Verse:229 Commentary Commentary

The injunctions governing talaq طلاق (divorce) and nikah نکاح (marriage) appear in several verses throughout the Qur'an but the verses mentioned here consist of cardinal rules of procedure in cases of divorce. To understand these, it is necessary to know the status of Nikah نکاح in the Shari'ah of Islam.

Marriage, divorce and the rules governing them

One commonly known aspect of Nikah نکاح (marriage) is that of a mutual transaction and contract similar to transactions in buying and selling and in loans and payments. The second aspect is that of Sunnah and ` Ibadah عبادہ . On this, there is a consensus of the whole ummah that nikah نکاح ، being far above ordinary transactions and contracts, has the status of ` Ibadah عبادہ and Sunnah (the act of worshipping Allah and following in the footsteps of the Prophet صلى الله عليه وسلم ). Therefore, in order that nikah نکاح be duly solemnized, there are, by the consensus of the ummah, some peculiar conditions which are not found in ordinary transactions of buying and selling.

First of all, nikah نکاح cannot take place between any man and any woman. Governing this, there is an absolute law of the Shari'ah under which several categories of men and women cannot be joined together in the bond of marriage.

Secondly, for all transactions and contracts, in order that they be concluded and finalized, witness is no condition. A witness is needed when parties differ, but nikah نکاح is not such a transaction. Here, in order that it be concluded, the physical presence of witnesses is a pre-condition. If a man and woman, the two of them mutually agree to have their marriage solemnized without witnesses, and even if, any one of the two never differs or retreats, that marriage is, according to the Shari'ah, still invalid, unless both respond to the proposal and acceptance before witnesses. However, the Sunnah is that 'nikah نکاح ' must be solemnized with a public announcement. Similarly, there are many other conditions and rules of decorum that are either necessary or masnun مسنون in marriage.makhan38

According to Imam Abu Hanifah (رح) ، and several other leading Muslim jurists, the aspect of ` Ibadah عبادہ (worship) and Sunnah in nikah نکاح dominates over the aspect of transaction and contract. Evidences from the Qur'an and Sunnah support it.

After this brief familiarity with the real nature of marriage, let us understand divorce. The outcome of talaq طلاق (divorce) is to terminate the transaction and contract of nikah نکاح (marriage). Just as the Shari` ah of Islam, by giving nikah the status of an act of ` Ibadah عبادہ ، 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.

According to the drift of Islamic teachings, the transaction and contract of nikah نکاح should be for the whole life-span. The point of departure where it has to be broken or terminated should never be reached because the discontinuation of this deal affects not only the parties involved but goes on to destroy children, and their children, and at times, it may even cause whole families and tribes to end up with disturbed relations, which in turn, badly infects the whole society. Therefore, the teachings of the Qur'an and Sunnah have taken all necessary steps to remove impediments that may cause the breaking of this deal. The focal drive of instructions given in the Qur'an and Sunnah covering all problems and situations relating to the married couples is that this relationship should always keep on becoming stronger and stronger and may just never break. Should disagreements crop up, instructions were given to first try and understand each other's point of view and talk it out, and in the event of failure, ways of restraint, hard advice and warning were identified. Should the tussle become serious and these elementary steps do not bring a resolution of crisis, the parties were then expected to set up a panel for arbitration comprising of the members of their immediate families who could help patch up the differences. The emphasis on making members of the family as sole arbitrators in the verse حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا :'Then send one arbitrator from his people and one from her people' is certainly very wise since the tussle, if it escapes the immediate family circle, will only aggravate the situation and the parties may draw further apart.

But there are occasions and situations when all efforts for reconciliation fail and the parties in conflict rather than benefit by the desired results of the nikah نکاح relationship, feel that being married together is a mutual punishment. Under such conditions, terminating this husband-wife relationship becomes, in itself, a way-out promising comfort and peace for the parties. Therefore, the Shari'ah of Islam did not, as did some other religions, patently confirm that the marriage relationship must remain unbreakable under all conditions. Going a step ahead, it has framed a specific law for divorce and the dissolution of marriage. The right of divorce was given to 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 women 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.

But women too, were riot totally deprived of this right lest they are left with no alternative but to keep groaning under the cruelty of her husband. She was given the right to take her case to a court presided by a judge who qualifies as such under the rules of Shari'ah, present her complaint, prove her case, and get the marriage annulled, or secure a divorce. Then, as it is, Allah Almighty did entrust man with the free choice of divorce, but at the very first instance, it was declared that the use of this choice was very much detested and disapproved in the sight of Allah. It was permitted only in extreme situations of compulsion. It appears in Hadith: ابغض الحلال الی اللہ الطلاق : Divorce is the most detested of lawful things with Allah.

The second restriction placed stipulated that this choice should not be used in extreme anger or fleeting displeasure. It was due to this wisdom that the pronouncing of divorce was forbidden during the period of menstruation, as well as, during a' tuhr اطہُر (the state of purity) in which the husband has had sexual intercourse with the wife. The pronouncing of divorce during menstruation and in a' tuhr اطہُر marked by intimacy was forbidden on the basis that it would become the contributing reason to elongate the ` iddah عِدَّہ or 'waiting period' of the woman, which will aggravate her pain and worry. For these two situations, the noble Qur'an has this to say: فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ that is, divorce -- if it has to be given -- should be given at a time when the ` iddah عِدَّہ of the woman does not become longer without any reason. If divorce became effective during menstruation, that particular menstruation will not be counted in ` iddah عِدَّہ . The count of ` iddah عِدَّہ will begin from the next menstruation. And in a' tuhr اطہُر marked with intimacy, the chances of pregnancy exist, which would elongate the period of ` iddah عِدَّہ ، upto the time of delivery. Another reason for fixing the time of tuhr طہُر ، mentioned earlier for the pronouncement of divorce is that it is quite possible that in the meantime the anger goes away, forgiveness and recompense follow and the very idea of divorce is withdrawn.

