Nature demands that men and women lead their lives together. The ideal way of leading such a life is, according to the Shariah, within the bonds of marriage. In Islam, marriage is both a civil contract entered into by mutual consent of the bride and groom, and a highly sacred bond to which great religious and social importance are attached. As an institution, it is a cohesive force in society, and worth protecting and preserving for that reason. To that end, detailed injunctions have been prescribed to maintain its stability and promote its betterment.
However, in the knowledge that an excess of legal constraints can lead to rebellion, such injunctions have been kept to a realistic minimum and have been formulated to be consistent with normal human capabilities. Moreover, their enforcement is less relied upon than the religious conditioning of the individual to ensure the maintenance of high ethical standards and appropriate conduct in marital affairs and family life.
The state of marriage not only lays the foundations for family life, but also provides a training ground for individuals to make a positive adjustment to society. When a man and woman prove to be a good husband and a good wife, they will certainly prove to be good citizens in the broad spectrum of their social group. This has been aptly expressed in a hadith: ‘The best of you is one who is best for his family.’ (Ibn Majah, Sunan).
The family being the preliminary unit for the training of human beings, its disintegration has an injurious effect on the society to which those human beings must individually make a positive contribution, if collectively they are to form a good and just nation. If the family no longer exists, it is the whole of humanity which suffers.
Once a man and a woman are tied together in the bonds of matrimony, they are expected to do their utmost, till the day they die to honour and uphold what the Qur’an calls their firm contract, or pledge. To this end, the full thrust of the Shariah is levelled at preventing the occurrence of divorce; the laws it lays down in this regard exist primarily, therefore, as checks, not incentives.
Islam regards marriage as an extremely desirable institution, hence its conception of marriage as the rule of life, and divorce only as an exception to that rule. According to a hadith, the Prophet of Islam said, ‘Marriage is one of my Sunnah (path). One who does not follow it does not belong to me.’ (Ibn Majah, Sunan).
Although Islam permits divorce, it lays great emphasis on its being a concession, and a measure to be resorted to only when there is no alternative. Seeing it in this light, the Prophet Muhammad said, ‘Of all things permitted, divorce is the most hateful in the sight of God.’ (Abu Dawud, Sunan).
When a man and a woman live together as husband and wife, it is but natural that they should have their differences, it being a biological and psychological fact that each man and each woman born into this world are by their very nature quite different from each other. That is why the sole method of having unity in this world is to live unitedly in spite of differences. This can be achieved only through patience and tolerance, virtues advocated by the Prophet not only in a general sense, but, more importantly, in the particular context of married life. Without these qualities, there can be no stability in the bond of marriage. According to Abu Hurayrah, the Prophet said, ‘No believing man should bear any grudge against a believing woman. If one of her ways is not to his liking, there must be many other things about her that would please him.’ (Muslim, Sahih).
It is an accepted fact that everyone has his strengths and his weaknesses, his plus points and his minus points. This is equally true of husbands and wives. In the marital situation, the best policy is for each partner to concentrate on the plus points of the other, while ignoring the minus points. If a husband and wife can see the value of this maxim and consciously adopt it as the main guiding principle in their lives, they will have a far better chance of their marriage remaining stable.
However, it sometimes happens, with or without reason, that unpleasantness crops up, and goes on increasing between husband and wife, with no apparent indication of their being able to smooth things out by themselves. Their thinking about each other in a way conditioned by their mal-adjustment prevents them from arriving at a just settlement of their differences, based on facts rather than on opinions. In such a case, the best strategy, according to the Qur’an is to introduce a third party who will act as an arbiter. Not having any previous association with the matters under dispute, he will remain dispassionate and will be able to arrive at an objective decision acceptable to both parties.
For any arbiter to be successful, however, the husband and wife must also adopt the correct attitude. Here is an incident from the period of the four pious Caliphs which will illustrate this point.
When Ali ibn Abi Talib reigned as fourth Caliph, a married couple complaining of marital discord came to him to request a settlement. In the light of the above-mentioned Qur’anic guidance. Ali ordered that a board of arbiters, one from the husband’s family and one from the wife’s family, be set up, which should make proper enquiries into the circumstances and then give its verdict. This verdict was to be accepted without argument by both sides.
As recorded in the book, Jami ‘al-Bayan by al-Tabari, the woman said that she gave her consent, on the book of God, whether the verdict was for or against her. But the man protested that he would not accept the verdict if it was for separation. Ali said, ‘What you say is improper. By God, you cannot move from here until you have shown your willingness to accept the verdict of the arbiters in the same spirit as the woman has shown.’
