Before going into the details of
legitimacy of re marriage let us differentiate it from `reconciliation' or
`rijaat'.
In rejaat, husband and wife can
reconcile before talaq gets effective; whereas re marriage is performed after
divorce becomes effective.61
The Quranic concept of rija'at is:
"A divorce may be revoked
twice; whereupon the marriage must either be resumed in fairness or dissolved
in a goodly manner".62
According to the dictionary of Islam63 Rija'at means,
53. Albanaya Shara ul Hadiya
54. Murqat shara
MushkawatVol.7 P.443
55 Exegesis of al-Quran
56. Tafseer-e-haqqani
57. Bahishti zewer
58. Muariful Quran vol:1, p.558-559
59. Tafseer Haqaani
60. Mr. Shahid Naqvi,
al-aarif, monthly, February 1996
61. Rejaat: the
reconciliation by husband during the persistence of idda.
Re marriage: re
solemnization of marriage inter se the same couple after divorce.
62. Al Quran, 2:229, Dr
Asad elaborates in the explanation ...."In other words, a third
pronouncement of divorce makes it final and irrevocable"
63. Hughes Patrick Thomas,
A Dictionary of Islam, 1885,
pg533(Hidaya,vol:1 pg.289)
"Restitution...[r]eceiving
back a wife who has been divorced, before the time has fully elapsed when the divorce
must of necessity take place. In other words continuance of the Marriage
bond"
With prefix of "re" before
"marriage" means the re-doing of contract of marriage. According to
Muslim scholars the purpose of marriage is the procreation and legalization of
children. Remarriage is a condition where previous marriage has been rescinded
by divorce and new marriage has commenced between same spouses for the same
object. A necessary condition for this marriage is that divorce must be
effective between the parties. As there are more than one mode and kind of
divorcing so the effectiveness of divorce varies not only with the kind but
with the mode of divorcing. Before going ahead let's review these modes and
kinds vis-a-vis their effectiveness.
It means that remarriage is the re
arrangement of marriage whereas Rijaat is the reconciliation between spouses
during idda. There is no requirement of any formal or express action for
reconciliation. Upon Rijaat marriage is refreshed from the point where it was
dissolved. On the other hand re marriage is actually the re arrangement of the
contract of marriage. It carries all liabilities and rights of fresh marriage.
It could be said that this is a pact de novo64.
It should be clear that when it is
said that a man divorces his wife irrevocably, that means the marriage is
dissolved for all purposes. He is allowed to re marry the same woman and if he
divorces her for the second time; again he is allowed to remarry her.
Thereafter if he divorces her for the third time, this woman becomes (haram)
for him. He cannot contract marriage with her in natural probability of
circumstances.
The same is not the case with
reconciliation; the spouses carry on with the previous contract of marriage and
there is no need of any fresh contract.
Holy
Qur'an ordains in Al-Baqra,
"And
if the husband divorces his wife (for the third time) she shall not remain his
lawful wife after this absolute divorce ... 65
64. Fresh agreement between the
parties
65. 2.230
A plain meaning of the holy verse is
that a man can remarry his wife short of three validly effective divorces.
However the marriage is not permissible if he divorces her for the third time;
the woman is forbidden for him after divorce for the third time.
It's narrated by Sayed Hasan Basri
that Maaqal Bin Bisyar got his sister married with a man who divorced her.
Afterwards that man realized that he had committed a wrong. The idda had
elapsed. He requested Maaqal to permit him to remarry his sister but he refused
by saying that he divorced his chaste sister now he would not give her again
into his nikah. Then the following ayat mubarikah of Surah Al Baqrah were
revealed.
`And
when you divorce woman, and they have come to the end of their waiting term., hinder
them not from marrying other men if they have agreed with each other in fair
manner'.66
Upon this revelation Maaqal agreed
to give his sister in remarriage to the same man67.
