"Our Dialogue" 6th Edition Rev



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In the last letter, the family of the divorcee actually demands it to make sure their daughter had been duly divorced. When the husband says to his wife that he has divorced her, verbally or in writing, she starts her waiting period. This lasts for three menstruation periods or three periods of cleanliness from menstruation. However, if the woman is pregnant, her waiting period lasts until she has given birth, whether that takes place in a few days or after a few months. If the divorced wife is too old or too young to be in menstruation, then her waiting period lasts for three months. During her waiting period a divorced woman stays in her home, i.e. the home in which she usually lives with her husband. He may not force her to leave. However, the couple must use separate bedrooms. They may not have sexual intercourse unless they decide to reinstate their marriage. She is not required to do any housework, but she is entitled to full maintenance. This applies if the divorce is taking place for the first or second time. In this case, a remarriage is possible. It only requires that the couple should decide to marry again. If the remarriage takes place within the woman's waiting period, there is no need for a new marriage contract or the payment of a new dower. It only needs to have two witnesses. However, if the waiting period has lapsed and the couple decide to be reunited in marriage, then they need to have a fresh marriage contract which should take the same form and procedure as any Islamic marriage contract. This means that the woman is entitled to have a new dower which she specifies. On the other hand, a woman who is being divorced for the third time does not have to stay in her husband's home during her waiting period. Here we are talking of a woman who has been divorced, then remarried her husband, and remarried him yet again, and then was divorced by him for the third time.

A marital reunion between them is no longer possible unless the woman marries another man with the marriage intended to last for life. However, if her new husband dies or divorces her in the normal course of life, she may be remarried to her former husband if the two of them feel that their marriage can be made to work this time.

The question arises here about the triple divorce people often pronounce at the same time: How many divorces it counts? We have mentioned the case of the man who reported to the Prophet, peace be upon him, that he divorced his wife three times in succession. The Prophet, peace be upon him, ordered that man to treat the divorce as a single divorce. That was a very clear and specific order by the Prophet, peace be upon him, himself. Hence, there is no way it could be otherwise. In saying so we are relying on the authority of the Prophet, peace be upon him, himself. We need no other authority after that. However, it is only logical that it should be so. When a man says to his wife: "I divorce you," she is no longer his wife although she stays during her waiting period in his home. This is evidenced by the fact that they may not sleep together, nor is the woman required to do any of the duties a husband expects his wife to do. How, then, can a man divorce a woman who is not his wife?

With some people this is a thorny question. They know that their school of thought considers this type of divorce as a triple divorce and they do not wish to budge. But the matter is not one of following a particular school of thought. In real life people seldom do that. Those who have enough knowledge to be able to distinguish the evidence supporting any particular view will always follow the view supported by the stronger evidence. Those whose knowledge is limited go to scholars to find out what Islam says about different matters. Any school worthy of the name will always look at the particular circumstances of the question and choose the view which has the stronger evidence, or the one which is particularly relevant, or the one which is most beneficial or least harmful. Hence there is no strict following of a particular school of thought, either in the case of scholars or laymen. An important point that is particularly relevant here is the one mentioned in the third letter, concerning what is known as "muhallil" or "halalah." That is the name given to a man who agrees to marry a woman divorced three times and then divorce her after a few hours or one night.

As we have explained, a woman divorced three times in succession cannot remarry her former husband unless she is married to a different man. But this is intended as a punishment to a couple who have not taken their marriage with the seriousness Islam wants all marriages to be taken. People, however, try to circumvent this restriction by making arrangements with a man to go through a nominal marriage that has no value whatsoever. Let me make it clear that such a practice is strictly forbidden in Islam. The Prophet, peace be upon him, is quoted to have said to his companions: "Shall I tell you who is the borrowed wed bull?" They said: "Please do, messenger of God." He said: "That is the muhallil. May God curse the muhallil and the one who seeks his services."

In the light of the foregoing I say to the writer of the first letter that since he and his former wife wish to marry again, they may go ahead and get married. They were divorced once only and such a divorce does not constitute any impediment to their second marriage. However, they need to have a new marriage contract, and he should pay his wife a new dower.

To the writer of the second letter I say that his friend may have had a tumultuous time with his two marriages, but that does not make his marriage with his first wife invalid if he went through the marriage procedure.

As for the specific point raised in the third letter, I think I have given a full explanation. No muhallil may be hired in any situations. Besides if a couple hire such a person they disobey God and they do not get what they want, because when a muhallil is used, the process of using him does not achieve the result for which he is used, i.e. the couple remain unable to marry lawfully because the condition for their marriage has not been fulfilled.

