Understanding The Basic Fiqh of Divorce

Introduction

al-Talaq linguistically means to fully lifting the restrictions. It is taken from the phrase ‘releasing (Itlaq) of the camel.’ It is to release it from its shackle, meaning to untie it. So when it is released from its restraints - its shackles - and it is untied, its restrictions are lifted and it is free to go where it pleases. From a technical perspective, it means to lift the restriction of marriage and to end it immediately - or to end it after the passing of a specific amount of time (i.e. with the option to take one’s wife back). It is to end the marriage without any compensation.

Imam al-Shafi'i رحمه الله said, "Al-Talaq in the Book ofAllah has three names: al-Talaq, al-Firaq and al-Sarah. The One Who (is) greatly praised said,

يَـٰٓأَيُّهَا ٱلنَّبِىُّ إِذَا طَلَّقْتُمُ ٱلنِّسَآءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ

O Prophet! (Instruct the believers): When you (intend to) divorce women, then divorce them with concern for their waiting period. [Surah al-Talaq, 1] Here the word al-Talaq is used.

فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ

Then when they have (almost) reached the end of their waiting period, either retain them honourably or separate from them honourably. [Surah al-Talaq, 2] Here the word al-Firaq is used.

يَـٰٓأَيُّهَا ٱلنَّبِىُّ قُل لِّأَزْوَٰجِكَ إِن كُنتُنَّ تُرِدْنَ ٱلْحَيَوٰةَ ٱلدُّنْيَا وَزِينَتَهَا فَتَعَالَيْنَ أُمَتِّعْكُنَّ وَأُسَرِّحْكُنَّ سَرَاحًۭا جَمِيلًۭا

O Prophet! Say to your wives, “If you desire the life of this world and its luxury, then come, I will give you a (suitable) compensation (for divorce) and let you go graciously. [Surah al-Ahzab, 28] Here the word al-Tasrih is used.

The matter of Talaq is a very important topic to understand because the lack of which might make one fall into zina and/or take the right of others. A person might have intercourse with his "wife" but not be aware that she is no longer his wife since he did not take her back in the stipulated time limit after he had issued a divorce. There are many similar cases in this regard. May Allah Protect us all.

A marriage contract takes places when a sane and mature man proposes marriage to a sane, mature woman and with her full consent; in the presence and with the permission of a sane, mature, trustworthy male guardian among her kin like father, grandfather, son, uncle etc. This is witnessed by two sane, mature, and trustworthy male witnesses.

If they are not able to have a peaceful life and want to separate, or dissolve the marriage, the woman has complete right to demand from her husband the dissolution of their marriage. The husband must free her without any condition. If she demands dissolution without any reason he can take back the Mahr he has given her at the time of marriage. This is called Khula. Similarly, the husband has full right to dissolve the marriage which is called Talaq.

Talaq is meant to be the last resort in a series of steps to be followed to somehow salvage the union. There are explicit guidelines and procedures mentioned in the Qur'an that are to be followed before resorting to talaq. For example, if the wife is not fulfilling the marital rights and he is not able to bear the situation, then he should resort to counseling the wife to be good with him as he is good with her. If it doesn’t work, then he must separate her from the marital bed. If that too does not work, and she does not want to leave him and he doesn’t want to divorce her, the option left, is for him to resort to mild physical reprimand by a slight hit that leaves no mark or injury (and it should not be on her face). If even that doesn’t work, they must involve their wise and experienced family members, one from each side, to arbitrate and help them reconcile.If that too fails, in such a case he may divorce her. He must divorce her by verbally pronouncing it once, while she isn’t on her menses and he didn’t have sex with her in that particular period of purity. This is considered as one divorce.

A jurisprudential maxim reads:

الرجعية زوجة، ما بقيت في العدة

The "reconcilable" woman remains a wife inasmuch as she remains in iddah.

The next divorce counts as the second and eventually third divorces and not as one even if the man takes her back. For the counter to be reset to three again, after the third divorce, she has to marry another man, consummate the marriage with him, divorce and then again marry the first husband with a new nikah contract. We will see this explained later. This is a very important point because there are cases where men have divorced their wife ten times and keep taking them back thinking that they are still married. This is zina and a very dangerous situation.

The Shariah has allowed the husband to take her back during the waiting period, if he so wishes. The waiting period is three menstrual cycles, or three months or till the delivery(if she was expecting at the time of the pronouncement of the divorce). During this period he must provide her housing, clothing, food etc. but he must avoid sexual relations.

After the end of the waiting period, if the man has not called her back, the woman is free and is now just like a stranger to this man. She can marry anyone. If she doesn’t get married to anyone, and wants to get married to the previous husband, then by mutual agreement both can remarry with a new marriage contract, the presence of her guardian, and with a new mahr.

After that, if there is any irreconcilable dispute, and again she decides to separate, she can ask for a Khula as mentioned above. Or he can divorce her after following the aforementioned steps. This is considered as second divorce. After this divorce, she must once again observe waiting period. During this period he can take her back as mentioned earlier in the case of first divorce.

The couple have had two chances till now to settle all differences and continue the life together. However, if there is an irreconcilable dispute a third time, and after having followed all the due procedure, he decides to divorce, then it is considered as third divorce and the final irrevocable divorce. After third divorce, the Shariah stipulates that the man can’t marry her once again, even if both agree to get married. This clause has been stipulated as a safeguard for women, in order to protect them from the threat of frequent divorce, and as a warning for men to not take lightly the sanctity of marriage.

If a  man divorces his wife three separate times, it becomes impossible to marry her back unless and until she has had another marriage , had intercourse at least to the level of penile penetration and divorced again. Her marrying another person MUST not be an arranged marriage by the old husband or new husband. However, a woman may decide to go through with the second marriage with the mindset of leaving to remarry her ex-husband.

