Rules Pertaining to Divorce and Separation

TALÂQ – DIVORCE

(From Beheshti Zewar)

1. If a husband who is mature, not a lunatic nor a mad person divorces his wife, the divorce will come into effect. As for the husband who is not mature, who is not in his senses, or is mad, by his divorcing his wife, the divorce will not come into effect.

2. A sleeping person uttered the following words: “You are divorced” or he said: “I divorce my wife.” On uttering these words, divorce does not come into effect.

3. A person compelled another person to divorce his wife. He beat him and threatened him that if he does not divorce his wife, he will kill him. Because of this compulsion, the person divorced his wife. Even then divorce will take place.

4. A person was under the influence of alcohol or any other intoxicant and divorced his wife. When he came to his senses, he regretted this action of his. Even then divorce will take place. Similarly, talâq given in anger also causes divorce to take place.

5. Apart from the husband, no one has the right to divorce a woman. However, if the husband orders someone to divorce his (the husband’s) wife, this person can divorce her.

 

Divorcing a Person

1. Only the man has the right to divorce. Once the man divorces his wife, the divorce comes into effect. The woman has no choice in this irrespective of whether she accepts the divorce or not. In all cases, the divorce comes into effect. The wife cannot divorce her husband.

2. The man has the right of issuing three talâqs only, and not more. If he issues four or five talâqs even then only three will be considered.

3. Once the man utters: “I divorce my wife”, and utters these words in such a tone that he himself can hear these words, divorce comes into effect. This is irrespective of whether he uttered them in private or in public, and whether his wife heard him uttering these words or not. In all cases, divorce takes place.

4. Divorce is of three types:

The First Type: Is that the nikâh is completely annulled and it is not permissible to live with the man without renewing the nikâh. If the woman wishes to stay with this man again, and the man also agrees to keep her, they will have to have their nikâh performed again. Such a talâq is known as talâqul bâ’in.

The Second Type: Is that if the husband and wife wish to remarry, then after completing the ‘iddah for the first divorce, she will have to marry another person. When he divorces her, she will have to complete the‘iddah for this second divorce. Only then will it be permissible for her to remarry her first husband. Such a talâq is known as talâqul mughallazah.

The Third Type: Is that the nikâh has not broken as yet. If the husband divorces his wife by uttering the words of divorce one or two times and thereafter regrets his action, it will not be necessary to renew thisnikâh. He can live with this wife without performing another nikâh and it will be permissible for them to live as a normal couple. However, if the man divorced her and maintained this divorce of his, i.e. he did not regret his action nor did he decide to continue living with his wife, then the moment the ‘iddah of talâq expires, the nikâh will break and the woman will be separated from her husband. As long as the ‘iddah does not expire, the man has the choice of either keeping his wife or not keeping her. Such a talâq is known as talâqur raj’î. It should be borne in mind that if the husband issues three talâqs, he will not have the choice of keeping his wife.

5. There are two ways in pronouncing or issuing the talâq.

The First Way: Is that the husband clearly utters: “I divorce you” or “I divorce my wife.” In other words, he issues the divorce in such clear words that there is no possibility of taking any other meaning from these words. Such a divorce is known as talâq-e-sarîh.

The Second Way: Is that the husband does not utter the words of divorce clearly. Instead, he speaks in very vague terms from which divorce could be deduced and from which some other meaning could also be taken, e.g. the person says: “I have distanced you from me.” From this, it could be deduced that he said: “I divorce you” or “I have not divorced you, but I will not keep you with me. Remain with your parents. I will not even bother about you.”

Alternatively, he could have said: “I will have no contact with you.” “I have no need for you.” “You have been separated from me.” “I have separated you from me.” “I have separated you from my house, go away.” “Get out.” “Go far from here.” “Go away to your parents.” “Go away to your house.” “I will not accommodate you any longer.”

Uttering any of the above words or other words similar to these, in which there is the possibility of several meanings is known as talâq-e-kinâyah.

6. If the divorce is issued in clear terms, divorce will take place the moment the words are uttered. This is irrespective of whether one had the intention of divorcing his wife or not, or whether he issued the divorce jokingly. When a divorce is issued in clear terms, the third type of divorce will take place. That is, the husband has the choice of keeping or divorcing his wife until just before the expiry of her ‘iddah. By uttering the divorce once, only one divorce will come into effect – not two nor three. However, if he utters the divorce three times, or says: “I give you three talâqs“, three talâqs will take place.

7. A person issued one divorce. As long as the wife is in her ‘iddah, he has the right to issue her a second or a third divorce. If he issues a second or third divorce, it will be valid and come into effect.

8. A person says: “I will divorce you.” Divorce will not take place. Similarly, if he says: “If you carry out a particular action, I will divorce you.” Divorce will not take place irrespective of whether she carries out the action or not. However, if the person says: “If you carry out a particular action, you are divorced”, then once she carries out the action, divorce will take place.

9. A person uttered the divorce and at the same time said: “’Inshâ’ Allah”. Divorce will not take place. Similarly, if he says: “If Allah wills, I divorce you” divorce will not take place. However, if the person uttered the divorce, waited for a while and thereafter said “’Inshâ’ Allah”; divorce takes place.

10. A person called his wife and addressed her as a “divorcee”. Divorce will take place even if he says this jokingly.

11. A person says: “When you go to Lucknow (or any other place which he mentions), you are divorced.” As long as she does not go to Lucknow, divorce will not take place. Once she goes there, divorce will take place.

