Surah Al-Baqara: Verse 229 - الطلاق مرتان ۖ فإمساك بمعروف... - English

A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them if any do transgress the limits ordained by Allah, such persons wrong (Themselves as well as others). (229)

Commentary

The injunctions governing talaq طلاق (divorce) and nikah نکاح (marriage) appear in several verses throughout the Qur'an but the verses mentioned here consist of cardinal rules of procedure in cases of divorce. To understand these, it is necessary to know the status of Nikah نکاح in the Shari'ah of Islam.

Marriage, divorce and the rules governing them

One commonly known aspect of Nikah نکاح (marriage) is that of a mutual transaction and contract similar to transactions in buying and selling and in loans and payments. The second aspect is that of Sunnah and ` Ibadah عبادہ . On this, there is a consensus of the whole ummah that nikah نکاح ، being far above ordinary transactions and contracts, has the status of ` Ibadah عبادہ and Sunnah (the act of worshipping Allah and following in the footsteps of the Prophet ﷺ ). Therefore, in order that nikah نکاح be duly solemnized, there are, by the consensus of the ummah, some peculiar conditions which are not found in ordinary transactions of buying and selling.

First of all, nikah نکاح cannot take place between any man and any woman. Governing this, there is an absolute law of the Shari'ah under which several categories of men and women cannot be joined together in the bond of marriage.

Secondly, for all transactions and contracts, in order that they be concluded and finalized, witness is no condition. A witness is needed when parties differ, but nikah نکاح is not such a transaction. Here, in order that it be concluded, the physical presence of witnesses is a pre-condition. If a man and woman, the two of them mutually agree to have their marriage solemnized without witnesses, and even if, any one of the two never differs or retreats, that marriage is, according to the Shari'ah, still invalid, unless both respond to the proposal and acceptance before witnesses. However, the Sunnah is that 'nikah نکاح ' must be solemnized with a public announcement. Similarly, there are many other conditions and rules of decorum that are either necessary or masnun مسنون in marriage.makhan38

According to Imam Abu Hanifah (رح) ، and several other leading Muslim jurists, the aspect of ` Ibadah عبادہ (worship) and Sunnah in nikah نکاح dominates over the aspect of transaction and contract. Evidences from the Qur'an and Sunnah support it.

After this brief familiarity with the real nature of marriage, let us understand divorce. The outcome of talaq طلاق (divorce) is to terminate the transaction and contract of nikah نکاح (marriage). Just as the Shari` ah of Islam, by giving nikah the status of an act of ` Ibadah عبادہ ، has kept it at a level higher than common transactions and contracts and has imposed on it several restrictions, very similarly, the termination of this deal has not been left free, as in common transactions, where the parties may terminate the deal as and when they elect to do so, and go on to make a fresh deal with someone else. It has rather made a pointedly wise legal framework which has been described in the verses under reference.

According to the drift of Islamic teachings, the transaction and contract of nikah نکاح should be for the whole life-span. The point of departure where it has to be broken or terminated should never be reached because the discontinuation of this deal affects not only the parties involved but goes on to destroy children, and their children, and at times, it may even cause whole families and tribes to end up with disturbed relations, which in turn, badly infects the whole society. Therefore, the teachings of the Qur'an and Sunnah have taken all necessary steps to remove impediments that may cause the breaking of this deal. The focal drive of instructions given in the Qur'an and Sunnah covering all problems and situations relating to the married couples is that this relationship should always keep on becoming stronger and stronger and may just never break. Should disagreements crop up, instructions were given to first try and understand each other's point of view and talk it out, and in the event of failure, ways of restraint, hard advice and warning were identified. Should the tussle become serious and these elementary steps do not bring a resolution of crisis, the parties were then expected to set up a panel for arbitration comprising of the members of their immediate families who could help patch up the differences. The emphasis on making members of the family as sole arbitrators in the verse حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا :'Then send one arbitrator from his people and one from her people' is certainly very wise since the tussle, if it escapes the immediate family circle, will only aggravate the situation and the parties may draw further apart.

