Book of Divorce

Restoration of the Marriage & 'Iddah

الرَّجْعَةِ

Glossary

Chapter on Restoration of the Marriage ¹³⁷²

If he divorces his wife, after consummation and without compensation, with less than three divorces (or less than two for the slave), he is entitled to raj‘ah (restoration of the marriage), as long as she is still in her ‘iddah. This is because of the saying of Allah, Most High: {And their husbands have more right to take them back in this [period] if they want reconciliation.} (al-Baqarah 2: 228)

إذا طَلَّقَ امْرَأَتَهُ بَعْدَ الدُّخُوْلِ بِغَيْرِ عِوَضٍ، أَقَلَّ مِنْ ثَلاَثٍ أو العبد أقل من اثنتين فله رَجْعَتُها ما دامَتْ في العِدَّةِ لِقَولِ الله تعالى: "وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ إِنْ أَرَادُوا إِصْلَاحًا" [البقرة: 228]

Raj‘ah occurs when the man says to two Muslim men, “Be witnesses ¹³⁷³ that I took my wife back”

وَالرَّجْعَةُ: أَنْ يَقُوْلَ لِرَجُلَيْنِ مِنَ الْمُسْلِمِيْنَ: اشْهَدَا عَلَيَّ أَنِّيْ قَدْ

1372. Introduction

Raj‘ah (literally: return) means taking the wife back. This is the right of the husband during the waiting period after an unfinalized divorce. It is often translated as “the revocation of divorce,” but I avoided this translation because it may insinuate that the divorce does not count if the husband takes his wife back during the waiting period, and this is not true. For the same reason, I avoided using the terms revocable and irrevocable divorce for the raj‘ee and bâ’in divorces respectively. Instead, I used unfinalized and finalized (which are also used by some other translators). As a rule, all divorces are unfinalized (raj‘ee), allowing the husband the right to take the wife back during the waiting period, except: a third divorce, a divorce performed before consummation, a divorce in return for compensation, an annulment, or a legally enforced dissolution of the marriage. These are considered bâ’in, some with recourse and others without recourse.

1373. Having Witnesses to Raj‘ah

Allah said:

{And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you...} (aṭ-Ṭalâq 65:2)

فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ

The apparent implication of this verse is that having witnesses to raj‘ah is obligatory.
(a) + (-some Mâlikis, -s): Having witnesses to raj‘ah is mandatory. (a) condition of validity.

or “…returned her” or “…kept her.” ¹³⁷⁴ For this, he does not need a wali, a payment more than the original ṣadâq, or even her approval. ¹³⁷⁵

رَاجَعْتُ زَوْجَتِيْ أَوْ رَدَدْتُهَا أَوْ أَمْسَكْتُهَا، مِنْ غَيْرِ وَلِيٍّ، وَلاَ صَدَاقٍ يَزِيْدُه، وَلاَ رِضَاهَا.

If he has intercourse with her, that, in itself, counts as a raj‘ah. ¹³⁷⁶

وَإِنْ وَطِئَهَا، كَانَ رَجْعَةً.

(A) + (+H, +M, +S): It is only preferable. They argued that the witnessing mentioned in the verse pertained to both divorce and restoration of marriage. Since having witnesses to divorce is only preferable, according to the agreement of Ahl us-Sunnah, having witnesses to raj‘ah must also be preferable. They also argued that, like divorce, raj‘ah is the husband’s right, and he does not need witnesses when he does it. Moreover, the reason why Allah commanded that the wife not move out of her home during her ‘iddah is to allow the couple to restore the marriage, which may happen with a spontaneous awakening of emotions. If having witnesses is required here, this spontaneity may be lost. Finally, the marital relationship is a private one, and its dynamics can be very peculiar. At times, divorce and raj‘ah may occur privately, sparing the couple the imprudent intervention of others.

