“Divorce may be (pronounced twice, then keep (her) in an good fellowship or release (her) with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress the limits of Allah it is those who are the wrongdoers.” [Surah Baqarah 2:229]
“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other (by marriage) if they think that they can keep [within] the limits of Allah. These are the limits of Allah, which He makes clear to a people who know.” [Surah Baqarah 2:230]
Summary Tafseer of these verses
There are several verses available in relation to Nikah and Talaq. However, it is stated in detail in these few verses in relation to the Talaq. Talaq should not be given more than twice; otherwise, one Talaq is enough to end the marriage. Shari’ah does not require anyone to provide three Talaqs at all. There are two rights for a husband after granting one or two Talaq Raj’ie (revocable) where there is no Bai’n (which curtail instantly) on it. One is to revoke her (with the prescribed method) within the Iddah period (three menstrual cycles). Two, wait till the Iddah time is passed and then release her with appropriate treatment. The wife can remarry whoever she wants, or if both couple agrees, she can remarry her ex-husband with a new Nikah and newly assigned Mahr (dower).
It is important to note that while giving Talaq, you can’t take back what you’ve given as a gift, whether it’s in the form of Mahr or not. However, it is feasible in one circumstance: if the relationship between the couple deteriorates to the point that both believe that they will be unable to uphold the principles of marriage, then exchanging any monetary worth will not result in any sins. A wife can pay a ransom to get out of the marriage, but it must be done with mutual consent, which is known as Khula (see our Khula section for more info). This ransom must not be greater than the Mahr offered by the husband. These are Allah’s swt’s limits. Do not cross these limits; those who do so will only bring harm to themselves.
If a husband gives a third Talaq after a second Talaq, she can marry anybody other than her ex-husband when the iddah time expires. However, if she chooses to reconcile with her ex-husband, she will be unable to do so till she has had the full pleasure of sexual intercourse with the second husband. And this must be on top of her second husband giving her Talaq for a justifiable reason (this will be discussed at the end), or the second husband dies and the iddah time-lapse again, in which case the ex-husband will be allowed to remarry her. They will not be regarded as sinful if they are determined not to violate Allah’s limit of transgression. These verses and signs are revealed by Allah for the intellectuals.
As mentioned above, there are several verses present concerning Islamic Nikah and Talaq. To fully comprehend the Islamic divorce system, one must first comprehend the significance of the Nikah in Islam.
Nikah and Talaq in Islam
One of the aspects of Nikah is that it is a contract that must be carried out with the permission of the couple. This is quite similar to a contract where there is an offer and acceptance in a transaction. Second, this is an “عِبَادَةٌ- ibadah” (worship) based on the Sunnah. The Ummah, on the other hand, is unanimous in its belief that marriage is more than a transaction; it is a Holy relationship. Because it is a Sunnah ibadah, there are more requirements than in a conventional transaction.
Firstly, it is forbidden in Islam for any man to marry any woman. There are conditions for this, and getting married to a woman or vice versa is prohibited based on these conditions.
Secondly, apart from the Nikah, no other transactions or conducts require the presence of a witness. Only when a dispute arises would a witness be required. On the other hand, witnesses are pre-conditioned to marry. Even if two male witnesses or one male and two female witnesses are present, and both sides’ guardians have no objections, the marriage will not be recognized until the couple proposes Ijab and Qabul (offer and acceptance) in front of the witnesses. The basic Sunnah is to arrange a marriage with an open invitation. There are also other norms and regulations that apply after the marriage.
According to Imam Abu Hanifa r.a. and other Imams, they consider that marriage is more about ibadah and Sunnah than it is about a transaction. They’ve presented plenty of Qur’anic and Sunnah-based evidence.
Now that we have a fundamental understanding of marriage, let us move on to learning more about the Talaq (Divorce).
