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Social Issues
Javed Ahmad Ghamidi
(Tr. by:Dr. Shehzad Saleem)


يَاأَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمْ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ وَاتَّقُوا اللَّهَ رَبَّكُمْ لَا تُخْرِجُوهُنَّ مِنْ بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ وَتِلْكَ حُدُودُ  اللَّهِ  وَمَنْ   يَتَعَدَّ حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ لَا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَلِكَ أَمْرًا فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا  ذَوَى  عَدْلٍ   مِنْكُمْ  وَأَقِيمُوا  الشَّهَادَةَ لِلَّهِ ذَلِكُمْ يُوعَظُ بِهِ مَنْ كَانَ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الْآخِرِ وَمَنْ يَتَّقِ اللَّهَ يَجْعَلْ لَهُ مَخْرَجًا وَيَرْزُقْهُ مِنْ حَيْثُ لَا يَحْتَسِبُ وَمَنْ   يَتَوَكَّلْ عَلَى اللَّهِ فَهُوَ حَسْبُهُ إِنَّ اللَّهَ بَالِغُ أَمْرِهِ قَدْ جَعَلَ اللَّهُ لِكُلِّ شَيْءٍ قَدْرًا وَاللَّائِي يَئِسْنَ   مِنْ الْمَحِيضِ  مِنْ نِسَائِكُمْ إِنْ  ارْتَبْتُمْ  فَعِدَّتُهُنَّ  ثَلَاثَةُ  أَشْهُرٍ  وَاللَّائِي لَمْ  يَحِضْنَ وَأُوْلَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ وَمَنْ يَتَّقِ اللَّهَ يَجْعَلْ لَهُ مِنْ أَمْرِهِ يُسْرًا ذَلِكَ أَمْرُ اللَّهِ أَنزَلَهُ إِلَيْكُمْ وَمَنْ يَتَّقِ اللَّهَ يُكَفِّرْ عَنْهُ سَيِّئَاتِهِ  وَيُعْظِمْ  لَهُ  أَجْرًا  أَسْكِنُوهُنَّ  مِنْ  حَيْثُ سَكَنتُمْ مِنْ وُجْدِكُمْ وَلَا تُضَارُّوهُنَّ لِتُضَيِّقُوا  عَلَيْهِنَّ  وَإِنْ  كُنَّ  أُولَاتِ  حَمْلٍ  فَأَنْفِقُوا  عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ وَأْتَمِرُوا بَيْنَكُمْ بِمَعْرُوفٍ وَإِنْ تَعَاسَرْتُمْ فَسَتُرْضِعُ لَهُ  أُخْرَى  لِيُنفِقْ  ذُو  سَعَةٍ  مِنْ  سَعَتِهِ  وَمَنْ  قُدِرَ  عَلَيْهِ رِزْقُهُ فَلْيُنفِقْ مِمَّا آتَاهُ اللَّهُ لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا مَا آتَاهَا سَيَجْعَلُ اللَّهُ بَعْدَ عُسْرٍ يُسْرًا(٦٥ :١-٧)

O Prophet! When you people divorce your wives, divorce them according to their waiting periods, and count accurately this waiting period, and fear God your Lord. [During this waiting period] turn them not out of their houses, nor should they [themselves] leave, except in case they are guilty of some open lewdness. And [remember] these are the bounds set by Allah and those who transgresses the bounds of Allah, it is they who wrong their own souls. You know not that God might thereafter create new circumstances. [Divorce your wives in this very manner]. Thus when they approach the end of their waiting period, either take them back on equitable terms or part with them on equitable terms. And [whether you want to keep them or depart from them, in both cases] call to witness two honest men among you. And [O you witnesses] establish this testimony for God. It is this thing to which those are exhorted who believe in God and in the Last Day. And [if] those who fear God [encounter any difficulty], God will find a way out for them and will provide them from where they cannot even imagine. And those who put their trust in God, for them Allah is enough [to help them]. God is sure to bring about His designs. And God has set a measure for all things. And those of your women who have ceased menstruating and they also who have not menstruated [in spite if reaching its age], if you have any doubts about them, then their waiting period is three months. And the waiting period of pregnant women is till they deliver the child. God will ease the hardship of [those among you] who fear Him. Such is the directive of God He has revealed to you. He who fears God, God shall brush away his sins and shall richly reward him. [During the waiting period] lodge these women in your homes according to your means. And do not harass them to make life intolerable for them. And if they are pregnant, maintain them until they deliver the child. And if they suckle your [child], give them their remuneration and decide this matter according to the custom after mutual consultation. And if you find yourselves in difficulty, another woman will suckle [the child]. Let the man of means spend according to his means and the man whose resources are restricted, spend according to what God has given him. God does not burden a person with more than He has given him. [Rest assured], after some difficulty, God will soon grant relief. (65:1-7)

If it becomes impossible for a husband and wife to get along with one another, there exists in divine religions the option of separation from one another. In religious parlance, this separation is called ‘طلاق’ (t*alāq: divorce). As per the traditions of Abraham’s creed, the Arabs were fully aware of it in the Jāhiliyyah period. No doubt certain deviations and innovations had found their way in their concept, however, a study of their history reveals that the law of divorce that existed in their society was almost the same as what Islam presented.1 In the above quoted verses of Sūrah Talāq, the Almighty has revived with certain additions and amendments that very law. Certain details of this law are also mentioned in Sūrah Baqarah and Sūrah Ah*zāb, but a little deliberation shows that the basic verses in this regard are those of Sūrah Talāq stated above.

Preceding Divorce

Before circumstances reach an extent that divorce remains the only option, it should be the intense desire of every person to keep in tact the marital relationship as far as possible. On these very grounds, in Sūrah Nisā the Almighty has permitted the husband to reprimand his wife if she is guilty of challenging his authority. However, if all efforts of reformation fail and it becomes evident that this relationship cannot remain intact, the Almighty has asked Muslims to make a last ditch effort: the relatives of the couple, their clan and tribe and other well wishers should come forward and use their influence to set right the situation. The procedure outlined by the Qur’ān in this regard is that one arbitrator should be appointed from the husband’s family and another from the wife’s family. Both of these arbitrators should try to reconcile the two in the hope that what the husband and wife could not accomplish themselves would be accomplished by the elders and well wishers of the two families. The Qur’ān says:

وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِنْ أَهْلِهِ وَحَكَمًا مِنْ أَهْلِهَا إِنْ يُرِيدَا إِصْلَاحًا يُوَفِّقْ اللَّهُ بَيْنَهُمَا إِنَّ اللَّهَ كَانَ عَلِيمًا خَبِيرًا(٣٥:٤)

If you fear a breach between them two, appoint [two] arbitrators, one from his family, and the other from hers; if they wish for peace, Allah will create harmony between them: for Allah has full knowledge, and is acquainted with all things (4:35)

The last words of the verse subtly urge the couple to benefit from this scheme. If, instead of severing ties, they wish to create harmony among themselves they should keep in mind that the Almighty is benevolent. He will help them in redeeming the situation.

