Divorce is only valid from a legally competent and willful husband. 1331
لاَ يَصِحُّ الطَّلاَقُ إِلاَّ مِنْ زَوْجٍ، مُكَلَّفٍ، مُخْتَارٍ.
Book of Divorce
الطَّلاَقِ
Chapters
The Book of Purification
The Book of Prayer
Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
The Book of Funerals
The Book of Fasting
The Book of Hajj and 'Umrah
Book of Zakat
The Book of Selling and Commercial Transactions
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Book of Bequests
The Book of Inheritance
The Book of Marriage
The Book of Divorce
The Book of Sadaq
The Book of Dhihar
The Book of Lian
The Book of Foods
Book of Fatal and Non-Fatal Assault
The Book of Indemnities
The Book of Hudood
The Book of Jihad
The Book of the Judiciary
The Book of Testimonies
Appendix
Glossary
Book of Divorce
1331. Introduction
The family is a form of partnership. Like any other partnership, it may become too dysfunctional to be in the best interest of any of its parties, including the children – in which case all parties involved may suffer a great deal of hardship. To relieve them of this hardship, Allah, the All-Wise, allowed divorce. However, the ruling of divorce varies, depending on the family circumstances. Imam Ibn Qudâmah clarified in al-Mughni that it may fall under any of the five legal categories:
. Haram (forbidden), such as during the woman’s menses or when unwarranted (A)
. Makrooh (disliked) when unwarranted (A2)
. Mubâḥ (permitted) when prompted by the wife’s persistent misconduct
. Mustaḥabb (recommended) when there is severe conflict or when the woman is not observing the rights of Allah
. Wâjib (mandatory) when the woman is unchaste and the man fears that she may bring disgrace to the family by illicit sex, or when divorce is enforced by the judge or the two arbitrators
Note that one justification may straddle two legal categories, based on its extent. For example, we may reconcile the two reports in the madh-hab concerning unwarranted divorce by saying that it is haram if it is entirely unwarranted and makrooh if it is not entirely warranted. Also, when the woman compromises the rights of Allah, it may be wâjib for the husband to divorce her if her conduct is alarmingly affecting the whole family, but it may be only mustaḥabb if that is not the case.
The default for the ruling on divorce when it is not clearly warranted is controversial. (a) + (+H, +t): Forbidden.
(A) + (H2, +S): Permitted, though detested. (M): Permitted, though unfavorable. The first position seems stronger because divorce inflicts harm on the wife and terminates all of the benefits of marriage. It is also from the works of the devils, according to the Prophet (SA), who said:
“Iblees places his throne upon the water, and then he dispatches his troops; the nearer to him in rank are those who are most effective in creating fitnah (discord and temptation). One of them comes and says, ‘I did such-and-such.’ He says, ‘You have done nothing.’ Then one amongst them comes and says, ‘I did not leave So-and-so until I sowed the seed of discord between him and his wife.’ He brings him closer and says, ‘Yes, you are the one!’” (M – from Jâbir)
إِنَّ إِبْلِيسَ يَضَعُ عَرْشَهُ عَلَى الْمَاءِ، ثُمَّ يَبْعَثُ سَرَايَاهُ فَأَدْنَاهُمْ مِنْهُ مَنْزِلَةً أَعْظَمُهُمْ فِتْنَةً، يَجِيءُ أَحَدُهُمْ، فَيَقُولُ: فَعَلْتُ كَذَا وَكَذَا، فَيَقُولُ: مَا صَنَعْتَ شَيْئًا، قَالَ: ثُمَّ يَجِيءُ أَحَدُهُمْ، فَيَقُولُ: مَا تَرَكْتُهُ حَتَّى فَرَّقْتُ بَيْنَهُ وَبَيْنَ امْرَأَتِهِ، قَالَ: فَيُدْنِيهِ مِنْهُ، وَيَقُولُ: نِعْمَ أَنْتَ
The Types of Divorce
Unfinalized (raj‘iy): This is during the waiting period if the man still has the right to take his wife back, even without her approval.
Finalized (bâ’in): This is of two types:
1) Finalized with recourse (baynoonah ṣughrâ), which occurs:
- After the divorce of the contracted but unwed wife (who does not have an ‘iddah to observe)
- Upon completion of the waiting period after a first or second divorce
- During the waiting period in the case where the divorce becomes immediately finalized, as in the case of khul‘
2) Finalized without recourse (baynoonah kubrâ), which occurs after the third divorce (when she becomes unmarriageable for that ex-husband until she consummates a marriage with another husband and then ends that marriage) or after li‘ân (in which case she will be forever unmarriageable for the husband who accused her).
