Ismaili.NET - Heritage F.I.E.L.D.

"The root idea of the verb talaqa means to be freed from a tether (of a camel). Thus, talaq means a camel untethered or a woman repudiated by a man. It also means freeing or the ending of a knot. In the terminology of the jurists, the talaq or divorce is called khul, meaning the putting off or taking off of a thing, when it is claimed by the wife. In the Koran there is one derivation of the root, ikhla, which means take off. It is mentioned in the story of Moses when he was ordered to take off his shoes in Mount Sinai (20:12).

Both from the Koran and hadith, it appears that, though divorce was permitted, yet the right could be exercised only under exceptional circumstances. Thus, a divorce given without cause is disapproved (kirahatan), but is not forbidden (muharram). Imam Jafar Sadik however considered it reprehensible that people should divorce their wives without valid reasons (Daim al-Islam, p. 982-83). The Prophet is reported to have said: "Never did God allow anything more hateful to Him than divorce" (Abu Daud, 13:3). Ali bin Abu Talib said, "Talaq is abominable and I hate it" (Daim al-Islam, p. 979). Remedies are also suggested to avoid divorce so long as possible.

It is clear that not only must there be a good cause for divorce, but that all means to effect reconciliation must have been exhausted before resort is had to this extreme measure. In fact, marriage is nothing but an agreement to live together as husband and wife, and when either of the parties finds him or herself unable to agree to such a life, divorce must follow. It is not, of course, meant that every disagreement between them would lead to divorce; it is only the disagreement to live any more as husband and wife. In the Koran such disagreement is called shiqaq (derived from shaqq, meaning breaking into two) as follows: "If you fear a breach (shiqaq) between the couple, appoint an arbiter from his people and another from her people. If they desire amendment, God will make them of one mind" (4:35). It means that Islam discourages, as much as possible, taking of family disputes to the courts of law. There can be no lawful arbitration (tahkim) unless the two spouses agree to it, and to the condition that the arbitration may bring them together (jama'a), or dissolve their marriage (farraqa). The arbitrators have no power to give any of the wife's property to the husband without her consent. The arbiters have the right to dissolve the marriage even through one of the parties is absent, provided always that they have been expressly authorized to do so on failure of their efforts for reconciliation.

The wife has the right to claim divorce on those very grounds on which the husband can divorce his wife. The Koran says: "Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (them) go with kindness; and it is not lawful for you to take any part of what you have given them unless both fear that they cannot keep within the limits of God: then if you fear that they cannot keep within the limits of God, there is no blame on them for what she gives up to become free thereby" (2:229). By keeping "within the limits of God" here is clearly meant the fulfillment of the object of marriage or performance of the duties imposed by conjugal relationship.

The technical term for the wife's right to divorce by returning her dowry (mahr) is called khul. The dowry is thus a check on the party who wants the divorce; if the husband wants, the wife shall have the dowry; if the wife wants the divorce, the husband is entitled to the dowry.

The divorce is prohibited during the menstruation of the wife. It was brought to the notice of the Prophet that Ibn Umar had divorced his wife while she was menstruating. The divorce was declared to be illegal by the Prophet, and Ibn Umar was asked to take back his wife (Bukhari, 68:1). Thus, divorce is only permitted in the state of purity (tuhr), or when the woman is clear from menstrual discharge.

Every divorce is an experiment temporary separation during its initial stages, and by making the parties live together, every chance is afforded to them for reconciliation. Even after the period of waiting (idda) has passed away, the two parties are allowed, even encouraged, to remarry: "And when you have divorced women and they have ended their term of waiting, do not prevent them from marrying their husbands, when they agree among themselves in a lawful manner; with this is admonished whosoever among you believe in God and the last day; this is more profitable and purer for you" (2:232). Remarriage of the divorced parties is thus recommended as being more profitable and purer for them. The condition is also laid down that such a revocable divorce, allowing reunion of the parties, can be pronounced twice: "Divorce may be pronounced twice: then keep them in good fellowship or let them go with kindness" (2:229). The revocable divorce is called the talaq raja'i.