But there are occasions and situations when all efforts for reconciliation fail and the parties in conflict rather than benefit by the desired results of the nikah نکاح relationship, feel that being married together is a mutual punishment. Under such conditions, terminating this husband-wife relationship becomes, in itself, a way-out promising comfort and peace for the parties. Therefore, the Shari'ah of Islam did not, as did some other religions, patently confirm that the marriage relationship must remain unbreakable under all conditions. Going a step ahead, it has framed a specific law for divorce and the dissolution of marriage. The right of divorce was given to man alone in whom the ingredients of thought, end-perception and forbearance were more pronounced than in a woman. This free choice was not given in the hands of women so that the disposition of being overtaken by transitory emotions, which is more pronounced in women as compared to men, may not become the cause of divorce.

But women too, were riot totally deprived of this right lest they are left with no alternative but to keep groaning under the cruelty of her husband. She was given the right to take her case to a court presided by a judge who qualifies as such under the rules of Shari'ah, present her complaint, prove her case, and get the marriage annulled, or secure a divorce. Then, as it is, Allah Almighty did entrust man with the free choice of divorce, but at the very first instance, it was declared that the use of this choice was very much detested and disapproved in the sight of Allah. It was permitted only in extreme situations of compulsion. It appears in Hadith: ابغض الحلال الی اللہ الطلاق : Divorce is the most detested of lawful things with Allah.

The second restriction placed stipulated that this choice should not be used in extreme anger or fleeting displeasure. It was due to this wisdom that the pronouncing of divorce was forbidden during the period of menstruation, as well as, during a’ tuhr اطہُر (the state of purity) in which the husband has had sexual intercourse with the wife. The pronouncing of divorce during menstruation and in a’ tuhr اطہُر marked by intimacy was forbidden on the basis that it would become the contributing reason to elongate the ` iddah عِدَّہ or 'waiting period' of the woman, which will aggravate her pain and worry. For these two situations, the noble Qur'an has this to say: فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ that is, divorce -- if it has to be given -- should be given at a time when the ` iddah عِدَّہ of the woman does not become longer without any reason. If divorce became effective during menstruation, that particular menstruation will not be counted in ` iddah عِدَّہ . The count of ` iddah عِدَّہ will begin from the next menstruation. And in a’ tuhr اطہُر marked with intimacy, the chances of pregnancy exist, which would elongate the period of ` iddah عِدَّہ ، upto the time of delivery. Another reason for fixing the time of tuhr طہُر ، mentioned earlier for the pronouncement of divorce is that it is quite possible that in the meantime the anger goes away, forgiveness and recompense follow and the very idea of divorce is withdrawn.

Now under the third restriction, the method adopted in breaking the marriage- contract and its annulment was not kept identical with that of the transactions and contracts of common buying and selling activity which releases the parties concerned of all obligations instantly once the contract is annulled. The first deal is all over and everybody gets the option to enter into another contract with some other party. In fact, in order to sever the marriage-relationship, talaq طلاق has been subjected to three stages. Then it was topped with the restriction of ` iddah عِدَّہ since a lot of residual effects of the nikah نکاح -relationship will remain active until the completion of ` iddah عِدَّہ . Another marriage will not be lawful for the woman. Some restriction on the man would also continue.

The fourth restriction stipulates if divorce was given once or twice in clear and unambiguous words, nikah نکاح did not break instantly on the pronouncement of talaq طلاق ; the marriage relationship continues till the completion of ` iddah عِدَّہ . If the husband revokes the talaq طلاق ، the previous nikah نکاح will remain valid.

This choice of ruju` رَجُوع (revocation or the act of taking back one's divorced wife) was restricted to only one or two talaqs طلاقین ، so that some cruel husband may not make a practice of giving talaqs طلاقین ، and then take her back and keep her as some captive. Therefore, came the injunction: If someone pronounces the third talaq طلاق as well, he now has no choice of ruju رَجُوع (revocation), that is, he cannot take his wife back. In fact, even if they wish to remarry after mutual agreement, their being joined together in marriage a second time is not lawful, except in a peculiar manner which has been described later on.