The Right to Divorce

The sūrah begins with the words: ‘إِذَا طَلَّقْتُمْ النِّسَاءَ’ (when you [people] divorce your wives). In this verse, in the subsequent ones also and in other verses of the Qur’ān where the directive of divorce is mentioned, the husband has been regarded as the initiator of divorce. Moreover, in 2:237, the words ‘ِبيَدِه عُقْدَةُ الِّنكَاح’ (in his hands is the knot of marriage) are used for the husband. These words bear clear evidence to the fact that the Sharī‘ah has granted the husband the right to divorce. The reason for this is quite obvious. A husband has always been charged with the responsibility of protecting his wife and providing for her because God has given him the natural ability to fulfill these responsibilities. On these very grounds, the Qur’ān has regarded him to be the Qawwām (head of the family) and explicitly stated: ‘وَ لِلِّرجَالِ عَلَيْهِنَّ دَرَجَه’ (and the husbands hold a degree of superiority over them). Consequently, both the nature of the responsibility and the regard for his position entail that he be given the right to divorce. It is an understood fact that the institution of family is an essential requirement of a human being. Just as entrusting two parties with different responsibilities but granting them equal rights to establish an organization or to dismantle it cannot keep that institution intact, the familial institution also has similar requirements. If a lady, in lieu of her own protection and subsistence and those of her children, has given herself in the custody of a man through a contract, then the right to annul this contract cannot be given to the lady without the permission of the husband. This is in accordance with justice and fairness. If any other option is adopted, then this would be against justice, and would inevitably result in the dismemberment of the institution of family.

As a consequence of the above analysis, if a wife wants to separate from her husband, she cannot divorce him; on the contrary, she will demand divorce from him. In general circumstances, it is hoped that every gentleman, seeing that there is no other way out, would accept this demand. However, if this does not happen to be the case, a wife can turn to the court of law. When the state of affairs deteriorates to this extent, then there is a precedence set by the Prophet (sws) in this regard for the judicial forums: If it becomes certain that a wife has great aversion to her husband and does not want to live with him any more, then the court should order the husband to divorce her and if he wants he can have back all the wealth and property that he gifted to her except the mahr (dower).

Ibn ‘Abbās narrates that the wife of Thābit Ibn Qays once came to the Prophet (sws) and said: ‘O Messenger of Allah, I do not have any complaint regarding his character and person; however, I fear that I will lose my faith’2. When the Prophet heard this complaint, he said: ‘Would you return his orchard?’. She showed her consent. At this, the Prophet (sws) directed Thābit to accept the orchard and separate her by pronouncing one divorce sentence.3

The Procedure of Divorce

Whether a husband divorce his wife because of his own decision or does so at the demand of his wife, in both cases the procedure of divorce prescribed by the Sharī‘ah is as follows:

1. Divorce should be given keeping in consideration the ‘Iddat (waiting period). This means that it is incorrect to divorce a wife in a manner that separates her instantaneously. In all instances, it must be given so that it becomes effective after a specific waiting period. ‘Iddat (waiting period) in religious parlance means the period in which a divorced or widowed lady cannot marry any other person. Since this period has been primarily fixed in order to ascertain whether a lady is pregnant or not, therefore it is necessary that divorce be given after a lady has completed her menstrual cycle in that period of cleanliness in which the husband did not have any sexual intercourse with his wife. Every Muslim should be fearful of his Lord about emotions of anger which on such instances do arise against the wife. Consequently, when the Prophet (sws) was told that ‘Abdullāh Ibn ‘Umar had divorced his wife during her menstrual cycle, he was really annoyed and remarked:

مره فليراجعها ثم ليمسكها حتى تطهر ثم تحيض ثم تطهر ثم إن شاء أمسك بعد وإن شاء طلق قبل أن يمس فتلك العدة التي أمر الله أن تطلق لها النساء  (بخارى رقم: ٥٢٥١ )

Ask him to take her back and keep her in wedlock until she is through with her menstrual cycle and then once again passes through this cycle and then is through with it. After this, he can either detain her [in wedlock] or divorce her before having sexual intercourse with her. Because it is this beginning of the ‘Iddat keeping regard of which the Almighty has directed [believers] to divorce their wives. (Bukhārī, No: 5251)

The Almighty has directed Muslims to carefully keep count of the period of ‘Iddat. Since divorce is a matter of great consequences, and a lot of legal issues arise for the man, the woman, their children and their whole family, it is essential that the time and date of divorce be properly accounted for. Moreover, it is essential that at the time of divorce, the state of the woman, the date when the ‘Iddat commenced and the date when it will end be kept track of. Whether the whole issue is ultimately settled within the family or has to be taken to court for settlement, in both cases it is this period of ‘Iddat which dictates the time span within which a husband can revoke his decision and take back his wife (rujū‘). Similarly, it is this period which will determine the time for which the husband is liable to keep his wife in the house and provide for her. Likewise, the time when the inheritance is to be given to her and the time when the divorce process is complete and the lady is free to marry again shall be ascertained from the ‘Iddat.

2. Until the ‘Iddat period expires the husband has the right to take back his wife. The Qur’ānic words: ‘فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ’ (thus when they approach their term appointed, either take them back on equitable terms or part with them on equitable terms (65:2)) refer to this fact. The Almighty has explained in Sūrah Baqarah that just as the right to give divorce rests with the husband, the right to take back the wife also rests with him so that he be granted a superior status in administering the institution of family which is necessary to maintain order in it.

This of course does not mean that only husbands have rights and wives have none. People must be aware that just as wives have certain duties regarding their husbands, they also have some rights. Man is not ignorant of these rights; he is well aware of them. Consequently, it is the obligation of the husbands that besides asking their wives to fulfill their obligations towards them, they must also keep in mind their rights:

وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَلِكَ إِنْ أَرَادُوا إِصْلَاحًا وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ وَاللَّهُ عَزِيزٌ حَكِيمٌ (٢ :٢٢٨)

And if their husbands wish to reform affairs, they [— the husbands— ] have greater right to take them back [in this waiting period] should they desire reconciliation. And [this is because there is no doubt that] just as according to [society’s] norms these women have obligations [towards their husbands], they also have rights, although men [as husbands] have a status above women. [This is the directive of Allah] and Allah is mighty and wise. (2:228)

Since there is a high probability that in such affairs one is bound to be governed by emotions and extreme reactions and as a result may commit one blunder after another, these two attributes – Mighty and Wise – mentioned at the end of the verse serve a special purpose. While referring to this purpose, Imām Amīn Ah*san Is*lāh*ī writes:

The Almighty is ‘Azīz (Mighty); hence, it is only His right to give this directive and He is also H*akīm (Wise); hence, whatever directive He gives is based on wisdom. Men should always submit to His directives without any hesitation whatsoever. If they oppose His directives, this would amount to challenging His honor and only hasten to invite His wrath. Similarly, if they are naive enough to think that they are more wise and sagacious than the Almighty, they will be responsible for ruining the law and system of the society with their very own hands.4

3. If the husband does not take back her wife within the ‘Iddat period, then once this period expires the relationship of wedlock will cease to exist. Consequently, the husband is directed to make up his mind once this period is approaching its end. He should decide if he has to revoke his decision and take her back or is to persist with his decision and sever his relationship with her. In both cases, the Almighty has directed him to follow the ma‘rūf (good conventions) of the society. The Almighty comforts them by saying that those who remain fearful of Him should rest assured that they will be worthy of His help if they encounter any difficulty.

