Evaluate and Try to Reconcile

Divorce (Talaq) in Islam

Islam tolerates divorce and separation of a husband and wife under specific conditions; however, Islam regards divorce as abhorrent and reprehensible. Divorce is the most hateful thing to Allah, but it is allowed (halal) only in the case of absolute necessity. If a couple tried their best to reconcile their differences, but they still could not agree and they found impossible to live with each other, then only in that case they should separate properly and decently. Divorce can be initiated by the husband or by the wife. Allah says:

وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا إِن يُرِيدَا إِصْلَاحًا يُوَفِّقِ اللَّهُ بَيْنَهُمَا إِنَّ اللَّهَ كَانَ عَلِيمًا خَبِيرًا

The Quran says: “And if you fear a breach between the two, appoint an arbiter from his relatives and an arbiter from her relatives. If they both desire reconciliation Allah will effect harmony between them. Verily Allah has full knowledge, and is aware of everything.” (Surah An-Nisa` 4:35)

A husband who wants to divorce his wife should use the words of divorce with full awareness after much thinking and consideration. Using the words of divorce in haste or anger is not right. The proper procedure is to give divorce when a woman is not pregnant and is not going through her monthly menstrual cycle. Allah says:

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحًا جَمِيلًا

“O you who believe! When you marry believing women and then, divorce them before [that] you have touched then not for you on them any waiting period (to) count concerning them. To provide for them and release them (with) a release good.” (Surah Al-Ahzab 33:49)

Divorce can take place by saying one time “I have divorced you” (talluqtuki) or “You are divorced” (anti talaq). After this, the women should spend the time of their` iddah. During the period of`iddahthe husband can cancel his divorce and can resume the matrimonial relationship, but if it does not happen then the divorce takes effect and at the end of the iddah period their marriage ends. There is no need to repeat the words of divorce more than once. Even one divorce is sufficient to terminate the relationship. Allah says:

فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَن يَتَرَاجَعَا إِن ظَنَّا أَن يُقِيمَا حُدُودَ اللَّهِ وَتِلْكَ حُدُودُ اللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ

“And if he has divorced her [for the third time], then she is not lawful to him afterwards until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of God.” (Surah Al-Baqarah 2:230)

A marriage and a possible divorce involve more people than just the two spouses. It affects children, parents, and entire families. Before a decision is made about divorce, then, it is only fair to involve family elders in an attempt at reconciliation. Family members know each party personally, including their strengths and weaknesses, and would hopefully have their best interests at heart. Allah says:

الَّذِينَ يُظَاهِرُونَ مِنكُم مِّن نِّسَائِهِم مَّا هُنَّ أُمَّهَاتِهِمْ إِنْ أُمَّهَاتُهُمْ إِلَّا اللَّائِي وَلَدْنَهُمْ وَإِنَّهُمْ لَيَقُولُونَ مُنكَرًا مِّنَ الْقَوْلِ وَزُورًا وَإِنَّ اللَّهَ لَعَفُوٌّ غَفُورٌ

“Those who pronounce zihar among you [from] (to) their wives, not they (are) their mothers. Not (are) their mothers except those who gave them And indeed, they surely say an evil [of] [the] word and a lie. But indeed, Allah (is) surely, Oft-Pardoning, Oft-Forgiving.” (Surah Al-Mujadilah 58:2)

If they approach the task with sincerity, they may be successful in helping the couple work their issues out. In the event of a divorce, children often bear the most painful consequences. Allah says:

لَّا جُنَاحَ عَلَيْكُمْ إِن طَلَّقْتُمُ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ

“(There is) no blame upon you if you divorce [the] women whom not you have touched nor you specified for them an obligation (dower). And make provision for them – upon the wealthy according to his means and upon the poor according to his means – a provision in a fair manner, a duty upon the good-doers.” (Surah Al-Baqarah 2:236)

The divorce initiated by the wife is known as Khula’ (if the husband is not at fault) and requires that the wife returns her dowry to end the marriage because she is the ‘contract-breaker’. In the instance of Talaaq, where the husband is the ‘contract-breaker’, he must pay the dowry in full in cases where all or part of it was deferred, or allow the wife to keep all of it if she has already been given it in full. Allah says:

فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَن يَتَرَاجَعَا إِن ظَنَّا أَن يُقِيمَا حُدُودَ اللَّهِ وَتِلْكَ حُدُودُ اللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ

“Then if he divorces her, then (she is) not lawful for him from after (that) until she marries a spouse other than him. Then if he divorces her then no sin on them if they return to each other if they believe that they (will be able to) keep (the) limits. (of) Allah. And these (are the) limits. (of) Allah. He makes them clear to people who know.” (Surah Al-Baqarah 2:230)

In the case that the husband is at fault and the woman is interested in divorce, she can petition a judge for divorce, with a cause. She would be required to offer proof that her husband had not fulfilled his marital responsibilities. If the wife had specified certain conditions that are Islamically accepted in her marriage contract, which were not met by the husband, she could obtain a conditional divorce.

