Lexical meaning of talak is to ‘undo something
tied’. It is used in the sense of divorcing one’s wife. Hence, it means to undo
the tie of nikâh. Talâq takes place when a man says to his wife the words
dictated to induce dissolution of a marriage. As soon as a man says one of
these words, the divorce termed talâq-i-bâin takes place. The talâq that takes place after the period of
’iddat is termed talâq-i-rij’î. For a talâq to take place there should exist a nikâh that is
sahîh (valid). Talâq between a couple who have not been married to each other
via an Islamic (marriage contract termed) nikâh is out of the question. It is
not sahîh for a person who has been married by way of a nikâh that is fâsid to
give a talâq, (i.e. to divorce his wife.) Durring the period of ’iddat of a
woman who has been given a talâq fewer than three times (by her husband),
whether the talâq has been rij’î or bâin, or during the time of ’iddat in the
aftermath of an event of dissolution (of marriage) that has taken place upon an
act of apostasy perpetrated by one of the married couple, a talâq may be given
again. Yet in an eternal talâq, e.g. one that has taken place upon the woman’s
kissing her stepson lustfully, the talâq cannot be repeated. It is stated in Ni’met-i-islâm: “The moment a man
with his wife with whom he has performed a waty, (i.e. a conjugal act,) makes
one of the sarîh (explicit) statements used for a divorce, such as, ‘You be
divorced from me!’ or ‘I have divorced you!’ or ‘You have been divorced from me,’ even if
he says so as a joke or by mistake, or, supposing she is not with him, when he
sends such statements by writing a letter or sending a deputy to her, even if
he does not know what his statement means, a talâq-i-rij’î has taken place.
When he makes a statement that is used in situations other than talâq as well,
but which he has uttered with the intention of divorcing his wife, for instance
when he makes one of these statements: ‘Go to your father’s home!’ and ‘Go away
from me and attain your wish!’ and ‘Cover yourself!’ and ‘Cover your head!’ and
‘You are free!’ and ‘Look for a husband for yourself!’ and ‘Go to Hell!’ and
‘You are like a swine to me!’ and ‘I am not your husband!’
and ‘I am separated from you!’ and ‘You are bâin from me!’; or when he
says, ‘You are harâm for me;’ a talâq-i-bâin will take place. Statements of this
sort, which are used in various meanings, are called kinâya (allusion, hint,
indirect statement). The word ‘divorce’ is sarîh (explicit). Words such as
‘leave’ and ‘abandon’ are kinâya; but they are sarîh theoretically since they
are used customarily to mean ‘divorce’. If a person says to his wife’s father,
‘I do not want your daughter. Let her marry whomever she wishes!’;
or if his wife asks for his permission to go out and he replies, ‘I have
not tied you with a rope. You are free. Go!’; or if he says, ‘There is not a
nikâh between us!’ or ‘I have turned away from you!’ or ‘You go anywhere you wish. You
will not be my woman!’ or ‘There are four different avenues open for you. You
take any one of them at will!’ or ‘Off with you!’ or ‘I don’t want you any
longer. Go to your father’s home!’ or ‘I want to divorce you!’;
a talâq will not take place, unless he intends to divorce his wife. In
societies where remarks such as ‘Let it be a cause of divorce!’ and ‘Do
whatever you like!’ are used to mean divorce; when a person makes those remarks
to his wife a talâq-i-bâin will take place even if he does not mean a divorce.
Words such as ‘mommy’ and ‘my daughter’ and ‘my sister’ will not be causes of
talâq when a person uses them to address his wife. However, if he says, ‘From
now on be my mother (or daughter or sister),’ a talâq-i-bâin will take place.
“If a waty, (i.e.
conjugal act,) has taken place between a married couple, a talâq performed with
an explicit (sarîh) remark will not be a talâq-i-bâin even if the husband means
a divorce when he makes that remark, unless a word expressing something
unpleasant and plurality is tagged to the remark. In the case of a
talâq-i-rij’î the husband may resume his former nikâh, by words or actions,
within the period of ’iddat. In other words, he may continue the marriage
without having to renew the nikâh, even if the wife does not want it. There is
no need for witnesses, but it will be an act of mustahab for him to inform two
’âdil witnesses. In a case a talâq-i-rij’î the husband may enter the wife’s
room, and the wife may ornament herself (for her husband), within the period of
’iddat. During the period of ’iddat in a case of talâq-i-bâin the husband
cannot enter the wife’s room; nor can the wife ornament herself. A new nikâh
will have to be performed.