Now under the third restriction, the method adopted in breaking the marriage- contract and its annulment was not kept identical with that of the transactions and contracts of common buying and selling activity which releases the parties concerned of all obligations instantly once the contract is annulled. The first deal is all over and everybody gets the option to enter into another contract with some other party. In fact, in order to sever the marriage-relationship, talaq طلاق has been subjected to three stages. Then it was topped with the restriction of ` iddah عِدَّہ since a lot of residual effects of the nikah نکاح -relationship will remain active until the completion of ` iddah عِدَّہ . Another marriage will not be lawful for the woman. Some restriction on the man would also continue.

The fourth restriction stipulates if divorce was given once or twice in clear and unambiguous words, nikah نکاح did not break instantly on the pronouncement of talaq طلاق ; the marriage relationship continues till the completion of ` iddah عِدَّہ . If the husband revokes the talaq طلاق ، the previous nikah نکاح will remain valid.

This choice of ruju` رَجُوع (revocation or the act of taking back one's divorced wife) was restricted to only one or two talaqs طلاقین ، so that some cruel husband may not make a practice of giving talaqs طلاقین ، and then take her back and keep her as some captive. Therefore, came the injunction: If someone pronounces the third talaq طلاق as well, he now has no choice of ruju رَجُوع (revocation), that is, he cannot take his wife back. In fact, even if they wish to remarry after mutual agreement, their being joined together in marriage a second time is not lawful, except in a peculiar manner which has been described later on.

The verses under study consist of important injunctions relating to this system of divorce. Now let us ponder over the words, of these verses. In the beginning of the verse it was first said: الطَّلَاقُ مَرَّ‌تَانِ : that is, 'talaq طلاق is twice'. Then, in the process of these two talaqs طلاقین ، a certain flexibility was provided by virtue of which the marriage was not totally annulled; instead, the man has the choice to return to his wife and retain her in his marriage. Or, he may elect not to do his ruju-` رَجُوع (revocation) from the earlier pronouncements, allow the ` iddah عِدَّہ to be completed and once the ` iddah عِدَّہ is over, the marriage relationship will be terminated. This subject was stated in the words فَإِمْسَاكٌ بِمَعْرُ‌وفٍ أَوْ تَسْرِ‌يحٌ بِإِحْسَانٍ , (then either to retain in the recognized manner or to release in fairness) that is, either, one must revoke divorce and retain his wife in his marriage, or, allow her ` iddah عِدَّہ or the waiting period to be completed nicely and generously so that she can become free.

The third talaq طلاق (pronouncement of divorce) still remains unmentioned while the text takes up another problem in between, which generally comes up for. discussion under such conditions. The problem is that there are some cruel husbands who neither wish to retain their wives, nor care about their rights, nor give them divorce. The wife is placed in a situation of duress while the husband, taking advantage of her helplessness, demands some money or property from her, or as a last resort, demands that the mahr (dower) be forgiven, or returned in lieu of divorce. The Qur'an declares this to be haram حرام (unlawful). It was said: وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا that is, it is not halal حلال (lawful) for you that, in return for talaq طلاق ، you take back from them money or mahr مھر (dower) or anything else given by you.

However, one exception was made in which forgiveness or return of mahr مھر (dower) was made permissible. Where the woman feels that she cannot do justice to the rights of her husband because of difference in temperaments and the man too, feels the same way, then this becomes a situation in which it is also permissible that divorce be given or taken in lieu of the forgiveness or return of mahr مھر (dower). Verse:230 Commentary After dealing with the above problem, the third talaq was mentioned in this manner فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَ‌هُ that is, if that person goes on to pronounce the third talaq as well (something not liked by the Shari'ah), the transaction of nikah shall stand totally annulled. He has exhausted his choice to revoke his divorce and take his wife back. And since he transgressed the limits of Shari'ah by unnecessarily giving the third talaq, he must now have his punishment whereby it is not possible for them to remarry each other even if both of them agree to do so. Now, in order that they could remarry each other, the condition of such nikah is that the woman (after completing her period of ` iddah following talaq) should enter into marriage with another man, fulfill matrimonial obligations and live with this other husband. Thereafter, if by chance that other husband also divorces her (or dies), she could remarry the first husband after completing her ` iddah. The last sentence of the verse says:

فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَن يَتَرَ‌اجَعَا

Should he too divorce her, then there is no sin on them in their returning to each other.

Detailed injunctions regarding three divorces at a time

A close look at the style of the noble Qur'an makes it explicitly clear that the right method of pronouncing talaq stipulated by the Shari'ah is that one should, at the most, reach the limit of two talaqs and it is not appropriate to reach to the extent of a third talaq. After the use of words الطَّلَاقُ مَرَّ‌تَانِ in verse 229, the third talaq is identified in the words فَإِن طَلَّقَهَا (Then, if he divorces her) wherein the letter إِن (if) is note-worthy. Here the hint in question is visibly present. Otherwise, the third talaq could simply be expressed by saying الطَّلَاقُ ثُلث 'The divorces are three.' Now the text, to the exclusion of expressions to this effect, has an expression of its own which carries a clear hint that one should not reach the stage of the third talaq. This is why Imam Malik (رح) and several other jurists did not just permit the third talaq. They call it talaq al-bid'ah الطَّلَاقُ (the innovated talaq: divorce without the authority of the Qur'an and Sunnah). Some other jurists have ruled that three talaqs are permissible only on condition that these three talaqs be pronounced separately in three tuhrs (the state of post-menstrual purity). In the terminology used by these jurists this too has been termed as talaq al-sunnah. But none of them are proposing by this term that giving three talaqs in this manner is desirable, and is according to the Sunnah. In fact, this was given the name of talaq al-sunnah as opposed to talaq al-bid'ah for the simple reason that this form does not amount to bid'ah (an innovation in settled religious practice).

The gist of that which stands proved regarding the talaq count, on the authority of the guidance given by the Qur'an and Sunnah, and the practice of the Companions of the Holy Prophet صلى الله عليه وسلم and their followers is this: When no option, except that of talaq is left, the best method of pronouncing talaq is to pronounce one talaq during the state of tuhr تُہر (purity) in which sexual intercourse has not taken place. Then, let this one talaq stay as such. As soon as the ` iddah finishes, the nikah relationship will automatically be finished with it. The Muslim Jurists have called it al-talaq al-ahsan الطَّلَاقُ الاحسان and the respected Companions of the Holy Prophet صلى الله عليه وسلم have declared it as the best method of talaq.

