Tajdeed

Acknowledgment

I would like to acknowledge & thank Prima Quran for his articulate articles regarding the correct rules & regulations of marriage & divorce laws under Shari’a through the clear verses of the Qur’an & the practice of the established Sunnah of the Prophet Muhammad that was undermined by some later schools of Islamic jurisprudence.

This mater is vital for the benefit & well-being of society because the correct understanding of family & the laws concerning it are essential for the establishment of a healthy community. Evidently, the culture of family & family law is intrinsically tied to the laws of marriage & divorce.

As a consequence, Muslims are obliged to apply the correct Divine injunctions of marriage law for the betterment of their communities. Otherwise, as seen from the wrong implementation of Islamic law, they will suffer as communities & will get harmed as individuals tremendously.

Introduction

We will assess the commonly misconstrued laws of divorce under Islamic law by re-examining the textual evidences regarding them. We aim to question & critique the validity of certain common practices attributed to Islam law, such as the Triple Talaq divorce, which is done in one, single instance, and then certain individuals being compelled to marry their ex-wives to other men, in order to re-marry their wives again. It is obvious that such a practice will psychologically damage individuals and will then impact the communities negatively. Most importantly, this law is attributed to the Divine, which is a lie upon the Creator and attributing wrong things to the Creator is greatest oppression.

Regarding this matter, the Qur’an states:

“And do not say, as to what your tongues falsely describe, ‘This is lawful; and this is forbidden, so that you may forge against God falsehood; surely those who forge against God falsehood shall not prosper”. (Surah 16:116).

This lie misguides the innocent & naïve and makes others hate, despise and strongly criticise the law of God. It is known that there are certain rules regarding Triple Divorce that are strict, but as we will demonstrate, this law is misunderstood & misapplied. Therefore, the strictness of the Triple Talaq issue is useful for society but practically it was made to be harmful due to wrongfully applying the ruling.

Triple Talaq

The Islamic ruling that forbids a man from marrying his former wife after they get divorced three times places a condition on the former wife, which is that she needs to now marry someone else. The previous husband is forbidden from marrying her again for a fourth time unless the new husband dies, or the newlywed couple get divorced as well. The verse clarifies that if such a situation occurs, it will not be permissible for them to unite in marriage for a fourth time unless the woman moves on with another man.

The verse reads:

“So, if a husband divorces his wife ˹three times˺, then it is not lawful for him to remarry her until after she has married another man and then is divorced. Then it is permissible for them to reunite, as long as they feel they are able to maintain the limits of Allah. These are the limits set by Allah, which He makes clear for people of knowledge”. (Surah 2:230)

To contextualise this particular ruling, let us assess the following verse, which reads:

“When you divorce women and they have ˹almost˺ reached the end of their waiting period, either retain them honourably or let them go honourably. But do not retain them ˹only˺ to harm them ˹or˺ to take advantage ˹of them˺. Whoever does that surely wrongs his own soul. Do not take Allah’s revelations lightly. Remember Allah’s favours upon you as well as the Book and wisdom He has sent down for your guidance. Be mindful of Allah, and know that Allah has ˹perfect˺ knowledge of all things”. (Surah 2:231)

Is Divorce a Procedure, or is it Instantaneous?

Now the context of the initial verse is comprehended better. Here, we can deduce a few key things from these verses. Firstly, we understand that there is no instant triple divorce from the man’s side in one go or one sitting because this is a foreign practice to both the Qur’an & Sunnah, innovated by others.

Secondly, if divorce is initiated, there is a time period which is the idda’ period that needs to be fulfilled before divorced is actually finalised. During this period, the couple can either conclude their divorce or they can come back together in marriage. In this time period, they have adequate time to think & reflect about their situation.

Thirdly, there is no instantaneous divorce just because the man decides to initiate the divorce procedure, so divorce is a procedure, it is not instantaneous. Accordingly, we understand the conditional & procedural nature of divorce from another Qur’anic verse as well, which states, “Then when they have ˹almost˺ reached the end of their waiting period, either retain them honourably or separate from them honourably.And call two of your reliable men to witness —and ˹let the witnesses˺ bear true testimony for ˹the sake of˺ Allah.” (Surah 65:2).