“When a talâq is
given, whether rij’î or bâin, one talâq will take place, unless the husband
expresses a number or makes a sign with his fingers. If he utters number three
or any other number over three he will have divorced his wife with three
talâqs. If he says, ‘as many as the fish in the sea,’ or ‘as many as the
celestial stars,’ a three-talâq divorce will take place. If he says, ‘as many
as the hairs on your palm,’ or points to pool of water with no fish in it and
says, ‘Be divorced from me as many times as the number of the fish in that
pool,’ one talâq-i-rij’î will take place.”
A man who gives a
talâq, (i.e. who divorces his wife by making
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the remarks that cause a talâq,) is required to be discreet,
pubescent, and awake. A remark (effecting a talâq) made by a slave or by a
drunken person or by a disbeliever or by an invalid or by someone under duress
will effect a talâq, when it is written and sent by mail as well. The moment
the letter is received by the wife, she will have been divorced. Talâq will not
take place with a statement (of talâq) made by an insane man or by a child or
by a person in his dotage or by a person in a faint or by someone asleep or
unconsciously by an invalid or wrathful person. Unconsciousness because of
wrath means unawareness of what one says. This case has two different kinds;
Talâq will not take place when the person concerned utters the statement
without knowing what the statement means and without meaning what he says and
without wishing to say (something that will undo the marriage). The second case
is one wherein the person concerned has made the functional statement knowingly
and willingly and now he does not know or remember what he has said. Talâq will
take place when two witnesses who have heard him say so testify (that he has
said so).
When a wife who has
never undergone a waty or a halwat with her husband is subjected to one
divorce, it will be a talâq-i-bâin. The husband will have to pay her half of
the mahr immediately, and she will not have to stay unmarried for a period of
’iddat. She may marry someone else on the very day she divorces. (Please see
the twelfth chapter of the fifth fascicle of Endless Bliss for ‘mahr’.)
Abrogation of a
marriage and a separation caused by apostasy on the part of one of the married
couple or ruled on by the judge are not within the subject of ‘talâq’. They are
called feskh (cancellation, abrogation, abolition). [Please read the
thirty-second chapter of the secon fascicle of Endless Bliss!]
It is mubâh to divorce
an old and ugly woman. That is, it is not a sinful act. If a woman annoys her
husband or others with her speech and behaviour or neglects any act of farz,
for instance if she does not perform the daily five prayers of namâz, which are
farz, or if she is under suspicion of fornication, it will be mustahab to
divorce her. It is not a sinful preference not to divorce a woman who does not
perform an act of farz. If a man cannot do his conjugal duty, for instance if
he is incapable of engaging in sexual intercourse because a spell has been cast
on him, it will be wâjib for him to divorce his wife if she wants a divorce.
Please scan the twelfth chapter of the fifth fascicle of Endless Bliss! It is harâm to
divorce one’s wife in a manner that is bid’at.
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Statements made only
so as to effect a divorce, regardless of the language in use, are called sarîh (explicit, clear).
When a person says outright to his wife, “I
have
divorced you,” or “You are harâm for me,” or makes a similar sarîh statement or
writes a letter containing that sarîh statement, one talâq will take place even
if he does not mean what he says. The former effects a talâq-i-rij’î and the
latter effects a talâq-i-bâin. When a man writes a letter saying, “Be divorced
when you receive this letter!” and sends it to his wife who is in another city,
she will be divorced when she reads the letter. If he makes his niyya for a
double or triple talâq without expressing it in words, he will have divorced
his wife two or three times, respectively, (that is, he will have given talâq
two or three times, respectively.) Statements used both for matters of divorce
and in other situations are called remarks of kinâya. When a man uses a remark of kinâya, he
will have divorced his wife with a talâq-i-bâin if he means divorce or of he is
wrathful when he makes the remark. It will not be a talâq if he adds, “...
inshâ-Allah,” when he gives the talâq. A woman will not be divorced only by her
husband’s intending to divorce her or by paying her her mahr.
