Divorce is twice... then it is they who are wrongdoers.
If a man decides to separate from his wife or such a situation arises whereby living together may become harmful, or in case the spouses fail to develop an understanding, there is a definite course of action for dissolution of the marriage. The contract of marriage has specific terms and conditions: (1) not every man can marry every woman rather there are rules according to which certain men and women cannot marry each other (2) two witnesses must be present, for without witnesses marriage is invalid even if, for the rest of their lives, no one from the couple denies it. (3) The announcement of marriage is also a Sunnah. According to the jurists of Fiqh, marriage is a contract having the status of worship, and Quran and the Sunnah bear witness to it.
Just as the marriage contract is conducted in a prescribed manner, so is there a definite rule for its termination due to any reason, as explained in this Ayah. The dissolution of a marriage not only affects the two parties but also there is a possibility of the children being adversely affected; and sometimes it results in family and tribal feuds, affecting the entire society. That is why Islam emphasises on marriage as a lifelong partnership, and in case of differences encourages an amicable solution by mutual understanding and arbitration. By appointing one mediator from each side it is ensured that the matter neither remains restricted between the couple nor does it go outside the affected families. But sometimes all these efforts fail and the continuation of marriage may lead to more bitterness and conflicts.
Islam therefore, lays down a code of dissolving the marriage gracefully unlike the ungodly religions, which do not permit the marriage to break at all. The right to divorce has been given to man, as by nature he has more tolerance, forbearance, prudence and deliberation than a woman. And because a woman gets influenced easily, her impulsiveness could have made the right to divorce as a mere game. At the same time, Islam does not allow that a woman may remain subjugated and helpless for the rest of her life and forced to bear the foul treatment of her husband. She has been given the right to file a suit in a Shari’ah Court and lead evidence for the annulment of marriage. Although man has been freely given this right, yet the Holy Prophet-SW has observed: “Of all the lawful acts, divorce is the one most disapproved by Allah-SWT .” Therefore, this right must not be exercised in anger or in impulsive haste. Neither should the wife be divorced during her menstruation, nor during that clean period in which the couple had conjugal relationship, as this would prolong the waiting period to her discomfort. Besides, marriage cannot be annulled at once, like other contracts that the contract is cancelled and the parties go free immediately. There are three stages in the form of three independent pronouncements followed by the waiting period during which neither the woman can remarry nor the man gets free of certain obligations. In case of one or two pronouncements the marriage is not dissolved immediately but remains valid till the completion of waiting period. If during the waiting period the couple resort to reconciliation, the marriage remains intact but this concession is only permitted when the divorce is pronounced once or twice. If this is done three times, the right to reconcile is abolished. And if the couple wish to remarry they cannot do so unless the woman is married to another man, and her second marriage is lawfully terminated after consummation and the lapse of the waiting period. This Ayah explains the law that the “divorce is twice”, and that marriage is not dissolved right away. The man has the right to retain his wife in the wedlock within the waiting period or else the divorce will automatically become irrevocable.
“Either retaining her honourably or releasing her kindly" means to take her back in love and amity, or to let her go finally but in any case to be honourable and kind. The reunion should neither be to disgrace or humiliate her nor should he demand any money from her for release. On the other hand it is enjoined upon men not to demand what they had already given to their wives i.e., dower or gifts. Divorce itself creates bitterness and if substantiated with such demands will add to the acrimony. However, in this too there is an exemption. If the woman feels that she will not be able to fulfil her duties towards her husband and thereby will violate Allah-SWT’s Laws, and the man feels that the continuation of marriage in a decent way is no longer possible, there is no harm if the man divorces her with the condition that she returns or forgoes the dower. All these are neither mere temporal matters nor only a source of satisfying one’s emotional desires, rather these are the bounds of Allah-SWT.Adhering to them is an act of worship, while trespassing them is a great violation. Those who press these limits are termed here as transgressors.
If a person pronounces the third, the irrevocable divorce, that woman shall no longer be lawful for him unless after the expiry of the waiting period, she marries another man, this second marriage is consummated, she is then either divorced or the husband dies and she completes the prescribed waiting period. Now she can remarry the first husband provided both are sure that they shall guard the bounds of Allah-SWT and will be able to live a married life amicably. This condition is added to the law to discourage divorces on impulse, and those who have the knowledge understand very well that these Divine Injunctions are the most appropriate ways of life.
The Quran, Hadith and the practice of the Companions-RAU pertaining to divorce clearly reveal that where there is no alternative except the divorce, the husband should pronounce the sentence once during Tuhr (interval between periods) and let the divorce become absolute by expiry of the waiting period. Even if he adds another pronouncement during the next Tuhr, which is indicated by the term, Attalaq-o Marratane (divorce is twice) as distinct from Attalaq-o Talaqane (divorces are two) and does not reunite with his wife within the waiting period, the marriage will be dissolved. In both these cases if they wish to reunite in marriage again it will be permissible, but if the third divorce is pronounced then the only form of reunion is as discussed in the preceding paragraph.
Divorcing thrice simultaneously is not appropriate. It is against the purpose of Islamic Shari’ah and is a grave sin. Nevertheless the divorce becomes effective, just as assassinating anyone or plundering another is a sin, but the victim ends up dead or robbed respectively.