It is pointed out in Sūrah Baqarah that if the husband decides to revoke his decision and take back his wife, then this should not be with the intention of hurting or harassing her. The verse of Baqarah quoted above refers to this aspect in the words ‘إِنْ أَرَادُوا إِصْلَاحًا’. The revocation should not be to satisfy one’s desire by tormenting the wife. In fact, the underlying reason for this revocation should be to lead a congenial marital life, other wise this would just be an act of oppression which shall greatly displease the Almighty in the Hereafter:

وَإِذَا طَلَّقْتُمْ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ وَلَا تُمْسِكُوهُنَّ ضِرَارًا لِتَعْتَدُوا وَمَنْ يَفْعَلْ ذَلِكَ فَقَدْ ظَلَمَ نَفْسَهُ وَلَا تَتَّخِذُوا آيَاتِ اللَّهِ هُزُوًا وَاذْكُرُوا نِعْمَةَ اللَّهِ عَلَيْكُمْ وَمَا أَنزَلَ عَلَيْكُمْ مِنْ الْكِتَابِ وَالْحِكْمَةِ يَعِظُكُمْ بِهِ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِكُلِّ شَيْءٍ عَلِيمٌ (٢ :٢٣١)

And when you have divorced your wives and they have reached the end of their waiting period, either retain them with kindness or let them go with kindness. But do not retain them with the intention of harm so that you commit excesses against them. And [you should know that] whoever does this wrongs his own soul. Do not make a mockery of Allah’s commandments. Remember the favors He has bestowed upon you, and the Law and the wisdom which He has revealed, of which He instructs you. Fear Allah and know that He has knowledge of all things.

 While explaining this verse, Imām Amīn Ah*san Is*lāh*ī writes:

In the previous verses, the implied meanings were stated positively, but here they are stated negatively in order to caution cruel husbands who could misuse the right of divorce as well as the right to revoke it in the ‘Iddat period. Such an attitude, of course, is outright injustice and amounts to playing with the Sharī‘ah. Those who are bold enough to do this may think that they are oppressing their wives; however, in fact, they wrong their own selves. This is because those who toy with divine directives and exceed the limits set by the Almighty shall have to face a grievous punishment.

In the end, a reminder is sounded regarding the blessings of the Almighty: He has made Muslims a chosen Ummah and sent a Prophet to them from among them to guide them. He has also blessed them with a book to guide them regarding good and evil. It is composed of the precepts of faith and law. If they repay this great favor by violating the limits of the Almighty and toying with His Sharī‘ah then they should contemplate the consequences of such a behavior. The verse goes on to warn Muslims to remain fearful of the Almighty and to keep in mind that He has knowledge of all their deeds. In other words, He is granting respite to people in spite of their mischief. However, once He decides to catch them, no one will be able to run away from His grasp.5

Similarly, if a husband decides to part ways with his wife he is directed to do so in a befitting manner. The words used in 2:220 are ‘تَسْرِيْحٌ بِاِحْسَان’. In this regard, the following directives have been given:

Firstly, whatever amount of wealth, property, clothes, jewellery and other items have been gifted to the wife by the husband, they should not be confiscated by him. Here it should be clear that the verse is not referring to the Nafqah (maintenance) and Mahr (dowry), which are the absolute rights of a wife and confiscating them is unthinkable. What is emphasized is that a husband should not take back any gifts he may have given her.

There are two exceptions to the above mentioned directive:

First, if it is no longer possible to keep a marriage intact according to the limits set by Allah, and the family elders and society also supports the annulment, but a husband is unwilling to divorce his wife simply because he is concerned over losing wealth, property or other gifts he has given his wife, then the issue can be resolved in the following manner: the wife can give back part or all of the wealth gifted to her to relieve herself of her marital contract. In such cases, it would be lawful for the husband to accept these returned gifts.

Second, if the wife is guilty of open sexual misconduct. Since such a behavior destroys the very basis of the marital relationship, it is lawful for the husband to take back any gifts or wealth given to her.

The Qur’ān says:

وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَأُوْلَئِكَ هُمْ الظَّالِمُونَ (٢ :٢٢٩)

[If you decide to depart from them, then on this occasion] it is unlawful for you to take back from them anything you have given them unless both the husband and wife fear that they may not be able to keep within the bounds set by Allah. Then if you also feel that they will not be able to remain within the bounds set by Allah, there shall be no offence for either of them [regarding the gifts given by the husband] if the wife seeks divorce [by returning them to him] in ransom . These are the bounds set by Allah; do not transgress them. [And you should know that] those who transgress the bounds of Allah are wrongdoers (2:229)

وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ….  وَإِنْ أَرَدْتُمْ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُبِينًا  وَكَيْفَ تَأْخُذُونَهُ وَقَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنْكُمْ مِيثَاقًا غَلِيظًا (٤: ١٩-٢١)

And do not treat them with harshness that you may take away what you have given them – except where they have been guilty of open lewdness… And if you decide to take one wife in place of another, even if you had given the latter a whole treasure of wealth take not the least bit of it back: Would you take it by slander and usurping [her] rights? And how could you take it when you have lain with each other and [at the time of marriage] they have taken from you a solemn covenant? (4:19-21)

For this second situation, a person has been warned not to dare take back by slander any wealth gifted to his wife. Imām Amīn Ah*san Is*lāh*ī writes:

It is absolutely against the decency and integrity of a man to slander and accuse a lady with whom he had pledged to live forever under a firm marriage contract. It was she who had unveiled herself totally to him and both lived intimately and in great harmony with each other. How unseemly it is on the part of the husband that when relations had to be severed with her he should try to extract from her what he so willingly spent on her and should go as far as to malign and accuse her for this base purpose.6

Secondly, the husband shall not be responsible to give the dower if the wife is divorced such that the husband has not touched her or her dower had not been fixed. However, if the dower had been fixed but a lady was divorced before having sexual relations with the husband, then the husband is liable to pay half the amount of the dower fixed except if the wife willingly forgoes the total amount or the husband pays the full amount. The Qur’ān says:

لَا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمْ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً وَإِنْ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ إِلَّا أَنْ يَعْفُونَ أَوْ يَعْفُوَ الَّذِي بِيَدِهِ عُقْدَةُ النِّكَاحِ وَأَنْ تَعْفُوا أَقْرَبُ لِلتَّقْوَى وَلَا تَنسَوْا الْفَضْلَ بَيْنَكُمْ إِنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ (٢ :٢٣٦-٧)

There is no blame on you in the matter of dower if you divorce women before touching them or before fixing their dower and if you divorce them before touching them but after the fixation of a dower for them, then the half of this fixed dower should be given to them, unless they forgo it or he forgoes it in whose hands is the marriage knot; and if you [men] forgo your right, it is nearer to piety. And do not forget your superiority among yourselves. For Allah sees well all that you do. (2:236-7)

While commenting on this verse, Imām Amīn Ah*san Is*lāh*ī writes:

Although the fact that the husband has divorced the wife before conjugal contact was made is one motive for her wife to forgo her right, the Qur’ān here has urged the husband with regard to his honour and forbearance and his status as a husband to not desire from his wife to forfeit her share. Instead he should show magnanimity in paying her the full amount. The Qur’ān has appealed to him on three grounds to make this sacrifice: Firstly, the Almighty has given him the right to untie the marital knot just as he had the right to tie it. Secondly, it is more befitting for the stronger sex to show sacrifice and selflessness – the manifestations of true piety. Thirdly, the one degree of superiority a husband has been blessed with by being made the head of the family unit since he was naturally suited for this task requires that he take into account this aspect while dealing with the weaker sex. Its natural requirement is that he should be on the giving end rather than being on the receiving end.

Thirdly, a wife at the time of parting should be given some resources of life. The Qur’ān says that this is an obligation of those who fear God and those who are righteous. If a lady is divorced even without going near her, a husband is exhorted to fulfill this obligation. The Qur’ān says:

وَلِلْمُطَلَّقَاتِ مَتَاعٌ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ (٢ :٢٤١)

And divorced women should in all cases be given some resources according to the norms of the society when they are sent off. This is an obligation on those who are fearful of God. (2:241)

In Sūrah Ah*zāb, the words ‘فَمَتِّعُوْهُنَّ وَ سَرِّحُوْهُنَّ سِرَاحاً جَمِيْلَا’ (But give them some resources [of life] and part with them in a befitting manner) are used to convey this meaning. In Sūrah Baqarah, this same directive has been given to husbands for wives whom they divorced without touching them or without fixing their dower. According to the Qur’ān, the amount of these resources should be ascertained keeping in view the norms of the society and the financial status of the husband:

وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ (٢ :٢٣٦)

And bestow on them some resources of life, the wealthy according to his means, and the poor according to his means. This is an obligation on those who are righteous. (2:236)

It is evident from these words that this is an obligation on the husband. If a person does not fulfill it, he might not be liable to any legal action because this is something which pertains to a person’s inner piety and virtue, but he would definitely be held liable in the Hereafter before his Lord, and in the Hereafter the weight and import of his virtuous deeds would suffer.

4. If a husband revokes his decision within the ‘Iddat, the lady will continue to remain his wife, but does this mean that a husband can divorce his wife repeatedly in this fashion whenever he wants and then revoke the decision within the ‘Iddat. The Qur’ān has answered this question by saying that a person can only twice exercise this right of divorcing his wife in the ‘Iddat and then revoking the decision in his marriage with one lady. The Qur’ānic words are: ‘الطَّلَاقُ مَرَّتَانِ فَإمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ’ (This divorce may be pronounced twice, and then a woman must be retained with kindness or allowed to go with kindness). That is if a person divorces his wife and revokes his decision within the Iddat, then he can exercise this right one more time in his life in his marriage. However, once he has used this authority twice, he can no longer use it again the third time. In such a situation, his wife would be permanently separated from him except if she marries some other person and he then also divorces her:

فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنكِحَ زَوْجًا غَيْرَهُ فَإِنْ طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَنْ يَتَرَاجَعَا إِنْ ظَنَّا أَنْ يُقِيمَا حُدُودَ اللَّهِ وَتِلْكَ حُدُودُ اللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ (٢: ٢٣٠)

If a husband divorces his wife [for the third time], he cannot marry her until she has wedded another man. But if this [second husband] also divorces her, it shall be no offence for either of them to return to each other, if they think that they can [now] keep within the limits set by Allah. Such are the bounds of Allah. He makes them clear to men who want to gain knowledge. (2:230)

In case the same husband and wife want to remarry one another, the Qur’ān has imposed three restrictions on them:

Firstly, the wife should formalize her Nikāh* (marriage contract) with someone else.

Secondly, the second husband divorces her because for some reason the marriage cannot be pulled along.

Thirdly, the two think that after re-marriage the two would be able to remain within the bounds set by the Almighty.

In the first and second conditions, the word ‘Nikāh*’ only implies the legal marital knot and the word ‘divorce’ implies the divorce that one gives one’s wife when it is no longer possible to keep the marriage intact. Imām Amīn Ah*san Is*lāh*ī writes:

The real thing is that Nikāh* is a known term referring to a marriage contract which takes place between a man and a woman with the intention of living together forever in the bond of matrimony. If this intention does not exist in a Nikāh*, then in reality it is not a Nikāh*; it is more of a plot conspired by a man and a woman. The option of divorce in marriage, upheld by the Sharī‘ah, is not part of the original scheme; it is only a last resort to deal with insolvable situations. Consequently, the true nature of a Nikāh* is that it should be solemnized with the intention of living together as husband and wife permanently. If a person honors a Nikāh* only for a certain fixed period, then this is called ‘Muta‘h’, and it is totally prohibited in Islam. Similarly, if a person solemnizes a Nikāh* with a lady and then divorces her just to provide her with a legal excuse to marry the first husband, then in religious parlance this is called ‘H*alālah’ and, like ‘Muta‘h,’ it is also totally prohibited in Islam. A person who does such a despicable thing is like a pimp or pander or as a H*adīth says that such a person plays the role of ‘a rental male species for breeding’ and a person who does this and he who has it done are cursed by the Almighty’.8

The third condition has been imposed in order to make divorce a very serious affair so that people do not carelessly indulge in it. They should only divorce their wives while remaining fearful of the Almighty and when they think that there is no possibility of keeping the marriage intact. Similarly, when they embark upon marrying someone, they should do so with sincerity of purpose and with the intention of creating a harmonious relationship. It is not befitting for a believer to adopt an attitude contrary to this.