The Prophet ﷺ said, "Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful." [Abu Dawud]

Umar ibn al-Khattab رضي الله عنه said whilst addressing the people, “By Allah, no muhallil or muhallal lahu will be brought to me but I will stone them.” The muhallil is the one who marries a woman and divorces her so that she can go back to her first husband, and the muhallal lahu is the first husband.

Note: Temporary marriage (mut’ah marriage) or marriage for the purpose of making her permissible for her first husband then divorcing her (tahleel marriage) are both haram and invalid according to the vast majority of scholars, and it does not make the woman permissible for her first husband. Ibn Umar ruled that this is clear zina even if a couple remained together for twenty years but they had the intention of tahleel. Imam Ahmad was asked about a man who married a woman intending thereby in his heart to make her permissible for her first husband, but the woman did not know about that. He said: He is a muhallil, and if he intends thereby to make her permissible for her first husband, then he is cursed.

As for the pre-arranged temporary 'Nikah al-Tahleel', or 'Halaalah' as it is called in the Indian subcontinent, then anyone who understands the words of Allah, His Messenger, and the sahabah, will not have an iota of a doubt that it is a heinous sin, depravity, and abomination. Sheikh al-Islam Ibn Taimiyyah has authored a 500 page book explaining the invalidity of this sham-marriage. The sahabah used to call the one who did such an act: "Al-Tais al-Musta'ar" (a borrowed bull) i.e. comparing him to a bull borrowed by a milch-cow owner to impregnate his herd.

‍

Understanding Misconceptions of Disciplining The Wife

Domestic violence is a serious issue in our communities. It is a valid grounds for divorce. In this case, we want to clarify and explain the world's difference between disciplining one's spouse that the Shariah has allowed and the heinous act of domestic abuse. Sheikh Dr. Ibrahim Nuhu حفظه الله explained, "People make this a very very big issue. Islam doesn't reach this conclusion like the way the ignorant understand it. Allah put in place strategies to end things in a different manner. For a person to raise their hands against their spouse is their greatest failure in life. If a person has reached such a stage, then nothing can go lower in this relationship. There is no way for both the spouses to be equal. There is a natural difference. The very anatomy, to way of thinking and everything else can be different.

Look at the relation of the teeth and the tongue. They have one of the closest relationships that benefits them both. Now imagine you put food in the mouth and the teeth refuse to chew them or the tongue refuses to taste it. How many times does one bite their tongue? You cause yourself injury. How then can you expect two completely different people and at times from completely different parts of the world to come together and start thinking and living in an identical manner. Both the men and women look for different things in their spouse and this needs to be understood even before marriage.

Ex: Women want to feel connected and next to someone who is worth being with. This is why you see men complaining when their wives lose interest after marriage down the line, when indeed this is because of their own shortcomings in relation to their wives.

What's to be done?
- Advise
- Advise
- Advise x 100

- Staying away without leaving the house
If the wife really wants the relationship to continue and she is indeed the one who is in the wrong, then she will reflect and rectify. Allah does not prescribe that which doesn't work especially in such sensitive matters.

- Discipline in a manner that doesn't leave a sign with the aim just to get the message across. See the Hadith of Aisha  رضي الله عنها. The Prophet ﷺ just pushed her slightly which many would take to be a playful manner when she told him that she thought he had gone to the house of another wives house.

The example of the Prophet ﷺ needs to be followed. You as a husband are not better than the Prophet ﷺ and you as a wife are not better than Aisha رضي الله عنها. That being said, if you expect your wife to be like Aisha who understands your emotions just by reading your face then you have to be like Prophet Muhammad ﷺ first and the exact same vice versa for the sisters. [Sharh Mandhumat al-Adab]

Let’s not even get into the negative moral, spiritual, and physical aspect of domestic abuse. That should be extremely clear for any normal Muslim. People mix their cultural baggage and/or personal interpretations and make it as though that is Islam. Islam is free from all such filth. Let’s look at an example from a legal perspective from the Hanafi school and this by no means is just a singular occurrence. There’s plenty more. A lot of the times, if not all, this is grounds for divorce.

A fatwa was sought from Sheikh al-Islam Khayr al-Din al-Ramli al-Hanafi (the mentor of Imam al-Haskafi) about a man who hit his wife and made her lose three teeth. He responds by saying that compensation (ḍamān) is obligatory, even if he had the right to discipline her.This is because hitting the wife is restricted to no harm being made (bi Sharṭ al-Salāmah). The husband was ordered to pay 753 dirhams or 7 camels and the value of half a camel (as a penalty)." [al-Fatawa al-Khayriyyah]

‍

Is Divorce Disliked? 

A very famous narration states that the Prophet ﷺ said, “The most hated of permissible things to Allah is divorce.” This hadith has been graded to be weak. Despite that, it is sound in its meaning: Allah dislikes divorce, but He does not Forbid it for His slaves, so as to make things easier for them. If there is a legitimate reason for divorce, then it is permissible. The scholars don't understand this hadith in the literal sense because the Prophet ﷺ himself divorced and ordered others to issue a divorce and he would not order people to do something that Allah dislikes. The dislike is understood to refer to those divorces that are done without any legitimate or valid reason.

Sheikhul Islam Ibn Taymiyyah رحمه الله said, "Allah made divorce permissible on an as needed basis, just as he made impermissible things permissible on a dire need basis." [Majmu' al-Fatawa]

Allah says,

وَإِن يَتَفَرَّقَا يُغْنِ ٱللَّهُ كُلًّۭا مِّن سَعَتِهِۦ ۚ وَكَانَ ٱللَّهُ وَٰسِعًا حَكِيمًۭا

But if they choose to separate, Allah will enrich both of them from His bounties. And Allah is Ever-Bountiful, All-Wise. [Surah an-Nisa, 130]

Commenting on this, Imam Ibn Kathir said in his Tafsir, “Allah has informed us that if the two spouses separate, then indeed Allah will make him free from need of her, and He will make her free from need of him. This will occur by Allah providing him with someone better for him, and replacing him with someone better for her."