12. The person did not clearly state the words of divorce. Instead, he issued the divorce in vague words and terms. If at the time of uttering these words, he had the intention of issuing divorce, divorce will take place. In such a case, the first type of divorce will take place, i.e. talâqul bâ’in. Now it will not be permissible for him to keep his wife without renewing the nikâh. If the person did not utter these words with the intention of talâq and instead had some other meaning in mind, talâq will not take place. However, if it is learnt through some evidence or indication that he had in fact intended divorcing her and that he is lying, then in such a case the woman should not live with him and she should regard it as if she has been divorced. For example, the wife comes angrily to her husband and says: “I cannot live with you any more. Divorce me!” And the husband replies: “Okay, I leave you.” In such a case, the woman must consider this to be a divorce.

13. A person says: “I divorce you, I divorce you, I divorce you.” Three divorces will take place. Alternatively, he divorces her three times, but in very vague terms. Even then, three divorces will take place. However, if the person had only intended one divorce but had uttered it three times in order to emphasize his point, only one divorce will take place. However, the woman does not know his intention. She should therefore regard it as three divorces.

 

Divorce prior to the bride’s departure from her parent’s home

Before the bride could even go to her husband’s home, he divorced her. Alternatively, she went to her husband’s home but they did not meet in privacy or seclusion which could be considered to be valid in the Sharî‘ah. This privacy or seclusion was explained in the chapter on mahr. Before they could meet in privacy and seclusion, the husband divorced her. In such circumstances, talâqul bâ’in will take place irrespective of whether the divorce was uttered in clear words or in vague terms. When such a woman is divorced, talâqul bâ’in will take place and she does not have to complete any ‘iddah. Immediately after being divorced, she can marry another person. Furthermore, after issuing one divorce to such a woman, the man does not have the right or choice of giving a second or third divorce. If he does so, it will not apply. However, if in the first time, he says: “I give you two divorces, or, three divorces”, two or three divorces will take place. If he says: “I divorce you, divorce you, divorce you”, even then one divorce will take place with regard to such a woman.

 

Divorce after the bride’s departure from her parent’s home

After the bride’s departure from her parents’ home, the bride and bridegroom met in privacy and also engaged in sexual intercourse. Thereafter, if the husband issues one or two divorces in clear terms, talâqur raj’î will take place. If he utters the divorce in vague terms, talâqul bâ’in will take place. In talâqur raj’î he will have the choice of going back to his wife, while in talâqul bâ’in he will not have the choice. However, if he did not issue three divorces, they can re-marry within her ‘iddah (if both of them wish to remarry) and after the expiry of the ‘iddah as well. But if she wishes to marry another person, she can do so only after the expiry of her ‘iddah. But it should be borne in mind that the ‘iddah is necessary in all forms of divorce. As long as the ‘iddah has not expired, a second or third divorce can also be issued.

The bride and bride groom met in privacy and there was nothing to stop them from engaging in sexual intercourse (i.e. nothing from the Sharî‘ah point of view, or from a physical aspect). Despite this, they did not engage in sexual intercourse. In such a case, if the husband divorces his wife, talâqul bâ’in will take place irrespective of whether the divorce is uttered in clear terms or in vague terms. The ‘iddah will also be wâjib on the woman, he will not have the right of taking her back, and she cannot marry another person without completing her ‘iddah. However, she can marry the husband who divorced her within the ‘iddah or even after the expiry of the ‘iddah. The only condition is that three divorces must not be issued.

 

Issuing Three Talâqs

1. If a man issues three divorces to his wife, she becomes completely harâm for him. Even if they renew their nikâh, it will be harâm for this woman to live with him. This nikâh will not be valid irrespective of whether the three divorces were issued in clear terms or in vague terms. If a woman who has been issued three divorces wishes to live with her first husband and wishes to remarry him, there is only one way in doing this. That is, she will have to marry another person, engage in sexual intercourse with him, and when he dies or divorces her, she must complete her ‘iddah. Upon completing her ‘iddah, she can remarry her first husband. Without marrying a second person, she cannot remarry her first husband. If she marries a second person, but he passed away before he could engage in sexual intercourse with her or divorced her before engaging in sexual intercourse with her, then this will not be considered. She can only marry her first husband when her second husband has intercourse with her. Without this intercourse, she cannot remarry her first husband. Understand this well.

2. There are different ways in issuing three divorces. One is that the person issues them at one time, e.g. he says: “I give you three divorces” or “I divorce you, I divorce you, I divorce you.” The second way of issuing three divorces is to issue them over a period of time, e.g. he issues one today, another one tomorrow, and the third one the day after tomorrow. Alternatively, he issues one divorce this month, another the following month, and a third divorce in the following month. However, all these are issued within her ‘iddah. The same rule will apply to all the different forms of issuing the talâq. The right or choice to keep one’s wife only remains when a person issues one or two divorces in clear terms and not three. Once he issues three, he has no choice or right to keep his wife.

3. A person issued a talâqur raj’î to his wife. Thereafter he decided to keep his wife. After a few years he became angry over some matter and therefore issued another talâqur raj’î (in which he has the right of keeping his wife). When his anger subsided, he decided to keep his wife and did not let her go. These divorces that he issued will be counted as two divorces. If, at some time or the other, he issues one more divorce, it will total three divorces. Once this occurs, the rules that have been mentioned in mas’ala number one will apply over here as well. That is, she cannot remarry this husband of hers unless she marries another person first.

