339. ‘Talaq’ or Divoroe is a technical term in Shariah. It means freeing the wife from the contract of nikah. Islam has given clear-cut orders to make marriages last and to strengthen the conjugal relationship but in view of the fact that sometimes and in certain circumstances the continuance of this relationship can become a source of mischief and disturbance, Islam has permitted divorce in order that the husband and wife may not be forced to live an unhappy life. If Islam has given permission for separation by divorce, it has declared this as an undesirable thing. Accordingly, the prophet has stated: -

‘’Among the lawful things, the most un- liked thing by Allah is divorce.” (Abu Dawood).

It means the intention of the Shariah is that the husband should make use of this right only in very rare cases when separation becomes inevitable

The right form of divorce as proposed by Shariah should be understood properly. Some of these instructions will follow.

It may also be remembered that Islam gives permission or right to man to pronounce divorce but it also provides certain provisions for women to get release from men. One of these provisions is “Khula” about which the commnad is given in this verse.

There was a command regarding divorce in the Shariah of the prophet Moosa (Moses), but the people of the Book indulged in unbalanced practices. The Jews made it very easy and the Christians made it very difficult. In this connection the Torah has to say as under :-

“When a man takes a wife and marries her, if then she finds no favour in his eyes because he has found some indecency in her and he writes her a bill of divorce and puts it in her hand and sends of his house and she departs out of his house and if she goes and becomes another man’s wife” (Deuteronomy 24. 1-2)

There was rule among the Jews that after divorce the husband could not take back the divorced wife again as a wife. On the other hand, the new testament has the following :

“What therefore God has joined together, let not man put asunder. And in the house the disciples asked him again about this matter. And he said to them, ‘whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery.” (Mark 10: 9-12)

On account of this the christians absolutely forbade divorce and allowed it only in the case of the wife being guilty of illegal sex. But if a realistic viewpoint is adopted then there will be found many reasonable grounds for allowing divorce. Accordingly, the editor of the Encyclopedia of Religion and Ethics writes:–

“ Although it is evident that adultery affects the marraige relation more closely than any other offence, yet it may fairly be said that there are other things which may make married life so intolerable and the perfect ideal union so impossible that if divorce or separation be allowed at all, the grounds for such separation ought not in reason to be confined to the one offence of adultery... there are offences which make life so intolerable that there can be no restoration of affection that real vinculum has been raptured and that therefore such offences may rightly be put in the same category as conjugal infidelity in the strict sense of the word.” (Encyclopedia of Religion and Ethics Vol. VIII P. 438)

Islam’s stand is balanced. It represents moderation between the two extremes. On the one hand Islam has declared divorce as an undesirable thing and on the other hand it has fixed limits and conditions for using the right of pronouncing divorce.

340. Divorce is to be given two times means that there are two chances in the revocable divorce. In other words in Islam divorce is not such a thing that the tie of marriage is broken in one sudden stroke but that a man is given two opportunities to review his decision. He can join his wife not only after pronouncing divorce once but also pronouncing it even for the second time However if he decides to pronounce divorce for the third time, and does so, then there is no chance for him for reconciliation) about which the command is coming in the coming verses.

In pre-Islamic (jahiliya) days men used to pronounce divorce off and on and then used to reconcile, which caused a lot of trouble and harassment to the women. Quran stopped this tyranny and the chance of reconciliation was limited to the two revocable pronouncements of divorce. And if a man has pronounced divorce for the third time then he would not have the chance of reconciliation with the same woman.

The correct way of pronouncing divorce in Islam is that when the wife is in a clean (nonmenstrual) condition in which no sexual intercourse had taken place, one divorce may be pronounced.

After this the wife will have to pass the time of waiting, known as ‘‘Iddat’’ (which is three menstrual periods or in the case of a pregnant wife, till termination of pregnancy). During this period of waiting the husband has the right of revoking. If the husband does not want to revoke then the period of waiting should be allowed to pass. After the period of waiting or “lddat” is over, the woman will be free but for both of them there would remain the opportunity of reunion by remarriage with mutual consent. If after revocation or remarrying, the husband has pronounced divorce for the second time, then during the period of Iddat, the husband will have the right to revoke and to re-marry after the period of Iddat is over. If after the second Nikah or remarriage the husband pronounced divorce for the third time, then this would be an absolute divorce after which there is no right for reconciliation nor can the two re-marry with mutual consent, until the woman marries another man and the other man divorces her with his own free will.

In the Surah Talaq (Chapter Divorce) which was revealed subsequently this command is stated in detail, that the divorce should be pronounced for the period of waiting (Iddat).

“When you divorce your women, divorce them for the period of waiting.”