There is a narration attributed to the Prophet ﷺ states, “Do not issue divorce, for the Throne shakes because of a divorce.” This narration is a fabrication and it is sinful to attribute it to the Prophet ﷺ.

Divorce is often seen as something evil or taboo within our societies. Those that have undergone a divorce get labelled and shunned. This is far from the Sunnah. Our Sheikh Dr Ibrahim Nuhu حفظه الله said, "Divorce is not necessarily a deficiency or a failure. Sometimes, things just don't work out and it's good that they separate for the greater good of both involved. The ahadith which say that it is the most disliked of the Halal things by Allah are fake. It's not Makruh, it is Halal and will remain Halal till the Day of Judgement.  

Marriage is about comfort. Both involved will be held accountable for all that they do in the marriage. If we close the door of divorce which Allah opened for us, then one or both will harm the other if they stay in that marriage. When love and mercy have left the marriage, the best is to separate. Today, the community will battle unnecessarily, but they won't help and support either when things get bad. Honestly, only the husband and wife can truly know what their situation is. Don't force them into things you don't know about properly. There is no such thing as divorce being Haram. The husband doesn't need to force to keep the wife and neither does she. The society pressurises to keep living together even when things are toxic. Islamically either they are to live in peace and with all the rights or they are to part ways. There is no suffering on while the rights are violated." [Sharh Bulugh al-Maram]

‍

It is important to understand 3 terms that are often used in this space. These are:

1. Talaq or Divorce: It is the termination of the marriage contract by the husband who is discerning, sane, does so willingly, or appoints one to do it on his behalf.

Ali رضي الله عنه said, “Every divorce is valid except for the divorce of the one with an impaired intellect.” [Tirmidhi]

Imam Ibn Qudamah رحمه الله said, "Whoever is forced to divorce his wife by talaq wrongfully, and divorces her under pressure, then his divorce is not valid." [al-Mughni]

The divorce of the angry person is valid if he is aware of what he is saying, whereas the divorce of the man who is overcome by anger to the extent that he does not know what he is saying is invalid. As long as one was in a state of understanding, then the talaq stands and counts. If one is drunk or intoxicated such that they cannot understand what they are saying or doing, then such a talaq doesn't count. There are some who drink and drive and are well aware of what they are doing and saying. In this case, their intoxication doesn't count and their pronouncement of talaq counts.

There are 2 types of pressure. One is the mental or emotional pressure that one might get from family to divorce one's wife. In this case, the talaq is counted as the person was fully aware of what they were doing. They gave in to the pressure when they could have stood up and pushed back like a man. Second is the physical pressure where one's life or similar is threatened. In this case, the talaq does not count.

Divorce is not valid from the husband unless it is spoken. If he merely intends it with his heart, then it does not count until they move their tongue and utter it. The only exception is when it is given in writing that is explicit and direct. The divorce of the one who is joking is valid (and counts) because he intended to utter these words, even if he did not intend for it to count.

The Messenger of Allah (ﷺ) said, "There are three matters in which seriousness is serious and joking is serious: marriage, divorce and taking back (one's wife)." [Abu Dawud]

Even if a person jokingly pronounces talaq, it counts. This is based on the hadith mentioned above. Intentions matter when it comes to Allah and one's reward or punishment associated with it. When it comes to dealing with humans, the action is what counts and it is the basis on which judgement is given. Imam Ibn al-Qayyim said, "These prophetic traditions entail that jest is taken seriously in marriage and divorce when one is legally responsible. This indicates that the speech of a joking person is considered, even though the speech of one who is asleep, insane, or coerced is not." [Zaad al-Ma'ad'

2. Faskh: It is the annulment of the marriage contract and the dissolution of the marriage by the ruling of an appointed judge. It is not conditional upon the husband's choice or consent.

Explaining this, Imam Ibn Abd al-Barr رحمه الله said, "The difference between faskh and talaq, even though each of them is a separation between the spouses, is that if the spouses get back together after faskh, then they will get back together on the basis of the original marriage and the woman still has three talaqs left with her husband, whereas if he divorced her by talaq then took her back, she has two talaqs left with him." [al-Istidhkar]

3. Khul‘: This is when the woman asks her husband to separate from her in return for financial compensation or giving up her mahr or part of it. Khul' is not talaq but a type of faskh.

‍

Types of Divorce

Allah says,

ٱلطَّلَـٰقُ مَرَّتَانِ ۖ فَإِمْسَاكٌۢ بِمَعْرُوفٍ أَوْ تَسْرِيحٌۢ بِإِحْسَـٰنٍۢ ۗ

Divorce may be retracted twice, then the husband must retain (his wife) with honour or separate ˹from her˺ with grace. [Surah al-Baqarah, 229]

Imam Ibn Kathir رحمه الله in his tafsir of this ayah says, "This honourable ayah abrogated the previous practice in the beginning of Islam, when the man had the right to take back his divorced wife even if he had divorced her a hundred times, as long as she was still in her iddah. This situation was harmful for the wife, and this is why Allah made the divorce thrice, where the husband is allowed to take back his wife after the first and the second divorce (as long as she is still in her Iddah). The divorce becomes irrevocable after the third divorce"

An instance of this was narrated by Urwah رحمه الله who said that a man said to his wife, "I will neither divorce you nor take you back." She said, "How" He said, "I will divorce you and when your term of `Iddah nears its end, I will take you back." She went to Allah's Messenger ﷺ and told him what happened, and Allah revealed:

الطَّلَـقُ مَرَّتَانِ

(The divorce is twice.)