The verses under study consist of important injunctions relating to this system of divorce. Now let us ponder over the words, of these verses. In the beginning of the verse it was first said: الطَّلَاقُ مَرَّ‌تَانِ : that is, 'talaq طلاق is twice'. Then, in the process of these two talaqs طلاقین ، a certain flexibility was provided by virtue of which the marriage was not totally annulled; instead, the man has the choice to return to his wife and retain her in his marriage. Or, he may elect not to do his ruju-` رَجُوع (revocation) from the earlier pronouncements, allow the ` iddah عِدَّہ to be completed and once the ` iddah عِدَّہ is over, the marriage relationship will be terminated. This subject was stated in the words فَإِمْسَاكٌ بِمَعْرُ‌وفٍ أَوْ تَسْرِ‌يحٌ بِإِحْسَانٍ , (then either to retain in the recognized manner or to release in fairness) that is, either, one must revoke divorce and retain his wife in his marriage, or, allow her ` iddah عِدَّہ or the waiting period to be completed nicely and generously so that she can become free.

The third talaq طلاق (pronouncement of divorce) still remains unmentioned while the text takes up another problem in between, which generally comes up for. discussion under such conditions. The problem is that there are some cruel husbands who neither wish to retain their wives, nor care about their rights, nor give them divorce. The wife is placed in a situation of duress while the husband, taking advantage of her helplessness, demands some money or property from her, or as a last resort, demands that the mahr (dower) be forgiven, or returned in lieu of divorce. The Qur'an declares this to be haram حرام (unlawful). It was said: وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا that is, it is not halal حلال (lawful) for you that, in return for talaq طلاق ، you take back from them money or mahr مھر (dower) or anything else given by you.

However, one exception was made in which forgiveness or return of mahr مھر (dower) was made permissible. Where the woman feels that she cannot do justice to the rights of her husband because of difference in temperaments and the man too, feels the same way, then this becomes a situation in which it is also permissible that divorce be given or taken in lieu of the forgiveness or return of mahr مھر (dower).

(229)

Divorce is Thrice

This honorable Ayah abrogated the previous practice in the beginning of Islam, when the man had the right to take back his divorced wife even if he had divorced her a hundred times, as long as she was still in her `Iddah (waiting period). This situation was harmful for the wife, and this is why Allah made the divorce thrice, where the husband is allowed to take back his wife after the first and the second divorce (as long as she is still in her `Iddah). The divorce becomes irrevocable after the third divorce, as Allah said:

(The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness.)

In his Sunan, Abu Dawud reported in Chapter: "Taking the Wife back after the third (Divorce) is an abrogated practice," that Ibn `Abbas commented on the Ayah:

(And divorced women shall wait (as regards their marriage) for three menstrual periods, and it is not lawful for them to conceal what Allah has created in their wombs,) (2:228) The man used to have the right to take back his wife even if he had divorced her thrice. Allah abrogated this and said:

(The divorce is twice.)

This Hadith was also collected by An-Nasa'i. Ibn Abu Hatim reported that `Urwah said that a man said to his wife, "I will neither divorce you nor take you back." She said, "How" He said, "I will divorce you and when your term of `Iddah nears its end, I will take you back." She went to Allah's Messenger and told him what happened, and Allah revealed:

(The divorce is twice.)

Ibn Jarir (At-Tabari) also reported this Hadith in his Tafsir.

Allah said:

(...after that, either you retain her on reasonable terms or release her with kindness.) meaning, `If you divorce her once or twice, you have the choice to take her back, as long as she is still in her `Iddah, intending to be kind to her and to mend differences. Otherwise, await the end of her term of `Iddah, when the divorce becomes final, and let her go her own way in peace, without committing any harm or injustice against her.' `Ali bin Abu Talhah reported that Ibn `Abbas said, "When the man divorces his wife twice, let him fear Allah, regarding the third time. He should either keep her with him and treat her with kindness, or let her go her own way with kindness, without infringing upon any of her rights."

