يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ ۖ وَاتَّقُوا اللَّهَ رَبَّكُمْ ۖ لَا تُخْرِجُوهُنَّ مِن بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ ۚ وَتِلْكَ حُدُودُ اللَّهِ ۚ وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ ۚ لَا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَٰلِكَ أَمْرًا (1)
(65:1) O Prophet, when you divorce women, divorce them for their waiting-period, *1 and compute the waiting period accurately, *2 and hold Allah, your Lord, in awe. Do not turn them out of their homes (during the waiting period) ' nor should they go away (from their homes) *3' unless they have committed a manifestly evil deed. *4 Such are the bounds set by Allah; and he who transgresses the bounds set by Allah commits a wrong against himself. You do not know: maybe Allah will cause something to happen to pave the way (for reconciliation). *5
*1) That is, "O believers, you should not make undue haste in the Matter of pronouncing divorce: your minor family quarrels should not so incite you that you should pronounce the final divorce in a fit of anger and there teremains no chance for reconciliation. However When you have to divorce your wives, you should divorce them for their prescribed waiting-period." Pronouncing divorce for the waiting period has two meanings and both arc implied here:
First. That "you should divorce them at a them when their waiting-period can begin. " This thing has already been prescribed in Al-Baqarah: 228 above. The waiting-period of the married woman who menstruates is three monthly courses after the pronouncement of divorce. If this commandment is kept in view the only appropriate time of pronouncing divorce 50 that the waiting period may duly begin is when she is not in her courses, for he waiting-period cannot begin from the course during which she ma have been divorced, and divorcing her in that state would mean that, contrary to the Divine Command, her waiting-period should extend to four courses instead of three courses. Furthermore, this commandment also demands that the woman should not he divorced in the period-of purity during which the husband may have had sexual intercourse with her. For in this case, at the time divorce is pronounced neither the husband nor the wife can know whether he has conceived in consequence of the intercourse or not. Because of this neither the waitinlt-period can begin on the hypothesis that this would be reckoned in view of the succeeding monthly courses, nor on the hypothesis that this would be the waiting-period of a pregnant woman. So, this commandment lays down two rules simultaneously: first, that divorce should not be pronounced during menstruation; second, that divorce may be pronounced either in the period of purity during which there was no sexual intercourse with the woman, or in the state when the woman's being pregnant was known. A little consideration of the matter will show that the restrictions imposed on the pronouncement of divorce arc for good reasons. The reason for imposing the restriction on the pronounce meant of divorce during menstruation is that in this state the husband and the wife are somewhat estranged from each other because of the prohibition of sexual intercourse in this start; and from the medical viewpoint also it is confirmed that the woman is not temperamentally normal during the courses. Therefore, if a quarrel starts between them in this state, both the husband and the wife would be helpless to an extent to put an end to it, and if the matter is deferred till the woman is free from her courses, there is the possibility that the woman also may return to her normal temperamental state and the mutual attraction that nature has placed between them also may work and reunite them. Likewise, the reason for prohibiting the pronouncement of divorce during the purity period in which sexual intercourse may have taken place, is that if in consequence of it conception takes place, it can neither be known to the husband nor to the wife. Therefore, it cannot be a suitable time for pronouncing the divorce. If the man comes to know that conception has taken place, he would think a hundred times before deciding finally whether he should pronounce divorce or not on the woman who carries his child in her womb. The woman also in view of the future of her child would try her best to remove the causes of her husband's displeasure. ,But if a decision is taken blindly, in undue haste, and then it is known that conception had taken place, both will regret it later.