Our jurists add to the above mentioned three conditions and say that a lady can only be divorced from this second husband once the two have had sexual intercourse. Without this, she is not legally allowed to become the wife of her first husband. They generally present the following three reasons in support of their view:

Firstly, the verb ‘تَنْكِحَ’ (she marries) has been used by the Qur’ān. In this verb, the act of marriage has been attributed to the lady. However, since a lady does not contract marriage, rather a man does, so, ‘تَنْكِحَ’ here necessarily imply sexual intercourse.

Secondly, the word ‘زُوْجاً غَيْرَهُ’ (another husband) are used after ‘تَنْكِحَ’. The word ‘زُوْجاً’ is clearly pointing to the fact that the marriage has already been taken place; hence, it is imperative that ‘تَنْكِحَ’ here necessarily imply sexual intercourse.

Thirdly, it has been reported that once the Prophet (sws) stopped a lady from marrying her first husband by saying that she is not legally allowed to marry him until she has had sexual intercourse with the first.

The answer to the first and the second of these arguments is clearly given by the Qur’ān:

وَإِذَا طَلَّقْتُمْ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَنْ يَنكِحْنَ أَزْوَاجَهُنّ (٢: ٢٣٢)

And when you have divorced your wives and they have reached the end of their waiting period, do not prevent them from marrying their future husbands. (2:232)

It is evident from this verse that the act of marriage has been attributed to the lady and the word ‘أَزْوَاجَهُنّ’ are used in the same sense as ‘زُوْجاً غَيْرَهُ’, but it is obvious that the words ‘أَنْ يَنكِحْنَ’ refer to the marital knot and cannot in any way be construed for sexual intercourse.

Moreover, it is quite strange to contend that the act of marriage cannot be attributed to the lady. One might dare ask that if this is not possible, then can sexual intercourse be attributed to her. Viewed on similar grounds, it is a man who in fact does it and not a woman.

As far as the third argument is concerned, it has arisen because of not understanding a H*adīth. The way Imam Bukhārī has narrated it in his S*ah*īh* clearly shows that the lady had gotten married only to become legally permissible for the first husband. Consequently, when she lied by saying that her husband was unable to establish marital contact with her, the Prophet (sws) scolded her and told her that she could now only go back to her first husband after tasting her second husband. This of course is not a condition that he imposed but it is the case of stating an impossibility: the implied meaning being that if according to her, her second husband does not have the ability to copulate with her then she can only be divorced from him after he copulates with her – which of course he will never since, according to her, he is not capable of it. Thus if anything can be adduced from this H*adīth, it is prohibition of H*alālah. It does not in anyway support the view of the jurists.

The text of the H*adīth is as follows:

عَنْ عِكْرِمَةَ أَنَّ رِفَاعَةَ طَلَّقَ امْرَأَتَهُ فَتَزَوَّجَهَا عَبْدُ الرَّحْمَنِ بْنُ الزَّبِيرِ الْقُرَظِيُّ قَالَتْ عَائِشَةُ وَعَلَيْهَا خِمَارٌ أَخْضَرُ فَشَكَتْ إِلَيْهَا وَأَرَتْهَا خُضْرَةً بِجِلْدِهَا فَلَمَّا جَاءَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَالنِّسَاءُ يَنْصُرُ بَعْضُهُنَّ بَعْضًا قَالَتْ عَائِشَةُ مَا رَأَيْتُ مِثْلَ مَا يَلْقَى الْمُؤْمِنَاتُ لَجِلْدُهَا أَشَدُّ خُضْرَةً مِنْ ثَوْبِهَا قَالَ وَسَمِعَ أَنَّهَا قَدْ أَتَتْ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَجَاءَ وَمَعَهُ ابْنَانِ لَهُ مِنْ غَيْرِهَا قَالَتْ وَاللَّهِ مَا لِي إِلَيْهِ مِنْ ذَنْبٍ إِلَّا أَنَّ مَا مَعَهُ لَيْسَ بِأَغْنَى عَنِّي مِنْ هَذِهِ وَأَخَذَتْ هُدْبَةً مِنْ ثَوْبِهَا فَقَالَ كَذَبَتْ وَاللَّهِ يَا رَسُولَ اللَّهِ إِنِّي لَأَنْفُضُهَا نَفْضَ الْأَدِيمِ وَلَكِنَّهَا نَاشِزٌ تُرِيدُ رِفَاعَةَ فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَإِنْ كَانَ ذَلِكِ لَمْ تَحِلِّي لَهُ أَوْ لَمْ تَصْلُحِي لَهُ حَتَّى يَذُوقَ مِنْ عُسَيْلَتِكِ قَالَ وَأَبْصَرَ مَعَهُ ابْنَيْنِ لَهُ فَقَالَ بَنُوكَ هَؤُلَاءِ قَالَ نَعَمْ قَالَ هَذَا الَّذِي تَزْعُمِينَ مَا تَزْعُمِينَ فَوَاللَّهِ لَهُمْ أَشْبَهُ بِهِ مِنْ الْغُرَابِ بِالْغُرَابِ(بخاري رقم: ٥٣٧٧)

‘Ikramah narrates that Rafā‘ah divorced his wife. Thereafter she married ‘Abdu’l-Rah*mān Ibn Zubayr Qurz*ī. A^’ishah says that she came to her wearing a green cloak and complained of her husband and showed her her bruises – women do help one another – so when the Prophet (sws) came by, A^’ishah said: ‘I have only seen Muslim women being treated in such a way. Her skin is greener than her cloak’. ‘Ikramah says that when her husband came to know that she had complained to the Prophet (sws), he also came over to the Prophet (sws) along with his two sons from his other wife. Upon seeing her husband, she got hold of the end of her cloak letting it hang from her hand and remarked: My only complaint is that whatever he has is no more than this [soft cloth]. At this, ‘Abdu’l-Rah*mān said: ‘O Prophet (sws) of Allah she has told a lie! I am very strong and can satisfy her; the truth of the matter is that she is disobedient and wants to go back to Rafā‘ah’. When the Prophet (sws) heard this, he said: ‘If this is the case then you shall not be permissible for Rafā‘ah unless ‘Abdu’l-Rah*mān tastes you’. Then, upon seeing the sons of ‘Abdu’l-Rah*mān, the Prophet (sws) remarked: ‘Are these your sons?’ When he replied in the affirmative, the Prophet said: ‘Do you tell such lies [O ‘Abdu’l-Rah*mān’s wife]. By God, these [young boys] resemble ‘Abdu’l-Rah*mān more than a crow resembles another crow. (Bukhārī, No: 5377)

5. Whether the husband decides to divorce his wife or to take her back, in both cases the Qur’ān directs him to call in two Muslim witnesses on his decision. The witnesses are directed to remain steadfast on the evidence they give. The reason for this directive is to ensure that either of the parties is not able to refute a decision made and to resolve any other dispute that may arise in this regard. Moreover, this would make the matter very transparent for the people and settle doubts and confusions that may surface.

