Definitions: Marriage, Types of Divorce, and the Shari'ah Method

نکاح، طلاق کی اقسام اور شرعی طریقہ

Nikah (Marriage)

Nikah is a contract between a husband and wife in which one side pledges obedience and service, and the other pledges maintenance and care. It is a permanent (da'imi) contract. Sometimes for various reasons it may become difficult to sustain — for this reason its dissolution is called talaq. This is why those who wish to maintain intimate relations permanently (mut'ah) — which Allah has declared forbidden — are not following this way. There are two forms of permissible relationship: (a) a wife who becomes an inheritance, or (b) a slave woman whom one owns. Allah the Most High and the Messenger, may Allah bless him and give him peace, have declared mut'ah forbidden.

Types of Divorce

Talaq Raj'i (Revocable Divorce)

This is the divorce after which the husband can return (ruju') to his wife without a new nikah. Talaq raj'i cannot be given more than twice — not even a third time.

Talaq Ba'in (Irrevocable Divorce)

This is the divorce in which another husband and a new nikah become necessary. If another husband comes and if she then returns, a new nikah is required and a new mahr. Talaq ba'in is expressed in such indirect terms that they indicate the intensity and seriousness of the divorce — for example: 'You have been made separate,' 'There is a barrier between us,' 'You are free,' and words to that effect.

Talaq Mughallazah (Absolutely Irrevocable Divorce)

This is the third divorce, after which the woman is completely free from the first husband. Remarriage to the first husband is not permitted unless she first genuinely marries another man, and that man then divorces her; only then may she return to the first husband with a new nikah. A man who gives three divorces is thus completely and irrevocably separated from his wife. The 'iddah in this case is counted over three menstrual cycles.

The Proper Shari'ah Method of Giving Divorce

The Shari'ah method is this: in the time of the Prophet, peace be upon him, and the Companions, one divorce was given at a time. But in some people's opinion two divorces were given in one sitting. However, the Sunnah method is to give one divorce at a time, in the period of purity (tuhr) — that is, one divorce given outside the menstrual period. In that period if anger does not arise and the separation does not materialize, then a further divorce is given. If in the third month also no reconciliation occurs, then a third divorce is given, making the situation completely irrevocable. In the 'iddah period, the husband has the opportunity to revoke — to retain his wife. After the 'iddah the divorce is final and the woman is free.

At this juncture many scholars have erred greatly and spread serious misconceptions in the religion. They believe that if someone says to his wife 'you are divorced, you are divorced, you are divorced' in one sitting, three separate divorces are intended. This view is incorrect. The scholars who hold this opinion — one may quote any number of sources — their view is not to be accepted. It is better to follow the Qur'anic method. In the Qur'anic method it is not possible that a husband and wife in a situation of discord should have three divorces occur at once. The sound Qur'anic method is that discord arises between a husband and wife in their family context and becomes unresolvable; then by a command, separation happens. At that point the separation occurs — and al-firaq al-firaq (separation is separation). A common error is that people act as both judge and executioner. The rule is to decide — the decision of the wise court is implemented.

Where the Qadi (judge) does not give divorce, then the qadi's ruling will prevail. The qadi cannot issue a fatwa of divorce. The case comes to the qadi — laan (mutual imprecation), contradiction of claims — if the qadi decides divorce, then a representative (wakīl) of the qāḍī will pronounce the divorce. This is the ruling. And if a community-level decision is reached, the authority of the qāḍī's representative is established. Where the judge himself will give the ruling — when that ruling comes — there is a provision of relief and at that point the ruling is finalized.

There is a principle in jurisprudence (uṣūl al-fiqh) which states: lā ḍarar wa-lā ḍirār — neither harm nor counter-harm shall be inflicted. A principle of jurisprudence also states: al-ḥākim yarfaʿu al-nizāʿ — the judge resolves disputes. If a judge is appointed, he will impose restraint where necessary. He will not provide benefit where there is no benefit. The Prophet, may Allah bless him and give him peace, says that in his time a woman came to his service and said: 'I do not want to remain with my husband.' He investigated and said: 'The woman is right — she has a right to her freedom.' And he dismissed the husband from every kind of complaint because of what Allah's moral law demanded.

There is a jurisprudential principle that the judge's ruling is binding. Because when the judge gives the ruling based on the outward condition, he is not responsible for the inner state of the parties. For this reason there is no obligation of sin on either side from this. Some ignorant people mistake this for something: what the qadi is issuing is a fatwa concerning those marriages in which nikah is concluded with certain conditions. The fatwa is given that the woman can dissolve the marriage and thereby be free of it. In this religion, in all its aspects — from the smallest to the greatest — Islam has detailed provisions. Study the books of jurisprudence and observe these indications and principles.

Dear friends! These are the rulings of divorce regarding which all the madhabs (schools of Islamic law) have books. Unfortunately no one studies these. Alas — alladhī jaʿala al-dīna yusran — that religion which was meant to be easy — it has been made impractical and difficult by those who oppose us. We now hear this from them. Islam opposes tyranny. Allahu Akbar, Allahu Akbar.

Dear friends! What is khul' (woman-initiated divorce)? The wife's side — it is not possible for the wife to divorce by herself. If the oppression from the husband's side is unbearable, a judge must be approached and the judge also gives her some relief. If the husband refuses to comply and the woman insists with her complaint, then the judge will compel the husband to give the divorce, or the judge himself will give the divorce in the woman's favor. The judge is there to remove injustice, and the decision the judge deems appropriate — be it partial or full compensation — will be issued. But it is possible that the judge understands best and may extract something from the situation.