Two Witnesses a Requirement for Divorce

Surah 65:2 establishes a key condition that has been missed & neglected by the majority of Muslims from the Sunni legal schools of thought, which is that two witnesses are a requirement for divorce to finalise. Although the Qur’an clearly mentions two-witnesses, most people do not practice this or take heed of this essential detail. What this means is that the husband cannot instantly divorce his wife as he likes without a produce or a gradual process with laws, regulations & requirements.

More importantly, people in general disregard another important detail which is that it is abnormal for a man and woman to get divorced three times! We have proven that a man completing three divorces in one go without witnesses & without the ‘idda period is contradictory to the Qur’an. Therefore, the only way for three divorces to take place is as follows.

The Procedure of Divorce

The journey & procedure of three divorces:

1. The man proposes to the woman and gets married with two witnesses, a dowry, and permission from the wali guardian (i.e. the father of the woman), then they get married,
2. Then they initiate divorce, they wait for three periods or months to think about their marriage, then they acquire two witnesses again to finalise the divorce
3. Then they get re-married with the same conditions for a second time
4. Then they divorced for a second time with the few months included to contemplate about their situation & affairs, which leads to the actualisation of the divorce (for the second time)
5. Then they get married a third time with the same conditions, like mahr, witnesses & wali again
6. Then the couple get divorced for a final time. Once again, with the same details & conditions as mentioned above

Abnormality in Three Divorces

Now, the question arises, is this a normal case? Is this a common issue that occurs with normal or healthy marriages? Obviously, it is abnormal & disliked for a couple to go through these several stages, but it is still possible. Therefore, this is a possible reason why the Qur’an forbids the divorced couple from coming back together for a fourth time. This time, the Quran commands the woman to move on with her life & marry someone else instead and this makes sense for multiple reasons.

Firstly, we understand the reasoning or wisdom from Surah 2:231, which reads: “When you divorce women and they have ˹almost˺ reached the end of their waiting period, either retain them honourably or let them go honourably. But do not retain them ˹only˺ to harm them ˹or˺ to take advantage ˹of them˺ (Surah 2:231).

Evidently, the Qur’an protects the woman’s right in these verses, hence why it commands the man to not retain or keep the woman during the ‘idda period to harm her or to abuse her. Evidently, many men abuse their divorced ex-wives by not allowing them to re-marry, which comes from jealousy and as a result, this jealousy then ruins the woman’s life.

In addition to those verses, the Qur’an also says: Those who swear not to have intercourse with their wives must wait for four months. If they change their mind, then Allah is certainly All-Forgiving, Most Merciful. But if they settle on divorce, then Allah is indeed All-Hearing, All-Knowing. Divorced women must wait three monthly cycles ˹before they can re-marry˺. It is not lawful for them to conceal what Allah has created in their wombs,if they ˹truly˺ believe in Allah and the Last Day. (Qur’an 2:226-2:229)

Do Men Own Women in Marriage?

 We know that many men feel ownership over women and they never let go of their ex-wives, which harms the women even more. Imagine a situation where a man is repeatedly marring & divorcing the same woman three times with all those procedures, this is clearly traumatising & harmful for the woman!

The divorcee cannot move on from the unreliable marriage of three divorces properly despite the man being permitted to have other partners or wives. That is why the woman becomes forbidden for the man who decided to divorce his wife three times.

To re-emphasise this point, this is precisely why the Qur’an says regarding this matter, either retain them honourably or let them go honourably. But do not retain them ˹only˺ to harm them ˹or˺ to take advantage ˹of them˺ (Surah 2:231).

Consequently, the Qur’an’s solution to this societal & marital problem is for the woman to get detached from the former husband and move on in her life with a new husband because it becomes evident that if a new marriage doesn’t occur, then the woman is getting stuck & thus harmed in a relationship where she is just hanging without the marriage going anywhere. This type of marriage is evidently toxic & is trapping her, she cannot continue with the marriage, nor can she leave it comfortably.

