WHAT IS MEANT BY EFFECTIVE DIVORCE BY HADIA AWAN?

Divorce is said to be effective when it is irrevocably complete between the spouses. By `irrevocably complete' means that now man cannot reconcile with his wife within that wedlock which, he broke himself. There is no relationship of man and wife between them.

After an effective divorce there are two courses open for the divorced couple; first, they are free to contract marriage with anybody else of their choice; secondly, they may opt for remarriage if effective divorce between them is not for the third time. If this divorce is for the third time then spouses are prohibited for each other.

In Shariah there are various modes of divorce and the legal consequences vary accordingly. The four modes of divorce in Islamic law are:

*          Dissolution by husband (talaq)

*          Dissolution by mutual consent of the parties (mubara'at)

*          Dissolution at demand of wife (khula)

*          Dissolution on some valid ground by authority/court (judicial divorce)

The effectiveness of divorce is determined in all these kinds as follows:

In case where divorce is through husband i.e. talaq, there are three modes of pronouncing it and effectiveness is evaluated according to the mode used by him. The modes are,

Talaq-e ahsan⁷

Talaq-e-hasan

Talaq-e-bidda/slasa

Scholars agree and trace authority from the Holy Prophet (p.b.u.h.) that approved way of talaq is through Ahsan mode⁸.

7. Talaq-e-ahsan: this is a mode divorce in which the husband pronounces divorce once and abstains from the wife during the period of idda without any express or implied reconciliation with her. The divorce is effective at the lapse of idda. Talaq-e-hasan: the mode of divorcing in which husband pronounces divorce once each in the three consecutive tohurs (the period of purity) and refrains from reconciliation either expressly or impliedly. After the lapse of idda the divorce is irrevocably final.

Talq-e-bidda or Mugalliza: this is a mode of talaq pronounced thrice at once and it becomes irrevocably effective at once without any waiting period.

8. Imam Muhammad quotes from Ibrahim Nakhee, "the companions of Prophet liked this that a man gave one divorce to his wife and stayed away until three cycles lapsed". Sahib Fateh-ul-Taqdeer Vol.2 P.246

Imam Muhammad's own words about the Holy prophet (s.a.w.) are "His approved way regarding talaq was that one should not exceed one until the time period lapses".

Imam Malik says, "Two divorces are Bidda talaq and is Mubah only if given once. Because firstly Talaq in itself in not a liked one action and is allowed only to meet a necessity; which is met with one pronouncement".

The principle of Islamic Jurisprudence is that the thing which is not forbidden (Mubah) is only permitted to that extent where necessity is met e.g. eating dead animal is permitted only to that extent where that is to save human life.

In talaq-e-hasan three pronouncements are repeated in three tohurs and no re-conciliation is effected during idda.

In talaq-e-bidda three pronouncements are made at a time and talaq becomes effective immediately.

There is difference of opinion amongst scholars; few say that upon third pronouncement three irrevocable talaqs are effective but others say that pronouncing three talaqs constitutes only one effective talaq. This mode of talaq is condemned and is called talaq-e-mughalliza also.

Shah Wali Ullah says, "To pronounce three divorces in single Tohur is highly unapproved".⁹

During period of Prophet of Allah (p.b.u.h.)

1st Caliph and even the initial two years of 2nd Caliph, three divorces (Talaq-e-Salasa) were considered one divorce. But when 2nd Caliph saw that people were not careful in pronouncing divorce through this mode, rather they acted in haste and impulsively, he directed to consider such single pronouncement as three.¹⁰

Allama Shibli Noumani states¹¹ that to consider Talaq-e-Salasa as three was enforced in the period of Umer-e-Farooq (R.A.). Among Hanafis some e.g. Qehstani & Tehtavi agree that initially three divorces were considered as one.^12-13.

9. Hujat-ul-Baliqha Vol.2 P.140

10. Muslim, Abu Dawood, Nasaee, Hakim, Behqui

11. Al Farpoq

12. Tahtari Dar Mukhtar Vol.2 P.105

13. Qehstani's Jamai-ul-Ramooz P.321

Allama Fakhr-ud-Din Razi says that many of the scholars agree that those who give two or three divorces in single spell, only one is effective and this is closer to analogy because prohibiting something reflects that this act may give rise to some bad and ugly thing. Happening of (three divorces) may give the ugly thing hence pronouncing three divorces in one spell should be ordered (as one). ¹⁴

Allama Ibn-e-Taimia gives reasons to prove that talaq-e-slasa is to be taken as one with the following examples.

a.         Shariat demands four vows on Lia'n but if one takes four vows in one word, this is considered insufficient by our scholars. They declare that all four vows should be taken separately. Hence it is compulsory that three pronouncements are declared severally.

b.         Exactly like `Rami Jamar', where seven stones are required to be thrown, if one throws seven stones (Pebbles) in one go it is considered only one.

c.         When someone takes oath that he would send Darood o Salaam upon the Holy Prophet (p.b.u.h.) one lac times. If he sends darood once and says that this is one lac times his saying of darood o salaam with prefix one lac is not enough; he has to say it one lac times severally. Only then he would be considered as the keeper of his oath.

Moulana Sheikh Muhammad Thanvi who is teacher of Maulana Ashraf Ali Thanvi writes, "The meaning of Ayat¹⁵ is that Divorces should be pronounced one after the other. Hence talaq which is given in several courses (Tohur) is valid, not the one pronounced thrice in one sitting ".¹⁶

14. Tafseer Kabir Vol.2 P.248

15. Al-Quran 2:229

16. Hashiya Nasayee Vol.2 P.29

Allama Ainee writes in Umdat-ul-Qari, "Taoos Ibn-Ishaq, Hijaj Bin Artat Nakhee, Ibn-e-Muqatil and Zahria agree that if husband pronounces three divorces in a spell to his wife, one would happen. These people have deducted from the tradition narrated by Abu-Sehba in Muslim".

Brailve and Deoband agree that divorce (thrice) in one sitting amounts to one divorce.

Summary of this discussion regarding effectiveness of divorce is that:

In ahsan mode talaq is pronounced once and then man waits for three tuhrs of wife; if they do not reconcile and time of idda lapses, talaq becomes effective.

In hasan mode of talaq divorce is pronounced once, in each tohur of wife. Upon third pronouncement, followed by no reconciliation, talaq is effective.

In talaq-e-bidda all three pronouncements are given in a single spell and after third calling, talaq is effective. There is a divergence of opinion among scholars whether three pronouncements constitute one irrevocable divorce or three independent irrevocable divorces.