By Ibrahim B. Syed, New Age Islam
14 November 2016
Talaq-i-Bid'ah means innovated (or sinful)
form of Divorce. It is defined as a divorce which is pronounced thrice in one
sitting when the wife is in the state of purity (Tuhr), i.e., when man
says: "I divorce you, I divorce you, I divorce you." The Hanafis believe that though this form of
divorce is sinful and innovative, it is nevertheless valid and divorce will
take place. According to the Hanafis
when triple divorce is pronounced, the wife will become totally alienated from
the husband and he cannot remarry her.
She becomes Haram (totally prohibited) for him. Neither can he take her back nor can he go
for fresh Nikah with her. He can go for Nikah with her only after she marries
another person and that person divorces her on account of marital conflict or
she becomes a widow.
According to Maulana 'Umar Ahmad 'Usmani
this is the position of not only Abu Hanifa but also of Imam Malik and Shafi'i.
Imam Shafi'i says this form of divorce is perfectly valid. It is not innovation (Bid’ah). It is quite proper on the part of the husband
to pronounce such a divorce. No husband
can be prevented from adopting a valid course.
Even Imam Ahmad Hanbal's position is the same as that of Imam Hanifa and
Imam Malik. Thus it 'seems that all
major founders of four schools of jurisprudence accept the validity of triple
But Imam Taymiyyah has proved that Imam
Ahmad bin Hanbal had retracted from his earlier position of accepting the
validity of triple divorce and in a later period he used to say that when I
reflected on the Qur'anic position I came to the conclusion that it permits
only raj’i Talaq, i.e., divorce in which the wife can be taken back. He then took the position that even if someone
pronounces triple divorce it should be treated as one only. The husband thus
will have the right to take his wife back within the 'iddah period or go for
Nikah if the 'Iddah period has expired.
Imam Ahmad's companions and disciples also adopted this position.
Many companions of the Noble Prophet like
Ibn Abbas, Hazrat Ali, etc. also were of this opinion. Some have quoted
companions like Abdullah bin Mas'ud, Abdur Rahman bin'Auf and Zuber bin
al-Awwam also adopting this position. Ahl-e-Hadith also are of this opinion,
i.e., that triple divorce is not valid. The Ithna 'Asharis (i.e., twelve
Shi'as) and Imamiyas believe that if three divorces are pronounced together,
even one divorce does not take place, let alone three. Even some Hanafi jurists like Hajjaj bin
Artat and Muhammad Ibn Muqatil believe that if one pronounces three divorces,
no divorce will take place.
Maulana 'Usmani tells us that according to
Muhammad Muqatil one of the two opinions of Imam Hanifa was that only one
divorce will take place if three divorces are pronounced. Similarly according to Imam Tilmisani Imam
Malik also held the opinion that only one divorce takes place if three divorces
are pronounced. Usmani also quotes from
Hafiz Ibn Hajar's Fath al-Bari to the effect that many eminent jurists held
that if one pronounces three divorces, only one take place.
From among the 'Ulema of later period,
Sheikh Shaltut, who was Sheikh al-Azhar, writes in his Fatwa that if one gives
three divorces, only one divorce Talaq-i-raj'i will take place and the husband
will have the right to take his wife back by saying so or by having sexual
contact with her. Another prominent
'Alim 'Allama Rashid Rida' in his Tafsir al-Manar (Vol. IX, p. 683) has
expressed a similar opinion. Another contemporary eminent, Arab 'Alim Shaikh
Jamal al-Din al-Qasim has discussed this problem at great length in his book
al-Istinas and has concluded that triple divorce has no validity and it should
be treated as one divorce only. Quoting
all these authorities Maulana 'Usmani says that triple divorce is not in
keeping with the rulings of the Qur'an.
After quoting all these authorities Maulana
'Usmani discusses the whole issue in the light of the Noble Qur'an. He refers to the Qur'anic verse 2: 229-30,
which begins with Al-Talaqu Marratan, i.e., divorce may be pronounced
twice. He says the word marratan implies
a gap between two pronouncements (all Hanafi jurists accept this), which means
there should be a large enough time-gap between the two pronouncements of
divorce. Marratan (twice) itself carries
this sense. When we say "I went to
your house twice but you were not there" cannot mean one went to his house
twice in one go but after some reasonable gap of time. Once he went, he was not there, then again he
went, he was not there. Thus the act of
going had to be accomplished in two different periods of time. 'Usmani then quotes other verses of the
Qur'an where the word marratan occurs and explains that everywhere it implies a
gap of time in between.
The question is despite triple divorce
being sinful, innovative and against the Qur'an will it occur if someone
pronounces triple divorce? The second question is did anyone make such mistake
(of pronouncing triple divorce) in Prophet's (pbuh) time and did he accept it as
triple divorce? Or did he take it to be one divorce only? Lastly, when would
the practice of triple divorce start again?
In the Qur'an, Nikah is described as Misaqan
Ghaliza, i.e., strong bond and has explained how and with whom one can
enter into this strong bond and this strong bond cannot be dissolved without
proper reason and method. It certainly
cannot be dissolved whimsically. A man
has to pass through different stages to bring about reconciliation either by
persuading his wife to behave properly, or by appointing arbitrators as per
Qur'anic injunctions (4:35). If all this
fail only then recourse can be taken to divorce. Thus, according to the Qur'an, divorce is not
an arbitrary and whimsical thing. The
method prescribed by the Qur'an for divorce is that one can give divorce twice
only, i.e., on two different occasions and then either he has to keep the woman
with kindness or leave her with benevolence.
