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.