Reasons for a divorce
have to be those sanctioned by Islam. And a divorce to be executed for one of
such reasons has to be in concordance with Sunnat,[1] whose instructions
concerning talâq is as follows: If the woman (to be divorced) has experienced a
waty, she will be given a single talâq after she undergoes a monthly period
(haid) and becomes pure and before a waty, (i.e. conjugal relation). That is,
the husband will say, “I have given you a talâq,” or “I
have
divorced you.” Or he will write so on paper. The divorce will take place upon
that clear statement said or written as long as the husband knows that the
statement he makes is used for talâq, even if he has not intended to divorce
his wife or does not know the meaning of what he says. A divorce accomplished
in this
---------------------------------
[1] The word
‘sunnat’ is used in three different meanings: 1– When it is used solo it means
the Islamic Sherî’at. 2– When it is used with the word farz, i.e. Farz and
Sunnat, ‘Farz’ means acts of worship, e.g. namâz, which Allâhu
ta’âlâ has commanded Muslims to do. For instance, ‘farz’ of a certain daily prayer of namâz is its part that is a definite commandment of
Allâhu ta’âlâ. And ‘Sunnat’ means an act of worship that our blessed Prophet practised and/or advised although it is not commanded by
Allâhu ta’âlâ. 3– In ‘Book and Sunnat’, the ‘Book’ is the Qur’ân al-kerîm, and the
‘Sunnat’ is the Hadîth-i-sherîf’s.
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manner will be a single talâq-i-rij’î. In a talâq-i-rij’î, however, the nikâh (marital tie) between
the couple will not break once and for all. In all four Madhhabs, the man may
remarry the woman without having to renew the nikâh within the period of
’iddat. To marry her, it will suffice, according to the Hanafî and Mâlikî
Madhhabs, for the man to say, “I have made rujû’ to the former nikâh,” or “I have
resumed the former nikâh,” there being no need for witnesses. In fact, a kiss
or a waty or a loving touch by the hand with the intention of resuming the
former nikâh will do, and the nikâh will have been renewed. According to Imâm
Shâfi’î and Imâm Ahmad bin Hanbal ‘rahmatullâhi ta’âlâ ’alaihimâ’, on the other
hand, the man has to say in the presence of two witnesses that he has “resumed
the former nikâh,” without any need for presence or permission on the part of
the (woman’s) walî.
If a man gives his
free wife a triple talâq, rij’î or bâin alike, i.e. if he divorces her three
times on three different occasions or says, “I
have
divorced you three times,” once, the former nikâh will break for good. A
‘hulla’ (an interim marriage) will be required for him to remarry that woman. A
woman cannot marry anyone within the period of any type of ’iddat. For the
performance of a hulla, the woman will contract a nikâh with another man, a wedding
will be held, the new marriage will be consummated with an act of waty, then
that man will divorce her, and a period of ’iddat will elapse. It is
thereafter, only, that her former husband can remarry her, and then he will
have to make a new contract of nikâh. This process, in its turn, is an
abasement, a crying shame for a man. Thereby the right to divorce which Allâhu ta’âlâ has bestowed on men is
counterbalanced with the humiliation of ‘hulla’ which He has saddled them with,
lest they should enjoy this right at will and amuse themselves with women as if
they were playthings. With the fear of ‘hulla’, a man will, so to speak, gag
himself lest he should ever blurt out the word ‘divorce’, let alone uttering
the word ‘divorce’ as a gag when he is with his family.
Ibni ’Âbidîn states:
“It is a rule that applies in all four Madhhabs that a ‘hulla’ will become a
requirement only when the nikâh between the husband and wife has been sahîh in
their own Madhhab. In all four Madhhabs a triple divorce will not necessitate a
hulla if the nikâh has been fâsid. For instance, if the contract of nikâh was
made only with the girl’s consent because the girl’s walî was absent or if,
say, the remark, ‘I have donated,’ was made instead of uttering the exact word,
‘nikâh’, during the performance of the contract of nikâh, or if the two
witnesses were
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fâsiq people; that is, if they were known
to be so; then the Shâfi’î Madhhab will be imitated because the nikâh between
them was fâsid and therefore their divorce has not been sahîh according to the
Shâfi’î Madhhab. It will be permissible for them to make a new contract of
nikâh by following the Shâfi’î Madhhab without there being any need for hulla.