Ibn Abi Shaybah has reported from Sayyidna Ibrahim al-Nakha` i that the noble sahabah ؓ favoured the method in which, after giving one talaq, nothing is done thereafter and the ` iddah of talaq -- three menstruation periods -- are allowed to expire so that the woman would become free.

From the words of the noble Qur'an mentioned earlier, the permission to pronounce upto two talaqs can also be deduced, but by the use of the word ,' (twice) it has been pointed out that two talaqs should not be given in one utterance and at one time but should be given separately in two tuhrs (states of purity). The use of مَرَّ‌تَانِ (Two talaqs are permissible) could also have helped prove the permission of two talaqs but the word مَرَّ‌تَانِ suggests that the two talaqs should be given at two separate occasions, that is in two separate tuhrs (states of purity).50 (Ruh al-Ma'ani)

50-The use of the adverb, 'twice' to stand for the Qur'anic word, 'marratan' in the accompanying translation is to cover this element of sequence and deferment for, lexically, 'twice' means -- on two occasions or two times.

In short, the limit of two talaqs stands proved from the words of the Qur'an. Therefore, by consensus of Imams and fuqaha' (Muslim Jurists), this talaq is included in Sunnah, that is, it is not a bid'ah (innovation). That the third talaq is undesirable is clearly indicated in the Qur'anic diction itself. That this is undesirable has not been questioned by anyone.

As to how detested and reprehensible the third talaq is stands proved by a hadith of the Holy Prophet صلى الله عليه وسلم . Imam al-Nasa'i reports on the authority of Mahmud ibn Labid that:

آخبرَ رسول اللہ صلى الله عليه وسلم عن رجل طلق امراتہ ثلاث تطلیقات جمیعاً فقامَ غضباناً ، ثم قال : ایلعب بکتاب اللہ و انا بین اظھرکم حتی قام رجل و قال : یا رسول اللہ صلى الله عليه وسلم الا اقتلہ ؟

The noble Prophet صلى الله عليه وسلم 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? (Nasa'i, Kitab al-Talaq, vol.2, p. 98)51

51-Hafiz Ibn al-Qaiyyim has ruled that the isnad of this hadith is sahib according to the conditions prescribed by Muslim (Zad al-Ma'ad). ` Allamah al-Mardini, in his al-Jauhar al-Naqi, calls the sanad of this hadith -- sahih, Ibn Kathir terms the isnad as excellent and Ibn Hajar finds this 'narrated by the reliable'.

Based on this, Imam Malik and some other leading fugaha ' فقہاء (jurists) have ruled that the third talaq is absolutely impermissible and that it is talaq al-bid'ah (a divorce based on innovation in religious practice and not supported by the Qur'an and Sunnah). Other Imams, by saying that three talaqs given in three tuhrs (states of purity) are included under sunnah talaq, have though excluded it from the purview of talaq al-bid'ah, but there is no difference of opinion as to its being undesirable.

To summarize, it can be said that the three stages of talaq (divorce) established by the Shari'ah of Islam in the form of three talaqs, do never mean that crossing these three stages are necessary or better. Instead, the intent of the Shari'ah is that the very initial step towards divorce is a detestable and reprehensible act. If such a step has to be taken under dire compulsion, it is only proper that its lowest possible stage, that is, one (pronouncement of) talaq be considered sufficient, allowing ` iddah (the waiting period) to take its course. Once the ` iddah is over, this very one talaq will become sufficient to sever the husband-wife relationship and the woman shall become free to marry another person. This method of talaq is called ahsan, that is, the best. In this method there is wisdom, and an element of advantage as well, since the option of reconciliation will remain open for the parties concerned in the event only one talaq has been given in clear words to that effect. Only taking the talaq back before the expiry of ` iddah will be sufficient to sustain the nikah. And after the ` iddah has expired, the nikah will, no doubt, be broken and the woman set free, but there still will remain room for reconciliation between them, and should they reconcile and wish to remarry each other, the fresh nikah could be solemnized immediately.

But, should a person who does not stick with this method of ahsan talaq احسن طلاق and goes on to pronounce one more talaq in clear and unambiguous words during the period of ` iddah, he then, completes two stages of the severance of nikah, which was unnecessary, and certainly not approved by the Shari'ah. However, two stages stand completed anyway. But the position, inspite of the completion of these two stages, stays where it was, that is, the choice of raj' ah (revocation) or return (to one's wife) during the period of ` iddah remains open and a fresh nikah could be made by the mutual agreement of the parties concerned after the expiry of the period of ` iddah. The only difference is that the husband has, by reaching the count of two talaqs, broken one more chain of his choices and arrived at the borderline from where the pronouncement of just one more talaq by him would end the matter for ever.

For one who has gone through these two stages of talaq, the instruction given later is: فَإِمْسَاكٌ بِمَعْرُ‌وفٍ أَوْ تَسْرِ‌يحٌ بِإِحْسَانٍ :'Then either to retain in the recognized manner or to release in fairness.' Here two injunctions have been communicated through the words

Firstly, revocation during ` iddah does not require fresh nikah; instead, only imsak إِمْسَاكٌ, that is, retaining one's wife by revoking the talaq is sufficient. If this was done, the marriage relationship will stand reinstated on the very basis of the previous nikah.

Secondly, through this, the husband was instructed to take steps to effect his raj' ah (revocation) only if he intends to correct the situation and looks forward to living in peace and harmony; if not, he should pass this option so that the marriage relationship ends following the completion of ` iddah. The concern here is that raj' ah (revocation) may not be done just to harass the woman without any intention of correcting the situation.