Divorce of a Child
‘Mukallaf’ usually refers to one who is sane and adult. (See the appendix on the meaning of ‘mukallaf’.)
(A/SM & Iqnâ‘): Imam Aḥmad considered the discerning child (usually above the age of ten but may be less according to A/ Iqnâ‘) legally competent to issue a divorce.
(a) + (-H, -M, -S): He is not.
1332. Divorce under Compulsion
(A) + (+M, +S): It is invalid.
(-H): It is valid.
The position of the majority is supported by the saying of the Prophet (SA):
“Allah has pardoned my people – for my sake - for their mistakes and their forgetfulness, and for what they have done under duress.” (Ma – from Ibn ‘Abbâs. al-Albâni:S)
إِنَّ اللَّهَ تَجَاوَزَ لِي عَنْ أُمَّتِي الْخَطَأَ وَالنِّسْيَانَ وَمَا اسْتُكْرِهُوا عَلَيْهِ.
The Ḥanafis say that the sin is waived, but not all of the legal consequences are. Another report says, “lifted off my nation…” It is obvious that error and forgetfulness themselves were not lifted off the Ummah (Muslim nation), so there must be a missing (and required) word.
(A) + (+S) maintain the generality of the required implication (‘umoom al-muqtaḍâ), which in this case is (all the consequences of) error, forgetfulness and that which is done under duress.
(-H, -M) chose to narrow down the required implication (al-muqtaḍâ) to a minimum, which is (only the sin of) error, forgetfulness and that which is done under duress. They all did this out of respect for the statement of the Prophet (SA). Those who generalized said that if it is not possible to uphold the literal meaning, we should choose that closest to it, which is ‘all of the consequences’. On the other hand, those who restricted the required implication to a minimum argued that if we must insert something into the statement of the Prophet (SA), then we ought to insert the minimum that will make the statement plausible, which is ‘the sin of’.
1333. The Divorce of the One with Impaired Intellect
By consensus: This includes the insane.
(A) + (+H, +M, +S): The foolish one is not included here, so his divorce counts. The one who is joking will have his divorce counted as well, because even though he did not intend to divorce his wife, he uttered the word willfully.
(a) + (-H, -t): One who was in a state of severe anger may also be included here, and his divorce does not count. According to Ibn al-Qayyim and Ibn ‘Âbideen, the verifying Ḥanafi scholar, the state of anger that makes the ṭalâq inconsequential is not necessarily his being totally unaware of what he says, but when the anger significantly impairs his judgment. Ibn ‘Âbideen described him as one whose statements and actions are disturbed by his anger, so that he is aware of what he says and does but is not fully cognizant of the consequences. Ibn al-Qayyim also pointed out that once his anger abates, he immediately regrets his action. The strongest proof for this minority of scholars is the rational one, which is that anger can impair one’s judgment to a point where he may not be acting completely willfully. It is agreed that he is responsible for the damage he causes to people’s lives and properties, but divorcing his wife is a different matter that should not count from one who is not acting completely willfully. They also cite a hadith with controversial transmission:
“There is no (valid) divorce or manumission in the case of ighlâq (duress or infuriation).” (D, Ma – from ‘Â’ishah. Ibn al-Mulaqqin and Ibn Ḥajar: S)
لا طَلاقَ وَلا عَتَاقَ فِي إِغْلاقٍ.
The free man is entitled to three divorces, and the slave is entitled only to two, whether the wife is free or not.
وَيَمْلِكُ اْلحُرُّ ثَلاَثَ تَطْلِيْقَاتٍ، وَاْلعَبْدُ اثْنَتَيْنِ، سَوَاءٌ كَانَ تَحْتَهُمَا حُرَّةً أَوْ أَمَةً.
After he uses the number of divorces he is entitled to, his wife is not eligible to marry him until she marries another man and they have intercourse. This is because of the statement of 1335
فَمَنِ اسْتَوْفىٰ عَدَدَ طَلاَقِهِ، لَمْ تَحِلَّ لَهُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ، نِكَاحًا صَحِيْحًا، وَيَطَأَهَا، لِقَوْلِ رَسُوْلِ اللهِ لاِمْرَأَةِ
This hadith has been classified as weak by other scholars. They also disagree over the meaning of ‘ighlâq’ here. Some, like Abu Dâwood, said it means infuriation, while others said it means coercion. It comes from the three-lettered root (ghalaqa), meaning closed, which infers that the person’s intellect was blocked out. This could happen because of anger.