To the writer of the last letter I say that he cannot divorce a woman who is not his wife. He had divorced his wife two years ago and she is no longer related to him in any way. The question of different schools of thought does not arise. The Hanafi school of thought also considers the pronouncement of divorce three times in succession to be forbidden. It requires it to be said once only in accordance with the Sunnah of the Prophet Muhammad, peace be upon him.

• Divorce: Rights of children

I have two children, aged 6 & 1, but I am not happy with my wife due to differences of social background. I intend to marry a woman from my own small town. If my present wife asks for divorce I will grant her that, but I would like to know what are my obligations toward her and my children.

What you must do if you divorce your wife is to keep her in your home during her waiting period, when you continue to be responsible for her maintenance. During this period you can reinstate your marriage without a need for a new marriage contract or a dower, although you need to have two witnesses. If this period lapses and you have not reconciled, the divorce becomes final. Your wife will be entitled to receive any outstanding portion of her dower, as well as mit'ah which is a gift that you give her.

The amount of this gift is determined by the husband in accordance with his means. As for your children, your responsibility does not change toward them on account of your divorce. You remain responsible for their upbringing, maintenance and education, even though they continue to live with their mother. A child of a broken family may choose to stay with the mother after such a choice is given. The father remains responsible for the living expenses, upbringing and education [of the child]. When the woman's waiting period is over, the man is no longer responsible for her maintenance. Her own family should look after her.

• Divorce: Shortly after marriage

One of our friends married a girl with a university degree. They have barely lived three months together when she went back to stay in her parents' home. She has been living with them for more than a year now, stating that she wants a divorce. Her husband, who seems to us to be a good man in every respect is unwilling to give her divorce, because he wants his marriage to succeed. In our community, a stigma is cast over a divorcee which may jeopardize her chances of marrying again, and indeed the chances of her sisters. Yet, the wife of our friend seems determined, stating that this would be her first and last marriage. We may add that her parents have given her support. Please advise.

Something must have gone drastically wrong with this marriage. It is often the case that newly married people experience some profound disappointment as they begin to discover the sort of transformation their lives are taking after marriage. Personal peculiarities may not be easy to overlook or reconcile. Sometimes quarrels may take place over small matters or for causes which are difficult to pinpoint. It is often the case that patience and the willingness to understand the other party's likes and dislikes, prejudices and preferences, is all that is needed to bring stability to a marriage and establish a degree of mutual affection between a man and his wife which is far more important than any passionate love of the type poets and men of letters are never tired of describing.

From another point of view, when you go into a marriage, you are clear in your mind that you are establishing a relationship which you hope will last for the rest of the couple's life. Things must go badly wrong for a married couple to want to break their relationship three months after living together. I can only say that your friend and his wife must have made plenty of mistakes, and must have caused each other much unhappiness to make matters reach such a stage. [One of the aspects affecting may be pride; which is described by the Prophet, peace be upon him, as: "Ignoring the truth and denying people their rights."] It is also most probably true to say that the mistakes were on both sides, I do not question your testimony in favor of your friend's character, but I can say that it is impossible for anyone of us to tell how a friend of his behaves at home, or how he treats his wife. Although you have not given me details of what took place between your friend and his estranged wife, I can say that the uncompromising attitude of the woman in this case provides some indications. Those three months must have been so hard for her that she is now adamant that she would never be married again. It is quite possible that she is to blame for much of the troubles that have shaken the foundations of her marital home. Be that as it may, she must feel that her reasons for wanting to be divorced are so strong, as far as she is concerned, that she is willing to accept the social stigma that is cast over a divorcee in your society, as you say. This is further strengthened by the support she enjoys from her parents. They are more likely to take a less passionate view. They have to look after the interests of their other five daughters who, you admit, will be affected by the outcome of this case. They apparently recognize that it is hopeless to try to patch up the differences between their daughter and her husband.

My advice to your friend is to adopt a cool approach, realizing that it is no use continuing with a marriage if the other party is determined to break it. This is bound to prolong the misery. If he knows his father-in-law to be a reasonable man, he should suggest to him the process Allah has outlined to achieve reconciliation. This involves the appointment of two arbiters, one from each family, who should meet and discuss the differences and problems of this marriage and degree of reconciliation, outlining what each party must expect from the other. The arbiters should refer to the two parties concerned and determine whether they can implement the points they have agreed between them. If everyone involved approaches the matter with goodwill, then reconciliation is sure to be achieved. If not, then the arbiters, or the man and his wife should work out the terms of their separation and divorce.