Taking back the Mahr (Dowry)

Allah said:

(And it is not lawful for you (men) to take back (from your wives) any of (the dowry) what you gave them,) meaning, you are not allowed to bother or pressure your wives to end this situation by giving you back the Mahr and any gifts that you have given them (in return for divorce). Similarly, Allah said:

(...and you should not treat them with harshness, that you may take away part of what you have given them, unless they commit open illegal sexual intercourse.) (4:19)

However, if the wife willingly gives back anything with a good heart, then Allah said regarding this situation:

(...but if they, of their own good pleasure, remit any part of it to you, take it, and enjoy it without fear of any harm.) (4:4)

Allowing Khul` and the Return of the Mahr in that Case

When the spouses have irreconcilable differences wherein the wife ignores the rights of the husband, dislikes him and becomes unable to live with him any longer, she is allowed to free herself (from married life) by giving him back what he had given her (in gifts and Mahr). There is no sin on her in this case nor on him if he accepts such offer. This is why Allah said:

(And it is not lawful for you (men) to take back (from your wives) any of what you gave them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g., to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back.)

Sometimes, the woman has no valid reason and she still asks for her marriage to be ended. In this case, Ibn Jarir reported that Thawban said that Allah's Messenger said:

(Any woman who asks her husband for divorce without justification, then the scent of Paradise will be forbidden for her.)

At-Tirmidhi recorded this Hadith and stated that it is Hasan.

Ibn Jarir said that the Ayah (2:229) was revealed about Thabit bin Qays bin Shammas and his wife Habibah bint `Abdullah bin Ubayy bin Salul. In his Muwatta', Imam Malik reported that Habibah bint Sahl Al-Ansariyah was married to Thabit bin Qays bin Shammas and that Allah's Messenger once went to the Fajr (Dawn) prayer and found Habibah bint Sahl by his door in the dark. Allah's Messenger said, "Who is this" She said, "I am Habibah bint Sahl, O Messenger of Allah!" He said, "What is the matter" She said, "I and Thabit bin Qays", meaning, (she can no longer be with) her husband. When her husband Thabit bin Qays came, Allah's Messenger said to him:

(This is Habibah bint Sahl, she said what Allah has permitted her to say.)

Habibah also said, "O Messenger of Allah! I still have everything he gave me." Allah's Messenger said:

(Take it from her.) So, he took it from her and she remained in her family's house."

This was reported by Ahmad, Abu Dawud and An-Nasai.

Al-Bukhari reported that Ibn `Abbas said that the wife of Thabit bin Qays bin Shammas came to the Prophet and said, "O Messenger of Allah! I do not criticize his religion or mannerism. But I hate committing Kufr in Islam (by ignoring his rights on her)." Allah's Messenger said:

؟

(Will you give him back his garden)

She said, "Yes." Allah's Messenger said:

(Take back the garden and divorce her once. )

An-Nasa'i also recorded it.

The `Iddah (Waiting Period) for the Khul"

At-Tirmidhi reported that Rubayi` bint Mu`awwidh bin `Afra' got a Khul` during the time of Allah's Messenger and the Prophet ordered her to wait for one menstruation period for `Iddah.

Transgressing the set limits of Allah is an Injustice

Allah said:

(These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are the wrongdoers.)

This means that the laws that Allah has legislated are His set limits, so do not transgress them. An authentic Hadith states:

(Allah has set some limits, so do not transgress them; and commanded some commands, so do not ignore them; and made some things unlawful, so do not commit them. He has also left some matters (without rulings) as a mercy with you, not because He has forgotten them, so do not ask about them.)

Pronouncing Three Divorces at the same Time is Unlawful

The last Ayah we mentioned was used as evidence to prove that it is not allowed to pronounce three divorces at one time. What further proves this ruling is that Mahmud bin Labid has stated - as An-Nasa'i recorded - that Allah's Messenger was told about a man who pronounced three divorces on his wife at one time, so the Prophet stood up while angry and said:

؟

(The Book of Allah is being made the subject of jest while I am still amongst you)

A man then stood up and said, "Should I kill that man, O Messenger of Allah"

The Wife cannot be taken back after the Third Divorce

Allah said:

(And if he has divorced her (the third time), then she is not lawful for him thereafter until she has married another husband.)