1374. This is the perfect way of restoring marriage. If he does this, the raj‘ah is valid by consensus.

1375. Because Allah said:

{…And their husbands have more right to take them back in this [period] if they want reconciliation…} (al-Baqarah 2: 228)

{... وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ إِنْ أَرَادُوا إِصْلَاحًا...}

1376. Raj‘ah by Actions

All of the fuqahâ’ agreed that raj‘ah takes effect when the man clearly states it. An unclear statement that is coupled with the intention of raj‘ah will do the same. As for raj‘ah through sexual intercourse and the actions that lead to it: (-S): It is only valid if done verbally.
(-H): It is valid by means of intercourse, lustful kissing, or touching (even through a barrier), whether or not the husband intends to take her back.

(-M): It is valid by means of intercourse and the things that lead to it, as long as the husband intends by these actions to take her back.
(A): It is valid by means of intercourse only, whether or not the husband intends to take her back. (t): Only if he intends to take her back.

The one whose divorce is unfinalized is still a wife ¹³⁷⁷ who is subject to divorce ¹³⁷⁸ and dhihâr. ¹³⁷⁹ She may beautify herself for her husband and reach out to him. He is entitled to have intercourse and be in seclusion with her, as well as to travel with her. ¹³⁸⁰

وَالرَّجْعِيَّةُ زَوْجَةٌ، يَلْحَقُهَا الطَّلاَقُ وَالظِّهَارُ، وَلَهَا التَّزَيُّنُ لِزَوْجِهَا وَالتَّشَرُّفُ لَهُ، وَلَهُ وَطْؤُهَا وَاْلخَلْوَةُ بِهَا وَالسَّفَرُ بِهَا.

1377. The Woman during the ‘Iddah after an Unfinalized Divorcend intends to take her back. (t): Only if he intends to take her back.
Remember that the bâ’in (a woman whose divorce is finalized) is not considered a wife during her waiting period, so she cannot be in seclusion with her ex-husband.
A woman whose divorce is not finalized (a raj‘iyah) is still considered a wife during her waiting period. Allah said:

{…And their husbands have more right to take them back in this [period] if they want reconciliation…} (al-Baqarah 2: 228)

وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ إِنْ أَرَادُوا إِصْلَاحًا

Note that Allah called them {their husbands}. He also said:

{…either retain them according to acceptable terms or part with them according to acceptable terms...} (aṭ-Ṭalâq 65: 2)

فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ

Notice that Allah said, {retain them}. This means they are still wives. If a woman whose divorce is unfinalized is still in her ‘iddah, and either she or her husband dies, the other spouse will inherit.

1378. This is according to (A) + (+H, +M, +S).

(t): Divorcing an already divorced woman is invalid unless there has been a raj‘ah. See the discussion on the composite divorce under the “Book of Divorce” above.

1379. See the Book of Dhihâr.

1380. If he did not intend by this intercourse to take her back, he will have committed an enormity, according to the scholars who demand an intention for the validity of raj‘ah (-M, -t). Remember that according to (S), no action counts as raj‘ah; a verbal statement is necessary.

If he takes her back, she resumes the marriage with the remainder of the divorces left. ¹³⁸¹

وَإِذَا ارْتَجَعَهَا، عَادَتْ عَلىٰ مَا بَقِيَ مِنْ طَلاَقِهَا.

If he leaves her until her divorce becomes finalized (by reaching the end of her ‘iddah), then she marries and later gets a finalized divorce from a second man, and then the first husband marries her again, she goes back to him with the number of the divorces she had remaining. ¹³⁸²

وَلَوْ تَرَكَهَا حَتَّى بَانَتْ ثُمَّ نَكَحَتْ غَيْرَهُ، ثُمَّ بَانَتْ مِنْهُ، وَتَزَوَّجَهَا اْلأَوَّلُ رَجَعَتْ إليهِ على ما بقِيَ مِن طَلاقِها.

If they disagree over the ending of her ‘iddah, her word will be taken over his, along with her oath, as long as her claim is possible. ¹³⁸³

وَإِذَا اخْتَلَفَا فِيْ انْقِضَاءِ عِدَّتِهَا، فَاْلقَوْلُ قَوْلُهَا مَعَ يَمِيْنِهَا إِذَا ادَّعَتْ مِنْ ذٰلِكَ مُمْكِنًا.

1381. For example, if the last divorce before the raj‘ah (restoration) was the second one, they will have only one more divorce remaining when she goes back to him, after which she becomes finally divorced without recourse. Note that there is no raj‘ah (restoration) after the third divorce.