The moment they start imitating the Shâfi’î Madhhab their former nikâh will be
bâtil. Their former nikâh will not be bâtil before they begin to imitate the
Shâfi’î Madhhab. That their former marriage was not harâm, and therefore their
present children are not khabîth, is written also in Fatâwâ-i-Bezzâziyya. By the same token,
an early afternoon prayer performed by a Muslim in the Hanafî Madhhab with an
ablution that he performed without making a niyyat (intention) will be sahîh.
If he starts imitating the Shâfi’î Madhhab after late afternoon prayer, he will
have to renew his ablution by making a niyyat for it, yet he will not have to
make qadâ of the early afternoon prayer.[1]”
It is permissible, in
the Hanafî and Mâlikî Madhhabs, for a person to make temlîk of a divorce or an act
of slave-emancipation, i.e. to commit (one of) these acts to (some) possession
or to a cause of possession. However, Imâm Shâfi’î and Imâm Ahmad bin Hanbal
‘rahmatullâhi ta’âlâ ’alaihimâ’ stated that it would not be permissible.
It is stated in Majmû’a-i-Zuhdiyya: ‘Talâq’ means to
untie a rope. The nikâh will break immediately in a talâq-i-bâin. In that kind
of talâq the man cannot resume his nikâh within the period of ’iddat. Nor can
he and the woman come together. In a talâq-i-rij’î the nikâh will break when
the period of ’iddat is over. In case one of the husband and the wife turns a
renegade (or apostate), i.e. a murtadd, their nikâh will become null and void,
which is called an abrogation rather than a talâq. Although it is permissible
to divorce a woman who does not obey Islam and/or who is bad tempered, Allâhu ta’âlâ disapproves of
divorcing a good woman for pleasure. It is called a ‘talâq that is bid’at’ to
give a triple talâq at once. It is harâm to divorce a woman by giving a triple
talâq
---------------------------------
[1] Whereas
a niyyat is not one of the essetials of ablution according to the Hanafî
Madhhab, it is one according to the Shâfi’î Madhhab. Therefore, whereas an
ablution made without making a niyyat will be sahîh (valid) in the Hanafî
Madhhab, it will not be so in the Shâfi’î Madhhab. Please scan the fourth
fascicle of Endless Bliss for details on this subject.
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unless there is an ’udhr, (i.e. a good
reason justified by Islam,) to do so. At each talâq it is farz for the man to
give nafaqa [rental, food, and clothes] to the woman until the period of ’iddat
is over. The woman cannot marry another man within that period. A statement
made by a drunken husband or by one under duress or torment or made as a joke
will effect a woman’s divorce. A talâq that took place upon a letter of talâq
dictated by force may be retracted. However, a letter written by a drunken
person or as a joke will effect a divorce. In the Shâfi’î Madhhab, a talâq will
not take place upon a statement by a drunken person.
Supposing a person in
his death-bed divorces his wife by way of a talâq-i-bâin; his wife accepts this
divorce unwillingly and gets her mahr-i-muejjel; if the invalid dies within the
woman’s ’iddat, the woman will inherit property from him. On the other hand, if
the talâq has been demanded by the woman and the woman has been divorced by way
of a triple talâq-i-bâin or if the man told the woman that he would do whatever
she would like him to do and thereupon she asked him to divorce her, she will
not be one of his inheritors even if he dies within the ’iddat.
Regardless of whether
or not a halwat has taken place, if a waty has not taken place between the
couple, when the man says to his wife, “You have been divorced by way of bâin,”
or “You have definitely been divorced,” or “You are very far away from me,” or
if he divorces her by uttering words expressing emphasis, such as “an
abominable talâq; the devil’s talâq; a talâq that is bid’at; the worst talâq; a
talâq like a mountain; a vehement talâq,” and the like, he will have divorced
her by way of a single talâq-i-bâin. ‘Bâin’ means ‘that which separates’. As he makes the aforesaid
remarks, a double or a triple talâq-i-bâin will take place if he makes his
niyyat for a double or a triple divorce or if he says, twice or three times,
“You have been divorced three times!” A talâq will not take place if the
husband says, “I have been divorced from you,” or “I
am very
far away from me.” For, the talâq must be given to the woman. In other words,
the tie of nikâh must be undone by the end fastened to the woman, not by the
end held by the man. However, if he says, “I
am bâin
from you,” or “I am harâm for you,” and means what he says, he will have divorced
her by way of a bâin talâq.
