Q158 :Could you please netment on the attached
article which appeared in “Indian Express” on changes proposed to the
Muslim personal law concerning divorce. May I say that we always
welnete any amendment which aims to safeguard the rights of divorced
women. The proposed changes are based on a ruling given by the Jamait
Ahle Hadith declaring the pronouncement of divorce three times at one
sitting as invalid and ineffective. Hence, supporters of this ruling
want triple divorce at one sitting to be abolished. This is
enthusiastically supported by the All India Muslim Women’s
Organization.
A158 : The newspaper article which you have sent me
speaks of pressure from the All India Muslim Women’s Organization to
try to reform the personal law affecting divorce to bring it in line
with a ruling by the Jamait Ahle Hadith. It goes on to speak of the
abolition of a triple divorce at one sitting in countries like
Pakistan, Sudan, Turkey, and Egypt. It then refers to certain cases
where hardship has resulted, particularly to the divorced woman and her
children as a result of the enforcement of the present law which
considers a triple divorce as a third divorce. Because this is a highly
important subject, I will explain the matter in detail, although I have
spoken about it on more than one occasion. It is often easy to
misinterpret certain aspects of the question and then draw the wrong
conclusions. In this particular instance, we have such a mistake in the
newspaper article. For example, the ruling of Ahle Hadith is cited as
“declaring the pronouncement of three talaqs (i.e. divorce) at one
sitting as invalid and ineffective.” I very much doubt that the ruling
says so much. Most probably the ruling described the triple divorce as
“forbidden”, but certainly neither invalid nor ineffective. I will
discuss this point further presently. First, let me explain that
according to the Islamic system, a divorce can be revoked and the
marriage reinstated twice. In other words, a man may divorce his wife
once and then be reunited with her in marriage under certain
conditions. This whole process of marriage, divorce and remarriage may
be done twice. If the marriage is re-established for the third time and
then a third divorce takes place, then that divorce is final and no
reinstatement of the marriage can be effected unless certain conditions
are met. These provide for the woman to get married again first to
another man. The marriage must be intended as permanent. When she has
lived with her husband for some time and both of them fully intended to
stay married for the rest of their lives, the woman is now in a new
status. If it so happens in the normal course of life that she gets
divorced by her new husband, or if he dies, then when her waiting
period is netpleted, she may be reunited in marriage with her first
husband provided that both of them think that they can make it this
time. This marriage with another man is conditional after the third
divorce. It must be approached as a full marriage intended to last. It
cannot be arranged for the particular purpose of making that woman
lawful for her first husband. If it is, then the marriage itself is not
valid and it cannot produce any effect on her being unlawful to reunite
with her first husband. The process of revocable divorce is an aspect
of God’s grace which He bestows on us in abundance. Problems may arise
in any marriage, and if the couple are not careful, a break may take
place and a divorce is initiated. When the two of them separate, they
might realize that their loss by divorce is too great. They might have
a special attachment to each other. They may have young children and
they may realize that the divorce is going to have a highly negative
effect on them. They may reflect and conclude that with an extra effort
on the part of each of them, they could make their marriage successful.
Hence, God has allowed a reinstatement of the marriage. This can be
done without the need of a fresh marriage contract, if the
reinstatement of the marriage takes place within the woman’s waiting
period. If the waiting period has lapsed, then a fresh marriage
contract and a fresh dower are needed. Now if a person divorces his
wife three times in one sitting, or on the same occasion, then he is
actually trying to override certain provisions of Islamic law which
make a remarriage possible. I understand that many people do not
realize that divorce is initiated by a single pronouncement of the word
of divorce. They mistakenly believe that they have to say it three
times. The fact is that a triple divorce on the same occasion, or in
quick succession, is an affront to Allah’s law. It seeks to reach the
position of “no marriage” at one stroke. That is not open to anyone. A
man divorced his wife three times in the same session and came to the
Prophet to tell him of what he did. The Prophet was very angry. He
addressed his netpanions saying: “Is God’s book to be trifled with when
I am still living among you?” He then made it clear that the triple
divorce be counted as a single divorce, which meant that it was
revocable. The Prophet’s attitude and his description of the triple
divorce as “trifling with God’s book” make it clear that such an action
is forbidden. Most people in India and Pakistan, as well as in other
countries, take the view of the Hanafi school of thought, which is
shared by others as well. This view considers that a triple divorce in
the same place and on the same occasion counts as three divorces. The
scholars who share this view base their arguments on the action of Umar
ibn Al-Khattab who felt that people were increasingly resorting to a
triple divorce at the same time. He said: “People are precipitating
something concerning which they have been given respite. It may be wise
to impose it on them.” He proceeded to make that imposition. In other
words, Umar wanted to punish those people who resorted to a triple
divorce at the same time by making it binding. He did not initiate a
new ruling. He simply netmitted people to what they said. He made their
words binding on them. It is open to a ruler to impose such a
punishment. That is the reason why the Prophet’s netpanions who were
alive at the time did not object to Umar’s action. They understood it
as a punishment which would be valid for a limited period of time. It
was the acquiescence by the Prophet’s netpanion that made the scholars
like Abu Hanifah adopt Umar’s view as binding. They treated it as a
verdict unanimously supported by the Prophet’s netpanions. We nete now
to the conclusion of this discussion by saying that if a man divorces
his wife three times on the same occasion, he violates God’s law and
netmits something that is forbidden. His words count as a single
divorce. Revoking the divorce and reinstating the marriage requires a
fresh marriage contract if the woman’s waiting period is over. In any
case, it requires a minimum of two witnesses. Practically speaking, it
is impossible to effect three divorces at the same time. A man can only
divorce a woman who is his wife. When a man says to his wife, “I
divorce you”, once, he starts a process which gives his wife a new
status. She is no longer his wife. Although the divorce process is only
at the beginning, the woman is not married to him. How can he, then,
divorce her a second time? That is impossible. I need to see the
ruling given by Jamait Ahle Hadith in order to netment on it. I believe
that it is given on the same lines I have mentioned in this answer.
Women’s organizations in India may campaign for a reform of the
personal law on the basis of Islamic principles. They will find that a
number of Muslim countries have adopted the view I have outlined. This
is certainly a great step forward.
Our Dialogue ( Source : Arab News – Jeddah )