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Wednesday, April 16, 2008

Shariah Law of Divorce

ALL LAWS MENTIONED HERE ARE IN ACCORDANCE WITH THE HANAFI MATH-HAB UNLESS STATED OTHERWISE
If the husband has issued one or two talaaq, he has the right to take the wife back without making a new nikah while she is still in the iddah, irrespective of whether she wants to come back or not. In this particular case the wife has no say at all.
The husband may take her back in the iddat by saying verbally: “I have taken my wife back” or by a sexual advance such as kissing or sexual intercourse, etc. It is preferable, not compulsory to say he is taking her back in front of two witnesses.
However, in the Shaafi math-hab, sexual intercourse is not a means of raj’ah or retraction. Instead the husband has to make a verbal statement in front of two witnesses that he has taken her back into his nikah. (Al Majmoo’)

After the expiry of the iddat, (when 1 or 2 talaaq were given) the husband and wife can only get back together again by making a new nikah with a new dowry. And this is if the wife agrees to come back. If the woman does not agree to come back after the iddat, no one can force her because the moment the iddat ends, she is no longer his wife. In this case the woman has got a choice of her own (whether to come back to her former husband or not).
THREE TALAAQ: If the husband gave his wife three talaaq then the nikah breaks immediately and there is no way the two can get back together again. This is the strongest form of talaaq. The wife is now forever haraam upon the husband. This law applies to all Schools of Fiqah.
Our menfolk should therefore be very, very careful in the utterance of talaaq. So often the husband blurts out three talaaq in anger, sometimes to spite the wife, or to frighten her, or punish her. Little does he realise that he spites none but himself. It is a classical example of cutting off the nose to spite the face. After such a rash utterance, only then does the severity of the matter hit home. By then it is too late to change anything. We referred earlier to impulsive behaviour, to anger and rashness. This, plus ignorance of the laws of talaaq is what propels the husband to make such utterances which he rues for the rest of his life. Take note of the following laws.
For a divorce to be effective it is not necessary that it must be in writing. A verbal talaaq, be it one, two, or three is effective and enough to sever the bond of nikah. It is wrong to believe that only a written talaaq is valid. The law of the Shariah clearly states that a talaaq uttered with the tongue is valid and takes effect. However, in view of a trend among husbands to issue talaaq today and deny it tomorrow (and exploit this technicality), it is preferable to have the talaaq written out.
The moment a husband decides to divorce his wife, we suggest that he goes to the Ulema for advice. The Ulema will firstly try and reconcile the couple. Should all attempts at reconciliation fail, then the husband will be advised how to issue a talaaq. We appeal: Please do not be hasty in issuing a talaaq until you have consulted the Ulema. In so doing you will safeguard your Deen and your nikah as well.
Should the marriage reach a point where talaaq is the only way out and reconciliation is not even a remote possibility, then let the husband follow this simple and safe procedure: Issue only one talaaq, then leave the wife to sit in her iddat. He must separate himself from her by not sharing the bed and not mixing, but they both may stay in the same house. The wife must spend her iddat in the house provided for her by the husband.
One talaaq is therefore enough. Some wives (or in-laws) insist and impose upon the husband to issue three. There is absolutely no need for three talaaq. One talaaq is enough and will terminate the nikah, which is the ultimate aim in cases of marital breakdown.
Three talaaq are valid even if they are uttered in one sentence, in one phrase, or in three different sentences, or they are uttered in one gathering or on three separate occasions.