Monday, 12 September 2022

How to and the Types of Divorce According to Sunnah




a. The Simple Revocable Divorce


When it becomes clearly evident, after the exhaustion of all the other peaceful means of reconciliation, that divorce is the only recourse left, this should be concluded according to the Sunnah.


That is, if eligible, the man will pronounce his freshly pure wife divorced, using specific terms, before two qualified witnesses, and in a simple revocable divorce. What follows this kind of divorce is as significant as the preceding and concomitant conditions.


This form of divorce does not terminate the marriage completely, much less does it necessarily entail any resentment or unkindness. The man is unequivocally obliged, among other things, to keep the woman in the same home or at least furnish her with a comfortable residence, which will be easily accessible to him.

She may not be evicted from her home nor should she leave it, unless she has committed a manifest offense of indecency. Moreover, he must provide for her adequately as if no divorce had taken place. These particular obligations continue through the probationary “waiting period,” which usually lasts for about three months, except if the wife is pregnant.


In this case, the waiting period expires with the termination of the pregnancy. If pregnant, the woman is forbidden to conceal her condition, because pregnancy may be a good omen for both of them. “Keeping” the woman in this way, under the man’s eye and conveniently accessible to him, or discovering her pregnancy may change the situation favorably because, to paraphrase the relevant Qur’anic passage (65:1), who knows? Perhaps God will bring about thereafter some new congenial situations.


If during the probationary period there develops a desire for reconciliation, which is probable in the light of these conditions, it should be fostered. The man may resume his full marital status by simply revoking his previous pronouncement in words or in deeds, e.g., by paying the woman a suggestive compliment, kissing her, etc.


To facilitate the reunion, nothing else is required other than this initial revocation. If the probationary period expires without revocation, the divorce becomes ultimate in the sense that she becomes free either to marry anew or reunite with her former husband.


But this reunion requires a new marriage contract with all the standard requisites, a stipulation which may deter some rash actions.


b. The Double Revocable Sunnah Divorce


Having made the first pronouncement of divorce, the man may wait for the woman to recover from her very next monthly course and enter into a new state of fresh purity. Then there will be three lawful alternatives, the first two of which have already been mentioned in connection with the simple revocable Sunnah divorce.


The three alternatives are (a) revocation, (b) waiting for the probationary period to expire, at which time the divorce becomes ultimately final, and (c) making another pronouncement in the same way as the first and with the same implications of residence, provision, revocability, etc. Should the third alternative of making another pronouncement be chosen this will be the second revocable Sunnah divorce.


c. The Triple Irrevocable Sunnah Divorce

Here again, after the second revocable divorce, the same three alternatives with the same implications obtain. If the third alternative be chosen once more, it will be the triple irrevocable divorce.


At this point, it becomes clear that reconciliation is extremely remote, if not impossible. The thrice-divorced woman, whose final waiting period has expired, is free to marry whomever she wishes.


But she is absolutely forbidden to her first husband unless she has remarried in a normally consummated union and, for some valid reasons, become divorced or widowed. Only then may she be lawful again to her first husband through a new full-fledged marriage contract. This is the form of tahlil or “remarriage legalization.” 1


The tahlil form has provoked much condemnation, criticism, and ridicule. Muslim scholars, however, maintain that it gives a warning signal to the parties concerned. The same view is incorporated into Levy’s remark that, “The law was probably enacted in the first place as a check upon easy divorce, but (in actual conduct) it runs counter to the general ideas of sexual purity held in Islam.” If properly heeded, tahlil alerts the parties to the fact that, after a third pronouncement of divorce, revocation is impossible, and even a new marriage contract is also forbidden without tahlil.


When a thrice-divorced woman is free to remarry and is seeking peace in earnest, she may find a suitable second mate and settle down for good. There is no ground for holding her responsible for something of which she may be innocent.


Nor is there any particular reason to assume that she will remain unmarried. If, however, after its consummation the second marriage stumbles at any time and is broken beyond hope of reconciliation, or if she is widowed, the woman may wish to return to her first spouse.


This is permissible provided (a) that the second marriage was not intended only
for the purpose of tahlll, (b) that the second marriage has been dissolved by way of a valid divorce/or widowhood, (c) that the probationary waiting period has expired, and the woman is completely free from hinderances, (d) that the first spouse is still eligible, and (e) that both parties believe that they will observe more closely the bounds of God after their reunion. Whether any person, man or woman, would find these conditions acceptable is, of course, another question.