ONE/TWO TALAQ
The literal meaning of Talaq is to terminate or dissolve the marriage contract. According to Shari’ah, by giving Nikah the status of an act of “عِبَادَةٌ Ibadah”, it has kept it at a level higher than common transactions and contracts and has imposed on it several restrictions. Very similarly, the termination of this deal has not been left free, as in common transactions, where the parties may terminate the deal as and when they elect to do so, and go on to make a fresh deal with someone else. It has rather made a pointedly wise legal framework, which has been described in the verses under reference.
Because Islam teaches that marriage is a lifelong commitment, dissolving a marriage necessitates more stringent regulations to ensure that it is not simply broken (except where necessary). The impact of dissolving a marriage is felt not only by the couple but also by their children and relatives. Due to the couple’s marriage breakup, conflicts can occur between both family members, resulting in severe consequences. The Qur’an and Sunnah have provided solutions to those factors that contribute to marriage dissolution. In the Qur’an and Sunnah, there are various admonitions about strengthening the bond between husband and wife. It can be viewed as a mechanism for keeping track of a relationship and filling any gaps that may exist.
The first step to take: When a couple is afraid of being deserted, the Qur’an encourages them to take a few steps forward. First and foremost, admonish them. If this doesn’t work, set up a separate living space (not sharing same bed). Even if it doesn’t work out, tough counseling may be used to mitigate the situation. If none of these methods work, one may select a panel of arbitrators made up of members of their immediate families to help reconcile the disagreements and resolve the issue at hand.
The emphasis on making the first few steps has been laid down by Allah swt, in the following verses which Allah said:
“But those [wives] from whom you fear arrogance, [first] advise them; [then if they persist], forsake them in bed; and [finally] strike them [without violence]. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand.” [Surah an-Nisa, verse: 34]
“And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed Allah is ever Knowing and acquainted” [with all things]. [Surah an-Nisa, verse:35]
The need of appointing an arbitrator between both families [among the family members] is stressed in the preceding verses. This is because when this issue is brought to the attention of outsiders rather than family members, the situation can deteriorate, as both parties may feel ashamed and hence distance themselves from one another. However, arbitrators from outside of the family members can also be appointed if they cannot be handled by both immediate family members. Moreover, occasionally the situation worsens, and despite the best efforts of family members, and arbitrators, it fails, and it becomes impossible to maintain the relationship as husband and wife.
When the relationship reaches that point, it is better to terminate the marriage for the sake of both parties’ tranquillity and security and most importantly for the better future. To free both parties from this oppressive condition, Islam pays special attention to the psychological and social well-being of the couple and allows the marriage to be annulled. In contrast to other religions, Islam does not terminate a marriage for eternity. Rather it emphasized on few steps to take before terminating for eternity if there is a need.
In Islam, a man has the unilateral authority to divorce his wife verbally or in writing. The right of divorce was given to a man alone in whom the ingredients of thought, end-perception, and forbearance were more pronounced than in a woman. This free choice was not given in the hands of a woman so that the disposition of being overtaken by transitory emotions, which is more pronounced in women as compared to men, may not become the cause of divorce.
Since women have less tolerance (especially when it comes to matrimonial matters), otherwise they would use it as ammo in situations when it is not necessary. This is not to suggest that Islam has stripped women of their rights when it comes to “Islamic Divorce.” When she is faced with adversity, a brutal relationship, or even domestic violence, she has the right to seek Islamic Khula (mutual consent to end the marriage) or Faskh (institutional dissolution) if she can justify her reasons for requesting the divorce.
Although the right to divorce is universally granted to the husband and is halal, this act is most detested in the eyes of Allah swt. It appears in Hadith: Narrated by Abdullah Ibn Umar r.a: “The Prophet s.a.w said: Of all lawful acts the most detestable to Allah is divorce”. [Sunan Abi Dawud-2178]
Islam has established the following conditions to avoid divorce during particular times
The second restriction: is that this option should not be used in times of strong rage or brief dissatisfaction. It is recommended not to give Talaq while one is angry. The Talaq will be effective even if it is delivered although it should be avoided.
It is also forbidden to give three Talaq in one breath or one go. When there is a discrepancy, one should not abuse the authority of issuing the Talaq. Most importantly, divorce should not be given during menstruation. In addition, divorce should not be granted
during a ‘طُهْرٌTuhr’ (state of purity) in which the husband had sexual relations with his wife.