Similarly, if a person issues a talâqul bâ’in (in which he does not have the right to keep his wife), the marriage will be annulled. Thereafter, he regretted his action and both of them decided to remarry. After some time, he became angry with her again and issued a talâqul bâ’in. After his anger subsided, he remarried her. He thus issued two divorces. If he issues one more divorce, the rule mentioned in mas’ala number one will apply. That is, he cannot remarry her unless she marries another person first.

4. If the woman marries another person on the condition that he would divorce her after engaging in sexual intercourse with her, this person is not bound to fulfil this condition. He can divorce her if he wishes or keep her if he wishes. Furthermore, he can divorce her whenever he wishes – he is not bound by any time limit. It should be borne in mind that it is a major sin and harâm to marry on such a condition or promise. One is cursed by Allah Ta‘âlâ. However, despite this, the nikâh will be valid. If such a nikâh takes place, the second husband has intercourse with her, and thereafter passes away or divorces her, it will be permissible for her to remarry her first husband.

 

Conditional Divorce

1. Prior to marrying a woman, a person said: “If I marry you, you are divorced.” If the person happens to marry this woman, one talâqul bâ’in will take place the moment the nikâh is performed. Now, he cannot keep her without remarrying her. If he said: “If I marry you, you are divorced two times”, two talâqul bâ’in will take place. If he issued three divorces, three will take place and it will be talâqul mughallazah.

2. A person made the condition of divorce prior to marriage. The moment the nikâh was performed, divorce took place. He then remarried the same woman. By remarrying her, another divorce will not take place. However, if the person made the condition in the following way: “Each time that I marry you, you are divorced”, then each time that he marries her, divorce will take place. Now, there is no way in which he can keep this woman. Even if she marries another person, separates from him, and thereafter remarries the first person, divorce will still take place.

3. A person says: “Whichever woman I marry, she is divorced.” Based on this, whichever woman he marries, divorce will take place. However, once divorce takes place between him and a woman and he decides to re-marry her, divorce will not take place this second time.

4. A person addressed a woman whom he had not married as yet saying: “If you carry out a certain action, you are divorced.” Such a condition is not considered. If he marries her and she carries out that action, divorce will not take place. This is because there is no way a person can divorce a woman who he has not even married except by saying: “If I marry you, you are divorced.” Divorce cannot take place in any other way if the woman is not married to him as yet.

5. If a person addresses his wife saying: “If you carry out a certain action, you are divorced.” “If you come near me, you are divorced.” “If you enter this house you are divorced.” Alternately, he threatened to divorce her on some other condition. In all these cases, if she carries out that action, divorce will take place. As long as she does not carry out that action, divorce will not take place. In all these cases, talâqur raj’î will take place, in which the husband has the right to keep his wife without having to renew the nikâh. However, if the person spoke in vague terms, talâqul bâ’in will take place. For example, he said: “If you carry out a certain action, there will be no relation between me and you.” Once she carries out the action, talâqul bâ’in will take place. This is on the condition that when the man uttered these words, he intended divorcing her.

6. If he says: “If you carry out a particular action, you are divorced two times, or three times”, divorce will take place according to the number that he specified.

7. A person said to his wife: “If you enter this house, you are divorced.” She entered the house and divorce took place. However, within her ‘iddah, he decided to keep her or he remarried her. Now if she enters the house, divorce will not take place. However, if he said: “Each time that you enter this house, you are divorced” or “Whenever you enter the house, then each time you are divorced”, then in such a case if she enters the house within her ‘iddah or after remarrying her, a second divorce will take place. Thereafter, within her ‘iddah or after remarrying her, she entered the house for a third time. A third divorce will take place. After this third divorce, it is not permissible for him to remarry her. However, if she marries another person, after separating from him, remarries her first husband, and then enters the house, divorce will not take place.

8. A person said to his wife: “If you carry out a certain action, you are divorced.” Before she could carry out that action, he divorced her and separated from her. After some time he remarried the same woman. After marrying her she carried out that action which he had warned her against during their previous marriage. In carrying out this action, divorce will take place. However, if the woman carried out that action after her first divorce and after completing her ‘iddah, but before remarrying him, then by carrying out that action after remarrying him, divorce will not take place. But if she carries out that action after the divorce but within her ‘iddah, a second divorce will take place.

9. A person said to his wife: “If you experience hayd, you are divorced.” Thereafter she saw some blood. Upon seeing the blood, we will not pass judgement of divorce. Instead, when she bleeds for three days and three nights, only then will we say that divorce has taken place from the time that her bleeding had commenced. But if the person said: “If you experience one hayd, you are divorced”, divorce will take place on the completion of her hayd.

10. A person said to his wife: “If you fast, you are divorced.” The moment she commences her fast, divorce will take place. However, if he says: “If you keep one fast or if you fast for the whole day, you are divorced”, then divorce will only take place on the completion of the fast. If she breaks her fast, divorce will not take place.

11. The wife decided to go out of the house. The husband said: “Don’t go now.” She did not pay any heed to him. Upon this, the husband said: “If you go outside, you are divorced.” The ruling in such a case is that if she goes outside at that very time, divorce will take place. But if she goes outside later, divorce will not take place. This is because, when the husband stopped her from going outside, he meant that she should not go now, and does not mean that she must not go outside for the rest of her life.

12. A person said: “The day on which I marry you, you are divorced.” Thereafter, he married her at night. Even then, divorce will take place. This is because in our normal conversation this means when I marry you, you are divorced.