1382. The majority, including (A) + (+h, +M, +S), ‘Umar, ‘Ali, Abu Hurayrah and other major Companions: There is no impact for her marriage to another man in this case. This is because she married that other man after her first or second divorce, so if she went back to her first husband, they will only have two or one divorces remaining, respectively.
(a) + (-H), Ibn ‘Abbâs, and Ibn ‘Umar: She goes back to the first husband with three divorces.

Note that if her first husband divorced her a third time, and she married another man and got divorced from him and then went back to the first husband, they would have three divorces remaining, by consensus (before the termination of their marriage is finalized without recourse).

1383. The Shortest Duration of the ‘Iddah Is Controversial

Although it is by agreement three qur’s, the actual number of days is not agreed upon because it depends on
1) The shortest possible period of ṭuhr (purity), which is 13 days in the madh-hab (or 15 days according to the majority), and

2) Whether the qur’s are counted as three menstrual periods or as three periods of purity (in between the menstrual periods).

If, after the ending of her ‘iddah, the man claims that he took her back during her ‘iddah, her word will be taken over his. ¹³⁸⁴

وَإِنِ ادَّعَى الزَّوْجُ بَعْدَ انْقِضَاءِ عِدَّتِهَا أَنَّهُ كَانَ قَدْ رَاجَعَهَا فِيْ عِدَّتِهَا، فَأَنْكَرَتْهُ، فَاْلقَوْلُ قُوْلُهَا.

If he has evidence (of his claim), the decree will be in his favor because of it. If she has already married another man, she will be returned to the

وَإِنْ كَانَتْ لَهُ بَيِّنَةٌ، حُكِمَ لَهُ بِهَا، فَإِنْ كَانَتْ قَدْ تَزَوَّجَتْ، رُدَّتْ إِلَيْهِ، سَوَاءٌ دَخَلَ بِهَا الثَّانِيْ أَوْ لَمْ يَدْخُلْ.

If we say that the qur’ is the menstrual period itself, and the shortest period of purity is 13 days, then the shortest duration for an ‘iddah is 29 days. If he divorces her just before her period starts, this will be the breakdown of the 29 days: (1 day of menstruation + 13 days of purity + 1 day of menstruation + 13 days of purity + 1 day of menstruation).
If we say that the qur’ is the period of purity, then we count the period of purity during which the divorce happened, right before the beginning of menstruation, so the shortest waiting period is 28 days (1+13+1+13).
If the woman claims that her period has ended, and it has been more than one month, she is believed without having to produce proof because she has been entrusted with that. Allah said:

{Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day…} (al-Baqarah 2: 228)

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ ۚ وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ اللَّهُ فِي أَرْحَامِهِنَّ إِن كُنَّ يُؤْمِنَّ بِاللَّهِ وَالْيَوْمِ الْآخِرِ

Allah addressed the women and warned them against lying concerning the pregnancy or menstruation which takes place in their wombs.

If she claims that her ‘iddah ended after more than 28 days but less than one month, she will need to produce proof for her claim because of the extreme rarity of this scenario. This is because ‘Ali approved of Shurayḥ’s judgment when a woman claimed her ‘iddah ended in one month, and Shurayḥ accepted it on condition that she bring someone from her household to testify to it. (Ba, ad-Dârimi. Ibn Ḥajar: reliable narrators, but it is debatable whether ash-Sha‘bi heard anything from ‘Ali)

1384. (A) + (+H, +M, +S): If her waiting period ends, and then he tells her that he has taken her back, he will have to prove it. If he does not have two witnesses, and she denies it, his claim will be rejected.

first, whether or not the second man has consummated his marriage with her. ¹³⁸⁵

1385. If she has already married another man, and the first husband can prove that he took her back before the end of the waiting period, then (A2) + (M) will keep her with the second husband, whereas (A) + (+H, +S) will annul the second marriage and reinstate the first.

Restoration of the Marriage & 'Iddah

( Page : no 126)

Book of Divorce

Restoration of the Marriage & 'Iddah

الرَّجْعَةِ

Introduction

The Book of Purification

The Book of 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

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

The Book of Oaths

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

Restoration of the Marriage & 'Iddah