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Law - Family




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Lesson 70


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 Main Points


· Divorce is effective either with a clear utterance or metonymical statement, whether done in passing or intentionally.[9]

·   It is from the Sunnah that the divorce takes place when the wife has not been touched in her period of time after she was cleansed from her last menstruation, and divorce is uttered once. Otherwise, it is a Bid`i divorce (unlawful innovation). Both are executable, revocable divorces for the first and second time.

·   The husband has the right to take his wife back on the revocable divorce during the three months after the divorce was pronounced (post-marital waiting period). Otherwise, divorce becomes irrevocable and final. If the spouses wish to return, this should be through a new contract and dowry.

·   The husband has no right to return to his wife if they divorced three times, unless she marries another man (Muhallal) after the post-marital waiting period. The latter should be a normal marriage, with the real intention of marriage, that is, not just to enable her to return to her first husband. If the second marriage was terminated by divorce or death, then she has the right to return to her first husband.

·   It is possible that divorce be suspended on certain conditions.

·   The husband has the right to make his wife choose between divorce and continuing the marriage. Divorce is permissible by power of attorney.[10]

·   The husband should give his rebellious wife good advice. If she persists in wrong doing, he should not talk to her for three days, and forsake her in their bed until she responds, otherwise he is allowed to beat her lightly on any part of her body other than her face, hoping that she will comply. If all his attempts fail, they seek an arbitrator from her family and another from his; if they fail to reconcile, then they resort to divorce.[11]

·   If the wife intensely dislikes to continue the marriage, even if her husband does not hurt her, she has the right to ask for divorce in return for a sum of money that she must pay.[12]

·   If the husband swears that he will not sleep with his wife, so as to rectify her, for more than four months (this is called Ila’), then she has the right to ask for divorce or he should return to her. If he refuses, the judge will grant her the divorce. If he returned before or after the stated period, he has to expiate for his oath.[13]

·   It is prohibited for the husband to swear that his wife will be for him as his mother's back (Azh-Zhihar). Its expiation is releasing a slave, if not fasting two successive months, and if not feeding sixty indigent persons.[14]

·   If the husband accuses his wife of adultery without having witnesses, he has to testify four testimonies to execute the punishment, unless she testifies four testimonies that he is a liar. After that, they must separate permanently. This is called public imprecation (Al-Mula`anah), that is, sworn allegation of adultery committed by either husband or wife.[1



The legality of divorce:

Allah says:

]الطَّلاَقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ[
(البقرة: 229)

This means: “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness.” (2, Al-Baqarah: 229)

Allah says:

]يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاء فَطَلِّقُوهُنَّ لِعِدَّتِهِنّ[
(الطلاق: 1)

This means: “O Prophet (SAW)! When you divorce women, divorce them at their 'Iddah (prescribed periods).” (65, At-Talaq: 1)

The Prophet (peace be upon him) said:

“If any woman asks her husband for divorce without some strong reason, the odor of Paradise will be forbidden for her.”
(Reported by At-Tirmidhi)

Those who have the right to divorce women:

The Prophet (peace be upon him) said:

“There is no divorce except in what you possess; there is no emancipation except in what you possess, and there is no sale transaction till you possess. The narrator Ibn Sabbah added: There is no fulfilling a vow till you possess.” (Reported by Abu Dawud)

An express utterance of divorce:

He (peace be upon him) also said:

“Verily, Allah forgave my people the evil promptings which arise within their hearts as long as they did not speak about them or did not act upon them.” (Reported by Al-Bukhari and Muslim)

  Nullifiers of divorce:

The Prophet (SAWS) said, "My Ummah was forgiven unintentional errors, forgetfulness and what they are coerced to do."  [Ibn-Majah]

The Messenger of Allah (peace be upon him) said:

“There are three (persons) whose actions are not recorded: a sleeper till he awakes a boy till he reaches puberty, and an idiot till he is restored to reason.” (Reported by Abu Dawud)

Innovative (Bid`I) divorce:

Allah says:

]الطَّلاَقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَان[
(البقرة: 229)

This means: “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness.” (2, Al-Baqarah: 229)

Mahmud Ibn Labid (may Allah be pleased with him) narrated:

“The Messenger of Allah (peace be upon him) was told that a man had divorced his wife three times simultaneously. Upon this, the Prophet (peace be upon him) became angry and said: Is the Book of Allah mocked at while I am among you?” (Reported by An-Nasa’i)

Revocable divorce:

Allah says:

]وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَلِكَ إِنْ أَرَادُواْ إِصْلاَحًا[
(البقرة: 228)

This means: “And their husbands have the better right to take them back in that period, if they wish for reconciliation.” (2, Al-Baqarah: 228)

