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.