 

Divorce issued by the Sick

1. While a person was sick, he divorced his wife. Prior to the expiry of her ‘iddah, he passed away. This wife of his is entitled to receive her share of inheritance from the wealth of her husband. This is irrespective of whether he issued one divorce, two or three divorces. And irrespective of whether he issued talâqur raj’î or talâqul bâ’in – she is still entitled to receive her share of the inheritance. If the husband dies after the completion of her ‘iddah, she will not receive any inheritance. Similarly, if the husband does not die from this illness, but recovers and then falls ill again, even then she will not receive any inheritance. This is irrespective of whether she had completed her ‘iddah or not.

2. The woman asked for a divorce and the husband complied to her request. Even then, the woman is not entitled to receive any inheritance irrespective of whether the husband dies within her ‘iddah or after it. However, if he issues a talâqur raj’î and passes away within her ‘iddah, she will be entitled to receive her share of the inheritance.

3. During his illness, the man said to his wife: “If you go outside, you are divorced a talâqul bâ’in.” Thereafter the woman went outside and talâqul bâ’in took place. In such a case she will not receive any share of the inheritance because she is the one who caused this talâqul bâ’in to take place.

The husband (while ill) says: “If you eat any food, you are divorced a talâqul bâ’in” or “If you offer your salât, you are divorced a talâqul bâ’in.” In such a case, if the husband passes away within her ‘iddah, she will receive her share of inheritance. This is because this divorce did not take place through her choice. Eating food and offering salât are necessary obligations, how can she leave them out?

If the husband issues a talâqur raj’î and he passes away within her ‘iddah, she will receive her share even in the first example. In short, if she receives a talâqur raj’î, she will receive her share in all circumstances as long as the husband passes away within her ‘iddah.

4. A normal, healthy person said to his wife: “When you go out of the house, you are divorced a talâqul bâ’in.” She did not leave the house immediately, but went outside when he fell ill. Due to this sickness, he passed away within her ‘iddah. Even then, she will not receive any share of the inheritance.

5. A normal, healthy person said to his wife: “When your father comes from overseas, you are divorced a talâqul bâ’in.” At the time when her father arrived, her husband was ill and passed away in that very illness. She will not receive any share of the inheritance. But if he said the same thing while he was sick, and passed away within her ‘iddah, she is entitled to receive her share of the inheritance.

 

Revoking a Talâqur Raj’î

1. When the husband issues one or two divorces that are raj’î, he has the choice or right to revoke such a divorce before the expiry of the wife’s ‘iddah. In such a case, there is no need to renew the nikâh. The woman has no choice in this matter – he can revoke the divorce irrespective of whether she agrees or not. But if he issues three divorces, he has no choice of revoking the divorce as explained previously.

2. The method of revoking the divorce is as follows: (1) he could inform her in clear terms: “I am going to maintain you as my wife and I will not let you go.” (2) he could tell her: “I am taking you back into mynikâh“. (3) he could inform someone else without informing his wife that he has decided to keep his wife and revoked the divorce. (4) he does not say anything verbally, instead he has sexual intercourse with her, kisses her, fondles her, touches her with the passions of youth. In all these cases, she becomes his wife once again and there is no need to renew the nikâh.

3. When a person decides to revoke the divorce and keep his wife, it is preferable to have a few people as witnesses so that if any differences or problems occur at a later stage, none can deny any claims or make any allegations. If no witnesses are brought, the revocation will still be valid. The object, which was to keep his wife, will be accomplished.

4. If the ‘iddah of the wife has expired and then the husband decides to revoke the divorce, it will not be possible. Now, if the wife agrees and is happy to go back to her husband, the nikâh will have to be renewed. He cannot keep her without remarrying her. Even if he keeps her, it will not be permissible for the wife to live with him.

5. The ‘iddah of talâq for the woman who experiences the monthly menstrual periods is three hayd periods. When she completes three hayd periods, her ‘iddah expires. At the end of her third hayd period, if she stops bleeding on the completion of the tenth day, then from that very moment her ‘iddah will expire and the right of revoking the divorce, which the husband possessed, will be forfeited. This is irrespective of whether the woman has already had a bath or not. However, at the end of her third hayd period, if she stopped bleeding before 10 days, then as long as she does not have a bath or as long as no salât becomes wâjibon her, the husband will have the right of revoking the divorce and she will become his wife once again. But if she has a bath once the bleeding stops or she did not have a bath, but one salât time passed and she did not offer her salât in that time (i.e. qadâ’ of one salât became wâjib on her), then in both cases the right of the husband will be forfeited. Now he cannot keep her without remarrying her.

6. If a person divorces a woman with whom he has not engaged in sexual intercourse as yet, even though he may have met her in private or seclusion, then by divorcing her once, he does not have the right of revoking this divorce. This is because the divorce that she gets in this case is actually a talâqul bâ’in, as has been mentioned previously. Understand this well.

7. The couple met in privacy but the man confesses that he did not engage in sexual intercourse with her. If he divorces her after this confession of his, he does not have the right to revoke his divorce.

8. When a woman receives one or two talâqs that are raj’î (revocable), i.e. in which the husband has the right of revoking his divorce, it is preferable for such a woman to beautify herself and adorn herself with beautiful clothes; perhaps her husband will be attracted towards her and thereby revoke his divorce. But if she knows that he has no intention of revoking the divorce, it will be preferable that when he enters the house he should cough, clear his throat etc. so that if her body is exposed, she could cover it quickly and his sight does not fall on her private parts. Once her ‘iddah expires, she should go and live elsewhere.

9. If the person has not revoked his divorce as yet, it is not permissible for him to take his wife on any journey nor is it permissible for her to go with him.