This is the first meaning "divorcing for the prescribed waiting-period", which applies only to those women marriage with whom has been consummated, who menstruate and may possibly conceive. As for its second meaning it is this: "If you have to divorce your wives, you should divorce them till the expiry of their waiting-period". That is "Do not pronounce three divorces aII at once leading to permanent separation, but pronounce one, or at the most two divorces, and wait till the end of the waiting-period, so that there remains some chance for reconciliation for you at any time during this period." According to this meaning; this commandment is also useful in respect of those woman marriage with whom has been consummated and who menstruate as well as of those who no longer iuenstnrate, or those who have not yet menstruated, or those whose pregnancy at the time of the pronouncement of divorce is known. If this Divine Command is rightly followed, no one will regret after having pronounced divorce, for if divorce is pronounced in this way, there remains room for reconciliation within the waiting. period, and even after the expiry of the waiting-period the possibility remains that the separated husband and wife may remarry if they wish reconciliation,
This same meaning of talliqu-hunna Ii- iddat-i hinna ( divorce them for their prescribed waiting-period") has been given by the earliest commentators. Ibn 'Abbas has given this commentary of it: "One should not pronounce divorce during menstruation nor in the period of purity (tuhr) during which the husband may Inave had sexual intercourse. But one should leave the wife alone till she attains purity after the course; then one may pronounce a single divorce on her. In this case even if there is no reconciliation and the waiting-period expires, she would be separated by the single divorce." (Ibn Jarir) Hadrat 'Abdullah bin Mas'ud says: Divorce for the waiting-period means that ane should pronounce the divorce in the woman s state of purity without having had an intercourse with her. " The same commentary has been reported from Hadrat `Abdullah bin `Umar, `Ata', Mujahid, Maimun bin Mahran, Muqatil bin Hayyan, and Dahhak (may Allah bless them all) (Ibn Kathir). Ikrimah has explained it thus: `One may pronounce the divorce in the state when the woman's being pregnantt is known, and not when one has had sexual intercourse with her and it is not known whether she has conceived or not." (Ibn Kathir) Both Hadrat Hasan Basri and lbn Sirin say: `Divorce should be pronounced during the state of purity without having had sexual intercourse. or when the woman's being pregnant becomes known. " (Ibn Jarir)
The intention of thin verse wa: best explained by the Holy Prophet (upon whom be Allah's peace) himself on the occasion when Hadrat `Abdullah bin `Umar had divorced his wife while she was discharging the menses .. The, details of thin incident have been reported in almost alI collections of Hadith and the same. in fact. are the source of the law in this connection. It so happened that when Hadrat `Abdullah divorced hi: wife while she was menstruating, Hadrat Umar came before the Holy Prophet and mentioned it to him. The Holy Prophet expressed great displeasure and said: Command him to take her back and keep her as his wife till ste is purified, that she again menstruates and is again Purified: then if he so desires he may divorce her in her state of purity without having any sexual_ intercourse with her. This is the waiting-period which Ailah Almighty has prescribed for the divorce of women." In a tradition the words are to the effect: "Either one may pronounce the divorce in the woman's state of purity without having a sexual intercourse, or in the state when her being pregnant becomes fully known".
The intention of this verse is further explained by a few other Ahadith which have been reported from the Holy prophet (upon wham be Allah's peace) ai d some of the major Companions. Nasa'i has related that the Holy Prophet was infomed that a person had pronounced three divorces on his wife in ane sitting. He stood up in anger and said:'`Are the people playing with the Book of Allah, although I am present among you?" Seeing the Holy Prophet's extreme anger on this occasion, a person asked: `Should I not go and kill the man?" `Abdur Razzaq has reported about Hadrat `Ubadah bin as-Samit that hi: father pronounced one thousand divorces on his wife. He went before the Holy Prophet (upon whom be peace) and asked his ruling on it. The Holy Prophet said: `By the throe divorces the woman stood separated from him along with Allah': disobedience, and 997 pronouncement remained a: acts of injustice and sin, for which AIlah might punish him if He so willed and forgive him if He so willed. " In the details of the incident concerning Hadrat `Abdullah bin `Umar, which have been related in Daraqutni and Ibn Abi Shaibah, another thing also is that when the Holy Prophet commanded Hadrat `Abdullah bin `Umar to take his wife back, he asked: Had I pronounced three divorces on her, could I have taken her back even then? The Holy Prophet replied: No, she would have stood separated from you, and this would have been an act of sin." In another tradition the Holy Prophet's words arc to the effect: `Had you done this, you would have committed disobedience of your Lord while your wife would have been separated from you."