In terms of its consequences, divorce may be divided into two categories:

1. Revocable Divorce: This is when the husband divorces his wife for the first or second time, without her offering him any compensation (gifts, mahr, or anything similar given to her by the husband) for that; it is permissible for him to take her back before her Iddah period ends. This is done without a new marriage contract, mahr, or the need to seek the consent of the wife. This is also known as Talaq Raj'ii since it is revocable. However, the woman remains his wife for a period of three menstrual cycles. or what is known as the iddah period. Within this period she remains his wife and has all the due wifely rights, maintenance, and responsibilities. Her husband can rescind his decision of divorce and call her back by speech or action and she cannot reject this. This however doesn't nullify that this issuance of the divorce has been counted as his first divorce.

The Messenger of Allah (ﷺ) said, “If he has consummated the marriage with her, then the mahr is hers because of his intimacy with her.” [Tirmidhi]

The Prophet ﷺ divorced some of his wives without taking them back, and some of them he took back, such as Hafsah bint Umar ibn al-Khattab رضي الله عنها.

2. Irrevocable Divorce: This has a few scenarios: 

• Minor Irrevocable Divorce: This can further be divided into a few types:
  - When the man divorces his wife for the first or second time and her iddah period ends.
  - When the wife seeks for a Khul'. She returns the Mahr given to her. This doesn't include gifts that were given to her.
  - When the man divorces her before consummating the marriage with her.

In these cases, if there is reconciliation between the couple, it is permissible for him to take her back. It is upon the wife to go back to the husband or refuse to do so. Here the wish of the wife to return to her husband is given higher preference and the wali cannot prevent her from doing so. The man can take her back only after a new marriage contract and a new mahr are done. There is no need for a waleemah in this case. This is also known as Talaq Bai'nah since Ba'in means to separate. If there is no reconciliation, then the relation of husband and wife is over and she can do whatever she wishes. In irrevocable divorces, she is not entitled to maintenance or accommodation.

• Major Irrevocable Divorce: This is when the man issues a third divorce to his wife. After this, it is impermissible for her to go back to him until after she has married someone else and gotten a divorce from him. For this to be valid, it needs to be a genuine marriage such that all the rights and dues are fulfilled, the marriage has been consummated with actual penetration during intercourse, and then that second husband leaves or divorces her, or she asks for a khul'. This is also known as Talaq Mughallaza since there is complete cut off.

Fatimah bint Qays (رضي الله عنها) was divorced by her husband for a third time, and she asked the Messenger of Allah (ﷺ) about what she was entitled to of maintenance. He said, “You are not entitled to maintenance or accommodation.” [Muslim]

Imam Ibn al-Qayyim رحمه الله said, "The irrevocably divorced woman (unless she is pregnant) is not entitled to maintenance or accommodation according to the correct Sunnah of the Messenger of Allah (ﷺ); indeed this is in accordance with the Book of Allah and is what is implied by qiyas (analogy) and it is the view of the fuqaha’ of hadith. [I’laam al-Muwaqqi’een]

To Summarise: If the iddah (waiting period) ends and the husband does not take the wife back after a revocable divorce, then she becomes a stranger and loses all her rights of maintenance. If they wanted to get back together, then they would need to do a new marriage contract with a new mahr.

Note: If there is reconciliation, the number of divorces for the husband do not get reset to zero, rather, they continue even after a new marriage contract.

‍

In terms of wording, the fuqaha divide the pronouncement of a divorce into explicit and implicit wording.

1. Explicit Divorce: This is a divorce which cannot be understood as meaning anything else at all except divorce. This is when the man says to his wife statements like, “You are divorced” or “I divorce you.” This divorce counts as such, whether the husband intended divorce or said so jokingly. This shows the seriousness and gravity of the matter.

2. Implicit Divorce: This is a divorce which may be understood as referring to divorce or to potentially something else also. This is when the man says to his wife statements like, “You are free to leave” or “Go back to your family” or “I have no need of you” and so on.

Imam Ibn al-Qayyim رحمه الله explains, “Divorce does not count as such unless the person intends it and uses wording that is indicative of divorce. If one of these two factors is missing, then no divorce takes place.

Words and phrases may be divided into those that are explicit and those that are implicit. Although dividing them in this manner is acceptable in principle, the issue may vary from one person, time or place to another. Therefore, there is no fixed ruling on a particular phrase; a phrase may be regarded as explicit among some people and as implicit among others, or it may be regarded as explicit in one time or place, and as implicit in some other time or place. We see this in reality. Hardly anyone uses the phrase “release” (Surah al-Ahzab, 28) with regard to divorce, either explicitly or implicity, so it is not appropriate to suggest that if a man uses this word then his divorce of his wife is binding, whether he intended it or not." [Zad al-Ma‘ad]

Al-Mawsu'ah Al-Fiqhiyyah concludes, “The scholars are agreed that the metonymic form of divorce means using words that are not usually used for that purpose but could be understood as meaning divorce or something else. However, if the wording could never mean divorce in the first place, then this is not a metonymic form of divorce; rather it is merely nonsense talk and does not imply anything.”

‍

In terms of the pronouncement of the divorce, it can be conditional or unconditional.

1. Unconditional Divorce: This is when there is a divorce with immediate effect, such as when the husband says to his wife, “You are divorced” or other implicit words with the intention of divorce, without making the divorce conditional upon anything.

2. Conditional Divorce: This is when the divorce is based upon a condition.

• When it depends on a clear condition that cannot be interpreted in any other way. This counts as a divorce in all cases. This is when the man uses statements like, “When the sun sets, you are divorced.” When the sun sets, she is divorced, because it is a clear condition.
• When it is connected to a clear oath. In this case, it is not counted as a divorce, but rather, he must offer an expiation for breaking his oath. This is when the man uses statements like, “If I speak to Zayd, then my wife is divorced.” In this case, his intention was to prevent himself from speaking to Zayd. So this is a clear oath, because there is no connection between his speaking to Zayd and his divorcing his wife.