10. A woman has received one or two talâqul bâ’in, i.e. a divorce that is irrevocable. The rule with regard to her is that if she wishes to marry another person, she should do so after the expiry of her ‘iddah. It is not permissible for her to marry another person within her ‘iddah. But if she wishes to marry the same person (i.e. her husband who has divorced her), she can marry him within the ‘iddah as well.

 

’Îlâ’ or Taking an oath on not going to one’s wife

1. A person takes an oath and says: “I swear by Allah that I will not engage in sexual intercourse”, “I swear by Allah that I will never have sex with you”, “I take an oath that I will not have sex with you.” Alternately, he takes an oath that is similar in meaning to the above-mentioned oaths. The rule with regard to this is that if he does not engage in sexual intercourse with her, talâqul bâ’in will take place on the expiry of four months. Without remarrying, they cannot live as husband and wife. But if the husband breaks his oath within four months and has sexual intercourse with his wife, divorce will not take place. However, he will have to pay the kaffârah for breaking his oath. In the Sharî‘ah, such an oath is called ’îlâ’ (which literally means “oath”).

2. A person did not take an oath of not having sex with his wife forever, instead he took an oath that he will not engage in sexual intercourse for a period of four months and said: “I swear by Allah that I will not have sex with you for four months.” Even by specifying such a period, ’îlâ’ will be considered and the same rule will apply, i.e. if he does not engage in sexual intercourse with her within four months, talâqul bâ’inwill take place. If he engages in sexual intercourse within four months, he will have to pay kaffârah. The rules relating to kaffârah will be explained in a later chapter – ’Inshâ’ Allah.

3. If a person takes an oath of not having sex with his wife for a period of less than four months, ’îlâ’ will not be considered. Even if the oath is taken for just one day less than four months, ’îlâ’ will not be considered. However, if he takes an oath for a specified period (less than four months) and then breaks this oath by engaging in sexual intercourse before the expiry of the specified period, he will have to pay kaffârah for breaking the oath. If he does not engage in sexual intercourse, divorce will not take place and his oath will be fulfilled.

4. A person had taken an oath of four months and did not break it. On the expiry of four months, divorce took place. After the divorce, he re-married the very same woman. After the nikâh, if they do not engage in sexual intercourse for a period of four months, there will be no harm in this and no divorce will take place.

A person had taken an oath forever by saying: “I take an oath that I will not have sex with you” or “I swear by Allah that I will never have sex with you”. He did not break this oath of his, on the expiry of four months, divorce took place, thereafter he remarried her and after the marriage they did not engage in sexual intercourse for four months. A second divorce will now take place. If he remarries the same woman for a third time, the same rule will apply over here as well. That is, if they do not engage in sexual intercourse for a period of four months after remarrying for this third time, a third divorce will take place. Now he will not be able to remarry her without her first marrying another person. However, had they engaged in sexual intercourse after the second or third nikâh, the oath would have broken and no divorce would have taken place. However, he would have had to pay the kaffârah for breaking his oath.

5. Furthermore, if three divorces took place in the three nikâhs, thereafter the woman married another person, after being divorced from him and completing her ‘iddah she remarried her first husband, and again he did not engage in sexual intercourse with her. Now, divorce will not take place irrespective of how long he abstains from having intercourse with her. However, if and when he engages in sexual intercourse with her, he will have to pay the kaffârah for breaking his oath because he had taken the oath that he will never engage in sexual intercourse and now he has broken this oath.

6. If a person issues a talâqul bâ’in to his wife and thereafter takes an oath that he will not have sex with her, it will not be ’îlâ’. Now if he remarries her and does not engage in sexual intercourse, divorce will not take place. However, if he engages in sexual intercourse, he will have to pay kaffârah for breaking his oath. But if the person issues a talâqur raj’î and within the ‘iddah he takes an oath that he will not have sex with his wife, it will be ’îlâ’. Now if he revokes his divorce and does not engage in sexual intercourse, divorce will take place after four months. But if he has sex with her, he will have to pay kaffârah for breaking his oath.

7. A person did not take an oath on Allah. Instead, he said: “If I have sex with you, you are divorced.” This will still be considered to be ’îlâ’. If he has sex with her, a talâqur raj’î will take place and in such a case, he will not have to pay the kaffârah for breaking his oath. If he does not engage in sexual intercourse, a talâqul bâ’in will take place after four months.

The person says: “If I have sex with you, one hajj, one fast, R1 in charity, one qurbâni, etc. will become incumbent upon me.” In all these cases, ’îlâ’ will be considered. If he engages in sexual intercourse, he will have to fulfil whatever oath he had taken and it will not be necessary to pay any kaffârah. If he does not engage in sexual intercourse, divorce will take place after four months.

 

Khula’ or Divorce at the instance of the wife

1. If it is not possible to bring about any conciliation between husband and wife and the husband even refuses to divorce her, it is permissible for the wife to give some money or her mahr to her husband and tell him to let her go in exchange for that money. Alternatively, she could ask him to let her go in exchange for the mahr that he is still owing her. In answer to her request, the husband says: “I let you go.” In saying so, one talâqul bâ’in takes place. The man does not have the right to keep her back or to revoke his divorce.

However, if the husband did not answer to her request in that very place and instead he stood up and began walking or, he did not get up but the wife stood up and began walking about, and only then did the husband say: “Okay, I let you go”, in such a case this is not considered. The request and the reply to it have to be uttered in one place. Separating from one’s husband in such a manner is referred to khula’ in the Sharî‘ah.