The Invalidity of Halala Marriage

Thus, it is impermissible for a man to divorce the woman three times in one go without the known period or without witnesses. Then if he regrets this decision, he supposedly marries her to someone else temporarily, just to take her back in marriage again! This is a filthy deceptive innovation against the Qur’an & Sunnah, but simultaneously attributed to various schools of Islamic law.

Regarding this horrid & invalid marriage of trickery, it is narrated that the grandson of Imam al-Huseyn, Imam Zayd bin Ali al-Sajjad narrated that his ancestor, Ali bin Abi Talib reported: The Prophet of Allah (peace be upon him) has cursed the Mu’halil (the person who marries a woman so she will be halal for her previous husband whom divorced her three times) and the Muhlalal (the ex-husband). – Reference (Musnad Imam Zayd)

Rights of Women Under Shari’a

Moreover, the Qur’an further highlights the importance of the rights of women in marriage in Surah Mujadila. The verses read:

Those of you who ˹sinfully˺ divorce their wives by comparing them to their mothers ˹should know that˺ their wives are in no way their mothers. None can be their mothers except those who gave birth to them. What they say is certainly detestable and false. Yet Allah is truly Ever-Pardoning, All-Forgiving.

Those who divorce their wives in this manner, then ˹wish to˺ retract what they said, must free a slave before they touch each other. This ˹penalty˺ is meant to deter you. And Allah is All-Aware of what you do.

But if the husband cannot afford this, let him then fast two consecutive months before the couple touch each other. But if he is unable ˹to fast˺, then let him feed sixty poor people. This is to re-affirm your faith in Allah and His Messenger. These are the limits set by Allah. And the disbelievers will suffer a painful punishment. (Qur’an 58:2-4)

These verses indicate that one of the possible reasons why the woman is urged to move on from a marriage of three separate occasions of divorce is for her well-being & benefit because in that marriage she is trapped & evidently from the wording of the Qur’an, many men are known to keep women hanging to harm them.

Similarly, the Qur’an strongly criticises husbands who hurt their wives with psychologically damaging abusive words. The Qur’an stipulates that if a man divorces his wife by comparing his wife to his mother to hurt her and he wants to come back to her, then he is obliged to free a slave as a compensation, if he cannot fulfil this condition, then he needs to feed 60 poor people and if he doesn’t have the financial capability to do that, then he needs to fast for 60 consecutive days!

Conclusion

To conclude, it is clear that a man cannot divorce his wife three times in one instance, which means that one divorce means one divorce. So, a man saying “I divorce you three times” is invalid and instead it is treated as one divorce if the conditions of two-witnesses & the waiting ‘idda period is fulfilled. Which means that men are not allowed to divorce their wives three times and since this is the case, they do not need to marry off their divorced wives to other men in order to re-marry them again. Often times, out of hasty anger, men divorce their wives three times, so she can be Haram for him forever, but then they regret this decision. So, we have proven that this type of divorce & this sort of trickery marriage, which is named as Halala marriage are intrinsically invalid & harmful for the people.

In actuality, divorce is a procedure, and if the husband marries, then divorces, then the period finishes, then decides to marry & divorce her two more times, then this will actualise into a Triple Talaq which means that the woman actually becomes forbidden for this man unless she marries someone else, commits to that relationship & then that relationship ends with death or a divorce, then she becomes halal for her ex-husband once more. What we gather from this ruling is that, after three procedural divorces, the woman is urged to move on with a new marriage to not get stuck in a toxic marriage where she is left hanging for all that time.

Finally, if a man psychologically abuses his wife by divorcing her by comparing her to his mother, then he is obliged to free a slave if he wants to re-unite with her. This ruling of Dhihaar is another indication that the possible wisdom behind the woman being haram for the man who divorced her three times is to assure that the divorcee is not left in a traumatised, in a jeopardised & compromised position. Therefore, this is the balanced & perfect system & law of the Creator that benefits both men & women and gives them their due right.

And God knows best

• By Abul Hasan al-Gabikani al-Shadi al-Shaddadi al-Hadhabani -al-Kurdi