This clearly shows the intention of the Quran that no divorce should be pronounced which does not allow for the period of waiting or in other words two divorces are necessarily to cover two periods of waiting.

As regards the system of pronouncing three divorces at one and the same time, it may be stated that it is not according to Shariah; on the contrary it is against the Shariah and Sunnah. On account of their ignorance of the laws of Shariah and in their anger and highly emotional state, people pronounce: Divorce ! Divorce ! Divorce ! or three divorces in one sitting or at one time. To treat this kind of pronouncement to divorce as “Third Degree Divorce or Absolute Divorce” is neither the intention of the Quran nor is it a reasonable and justifiable practice. Therefore the proper thing is to consider this kind of pronouncement of three divorces at one time as one revocable divorce, so that the husband may get an opportunity of reviewing his decision and reconciliation, which Quran has included as an important rule in its rules for divorce.

341. That is: To the extent of two divorces the husband can revoke if he so desires during the period of waiting though this revocation should be with the good and honest intention of keeping the woman as a full-fledged wife and not to harass and give trouble to the woman.

342. That is: If the woman is to be released; she should be released gracefully with kindness. The woman with whom there was a relationship of love and who is a member of the fair and weaker sex should be released after giving her some gifts and with good grace.

343. In the case of divorce, the husband should not demand back the Mehr (dower), nor the gifts and presents which he had given to his wife because to demand things given to a woman whom he himself was leaving is not morally correct. Mehr or dower is a woman’s right and the question of getting it back does not at all arise. However, the circumstances of ‘Khula’ are different which is discussed next.

344. If it is not possible for the man and wife to keep the limits which are necessary to continue the conjugal relationship, then the wife by returning the amount of Mehr (dower) or by paying something as compensation can get release, which is technically known as ‘Khula’. “If you fear”– these words are addressed to the Muslim society, and the Muslim society can fulfil this responsibility through the court of law. Therefore, if a woman wants ‘Khula’ (release from her husband) and the husband is not willing, then the wife has a right to take the matter to the Islamic Court; and the Court after satisfying itself that the two cannot live together happily can decide about ‘Khula’ and can also take a decision about compensation in the light of the circumstances obtaining. From this it is clear that on the one hand if Islam has given a right to man to pronounce divorce on the other hand it has given the right of obtaining ‘Khula’ to woman, which is a proof of the fact that the Islamic Family Laws are perfectly balanced and are based on justice and fair-play. If ‘Khula’ is granted, the Nikah or the marriage would be dissolved or one revocable divorce (Baain) would result, which would mean that the husband alone would not have the right of revocation. However, if the husband and wife both desire, then remarriage can take place.

345. This is a warning for those who do not care for Allah’s command and His laws and break them. This would give an idea that according to Quran how big a sin is an effort to alter, amend or cancel the family laws of Islam.

346. Refers to pronouncing divorce for the third time. Earlier it has been said that the husband can pronounce divorce twice in his life and can reconcile after two divorces during the waiting time (Iddat). Here the instructions are given in connection with the pronouncement of the third divorce .

It means that if the husband has given three divorces, then the woman would not be lawful for the husband unless she marries another person and is divorced by that person. If the second husband divorces the woman or dies, then the woman can remarry her first husband. The purpose of this command is that people should not make divorce a plaything and harass women but that they should decide about pronouncing divorce after due consideration and thought. This command is concerning the pronouncement of the third divorce i.e. the divorce that is to be given on the third occasion and not concerning pronouncement of three divorces at one and the same time or uttering “divorce.”, “divorce” “divorce” at one time, which has been dealt with in detail in the Note No.340.

347. It may be made clear that in the case of the third pronouncement of divorce, the condition of the woman again being lawful for the man does not imply that the woman should marry another man with the understanding that he would divorce her to enable her to remarry with the ex-husband.

The intention of this command is that if this woman by her own free will marries another man in the recognised way with no condition of divorce superimposed; but if after this marriage, the second husband divorces the woman, then she can remarry her first husband.

The third pronounced divorce is technically called Irrevocable and Absolute divorce. (Mughallaza-Baaina).

When you have divorced women and they have reached their term (Iddat), then retain them on equitable terms or release them on equitable terms. Retain them not to hurt them so that you transgress (the limits). He who does that has wronged his own self. Do not treat Allah’s signs as jest, but remember Allah’s grace upon you and that which He has revealed to you of the Book and of wisdom, for your instruction. And fear Allah and know that Allah is aware of all things. (Al-Quran)

348. That is: Revocation can be effected before the termination of the period of waiting. ( Iddat )

349. Here Allah’s signs mean His commands and laws.

350. The greater the fear of Allah in the heart of man and the greater a man’s knowledge about Allah’s omniscience, the better chances for him to be saved from disobeying Allah.