To match this, it was said: أَوْ تَسْرِ‌يحٌ بِإِحْسَانٍ. The word, Tasrih تَسْرِ‌يحٌ means to untie, to free, to release. Through this, it was pointed out that in order to sever relations, no additional talaq, or for that matter, no other action is necessary. That the ` iddah (waiting period) expires without revocation is, in itself, sufficient to end the marriage relationship.

Abu Dawud reports on the authority of Abu Razin al-Asadi that, following the revelation of this verse, a man asked the Holy Prophet صلى الله عليه وسلم 'Allah Almighty has said: الطَّلَاقُ مَرَّ‌تَانِ (Divorce is twice). Why the third talaq was not mentioned here?' He said: 'The expression تَسْرِ‌يحٌ بِإِحْسَانٍ (To release in fairness) which follows immediately is the third talaq.' (Ruh al-Ma'ani). It means, according to the consensus of ` ulama', that the act of the total severance of marriage relationship which would come out of the third talaq, would be taken care of by this mode of action, that is, by not revoking the divorce during the period of ` iddah. Now, just as, by placing the restrictive condition of بِمَعْرُ‌وفٍ (in recognized manner) along with إِمْسَاكٌ (retaining), the instruction was given that the wife, if retained after the revocation of talaq pronouncement (raj' a), should be retained in good grace. Very similarly, by placing the restrictive condition of بِإِحْسَانٍ (in fairness) along with تَسْرِ‌يحٌ (release), the instruction was given that talaq is the dissolution of transaction and gentlemen go through their transactions and contracts in good taste and manners and in the event dissolution of contract becomes necessary, that too, should not be done with anger or altercation, instead, that should be done with charity, kindness and grace, for instance, while saying goodbye to the divorced wife, let her depart with some presents, such as clothing and its likes. This is mentioned in the Qur'an:

وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُ‌هُ وَعَلَى الْمُقْتِرِ‌ قَدَرُ‌هُ

So, give them benefit -- the rich man according to his means and the poor one according to his means. (2:236)

And, if he, in spite of this, elects not to do so, rather, going a step farther, pronounces the third talaq as well, he now has reached a dead end where he has, quite unreasonably and unnecessarily, done away with all his options, ignoring in that process, graces allowed by the Shari'ah. The punishment he now deserves is that raj' ah (revocation) will not be possible, and without the wife marrying someone else, the couple's being re-united in marriage will also be not possible.

Three divorces given unlawfully are effective

The immediate, rational and conventional answer to this question is that the nature of an act in being a crime and a sin does not stop it from taking effect anywhere. Killing unjustly is a crime and a sin. But one who is shot with a bullet, or struck with a sword, gets killed after all. His death does not wait to discover if the bullet was fired legally or illegally. Stealing is a crime and a sin by the consensus of all religions, but that which has been stolen as such leaves the possession of the owner anyway. Similarly, all sins and crimes are hemmed in by the same situation -- that their being sin and crime does not stop them from taking effect.

In accordance with the dictates of this principle, the false steps taken., such as, the ignoring of concessions given by the Shari'ah and shooting upto three talaqs unnecessarily, bypassing all choices of talaq one has, no doubt, became a cause of anger for the Holy Prophet صلى الله عليه وسلم as stated in the previous report, and for this reason, this act was considered ` undesirable' by the consensus of the ummah, and 'impermissible' by some; but, if inspite of all this, someone has taken such a step, it should bring forth the same effect as would be that of a permissible talaq, that is, three talaqs become effective and not only the choice of raj' ah (revocation) but also the very choice of fresh nikah stands negated.

And the decision of the Holy Prophet is a testimony that he, in spite of his showing anger against giving three divorces, enforced the three talaqs, several incidents relating to which appear in books of ahadith. The ` ulama' who have written regular books on this subject have collected these incidents therein. Recently, "Umdah al-Athath عمدہ الاثاث ', a book written on this subject by Maulana Abu al-Zahid Muhammad Sarfaraz has been published and is sufficient enough. Quoted here are only three ahadith.

The report by Mahmud ibn Labid mentioned earlier with reference to al-Nasa'i does record the expression of extreme anger by the Messenger of Allah صلى الله عليه وسلم on the giving of three talaqs at one time, so much so, that some sahabah ؓ (Companions) thought that the person deserved being killed. But this is not reported anywhere that he ruled the man's talaq to be a revocable قابل للإلغاء talaq and let the man have his wife back.

On the contrary, the second report that follows clearly indicates that the Holy Prophet صلى الله عليه وسلم has enforced the three simultaneous talaqs of Sayyidna ` Uwaymir in spite of displeasure. Very similarly, Qadi Abu Bakr ibn al-Arabi has, in relation to the previously quoted hadith of Mahmud ibn Labid, reported that the Holy Prophet صلى الله عليه وسلم had enforced his three talaqs similar to the three talaqs of Sayyidna ` Uwaymir. His words are:

فلم یردہ النبی صلى الله عليه وسلم بل امضاہ کما فی حدیث عویمر الجعلانی فی اللعان حیث امضیٰ طلاقہ الثلاث ولم یردہ

So, the Holy Prophet s did not reject it. He enforced it in-stead. As it appears in ` Uwaymir al ` Ajlani's hadith of li` an, the Holy Prophet s had enforced his three talaqs and had not rejected it.

The second hadith, that of Sayyidah A'ishah ؓ ، appears in Sahih al-Bukhari in the following words:

ان رجلاً طلق امراتہ ثلاثا فتزوجت فطلق فسٔل النبی صلى الله عليه وسلم اتحل للاول قال یذوق عسیل تھا کما ذاقھا الاول

A man pronounced three talaqs on his wife. When the woman married elsewhere, the other husband also divorced her. The noble Prophet s was asked: 'Is this woman halal (lawful)?' He said: 'Not unless the other husband has had intimacy with her as was done by the first husband.'

The words of the the report indicate that the three talaqs were given at the same time. Commentaries on Hadith, such as Fath al-Bari, ` Umdah al-Qari, al-Qastalani, confirm this reading of the report, that is, three talaqs were given at the same time. And the hadith carries the decision thereupon, that the Holy Prophet صلى الله عليه وسلم made these three talaqs effective and ruled that, unless there occurs marital intimacy with the second husband, she will not become lawful for the first husband, simply by having been divorced by the former.