Type of divorce is classified as under:
  1. Talak-e-Ahsan – ‘Talaq-e-Ahsan’ is a single pronouncement of ‘talaq’ by the husband followed by a period of abstinence, known as ‘Iddat’ which is ninety days or three menstrual cycles (in case, where the wife is menstruating). If the couple resumes cohabitation or intimacy, within the period of ‘iddat’, the pronouncement of divorce is treated as having been revoked. Therefore, ‘talaq-e-Ahsan’ is revocable. However, on the third pronouncement of such a ‘talaq’, the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been consummated and later dissolved (either through ‘talaq’ – divorce, or death). Amongst Muslims, ‘talaq-e-Ahsan’ is considered as – ‘the most proper’ form of divorce.
  2. Talak-e-Hasan – ‘Talaq-e-Hasan’ is pronounced in the same manner, as ‘Talaq-e-Ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements in three months. If after the first two pronouncements, there is a resumption of cohabitation within that period, the pronouncement of divorce is treated as having been revoked. If the third ‘talaq’ is pronounced, the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’. As against ‘Talaq-e-Ahsan’, which is regarded as ‘the most proper’ form of divorce, Muslims regard ‘Talaq-e-Hasan’ only as ‘the proper form of divorce’.
  3. Talak-e-Biddat – This is effected by one definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same time, simultaneously. In ‘talaq-e-bidder’, divorce is effective forthwith. The instant talaq, unlike the other two categories of ‘talaq’, is irrevocable at the very moment it is pronounced. Even amongst Muslims ‘talaq-e-bidder’, is considered irregular.
  4. Divorce by mutual agreement – The type of divorce is instituted by wife and is known as ‘Khula’. It comes into existence when the wife makes an offer to the husband for the termination of the matrimonial alliance, with due consideration, and the husband accepts it. Where however both the parties mutually agree to dissolve the marriage, it is known as ‘Mubarak’. Both of these forms of divorce come into existence with the consent of both the parties, husband particularly as without his consent the divorce would be incapable of being enforced.
  5. Judicial divorce – The marriage can be dissolved by a petition filed by either party in the qadi court to obtain a divorce, but they must have compelling grounds for obtaining a divorce.

وَإِنْ عَزَمُوا الطَّلَاقَ فَإِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ

“And if they resolve (on) [the] divorce – then indeed, Allah (is) All-Hearing, All-Knowing.” (Surah Al-Baqarah 2:227)

CONCEPT OF TRIPLE TALAQ
  • “Talaq, Talaq, Talaq”, when pronounced by the husband, the marriage automatically ends right away, making both the parties free from each other. This method of giving divorce by pronouncing the word “Talaq” three times by the husband is known as “Triple Talaq” or “Talaq-e-Bidder”.
  • It is different from the practice of “Talaq-ul-Sunnat”, which is considered to be the ideal form of dissolution of marriage contract among Muslims.
  • In the practice of talaq-e-biddat, when a man pronounces talaq thrice in a sitting, or through phone, or writes in a talaqnama or a text message, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate. The only way for the couple to live together is, through nikah halala – which requires the women to get remarried, consummate the second marriage, get divorced, observe a three-month iddat period and return to her husband. After the pronouncement when a divorce takes place, the wife becomes separated from the husband in terms of responsibilities and relationship.
  • Triple talaq has been supported by the Hanafi school of law amongst Sunni Muslims in India for centuries. Sunni Muslims, which constitute a majority of Muslims in India, are the ones who practice triple talaq, as the Shias do not recognize it.

عَسَىٰ رَبُّهُ إِن طَلَّقَكُنَّ أَن يُبْدِلَهُ أَزْوَاجًا خَيْرًا مِّنكُنَّ مُسْلِمَاتٍ مُّؤْمِنَاتٍ قَانِتَاتٍ تَائِبَاتٍ عَابِدَاتٍ سَائِحَاتٍ ثَيِّبَاتٍ وَأَبْكَارًا

“Perhaps his Lord, if he divorced you, [that] He will substitute for him wives better than you submissive, faithful, obedient, repentant, who worship, who fast, previously married and virgins.” (Surah At-Tahrim 66:5)

Thus, it is clear that there is a ‘degree’ of difference with regards to the rights of men and women in divorce, and that the greater right that men were given is due to their being the leaders and financial supporters of the household. This, however, does not mean that women are inferior to men or that they are second-class human beings.

How to Get an Islamic Divorce:
  1. Think carefully about the divorce
  2. Evaluate and Try to Reconcile
  3. Divorce would affect all family
  4. If all else fails, file for divorce
  5. Filing For Divorce
  6. Waiting Period (Iddat)
  7. Decide who gets the child custody
  8. Observe the waiting period of three months, or ‘iddah

Divorce, or talaq, is different for the husband and wife. In Islam, there is a three-month waiting period before the divorce is finalized. The husband’s divorce pronouncement can be verbal or written, but it must be done once. The wife can keep the dowry, or mahr, with her. If, however, the wife initiates the divorce, she can either return her dowry to end the marriage or petition a judge for a divorce. Allah says:

وَإِن يَتَفَرَّقَا يُغْنِ اللَّهُ كُلًّا مِّن سَعَتِهِ وَكَانَ اللَّهُ وَاسِعًا حَكِيمًا

“And if they separate, Allah will enrich each (of them) from His abundance, and Allah is All-Encompassing, All-Wise.” (Surah An-Nisa 4:130)

She must show proof that her husband has not fulfilled his responsibilities. A separate legal process of divorce may also be required, in which attending hearings and obtaining a legal decree of divorce are required. Allah says:

وَ إِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُواْ حَكَمًا مِّنْ أَهْلِهِ وَ حَكَمًا مِّنْ أَهْلِهَا إِن يُرِيدَا إِصْلاَحًا يُوَفِّقِ اللّهُ بَيْنَهُمَا إِنَّ اللّهَ كَانَ عَلِيمًا خَبِيرًا

“And if you fear a breach between the two, then choose an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah shall effectuate concord among them. Surely, Allah is All-knowing, All-aware.” (Surah Nisa’, 4:35)

Allah loves a house in which a wedding is held and hates a house in which a divorce is conducted and there is nothing more hateful than divorce. Islam holds divorce as an extremely ugly and vile act, which must be avoided within the bounds of possibility as it even rocks the very Throne of God. Even though it has not been forbidden, for various reasons, it is severely condemned. To prevent divorce, Islam campaigns against its causes.