After the first divorce, the parties have the right to reassert their conjugal relations within the period of waiting, and to remarry after the waiting period is over. A similar right is given to them after a second divorce, but not after a third. Islam not only gave the wife a right of divorce, but also checked the husband's license to divorce as often as he liked, by declaring that revocable divorce could be given only twice: "Divorce may be pronounced twice: then keep them in good fellowship or let them go with kindness" (2:220). It was thus laid down that, after the second revocation or remarriage, the parties must make their choice either to live together as husband and wife for ever, or to separate for ever, never thinking of reunion. Hence if the second experiment failed and the parties were separated by a divorce for the third time, this was an irrevocable divorce (talaq ba'in) in the terminology of the jurists.

The jurists have recognized divorce in three forms. A man would sometimes pronounce divorce thrice on one and the same occasion, and this would be understood as meaning that divorce had been given thrice. This is called talaq bid'a (or an innovation in divorce after the Prophet's time). Or a man would divorce his wife for the first time in one tuhr, following on with a second divorce in the second tuhr and with a third divorce in the third, thus divorcing thrice in one idda or one period of waiting. This method of talaq is called talaq hasan (a good way of divorcing). The name talaq ahsan (the best method of divorcing) is given to the form in which talaq is pronounced in a tuhr only once, and this is followed by the period of waiting. This last method is the only method recognized by the Koran. It is plainly laid down: "O Prophet! When you divorce women, divorce them for their prescribed time (idda), and calculate the number the days prescribed and be careful of your duty to God, your Lord" (65:1). The divorce is thus to be pronounced only once, and when it has been pronounced, the idda, or waiting period, follows, and during this time the parties have a right to revocation of the divorce.

Thus, the Koran recognizes talaq only in one form, the talaq al-sunna or the talaq ahsan. There is no mention at all of the other two forms, either in the Koran or in hadith. These two forms are, in fact, only subterfuges to make the revocable divorce an irrevocable one. The tendency to resort to these subterfuges is noticeable even in the lifetime of the Prophet. The pronouncing of three divorce without an interval, seems to have been a remnant of pre-Islamic days. The Prophet is reported to have shown indignation when it was brought to his notice that a certain person had pronounced three divorces together (Nisai, 27:6), and the divorce thus pronounced was annulled by him (Masnad, 1:265).

It is true that divorce is allowed, but as it disturbs the normal family relations, it is looked upon with disfavour and is permitted only in extreme cases when the carrying on of marital obligations by the husband or the wife becomes impossible. But even after this extreme step has been taken, not only are the parties still free to resume conjugal relations within the waiting period, and to remarry after that period has expired, but they are actually encouraged to do so.

The Koran further mentions about the children in case of a divorce: "And the mothers should suckle their children for two whole years for him who desires to make complete the time of suckling; and their maintenance and their clothing must be borne by the father according to usage; no soul shall have imposed upon it a duty but to the extent of its capacity; neither shall a mother be made suffer harm on account of her child, nor a father on account of his child, and a similar duty (devolves) on the (father's) heir; but if both desire weaning by mutual consent and counsel, there is no blame on them, and if you wish to engage a wet-nurse for your children, there is no blame on you so long as you pay what you promised for according to usage; and be careful of (your duty to) God and know that God sees what you do" (2:233).

Tahlil or halala, which means legalizing or making a thing lawful was a pre-Islamic practice. When the wife was divorced irrevocably by three pronouncing the divorce formula, and the husband wanted to take her back again, she had first to marry a third person on condition that he would divorce her after having sexual connection with her. This was called halala, a kind of punishment for the woman who had to undergo the disgrace of sexual connection, while the marriage is a perpetual marital tie, and the divorce in that case may not follow at all; in fact, in the normal course of things it would not follow at all. It is for this reason that the Prophet is reported to have curse those who resorted to this practice. He said, "The curse of God on the man who commits halala and the man for whom the halala is committed." (Tirmizi, 9:25). In sum, Islam warns explicitly against any pre-arranged scheme in the practice of halala that a certain man should marry a certain divorced woman with the understanding that he would divorce her again to enable the former husband to re-marry his divorced wife. This shall be an unlawful act and such a marriage shall be no marriage at all but adultery and the woman shall not become the lawful wife of the first husband by such a pre-arranged scheme.