The third report is that of Sayyidna ` Uwaymir al-` Ajlani ؓ ، who did his li'an) لعان : sworn allegation of adultery) against his wife in the presence of the Holy Prophet صلى الله عليه وسلم ، and following that, he said:

فلما فرغا قال عویمر کذبت علیھا یا رسول اللہ صلى الله عليه وسلم ان امسک تھا فطلقھا ثلاثا قبل ان یامرہ النبی صلى الله عليه وسلم

So when they were through with li an لعان ، 'Uwaymir ؓ said: 'I shall be telling a lie if I retained her. Then, he gave her three talaqs before the Holy Prophet صلى الله عليه وسلم could give his verdict. (Sahib al-Bukhari including Bath al-Bari Sahib Muslim page 289, volume-l)

And Abu Dharr ؓ has, on the authority of Sayyidnd Sahl ibn Sa'd ؓ ، reported this incident in the following words:

فانقذہ رسول اللہ صلى الله عليه وسلم وکان ما صنع عند رسول اللہ صلى الله عليه وسلم سنۃ قال سعد حضرت ھٰذا عند عند رسول اللہ صلى الله عليه وسلم قبضت السنۃ بعد فی المتلاعنین ان یفرق بینھما ثم لا یجتمعان ابداً

Then the Holy Prophet صلى الله عليه وسلم enforced it, and that which happened in the presence of the Holy Prophet became established as Sunnah. Sa'd says: 'On this occasion, I was present when this occurred before the Holy Prophet صلى الله عليه وسلم . So, following that, the practice became common that they should be separated after which the two should never be united. (Abu Dawud)

In this hadith, it 1s proved with full clarity that the Holy Prophet صلى الله عليه وسلم has enforced the three simultaneously pronounced talaqs of Sayyidna 'Uwaymir ؓ ruling these as three.

And in the previous report of Mahmud ibn Labid as well, as corroborated by the report of Abu Bakr ibn al-` Arabi, it is mentioned that three talaqs were enforced but, even if this was not so, at least this much is not reported anywhere that the Holy Prophet صلى الله عليه وسلم ruled it to be one revocable divorce pronouncement, and allowed the husband to retain his wife.

To sum up, the three ahadith under reference prove that, despite the fact of three simultaneous talaqs which invited the extreme anger of the Holy Prophet صلى الله عليه وسلم ، their consequence, in any case, was that all three talaqs were ruled effective.

The action taken by Sayyidna Faruq Al-A` zams

Now the above discussion proves this much that holding three talaqs as three was a decision of the Holy Prophet صلى الله عليه وسلم himself However, at this point, an incident related to Sayyidna Faruq A` zam رضی اللہ تعالیٰ عنہ ، which has been reported in Sahih Muslim and :several other books of Hadith, raises a problem. The words are:

عن ابن عباس ؓ قال : کان الطلاق علی عھد رسول اللہ صلى الله عليه وسلم و ابی بکر ؓ و سِنتین من خلافۃ عمر ؓ طلاق الثلث واحدۃ فقال عمر بن الخطاب : ان الناس قد استعجلوا فی امر کانت لھم فیہ اناۃ فلو امضیناہ علیھم۔ فأمڈاہ علیھم، (صحیح مسلم ج 1 ص 477)

It has been reported from Sayyidna ibn ` Abbas ؓ that during the times of the Holy Prophet صلى الله عليه وسلم and during the first two years of the caliphate of Sayyidna ` Umar ؓ three talaqs were taken as one. So, Sayyidna ` Umar ؓ said: 'People are becoming haste-prone in a matter in which there was a room for deferment for them. Therefore, it would be appropriate if we enforce it on them.' Then he enforced it on them. (Sahih Muslim, page 477, volume 1)

This declaration of Sayyidna ` Umar al-Faruq ؓ was made publicly in the presence of Sahabah ؓ (Companions) and Tabi` in تابعین (their successors) --after consultation with Sahabah having expertise in Fiqh. Rejection or hesitation by any one of them has not been reported. Therefore, Imam Ibn ` Abd al-Barr al-Maliki (رح) has reported a consensus on this; the following words appear in al-Zurgani Sharh al-Mu'atta:

والجمھور علی وقوع الثلاث بل حکی ابن عبدالبرالاِجماع قأٌیلاً : ان خلافہ لا یلتفت الیہ۔

(زرقانی شرح مؤطا ج 3 ص 167)

The overwhelming majority of the scholars of Shari'ah is of the view that three simultaneous talaqs become effective. In fact, Ibn 'Abd al-Barr, while reporting ijma` اجمع (consensus) on this, has said: 'The contrary of this is not worth consideration.' (al-Zurgani: Shark al-Mu'atta: page 167, v.3)

قال شافعی (رح) ومالک وابو حنیفہ و احمد و جماھیر العلماء من السلف و الخلف رحمۃ اللہ علیہم اجمعین یقع الثلاث ۔ و قال طاؤس و بعض اھل الظاھر : لا یقع بذلک الا واحدۃ (شرح مسلم ج 1 ص 478)

Imam al-Shafi` i, Imam Malik, Imam Abu Hanifah, Imam Ahmad and a large number of earlier and later ` ulama' have said that three talaqs do become effective. And Taw'us and some Zahiri adherents have said what becomes effective with this is one talaq only. (Sharh Muslim, page 475, volume 1)

Imam al-Tahawi (رح) says in Sharh Ma` ani al-Athar:

فخاطب عمر ؓ بذلک الناس جمیعاً ، وفیھم اصحاب رسول صلى الله عليه وسلم ۔ ؓ الذین قد علموا ما تقدم من ذلک فی زمن رسول صلى الله عليه وسلم ، فلم ینکر علیہ منھم منکر و لم یدرعنہ دافع۔

(شرح معنی الاثار ج۔2 ص۔29)

So, Sayyidna ` Umar ؓ addressed people on this subject publicly, and present among those were Companions of the Holy Prophet صلى الله عليه وسلم who knew about the method practiced prior to this during the time of the Holy Prophet صلى الله عليه وسلم . But no one from among them challenged it and no one from among them rejected it.