In pre-Islamic Arab society they used to pronounce divorce even one
thousand times and keep the sword of divorce hanging on her head. The Qur'an disallowed it and permitted
pronouncement of divorce only twice.
The Maulana says that even giving divorce
in three periods of purity (pronouncing divorce once in every period of purity
thrice is also not proved by the Qur'an and is thus prohibited. Once Talaq is pronounced once, it
takes place and woman goes out of marital bond at once and is now free to marry
other man after completing the period of 'Iddah. Why then pronounce Talaq more than once? For what reason? Repeating the word more than
once is just absurd, says the Maulana.
Talaq should not be pronounced more than once in any case.
He then takes up the second
question-whether anyone had divorced thrice in the Prophet's period? And did he accept it? He then quotes from Sahih Muslim, Imam Abu
Da'ud, etc., to show that during the Noble Prophet's time, during Hazrat Abu
Bakr's time and for two years during Hazrat 'Umar's time three divorces given
at a time were taken as one divorce only.
But after two years of his Khilafat period Hazrat 'Umar again enforced
it (i.e., triple divorce) as people were misusing it and there were several
Maulana 'Usmani quotes from Musnad Ahmad
Ibn Hanbal that once Rukanah pronounced three divorces against his wife but
later he was very sorry for it. When the
Prophet (pbuh) asked him, How did you divorce your wife? Rukanah replied that
he had pronounced three divorces. The Prophet asked, Did you pronounce it in one
sitting? When he said, Yes, the Noble Prophet said, Treat it as one divorce
only and if you want you can take your wife back. And Rukanah took his wife back.
This hadith of the Prophet narrated by Ibn
Abbas is found in Sahih Muslim, Sunan Abu Da'ud and other authentic collections
of Hadith literature. No one has
questioned its authenticity pertaining to marriage, divorce, inheritance or
custody of children. In certain respects
his views on the treatment of women differs radically from other traditional
jurists. Also he bases his views entirely
on the Qur'an and hadith, nothing else and comes to entirely different
conclusions from many other noted traditional jurists. The Maulana has written his magnum opus Fiqh
al-Qur'an in eight volumes. The book
which is written in Urdu is a veritable treasure of Islamic jurisprudence
though it is written in a traditional style and full of repetitions.
Maulana 'Usmani points out that Hazrat
'Umar had enforced triple divorce as triple divorce and it had become law. It
is within the power of the caliph of the time to enforce certain ordinances in
view of the prevailing situation, or to meet some crisis situation and no one
can question it. It is, therefore,
possible that Ibn Abbas might have given a fatwa accepting triple divorce after
Hazrat 'Umar enforced the ordinance. The
original hadith, accepting three divorces as one, therefore, is not affected,
maintains 'Umar Ahmad 'Usmani. Thus it
is proved by this hadith that during the time of the Noble Prophet triple
divorce, if pronounced by someone, was accepted as one divorce only.
Then the Maulana takes up the third
question- when did the triple divorce begin to be accepted as three
divorces? It is well know that Hazrat
'Umar, after the initial two years of his Khilafat, had enforced triple divorce as triple divorce and no one
will be permitted to take his wife back
after pronouncing three divorces in one go.
To substantiate his point the Maulana refers to the noted Egyptian
historian Muhammad Husain Haykal's book 'Umar al-Farouq in which the author
says that 'Umar made such an Ijtihad (interpretation) in what is well
established Qur'anic injunction in 2: 229-30 (Divorce is twice … which we have
discussed in detail above) that until today we are opposing him in this matter. The Qur'an requires all attempts for
reconciliation before a divorce (4:35)
Then Maulana 'Umar Ahmad further quotes
from Haykal's book to show why Hazrat 'Umar was constrained to enforce triple
divorce despite the Qur'anic injunction contrary to it. Muhammad Haykal says that when the Arabs
conquered Iraq, Syria, Egypt, etc., the women prisoners from these regions were
brought to Mecca and Medina. These women
were very attractive and charming and the Arabs were captivated by their charm and
wanted to marry them. But these women
insisted on the men giving irreconcilable divorce to their former wives. To satisfy them they would pronounce triple
divorce and pretend to having divorced their wives for good.
Maulana 'Umar Ahmad 'Usmani and Women's Rights in The Qur'an, Women and
Modern Society, Asghar Ali Engineer, Select Books, India, 1999
India born Dr Ibrahim B. Syed is a doctor in nuclear medicine sciences
from john Hopkins University and is is a founder and president of the Islamic
research foundation international inc., Louisville. He contributed this article
Age Islam, Islam Online, Islamic
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facing the Muslim community today is very simple:
Are they going to probe the Qur'an and understand it in its own right as it
enjoins or they must read the Qur'an wearing the glasses of the medieval
scholars no matter how distinguished. The latter path will not only bring
triple Talaq within the ambit of Islam but also accommodate such patently
anti-Qur'anic / pre-Islamic customs as rajm (stoning to death for adultery),
capital punishment for apostasy, extreme mobility restriction and head to
toe-veiling for women, sex-slavery and so forth. Islam will then be reduced to
a Medieval misogynist cult. But that will be the historical Islam - Islam as
shaped by history.
The true or pristine Islam is encapsulated and preserved in the Qur'an. Its
message repudiates, among other historically evolved customs, triple tallaq.
The Qur'an's rulings on 'Talaq' are detailed in the following article - the
caption of which speaks for itself:
Qur’anic Sharia (Laws) On Divorce: Triple Divorce, Temporary Marriage,
Halala Stand Forbidden (Haram)