The legal rulings reported from the Companions in this regard are also in complete comformity with the Holy Prophet's injunctions. According to a tradition in Mu'watta, a person came to Hadrat 'Abdullah.bin Mas'ud and said: "I have pronounced eight divorces on my wife. Ibn Mas`ud asked: What legal opinion have you been given in this regard? He said: I have been told that the woman stands separated from me. Ibn Mas`ud said: The people have said the right thing: the legal position is the same as they have told you." 'Abdur Razzaq has related from 'Alqamah that a person said to Ibn Mas'ud: "I have pronounced 99 divorces on my wife He said: Three divorces separate her from you; the rest are (acts of sin) excesses. " Waki' bin al-Jarrah in his sunan has reported this very viewpoint of both Hadrat 'Uthman and Hadrat 'AIi. A person came to Hadrat `Uthman and said: "I have pronounced a thousand divorces on my wife-'. He replied: "She stood separated from you by three divorces." When a similar problem was presented before Hadrat `Ali he replied; `By three divorces she stood separated from you. You may distribute the rest of your pronouncements on the rest of your wives if you so like." Abu Da'ud and Ibn Jarir have related, with a little variation in wording, a tradition from Mujahid, saying: "While I was sitting with Ibn Abbas, a person came and said: `I have pronounced three divorces on my wife.' Ibn 'Abbas heard it but kept silent for so long that I thought he was perhaps going to return his wife to him. Then he said: 'One of you first commits the folly of pronouncing the divorces; then he comes and says: O lbn `Abbas, O Ibn `Abbas! whereas Allah has said that whoever fears Him in whatever he does, He will open a way for him out of the difficulties. You did not fear Allah; now I do not find any way for you: you have disobeyed your Lord, and your wife stands separated from you.' Another tradition, which also has been reported from Mujahid and related with a little variation in wording in mu'watta and Tefsir by Ibn Jarir, says: 'A person pronounced a hundred divorces on his wife; then he asked Ibn 'Abbas for his opinion. He replied: 'By three divorces she stood separated from you. With the other 97 you made a Jest of the Revelations of Allah!" This is according to Mu'watta. According to Ibn Jarir the words of Ibn `Abbas were to the effect: 'You disobeyed your Lord, and your wife stood separated from you, and you did not fear Allah that He might open a way for you out of the difficulty." Imam Tahavi has related 'that a man came to Ibn `Abbas and said: 'My uncle has pronounced three divorces on his wife. He replied: Your uncle ,has disobeyed Allah and committed a sin and followed Satan. Now, AIlah has left no way open for him out of the difficulty." According to a tradition in Mu'watta and Abu Da'ud, a man pronounced three divorces on his wife before the consummation of marriage; then desired to remarry her, and came out to know the legal aspect of the matter. The reporter of the Hadith, Muhammad bin lyas bin Bukair, says: 'I accompanied him to Ibn `Abbas and Abu Hurairah. The reply each one gave was: 'You have Iet slip from your hand whatever opportunity was there for you'." Zamakhshari has stated in al-Kashshaf that Hadrat `Umar used to beat the man who would pronounce three divorces on his wife (at one and the same time) and then would enforce his divorces. Sa'id bin Mansur has related this very thing from Hadrat Anas on sound authority. In this connection. the general opinion of the Companions. which Ibn Abi Shaibah and Imam Muhammad have related from Ibrahim Nakha'i (may Allah bless them) was: "The Companions (may AIlah be pleased with them) approved of this method that one may pronounce a single divorce on the wife and leave her alone till she completes three monthly courses." These are the words of Ibn Abi Shaibah. The words of Imam Muhammad are to the effect: '`The approved method with them was that in the matter of divorce one should not exceed one divorce tilt the waiting-period is completed."
The detailed law that the jurists of Islam have compiled with the help of these Ahadith and traditions in the light of the above mentioned Qur'anic verse, is as follows: (1) The Hanafis regard divorce as of three kinds: Ahsan. hasan, and bid'i. The ahsan form of divorce is that one may pronounce only one divorce on one's wife during a ,tuhr (purity) period in which one must refrain from sexual intercourse and leave the wife to complete her waiting-period. The hasan form of divorce is that one may pronounce one divorce in each period of purity: in this case pronouncement of three: divorces, one each in three periods of purity, . is also not against the Shari'ah, although the best approved method is to pronounce only one divorce and leave the wife to complete her waiting-period. The bid form of divorce is that one must pronounce three divorces in a single sitting, or pronounce three divorces at different times during the same period of purity, or pronounce divorce during menstruation, or pronounce it in the period of purity during which one has had a sexual intercourse. Of these whichever course one may adopt one will be guilty a sin, This is the law in respect of the woman Marriage with whom has been consummated and who has regular courses. As for the woman marriage with whom has not been consummated, she can be divorced both in the state of purity and during menstruation, and this is according to the Sunnah. And if the woman is such a one marriage with whom has been consummated who no longer menstruates, or the one who has not yet menstruated, she can be divorced even after the sexual intercourse'for there is no chance of her being pregnant. And if the woman is pregnant, she also can be divorced after the sexual intercourse, for her pregnancy is already established. But the method of pronouncing divorce on these women according to the Sunnah, is that the divorce may be pronounced at the interval of one month in each case. However, the ahsan method is that only one divorce may be pronounced and the woman left to complete her waiting period. (Hedayah, fath alQadir, Ahkam al-Qur an (AI-Jassas), `Umdat al-Qari).