‍

In terms of the timing of the divorce, the safest opinion is that a divorce should be given during the period of tuhr (when woman is not in her menstruation period), so that her iddah starts from her immediate menstruation period. Conversely, if she is divorced during her menses, her iddah will start from the next menstrual cycle, and she will have to wait for a longer time before her iddah may start.

A man should not divorce his wife when she is menstruating, or during a period of purity (when she is not menstruating) during which the husband has had intercourse with her. The Sunnah is to issue a divorce during a period of purity in which he has not had intercourse with her.

Abdullah ibn Umar رضي الله عنهم reported, "I divorced my wife while she was in the state of menses. Umar made mention of it to Allah's Apostle (ﷺ) and he was enraged and he said, 'Command him to take her back until she enters the second ensuing menses other than the one in which he divorced her and in case he deems proper to divorce her, he should pronounce divorce (finally) before touching her (in the period) when she is purified of her menses, and that is the prescribed period in regard to divorce as Allah has commanded.' 'Abdullah made a pronouncement of one divorce and it was counted in case of divorce. 'Abdullah took her back as Allah's Messenger (ﷺ) had commanded him." [Muslim]

When Abdullah (Ibn Umar) was asked about it, he said to one of them, "f you have divorced your wife with one pronouncement or two (then you can take her back), for Allah's Messenger (ﷺ) commanded me to do it; but if you have divorced her with three pronouncements, then she is forbidden for you until she married another husband, and you disobeyed Allah in regard to the divorce of your wife what He had commanded you." [Muslim]

Abu Zubayr narrated that he heard Abdur Rahman ibn Ayman, the freed slave of Urwah, asking Ibn Umar رضي الله عنهم, "What do you think about a man who divorces his wife when she is menstruating?" He said, "‘Abdullah ibn Umar divorced his wife when she was menstruating, at the time of the Messenger of Allah (ﷺ). Umar asked the Messenger of Allah (ﷺ) about that, saying, Abdullah ibn Umar has divorced his wife when she was menstruating." Abdullah said, "He asked me to take her back, and did not consider it to count as anything. And he (the Prophet ﷺ) said, 'When her menses ends, let him divorce her or keep her.'" Ibn Umar said, "And the Prophet (ﷺ) recited the ayah, 'O Prophet, when you (Muslims) divorce women, divorce them for (the commencement of) their waiting period” [Surah at-Talaq, 65:1] that is, at a time when their prescribed waiting period can properly start." [Abu Dawud]

Based on the above, a large majority of scholars hold that giving a divorce while the woman is menstruating is sinful, but it will still count. Based on the last narration from Abu Dawud, others held that the person is sinful and the divorce doesn't count. This opinion was held by the likes of Imams Tawus, Ibn Aliyyah, Ibn Hazm, Ibn Taymiyyah, Ibn al-Qayyim, as-San‘ani, ash-Shawkani, Ahmad Shakir, Ibn Baaz, Ibn Uthaymin, and others. This difference of opinion arose concerning the meaning of the words of the Prophet (ﷺ) to ‘Umar, “Tell him to take her back.” The majority of scholars understood this to mean taking her back in the technical sense of raj‘ah, which can only happen after a divorce has taken place. On the other side, those who did not view divorce during menses as valid understood raj‘ah here to be taking her back in the linguistic sense.

As a special case, we also have a Delegated Talaq (طلاق التفويض). In this scenario, the Shariah allows that a man delegates his right to divorce to his wife (or others). This should not be confused with khul' which is the female initiated separation. The basis of this divorce is the ayah where Allah says,

يَـٰٓأَيُّهَا ٱلنَّبِىُّ قُل لِّأَزْوَٰجِكَ إِن كُنتُنَّ تُرِدْنَ ٱلْحَيَوٰةَ ٱلدُّنْيَا وَزِينَتَهَا فَتَعَالَيْنَ أُمَتِّعْكُنَّ وَأُسَرِّحْكُنَّ سَرَاحًۭا جَمِيلًۭا - وَإِن كُنتُنَّ تُرِدْنَ ٱللَّهَ وَرَسُولَهُۥ وَٱلدَّارَ ٱلْـَٔاخِرَةَ فَإِنَّ ٱللَّهَ أَعَدَّ لِلْمُحْسِنَـٰتِ مِنكُنَّ أَجْرًا عَظِيمًۭا

O Prophet! Say to your wives, “If you desire the life of this world and its luxury, then come, I will give you a (suitable) compensation (for divorce) and let you go graciously. But if you desire Allah and His Messenger and the (everlasting) Home of the Hereafter, then surely Allah has prepared a great reward for those of you who do good.” [Surah al-Ahzab, 28-29]

This is of 3 types: 

1. Delegation by agency. Here the woman acts as an agent for her husband. She can divorce herself but her husband can remove the power of being the agent.

2. Delegation by granting her a choice of divorce

3. Delegation by granting her ownership of divorce

For cases 2. and 3. the man cannot revoke the delegation of divorce. However, whenever a Qadhi, or one in his position, hears of such a delegation, he has to order a separation and request her to take a decision of either remaining with him or invoking her right. If a man tells his wife, "Do whatever you like", if she so decides to divorce herself there and then, she is divorced.

‍

Khul'

A Khul' is when the spouses have irreconcilable differences wherein the wife dislikes him, is unable to live with him any longer, or any legitimate reason, then she is allowed to free herself (from married life) by giving him back what he had given her (in gifts and Mahr). Khul is a type of an annulment of the marriage contract and not a divorce (talaq).