If a man says to his
wife, “I am not your husband,” or “You are not my wife,” or if his wife
says, “You are not my husband,” and the man affirms her, the divorce will not
take place unless a divorce was meant, (i.e. intended.) If a (married) man is
asked
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whether he has a wife and he replies, “No, I don’t,”
a talâq will not take place. If a contract of nikâh has been performed in a way
that is fâsid, a talâq will never take place. In that case the man can remarry
that woman by performing a nikâh that is sahîh. It is permissible for a man to
divorce his wife on the condition that his wife or someone else should pay him
some property, and in that case a talâq-i-bâin will take place.
A man’s committing his
right of divorce to the charge of someone else may be done in of the following
three ways:
1- Tefwîdh: This way is called
‘temlîk’ as well. It means to commit (one’s right of) talâq to one’s wife’s
possession. It is done by the man’s saying to his wife, “Let your matter be in
your hands,” or “You divorce yourself,” or “You will be divorced if you like.”
The woman can divorce herself only as long as the same sitting continues. The
man cannot retract his statement (of commitment). The woman cannot divorce the
man. If a woman to whom the right of divorce has been handed over says to her
husband, “I have divorced you,” she will not be divorced. She will have to
say,” “I have divorced myself.” It is stated in Ni’met-i-islâm: “If the tefwîdh is
handed over to the wife’s choice with the added clause, ‘... whenever you
like,’ the commitment will not be confined within the current sitting. The wife
will be free to exercise her vested right of divorce any times he chooses. If a
woman, as she is making a contract of nikâh with a man, stipulates a condition
by saying, ‘... on the understanding that I
shall be
accredited to divorce myself from you whenever I
like...,’
a conditional nikâh of this sort will be sahîh, and the woman will possess the
right to divorce herself from the man. Whether the talâq to be performed by the
woman will be bâin or rij’î is dependent on the words uttered by the husband.
If he prefers the way termed ‘kinâya’ by saying, for instance, ‘Demand
yourself!’ or ‘Let your matter be in your hands!’ and intends that it be a
divorce, the tefwîdh he has made is that of a talâq-i-bâin. If he says,
‘Divorce yourself!’ without making his niyyat for a talâq-i-bâin, the tefwîdh
will be that of a talâq-i-rij’î. Also, phrases and statements such as,
‘Whenever you like...’ and ‘You shall have been divorced from me any time you
like,’ will constitute a commitment called tefwîdh whereby the right of divorce
is handed over to the woman’s choice, and the wife’s saying, ‘I do
not want a right of talâq,’ will have no effect as a rejection of the right.
Without the tefwîdh being confined within the current session, she will be
accredited to divorce herself by way of a talâq-
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i-rij’î at times she chooses. The talâq will commence at the
stated time. It will not commence at the place where the statement is made. It
will take place immediately at the moment it is uttered. It is stated in Fatâwâ-i-Khâniyya, (by Qâdî Khân Hasan
bin Mansûr Ferghânî ‘rahmatullâhi ta’âlâ ’alaih’, d. 592 [1196 A.D.]:)
“Abu-l-lays-i-Samarkandî states that if a man making a contract of nikâh with a
woman says to the woman, ‘I have married you with a nikâh on the understanding that divorce
will be in your hands,’ the nikâh will be sahîh and yet the right of nikâh will
not belong to the woman. However, if first the woman says, ‘I have
made nikâh with you on the understanding that divorce will be in my hands,’ and
if thereupon the man says that he has accepted it, both the nikâh will be sahîh
and the divorce will be in the hands of the woman. For, when the man’s
statement precedes the woman’s, the tefwîdh will not be sahîh because it
precedes the (contract of) nikâh. And when the woman goes ahead with the
statement and the man accedes to it, the tefwîdh will have followed the nikâh,
and thereby both of them will be sahîh. That is, when the man says that he has
accepted it, he will have repeated the woman’s statement and acceded to what is
said in the statement. Thereby, he will have made tefwîdh after (the contract
of) nikâh.”
2- Tewkîl (or tevkîl, which means deputing). It
means a man’s saying to his wife, “I have appointed you my
deputy to divorce yourself. The woman will have the authority to divorce
herself as long as she remains her husband’s deputy. The man may dismiss her
whenever he changes his mind.
3- Temlîk by letter means a man’s writing a letter
to his wife and handing the right of divorce over to her. The woman may divorce
herself in the sitting where she receives the message.