In the above last two situations, the iddah period may be lengthened and this is prohibited since it may cause her discomfort, which Allah forbids. Allah proclaims:
“O Prophet s.a.w! when you divorce women, divorce them for their prescribed time,” [Talaq, Verse:1]
If one desires to divorce, do so while bearing in mind that the iddah will not be extended. If a divorce is granted while a woman is menstruating, the iddah period will not be counted until she has completed her menstruation and will then be counted after she has her menstruation. On the other hand, if she is divorced at the start of her ‘طُهْرٌTuhr’ non-menstruating period and has had intercourse, there is a chance she will become pregnant, and if she does, the iddah will terminate once the child is born. As a result, the iddah may be prolonged as stated above.
Another rationale for giving divorce during ‘طُهْرٌ’ (state of purity) is that his or her wrath will have diminished by this time, and they will be able to forgive each other. As a result, they may withdraw from thoughts to divorce each other.
According to the third stipulation: dissolving a marital relationship is not the same as severing a common sale contract. When a marriage contract is broken, it is not entirely broken like a sale deal. There are three levels of divorce completion, as well as the additional need of passing the iddah. And the relationship remains intact during this iddah; for example, a wife cannot marry another man while in iddah, but a man can marry another woman. He is, however, prohibited from marrying his wife’s full sister or any mahram relative.
The fourth restriction stipulates: that if the Talaq is given in a clear word one or two Talaq (in number) and does not include the term Bai’n (instant curtailment), the divorce will not take effect immediately after the Talaq is issued, and the relationship between the two will remain intact until the iddah is completed. If the divorce is revoked, the relationship will resume as it was.
However, this revocation is limited to one or two Talaqs, so that an abusive spouse does not take advantage of the procedure by divorcing her multiple times while keeping her in his relationship. That is why Allah has devised a plan in which anyone who provides the third Talaq will be bound for eternity. Even if both partners agree to undertake a new Nikah, it will not be valid unless she marries another husband.
It’s also worth noting that if one or both Talaqs include the word Bai’n or similar equivalents, the divorce will be terminated immediately, and the couple will have to start again with a new Mahr and Nikah in front of two (male) witnesses, as described above.
As we’ve already reviewed the verse of Talaq in question in terms of the important laws and regulations; now we’ll look at the words/sentences in this verse.
Firstly, “اَلطَّلَاقُ مَرَّتَان” Talaq be (pronounced) twice. As a result, there is a stipulation in these two Talaqs that the marital relationship does not end immediately; rather, he has the opportunity to revoke within the term of iddah and cohabit with her as stated above.
Secondly, if he does not revoke within the period of iddah, the marriage will be automatically dissolved. Allah says in this regard: “then keep (them) in good fellowship or let (them) go with kindness”. [2:229]
It means (then either to retain them in good fellowship or to release them in fairness) that is, either, one must revoke the Talaq and retain his wife in his marriage, or allow her iddah or to be completed nicely and generously so that she can become free.