2. The man says: “I grant you khula’” and the woman replies: “I accept.” Khula’ takes place. But if the woman did not reply at that very place – instead, she stood up or did not even accept his khula’, it will not be considered. However, if the wife remained seated in her place and the man stood up after having said this, and the woman accepts the khula’ after he stood up, even then khula’ takes place.

3. The man says: “I grant you khula’” and the woman accepts. There was no mention of any money or any other monetary compensation on the part of the husband or the wife. Even then, whatever the man was owing to his wife or whatever the wife was owing to her husband will be forgiven. If the man still had a balance of the mahr to pay, it will be forgiven. If the woman has already received the total amount due to her, she does not have to return anything to the man. Despite all this, the man will have to feed, clothe and provide shelter to her until the end of her ‘iddah. However, if the woman had said that she will not even take advantage of these benefits during her ‘iddah, then they will also be forgiven.

4. When granting khula’, mention of monetary compensation was also made, e.g. the man says: “I grant you khula’ in exchange for R100.” The woman accepted this. Khula’ will be valid and it will be wâjib on the woman to pay the R100. She will have to pay this R100 irrespective of whether she has received her mahr in full or not. If she had not received her mahr as yet, she will not receive it now because it is considered to be forgiven due to her acceptance of the khula’.

5. If the conflict between husband and wife has been caused by the husband, it will be harâm and a major sin for him to grant khula’ in exchange for money or in lieu of the mahr that he is still owing. If he happens to take any money, it is harâm upon him to utilise it. But if it is the wife’s fault alone, he should not take any compensation in excess of the mahr that he had given. Instead, he should grant khula’ in exchange for the mahr alone, and not more than that. If he takes more than the mahr, it will not be a good thing. At the same time, there is no sin in taking more.

6. The woman was not happy about khula’. The man forced her and compelled her to make khula’. In other words, he beat her and threatened her into making khula’. In such a case, divorce will take place but it will not be wâjib on the woman to give any monetary compensation. If the man had an outstanding amount of mahr to pay, this will also not be forgiven (he will have to pay it to her).

7. All the above rules will apply only when the word khula’ was mentioned or the following was said: (1) “Leave my life in exchange for R100, R1000, etc.”, (2) “Leave me in exchange for my mahr.”

If the above-mentioned was not said and instead, the word divorce was used, e.g. she says: “Divorce me in exchange for R100”, this will not be khula’. If the man grants a divorce in exchange for that money, one talâqul bâ’in will take place. In such a case, no rights or debts will be forgiven – neither those that the man has to fulfil nor those that the woman has to fulfil. If the man had not paid the mahr as yet, it will not be forgiven and the woman can claim it. Furthermore, the man will take the R100 from the woman.

8. The man says: “I am divorcing you in exchange for R100.” This will be dependent on the acceptance of the woman. If she does not accept, divorce will not take place. If she accepts, one talâqul bâ’in will take place. However, if she accepts after having changed her place, divorce will not take place.

9. The woman says: “Divorce me!” The man replies: “Forgive me from paying your mahr and all the other debts that I owe you, only then will I divorce you.” Upon this, the woman replied: “Okay I forgive you.” Thereafter, the man did not divorce her. In such a case, nothing will be forgiven and he will still have to pay her all the money that he owes. If he divorces her in that very place, he will be absolved from paying her anything.

10. The woman says: “Give me three divorces in exchange for R300.” In reply to this, the man gives her only one divorce. In such a case, he will receive only R100. If he gives her two, he will receive R200. If he gives all three divorces, the woman will have to give R300. In all these cases, the divorces that will take place will be talâqul bâ’in, because the divorce is in exchange for some money.

11. An immature boy and a lunatic cannot make khula’ with his wife.

 

Zihâr or Likening the wife to one’s mother

1. A person says to his wife: “You are equal to my mother.”,”To me, you are equal to my mother”, “According to me, you are equal to my mother”, “According to me, now you are similar to my mother or like my mother”. In all the above cases, look at the intention of the person and what did he mean by these words. If he meant that she is similar or equal to his mother in respect and piety or that she is absolutely old just like his mother, equal in age to her, etc. then there will be nothing wrong in saying all these things and no rule will be enforced. Similarly, if he did not intend anything at the time of uttering these words or did not mean what he said but merely blurted these words out, even then no rule will be enforced.

However, if the person intended divorce when he uttered these words or intended separating his wife, then one talâqul bâ’in will take place.

The person did not intend divorcing her nor separating her, but merely intended to inform her that: “Although you are my wife and although I am not breaking up this nikâh, I will not have sex with you. I am making sex with you harâm upon myself, you can merely eat, clothe yourself and live with me – that is all.” In short, he did not intend divorcing her but merely made sex with her harâm upon himself. In the Sharî‘ah, this is called zihâr.

The rule with regard to zihâr is that this woman will remain in his nikâh. However, as long as the man does not pay kaffârah, he cannot engage in sexual intercourse with her, he cannot touch her with the passions of youth, he cannot fondle her nor kiss her, etc. All this will be harâm. As long as he does not pay the kaffârah, that woman will remain harâm upon him irrespective of how many years pass. Once he pays the kaffârah, they can now live as husband and wife without having to renew the nikâh. The kaffârah for zihâr is given in the same manner that the kaffârah for not fasting is given.

2. If the person engages in sexual intercourse before giving the kaffârah, he will be committing a major sin. He must repent to Allah Ta’âlâ, seek His forgiveness and make a firm resolution that he will not engage in sexual intercourse again without having given the kaffârah. As for the woman, she should ensure that as long as he does not pay the kaffârah, she should not allow him to approach her.