According to Imam Malik also divorce is of three kinds . Sunni, bid'i makruh and bid'i haram. The divorce according to the Sunnah is that a single divorce be pronounced on the woman marriage with whom has been constunmate(1 and who menstruates, during her state of purity without having had sexual intercourse, and the woman be left to complete her waiting-period. The bid'i makrnh form is that divorce be pronounced in the period-of purity during which one may have had sexual intercourse, or more divorces than one be pronounced in the period of purity while there was.no sexual intercourse, or three divorces be pronounced, one each in separate periods of purity within the waiting-period, or three divorces be pronounced alI at once. And bid i haram is that divorce be pronounced during menstruation. (Hashiyah ad-Dusuqi alal-Sharh-al-Kabir Ibn aI- Arabi, Ahkam al-Qur an).
The authentic viewpoint of Imam Ahmad bin Hanbal which is generally agreed upon by the Hanbalis is: The approved method (i.e. the one according to the Sunnah) of divorcing a wife marriage with whom has been consummated and who menstruates is that a single divorce be pronounccd on her in her period of purity without having had sexual intercourse with her, and then she be left to complete her waiting-period. But if she is giver three divorces, one each in three separate periods of purity or three divorces in one and the same period of purity, or divorced thrice at once, or divorced during the courses, or divorced in the period of purity during which the husband has had sexual intercourse and her being pregnant is not known, all these would be disapproved and forbidden forms of divorce. But if the woman is such that marriage with her has been consummated but who no longer menstruates, or such who has not yet menstruated, or is pregnant, in her case there is neither any difference of approved and disapproved with regard to time nor with regard to the number of divorces pronounccd. (Al-Insaf fi Ma'rifat-ar-Rajih min al-Khilaf 'ala Madhhab Ahmad bin Hanbal).
According to Imam Shafe'i, in the matter of divorce the difference between the approved (i.e.. according w the Sunnah) and the reprehensible (i.e. against the Sunnah) forms of divorce is only with regard to time and not with regard to number That is, to pronounce divorce on a woman marriage with whom has been consummated and who menstruates, during menstruation or to pronounce divorce on a Ovarian, who can conceive, during such a period of purity in which the husband has had sexual intercourse with her and the woman's pregnancy is unknown, is disapproved and forbidden. As for the number, whether three divorces arc pronounced at one time, or pronounced in the same period of purity, or pronounced in separate periods of purity, they are not against the Sunnah in any case. In case the woman is such that marriage with her has not been consummated, or the one who no longer menstruates, or the one who has not yet menstruated, or the one whose being pregnant is known, there is no difference between the approved and the disapproved forms of divorce. (Mughni al-Muhtaj)
(2) A divorce's being irregular, reprehensible, forbidden, or sinful with the four Imams dces not mean that it does not have effect. According to all the four Sunni Schools, whether a divorce is pronounced during menstruation, or thrice at once, or pronounced in the period of purity during which the husband has had sexual intercourse and the woman's being pregnant is unknown, or pronounced in a manner disapproved by an Imam, in any case it dces become effective, although the pronounce commits an act of sin. But some other scholars differ in this regard from the four Imams.
Sa'i bin al-Musayyab and some other immediate followers of the Companions say that the divorce of the person who pronounces it during menstruation, or pronounces it thrice at one time, dces not take place at aII. The same is the opinion of the Imamiah sect of the Shi`as. The basis of this opinion is that since this form of divorce is forbidden and utttrly irregular, it is ineffective, whereas the AhadIth that we have cited above, clearly show that when Hadrat 'Abdullah bin `Umar divorced his wife during menstruation, the Holy Prophet commanded him to take her back; had the divorce not taken effect at all, the command to take the wife back would have been meaningless. And this also i6 confirmed by many Ahadith that the Holy Prophet and the major Companions considered the pronounce of more divorces than one at one time sinful but did not regard his divorce as ineffective.