The above paragraphs explain the correct way of divorce. If a person divorces his wife according to this prescribed way or takes her back during the ‘Iddat period, then his decisions shall stand legally implemented. However, if divorce is given in violation of the prescribed way, then this is a legal case that would require a court ruling. Two similar cases of importance which came before the Prophet (sws) are as follows:

The first of these is the case of ‘Abdullāh Ibn ‘Umar (rta). When he divorced his wife during her menstrual cycle, ‘Umar (rta) presented his case before the Prophet (sws). The Prophet (sws) expressed his answer when he was informed of these details and said: ‘Ask him to take her back and retain her in wedlock until she enters her period of purity and then again passes through her menstrual cycle and is pure again. Then, if he wants, he can permanently retain her or divorce her without having intercourse with her because this is the beginning of ‘Iddat keeping regard of which the Almighty has directed a husband to divorce his wife.9

The second case is that of Rukānah Ibn ‘Abdi Yazīd. By gathering all the narratives of this case, the whole situation that comes to light is that he had divorced his wife three times in one go. He then felt ashamed and presented his case before the Prophet (sws). The Prophet (sws) inquired: ‘How did you divorce her?’ He replied: ‘I divorced her three times in one go’. The Prophet (sws) again inquired: ‘What was your intention?’ He answered that he wanted to divorce her once only. The Prophet (sws) told him to reply on oath which he did and then said: ‘If this is the matter, then take her back. Only one divorce has been implemented’. Rukānah remarked: ‘O Prophet of Allah I had divorced her three times’. The Prophet said: ‘I know, take her back and this is not the proper way of divorcing a wife. The Almighty has said that if one must divorce his wife, he should do so keeping in consideration the ‘Iddat’.10

The foundations on which the decisions of the Prophet (sws) are based in both the above quoted cases are:

i. If divorce is not given according to the prescribed procedure but there is a possibility to make amends for the violation, then the sanctity of the law demands that amends be made.

ii. A person has the right to explain his statements. If he says that a particular statement was uttered by him without any intention or with full intention, his explanation can be accepted. The following words of the Prophet (sws) also relate to this very foundation: ‘Divorce given in a state of rage is not to be legally enforced and neither is the decision to liberate a slave in such a situation’ (Abū Dā’ūd, No: 2193).

iii. If a person says that he has divorced his wife three times, then this can mean that he has in fact divorced her three times and this can also be a statement that portrays the severity and intensity of his decision. Since both these possibilities exist when these words are said, hence any explanation of the speaker regarding the meaning in which he used them should also be acceptable. However, this does not mean that if there exist evidence contrary to the explanation made that such an explanation be accepted. A court has full authority to reject such an explanation if it is not satisfied. Consequently, when ‘Umar (rta) observed that people were no longer careful in uttering the divorce sentence he declared that he would not even accept a statement of explanation from the husband and three divorces pronounced would be counted as three.11

The Directive of ‘Iddat

Sūrah T*alāq says that divorce should be given keeping in view the ‘Iddat (waiting period). At another place, the Qur’ān has explained that period of ‘Iddat is three menstrual cycles:

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ (٢: ٢٢٨)

And divorced women must keep themselves waiting for three menstrual cycles. (2:228)

In this verse, the Arabic word ‘قُرُوْء’ is the plural of ‘قَرْءٌ’. In Arabic, this word means both the ‘menstrual period’ and the ‘non-menstrual period’. While presenting his research on this word, Imām Amīn Ah*san Is*lāh*ī writes:

After much deliberation on the root of the word and its derived forms, I have come to the conclusion that its real meaning is that of ‘menstruation’. However, since every menstrual period is followed by a period of purity (طُهْر), the word is also used in this meaning. This is similar to the usage of words ‘day’ for ‘night’ and vice versa. Every language has such words.12

The word ‘قَرْءٌ’ in the opinion of this writer as well means ‘menstruation’ because in these verses the real issue is to ascertain whether a lady is pregnant or not. It is the ‘period of menstruation’ which actually ascertains this and not the ‘period of purity’. Moreover, women are asked to wait in this period and this waiting period can only be ascertained through the menstrual cycle because its beginning can be known with certainty.

In normal circumstances, the ‘Iddat period is three menstrual cycles; however, if a woman does not menstruate because of advancing age or in spite of reaching puberty13, then the Qur’ān has specified in Sūrah T*alāq that the ‘Iddat period would be three months. It has also been stated that the ‘Iddat period of a pregnant lady extends to childbirth. In Sūrah T*alāq, for women who do not menstruate because of old age, there also exists the condition of ‘إِنْ ارْتَبْتُمْ’ (if you are doubtful).  While explaining this condition, Imām Amīn Ah*san Is*lāh*ī writes:

It seems to me that the condition of إِنْ ارْتَبْتُمْ’ (if you are doubtful) is to differentiate between a lady who does not menstruate because of age but has had sexual intercourse with her husband and a lady in similar state but who did not have sexual intercourse with her husband. For if a lady who does not menstruate because of age has had sexual intercourse with the husband there might be a chance of pregnancy if her state was temporary for some reason. A same situation may arise for a lady who has not menstruated in spite of reaching the age and she has sexual intercourse with her husband … It is possible that the question may arise in the mind of a person that if this was the case, then why did the Qur’ān not explicitly state that the ‘Iddat of a lady who does not menstruate because of age and who has had sexual intercourse is three months. The answer to this question is that such a statement of the Qur’ān would not have pointed to the underlying reason of ‘Iddat – which was essential to be highlighted. This underlying reason is not merely the fact that whether a lady has had sexual intercourse or not: it is the doubt that she may be pregnant.14

يَاأَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمْ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا (٤٩:٣٣)

O you who believe! when you marry believing women, and then divorce them before you have touched them, no period of ‘Iddat have they for you which you can ask them to complete. (33:49)

The directives of ‘Iddat which are mentioned in the relevant verses of Sūrah T*alāq are:

Firstly, during ‘Iddat neither should a wife leave her house nor is the husband authorized to turn her out from her house. Living together might hopefully be beneficial for both and they might reconcile and thus save a family from breaking. The Qur’ānic words ‘لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَلِكَ أَمْرًا’ (You know not that God might thereafter create new circumstances) point to this very aspect. Further, a warning is sounded that the directives mentioned are the bounds set by Allah and any one who tries to exceed them would not harm Allah in any way; on the contrary, he would only harm his own well-being. It is not that the Almighty has set these bounds for His own benefit. It is for the welfare of His creation that He has set them forth; so any one who violates them only wrongs his own soul.

