When a man and a woman marry each other, it is their
utmost wish to remain in this relation of wedlock forever. They are desirous of
the fact that the change in times not change their commitment to each other and
only death separate them in this world. But then, sometimes there does arise a
situation when part they must. Differences become so pronounced that it becomes
necessary to sever this relationship. If such circumstances do befall that a
husband and wife must separate permanently, Islam lays down a specific procedure
for this separation. In Islamic terminology this dissolution of marriage is
called Talaaq (divorce). It says that both a man and a woman have an equal right
to it. The only difference is that a man divorces a woman while a woman demands
a divorce from her husband. In the following paragraphs, we shall attempt to
explain the Qur’anic concept of divorce.
If a husband has decided to divorce his wife, he should
first wait until she has completed her menstrual cycle and then desisting from
any further carnal relationship, he should utter the divorce sentence just once.
The wife, after she has been divorced in this way, must stay in her husband's
house for a period of three menstrual cycles. This period is called Iddat. If a
woman does not have menstrual cycles owing to age, disease or any other reason,
and still there is a chance of pregnancy, then she must wait for three months.
For a pregnant woman this period is up to the birth of the child, while for a
newly married couple who have had no contact, divorce does not entail any period
of Iddat for the wife. According to the Qur’an, there are two basic reasons for
this waiting period: i) to ascertain whether a wife is pregnant or not so that
the lineage of the child does not remain a matter of doubt, and ii) to give the
husband and other family members a chance to rectify the situation, for matters
in which emotions and feelings run high, sometimes only time is needed for
During this Iddat period:
(a) The husband cannot turn his wife out from the house
except if she is guilty of adultery, nor should she leave the house herself.
(b) The wife, if she is pregnant, must not hide her
(c) The husband should continue to provide for her.
(d) A husband, if he changes his mind, can revoke his
decision. The only thing required, according to the Qur’an, is that he should
call in two persons to testify to his decision.
If after this period of Iddat, a man is still firm in his
stance, his wife shall be considered as separated permanently. She is now a free
woman and if she wishes to marry some other person, she has all the right to do
so and must not be inhibited in any way. If circumstances change, she can even
remarry her former husband. Furthermore, the Qur’an stresses that on this
occasion of parting it is not at all lawful for a husband to take back any
property or asset gifted to her.
This, it must be kept in consideration, does not pertain to mehr (dower) only,
but to every type of gift given to the wife. Not only should a husband not take
back these gifts, he should, in fact, give her something on this occasion of
separation. Even if her mehr has not been fixed, it is better for him to give
her something. If the mehr has been fixed but the divorce occurs before the
husband and wife have had contact, he must return half the money, unless the
wife even forgoes this. In this case also, though it is better that he should
give her the whole money.
However, in case the husband revokes his decision during
the Iddat period, there is no need for re-marriage. The two shall be considered
as husband and wife once again. If after annulment of this divorce, due to some
reason, the untoward situation arises a second time that the husband intends to
divorce his wife, the Qur’an says that the husband can exercise his right of
divorce for the second time as well. He should pronounce just one talaaq
sentence to repudiate his wife. Again, the post-divorce period shall be observed
in the manner just described. Once again, if the husband wishes, he has the
chance to revise his decision during this period, in which case the divorce
shall be considered null and void and the two shall once again become husband
and wife. If, unfortunately, for the third time, the situation arises that
divorce becomes inevitable, the Qur’an says that a husband can exercise his
right for the third time as well and pronounce the divorce sentence.
this time the wife shall be permanently separated from him. He shall be required to support and provide shelter to his wife but living together is not mandatory. If the wife is pregnant, the 'iddat shall extend till the birth of the child.
After divorcing his wife for the third time,
he cannot re-marry her now, unless and until, the wife marries some other person
and owing to some reason gets divorced from him --- not under a planned
strategy, but on account of naturally arisen circumstances. This last measure,
actually, is meant to prevent this affair from becoming mere childplay.
In the words of the Qur’an:
This divorce [in which the husband can revoke his
decision in the Iddat period] is permitted twice only. (2:229)
It is evident from these details that the Qur’an only
prescribes one divorce sentence and stresses that a husband has the right to
divorce her wife three times in his life. It does not at all approve the
utterance of three divorce sentences in one go. Consequently, it is clear from
these details that the two prevailing procedures of talaaq ie (1) pronouncing
three consecutive talaaq sentences in one instance, and (2) pronouncing each of
the three sentences in three months are not at all prescribed by the Qur’an.