3. If a person equals or likens his wife to his sister, daughter, aunt or any other woman with whom nikâh is harâm forever, the same rule will apply.

4. A person says: “To me, you are equal to a pig.” If his intention was that of divorce or separating her, divorce will take place. If he intended zihâr, i.e. he did not mean to divorce her but actually intended to make sexual intercourse with her harâm upon himself, then in such a case no rule will apply. Similarly, no rule will apply if he had no intention at all.

5. If the person does not engage in sexual intercourse for four months or more after pronouncing the zihâr and has not paid the kaffârah as yet, divorce will not take place, i.e. it will not be ’îlâ’.

6. As long as the kaffârah is not fulfilled, it is not harâm to look at the wife or to converse with her. However, it is not permissible to look at her private parts.

7. A person did not pronounce the zihâr forever. Instead, he specified a certain period of time, e.g. he says: “To me, you are equal to my mother for four months or for one year.” In such a case, zihâr will be considered for the period that he specified. If he wishes to engage in sexual intercourse within this specified period, he will have to pay kaffârah. If he engages in sexual intercourse after the specified period, he does not have to pay anything and his wife will be halâl for him.

8. Just as in divorce, if a person says ’Inshâ’ Allah immediately after pronouncing the zihâr, it will not be considered and no rule will apply.

9. An immature boy or a lunatic cannot pronounce the zihâr. If they pronounce it, it will not be considered. Similarly, if a person pronounces the zihâr to a woman who is not his wife, it will not be considered. It will still be permissible for him to marry such a woman.

10. If the zihâr is pronounced several times, e.g. a person says: “To me, you are equal to my mother” and he says this two or three times, then each time that the zihâr is pronounced, a separate kaffârah will have to be paid. However, if the person repeated the zihâr merely to emphasize it and did not intend pronouncing several zihârs, he will only have to pay one kaffârah.

11. If a person has more than one wife and pronounces the zihâr to more than one wife, he will have to pay a separate kaffârah for each wife.

12. When pronouncing the zihâr, a person did not use the words: “equal”, “similar”, “like”. Instead, he said: “You are my mother” or “You are my sister”. This will not be zihâr and his wife will not become harâm on him. However, to say so is a sin. Similarly, it is not good to address one’s wife by shouting: “My sister! Do such and such work for me!” Despite this being a sin and an evil habit, it is not zihâr.

13. A person says: “If I keep you, it’s like keeping my mother”, “If I have sex with you, it’s as though I am having sex with my mother”. Zihâr is not considered.

14. A person says: “You are harâm upon me just as my mother is harâm upon me.” If he intended divorce, it will take place. If he intended zihâr or did not intend anything, zihâr will take place. Sexual intercourse with her will be permissible after fulfilling the kaffârah.

 

Kaffârah

1. The kaffârah for zihâr is the same as that which was mentioned for fasting. There is no difference between the two. We have mentioned these masâ’il in detail in Part Three of Bahishti Zewar. Please refer to them. A few necessary matters which were not mentioned previously will be mentioned here.

2. If the man has the strength, he should fast consecutively for 60 days. He should not miss any fasts in-between. As long as he does not complete these fasts, he should abstain from engaging in sexual intercourse with his wife. If he engages in sexual intercourse with that wife (i.e. the wife on whom he had pronounced zihâr), he will have to re-commence keeping the 60 fasts. This is irrespective of whether he engages in sexual intercourse with her at night, during the day, intentionally or forgetfully. The same rule will apply in all cases.

3. If a person commences fasting on the first day of a particular month (Islamic month), he should continuously fast until the end of two months. This is irrespective of whether the months are of 30 days each, whereby he completes the 60 days, or whether they are less than 30 days each. In both cases, the kaffârah will be fulfilled. However, if he did not commence fasting at the beginning of the month, he will have to fast for a full 60 days.

4. If the person was fulfilling the kaffârah by fasting and forgetfully engages in sexual intercourse with his wife prior to completing his kaffârah, he will have to repeat his kaffârah.

5. If a person does not have the strength to fast, he should feed 60 poor persons with two meals. Alternatively, he could give them dry groceries. If he engages in sexual intercourse before he can complete feeding all the poor persons, he will be committing a sin. However, he does not have to repeat this kaffârah.

The different methods of feeding poor persons that have been mentioned in Part Three are applicable over here as well.

6. A person had to fulfil two kaffârahs for two zihârs. He gave approximately 4 kilos of wheat to each of the 60 poor persons under the misunderstanding that he is actually giving each person 2 kilos for each kaffârah. Even then, only one kaffârah will be fulfilled and the other will still be outstanding. However, if the person had to fulfil two kaffârahs; one for zihâr, and the other for fasting; then both his kaffârahs will be valid even if he fulfils them together.

 

Li’ân – Allegation of Adultery

When the husband accuses his wife of adultery or rejects a particular child as being his own child, then both the husband and wife have to go to a Shar’î judge. The judge will ask both of them to take an oath. First, the husband will take the following oath: “I make Allah my witness and say that I am speaking the truth with regard to the act for which I have accused her.” He should take this oath four times. The fifth time he must say: “If I am lying, may Allah’s curse descend upon me.”

When the husband completes this, the wife must say the following four times: “I make Allah my witness and say that he is lying with regard to the act for which he is accusing me of.” The fifth time she must say: “If he is truthful in this accusation, may the wrath of Allah descend upon me.”

Once both of them take this oath, the judge will separate them and one talâqul bâ’in will take place. The child will not be attributed to this husband, but will be given in the care of the mother. In the Sharî‘ah, this oath and counter-oath is known as li’ân.