If the man takes the initiative and divorces his wife, then it is a simple case of divorce and he has to give the woman all her rights, including her full dower. If he does not and feels that he would still prefer to go through with the marriage, but the woman is persistent in her demand to be divorced, then the case is one of "khula". This is a term which applies to a case of dissolution of the marriage at the wife's request. The husband is unwilling to divorce her because he prefers to maintain his marriage. An Islamic court could grant a wife's application for 'khula', outlining the terms of separation. The husband is entitled to have back all the dower he has given his wife at the time of the marriage.

Whatever your friend and wife ultimately decide, each of them must remember that Allah will hold them to account for their deeds. Therefore, each one of them should be keen to treat the other fairly and to make sure that the rights of the other are absolutely respected and guaranteed.

• Divorce: When a three-time divorce is binding

1. Many of us felt a great relief when we read your reply, explaining that a divorce pronounced three or more times in one session is counted as one revocable divorce. The relief comes from the fact that it is common practice in our part of the world to pronounce divorce three times together, which has resulted in many a broken homes. However, it is mentioned by scholars that all four schools of thought are unanimous in considering a divorce pronounced three times as three divorces, which renders the break of the marriage irreparable. Even Maulana Maudoodi mentions this in his book Tafheemul Qur'an. Please comment in detail.

2. It is common practice that a man casts his wife by pronouncing the word of divorce three times. It is often true that this irrevocable break up of the marriage has no reason other than the husband's desire for another woman or some such silly thing. In this way, he uses the law of divorce to satisfy his whims. Could you please explain what sort of protection is given to the woman to guard against such abuse of the law.

Any law or regulation can be subject to abuse. Unless you appoint someone to watch over every person to ensure that he abides by the letter and spirit of the law, you cannot achieve a proper adherence to the law. But Islamic laws and regulations are given the support of the very real feeling which Islam implants in the mind of every one of its followers that Allah watches over him or her. When we realize that Allah knows our intentions and the real reasons behind our actions, we feel that we must always watch out. We must never abuse Allah's law or be guilty of any wrongdoing. As people who believe in the Oneness of Allah and in the message of the Prophet Muhammad, peace be upon him, we know that we have to face a detailed reckoning on the Day of Judgment, when we have to answer for every action that we may make in this life. It is the total sum of what we have done in life and the net result of our good actions set against our bad ones that determines our destiny in the life to come. As believers we know that heaven and hell are a reality and that we must do our best to ensure our admission into heaven. Therefore, we must always guard against doing injustice to anyone, particularly those whom we are required to look after and to whom we are supposed to bring happiness, i.e. our wives and close relatives.

The other safeguard is the fact that in a Muslim community, women are properly looked after either by their husbands or by male members of their families, such as their fathers, brothers or uncles. In addition, if we are good believers and know that following the teachings of the Prophet Muhammad, peace be upon him, brings us the greatest reward of all, namely, that Allah is pleased with us, we should work hard to implement the Prophet's teachings in our lives. The Prophet has repeatedly emphasized that we must take good care of our women. To take good care of one's wife cannot be accomplished by abusing the law of divorce in order to get rid of her, or "cast her away" as you say.

May I now turn to the other point of divorcing one's wife three times in the same session. I have explained several times that this is forbidden. When the Prophet heard that one of his companions did this, he expressed extreme anger and addressed the Muslim community, saying: "Will Allah's book be trifled with when I am still alive among you?" He described a divorce pronounced three times in the same session as "trifling with Allah's Book." There can be no greater emphasis that such an action is absolutely forbidden. Yet people do it all the time. I am afraid that many are under the false impression that unless they pronounce the word of divorce three times together, the divorce does not take effect. Therefore, this comes as a result of ignorance.

The question is whether what people do, pronouncing the word of divorce three times in quick succession, or in one session, or on the same day, counts three divorces as the four schools of thought say, or counts as one divorce, as I have explained on more than one occasion. Before answering this question let me point out three very important facts:

First, a verdict may be accepted by a large number of highly prominent scholars, including, the founders of the four schools of thought, yet it may be supported by less weighty evidence than an opposite verdict which may be advocated by a smaller number of scholars. If we find that evidence supporting the view of the minority weightier, then we do not hesitate to accept that opinion, because no one, a scholar or others, of even the highest eminence, is immune from making a mistake or giving a judgment which relies on a misunderstanding, etc. All our scholars agree that no opinion of any person is to be taken in preference to an authentic Hadith. Even the founders of the four schools of thought have expressed this view very clearly. Imam Al-Shaf'ie says: "If I say something and you find an authentic Hadith saying something different, then take the Hadith and leave my opinion aside."