Ta'us and 'Ikrimah say that only one divorce takes place if divorce is pronounced thrice at once, and this very view has been adopted by Imam Ibn Taimiyyah. The source of his this opinion is that Abu as-Sahba' asked Ibn 'Abbas: 'Don't you know that in the lifetime of the Holy Prophet (upon whom be Allah's peace) and Hadrat Abu Bakr and in the early period of Hadrat 'Umar a triple divorce was considered a single divorce? He replied: Yes." (Bukhari, Muslim). .And in Muslim, Abu Da'ud and Musnad Ahmad, Ibn Abbas's this statement has been cited: "In the lifetime of the Holy Prophet (upon whom be peace) and Hadrat Abu Bakr and during the first two years of the caliphate of Hadrat `Umar a triple divorce was considered a single divorce. Then Hadrat `Umar expressed the view: As the people have started acting hasty in a matter in which they had been advised to act judiciously and prudently, why should we not enforce this practice? So, he enforced It. "
But this view is not acceptable for several reasons. In the first place, according to several traditions lbn `Abbas's own ruling was against it, as we have explained above. Secondly, it is contrary to those Ahadith also, which have been reported from tire Holy Prophet upon whom be peace) and the major Companions, in which the ruling given about the pronounce of a threefold divorce at one time is that all his three divorces become effective. These Ahadith also have been cited above Thirdly, from Ibn `Abbas's own tradition itself it becomes evident that Hadrat `Umar had publicly enforced the triple divorce in the assembly of the Companions, but neither then nor after it the Companions ever expressed any difference of opinion. Now, can it be conceived that Hadrat `Umar could decide an issue against the Sunnah? And could the Companions also accept his decision without protest? Furthermore, in the story concerning Rukanah bin `Abd-i Yazib, a tradition has been related by Abu Da'ud, Tirmidhi, Ibn Majah, Imam Shafe`i, Darimi and Hakim, saying that when Rukanah pronounced three divorces on his wife in one and the same sitting, the Holy Prophet (upon whom be peace) asked him to state on oath whether his intention was to pronounce one divorce only, (That is, the two subsequent divorces were pronounced only to lay emphasis on the first divorce; the triple divorce was not intended to create separation permanently). And when he stated this on oath, the Holy Prophet gave him the right to take his wife back. `This brings out the truth of the matter as to what kind of divorces were considered a single divorce in the carliest.period of Islam. On this very basis, the interpreters of the Hadith have explained the tradition of Ibn 'Abbas thus: As in the early period of Islam deceit and fraud in religious matters was almost unknown among the people, the statement of the pronouncer of a triple divorce was admitted that his real intention wa: to pronounce only a single divorce, ard the two subsequent divorce: had been pronounced only for the sake of emphasis. But when Hadrat `Umar saw that the people first pronounced three divorces in haste and then presented the excuse of pronrnmcing them only for the sake of emphasis, he refused to accept this excuse. Imam Nawawi and Imam Subki regard this as the beat interpretation of the tradition from Ibn `Abbas, Finally, there is disagreement in the traditions of Abu aa-Sahba' himself, which he has related concerning the saying of Ibn `Abbas. Muslim, Abu Da'ud and Nasa'i have related from this same Abu as-Sahba' another tradition; saying that on an enquiry by him. Ibn `Abbas said: ` When a person pronounced a threefold divorce on his wife before consummation of marriage, it was considered a single divorce in the lifetime of the Holy Prophet (upon whom be peace) and Hadrat Abu Bakr and in the early period of Hadrat 'Umar," Thus, one and the same reporter has reported from Ibn 'Abbas traditions containing two divergent themes and this diversity weakens both the traditions.
(3) As the Holy Prophet had commanded the pronouncer of the divorce during menstruation to take his wife back, the dispute has arisen among the jurists as to what is the exact sense of this command Imam Abu Hanifah, Imam Shafe'i, Imam Ahmad, Imam Auza'i, Ibn Abi Laila, Ishaq bin Rahawaih and Abu Thaur say that such a person would be commanded to take his wife back, but would not be compelled to do so. ('Umdat alQari). The Hanafi viewpoint as stated in Hedayah is that in this case taking the wife back is not only preferable but also obligatory. In Mughni al-Muhtaj' the Shafe'i viewpoint has been stated to be that the approved (i.e. One according to Sunnah method for the one who has pronounced divorces during menstruation, but has not pronounced a triple divorce, is that he should take his wife back, and should refrain from pronouncing divorce in the following period of purity, but should pronounce it, if he so likes, in the period of purity when the wife has become fret from her next menstrual course and attained purity, so that his revocation of the divorce pronounced during menstruation is not taken in jest. The Hanbali viewpoint as presented in Al-Insaf is that in this state it is preferable for the pronounce of divorce to take his wife back. But Imam Malik and his companions say that pronouncement of divorce during menstruation is a cognizable offence. Whether the woman makes a demand or not, it is in any case the duty of the ruler that if such an act of some one is brought to his notice, he must compel the person to take his wife back and should continue to press him till the end of the waiting-period; and if he refuses to take her back. he should imprison him; if he still refuses, he should beat him; and if he still does not accede, the ruler should give his own decision, saying: "I return your wife to you. " And the ruler's this decision would be effective after which it would be lawful for the man to have sexual intercourse with the woman, whether he intends to take her back or not, for the ruler's intention represents his intention. (Hashiyah ad-Dusuqi). The Malikis also say that if the person, who has taken his wife back willingly or unwillingly, after divorcing her during menstruation, has made up his mind to repudiate her, the preferable method for him is that he should refrain from divorcing her in the period of purity following the menstruation during which he divorced her, but should divorce her in the period of purity following the ncxt menstruation The prohibition to pronounce divorce in the period of purity following the menstruation in which divorce was pronounced, has been enjoined so that the return of the pronouncer during menstruation dces not remain merely oral, but he should have sexual intercourse with the woman during the period of purity. Then, since the pronouncement of divorce in the period of purity in which sexual intercourse has taken place is prohibited, the right time for pronouncing it is the following period of purity only. (Hashiyah ad-Dusuqi).