`Umar Ibn Al-Khattab (may Allah be pleased with him) narrated:

“The Prophet (peace be upon him) divorced Hafsah, but he took her back in marriage.” (Reported by Abu Dawud and Ibn Majah)

The divorce of choice:

Allah says:

]يَا أَيُّهَا النَّبِيُّ قُل لأَزْوَاجِكَ إِن كُنتُنَّ تُرِدْنَ الْحَيَاةَ الدُّنْيَا وَزِينَتَهَا فَتَعَالَيْنَ أُمَتِّعْكُنَّ وَأُسَرِّحْكُنَّ سَرَاحًا جَمِيلا. وَإِن كُنتُنَّ تُرِدْنَ اللَّهَ وَرَسُولَهُ وَالدَّارَ الآخِرَةَ فَإِنَّ اللَّهَ أَعَدَّ لِلْمُحْسِنَاتِ مِنكُنَّ أَجْرًا عَظِيمًا[
(الأحزاب: 28 - 29)

This means: “O Prophet (Muhammad SAW)! Say to your wives: If you desire the life of this world, and its glitter, Then come! I will make a provision for you and set you free in a handsome manner (divorce). But if you desire Allah and His Messenger, and the home of the Hereafter, then verily, Allah has prepared for Al­Muhsinat (good­doers) amongst you an enormous reward.” (33, Al-Ahzab: 28 - 29)

 Rebellious wives:

Allah says:

]وَاللاَّتِي تَخَافُونَ نُشُوزَهُنَّ فَعِظُوهُنَّ وَاهْجُرُوهُنَّ فِي الْمَضَاجِعِ وَاضْرِبُوهُنَّ فَإِنْ أَطَعْنَكُمْ فَلاَ تَبْغُواْ عَلَيْهِنَّ سَبِيلا إِنَّ اللّهَ كَانَ عَلِيًّا كَبِيرًا. وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُواْ حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا إِن يُرِيدَا إِصْلاَحًا يُوَفِّقِ اللّهُ بَيْنَهُمَا إِنَّ اللّهَ كَانَ عَلِيمًا خَبِيرًا[
(النساء: 34 - 35)

This means: “As to those women on whose part you see ill­conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly, if it is useful), but if they return to obedience, seek not against them means (of annoyance). Surely, Allah is Ever Most High, Most Great. If you fear a breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other from her's; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All­Knower, Well­Acquainted with all things.” (4, An-Nisa’: 34 - 35)

(Divorce in return of a sum of money the wife pays):

Ibn `Abbas (may Allah be pleased with him) narrated:

“The wife of Thabit Ibn Qays came to the Prophet and said: O Allah's Messenger! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him). On that, Allah's Messenger said (to her): Will you give back the garden which your husband has given you (as Mahr, dowry)? She said: Yes. Then the Prophet (peace be upon him) said to Thabit: O Thabit! Accept your garden, and divorce her once. (Reported by Al-Bukhari)

(the husband swears to forswear his wife, as to rectify her, for more than four months)

Allah says:

]لِّلَّذِينَ يُؤْلُونَ مِن نِّسَآئِهِمْ تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ فَإِنْ فَآؤُوا فَإِنَّ اللّهَ غَفُورٌ رَّحِيمٌ. وَإِنْ عَزَمُوا الطَّلاَقَ فَإِنَّ اللّهَ سَمِيعٌ عَلِيمٌ[
(البقرة: 226 - 227)

This means: “Those who take an oath not to have sexual relation with their wives must wait four months, then if they return (change their idea in this period), verily, Allah is Oft-Forgiving, Most Merciful. And if they decide upon divorce, then Allah is All-Hearer, All-Knower.”
(2, Al-Baqarah: 226 - 227)

The Prophet (peace be upon him) said:

“If you take an oath to do a thing and then find a better alternative, you should adopt the latter and expiate your oath.”
(Reported by Al-Bukhari and Muslim)

He (peace be upon him) also said:

“No harm (should be done to others) nor wrong (in retaliation).”
(Reported by Ahmad)

(husband swears that his wife will be  as his mother’s back)

Allah says:

]الَّذِينَ يُظَاهِرُونَ مِنكُم مِّن نِّسَائِهِم مَّا هُنَّ أُمَّهَاتِهِمْ إِنْ أُمَّهَاتُهُمْ إِلا اللائِي وَلَدْنَهُمْ وَإِنَّهُمْ لَيَقُولُونَ مُنكَرًا مِّنَ الْقَوْلِ وَزُورًا وَإِنَّ اللَّهَ لَعَفُوٌّ غَفُورٌ. وَالَّذِينَ يُظَاهِرُونَ مِن نِّسَائِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِّن قَبْلِ أَن يَتَمَاسَّا ذَلِكُمْ تُوعَظُونَ بِهِ وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ. فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ مِن قَبْلِ أَن يَتَمَاسَّا فَمَن لَّمْ يَسْتَطِعْ فَإِطْعَامُ سِتِّينَ مِسْكِينًا[
(المجادلة: 2 - 4)