When the Prophet (sws) came to know that a certain person had divorced his wife
by pronouncing three divorce sentences one after the other, he stood up in anger
In my presence, such playful attitude has been adopted
with the Book of Allah. (Nisaai, Kitaab-ut-Talaaq)
A woman, as mentioned earlier, has an equal right to
divorce. The only difference is that in such a situation she will demand a
divorce from her husband. If the husband refuses, she has all the right to take
the matter to the court. The matter will then be decided by the ruling of the
court. A common misconception in this regard is that she must give some wealth
to her husband on this occasion of separation. This, we are afraid, has no basis
in the Qur’an; on the contrary, the Qur’an says that it is not at all
permissible for the husband to demand anything from his wife on this occasion.
However, if a husband has gifted a lot of wealth and property to her wife and is
afraid that in divorcing her he would lose all his riches, the Qur’an says that
she can forgo some or all of her share and return it to her husband to end the
whole affair. It is clear that this is only an exception and not a general
principle as is generally held and practiced. It is allowed when only wealth is
the husband's reason for not divorcing his wife.
This is the shariah as far as the concept of divorce is
concerned. However, as does happen with prescribed laws and procedures,
situations arise in which a person is guilty of breaching the law and deviating
from the right course. Human nature is prone to extreme emotional conditions in
which it deviates from the path set forth by the Almighty. These deviations, it
is extremely evident, are not part of the shariah; they fall into breach of law
category and it is up to the legislature of a country to enact laws about such
departures. At times, such cases are even left to the discretion of the judge
and at other times the judge himself is bound by the legislation done in this
regard by the parliament.
In case of divorce, keeping in view various precedents,
this deviation is generally of two types:
i) A husband divorces his wife during her menstrual
period, or divorces her after he has had contact with her in her period of
ii) A husband divorces his wife by pronouncing the divorce
As far as the first deviation is concerned, an Islamic
government can ask the husband to revoke his decision and carry it out in the
proper manner at the proper time. The Prophet (sws) in his own times dealt with
the case of Abdullah bin Umar (rta) in a similar manner.
In case of the second deviation, a deliberation on the
injunctions of divorce, particularly on their linguistic aspects, reveals that
there are three possible solutions:
(a) The husband can be called to court and asked to
testify to the nature of these pronouncements: if he testifies that he had
pronounced the three sentences in anger to only strongly assert his decision or
that he had thought that pronouncing three sentences was the correct procedure
of divorce, the court, if satisfied by his statement, can re-unite the husband
and wife. In this case, it shall be clearly spelt out to the husband that he now
has exercised one of his three chances to repudiate his wife. If on the other
hand, a person testifies that he had consciously uttered the three sentences
knowing that he was exercising his three rights in one time, the wife, of
course, shall be divorced from him. The case of Rukaana Bin Abdi Yazeed (rta)
was decided in a similar manner by the Prophet (sws).
(b) A second possible solution in this regard is that a
state, while observing that people have adopted a carefree attitude in following
this procedure, legislates that three divorce sentences shall be considered as
three whether pronounced in anger or in a normal emotional state. A precedent of
this solution can be found in the times of the Caliph Umar (rta). He himself, in
the capacity of a ruler in consultation with the members of the shooraa, upon
seeing that people had adopted a very careless attitude in this regard, as a
punishment, promulgated three divorce sentences as final.
(c) A third possible solution in this regard is that the
state while observing the fact that people are mostly ignorant of the correct
procedure and in their ignorance think that the correct way of divorce is to
pronounce the sentence three times, legislates that the three pronouncements
shall be considered as one.
Any of these three ways can be adopted keeping in view the
welfare of the Muslims. However, in adopting the second or third solutions, it
is necessary that a legislation has been done in their favour, but as far as
adopting the first solution is concerned, no prior legislation is needed and the
matter can be left to the discretion of the judge.
After explaining the Qur’anic concept of divorce and
various aspects of legislation in case of any deviation from it, an important
issue which must be elaborated upon before we end this article is the fate of
the children after divorce. In this regard, it should remain clear that this is
basically a matter which has been left to the discretion of the court. The basic
consideration in this matter is the welfare of the children. The court can
decide in favour of the father or mother, depending upon who among them is more
beneficial to the children.