To lay down a condition
for divorce — The condition laid down must not be something existing
continuously, and it must be something possible to do, or not to do, (as the
case may be.) The condition must not be something out of the question. A
certain thing that is not possessed cannot be laid down as a condition. For
instance, it will not make sense to say to a woman, “You will be divorced (from
me) if I make a nikâh with you,” since that woman is not under his nikâh
yet. [Please see the chapter dealing with oaths in the fifth fascicle of Endless Bliss!]
It is stated in Ni’met-i-islâm: “To lay a condition
for talâq means to swear an oath on talâq. Talâq will not take place unless
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the condition laid takes place. If a person says, ‘Let my wife
be divorced (from me) if I ever drink raki,’[1] his wife will be divorced with a single talâq-i-rij’î when he
drinks raki. If he had intended for a talâq-i-bâin when he said so, or if he
had said, ‘If I ever drink raki, let my (wife who is) halâl (for me) be harâm
for me,’ then his wife would be divorced with a talâq-i-bâin. If he says, ‘If I [or
you] do such and such a thing, let you be divorced from me with a triple
talâq,’ the way out of this predicament is for him to give his wife a single
talâq, to do that thing after the period of ’iddat is over, and to remarry her
by way of nikâh. Talâq will not take place if he does that thing again. If he
says, ‘... each time I do it...,’ his wife will be divorced from him each time he does
it. Or, if he does not do it after the talâq and does it after the second
nikâh, she will be divorced in this case as well. A person who has given a
talâq dependent on a condition cannot retract it.”
It is stated in Mawqûfât, (by Muhammad
Mawqûfâtî:) There are three kinds of talâq. The best one is to give a single
talâq without having a sexual intercourse during the woman’s purity, (i.e. when
she is not in her monthly period,) and not to give another talâq until the end
of the period of ’iddat. To divorce her with a triple talâq, the sunnat way is
to give a single talâq during each of three periods of purity within ’iddat. In
the Mâlikî Madhhab, it is not permissible, either, to divorce with a triple
talâq.
It is stated in Ibni
’Âbidîn: “It will also be a talâq that is bid’at to give a triple talâq by
making one statement (for all three) or to give a triple talâq by making three
separate statements, (one for each,) or to give a double talâq by making one
statement (for both) or to give a double statement by making two separate
statements, (one for each,) or to give a single talâq after a sexual
intercourse during the woman’s period of purity or (to do so) during her haid,
(i.e. menstruation.) That is, it is harâm to do so. A person who divorces his wife
during haid should retract so that he may be absolved from the sin, and repeat
the divorce during woman’s purity, if he still wants a divorce. The case with
nifâs (puerperal period) is the same as that with haid. It is always bid’at to
divorce with a talâq-i-bâin. Until two years into the caliphate of Hadrat
’Umar, saying, ‘I have divorced you three times,’ would effect a single talâq. But
there was no one to say that it would not effect a triple talâq. Most of the
Sahâba and the Tâbi’în and all the
---------------------------------
[1] An alcoholic beverage.
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religious Imâms said that a triple talâq
would take place (as a result of that statement). The hadîth-i-sherîfs stating
that a triple talâq, (i.e. three talâqs,) will take place (when that statement
is made) is quoted in the book entitled Fat-h-ul-qadîr. When Hadrat ’Umar
said that three talâqs would take place none of the Sahâba objected, which in
turn shows that they had learned about the hadîth-i-sherîf abrogating the
practice of effecting a single talâq (by expressing a triple talâq) or that
they knew that that practice was the rule at that time. Therefore, those who
say that a single talâq will take place should not be taken seriously. For,
this matter has not been that of ijtihâd. There has been khilâf
(contravention), and not ikhtilâf (contradiction).
A divorce that is
below a triple talâq and is not a talâq-i-bâin, either, is called talâq-i-rij’î. If the man uses the
word ‘vehement’ or the word ‘bâin’ as he divorces his wife or if he divorces
her in return for property, the divorce will be a talâq-i-bâin. A talâq-i-rij’î will
develop into a talâq-i-bâin when the period of ’iddat is over. That is, the
nikâh will become null and void. The man may marry the same woman after the
’iddat. Whether rij’î or bâin, if a woman has been divorced three times, (i.e.
with a triple talâq,) and if her period of ’iddat is over, it will not be
permissible to remarry her without a hulla. It will be permissible to remarry
her after the hulla. It is an act that is makrûh tahrîmî for another person to
marry a divorced woman for the purpose of (an interim marriage termed) hulla.