In addition, before we discuss the third Talaq, it is important to note that (in the case of one/two Talaq) when a husband is abusive or aggressive and refuses to keep her, give her Talaq, or fulfil her requirements, and she becomes frustrated in this situation, the husband seeks to blackmail her emotionally, physically, or even financially, for example, on unpaid Mahr, he would demand that she pay him. As a result, Allah declared this type of approach to be Haram. “And it is not lawful for you to take any part of what you have given them”. [2:229]
However, one exception was made, allowing forgiveness or the return of Mahr (dower). When a woman feels she can’t do justice to her husband’s rights due to temperamental differences, and the man feels the same way, it’s acceptable to give or take a divorce instead of the Mahr money. “Unless both fear that they cannot keep within the limits of Allah” [2:229]
THIRD TALAQ
After dealing with the above problem, the third Talaq was mentioned in this manner: “So if he divorces her she shall not be lawful to him afterward until she marries another husband”. [2:230]
If the husband then goes on to pronounce the third Talaq (which Shari’ah does not approve of), the Nikah will be nullified completely. He has explored all options for reversing his divorce and reuniting with his wife. And because he went above the rules of Shari’ah by providing the third Talaq needlessly, he must now face his punishment, which is that they will not be able to remarry even if both of them agree. Now, the condition of such Nikah is that the woman (after completing her term of iddah following Talaq) enter into marriage with another man, fulfil matrimonial obligations, and live with this other husband for them to remarry. After that, if her second husband divorces her (or dies), she can remarry her first spouse after completing her iddah again. The last sentence of the verse says: “Should he too divorce her, then there is no sin on them in their returning to each other”. [2:230]
As above, it will be assumed that he has supplied the final and decisive Talaq deliberately. Furthermore, because the wife abandoned her close ties and relatives only for the sake of this marriage and agreed to reside with him for the rest of her life, yet he did not consider her love and affection, Allah swt made the wife haram upon him to punish in this manner. As a result, he will be barred from having any form of contact with her. The status of the pious wife has been stated in the following hadith “The whole world is a provision, and the best object of benefit of the world is the pious woman”. [(1) Sahih Muslim-1467, (2) Sahih Ibn Hibban-4031]
Also, Allah says: “If you are grateful, I would certainly give you more and if you are ungrateful, My chastisement is truly severe”. [Surah Ibrahim:7]
Three Talaq and its injunctions
A comprehensive examination of the Noble Qur’an’s style reveals that the Shari’ah’s correct technique of pronouncing Talaq is to limit oneself to two Talaqs at most, and it is not appropriate to go beyond that. The third Talaq is found in the phrase “فَاِنْ طَلَّقَهَا” (then, if he divorces her) after the usage of the word “اَلطَّلَاقُ مَرَّتَان” in verse 229, the third Talaq is identified in the word “فَاِنْ طَلَّقَهَا” (Then, if he divorces her) wherein the letter ‘اِنْ’ (if) is noteworthy.
The indirect reference in question is seen here. The third Talaq could also be expressed (by Allah) simply by saying “اَلطَّلَاقُ ثُلَاثُ” ‘There are three divorces’. This phrase is a clear indication that one should not get to the third Talaq level. This is why Imam Malik r.a. and a several other jurists refused to allow the third Talaq. They name it Talaq al-bid’ah (the Talaq of Innovation). Other jurists have declared that three Talaqs are lawful only if they are pronounced individually in three Tuhrs (the state of post-menstrual purity).
This has also been referred to as Talaq al-Sunnah in the terminology adopted by these jurists. However, by using this word, none of them are implying that delivering three Talaq in this manner is good or Sunnah. For the mere reason that this form does not equate to bid’ah, it was given the term Talaq al-Sunnah rather than Talaq al-bid’ah.
The gist of what has been proven regarding the Talaq count, based on the guidance of the Qur’an and Sunnah, as well as the practice of the Companions of the Holy Prophet s.a.w. and their followers, is that when there is no other option but Talaq, the best method of pronouncing Talaq is to pronounce one Talaq while in a state of Tuhr (purity) in which sexual intercourse has not occurred. Then leave this particular Talaq untouched. When the iddah is completed, the Nikah relationship will be annulled as well. It has been termed al-Talaq a-hasan by Muslim jurists, and it has been declared the best method of Talaq by the respected Companions of the Holy Prophet s.a.w.