The only exception to the above directive is if the basis on which a divorce has been given is open lewdness which the Qur’ān has termed as ‘فَاحِشَة مُبَيِّنَة’. In the Arabic language, this expression implies fornication and other lesser forms of sexual contact. Obviously, in such a situation neither is it proper to demand from the husband to keep the wife in the house nor can the benefit be attained for which this directive had been given.

Secondly, it is stated that a husband should provide residence and maintenance to his divorced wife according to his status. After divorce, a husband can be very stingy in this regard. Consequently, he has been directed not to provide her in a manner that damages her self-esteem. He should provide according to his resources and the social status he is maintaining. It is further stated that in this period a husband should in no way try to make life difficult for his wife so that she is forced to leave her house herself.

It is obvious that after the pronouncement of the third divorce also, a husband shall be responsible to provide residence and maintenance to the divorced wife. The reason is that a lady accepts to remain in ‘Iddat only to ascertain whether she is the mother of his child or not. It is to protect his lineage that she undertakes this wait. The words ‘فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ’ (no period of ‘Iddat have they for you which you can ask them to complete) of the above quoted verse of Sūrah Ah*zāb clearly point to the fact that if there pregnancy is a possibility then observing the ‘Iddat is an obligation imposed on the wife from the husband. Indeed, after the third divorce, a husband does not have any right to revoke his decision and take back his wife; however, as a result of this, the only thing that can be revoked is their living together. In no way can the responsibility to provide her with residence and maintenance be revoked. Consequently, this is absolutely certain that whether ‘Iddat is three menstrual cycles, three months or extend to the birth of the child, a husband is liable to provide her wife with residence as well as maintenance.

Here some people may object to the above view of this scribe by presenting the case of Fāt*imah bint Qays. It is narrated that her husband Abū ‘Amr had already divorced her twice. Then when he was sent to Yemen with ‘Alī (rta), he sent her the third divorce pronouncement as well. During her ‘Iddat, when she demanded residence and maintenance, the relatives of the husband refused this demand. At this, she came to the Prophet (sws), who decided that she has neither the right to be given residence nor any maintenance.15

The above referred to narrative is quoted in some books of H*adīth, but it is evident from certain other narratives that when her case was presented before the Caliph ‘Umar (rta), he too refused her demand by saying that he could not accept the verdict of a lady which is against the Book of God and the Sunnah of his Prophet (sws).16 When in the time of Marwān Ibn H*akam, this case came into discussion for a third time, Ā’ishah (rta) severely criticized this narrative. Qāsim Ibn Muh*ammad inquired from Ā’ishah (rta): ‘Are you not aware of the case of Fāt*imah bint Qays’. She replied: ‘It is better if you do not mention her matter.17 In another narrative, Ā’ishah’s words are: ‘What has happened to Fāt*imah; does she not fear God.18 A third narrative is from ‘Urwah Ibn Zubayr. He says that Ā’ishah said: Nothing will benefit Fāt*imah if she narrates this H*adīth.19 In still another narrative, ‘Urwah says that Ā’ishah expressed her anger for Fāt*imah and said: ‘She was in an empty house where none whom she knew lived and hence the Prophet (sws), for her own protection, had directed her to change her residence.20

This is the real background of this narrative; hence, no one should consider it of worthy of any importance.

Besides the above mentioned directives, the Almighty has given a further directive in Sūrah Baqarah that no lady should try to conceal her pregnancy during her ‘Iddat. It has been indicated a number of times earlier in this article that the very directive to observe the ‘Iddat has been given for ascertaining whether a lady is pregnant or not. Consequently, it is an essential outcome of this directive and the Almighty has forcefully directed us to observe it:

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ وَلَا يَحِلُّ لَهُنَّ أَنْ يَكْتُمْنَ مَا خَلَقَ اللَّهُ فِي أَرْحَامِهِنَّ إِنْ كُنَّ يُؤْمِنَّ بِاللَّهِ وَالْيَوْمِ الْآخِرِ) ٢:٢٢٨)

And divorced women must keep themselves waiting for three menstrual courses. And it is unlawful for them, if they believe in Allah and the Last Day to hide what He has created in their wombs. (2:228)

 After Divorce

Once a divorce is actualized, one issue that can become a source of dispute is suckling of young children. In the under discussion verses of Sūrah T*alāq, the Almighty has said that if their mother is willing to suckle them, then the husband shall pay her for this service and this remuneration shall be ascertained through mutual consultation and in a befitting manner. If such an agreement is not reached between the parents, then according to the Qur’ān any woman can be asked to feed the children. It is also told that a rich person should spend according to his means and resources and a poor one according to his. Neither is it permitted for the rich person to deal with others in a manner that is below his status and neither should a poor person be burdened beyond his means. The Almighty holds a person responsible to obey His directives according to his capacity and status.

In Sūrah Baqarah, this directive has been mentioned in detail:

وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَنْ يُتِمَّ الرَّضَاعَةَ وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ لَا تُكَلَّفُ نَفْسٌ إِلَّا وُسْعَهَا لَا تُضَارَّ وَالِدَةٌ بِوَلَدِهَا وَلَا مَوْلُودٌ لَهُ بِوَلَدِهِ وَعَلَى الْوَارِثِ مِثْلُ ذَلِكَ فَإِنْ أَرَادَا فِصَالًا عَنْ تَرَاضٍ مِنْهُمَا وَتَشَاوُرٍ فَلَا جُنَاحَ عَلَيْهِمَا وَإِنْ أَرَدْتُمْ أَنْ تَسْتَرْضِعُوا أَوْلَادَكُمْ فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلَّمْتُمْ مَا آتَيْتُمْ بِالْمَعْرُوفِ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ (٢:٢٢٣)

And [after divorce also] mothers shall suckle their offspring for two whole years, for those who desire to complete the term. And the child’s father [in such a case] shall have to bear the cost of their food and clothing according to the norms. No one should be burdened beyond his capacity. Neither shall the mother be treated unfairly because of her child, nor the father on account of his child – and an heir shall be accountable in the same way – But if they both decide on weaning by mutual consent and after due consultation, there is no blame on them. And if you decide to engage someone else to suckle upon your offspring, there is no blame on you, provided you pay [the mother] in accordance with the norms [of the society] what you promised. But fear Allah and know that Allah sees well what you do.(2:223)

Imām Amīn Ah*san Is*lāh*ī, while summarizing the directives of suckling that these verses mention, writes:

i) It is the responsibility of a divorced lady to suckle her offspring for two full years in case the husband wants her to complete the total suckling period.

ii) During this period, it is the responsibility of the father to provide his divorced wife with food and clothing, keeping in view the norms of the society. In other words, the status of the husband, the needs of the divorced wife and her own status shall be kept in consideration while providing her this maintenance.

iii) Neither of the parties shall be burdened beyond their capacity. Neither the mother shall be harmed in any way by taking advantage of the fact that she is the mother of the child nor the father be unduly pressurized in any way on the pretext that he is the father of the child.   