1334. The Divorce by One Who Is Intoxicated
First, divorce by a man who gets drunk after taking a permissible medicine, or after drinking an intoxicant mistakenly or under compulsion does not count, by consensus.
(A) + (+H, +M, +S): The one who consumes an intoxicant inexcusably shall have his divorce counted because the Companions held such a person accountable for murder and theft. They also cite the following hadith:
“Every ṭalâq counts except the divorce of the ma‘tooh (imbecile/mentally incompetent) who has been deprived of his intellect.” (T – from Abu Hurayrah. T: W)
كُلُّ طَلَاقٍ جَائِزٌ إِلَّا طَلَاقَ الْمَعْتُوهِ الْمَغْلُوبِ عَلَى عَقْلِهِ
They argued that the intoxicated person was not deprived of his intellect; instead, he impaired it himself. However, the report traceable to the Prophet (SA) is very weak, according to at-Tirmidhi himself, although it is authentic as a statement of ‘Ali (RA).
(a) + (s, -t): Invalid. This is because it is reported from ‘Uthmân that he deemed it invalid. Ibn al-Mundhir said that it is the only verifiable report from a Companion that was not contested by the other Companions. This was also the position of ‘Umar ibn ‘Abdul-‘Azeez, al-Qâsim, Ṭâwoos, al-Layth, Is-ḥâq, Abu Thawr and others. This group argues that divorce, by agreement, is not like the other crimes for which the intoxicated is held liable. Finally, they cite the above saying of the Prophet (SA), “There is no (valid) divorce or manumission in the case of ighlâq.” The intellect of the intoxicated person is blocked out.
1335. Finalized Divorce Without Recourse (Baynoonah Kubrâ)
the Messenger of Allah (SA) to the wife of Rifâ‘ah, “Maybe you want to go back to Rifâ‘ah; nay, you cannot until you enjoy sex with him (the new husband), and he enjoys sex with you.” 1336
رِفَاعَةَ: "لَعَلَّكِ تُرِيْدِيْنَ أَنْ تَرْجِعِيْ إِلىٰ رِفَاعَةَ. لاَ، حَتَّى تَذُوْقِيْ عُسَيْلَتَهُ وَيَذُوْقَ عُسَيْلَتَكِ."
It is not permissible to combine the three divorces (at once). 1337
وَلاَ يَحِلُّ جَمْعُ الثَّلاَثِ.
The legislator (Allah) gave men three divorces. After the third divorce, the wife becomes unmarriageable for him until she marries another man and has intercourse with him, and then that marriage ends. The wisdom behind this is to spare women from the abuse of some men who may repeatedly divorce and then take back their wives. The other comprehensible wisdom is to allow a couple who have had obvious difficulties with their marriage to try new lives. Often, people become paralyzed by the fear of the unknown and are too intimidated to break away from their miserable realities. Through this ruling, the legislator is forcing them to move away from their failed past.
1336. (Ag – from ‘Â’ishah)
1337. The Composite Threefold Divorce
(A) + (+H, +M): This is a form of bid‘ah divorce.
(A2) + (+S): It is permissible.
The other pertinent question is whether it counts as three divorces or one. There are four positions regarding this; we mention here the stronger two:
1) The majority (A) + (+H, +M, +S) counts it as three, and their main proof is the reported consensus, although that was challenged. They cite other reports where the Prophet (SA) explicitly counted them as three, but these are not authentic. They also cite reports implying that the Prophet (SA) counted them as three; one of these concerns Abu Rukânah, who divorced his wife with a battah (final) divorce. After the Prophet (SA) asked him if he meant one, Abu Rukânah took an oath to that effect, and the Prophet (SA) returned his wife to him. However, this story has several variations and sometimes is actually used to support the opposite position.
According to this majority, the claim that ‘Umar changed this ruling himself not only is unbefitting of ‘Umar but would also set a precedent allowing others to abuse the rulings of Allah; since ‘Umar could not change the Prophet’s ruling, this must have been the way of the Prophet (SA). They also raised concerns about the statement of Ibn ‘Abbâs regarding the ruling being changed during ‘Umar’s time (although it was reported by Muslim through a solid chain).
Finally, while the agreement of the formal position of the four madh-habs carries a great weight that cannot be denied among Ahl us-Sunnah, it is not infallible. Nevertheless, challenging it is a gigantic task which can be undertaken only by those who are highly qualified to mount a formidable argument based on the text of revelation and the positions of the early generations. Collective ijtihâd or widespread acceptance will also be needed to bring into the mainstream a position that contradicts the agreement of the four madh-habs. (See the appendix on the agreement of the four madh-habs.)