Ibn Abi Shaybah has reported from Sayyidina Ibrahim al-Nakha’i (r.a), the noble sahabah (Radiallahu Anhum) preferred the method in which nothing is done after one Talaq is given and the iddah of Talaq (three menstruation periods) is set to expire so that the woman becomes free. [Musannaf Ibn Abi Shaybah, vol-4, Kitab al-Talaq, Hadith-5]
The permission to say up to two Talaqs can also be extrapolated from the noble Qur’an’s words, however, the usage of the term’, (twice) has been pointed out that two Talaqs should not be pronounced in one utterance and at one moment, but should be given separately in two tuhrs (states of purity). The word ‘مَرَّتَان’ (two Talaqs are permitted) might have also been used to prove the permission of two Talaqs, but the word ‘مَرَّتَان’ suggests that the two Talaqs should be given separately, in two distinct tuhrs (states of purity). [Tafseer Ruhul Ma’ani, vol-1, p-723]
The accompanying translation uses the adverb ‘twice’ to stand for the Qur’anic word ‘مَرَّتَان’, to cover this element of sequence and deferment, because lexically, ‘twice’ indicates — on two occasions or two times. In summary, the limit of two Talaq is established by the Qur’an’s teachings. As a result of the agreement of Imams and fuqaha’ (Muslim jurists), this Talaq is included in Sunnah, i.e. it is not a bid’ah (innovation). The fact that the third Talaq is undesirable is plainly stated in the Qur’anic text. Nobody has questioned the fact that this is undesirable.
A hadith of the Holy Prophet s.a.w. proves how detested and repulsive the third Talaq is.
Imam an-Nasa’i relates on the authority of Mahmud Ibn Labid that: “The noble Prophet s.a.w. was told about a man who had divorced his wife by pronouncing three Talaqs simultaneously. He rose in anger, then said: ‘What is this game being played with Allah’s Book while I am present amongst you?’ In the meantime, a man stood up and said: Ya Rasulallah! should I not kill him?“ [Sunan An-Nasai: 3401]
Hafiz Ibn al-Qayyim r.a has ruled that the isnad of this hadith is sahih according to the conditions prescribed by Muslim. ‘Allamah al-Mardini, in his al-Jauhar al-Naqi, calls the sanad (chain) of this hadith sahih, Ibn Kather terms the isnad (chain) as excellent and Ibn Hajar and Al-Qustulani finds this ‘narrated by the reliable.
[(1) Zada al-Ma’ad, vol-5, p-220, (2) (Al-Iraqi) Al-Taqyidu wal Idah, p-328, (3) Fath al Bari, vol-9, p-414, (4) Irshad al-Sari, vol-8, p-134]
To summarise, the three levels of Talaq established by Shari’ah in the form of three Talaqs do not imply that passing these three stages is obligatory or preferable. Instead, the Shari’ah intends for the first step toward divorce to be a detestable and reprehensible act.
If such a step has to be taken under dire compulsion, the simplest possible stage, namely one (pronouncement of) Talaq, should be considered adequate to allow iddah to take its course.
Once the iddah is completed, this single Talaq will be sufficient to end the husband-wife relationship, allowing the wife to marry someone else. This Talaq method is known as ahsan, which means “excellent”. There is wisdom in this manner, as well as an element of advantage because the parties involved will still have the possibility of reconciliation if only one Talaq has been given in explicit words to that effect. The Nikah will undoubtedly be broken and the woman released when the iddah has ended, but there will still be room for reconciliation between them, and if they reconcile and choose to remarry, a new Nikah could be solemnized immediately.
However, if a person does not follow this manner of ahsan Talaq and instead pronounces another Talaq in the explicit language during the period of iddah, he then completes two unnecessary phases of the severance of Nikah.
For one who has gone through these two stages of Talaqs, the instruction given later is: “then either to retain in the recognized manner or release in fairness”. [2:229]
Here two injunctions have been communicated through the words:
Firstly, revocation during iddah does not necessitate a new Nikah; instead, simply ‘اِمْسَاكٌ’, or keeping one’s wife by cancelling the Talaq, is required. The marriage relationship will be re-established based on the previous Nikah if this is done.
Secondly, the husband was instructed to take steps to effect his raj’ah (revocation) only if he intends to remedy the issue and looks forward to living in peace and harmony; if he does not, he should pass this choice and the marriage relationship will cease when the iddah is completed. The concern here is that raj’ah may not be done just to harass the woman without any intention of correcting the situation.
It was said, “اَوْ تَسْرِيحٌ بِاِحْسَانٍ” to complement this. This demonstrated that no extra Talaq, or for that matter, any other step, is required to end a relationship. The fact that the iddah has not been revoked is sufficient to dissolve the marriage partnership. That the iddah expires without revocation is, in itself, sufficient to end the marriage relationship.