This means: “Those among you who make their wives unlawful (Azh-Zhihar ) to them by saying to them "You are like my mother's back." They cannot be their mothers. None can be their mothers except those who gave them birth. And verily, they utter an ill word and a lie. And verily, Allah is Oft-Pardoning, Oft-Forgiving. And those who make unlawful to them (their wives) (by Azh-Zhihar ) and wish to free themselves from what they uttered, (the penalty) in that case (is) the freeing of a slave before they touch each other. That is an admonition to you (so that you may not return to such an ill thing). And Allah is All-Aware of what you do. And he who finds not (the money for freeing a slave) must fast two successive months before they both touch each other. And for him who is unable to do so, he should feed sixty of Miskin (poor).” (58, Al-Mujadalah: 2 - 4)

Salamah Ibn Sakhr Al-Bayadi (may Allah be pleased with him) narrated:

“I was a man who was more given than others to sexual intercourse with women. When the month of Ramadan came, I feared lest I should have intercourse with my wife, and this evil should remain with me till the morning. So I made my wife like my mother’s back to me till the end of Ramadan. But one night when she was waiting upon me, something of her was revealed. Suddenly I jumped upon her (i.e. had sexual intercourse with her). When the morning came, I went to my people and informed them about this matter. I said: Go along with me to the Messenger of Allah (peace be upon him). They said: No, by Allah. So I went to the Prophet (peace be upon him) and informed him of the matter. He said: Have you really committed it, Salamah? I said: I committed it twice, Messenger of Allah. I am content with the Commandment of Allah, the Exalted; so take a decision about me according to what Allah has shown you. He said: Free a slave. I said: By Him Who sent you with truth, I do not possess a neck other than this: and I struck the surface of my neck. He said: Then fast two consecutive months. I said: Whatever I suffered is due to fasting. He said: Feed sixty poor people with a Wasq of dates. I said: By Him Who sent you with truth, we passed the night hungry; there was no food in our house. He said: Then go to the collector of Sadaqah of Banu Zurayq; he must give it to you. Then feed sixty poor people with a Wasq of dates; and you and your family eat the remaining dates.”
(Reported by Abu Dawud)

 Public imprecation (Al-Mula`anah):

Allah says:

]وَالَّذِينَ يَرْمُونَ أَزْوَاجَهُمْ وَلَمْ يَكُن لَّهُمْ شُهَدَاء إِلا أَنفُسُهُمْ فَشَهَادَةُ أَحَدِهِمْ أَرْبَعُ شَهَادَاتٍ بِاللَّهِ إِنَّهُ لَمِنَ الصَّادِقِينَ. وَالْخَامِسَةُ أَنَّ لَعْنَتَ اللَّهِ عَلَيْهِ إِن كَانَ مِنَ الْكَاذِبِينَ. وَيَدْرَأُ عَنْهَا الْعَذَابَ أَنْ تَشْهَدَ أَرْبَعَ شَهَادَاتٍ بِاللَّهِ إِنَّهُ لَمِنَ الْكَاذِبِين. وَالْخَامِسَةَ أَنَّ غَضَبَ اللَّهِ عَلَيْهَا إِن كَانَ مِنَ الصَّادِقِينَ[
(النور: 6 - 9)

This means: “And for those who accuse their wives, but have no witnesses except themselves, let the testimony of one of them be four testimonies (i.e. testifies four times) by Allah that he is one of those who speak the truth. And the fifth (testimony) (should be) the invoking of the Curse of Allah on him if he be of those who tell a lie (against her). But it shall avert the punishment (of stoning to death) from her, if she bears witness four times by Allah, that he (her husband) is telling a lie. And the fifth (testimony) should be that the Wrath of Allah be upon her if he (her husband) speaks the truth.” (24, An-Nur: 6 - 9)

The Messenger of Allah (peace be upon him) said when the verse about invoking curses came down:

“Any woman who brings to her family one who does not belong to it has nothing to do with Allah (i.e. expects no mercy from Allah), and Allah will not bring her into His Paradise. Allah, the Exalted, will veil Himself from any man who disowns his child when he looks at him, and disgrace him in the presence of all creatures, first and last.” (Reported by Abu Dawud)