 

Disappearance of the Husband

When a woman’s husband disappears or goes missing and it is not known whether he is alive or dead, then such a woman cannot enter into a second marriage. Instead, she should remain waiting in the hope that her husband will return. When she remains waiting until such a time that her husband must have reached 90 years of age, we will give the ruling that he must have passed away by now. Based on this, if a woman is still young and she wishes to remarry, she must wait until her husband’s age must have reached 90, thereafter she must complete her ‘iddah, and then she can enter into a second marriage. However, the condition for this is that the ruling that her first husband must have passed away by now will have to be passed by a Shar’î judge.

 

[From Supplement]

The Detestation of Divorce

1. It is mentioned in a Hadîth that of all the permissible actions, divorce is the most detestable in the sight of Allah Ta’âlâ. The meaning of this is that divorce has been permitted at times of necessity. However, when there is no need, it is extremely detestable. The reason for this is that the purpose of marriage is to foster mutual understanding, mutual love, and comfort for the husband and wife. Divorce wipes out all these factors, shows ingratitude to the favours of Allah Ta’âlâ, the husband and wife become distressed, and it results in mutual enmity. Based on this, it also results in enmity towards the wife, her family and her relatives. As far as possible, one should never ever intend to divorce one’s wife. In all their dealings, the husband and wife should try and accommodate each other and live with love for each other. However, if there is no way that they can live together, there will be no harm in divorce. Understand this well.

2. It is mentioned in a Hadîth: “Marry and do not divorce (unnecessarily) because Allah Ta’âlâ does not love those men who go around ‘tasting’ and those women who go around ‘tasting’.” In other words, Allah Ta’âlâ does not like divorce to take place unnecessarily thereby resulting in the man entering into a second marriage and the woman entering into a second marriage. However, if there is a dire need, there will be no harm in this.

3. It is mentioned in a Hadîth that women should not be divorced except on account of immorality. This is because Allah Ta’âlâ does not love a man who goes around ‘tasting’ and a woman who goes around ‘tasting’. We learn from this that if there is any shortcoming in her purity and chastity, it will be permissible to divorce her. If there is any other similar reason, there will be no harm in divorcing.

4. It is mentioned in a Hadith that you should marry but do not divorce because by divorcing, the (‘arsh) throne of Allah Ta’âlâ begins to tremble.

5. It is mentioned in a Hadîth that shaytân places his throne on water and then sends out his armies in order to delude and distract people. From among all these armies of his, the closest to shaytân in rank and status is the one who was the most successful in spreading the most amount of mischief. From among these, one of them will come to shaytân and inform him: “I have caused so and so mischief”. Shaytân will reply: “You have done nothing.” (i.e. you have not really caused much mischief). From among them, another one comes and says: “I went to a particular person and did not leave him until I caused a separation between him and his wife.” Upon hearing this, shaytân brings him close to him, embraces him and says: “You have indeed done a great job.” In other words, shaytân’s happiness is when husband and wife are separated. Therefore, as far as possible Muslims should not make shaytân happy.

6. It is mentioned in a Hadîth that the fragrance of jannah is harâm upon a woman who asks for a divorce without any real need. That is, she is committing a major sin. However, if she dies with ’Imân, she will eventually be entered into jannah after being punished for all her evil actions.

7. It is mentioned in a Hadîth that the muntazi’ât and the mukhtali’ât are actually munâfiqât. The muntazi’ât are women who tear themselves away from the control of their husbands by committing actions which cause the husbands to be displeased with them and thereby divorce them. As for the mukhtali’ât, they are women who ask for khula’ without any real need. The meaning of munafiqât is that this trait is normally found in the hypocrites who expose a particular fact when in their hearts they conceal something else. Outwardly, nikâh is supposed to be forever, and here she is asking for separation! Such a woman is a sinner although she is not regarded as a kâfir.

A Few Masâ’il related to Divorce

1. When it becomes necessary to issue a divorce, there are three ways in doing so: (a) the most preferable method, (b) a good method, (c) a bid’ah and harâm method.

The most preferable method: is that the husband issues one divorce to his wife while she is pure, i.e. not experiencing hayd or nifâs. A further condition is that he must not have engaged in sexual intercourse with her in this entire period of her purity. He must not issue any other divorce till the end of the expiry of her ‘iddah. The moment her ‘iddah expires, the nikâh will come to an end and there is no need to issue any further divorce. This is because divorce has only been permitted at the time of extreme need. Accordingly, there is no need to issue several divorces.

The good method: is that the husband issues three divorces over a span of three periods of her purity. In addition to this, he should not engage in sexual intercourse with her during these three periods.

The bid’ah and harâm method: is that which is contrary to the above two methods, e.g. he issues three divorces in one sitting, he issues a divorce while his wife is in her hayd, he issues a divorce in her period of purity but he had already engaged in sexual intercourse with her in that very period of purity. In all these cases, although divorce will take place, he will be committing a sin for adopting such methods.

Understand all this very well. All the above situations (i.e. all the three methods) apply when sexual intercourse with the wife has taken place or they have at least met in privacy and solitude (the details of which have been mentioned in the relevant chapters). If they did not engage in sexual intercourse or did not meet in privacy and solitude, the rules are mentioned in the next mas’ala.

2. Once nikâh has been performed with a woman but they did not engage in sexual intercourse as yet, it is permissible to divorce such a wife irrespective of whether she is in her hayd or not. However, he should issue only one divorce.