Allah says,

وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا۟ مِمَّآ ءَاتَيْتُمُوهُنَّ شَيْـًٔا إِلَّآ أَن يَخَافَآ أَلَّا يُقِيمَا حُدُودَ ٱللَّهِ ۖ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ ٱللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا ٱفْتَدَتْ بِهِۦ ۗ تِلْكَ حُدُودُ ٱللَّهِ فَلَا تَعْتَدُوهَا ۚ وَمَن يَتَعَدَّ حُدُودَ ٱللَّهِ فَأُو۟لَـٰٓئِكَ هُمُ ٱلظَّـٰلِمُونَ

“And it is not lawful for you (men) to take back (from your wives) any of your Mahr which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Khul." [Surah al-Baqarah, 229]

A woman may ask her husband directly for khul' and if he grants it , she returns the mahr and she is free of him. She doesn't necessarily need the intervention of a judge or court. If the husband refuses, then even if she has gone to a qualified judge, there's not much she can do about it. The validity of khul' is based on the acceptance of the husband. Proceeding with executing a khul' without the husband's knowledge or consent is invalid by the consensus of the vast majority of scholars.

If there are instances of any form of harm or abuse; physical, emotional or financial, the woman seeks a faskh which is the nullification of the marriage contract by a qualified judge on the grounds of harm. If the harm or abuse is established against the husband, then the woman does not need to return anything from the mahr.

If a Khul' is sought without a legitimate reason, then Thawban narrated that Allah's Messenger ﷺ said, "Any woman who asks her husband for divorce without justification, then the scent of Paradise will be forbidden for her." [Tirmidhi]

If a man divorces his wife (by talaq), and during her iddah she asks for khul‘ and he responds to her request, it is valid, because she is still his wife. Imam Ibn Qudamah رحمه الله said, "The woman who is revocably divorced (first or second talaq) is still a wife and a subsequent talaq (divorce), zihaar (a jahili form of divorce in which the husband says to his wife, ‘You are to me like my mother’s back’), eela’ (an oath not to have sexual relations with one’s wife) and li‘aan (a procedure in which the husband formally accuses his wife of adultery and she formally denies the charge, and each invokes the curse of Allah upon him or herself if he or she is lying) are all valid; and one of them may inherit from the other, according to scholarly consensus; and if he separates from her by means of khul‘, his khul‘ is valid." [al-Mughni]

The Khul' is valid even if the woman is menstruating. Imam Ibn Qudamah رحمه الله said, "There is nothing wrong with khul‘ at the time of menses or during a period of purity in which the husband has had intercourse with her. The prohibition on talaq at the time of menses is because of the harm that may affect the wife due to making the iddah longer. But khul‘ is for the purpose of putting an end to harm that she is suffering because of bad treatment and staying with one whom she hates and resents, which is greater than the harm caused by making the iddah longer. So it is permissible to ward off the greater harm by means of the lesser. Hence the Prophet did not ask the woman who separated from her husband by means of khul‘ about her situation, because the khul‘ that could lead to making the iddah longer happened at her request, which indicates that she gave her consent and proves that it was in her interests." [al-Mughni] Of the 4 schools, only the Malikis are of the view that khul‘ is not allowed during the woman’s period.

Imam al-Bukhari رحمه الله reported that Ibn Abbas said that the wife of Thabit bin Qays bin Shammas came to the Prophet ﷺ and said, "O Messenger of Allah ﷺ! I do not criticise his religion or mannerism. But I hate committing Kufr in Islam (by ignoring his rights on her)." Allah's Messenger ﷺ said, "Will you give him back his garden (a gift or mahr given to her).

She said, "Yes." Allah's Messenger ﷺ said, "Take back the garden and divorce her once."

Majority of the scholars opined that the compensation is mandatory. Sheikhul Islam Ibn Taymiyyah on the other hand gave two points to counter this:

- The compensation of the gifts or mahr is the husband’s right. If he waives it voluntarily, there is nothing wrong with that, just like any other rights.

- If it were a revocable talaq, then maintenance during the iddah is the husband’s duty, but if she chooses divorce by khul‘, no maintenance is required of him, so it is as if she gave him some form of compensation.

This second point was a very important point raised by Sheikhul Islam as maintenance is indeed a significant amount.

Imam at-Tirmidhi رحمه الله reported that Rubayi bint Mu'awwidh got a Khul' during the time of Allah's Messenger ﷺ and he ordered her to wait for one menstruation period for her Iddah.

To Summarise: The safest opinion is that khul' is not valid without compensation. The Khul' can be requested for at any time and is not conditional on the menses. The separation after a khul' is irrevocable. The couple cannot get back together except under a new marriage contract and new mahr. The iddah for a woman who has sought khul' is one menstrual cycle.

‍

Iddah

Iddah is a period of waiting for the woman at the separation of the spouses before she can marry again. The purpose of the iddah or waiting period is to assure that the woman is not pregnant. It is impermissible for her to get married to someone else before the iddah period is over. The separation between the spouses could be due to divorce, annulment of the marriage contract, or death.

The concept of Iddah existed even before the advent of Islam in Makkah and other places. It was so harsh and humiliating that it nearly ostracised the woman.

• She would be sent to be confined in a small room or hut (Hifsh) usually cutoff from others for a year.
• She would have to wear her worst clothes for a year.
• She would not be permitted to shower or perfume herself for a year.
• She would not be permitted to clean herself even after menstruation.
• Towards the end of the year, an animal would be brought, a donkey or sheep or bird, and she would end her Iddah with it (clean herself with it), and usually any animal used for that purpose would die.
• She would then exit the room and be forced to throw a piece of camel dung behind her to indicate that her period of mourning was now over.
• Some reports suggest she would have to wait for a dog to pass by before she could throw the dung behind her.

Our mother, Umm Salamah رضي الله عنها narrated, "The husband of a lady died and her eyes became sore and the people mentioned her story to the Prophet ﷺ. They asked him whether it was permissible for her to use kohl as her eyes were exposed to danger. He said, 'Previously, when one of you was bereaved by a husband she would stay in her dirty clothes in a bad unhealthy house (for one year), and when a dog passed by, she would throw a globe of dung. No, (she should observe the prescribed period Idda) for four months and ten days.'" [Bukhari]

Islam came and elevated women from the darkness and placed them at a pedestal which no other religion ever did. Imam Abu Dawud mentions that the hifsh mentioned in the above narration refers to a small cell. The period of iddah and the practices around it were changed in the Shariah of Prophet Muhammad.