(4) As to the question: Till when has the pronouncer of one revocable divorce the power to take his wife back? difference of opinion has arisen among the jurists and this difference has occurred on the question: What do the words thalathata quti'-in or AI-Baqarah: 228 imply: three menstruaion or three periods of purity? According to Imam Shafe`i and Malik, qara implies a period of purity, and this view is held on the authority of Hadrat 'A'ishah, Ibn 'Umar and Zaid bin Thabit (may Allah be pleased with them). The Hanafi viewpoint is that qara implies menstruation and the same is the authentic viewpoint of Imam Ahmad bin Hanbal too. This view is based on the authority of all the four rightly-guided Caliphs, Abdullah bin Mas'ud, `Abdullah bin 'Abbas, Ubayy bin Ka'b, Mu'adh bin Jabal, Abu ad-Darda', 'Ubadah bin as-Samit and Abu Musa al-Ash'ari (may Allah be pleased with them). Imam Muhammad in his Mu'watta has cited a saying of Sha`bi, saying that he met thirteen of the Holy Prophet's Companions and they all held this same opinion, and this very view was adopted by many of the immediate followers of the Companions also.
On account of this difference of opinion, according to the Shafe`is and the Malikis, the waiting period of the woman comes to an end as soon as she enters the third menstruation, and the man's power to take her back -is terminated. And if the divorce has been pronounced during menstruation, this menstruation will not be counted towards the waiting-period but the waiting-period will come to an end as soon as the woman enters the fourth menstruation. (Mughni al-Muhtaj; Hashiyah ad-Dusuqi). The Hanafi; viewpoint is that if the menstrual discharge in the third menstruation stops after ten days, the waiting-period of the woman will cane to an end with it whether she takes purification bath or not; and if the discharge ceases within less than ten days, the waiting-period will not come to an end until the woman has taken her purification bath, or until a Prayer time has passed. In case water is not available, according to Imam Abu Hanifah and Imam Abu Yusuf, the man's right to return to her will be terminated, when she has performed her Prayer with tayammum (purification with dust), and, according to Imam Muhammad, as soon as she has performed tayammwn itself. (Hedayah). Imam Ahmad's authentic viewpoint which is held by the majority of the Hanba lis is that as long as the woman does not have her purification bath after the third menstruation, the man's right to return w her will remain. (Al-Insaf).
(5) As for the question that is the method of taking the wife back? the jurists are agreed that the person, who has pronounced a revocable divorce on his wife, can return to her whenever he likes before the expiration of the waiting-period, whether the woman is desirous of this or not, for the Qur'an says: "Their husbands are best entitled to take them back as their wives during this waiting-period." (AI-Baqarah: 228). From this it can automatically be concluded that until the expiry of the waiting-period, the marriage tie remains intact and the husbands can take them back before they are separated absolutely and finally In other words, taking the wife back does not mean renewal of marriage for which the woman's consent may be necessary. After being unanimous so far, the jurists about different opinions about the method of taking the wife back.
According to the Shafe'is, return can take place only by the oral word, not by conduct. If the husband dces not say with the tongue that he has taken the wife back, no act of intercourse or intimacy even if performed with the intention of resuming marital relationship, will be considered resumption of the relationship. Rather in this case seeking of every kind of enjoyment. from the woman is unlawful even if it is without lust. But there is no bar on having sexual intercourse with the woman, who has been divorced revocable, for the scholars are not agreed on its being unlawful. However, the one who believes in its being unlawful will be punishable. Furthermore, according to the Shafe'i viewpoint, it is in any case. incumbent to pay a proper or customary dower (makr Mithal) in case the husband has intercourse with the wife whom he had divorced revocable, whether after it he takes her back orally or not. (Mughni a/-Muhtaj).