This makes it clear that a true believer should wholeheartedly accept the arbiters and their verdict in accordance with the Qur’anic injuctions. Once their verdict is given, there should be no further dispute.
However, it has to be conceded that life does not always function smoothly, like a machine. Despite all safeguards, it sometimes does happen that a couple reach such a stage of desperation that they become intent on separation. Here the Shariah gives them guidance in that it prescribes a specific method for separation. The Qur’an expresses it thus: ‘Divorce may be pronounced twice, then a woman must be retained in honour or allowed to go with kindness’ (2:229).
This verse has been interpreted to mean that a man who has twice given notice of divorce over a period of two months should remember God before giving notice the third time. Then he should either keep his spouse with him in a spirit of goodwill, or he should release her without doing her any injustice.
This method of divorce prescribed by the Qur’an, i.e. taking three months to finalize it, makes it impossible for a man seeking divorce suddenly to cast his wife aside. Once he has said to his wife (who should not at this time be menstruating) ‘I divorce you,’ both are expected to think the situation over for a whole month. If the man has a change of opinion during this period, he can withdraw his words. If not, he will again say, ‘I divorce you,’ (again his wife should be in a state of ‘purity’) and they must again review the situation for a further month. Even at this stage, the husband has the right to revoke the proceedings if he has had a change of heart. If, however, in the third month, he says, ‘I divorce you,’ the divorce becomes final and the man ceases to have any right to revoke it. Now he is obliged to part with his wife in a spirit of goodwill, and give her full rights.
This prescribed method of divorce has ensured that it is a well-considered, planned arrangement and not just a rash step taken in a fit of emotion. When we remember that in most cases, divorce is the result of a fit of anger, we realise that the prescribed method places a tremendous curb on divorce. It takes into account the fact that anger never lasts – tempers necessarily cool down after same time – and that those who feel like divorcing their wives in a fit of anger will certainly repent their emotional outburst and will wish to withdraw from the position it has put them in. It also takes into account the fact that divorce is not a simple matter: it amounts to the breaking up of the home and destroying the children’s future. It is only when tempers have cooled down that the dire consequences of divorce are realized, and the necessity to revoke the decision becomes clear.
When a man marries a woman, he has to say only once that he accepts her as his spouse. But for divorce, the Qur’an enjoins a three month period for it to be finalized.
That is, for marriage, one utterance is enough, but for a divorce to be finalized, three utterances are required, between which a long gap has been prescribed by the Shariah. The purpose of this gap is to give the husband sufficient time to revise his decision, and to consult the well-wishers around him. It also allows time for relatives to intervene in the hopes of persuading both husband and wife to avoid a divorce. Without this gap, none of these things could be achieved. That is why divorce proceedings have to be spread out over a long period of time.
All these preventive measures clearly allow frayed tempers to cool, so that the divorce proceedings need not reach a stage which is irreversible. Divorce, after all has no saving graces, particularly in respect of its consequences. It simply amounts to ridding oneself of one set of problems only to become embroiled in another set of problems.
Despite all such preventive measures, it does sometimes happen that a man acts in ignorance, or is rendered incapable of thinking coolly by a fit of anger. Then on a single occasion, in a burst of temper, he utters the word ‘divorce’ three times in a row, ‘talaq, talaq, talaq!’ Such incidents, which took place in the Prophet’s lifetime, still take place even today. Now the question arises as to how the would-be divorcer should be treated. Should his three utterances of ‘talaq’ be treated as only one, and should he then be asked to extend his decision over a three-month period? Or should his three utterances of ‘talaq’ on a single occasion be equated with three utterances of ‘talaq’ made separately over a three-month period? There is a hadith recorded by Imam Abu Daud and several other traditionists which can give us guidance in this matter: ‘Rukana ibn Abu Yazid said ‘talaq’ to his wife three times on a single occasion. Then he was extremely sad at the step he had taken. The Prophet asked him exactly how he had divorced her. He replied that he had said ‘talaq’ to her three times in a row. The Prophet then observed, ‘All three count as only one. If you want, you may revoke it.’ (Fath al-Bari, 9/275).
