TWO WAYS OF DIVORCING
While staying in the bond of marriage is preferable, it must be conceded that life does not always function like a machine. Despite all safeguards, it sometimes does happen that a couple reaches a stage of such desperation that they become intent on separation. Here, the Shariah gives them guidance in that it prescribes a specific method for separation. The Quran expresses it thus:
“Divorce may be pronounced twice, and then a woman must be retained honourably or released with kindness.” (2:229)
This verse has been interpreted to mean that a man who has twice given notice of divorce over a period of two months should remember God before giving notice a third time. Then, he should keep his spouse with him in a spirit of goodwill or release her without doing her any injustice.
This method of divorce prescribed by the Quran, i.e., taking three months to finalize it, makes it impossible for a man seeking divorce suddenly to cast his wife aside. Once he has said to his wife (who should not at this time be menstruating), “I divorce you,” both are expected to think the situation over for a whole month. If the man changes his opinion during this period, he can withdraw his words. If not, he will again say, “I divorce you” (again, his wife should be in a state of “purity”), and they must again review the situation for a further month. Even at this stage, the husband has the right to revoke the proceedings if he has had a change of heart. If, however, in the third month, he says, “I divorce you,” the divorce becomes final, and the man ceases to have any right to revoke it. Now, he is obliged to part with his wife in a spirit of goodwill and give her full rights.
This prescribed method of divorce has ensured that it is a well-considered, planned arrangement and not just a rash step taken in a fit of emotion. When we remember that, in most cases, divorce is the result of a fit of anger, we realize that the prescribed method places a tremendous curb on divorce. It considers that anger never lasts—tempers necessarily cool down after some time—and that those who feel like divorcing their wives in a fit of rage will indeed repent their emotional outburst and wish to withdraw from the position it has put them in. It also considers that divorce is not a simple matter: it amounts to breaking up the home and destroying the children’s future. It is only when tempers have cooled down that the dire consequences of divorce are realized, and the necessity to revoke the decision becomes clear.
When a man marries a woman, he has to say only once that he accepts her as his spouse. However, the Quran requires three months for divorce to be formalized. One utterance is enough for marriage, but three utterances are needed for a divorce to be finalized, between which the shariah has prescribed a long gap. The purpose of this gap is to give the husband sufficient time to revise his decision and to consult the well-wishers around him. It also allows time for relatives to intervene to persuade both husband and wife to avoid a divorce. Without this gap, none of these things could be achieved. That is why divorce proceedings must be spread out over a long period.
All these preventive measures allow frayed tempers to cool so that the divorce proceedings need not reach an irreversible stage. Divorce, after all, has no saving grace, particularly regarding its consequences. It simply amounts to ridding oneself of one set of problems only to become embroiled in another set of problems.
Despite all such preventive measures, it does sometimes happen that a man acts in ignorance or is rendered incapable of thinking coolly by a fit of anger. Then, on a single occasion, in a burst of temper, he utters the word “divorce” three times in a row, “talaq, talaq, talaq!” Such incidents, which occurred in the Prophet’s lifetime, still happen even today. Now, the question arises regarding how the would-be divorcer should be treated. Should his three utterances of talaq be treated as only one, and should he be asked to extend his decision over three months? Or should his three utterances of talaq on a single occasion be equated with the three utterances of talaq made separately over three months? A hadith was recorded by Imam Abu Dawud and several other traditionists who can guide us in this matter: “Abd Yazid Abu Rukana said “talaq” to his wife thrice in a row. Then, he was despondent at the step he had taken. The Prophet asked him exactly how he had divorced her. He replied that he had said “talaq” to her three times in a row. The Prophet then observed, “All three count as only one. If you want, you may revoke it.”(Sunan Abi Dawud, Hadith No. 2196)
A man may say “talaq” to his wife three times in a row, in contravention of the Shariah’s prescribed method, thereby sinning, but if he was known to be in an emotionally overwrought state at the time, his act may be considered a mere absurdity arising from human weakness. His three utterances of the word talaq may be taken as an expression of the intensity of his emotions and thus the equivalent of only one such utterance. He is likely to be told that, having transgressed a Shariah Law, he must seek God’s forgiveness, regard his three utterances as only one, and take three months to arrive at his final decision.