If a woman has been
married by paying a mahr that is below the mahr-i-mithl,[1] her walî may separate
her by applying to the court of law. If a person divorces his wife before the
wedding or the halwat, or if he himself becomes a murtadd or kisses (with lust)
the mother or the daughter of his wife a (forced separation termed) ‘firqat’
will take place, in which case he will have to pay half of the mahr to the
woman. In (forced separations caused by the wife, such as her becoming a
murtadd or lustfully kissing her stepson, the entire mahr will fall. If the
husband has given it, he will take it all back.
I’lâ — A man’s vowing not
to have connection with his wife for four months or more or his saying to her, “I shall
not have connection with you,” without stating a definite length of time. If no
waty takes place within four months, they will be divorced with
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[1] Please scan the twelfth chapter of the fifth
fascicle of Endless Bliss for the ‘mahr-i-mithl’.
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a single talâq-i-bâin. I’lâ will not take
place if the oath is made for a period shorter than four months. If he breaks
his oath within four months, his wife will not become divorced. He will have to
pay a kaffârat for an oath, (which in turn is explained in the sixth chapter of
the fifth fascicle of Endless Bliss.) If a man has divorced his wife by way of a single
talâq-i-bâin, he may remarry her by making a contract of nikâh with her when
the period of ’iddat is over. And when he makes a nikâh again, the i’lâ will
return. If it goes on this wise and he still does not break his oath when a new
nikâh is made for a third time, the woman will be divorced by way of a talâq-i-thelâtha (triple talâq), and he
will no longer be accredited to remarry her without an arrangement of hulla.
Khul’ — It means to divorce
one’s wife in return for (payment of some) property; it is permissible. It is
makrûh to demand property worth more than the value of the mahr. When a khul’
is performed the woman will be divorced by way of a single talâq-i-bâin.
Dhihâr — It means to liken
one’s wife or a part of her body such as face, head, and genitalia to a limb of
one of his mahram relatives that is harâm to look at. An example of this is to
say to one’s wife, “Your head is to me as the back of my mother,” or “You are
to me as the thigh of my maternal aunt.” A man’s repudiating his wife by this
formula renders it harâm for him to hug his wife, to kiss her, or to have a
conjugal intercourse with her until (an expiation called) kaffârat has been
fulfilled on his part. Kaffârat for a dhihâr is like kaffârat for a broken
fast.
Li’ân — If a man says to his
wife, “You are an adulteress,” (in any language), or says, “This child is not
from me,” the judge of lawcourt will order a li’ân if the wife demands one. If
the wife holds back from a li’ân, she will be sent to prison, being kept there
until she either accedes to a li’ân or admits her husbands accusation. The wife
will not be flogged for hadd for an adultery if she admits the accusation. The
husband will be kept in prison until either he retracts his accusation or a
li’ân is carried out. If he retracts his accusation he will be flogged for hadd
for a qadhf (or qazf).[1] Hadd for a qazf is flogging with eighty stripes. A li’ân is
carried out as follows: First the man is made to swear an oath that he is
‘telling the truth.” He repeats his oath four times. He repeats it for a fifth
time, yet this time he says, “May the damnation of
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[1] Please see the tenth chapter for ‘qazf and
‘hadd’.
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Allâhu ta’âlâ befall me if I
am
telling a lie!” Thereafter the woman swears an oath by saying, four times, “Let
Allah be my witness that this man’s accusation that I
am an
adulteress is a lie.” She repeats her oath a sixth time, saying, “May the Wrath
of Allah befall me if he is telling the truth!” Thereupon the judge will
separate them by way of a single talâq-i-bâin. Once a li’ân has been carried
out, the man will never be accredited to remarry that woman by making a new
nikâh with her unless he retracts his accusation or commits a qazf against
another chaste woman and thereby gets flogged for ‘hadd’ for a qazf.