2) The minority position is that it counts as a single divorce. This position is held by many contemporary scholars, and it is the law in many Muslim countries, including Egypt, Syria, and Jordan. Historically, it was known to be the position of Imam Ibn Taymiyah, who was harshly criticized by some for having violated the consensus on this matter. Although Ibn Taymiyah may have stirred up a rigorous discourse on the issue among Ahl us-Sunnah of his time, it would be very dishonest to claim that he was the first to introduce it. In fact, Imam Ibn Ḥajar, a supporter of the majority position, marveled, in his commentary on the “Chapter of Those Who Permitted the Threefold Divorce” in Fatḥ al-Bâri, at Ibn at-Teen’s claim that there was no disagreement on this issue. Ibn Ḥajar mentioned that this position had been reported from ‘Ali, Ibn Mas‘ood, ‘Abdur-Raḥmân ibn ‘Awf, az-Zubayr ibn al-‘Awwâm, Ibn ‘Abbâs, Ṭâwoos, ‘Atâ’, and several Mâliki scholars like Muhammad ibn Baqi ibn Makhlad, Muhammad ibn ‘Abdus-Salâm al-Khushani, and others. The contemporary Mâliki luminary Ibn ‘Âshoor, a supporter of this minority position, mentioned (in at-Taḥreer wat-Tanweer, in his commentary on the saying of Allah, “Divorce is twice,”) the names of other Mâliki authorities, such as Muhammad ibn Zinbâ’, Aṣbagh ibn al-Ḥubâb, and Aḥmad ibn al-Mugheeth aṭ-Ṭulayṭili. Ibn al-Qayyim in I‘lâm al-Muwaqqi‘een mentioned several others from every generation. This is also the position of Muhammad ibn Is-ḥâq, Dâwood adh-Dhâhiri, and his followers. It is also the position of Ja‘far aṣ-Ṣâdiq and his father, and thus it is upheld by the Imamite Shiites.
The supporters of this position also cite many reports, including the story of Abu Rukânah, which the majority uses to support their own position. Imam Aḥmad and others reported with a sound chain, from Ibn ‘Abbâs, that Abu Rukânah divorced his wife by saying, “I divorce you three times,” and then he regretted it. The Prophet (SA) returned her to him, saying, “This is only one (divorce).” However, this story has many variations, and it is prudent to say that it should not be used in support of either position, given the consequential variations in its reports. In my view, the strongest evidence for this position is the apparent implication in the saying of Allah:
{Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment…} (al-Baqarah 2: 229)
الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ...
Followed by His saying:
{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 the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other 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.} (al-Baqarah 2: 230)
فَإِنْ طَلَّقَهَا فَلا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ فَإِنْ طَلَّقَهَا فَلا جُنَاحَ عَلَيْهِمَا أَنْ يَتَرَاجَعَا إِنْ ظَنَّا أَنْ يُقِيمَا حُدُودَ اللَّهِ وَتِلْكَ حُدُودُ اللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ
The minority scholars argue that this verse implies that the third divorce follows the previous divorces; it does not accompany them. According to Ibn ‘Âshoor, this would be consistent with the intent of the legislation. Allah wanted to allow them up to three divorces so that after the first two reunions, they would improve their dealings with each other and perhaps ultimately avoid the third divorce. The other strong proof for this position is this statement of Ibn ‘Abbâs:
“The way divorce was counted during the time of the Messenger of Allah (SA) and Abu Bakr, and in the first two years of ‘Umar’s caliphate, is that three divorce pronouncements (the threefold divorce) were counted as one. Then ‘Umar ibn al-Khaṭṭâb said, ‘Verily, the people are making haste regarding a matter about which they were to show deliberation, so let us impose it upon them,’ and then he imposed it.” (M – from Ṭâwoos)
كَانَ الطَّلَاقُ عَلَى عَهْدِ رَسُولِ اللَّهِ ، وَأَبِي بَكْرٍ، وَسَنَتَيْنِ مِنْ خِلَافَةِ عُمَرَ، طَلَاقُ الثَّلَاثِ وَاحِدَةً، فقَالَ عُمَرُ بْنُ الْخَطَّابِ: "إِنَّ النَّاسَ قَدِ اسْتَعْجَلُوا فِي أَمْرٍ قَدْ كَانَتْ لَهُمْ فِيهِ أَنَاةٌ، فَلَوْ أَمْضَيْنَاهُ عَلَيْهِمْ، فَأَمْضَاهُ عَلَيْهِمْ
Book of Divorce
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