Divorce may be given orally, or in writing, but it must take place in presence of witnesses: "So when they have reached their prescribed time, then retain them with kindness or separate them with kindness, and call to witness two men of justice from among you, and give upright testimony for God" (65:2). Whatever the actual words used, they must expressly convey the intention that the marriage tie is being dissolved. As to whether a divorce would be effective under certain circumstances, there are differences among the various schools of jurists. Evidently, intention is as necessary as a factor in the dissolution of marriage as in the marriage itself, but while some recognize that divorce is ineffective if given under compulsion or influence, or in a state of intoxication, or in anger or jest, or by mistake or inadvertence, other hold it to be ineffective in some of these cases and effective in others.

Ila and zihar were two practices of the pre-Islamic days by which the wife was kept in a state of suspense, sometimes for the whole of her life. Ila, which means literally swearing, signifies technically the taking of an oath that one shall not go in to one's wife. In pre-Islamic period, the Arabs used to take such oaths frequently, and as the period of suspension was not limited, the wife had sometimes to pass her whole life in bondage, having neither a position of a wife, nor that of a divorced woman free to marry elsewhere. The Koran reformed this state of thing by commanding that if the husband did not re-assert conjugal relations within four months, the wife should be divorced: "In the case of those who swear that they will not go in to their wives, the waiting period is four months; then if they go back, God is surely Forgiving, Merciful. And if they resolve on a divorce, then God is surely Hearing, Knowing" (2:226-7).

The word zihar is derived from zahr meaning back. An Arab in the days of ignorance would say to his wife, anti alayya ka-zahri ummi means you are to me as the back of my mother. This was technically called zihar. No sooner were these words pronounced than the relation between husband and wife ended as by a divorce, but the woman was not at liberty to leave the husband's house, and remained as a deserted wife. Once Aws bin Samit treated his wife Khaula in a similar manner. The wronged woman came to the Prophet and complained of her husband's ill-treatment. The Prophet told her that he was unable to interfere. In the meantime, the Divine command revealed: "God indeed knows the plea of her who pleads with you about her husband and complains to God, and God knows the contentions of both of you; surely God is Hearing, Seeing. As for those of you who put away their wives by likening them to the backs of their mothers, they are not their mothers; their mothers are no other than those who gave them birth; and most surely they utter a hateful word and a falsehood" (58:1-2). The man who resorted to this practice was thus ordered to free a slave; or if he could not find one, then to fast for two successive months, and if unable to do that, to feed sixty poor people (58:3-4).

Another word li'an is derived from la'na meaning curse. Li'an and mula'ana signify literally mutual cursing. Technically, however, the two words indicate that particular form of bringing about separation between husband and wife in which the husband accuses the wife of adultery but has no evidence to support the accusation, while she denies it. If a man has strong reasons to believe that his own wife is adulterous, the case is quite different, because the Koran makes adultery a severely punishable crime, since it aims at the destruction of the whole social fabric. The li'an is suggested in this case, as a means of bringing about separation between husband and wife, for whether the accusation is right or wrong, it is in the interests of both to get separated. The following Koranic verses deal with this subject: "And as for those who accuse their wives and have no witnesses except themselves, the evidence of one of these should be taken four times, bearing God to witness that he is of the truthful ones. And the fifth time that the curse God be on him if he is one of the liars. And it shall avert the punishment from her if she testify four times, calling God to witness, that he is one of the liars. And the fifth time that the wrath of God be on her if he is one of the truthful" (24:6-9). After the parties have thus borne witness, they are separated forever. While bearing witness of truthfulness, he or she calls for the wrath of God on himself or herself if he or she speaks a lie.

In sum, the divorce is looked upon as a necessity in marital relations, under the varying human conditions, irrespective of moral turpitude on the part of husband or wife. The Koran takes the most charitable view of the necessity for divorce, and therefore recommends as much kindness towards women in the case of divorce, as in that of marriage. Again and again stress is laid on this point: "Divorce may be pronounced twice; then keep them in good fellowship or let them go with kindness (ihsan)" (2:229); "And when you divorce women and they reach their prescribed time, then either retain them in good fellowship or set them free with liberality" (2:231); "So when they have reached their prescribed limit, then retain them with kindness or separate them with kindness" (65:2). Thus, woman is to be treated with equal kindness and generosity, whether she is a sharer in a man's weal or woe as wife, or one from whom he has been compelled to part company. Marital differences, like other differences, may be as often honest as not, but the Koran recommends that the most charitable view of them should be taken.