The Malikis say that return can be effected both orally and by conduct. If for the purpose of resumption by word of mouth the husband uses express words, the resumption will take place whether he intended it or not; even if he uttered express words of resumption in jest, these words would amount to return and resumption. But if the words are not express, they would be considered resumption of relationship only in case they were pronounced with the intention of resumption. As for resumption by conduct, no act whether it is an act of intimacy or sexual intercourse, can be considered resumption as long as it has not been performed with the intention of the resumption of marital relation. (Hashiyah adDusuqi; Ibn `Arabi; Ahkam al-Qur an).
As for resumption of relationship by the word of mouth, the Hanafi and the Hanbali viewpoint is the same as the Malikl. As for resumption by conduct, the ruling of both the Schools, contrary to the Malikis, is that if the husband performs sexual intercourse with the woman whom he has divorced revocable within the waiting-period, it would by itself amount to resumption whether there was the intention of resumption or not. However, the difference between the viewpoints of the two Schools is that according to the Hanafis every act of intimacy amounts to resumption even if it is of a lesser degree than sexual intercourse; whereas the Hanbalis do not regard a mere act of intimacy as resumption of marital relationship. (Hedayah, Fath al-Qadir, `Umdat al-Qari A/Insaf)
(6) As for the consequences of ,talaq as-Sunnah (regular form of divorce according to the Sunnah) and ,talaq al-bid i (irregular form of divorce) the difference is this: In case one or two divorces have been pronounced, the divorced woman and her former husband can re-marry by mutual consent even if the waiting-period has expired. But if a man has pronounced three divorces, resumption of marital relation is neither possible within the waiting-period, nor after the expiry of the waiting period, unless, however, the woman marries another person, the marriage is duly contracted and consummated, and then either the second husband divorces her or dies; then if the woman and her former husband wish to re-marry by mutual consent, they can do so. In most collections of the AhadIth a tradition has been repoted on sound authority, saying that the Holy Prophet (upon whom be Allah's peace) was asked: "A man pronounced three divorces on his wife, then the woman married another man and the two had privacy but there was no intercourse; then he divorced her. Now, can this woman re-marry her former husband? The Holy Prophet replied: "No, unless her second husband has enjoyed her just as her first husband had enjoyed her." As {or the pre-arranged marriage (tahlil) which is meant to legalise the woman for her former husband, so that she would marry another man, who would divorce her after having had sexual intercourse with her, this is invalid according to Imam Abu Yusuf, and according to Imam Abu Hanifah, the woman would become lawful for her former husband by this ceremony but such a thing is reprehensible to the extent of being unlawful. Hadrat 'Abdullah bin Mas'ud has reported that the Holy Prophet (upon whom be Allah's peace) said: "AIIah has cursed both the legaliser (Muhallil) and the one for whom legalisation is performed (mnhallil lahu). "(Tirmidhi, Nasa'i) Hadrat 'Uqbah bin 'Amir says that the Holy Prophet (upon whom be Allah's peace) asked his Companions: "Should I not tell you as to who is a hired bull?" The Companions said that he should. He said: "It is he who performs tahlil (legalisation of marriage) Allah's curse falls both on the muhalil (legaliser) and on the muhallal lahu (the one for whose sake marriage is legalised)." (Ibn Majah, Daraqutni).
*2) This Command is addressed to the men as well as the women and the people of their families. It means: "Do not treat divorce lightly; it is a grave matter, which gives birth to many legal questions for the man, the woman, their children and the people of their house Therefore, when divorce is pronounced, its time and date should be remembered and also the state in which divorce was pronounced on the woman; one should keep an accurate account of when the waiting period started, and when it would expire. On this reckoning will depend the determination of the following questions: Till when has the husband the power to take the wife back? Till when has he to keep her in the house? Till when is he bound to maintain her? Till when will he inherit the woman ant the woman him? When will the woman be separated from him finally and obtain the right to remarry? And if this matter takes the shape of a law-suit, the court also in order to arrive at the correct decision, will need to know the correct date and time of pronouncing the divorce and the woman's state at the time, for without this information, it cannot give the right decision on the questions arising from the divorce in respect of the women who have been enjoyed, or not, pregnant, or not, who menstruate, or no longer menstruate, and who have been divorced revocably or irrevocably.
*3) That is, " Neither should the man turn out the woman in anger, nor the woman herself should leave the house in anger and haste. The house is hers during the waiting-period, and both the man and the wife should live together so that advantage may be taken if there is any chance of reconciliation. If the divorce is revocable, the husband may at any time be inclined towards the wifc, and the wifc also may try to win the husband's pleasure by removing the causes of dispute and difference. If both stay together in the same house, there may appear many an occasion for reconciliation during the three months' or the three menstrual periods, or till child birth in case of pregnancy. But if the man turns her out in angry haste, or the woman returns to her parents imprudently, chances of reconcilment diminish, and the divorce generally leads to permanent separation. That is why the jurists have even suggested that in case of a revocable divorce the woman should during her waiting-period adorn herself so as to attract the husband. (Hedayah; AI-Insaf ).
