WHEN AND HOW CAN A COUPLE REMARRY BY HADIA AWAN?

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 Remarriage is a condition where previous marriage has been rescinded by divorce and new marriage has commenced between same spouses for the same object.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

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.

SCHOLAR AND THE ALCOHOLIC

Alcoholic: Do you think I am doing wrong by eating a grape?
Scholar: No.
Alcoholic: And if I ate with it some grass?
Scholar: There is nothing wrong with that.
Alcoholic: And if I were to wash them down with water?
Scholar: Drink and enjoy.
Alcoholic: Since all of that is permissible, then why do you forbid us from alcohol, which consists of the above – mentioned ingredients?
Scholar: If I poured water on top of you, would that hurt you?
Alcoholic: No it would not.
Scholar: And if I were to sprinkle some dirt in that, would you be hurt?
Alcoholic: That would not harm me.
Scholar: But if I were to mix water and dirt together and through a process make a large brick from those two elements, and then were I to throw that large brick at you, would you be hurt?
Alcoholic: That would kill me!
Scholar: The same goes for alcohol.

Best Islamic Stories Website

What is Dower in Islam?

Define Dower?

• Introduction

                             Dower is one of the conditions of validity of marriage and an agreement to forgo it is not permitted because of the words of the Exalted. In Islamic law, Maher belongs absolutely to the wife.
"There is no blame on you if ye divorce women before consummation or the fixation of their dower; but bestow on them (A suitable gift), the wealthy according to his means, and the poor according to his means;- a gift of a reasonable amount is due from those who wish to do the right thing."(Sura البقرة - Al-Baqara )(Verse 2:236)
"And give the women (on marriage) their dower as a free gift; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer."(Sura Al Nisa Verse 4)  

• Definition

                             1) Mahr or Dower is a sum of money or other property which the wife is entitled to receive from husband in consideration of the marriage.(see Baillie, p, 91,)
                              2)“Dower, under the Muhammadan law, is a sum of money or other property promised by the husband, to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife.” Mr. Justice Mahmood (in Abdul Kadirv. Salima, (1866) 8. All. 149)

• Effect / Purpose

                           It is not consideration in the modern sense of term but an obligation imposed by law upon husband as a mark of respect to wife. Dower is proud protection to wife against divorce because a Husband thinks twice before divorcing a wife when he knows that upn dicorce whole of the dower would be payable immediately.

• Hadees About Dower

                            Ibn Abbas: regarding the Divine Verse: "O you who believe! You are forbidden to inherit women against their will, and you should not treat them with harshness that you may take back part of the (Mahr) dower you have given them. " (4.19) (Before this revelation) if a man died, his relatives used to have the right to inherit his wife, and one of them could marry her if he would, or they would give her in marriage if they wished, or, if they wished, they would not give her in marriage at all, and they would be more entitled to dispose her, than her own relatives. So the above Verse was revealed in this connection.
(Sahi Bukhari - Volume 6 - Number 103)

Guidelines for students of LLB part 2