These procedures are clear limitations on the use of divorce and may stand as repulsive prospects. This seems the case even with the generous assumptions, (a) that a thrice-divorced woman will easily find a suitable second mate, who intends to maintain her permanently, but whose marriage somehow stumbles, and (b) that she thereafter will freely want a reunion with her first spouse, who in turn is willing to try once more and expects to be successful. It presents a very rare combination of some very unusual circumstances.


The situation appears even more restrictive if the thrice-divorced woman has no great prospects of remarriage and the man knows that any reunion between the two of them is forbidden without such a remarriage. This is the idea of tahlil as conceived by Islam and as interpreted by Muslim scholars. Admittedly some parties have abused this form extensively.


What was meant to be a disciplinary check against the thoughtless rash and a release for the helpless innocent has become the subject of condemnation, abuse, and disgust. Sometimes thrice-divorced women are humiliatingly married off casuistically to invalid or minor persons, who are forced or bribed to divorce them immediately so that they will become, by the end of the waiting periods, lawful once again to their first mates.


This is absolutely contrary to the teachings of Islam and is unanimously condemned. A marriage which is contracted with the explicit or implicit stipulation of tahlil is both religiously forbidden and legally void, according to the majority of jurists.


Other jurists consider the stipulation of tahlil forbidden and void, but the marriage itself is valid, and no party may be forced to dissolve it against his or her wish. In other words, it is a perfectly valid and viable marriage, with the normal probability of continuity like any other marriage contract. Moreover, the Prophet is reported to have said, “marry and do not divorce, because divorce shakes God’s throne, as it were, . . . and because God does not like men and women who relish variety in sexual experience.”


Again, he declared that, “condemned by God are the second as well as the first husband.” This condemnation is inflicted both upon the man who marries a thrice-divorced woman intending only to divorce her in order to legalize her reunion with her first husband, and upon the man for whom the legalization is intended.2


A husband is allowed two revocable divorce pronouncements. The third, if used, will be absolutely irrevocable, unless there has been an unintended tahlil.


However, if the man revokes the first divorce during the waiting period or thereafter through a new contract, the revocation or the new contract makes the parties lawful for each other; but it does not discount the revoked pronouncements.


This means that, once made, a pronouncement counts, whether or not it is directly revoked within the waiting period, or followed by a new contracted reunion thereafter. Also, the range of revocability covers only two pronouncements, whether they are made in closely consecutive terms, within the span of the waiting period, or after long marital intervals.


The Sunnah divorce, with its regulations, variants, and maximum limit of three pronouncements, was clearly introduced to eliminate pre-Islamic abuses of marital relations.


Previously, the wife’s physical or emotional condition was immaterial to the man who wanted to. divorce her. Moreover, divorced women were often hindered from reunion with their desirous former mates by some interested third party.


Another practice, which seems to have continued into the early years of Islam, was that men used to keep their spouses in a vicious circle of indefinite suspense; they were neither fully married nor free to remarry.


The circle runs thus: divorce pronouncement, an almost completed waiting period, then another divorce pronouncement, followed by another almost completed waiting period, followed by another pronouncement, etc. Such practices were forbidden by Islam.


Some relevant statements may be rendered as follows: And their husbands have the better right to take them back in that period (of probationary waiting), if they wish for peace and reconciliation.


Divorce is only permissible twice: after that, the parties should either hold together in fairness and on equitable terms or separate with kindness.


If he divorces her finally, she shall not be lawful to him after that, until she marries another husband. If he divorces her, then it is no fault in them to return to each other, if they suppose that they will maintain God’s bounds.


Those are God’s bounds; He makes them clear to a people that have knowledge.
When you divorce women, and they have reached their term, then retain them honorably or set them free honorably; do not retain them by force, to transgress; whoever does that has wronged himself.


Take not God’s signs in mockery, and remember God’s blessings upon you, and the Book and the Wisdom He has sent down on you, to admonish you.


When you divorce women, and they have reached their term, do not debar them from marrying their husbands, when they have agreed together honorably. That is an admonition for whose of you believes in God and the Last Day; that is cleaner and purer for you; God knows and you know not. (Qur’an 2:228).3


REFERENCES

1. Cf. ibid. 2:130; Abu Zahrah (3), pp. 70-2.

2. Cf. al T a j, vol. 2. 299-300, 327; Ibn Qudamah, vol. 7, pp. 109 ff; Jeffery, p. 60; Maghniyyah (2), pp. 47 ff, 176; Farrukh, p. 149 ff; R. Levy, p. 123; Stem, p. 150.

3. Cf. al Q u r a n , 2:228-32, 237; 65:1-4; al T a j, vol. 2, pp. 237-8;
Haykal, p. 490.

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