- If her iddah is because of her husband's death, then her iddah is 4 months and 10 days.
- If her iddah is because of divorce, and she is not pregnant, then her iddah is 3 periods of menstruation or 3 tuhrs (periods of purity after the menses).
- If her iddah is because of divorce, and she is pregnant, then her iddah is till the end of the delivery.

Allah says,

يَـٰٓأَيُّهَا ٱلنَّبِىُّ إِذَا طَلَّقْتُمُ ٱلنِّسَآءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا۟ ٱلْعِدَّةَ ۖ وَٱتَّقُوا۟ ٱللَّهَ رَبَّكُمْ ۖ لَا تُخْرِجُوهُنَّ مِنۢ بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّآ أَن يَأْتِينَ بِفَـٰحِشَةٍۢ مُّبَيِّنَةٍۢ ۚ وَتِلْكَ حُدُودُ ٱللَّهِ ۚ وَمَن يَتَعَدَّ حُدُودَ ٱللَّهِ فَقَدْ ظَلَمَ نَفْسَهُۥ ۚ لَا تَدْرِى لَعَلَّ ٱللَّهَ يُحْدِثُ بَعْدَ ذَٰلِكَ أَمْرًۭا - فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍۢ وَأَشْهِدُوا۟ ذَوَىْ عَدْلٍۢ مِّنكُمْ وَأَقِيمُوا۟ ٱلشَّهَـٰدَةَ لِلَّهِ ۚ ذَٰلِكُمْ يُوعَظُ بِهِۦ مَن كَانَ يُؤْمِنُ بِٱللَّهِ وَٱلْيَوْمِ ٱلْـَٔاخِرِ ۚ وَمَن يَتَّقِ ٱللَّهَ يَجْعَل لَّهُۥ مَخْرَجًۭا

O Prophet! (Instruct the believers): When you (intend to) divorce women, then divorce them with concern for their waiting period (iddah), and count it accurately. And fear Allah, your Lord. Do not force them out of their homes, nor should they leave—unless they commit a blatant misconduct. These are the limits set by Allah. And whoever transgresses Allah’s limits has truly wronged his own soul. You never know, perhaps Allah will bring about a change (of heart) later.

Then when they have (almost) reached the end of their waiting period, either retain them honourably or separate from them honourably. And call two of your reliable men to witness either way and (let the witnesses) bear true testimony for (the sake of) Allah. This is enjoined on whoever has faith in Allah and the Last Day. And whoever is mindful of Allah, He will make a way out for them. [Surah at-Talaq, 1-1]

وَٱلَّـٰٓـِٔى يَئِسْنَ مِنَ ٱلْمَحِيضِ مِن نِّسَآئِكُمْ إِنِ ٱرْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَـٰثَةُ أَشْهُرٍۢ وَٱلَّـٰٓـِٔى لَمْ يَحِضْنَ ۚ وَأُو۟لَـٰتُ ٱلْأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ ۚ وَمَن يَتَّقِ ٱللَّهَ يَجْعَل لَّهُۥ مِنْ أَمْرِهِۦ يُسْرًۭا

As for your women past the age of menstruation, in case you do not know, their waiting period is three months, and those who have not menstruated as well. As for those who are pregnant, their waiting period ends with delivery.¹ And whoever is mindful of Allah, He will make their matters easy for them. [Surah at-Talaq, 4]

Imam Ibn Jurayj said that Ata' commented on the ayah,

وَأَشْهِدُواْ ذَوَى عَدْلٍ مِّنكُمْ

"And take as witness two just persons from among you." and said, "It is not permissible to marry, divorce or take back the divorced wife except with two just witnesses." This procedure of having two witnesses is, according to most to most jurists, a commendable (mustahabb) practice, and not necessarily mandatory. The underlying wisdom of such appointment is to resolve the possible dispute that may arise later.

If the wife separated from her husband before intercourse or khalwah, then there is no waiting period. Khalwah is when the husband and wife are alone together in a place. In these instances, it is usually assumed that they had enough time to engage in intercourse. If the husband dies, then there will be a waiting period regardless of whether there was intercourse, khalwah, or neither.

Iddah can be divided into 7 types:

1. Iddah of a Pregnant Woman

This is when the husband divorces his wife while she’s pregnant or he dies while she’s pregnant.

Her waiting period ends whenever she gives birth.

- If she has twins in the womb, then it ends when she gives birth to both babies and not just one.
- If she has a miscarriage, then if it can be distinguished as a human form then the same above rule applies, otherwise, there is no waiting period upon her.

The woman who is thrice-divorced is not entitled to maintenance from her husband for herself. The husband has to spend on her for the sake of the pregnancy. This includes whatever she needs of maintenance because of the pregnancy, the husband must provide it, and after the delivery, he should pay for the breastfeeding and clothing and the like of the child, but he is not obliged to provide the mother’s food after the delivery. This is because Allah says,

أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُم مِّن وُجْدِكُمْ وَلَا تُضَآرُّوهُنَّ لِتُضَيِّقُوا۟ عَلَيْهِنَّ ۚ وَإِن كُنَّ أُو۟لَـٰتِ حَمْلٍۢ فَأَنفِقُوا۟ عَلَيْهِنَّ حَتَّىٰ يَضَعْنَ حَمْلَهُنَّ ۚ فَإِنْ أَرْضَعْنَ لَكُمْ فَـَٔاتُوهُنَّ أُجُورَهُنَّ ۖ وَأْتَمِرُوا۟ بَيْنَكُم بِمَعْرُوفٍۢ ۖ وَإِن تَعَاسَرْتُمْ فَسَتُرْضِعُ لَهُۥٓ أُخْرَىٰ

Let them live where you live (during their iddah), according to your means. And do not harass them to make their stay unbearable. If they are pregnant, then maintain them until they deliver. And if they nurse your child, compensate them, and consult together courteously. But if you fail to reach an agreement, then another woman will nurse (the child) for the father. [Surah at-Talaaq, 6].