The jurists are agreed that the revocably divorced woman has a right to lodging and maintenance during the waiting-period, and it is not lawful for the woman to leave the house without the husband's permission, nor is it lawful for the husband to turn her out of the house. If the husband turns her out he will be guilty of an act of sin and if the woman leaves of her own accord, she will not only commit a sin but will also forfeit her right to lodging and maintenance.
*4) Several meanings of this have been given by different jurists. Hadrat Hasan Basri,'Amir Sha'bi, Zaid bin Aslam, Dahhak, Mujahid, `Ikrimah, Ibn Zaid, Hammed and Laith say that it implies adultery. Ibn 'Abbas says that it unplies abusive language that the woman may continue to use against the husband and the people of his house even after the divorce, during the waiting-period. Qatadah says that it implies the woman's disobedient to her husband; that is, if the wife has been divorced because of her disobedience she may continue to be disobedience to her husband even during the waiting-period. 'Abdullah bin `Umar, Suddi, Ibn as-Sa'ib and Ibrahim Nakha'i say that this implies the woman's leaving the house of herself. That is, in their opinion the woman's leaving the house in the waiting-period by itself amounts to committing an open indecency, and the command: 'Nor should they themselves Ieave the house except in case they commit an open indecency," is an admonition of this nature: 'Do not abuse others except in case you wish to be known as a discourteous person. " According to the first three of these four viewpoints, "except in case" is related with "Do not turn them out of their houses," and the sentence means that if they arc guilty of immorality or of using invectives or of disobedience, it would he lawful to turn them out of the houses. and according to the fourth view, it is related with "nor should they themselves leave their houses," and it means that if they leave their houses they would be guilty of open indecency.
*5) Both these sentences refute the viewpoint of those who hold that divorce does not take place at aII if it is pronounced during menstruation or thrice at once, and also the view of those who think that a triple divorce amounts to a single divorce. The question arises . If an irregular (bid i) divorce does not take place, or a triple divorce amounts to a single revocable divorce, what then is the aced of saying: "Whoever transgresses the bounds set by Allah (i.e. the method taught by the Sunnah), would wrong his own self; and you do not know Allah may after this bring about a situation of reconciliation?" These two things would be meaningful only in case pronouncement of divorce against the method taught by the Sunnah should be harmful for which one may have to regret later. and the pronouncement of a triple divorce at once may not leave any room for reconciliation; otherwise, obviously by pronouncing a divorce which does not take effect at aII one does not transgress the bounds set by AIlah, which may be regarded as wronging one's own self, and after a divorce which is in any cast only revocable there does remain room for reconciliation; thus, there would be no need to say: "AIIah may after this bring about a situation of re-conciliation."
Here, one should again understand well the mutual relationship between vv. 228-230 of Al-Baqarah and these verses of Surah At-Talaq. In Surah AIBaqarah the number of divorces laid down is three of which after pronouncing the first two one retains the right to take one's wife back and the right to re-marry her in cast the wailing-period has expired, without resort to legalisation (tahlil), and if divorce is pronounced for the third time the husband forfeits both these rights. These verses of Surah At-Talaq were not sent down to amend or cancel this rule but to teach the people how to use wisely the powers that they have been given to divorce their wives, which if used rightly could save homes from ruin, could protect the husband from remorse if he had pronounced a divorce. could provide him maximum opportunities for reconciliation, and even if separation had taken place, could show him a way to reunite in marriage as a last resort if the couple so desired Hut if a person happens to use these powers unwisely, in a wrong way, he could only be wronging his own self and wasting all opportunities for making amends. It is just like a father's giving three hundred rupees in his son's possession and telling him to spend the amount as he may like; then advising him to the effect; "Spend the money given to you carefully, at the right place, and piece meal, so that you may benefit by it fully; otherwise if you expend it unwisely and carelessly in wrong places, or expend the whole of it at once, you will incur losses, and then I would not give you any more." This advice would be meaningless it the father did not give the amount in the son's possession at alI, so that if he had wanted to spend it in a wrong place, he should be powerless to spend it, or if he had wanted to spend the whole amount, he could only take out a part of it while the rest lay safe with him in any case. If the condition be such, there could obviously be no need for this kind of advice.