleased with him) that the Holy Prophet (Sallallahu alaihi wa sallam) said:  There are 3 things in which seriousness is also seriousness and joking is also seriousness: Nikah (Marriage), Talaq, Raja'at (i.e. uniting after the first revocable divorce).

 

As given in Durre Mukhtaar, Vol. 2, Pg No. 465.

 

Using ambiguous/unclear words:

 

If someone says: 'Go to your mother' or such words and does not actually divorce his wife, then these words are about the future and mean a promise.  The ruling of the Shariah is that a promise to divorce does not constitute a divorce. 

 

In this case, a divorce is not affected on the wife.  As given in Bahjatul Mushtaaq Fi Ahkamit Talaq, Pg. No. 13.