The second point is that when there is more than one verdict in relation to a particular question, a person in my position, having to answer people's queries and explain what people should do in order to earn Allah's pleasure, should not leave his readers in a position of confusion. He must tell them the view that he believes to be the correct one, as supported by the weightier evidence. If any reader decides that he wants to take the other view, he is free to do so, but he should make his decision based on a proper understanding of the evidence relevant to the question on hand.

Thirdly, if the leader of a Muslim community chooses a verdict which is supported by good and weighty evidence and decides that this is the one to be implemented by the courts of law, he must be obeyed provided that he is only acting in the best interests of the community.

Those who consider that a divorce pronounced three times in succession, or in one session, or written down on the same piece of paper counts as three divorces rely on a ruling by Umar ibn Al-Khattab who, as a ruler of the Islamic state, enforced that piece of regulation. He justified it by saying: "People have precipitated something in which they have been given relief, it may be appropriate to enforce what they have precipitated." So he enforced it. It is clear from this statement that Umar meant this as a punishment befitting the misbehavior of people who precipitate the irrevocability of divorce by divorcing their wives three times in succession. In other words, he was saying that "People want that irrevocability to take place immediately, then let them have it." The companions of the Prophet who were alive at that time accepted Umar's view, because they felt that the punishment was appropriate. Later scholars have taken this as a unanimous verdict by the companions of the Prophet and include it in their books as the appropriate ruling. The fact that it was merely a punishment is the acknowledgment implied in Umar's own statement that people have already been granted a relief, but they still precipitate the ultimate result. It is only appropriate to ask what that relief is. The answer is contained in the authentic Hadith included in this report by Abdullah ibn Abbas: Rukanah ibn Abdyazid divorced his wife three times in the same place, and then he was full of grief of having done so. Allah's Messenger, peace be upon him, asked him: "How did you divorce her?" Rukanah said: "I have divorced her thrice." The Prophet asked him: "In one session?" He answered: "Yes." The Prophet said: "That is one divorce, and you may return to her if you wish." He revoked the divorce and remarried her." This Hadith tells us that the Prophet himself gave the ruling that a divorce pronounced three times in a succession, or in one place counts only as one divorce. It is well known that a remarriage between a divorced couple can take place if the divorce is taking effect for the first or second time. Indeed, this was the ruling enforced by the Prophet throughout his life, and also enforced throughout the reign of Abu-Bakr and the early period of the reign of Umar. All companions of the Prophet who were alive in that period were unanimous in their acceptance of such a divorce as a single divorce.

This ruling, as I have mentioned earlier, is one adopted by a number of renowned scholars, including Imam Ibn Taimiyah and Imam Ibn Al Qayyum. Earlier in this century, when the family law in several countries was enacted, scholars who were entrusted with the task of formulating the Islamic teachings in a well coded family law chose this ruling as the correct one and incorporated in that family law. It was then endorsed by the ruler. As such, it takes a much stronger effect.

From a totally different point of view, it is well known that in Islam, when a person says to his wife that she is divorced, intending a termination of his marriage to her, she begins the procedure of divorce [and her waiting period] immediately. She is, technically speaking, a divorcee, but she is observing a waiting period. When he says the same thing to her a second time, whether immediately or a short while afterwards, his statement is no more than an idle talk because she is no longer his wife.

How is it possible to divorce a woman who is not one's wife? That is certainly impossible and, therefore, the second and any subsequent utterances of the word of divorce have no significance whatsoever.

• Divorce: When the US Laws are contrary to Islamic laws

My daughter’s husband wants to divorce her after three years of marriage. There are strong indications that he intended right from the beginning that he would use this marriage in order to secure certain benefits under US laws where my daughter is a national. Although he actually divorced her verbally on the phone, he wants a legal divorce because it would benefit him. However, he is trying to get her to forgo what she may claim from him under US law, and he says that this is not lawful in Islam. May I ask whether she may claim what the law of the country gives her. Her circumstances make it necessary for her to get all the benefits she can. May I mention in particular that he actually forced her to forgo her $5000 dower and paid nothing of it. We do not want to get from him anything that Islam would consider unlawful. Please advise.

I cannot make a judgment on all aspects of this case without having the man’s point of view. However, I will give you an opinion based on the details that you have given me. Assuming that these details are all true, as they appear to be, then I think you should not give in to his demands.

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