According to Abdullah Bin Abbas;
Rukana (p.b.u.h.) divorced his wife thrice in one sitting and repented
afterwards and went to the Prophet (p.b.u.h.) for a resolve. The Prophet
(p.b.u.h.) asked him about the mode of divorce. He replied that he had
pronounced divorce thrice in one sitting. Upon that the Prophet of God (p.b.u.h.)
said that the divorce would be considered as one and he could reconcile with
his wife after idda. The holy companion reconciled with his wife accordingly.68
According to Hidaya if a Muslim
divorces his wife irrevocably, short of three divorces (in case she is a free
woman and in case of the slave, twice), he can re marry her but not afterwards.69
66. 2:232
67. Ibn e Lal Din; halala
ki chhuri, 50, 51 also available at :http://www.esnips.com/user/islam/urdu.
68. Masnad e Ahmad 265/1, behequi 339/7, fatahul bari
363/9, masnad abi yaala musti (2495)65/3
69. Hamilton Charles, Hidaya 186, by Sheikh
Burhanuddin Abi Al Hasan Ali Marghinani, Reprinted (2005)
In light of the mode and kind of
divorce the possibility of remarriage varies as follows:
In cases where talaq is given
through ahsan mode this is one effective divorce and man can remarry the same
spouse but not if this divorce is given for the third time.
In cases of talaq by hasan mode
according to Quranic principle man can marry the same woman after two such
talaqs but not after the third time.
In cases where talaq is given by
mughlliza mode, there is divergence of view of the scholars; some consider
three pronouncements as one effective talaq but others take three
pronouncements as three talaqs at a time.
If first view is followed that
means, till third such divorce, the course of remarriage is open. But if second
view is taken, the woman is now prohibited for man.
In all other three types of divorces
i.e. khula, mubara'at and judicial divorce; divorce is effective according to
the law of the land and possibility of remarriage is there. The limitation of
two talaqs is applicable only in case of divorce through "talaq". In
all other dissolutions this limitation is not applicable70
70. PLD 2003 Pesh. 169
Before going into the details of
legitimacy of re marriage let us differentiate it from `reconciliation' or
`rijaat'.
In rejaat, husband and wife can
reconcile before talaq gets effective; whereas re marriage is performed after
divorce becomes effective.61
The Quranic concept of rija'at is:
"A divorce may be revoked
twice; whereupon the marriage must either be resumed in fairness or dissolved
in a goodly manner".62
According to the dictionary of Islam63 Rija'at means,
53. Albanaya Shara ul Hadiya
54. Murqat shara
MushkawatVol.7 P.443
55 Exegesis of al-Quran
56. Tafseer-e-haqqani
57. Bahishti zewer
58. Muariful Quran vol:1, p.558-559
59. Tafseer Haqaani
60. Mr. Shahid Naqvi,
al-aarif, monthly, February 1996
61. Rejaat: the
reconciliation by husband during the persistence of idda.
Re marriage: re
solemnization of marriage inter se the same couple after divorce.
62. Al Quran, 2:229, Dr
Asad elaborates in the explanation ...."In other words, a third
pronouncement of divorce makes it final and irrevocable"
63. Hughes Patrick Thomas,
A Dictionary of Islam, 1885,
pg533(Hidaya,vol:1 pg.289)
"Restitution...[r]eceiving
back a wife who has been divorced, before the time has fully elapsed when the divorce
must of necessity take place. In other words continuance of the Marriage
bond"
With prefix of "re" before
"marriage" means the re-doing of contract of marriage. According to
Muslim scholars the purpose of marriage is the procreation and legalization of
children. Remarriage is a condition where previous marriage has been rescinded
by divorce and new marriage has commenced between same spouses for the same
object. A necessary condition for this marriage is that divorce must be
effective between the parties. As there are more than one mode and kind of
divorcing so the effectiveness of divorce varies not only with the kind but
with the mode of divorcing. Before going ahead let's review these modes and
kinds vis-a-vis their effectiveness.