This Ayah indicates that if the man divorces his wife for the third time after he divorced her twice, then she will no longer be allowed for marriage to him. Allah said:

(...until she has married another husband.) meaning, until she legally marries another man. For instance, if she has sexual intercourse with any man, even her master (if she was a servant), she would still be ineligible for marriage for her ex-husband (who divorced her thrice), because whomever she had sexual relations with was not her legal husband. If she marries a man without consummating the marriage, she will not be eligible for her ex-husband. Muslim reported that `A'ishah said that Allah's Messenger was asked about a woman who marries a man who thereafter divorces her (thrice). She then marries another man and he divorces her before he has sexual relations with her, would she be allowed for her first husband Allah's Messenger said:

(No, until he enjoys her `Usaylah (sexual relation).) Al-Bukhari also reported this Hadith.

Imam Ahmad recorded that `A'ishah said, "The wife of Rifa`ah Al-Qurazi came while I and Abu Bakr were with the Prophet and she said, `I was Rifa`ah's wife, but he divorced me and it was an irrevocable divorce. Then I married `Abdur-Rahman bin Az-Zubayr, but his sexual organ is minute like a string.' She then took a small string of her garment (to resemble how small his sexual organ was). Khalid bin Sa`id bin Al-`As, who was next to the door and was not yet allowed in, said, `O Abu Bakr! Why do you not forbid this (woman) from what she is revealing frankly before the Prophet' The Prophet merely smiled. Then, Allah's Messenger asked her: c

(Do you want to remarry Rifa`ah You cannot unless you experience his `Usaylah and he experiences your `Usaylah (i.e., had a complete sexual relation with your present husband).)"

Al-Bukhari, Muslim, and An-Nasa'i also recorded this Hadith. Muslim's wording is "Rifa`ah divorced his wife for the third and final time."

The word `Usaylah mentioned in the Hadith means sexual intercourse. Imam Ahmad and An-Nasa'i reported that `A'ishah said that Allah's Messenger said:

(`Usaylah is sexual intercourse.)

The Curse on the Participants of Tahlil/Halalah

The reason for the woman (who was divorced thrice) to marry another man must be that the man desires her and has the intention of having an extended married life with her. These are the legal goals and aims behind marriage. If the reason behind the second marriage was to make the woman eligible for her ex-husband again, then this is the Tahlil that the Hadiths have cursed and criticized. In addition, when the reason behind this marriage (if it was Tahlil) is announced in the contract, it would make the contract invalid according to the majority of the scholars.

Imam Ahmad reported that `Abdullah bin Mas`ud said, "Allah's Messenger cursed the one who does Tahlil, the one in whose favor it is done, those who eat Riba (usury) and those who feed it (pay the usury)." At-Tirmidhi and An-Nasa'i reported this Hadith and At-Tirmidhi said, "This Hadith is Hasan." He said, "This is what is acted upon according to people of knowledge among the Companions, among whom are `Umar, `Uthman and Ibn `Umar. It was also the saying of the scholars of Fiqh among the Tabi`in (second generation of Islam). And it has been reported from `Ali, Ibn Mas`ud and Ibn `Abbas".

In his Mustadrak, Al-Hakim reported that Nafi` said: "A man came to Ibn `Umar and asked him about a man who divorced his wife three times. Then, his brother married her to make Tahlil for his brother, without the brother knowing this fact. He then asked, "Is she allowed for the first (husband)" He said, "No, unless it is a marriage that involves desire. We used to consider this an act of adultery during the time of Allah's Messenger ." Al-Hakim said, "This Hadith has a Sahih chain although they (Al-Bukhari and Muslim) did not record it."The wording of this Hadith indicates that the ruling came from the Prophet . Abu Bakr bin Abu Shaybah, Al-Jawzjani, Harb Al-Kirmani and Abu Bakr Al-Athram said that Qabisah bin Jabir said that `Umar said, "If the participants to Tahlil are brought to me, I will have them stoned."

When does a Woman who was divorced Three Times become Eligible for Her First Husband

Allah said:

(And if he has divorced her) meaning, the second husband after he had complete sexual relations with her,

(it is no sin on both of them that they reunite) meaning, the wife and her first husband,

(provided they feel that they can keep the limits ordained by Allah.) meaning, they live together honorably. Mujahid said, "If they are convinced that the aim behind their marriage is honorable." Next, Allah said:

(These are the limits of Allah,) His commandments and legislation,

(He makes plain)

(for the people who have knowledge.)

(229)