iv) If the father of the child is dead, his heirs will be responsible for all the above mentioned rights and obligations.

v) If through mutual consent and consultation, the estranged husband and wife decide to terminate the suckling period before two years, they can do so.

vi) If the child’s father or, in his absence, the heirs of the child want to suckle the child from through some other lady instead of the mother, they are authorized to do so provided what has been agreed with the mother regarding her maintenance is fully honored.21

The second thing which can become a source of dispute is the husband’s attitude of hindering further marriage of his former wife. This attitude whether in the form of open forbiddance on his part or in the form of covert and stealthy schemes has been strictly prohibited by the Almighty in Sūrah Baqarah. He has counseled people that once a lady has been divorced, her former husband has no right to cause hindrance in any decision she makes. She has the liberty to marry wherever and whenever she wants. If her decision to marry is in accordance with the norms of the society, it cannot be objected to in any way. The Qur’ān uses the word ‘الْمَعْرُوف’ to convey this meaning. This word implies that though a man and a woman are totally free to take their decision, they must remember not to do anything that is against the norms of decency and which may damage the honour and repute of the former or future husband or of the family of the woman herself. The Qur’ān says:

وَإِذَا طَلَّقْتُمْ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَنْ يَنكِحْنَ أَزْوَاجَهُنَّ إِذَا تَرَاضَوْا بَيْنَهُمْ بِالْمَعْرُوفِ ذَلِكَ يُوعَظُ بِهِ مَنْ كَانَ مِنْكُمْ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ذَلِكُمْ أَزْكَى لَكُمْ وَأَطْهَرُ وَاللَّهُ يَعْلَمُ وَأَنْتُمْ لَا تَعْلَمُونَ (٢: ٢٣٢)

And when you have divorced your wives and they have reached the end of their waiting period, do not prevent them from marrying their future husbands if they have come to an agreement according to the norms [of decency]. These words of advice are given to every one of you who believes in Allah and the Last Day; this is more decent for you and more chaste. And [in reality] Allah knows, but you do not. (2:232)

While explaining the last part of the verse Imām Amīn Ah*san Is*lāh*ī writes:

These sound words of advice are being given to those who believe in Allah and the Last Day. In other words, those who have belief in Allah and the Last Day should follow what is being advised since this is the outcome of true belief. Such an attitude is more pure and seemly. If a lady is impeded in anyway to re-marry, this may result in great evils in the family and society. It is from here that back doors to clandestine relations and fornication are opened, eventually bringing great disrepute to those whose false pride induces them to obstruct natural emotions through worthless customs. The words ‘And Allah knows, but you do not’, at the end imply that man’s knowledge and vision is very limited. He cannot fully grasp the ups and downs of life; therefore, he should follow what the Almighty is directing him to do.22

Besides the above mentioned two issues, a third matter that can cause dissension between the divorced couple is the custody of children. The Sharī‘ah has not given any directive in this regard because this matter can only be decided keeping in view the welfare of the children and the circumstances of the parents, which of course vary a lot. However, those in authority can obtain a lot of guidance in this regard from the various cases decided by the Prophet (sws). Following is an account of some of them.

‘Abdullah Ibn ‘Umar (rta) narrates that a lady came to the Prophet (sws) and said: ‘For this son of mine, it is only my belly which was his abode, and my breasts which were his vessel and my lap which was his dwelling place. Now his father has divorced me and wants to take him away from me. The Prophet replied: ‘You are more entitled to keep him until you marry again’.23

Abū Hurayrah (rta) narrates that in his presence once a lady came to the Prophet. I heard her saying: ‘My husband wants to take away from me this child even though he has brought over water for me from the well of Abū ‘Anbah and given me a lot of benefit’. The Prophet replied: ‘Both of you can cast a lot on this’. [Upon hearing this], the husband said: ‘Who will quarrel with me regarding this son of mine’. The Prophet asserted: ‘O son! This is your father and this is your mother; grasp the hand of the one you want to hold’. The child grasped the mother’s hand and she took him away.24

(Translated from ‘Mīzān’ by Shehzad Saleem)







1. Dr Jawad Ali, Al-Mufas*s*al fī Tārīkhi’l-‘Arab Qabla’l-Islām, 2nd ed., vol. 5, (Beirut: Dāru’l-‘Ilm li’l-Malāliyyīn, 1986), p. 548

2. The meaning of this sentence as understood from other narratives in which this incident has been reported is that she did not like the looks of Thābit and that if in spite of that she persisted to live with him, she would not be able to follow the directives the Almighty has given a Muslim wife viz: being faithful to her husband and guarding her own chastity.

3.Bukhārī: No. 5273

4.Is*lāh*ī, Amīn Ah*san, Tadabbur-i-Qur’ān, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 533

5. Is*lāh*ī, Amīn Ah*san, Tadabbur-i-Qur’ān, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 539

6. Is*lāh*ī, Amīn Ah*san, Tadabbur-i-Qur’ān, 2nd ed., vol. 2, (Lahore: Faran Foundation, 1986), p. 271

7. Is*lāh*ī, Amīn Ah*san, Tadabbur-i-Qur’ān, 1st ed.,  vol. 1, (Lahore: Faran Foundation, 1986), p. 548

8. Is*lāh*ī, Amīn Ah*san, Tadabbur-i-Qur’ān, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 537

9. Bukhārī, No: 5251; Abū Dā’ūd, No: 2182

10. Abū Dā’ūd, No: 2196, 2206; Ibn Mājah, No: 2051; Tirmadhī, No: 1177, Musnad Ah*mad, No: 2383

11. Muslim, No: 2689

12.Is*lāh*ī, Amīn Ah*san, Tadabbur-i-Qur’ān, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 532

13. The Qur’ānic words are ‘وَاللَّائِي لَمْ يَحِضْنَ’. In the Arabic language the word ‘لَمْ’ is used to for total and strong negation. Hence the expression cannot connote those girls who have not started to menstruate; it can only connote girls who have not menstruated in spite of reaching the age.

14.Is*lāh*ī, Amīn Ah*san, Tadabbur-i-Qur’ān, 2nd ed., vol. 8, (Lahore: Faran Foundation, 1986), p. 442

15.Muslim, No: 2715; Abū Dā’ūd, No: 2290

16.Muslim, No: 2719

17.Bukhārī, Nos: 5321-2

18. Bukhārī, Nos: 5323-4

19. Bukhārī, Nos: 5325

20. Bukhārī, Nos: 5326

21. Is*lāh*ī, Amīn Ah*san, Tadabbur-i-Qur’ān, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 545

22. Is*lāh*ī, Amīn Ah*san, Tadabbur-i-Qur’ān, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 544

23. Abū Dā’ūd, No: 2276

24. Abū Dā’ūd, No: 2277

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