During the era of the Holy Prophet-SW, such incidents did take place and in-spite of disliking it, he enforced the divorce. There are many reference books available on this topic. The notion that during the Holy Prophet-SW’s and Hadhrat Abu Bakr-RAU’s times, three simultaneous pronouncements of divorce were considered as one is not correct. In one incident, a Companion named Rakana-RAU divorced his wife using the word Albtatah, which was commonly used for three divorces but did not literally mean three. He-RAU pleaded before the Holy Prophet-SW that he-RAU had only meant one divorce and that indeed was his intention. Some books of Hadith have it that he-RAU had divorced thrice, but Abu Davud has taken the stance that Hadhrat Rakana-RAU had divorced using the word Albtatah. As the word was a connotation of three divorces, the narrator of the incident reported it as such. However, all agree on the fact that the Holy prophet-SW took an oath from him-RAU and he swore that he-RAU did not intend three pronouncements. This also proves that he-RAU had not uttered clear cut words announcing three divorces otherwise there would have been no question of intentions. Thus the Holy Prophet-SW declared it as one divorce. Therefore, it became a rule that if the intention was to divorce once but the words uttered were such which insinuated three, or out of simplicity the word for divorce is repeated over and over again for emphasis, the husband will have to take an oath that he actually meant one divorce. It would then be accepted as one.
During Hadhrat Abu Bakr-RAU’s Caliphate and in the first two years of Hadhrat ‘Umar Faruq-RAU’s time, this remained the practice. But when Islam spread to far off lands and many people converted to it, the level of honesty and piety could not remain the same as attained in the company of the Holy Prophet-SW. And according to predictions of the Holy Prophet-SAV it was to diminish further. Hadhrat ‘Umar Faruq-RAU’s, in order to prevent the misuse of this concession, and in consultation with other Companions-RAU decreed that if a person would simultaneously divorce his wife thrice it would be taken as three and the pretext of intention would not be acceptable any longer. This indeed was a decision of great farsightedness.
The Companions-RAU were all well acquainted with the propensities of the Holy Prophet-SW. Their consensus on any matter is, therefore, a code of Shari’ah. It is, therefore, an enormity to depose that the Holy Prophet-SW had declared three divorces as one and Hadhrat ‘Umar-RAU altered it. Why did all the Companions-RAU agree with him-RAU? They were the very people who spread the Holy Prophet-SW’s Message to the expanses of the world and enforced Shari’ah. They only restrained people from misusing a concession granted by the Holy Prophet-SW, which was, and is, absolutely proper. Besides, this is a matter of Fiqh and a detailed discussion is not intended here, for which relevant books may be consulted.
If he divorces her finally... which He-SWT explains for people who know.
When the waiting period of a woman given a revocable divorce is about to end, the husband has the right to take her back or to let the marriage be dissolved. But in both cases the word “honourably” is used i.e. that the matter be handled according to the Islamic law and with grace. If he decides to take her back, he must cleanse his heart of all anger and malice and resolve to live happily in future. He should not do so merely to disgrace or humiliate her. It is enjoined (in Surah At-Talaq) that if he decides to retain his wife two reliable witnesses must be present to guard against any future denial of the event by the twain. These two witnesses shall testify the event in order to avoid any conflict. But if he does decide to part with her finally, that too should be done gracefully and the money or any other thing given to her in the past is not to be demanded back. On the contrary, she should be given something as gift because she has certain rights.
And when you have divorced your ... Allah-SWT has full knowledge of everything.
If the marriage has been consummated, and the dower has not been paid yet it must be paid in full, otherwise the husband has to pay half the money. The husband must allow her to stay at his place until the completion of her waiting period and bear her expenses. At the time of her departure she should be given something as a goodwill gesture, so that she too does not feel degraded neither the two families turn hostile. Failure to do so will not only disgrace the lady but would also cause much distress to many hearts, for which the husband shall be held responsible. Above all he will also earn the annoyance of Almighty Allah-SWT and His-SWT Prophet-SW; which is a great loss in the eternal life. It must, therefore, be remembered that the laws of Allah-SWT are not to be trifled with.
Do not turn this injunction into child’s play. During the era of Ignorance, men would divorce their wives, or free their slaves and later retrieve from such statements. They would argue that it was only a job, without any intentions of doing so. Allah-SWT prohibited joking in such affairs and decreed that divorce will take place even if pronounced jokingly.
According to Hadith, there are three matters which even if done jokingly stand enforced, (1) divorce, (2) freeing of slaves and (3) marriage bond. If a man and woman in the presence of witnesses, even as a joke, accept one another as husband and wife the marriage will take place; and if a slave is told in a joke that he is free, he will stand freed.
All the above discussion has been presented from a different angle, that the believers must remember the Favours of Allah-SWT and recount His-SWT Blessings. He-SWT blessed them with His-SWT Book, full of wisdom and knowledge, revealed to the Holy Prophet-SW. It is unfair to return His-SWT Favours with disobedience, by making His-SWT Laws a laughing stock. His-SWT Awe must always prevail and it must be remembered that He-SWT is fully Aware of not only the conduct but also of the thoughts and intentions in the bosom. He-SWT knows the hearts, which cherish His-SWT Blessings and those who ignore them. Therefore, behave in such a manner that the end results of your actions do not lead you to any embarrassment or trouble.