In the event cited above, no doubt, the course of action for the Muslim community has been laid down with the consensus of Sahabah صحابہ ؓ and Tabi` in تابعین ، warning that giving three talaqs simultaneously is certainly a cause of the anger of the Holy Prophet صلى الله عليه وسلم ، and therefore undesirable, but despite this, anyone who commits this mistake will end up finding that his wife has become unlawful for him, and thereafter, not to become lawful again, unless she goes through the process of marriage and divorce with another man.

Intellectually and theoretically, two questions arise here. First: As stated earlier with the support of several hadith reports, it stands proved that the Holy Prophet has himself enforced three talaqs on those who gave three talaqs simultaneously. They were not permitted by him to revoke the divorce pronouncements or enter into a fresh marriage contract. What would then be the meaning of what Sayyidna ` Abdullah ibn ` Abbas ؓ said in relation to this incident, that is, during the times of the Prophet صلى الله عليه وسلم ، during the Siddiqi caliphate, and upto to two years during the Faruqi caliphate, three talaqs were taken as one when Sayyidna Faruq al-A` zam ؓ gave the ruling about three talaqs.

The second question is that if it is accepted that three talaqs were taken as one during the times of the Holy Prophet صلى الله عليه وسلم and the Siddiqi caliphate, how it was that Sayyidna Faruq al-A` zam ؓ changed this decision? And even if, supposedly, a mistake was made by him, how did all the Sahabah ؓ present there accept it?

Both these questions have been answered variously by respected fuqaha' and muhaddithin محدثین The most clear and unburdened answer given is the one by Imam Nawawi (رح) which he has reported in Sharh Muslim calling it 'the most authentic (اصح) suggesting that this executive order of Sayyidna Faruq al-A` zam ؓ and the total agreement (اجمع) of the noble Sahabah upon it, should be related to a particular form of three talaqs in which someone might say three times: °You are divorced, you are divorced, you are divorced -- or he might say: 'I divorce you, I divorce you, I divorce you°.

This situation, meaning-wise, has two possibilities. (1) The pronouncer may have said these words with the intention of giving three ؓ . (2) The three repeated pronouncements were simply for the sake of emphasis without any intention of giving three talaqs, and it is obvious that the knowledge of intention can come only through the statement of the pronouncer. During the blessed times of the Holy Prophet صلى الله عليه وسلم truth and honesty were common and dominant. If, after using such words, someone stated that he did not intend to give three talaqs, instead, the words were said repeatedly just for the sake of emphasis, the Holy Prophet صلى الله عليه وسلم would then confirm his sworn statement and rule that this was only one talaq.

This is corroborated by the hadith of Sayyidna Rukana ؓ ، which says that he had divorced his wife with the word, 'albattah' البتہ . This word was spoken for three talaqs in common Arab usage but the sense of three was not clear in it. Sayyidna Rukana ؓ ، said: 'I never intended three talaqs with this word. In fact, I wanted to give one talaq'. The Holy Prophet صلى الله عليه وسلم put him on oath to which he swore. Then, he ruled it to be only one talaq.

This hadith appears in al-Tirmidhi, Abu Dawud, Ibn Majah and al-Darimi with different chains of authorities and in different words. Some of the words also indicate that Sayyidna Rukana ؓ had given three talaqs to his wife. But, Abu Dawud has preferred the position that Sayyidna Rukana ؓ ، in reality, had given talaq by using the word 'albatah' البتہ (i). Since this word was used for three talaqs in common usage, some narrator has interpreted it as three talaqs.

In any case, this hadith proves, as generally agreed upon, that the Holy Prophet ruled Sayyidna Rukana's talaq to be one only when he declared on oath that he did not intend to give three talaqs. This too, indeed, proves that he had not pronounced the words of three talaqs explicitly and clearly, otherwise there would have remained no possibility of his having not intended three talaqs and consequently, there would have been no need to question him.

The incident clarifies that if the words of talaq had two possibilities about whether the husband had actually intended to give three talaqs or he had used the words of divorce thrice just for the sake of emphasis, and had actually intended to give one talaq only, the Holy Prophet صلى الله عليه وسلم ruled only after a solemn declaration under oath, that it was one because those were the days of truth and honesty and the chance that someone would take a false oath was far too remote.

This practice continued during the caliphate of Sayyidna Siddiq al-Akbar ؓ and during the first two years of the caliphate of Sayyidna Faruq al-A` zam ؓ . It was during his time that Sayyidna Faruq al-A` zam ؓ realized that the standard of truth and honesty was on the decline now, and according to the prophecy made in hadith will further decline in the future. On the other hand, incidents became numerous wherein those who pronounced the words of divorce three times started declaring that their intention was that of one talaq only. It was then realized that should the practice of ruling (three talaqs as) one talaq following confirmation of the statement of intent by the pronouncer of talaq continue like this into the future, it will not be too far when people start misusing this concession given by the Shari'ah and go about lying that their intention was for one talaq just to take a wife back. All Sababah, finding the intelligence and far-sightedness of Sayyidna Faruq al-A` zam ؓ in the management, of religion (din دین ) as correct, agreed with him. These were blessed people who knew the thinking of the Holy Prophet صلى الله عليه وسلم . They came to the conclusion that, should he be present in their particular time, surely he too, would not rule on the basis of the intention hidden in hearts and on the statement given by the person concerned. Therefore, the law he made for this purpose declared that whosoever repeats the word of talaq three times will find his very three talaqs ruled as effective. His contention -- that he had intended to give only one talaq -- would not be considered (in the courts) as valid.

In the foregoing incident related to Sayyidna Faruq al-A` zam ؓ ، the words of the report themselves confirm the subject under discussion. He said:

اِن النسان قد استعجلوا فی امر کانت لھم فیہ اناۃ فلو امضینا علیھم

People are becoming haste-prone in a matter in which there was a room for deferment for them. Therefore, it would be appropriate if we enforce it on them.