In the first phase of Islam, however, a different view of divorce was taken by the second Caliph, ‘Umar ibn al-Khattab. Imam Muslim thus described an incident that illustrates his viewpoint.
In the Prophet’s lifetime, then under the Caliphate of Abu Bakr and during the early period of the Caliphate of ‘Umar, three utterances of talaq on one occasion were taken together as only one utterance. Then it occurred to ‘Umar ibn al-Khattab that even though a system had been laid down which permitted the husband to withdraw his first or even second talaq, men still wanted to rush into divorce. He felt that if they were bent on being hasty, why should not a rule be imposed on them binding them to a final divorce on the utterance of talaq three times in a row? And he proceeded to impose such a rule.
This act on the part of the second Caliph, apparently against the principles of the Quran and sunnah, did not change the shariah's law. To think that this led to any revision of Islamic law would be to misunderstand the situation: the Caliph’s order merely constituted an exception to the rule and was of a temporary nature. This aptly demonstrates how the Islamic Shariah may make concessions by circumstances.
Each Shariah law may be eternal, but a Muslim ruler can make exceptions for specific individuals in exceptional circumstances. However, such a ruling will not take on eternal law. It will be purely temporary in nature and duration.
Various traditions in this connection show that the second Caliph’s treatment of certain persons did not align with the shariah. His rulings on these occasions were like executive orders consistent with his position as a ruler. If he acted in this manner, it was to punish those who were being hasty in finalizing the divorce procedure.
It is a matter of Islamic historical record that when any such person was brought before ‘Umar for having uttered the word talaq three times on one occasion, he held this to be rebellious conduct and would order him to be flogged on the back. (Sunan Sa‘id ibn Mansur, Hadith No. 1073)
Perhaps the most important aspect of this matter is that when ‘Umar gave his exceptional verdict on divorce being final after the third utterance on a single occasion of the word talaq, his position was not that of a powerless ‘alim (scholar) but of a ruler invested with the full power to punish—as a preventive measure—anyone who went against Quranic injunctions. This was to discourage haste in divorce. By accepting a man’s three talaqs on one occasion as final and irrevocable, he caused him to forfeit his right to revoke his initial decision, thus leaving him with no option but to proceed with the divorce.
On the other hand, the Caliph had the power to compensate any woman affected by this ruling fully. For instance, he was in a position to guarantee her an honourable life in society, and if, due to being divorced, she needed financial assistance, he could provide her with continuing maintenance from the government exchequer, Baitul Mal, etc.
Today, anyone who cites ‘Umar’s ruling as a precedent to justify the finality of a divorce based on three utterances of the word talaq on a single occasion should remember that his verdict will remain unenforceable for the simple reason that he does not have the powers that ‘Umar, as Caliph, possessed. ‘Umar’s verdict was that of a powerful ruler of the time and not just that of a commoner. It is necessary at this point to clear certain misunderstandings about the extent of agreement that existed on ‘Umar’s ruling. Of all the Prophet’s Companions at Madinah then, perhaps the only one to disagree was ‘Ali. As a result, certain ‘ulama have concluded that the Prophet’s followers (Sahabah) had reached a consensus (‘ijma) on this matter. (Rawai‘ al-Bayan, Vol. 1, p. 334)
However, the consensus reached was not on the general issue of divorce but on the right of Muslim rulers to make temporary and exceptional rulings, as had been done by ‘Umar. The Companions of the Prophet could never have agreed to annul a Quranic injunction or to modify for all time to come to a prescribed divorce system. All that was decided upon was that exceptional circumstances warranted exceptional rulings on the part of the Caliph. He was entitled to punish anyone who digressed from the shariah in any manner he thought fitting. This right possessed by the ruler of the time is established in the shariah. Many other instances, not necessarily relating to personal disputes, can be cited as his exercise of this right.