It means that remarriage is the re
arrangement of marriage whereas Rijaat is the reconciliation between spouses
during idda. There is no requirement of any formal or express action for
reconciliation. Upon Rijaat marriage is refreshed from the point where it was
dissolved. On the other hand re marriage is actually the re arrangement of the
contract of marriage. It carries all liabilities and rights of fresh marriage.
It could be said that this is a pact de novo64.
It should be clear that when it is
said that a man divorces his wife irrevocably, that means the marriage is
dissolved for all purposes. He is allowed to re marry the same woman and if he
divorces her for the second time; again he is allowed to remarry her.
Thereafter if he divorces her for the third time, this woman becomes (haram)
for him. He cannot contract marriage with her in natural probability of
circumstances.
The same is not the case with
reconciliation; the spouses carry on with the previous contract of marriage and
there is no need of any fresh contract.
Holy
Qur'an ordains in Al-Baqra,
"And
if the husband divorces his wife (for the third time) she shall not remain his
lawful wife after this absolute divorce ... 65
64. Fresh agreement between the
parties
65. 2.230
A plain meaning of the holy verse is
that a man can remarry his wife short of three validly effective divorces.
However the marriage is not permissible if he divorces her for the third time;
the woman is forbidden for him after divorce for the third time.
It's narrated by Sayed Hasan Basri
that Maaqal Bin Bisyar got his sister married with a man who divorced her.
Afterwards that man realized that he had committed a wrong. The idda had
elapsed. He requested Maaqal to permit him to remarry his sister but he refused
by saying that he divorced his chaste sister now he would not give her again
into his nikah. Then the following ayat mubarikah of Surah Al Baqrah were
revealed.
`And
when you divorce woman, and they have come to the end of their waiting term., hinder
them not from marrying other men if they have agreed with each other in fair
manner'.66
Upon this revelation Maaqal agreed
to give his sister in remarriage to the same man67.
According to Abdullah Bin Abbas;
Rukana (p.b.u.h.) divorced his wife thrice in one sitting and repented
afterwards and went to the Prophet (p.b.u.h.) for a resolve. The Prophet
(p.b.u.h.) asked him about the mode of divorce. He replied that he had
pronounced divorce thrice in one sitting. Upon that the Prophet of God (p.b.u.h.)
said that the divorce would be considered as one and he could reconcile with
his wife after idda. The holy companion reconciled with his wife accordingly.68
According to Hidaya if a Muslim
divorces his wife irrevocably, short of three divorces (in case she is a free
woman and in case of the slave, twice), he can re marry her but not afterwards.69
66. 2:232
67. Ibn e Lal Din; halala
ki chhuri, 50, 51 also available at :http://www.esnips.com/user/islam/urdu.
68. Masnad e Ahmad 265/1, behequi 339/7, fatahul bari
363/9, masnad abi yaala musti (2495)65/3
69. Hamilton Charles, Hidaya 186, by Sheikh
Burhanuddin Abi Al Hasan Ali Marghinani, Reprinted (2005)
In light of the mode and kind of
divorce the possibility of remarriage varies as follows:
In cases where talaq is given
through ahsan mode this is one effective divorce and man can remarry the same
spouse but not if this divorce is given for the third time.
In cases of talaq by hasan mode
according to Quranic principle man can marry the same woman after two such
talaqs but not after the third time.
In cases where talaq is given by
mughlliza mode, there is divergence of view of the scholars; some consider
three pronouncements as one effective talaq but others take three
pronouncements as three talaqs at a time.
If first view is followed that
means, till third such divorce, the course of remarriage is open. But if second
view is taken, the woman is now prohibited for man.
In all other three types of divorces
i.e. khula, mubara'at and judicial divorce; divorce is effective according to
the law of the land and possibility of remarriage is there. The limitation of
two talaqs is applicable only in case of divorce through "talaq". In
all other dissolutions this limitation is not applicable70
70. PLD 2003 Pesh. 169