This explanation of the executive order of Sayyidna Faruq al-A` zam ؓ ، and the consensus of the noble Shari` ah on it, is confirmed by Hadith reports as well. It automatically supplies answers to the two questions referred to above.

The problem is resolved as we know that a particular talaq (divorce) given by the word 'three', or the repetition of the word talaq with the intention of 'three', were ruled as three after all -- even during the time of the Holy Prophet صلى الله عليه وسلم . The ruling of 'one' concerns a talaq in which thalath or 'three' is not mentioned clearly or in which the act of giving three talaqs is not admitted and instead, it is claimed that the count of three was for emphasis only.

Then the other question -- when the Holy Prophet صلى الله عليه وسلم had already ruled three divorce pronouncements to be one, why did Sayyidna ` Umar ؓ act otherwise and how did the noble Companion ؓ agree with it? -- is also eliminated because, in this particular situation, Sayyidna ` Umar ؓ has blocked the indiscriminate use of the leave given by the Holy Prophets صلى الله عليه وسلم . God forbid, there is no trace of doubt here about any decision of the Holy Prophet صلى الله عليه وسلم having been reversed.

Now that all doubts have been removed, let Allah be praised. The purpose here does not warrant going into comprehensive and exhaustive details on the subject of three talaqs. That appears in extensive details in Hadith commentaries and several ` ulama have explained it in detailed treatises. Here, this much is sufficient to understand the subject. And Allah is our supporter and helper. Verse:231 Commentary Commentary:

In the previous two verses, it will be recalled, important rules of the law of talaq (divorce) were given. Also delineated there was the just and moderate system of divorce in Islam. Now some other relevant injunctions and rulings have been mentioned in the verses under discussion (231 - 232).

Special instructions for revocation of divorce

or annulment of marriage

The first rule given in the first verse is: When women divorced revocably reach near the completion of their ` iddah (waiting period), the husband has two choices; either he may revoke his divorce and let her continue to be married to him or he may not revoke his divorce, discontinue the nikah relationship and release her totally.

But along with both these choices, the noble Qur'an places a restriction which requires that a wife, if retained, must be retained in accordance with a manner well-recognized and should it come to a parting of ways, even then, the parting should be in accordance with the rule as approved by the Shari'ah. Here, the word (in fairness), which appears separately at both the places, suggests that there are some conditions and rules governing the choice of retaining, similarly as there are, in the choice of releasing. When choice is made from either of the two options, it must be done in accordance with the method prescribed by the Shari` ah and not under the heat of spot anger or sentiments. Some of these rules of Islamic law appear in the Qur'an itself. Rest of the details have been given by the Holy Prophet صلى الله عليه وسلم

For instance, should the thought of ugly consequences of separation after the incident of divorce produce a change of heart in favour of revoking it and keeping the marriage intact, then the Shari'ah has a method. It stipulates that the purpose in doing so should be to wash out past anger and displeasure and resolve to live anew in good family relationship with intention to give her the due rights. The purpose should not be to hold the woman in captivity or to harass and torture her. Therefore, the following words were said in the verse under reference: وَلَا تُمْسِكُوهُنَّ ضِرَ‌ارً‌ا لِّتَعْتَدُوا ، that is, 'do not retain them with intent to harm them unjustly'.

The other method of rajah (revocation) has been mentioned in

Surah Al-Talaq:

وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّـهِ

And let two trustworthy persons from amongst you be witnesses; then, let witness be given if needed, precisely for the sake of Allah, (without fear or favour). (65:2)

It means that anyone intending to take his wife back by raj'a راجع (revocation) should invite two trustworthy Muslims to act as witnesses. Out of the many advantages it has, one is the possible use of these witnesses in case there is a legal claim against raj' a راجع filed by the woman.

Moreover, if the rule of having witnesses on raj' a راجع is not observed there is a possibility that someone, out of selfishness or Satanic instigation, comes up with a claim, even after the ` iddah has expired, that he had already done his raj' a راجع (revocation) before the expiry of ` iddah (waiting period).

In Order to eradicate these evils, the Holy Qur'an has directed that the act of revocation should have two trustworthy witnesses.

Looking at the other side of the matter, it is also possible that hearts remain heavy and anger does not go away even after the long span of ` iddah which has given them sufficient time for thinking. So, a termination of relationship may seem to be the choice, in which case the danger of hostile emotions flaring up is acute, which again may become contagious -- starting from two persons, it could envelope two families and could become, for both, a danger for both this world and the Hereafter. To offset this danger, it was briefly said: أَوْ سَرِّ‌حُوهُنَّ بِمَعْرُ‌وفٍ 'Or release them in fairness,' that is, if you have to leave or free a wife and sever your relationship with her, that too, must be done in accordance with the recognised method. Some details of this method are given in the noble Qur'an itself; rest of the details stand proved through what the Holy Prophet صلى الله عليه وسلم said and did.

For instance, in the preceding verse, it was said: وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا that is, do not take back (without a valid ground admitted by the Islamic Law) that which you have already given to the woman as mahr (dower), in return for the divorce, or go about demanding some other compensation.

Then, in the following verse, it was said: وَلِلْمُطَلَّقَاتِ مَتَاعٌ بِالْمَعْرُ‌وفِ ۖ حَقًّا عَلَى الْمُتَّقِينَ ﴿241﴾, that is, 'for all divorced women, there is some benefit as recognized rightly due on those who fear Allah'. The explanation of: مَتَاعٌ mata` or compensatory benefit to be given to a divorced wife is that she should be given some present or cash or a set of clothing at the least. Thus the fulfillment of some rights of the divorced wife has been made mandatory for the divorcing husband while the fulfillment of some others has been assigned to him in the form of kind treatment and good conduct. This is a chaste lesson in high morals and social manners which points to the fact that, just as the marriage was a transaction and mutual contract, the divorce is the termination of a transaction. There is no reason why the termination of this transaction should be a hotbed of enmity and hostility. The final annulment of the transaction should also be done decently and compassionately, that is, following talaq, the divorced wife should be given some benefits.

