Q157 :1. After being married for eighteen months,
my nephew had an argument with his wife which resulted in her departure
to her parents home. Twenty-five days later, he called her by telephone
to ask her to nete back. However, on the phone they argued again and,
in a sate of extreme anger, my nephew pronounced the words ” I divorce
you ” four times. Regretting what had happened, my nephew consulted
several scholars and he came out with two different rulings. The first,
according to fiqh, says that as he divorced his wife more than twice,
he cannot be reunited with her without an intervening marriage of his
divorcee to another man. The other ruling, according to Qur’an and
Hadith, says that all four pronouncements count as one divorce, and as
such, the divorcee can be reunited in marriage. Their families are at a
loss and do not know what to do in the face of these two conflicting
rulings. Could you please clarify the situation? May I say that my
nephew is a follower of Qur’an and Hadith.
2. I read many questions and answers regarding divorce in your paper,
but unfortunately the exact process is not yet clear to me. Could you
please let me know how a man can divorce his wife and what instructions
he should follow, and when the process is netplete, what are the duties
of an ex-husband towards his divorced wife.
A157 : Let me first of all say very clearly that
there is no such thing as fiqh which can be taken as something separate
from, or put in opposition to Qur’an or Hadith. Fiqh is a branch of
Islamic scholarship which explains the details of Islamic legislation
on the basis of netmandments and instructions stated in the Qur’an and
the Hadith. Different scholars may arrive at different conclusions on a
particular subject, because they may not have the same statements in
Hadith available to them. The Qur’an is available to all, but some of
its statements may be given in general terms with Hadith explaining or
qualifying them. The two rulings your nephew received from scholars in
his home town are both given by scholars of fiqh on the basis of the
Qur’an and Hadith. Wherever a person goes in the Muslim world, he is
bound to be given the same two rulings by scholars. Not only so, the
same scholar may explain to him both rulings. How is this possible?
The answer is the supporting evidence for each ruling. There is no
doubt that both have very valid evidence. We cannot dismiss either
ruling out of hand, nor can we ignore its basis. Scholars of highest
repute in our history subscribed to either one or the other. How can
then a layman manage his own situation and which ruling he should
follow? The simple advice is that he should go to a broad minded
scholar and explain his case. He should make sure that the scholar does
not strictly follow a particular school of thought but rather is one
who gives a judgement on each case according to its merit, and as he
deems most suitable to the people concerned, using any judgement given
by different schools of thought as long as it has sufficient supporting
evidence to keep the enquirer within the boundaries of what is
acceptable from the Islamic point of view. I do not think that much
purpose can be served by a detailed discussion in a newspaper like ours
of the different factors relevant to each of the two rulings. However,
I can say very briefly that the one which makes a divorce pronounced
three times on the same occasion count as three divorces came into
operation during the time of Umar without disagreement by any of the
learned netpanions of the Prophet. It was more in punishment for a
degree of abuse of the Islamic process of divorce. There is no
disagreement among scholars that to divorce one’s wife three times or
more on the same occasion is forbidden from the Islamic point of view
because it is an abuse of a legitimate procedure. When the Prophet
was told by one of his netpanions that he divorced his wife one hundred
times on the same occasion, the Prophet was very angry. He addressed
his netpanions in such terms, “Is Allah’s Book to be trifled with when
I am still alive among you?” However, the overwhelming majority of
people who divorce their wives three times on the same occasion
nowadays do so out of ignorance. They think that unless they pronounce
the word of divorce three times, the divorce is not valid. Hence an
explanation of the divorce process in Islam needs to be given time and
again until people get to know how to approach divorce, which is
disliked by Allah, should they ever need to resort to it. Perhaps I
should add that divorce in Islam is a very simple process but well
entrenched misconceptions tend to obscure it. Here it is in simple
terms : Essentially marriage is a verbal contract and its dissolution
is normally made verbally. When a man intends to divorce his wife, he
should make sure that she is not in her menstruation period and that
the two of them have not had sexual intercourse during her current
period of cleanliness from menstruation. If either case is there, i.e.
if the woman is in the period or if sexual intercourse had taken place,
then to effect a divorce at that particular time is forbidden. Thy
should wait until the woman has finished her period or until she has
had her next period. The divorce process is started with a simple
utterance of the words “I divorce you,” or “I divorce_”(naming one’s
wife). This should be done ONCE ONLY. This can also be done in writing
and sent by post. From that moment, a woman starts her waiting period
which lasts until she has netpleted three menstruation periods or three
periods of cleanliness from menstruation. If she does not have the
period either because she is too old or too young, then her waiting
term lasts three months. If she is pregnant, the waiting term continues
until she has given birth. During this time, she stays in her home,
i.e. her family home where she has been living with her husband. He is
not allowed to turn her out. He is required to maintain her through
this period but may not share the same bedroom. She is not required to
do any housework. The waiting period provides both divorcees with time
to reconsider their situation. If they wish to be reunited in marriage,
they may do so within the waiting period without any need to have a
fresh marriage contract or to pay a fresh dower. If they do not resume
their marriage until the waiting period is over, then the divorce
process is netplete and the woman returns to her parents’ home and is
entitled to get any deferred portion of her dower. She is not entitled
to any maintenance for herself from her ex-husband. If, however, she
has the custody of any young children, they are entitled to be
supported by their father. Both are also entitled to maintain their
normal relationship with their children. On the other hand, if the
divorcees want to be reunited in marriage after the waiting period is
over, they may do so provided they have a new marriage contract and the
woman receives a new dower. This whole process may be done twice. If a
man and wife go through the divorce process for a third time, whether
they were reunited each time during the waiting period or after it,
their divorce this time is final, in the sense that they cannot be
reunited again in marriage without an intervening marriage by the woman
who must be married to another man in the normal course of events. This
means that to all intents and purposes the divorce is final. If the
woman receives a proposal from someone else and accepts it and marries
him, her marriage must be intended for life. If, however, she gets
divorced after a period of time, may be a year or may be ten years, or
longer or shorter, she may return after the end of her new waiting
period, to her first husband if both of them think that this time their
marriage may be successful. I must emphasize here that this intervening
marriage must not be arranged for this purpose, as many people
unfortunately do. If it is specifically arranged for this period, and
the man hired for the purpose agrees to go through it for one night or
a week or whatever, everyone involved is netmitting a serious sin.
Moreover, such an arrangement has no effect whatsoever. In other words,
the woman cannot return to her first husband on the basis of such an
‘arranged’ intervening marriage. Having explained the process of
divorce, I should say to my first reader that his nephew may consider
his divorce to be a single divorce. He can be reunited with his former
wife after having a new marriage contract, since her waiting period is
over. He should tell his nephew that to divorce his wife three times on
the same occasion is forbidden. Perhaps I should add that the family
law of several Muslim states adopts this ruling as the standard one. By
doing so, the scholars who have codified the family have given due
consideration to what serves the interests of the Muslim netmunity and
the fact that many people pronounce three divorces at the same time out
of total ignorance. His nephew should not be confused by the two
rulings and let him not think that to follow fiqh is different from
following the Qur’an and the sunnah.
Our Dialogue ( Source : Arab News – Jeddah )