2. Iddah of a Widow

The Iddah of a widow who is not pregnant is 4 months and 10 days.

If the husband divorces his wife in his final illness before death, then the case has to be investigated.
-If he is suspected of divorcing her in order to block her from his inheritance, then her waiting period will be whichever is longer of the two: four months and 10 days or three menstrual cycles. In addition to this, she will also be counted among the beneficiaries who will inherit him.
- If he is not suspected of divorcing her in order to block her from his inheritance, then her iddah will be three menstrual cycles and she will also not inherit him.

3. Iddah of a Separated Woman and Gets Menses

For a woman who is separated from a living husband and actively gets menses - This is the case where a woman is divorced by her husband. The iddah period would be 3 menstrual cycles. This iddah of a revocable divorce ends as soon as she takes a bath (ghusl) after her third menses ends.

Allah says,

وَٱلْمُطَلَّقَـٰتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَـٰثَةَ قُرُوٓءٍۢ ۚ

Divorced women must wait three monthly cycles (before they can re-marry). [Surah al-Baqarah, 228]

4. Iddah of a Separated Woman and Doesn't Get Menses

For a woman who is separated from a living husband but does not actively get menses due to her age or she has reached the age of menopause (50 years). The iddah period would be 3 months.

Allah says,

وَٱلَّـٰٓـِٔى يَئِسْنَ مِنَ ٱلْمَحِيضِ مِن نِّسَآئِكُمْ إِنِ ٱرْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَـٰثَةُ أَشْهُرٍۢ وَٱلَّـٰٓـِٔى لَمْ يَحِضْنَ ۚ

As for your women past the age of menstruation, in case you do not know, their waiting period is three months, and those who have not menstruated as well. [Surah at-Talaq, 4]

5. Iddah of a Woman whose Menses have Stopped

For a woman who stops getting her menses, there are 2 cases:
a. If she does not know why the menses stopped, then it is assumed that she is pregnant and her iddah period is determined to be 9 months. If there is no baby after nine months, then we assume she has reached menopause so she waits three months. This brings her total iddah period to a total of 12 months.

b. If she knows why her menses stopped, and she knows it will return, then she remains in iddah until her menses return. If it does not return or she has no hope for its return, then as per some scholars, she waits until she reaches the age of menopause (50 years). A stronger and more practical opinion is that her iddah will be for a period of one year.

6. Iddah of a Woman whose Husband is Missing

For a woman whose husband is missing and she does not know whether he is alive or dead;

- If it is most likely that he is dead, then in this case, she waits four years and then does a widow’s iddah.

- If it is most likely that he is alive, then in this case, she waits until he is 90 years old and then does a widow’s iddah. If she does not want to wait that long, she can appeal to a judge to cancel (faskh) the marriage contract.

‍

7. Iddah of a Woman who Sought Khul'

For a woman who has been divorced by means of khul‘ does not finish her iddah  when she becomes pure from the menstrual period during which the khul‘ occurred. Rather she must go through another menstrual cycle, then become pure and do ghusl; then her iddah will have ended, because the period during which the khul‘ occurred was not a complete menstrual cycle, and ‘iddah has to be a complete menstrual cycle.

Imam Ibn Qudamah رحمه الله said, "The menstrual cycle during which she was divorced (talaq) does not count as part of her iddah, and there is no difference of opinion among the scholars concerning that, because Allah, may He be exalted, has commanded that she wait for three menstrual cycles, so it includes three complete cycles; the cycle during which she was divorced does not count because it is only part of a cycle. [al-Mughni]

Other than these, the iddah or waiting period for the following three types of women is 3 months:

1. A woman who reaches puberty but does not get her menses.
2. A woman who has continuous istihadha after the first time she bleeds so she does not yet know her habit days in which she usually bleeds.
3. A woman who is going through istihadha but cannot remember the usual days she gets menses nor can she distinguish between her different types of blood.

‍

To conclude this short article and to summarize, our Sheikh Dr Ibrahim Nuhu حفظه الله said,

"A man cannot divorce his wife while she is having her monthly cycle. It is allowed for a man to divorce only in a clean period before which he hasn't had relations with her. Once a divorce is given it cannot be revoked. The next divorce counts as the two or three divorces and not as one even if the man takes her back. For the counter to be reset to three again, she has to marry another man, consummate the marriage with him, divorce and then again marry the first husband with a new nikah contract.

Majority of the scholars are of the opinion that when a man pronounces three divorces at once they stand as three divorces rather than one. Till the first two years of Umar's رضي الله عنه caliphate from the time of the Prophet ﷺ, three divorces pronounced at once counted as one. Abdullah Ibn Abbas رضي الله عنه also opined the same. This was a political solution. So it is upon the Mufti to see who the person is. If it's a layman then the three divorces count as one. But if it's a student of knowledge for example who knows the severity then for such three divorces count as three.

Imam Ibn al-Qayyim رحمه الله wrote a complete work on this topic where he writes that in a case where the anger is so great that the person has lost complete control then instead of first or second divorce, it doesn't even count as a divorce. The person is likened to an intoxicant which blinds the senses of the person. Sheikh says that when the anger is such then its like the Sultan giving an order to the subordinates. The man is useless in front of his anger."

‍

Disclaimer: All material found on InkOfFaith.com is for free and is for information purposes only. All material may be freely copied & shared on condition that it is clearly attributed to InkOfFaith.com as the original source. The views expressed on this site or on any linked sites do not necessarily represent those of InkOfFaith.com