Abu Dawud r.a reports on the authority of Abu Razin al-Asadi that, following the revelation of this verse, a man asked the Holy Prophet s.a.w Allah Almighty has said: “اَلطَّلَاقُ مَرَّتَان” (Divorce is twice). why the third Talaq was not mentioned here?
He said: ‘The expression “اَوْ تَسْرِيحٌ بِاِحْسَانٍ” (To release in fairness) which follows immediately is the third Talaq.’
[(1) Abu Dawud-Al-Marasil, p-302, (2) Musannaf Ibn Abi Shaiba-19561, (3) Tafseer Ruhul Ma’ani, vol-1, p-722]
It signifies that, according to the consensus of ‘ulama’, the act of absolute severance of marriage relationship that would result from the third Talaq would be resolved by this manner of action, namely, not revoking the divorce during the period of iddah. Now, just as the wife, if retained after the revocation of talaq pronouncement (raj’ah), should be retained in dignity and grace, the restrictive condition of ‘بِمَعْرُوْفٍ’ (in recognized manner) was placed alongside ‘اِمْسَاكٌ’ (retaining).
Similarly, by including the restrictive condition of ‘بِاِحْسَانٍ‘ (in fairness) alongside ‘تَسْرِيح‘ (release), the instruction was given that the Talaq is the dissolution of the transaction, and gentlemen go through their transactions and contracts in good taste and manners, and if the dissolution of the contract is necessary, it should be done with charity, kindness, and grace, for instance, allow the divorced wife to go with some gifts, such as clothing and the like, while saying her goodbye. In the Qur’an, it is stated: “So, give them benefit – the rich man according to his means and the poor one according to his means”. [Surah Baqarah, 2:236]
And, if he chooses not to do so, instead of going one step further and declaring the third Talaq, he has now hit a dead end, having unjustly and unnecessarily eliminated all of his options while rejecting the Shari’ah’s favors. The punishment he now deserves is that raj’ah (revocation) will be impossible, and the couple will not be reunited in the marriage unless the wife marries someone else. For example; killing unjustly is a crime and a sin. After all, a person who is shot with a bullet or stabbed with a knife is dead. His death occurs regardless of whether the gunshot was fired legally or illegally.
The Curse on the participants of Tahlil/Halalah
The reason for the woman (who was divorced thrice) to marry another man must be that the man desires her and has the intention of having an extended married life with her.
These are the legal goals and aims behind marriage. If the reason behind the second marriage was to make the woman eligible for her ex-husband again, then this is the Tahlil (conditional temporary marriage) that the Hadith have cursed and criticized.
Imam Ahmed r.a reported that Abdullah bin Mas’ud r.a said, “Allah’s messenger s.a.w cursed the one who does Tahlil, the one in whose favor it is done.“
This hadith is authenticated by Imam Tirmidhi and Nasa’i which Imam Tirmidhi said “This hadith is Hasan.” [(1) Ahmed, vol-1, p-450, (2) Musannaf Ibn Abi Shaiba, vol-4, p-296]
In his Mustadrak, Al-Hakim reported that Nafi said: “A man came to Ibn Umar r.a and asked him about a man who divorced his wife three times. Then, his brother married her to make Tahlil for his brother, without the brother knowing this fact. He then asked, “Is she allowed for the first (husband)?” He said, “No, unless it is a marriage that involves desire(sexual intercourse). We used to consider this an act of adultery during the time of Allah’s Messenger.” [Mustadrak Al-Hakim, vol-2, p-199]
The above mentioned practice is completely forbidden in Islam. Therefore, it is advisable that not to delve in to this kind of practice otherwise the wrath and the curse of Allah swt and his messenger s.a.w is eminent. May Allah swt give us the true understanding of Islam and practice upon it. Ameen.
Please read the PDF Article below to understand the system of “Islamic Divorce procedure in the light of the Qur’an and Sunnah“ (8 pages)