’Iddat — It is the period of
time during which a new marriage is harâm for any woman who married a man by
making a contract of nikâh with him, went through a waty or a halwat, and
either was divorced by her husband or her marriage was abrogated (by one of the
aforesaid ways) or her husband died. In the Hanafî and Hanbalî Madhhabs it is
the period of time beginning by the starting of her earliest period of purity
and ending by the end of the third period of menstruation. In the Shâfi’î and
Mâlikî Madhhabs it continues until three periods of purity have been
experienced. In absence of menstruation, it is three months after a talâq, and
four months plus ten days in a case of bereavement. The end of a period of
’iddat is determined by the woman’s swearing an oath. In any case, it cannot be
shorter than sixty days. During periods of ’iddat in consequence of a
talâq-i-bâin or a bereavement the woman will not ornament herself or put on
perfume. During a woman’s period of ’iddat, regardless of its kind, she must
not be proposed a nikâh to. During an ’iddat after a talâq she does not go out
day and night. If she goes out of the house, she cannot get nafaqa. During an
’iddat after a bereavement she will not be paid nafaqa. The woman will stay
home during the ’iddat. In a talâq-i-bâin the fâsiq husband will not be allowed
into the house. In a talâq-i-bâin below a triple divorce he may remarry her by
renewing his nikâh before or after the period of ’iddat.
Hidâna — In a separation the
right to raise the child(ren) belongs to the mother who is not married to
someone else. After the mother the sister and thereafter the maternal
grandmother, respectively, hold the prerogative to be given the child.
Regardless of whoever the child is given to, it devolves on the child’s father
to pay for its nafaqa (living). If the woman (raising the child) is poor, she
may join the child in eating the food brought for the child. If the child does
not have a father, its needs will be met with the child’s property. If the
child does not have any property, either,
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then it will be wâjib for them to meet
its needs as a gift. If the mother of an orphan girl without any personal
property wants to look after her in return for payment while the girl’s
paternal aunt; proposes to look after her free of charge, the girl; will
preferably be given to her maternal aunt. If a small girl has a mother married
to someone else, a maternal aunt of its mother, and a paternal aunt, all three
of whom are willing to look after the girl, it will be given to the maternal
aunt of its mother for its hidâna. When a boy becomes seven years old and a
girl becomes pubescent, they will be delivered to their father, pressure being
used when necessary. In absence of a father, the relatives termed ‘asaba may
accept the child provided they will not be fâsiq people.
SOME FINAL REMARKS — (Supposing a man
sent some things to a girl he was going to marry:) If the man claims that the
things he sent for the engagement were (intended as) mahr and the girl says
that they were sent as gifts, the edible ones will be gifts, and the other
things will be mahr. Money and property demanded by the bride’s father and
other kinsfolk from the bridegroom in return for their consent to the marriage
and nikâh will be bribes. If the bridegroom gives them what they want, he will
be accredited to take it back from them after the marriage. It is permissible
for him to pay them in the name of footing the wedding expenditure. His payment
will be spent for the bride. A person cannot demand back what he has given his
daughter for her wedding.
A man who plans to
enter into a marriage should first equip himself with information on the
importance of a nikâh, on how to make a nikâh, on how he should sort out his
priorities in choosing the girl he is to marry, and on his duties and
responsibilities towards his wife and children and kinsfolk. Two of the sources
that will be of great help to him in learning these things are the booklets
entitled Murshid-ul-muteehhilîn
and Murshid-un-nisâ, both of which were
written (in the Turkish language) by Muhammad bin Qutb-ud-dîn Iznîkî (of
Nicea), (d. 885 [1480 A.D.], Edirne, Turkey.)
A married man should
be affable and warm with his wife. He should be patient with her incorrect or
illogical behaviour. He should talk softly and sweetly with her. He should
humble himsell to her mental level, making jokes and playing games with her. He
should be as generous as possible concerning food and clothes. He should make
sure that she learn the Islamic teachings that are farz for women to know, buying
Islamic books written by true Islamic scholars who obey Islam, and making her
read them. If he has
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more than one wives, he should be fair
and even-handed with them. All we have so far advised are acts of sunnat. In
matters concerning the clothes his wife wears and the manner and frequency of
her going out, he should be neither too rigid nor too lukewarm. He should take
utmost care in avoiding situations wherein he and/or his wife would be
vulnerable to dubiety and calumny. He should not send his wife to places where
there are men nâ-mahram to her, and he should prevent her from seeing nâ-mahram
men. Housework should be her favourite occupation. He should never treat her
harshly. Whether as a joke or as a blaze of anger, he should by no means make
mention of words such as ‘divorce’ and ‘new marriage’.