The details of this 'benefit° are that he should allow her to stay in the family house during ` iddah, pay for her total sustenance, pay the full amount of mahr (dower) if still unpaid while intercourse has already occurred; and in case the incident of divorce has occurred before intercourse, then half of the dower should be paid in good cheer. All these are obligatory rights which have to be given to a divorced woman necessarily; however, it is not only desirable but excellent as well, if the divorced wife, on her parting day, goes with some cash or at the least, with a set of clothing as parting gift. Subhan Allah سبحان اللہ ، what a decent teaching it is -- all that customarily causes quarrels and fights and takes families to ruin has been so wisely transformed into everlasting goodwill and peace.

After all these injunctions, it was said: وَمَن يَفْعَلْ ذَٰلِكَ فَقَدْ ظَلَمَ نَفْسَهُ that is, anyone who acts against these divine commands will harm none but himself. It is obvious that Hereafter (the life to come) will be the place where every injustice and cruelty will be avenged in the sight of Allah and the oppressor is not going to move one step forward unless the oppressed is avenged.

If we ponder with discernment and hindsight, we shall discover that, if some oppressor gets away with his cruelty against the oppressed, the evil consequences of this act do disgrace him, more than often, right here in this world. He may or may not comprehend it, but fairly often, he is overtaken by misfortunes which make him taste at least some retribution of his oppression during his life of the mortal world. This is what Shaykh Sa'di, mercy be on him, said in a Persian couplet:

پیداشت ستمگر کہ جفا برما کرد

برگردنِ ---- بماند و برما بگزشت

The oppressor presumed that he had hit me. But his weapon boomeranged back into his neck while it sailed past me!

The noble Qur'an has an approach which is wise, and a style that is special, when it does not describe law in the manner penal laws of the world are described. It rather explains its injunctions in a sympathetic and persuasive manner, showing its wisdom and describing the series of losses man suffers while acting against it, which, if duly understood, will render one incapable of embarking on such crimes. So, behind every law there comes the reminder that man must fear Allah and that man should never forget his accountability in the Hereafter.

Do not make a marriage and divorce a plaything

The second rule presented in this verse is that the word of Allah should not be taken lightly as some amusement: وَلَا تَتَّخِذُوا آيَاتِ اللَّـهِ هُزُوًا 'And do not take the verses of Allah in jest.' According to one explanation of the expression -- playing games with the verses of Allah or making a mockery of it -- means acting against Divine ordinances in matters of marriage and divorce. The second explanation reported from Sayyidna Abu al-Darda' ؓ is that some people during pre-Islam Arabia would give divorce or free a slave, then they would go back on their word and start saying that this was all in fun; talaq (divorce) or ` itaq (to free a slave) was not intended. Thereupon, this verse was revealed which gave the ruling that anyone going through divorce and marriage, even if it be playfully or jokingly, would find these enforced and the plea of 'having no intention' will not be accepted as valid.

The Holy Prophet صلى الله عليه وسلم has said that there are three things in which acting seriously, or in jest, are both equal: One -- talaq (divorce); two - ` itaq (to free a slave); three -- nikah (marriage) (reported by Ibn Marduwayh from Ibn al-'Abbas and Ibn a1-Mundhir from ` Ubadah ibn al-Samit).

This hadith has been reported from Sayyidna Abu Hurayrah ؓ in the following words:

ثلاث جدھن جَد و ھزلھن جَد : النکاح و الطلاق والرجعۃ

It means that there are three things which take effect equally whether done seriously or jokingly. These are: The marriage, the divorce and the revocation of divorce. (Mazhari)

The Islamic law governing these three is: Should a man and a woman go through the process of offer and acceptance before witnesses, even if it be without any intention or just in jest, the marriage stands solemnized anyway. Similarly, if divorce is given in clear words, without any intention, or just in jest, divorce takes effect; or revocation, if done, becomes valid too. Similarly again, if a slave is playfully declared to be free, the slave becomes free. Jest or fun are not taken as valid excuses.

After stating this injunction, the noble Qur'an then educates man, in its unique style, how he should obey Allah Almighty and fear the consequences of the life to come (akhirah). It was said:

وَاذْكُرُ‌وا نِعْمَتَ اللَّـهِ عَلَيْكُمْ وَمَا أَنزَلَ عَلَيْكُم مِّنَ الْكِتَابِ وَالْحِكْمَةِ يَعِظُكُم بِهِ ۚ وَاتَّقُوا اللَّـهَ وَاعْلَمُوا أَنَّ اللَّـهَ بِكُلِّ شَيْءٍ عَلِيمٌ ﴿231﴾

That is, And remember the grace of Allah on you and what He has revealed to you of the Book and the wisdom giving you good counsel thereby. And fear Allah, and be sure that Allah is all-knowing in respect of everything'

It means: He knows the secrets hidden in your hearts, your intentions and your purposes. Therefore, when you have to release your wife from your marriage bond by giving divorce, you should do so with the intention of avoiding mutual disputes, loss of mutual rights and doing injustice, and not with the intention of releasing anger on your wife or disgracing or hurting her.

The basic rules of giving a divorce

The third rule identified in this verse is: Should a man be left with no other option but divorce, then the basic and true method in the view of Shari'ah and Sunnah is that he should give one revocable divorce in clear and unambiguous words so that the choice of taking the wife back remains open. Words that cause sudden severance of marriage relationship should not be spoken. This is known as al-talaq al-ba` in الطلاق الباین ، the divorce that cannot be revoked. In addition to this, reaching three talaqs must be avoided following which even fresh marriage between the couple becomes haram (unlawful). This point is indicated by the use of the universal and unqualified words in طَلَّقْتُمُ النِّسَاءَ (when you have divorced women), because the injunction contained in this verse covers only one or two revocable talaqs. It does not concern the irrevocable three talaqs; but the Holy Qur'an, by not mentioning any related qualification, has suggested that the real talaq (divorce) is none other than the revocable talaq as approved by the Shari'ah. Other forms are not devoid of repugnance or undesirability.