A man may say ‘talaq’ to his wife three times in a row, in contravention of the Shariah’s prescribed method, thereby committing a sin, but if he was known to be in an emotionally overwrought state at the time his act may be considered a mere absurdity arising from human weakness. His three utterances of ‘talaq’ may be taken as an expression of the intensity of his emotions and thus the equivalent of only one such utterance. He is likely to be told that, having transgressed a Shariah law, he must seek God’s forgiveness, must regard his three utterances as only one, and must take a full three months to arrive at his final decision.
In the first phase of Islam, however, a different view of divorce was taken by the second Caliph, Umar ibn al-Khattab. An incident which illustrates his viewpoint was thus described by Imam Muslim.
In the Prophet’s lifetime, then under the Caliphate of Abu Bakr and also during the early period of the Caliphate of Umar, three utterances of ‘talaq’ on the one occasion used to be taken together as only one utterance. Then it occurred to Umar ibn al Khattab that in spite of the fact that a system had been laid down which permitted the husband to withdraw his first, or even second ‘talaq’, men still wanted to rush into divorce. He felt that if they were bent on being hasty, why should not a rule be imposed on them binding them to a final divorce on the utterance of ‘talaq’ three times in a row. And he proceeded to impose such a rule. (Muslim, Sahih, 10/70).
This act on the part of the Second Caliph, apparently against the principles of the Qur’an and Sunnah, did not in any way change the law of the Shariah; to think that this led to any revision of Islamic law would be to misunderstand the situation; the Caliph’s order merely constituted an exception to the rule, and was, moreover, of a temporary nature. This aptly demonstrates how the Islamic Shariah may make concessions in accordance with circumstances.
Each law of the Shariah may be eternal, but a Muslim ruler has the power to make exceptions in the case of certain individuals in special sets of circumstances. However, such a ruling will not take on the aspect of an eternal law. It will be purely temporary in nature and duration.
Various traditions in this connection show that the second Caliph’s treatment of certain persons was not in consonance with the laws of the Shariah. The rulings he gave on these occasions were in the nature of executive orders which were consistent with his position as a ruler. If he acted in this manner, it was to punish those who were being hasty in finalizing the divorce procedure.
It is a matter of Islamic historical record that when any such person was brought before Umar for having uttered the word ‘talaq’ three times on the one occasion, he held this to be rebellious conduct and would order him to be flogged on the back. (Fath al-Bari, 9/275).
Perhaps the most important aspect of this matter is that when Umar gave his exceptional verdict on the divorce being. final after the third utterance on a single occasion of the word ‘talaq’, his position was not that of a powerless alim but of a ruler invested with the full power to punish – as a preventive measure – anyone who went against Qur’anic injunctions. This was to discourage haste in divorce. By accepting a man’s three ‘talaqs’ on the one occasion as final and irrevocable, he caused him to forfeit his right to revoke his initial decision, thus leaving him with no option but to proceed with the divorce.
On the other hand, the Caliph had it in his power to fully compensate any woman affected by this ruling. For instance, he was in a position to guarantee her an honourable life in society and if, due to being divorced, she was in need of financial assistance, he could provide her with continuing maintenance from the government exchequer, Baitul Mal, etc.
Today, anyone who cites Umar’s ruling as a precedent in order to justify the finality of a divorce based on three utterances of the word ‘talaq’ on a single occasion should remember that his verdict will remain unenforceable for the simple reason that he does not have the powers that Umar, as Caliph, possessed. Umar’s verdict was that of a powerful ruler of the time and not just that of a common man. It is necessary at this point to clear certain misunderstandings which has arisen about the extent of agreement which existed on Umar’s ruling. Of all the Prophet’s companions who were present at Medina at that time, perhaps the only one to disagree was Ali. As a result of this, certain ulama have come to the conclusion that the Prophet’s followers (sahaba) had reached a consensus (ijma’) on this matter. (Rawa’i’ al-Bayan, 1/334).
But the consensus reached was not on the general issue of divorce, but on the right of Muslim rulers to make temporary and exceptional rulings, as had been done by Umar. It is obvious that the Sahaba could never have agreed to annual a Qur’anic injunction or to modify for all time to come a prescribed system of divorce. All that was agreed upon was that exceptional circumstances warranted exceptional rulings on the part of the Caliph. He was entitled to punish in any manner he thought fitting, anyone who digressed from the Shariah. This right possessed by the ruler of the time is clearly established in the Shariah. Many other instances, (not necessarily relating to personal disputes) can be cited of his exercise of this right.
Conclusion
From the above discussion it becomes clear that the Shariah’s prescribed method of divorce entails the pronouncing of the word ‘talaq’ at intervals of one month over a three-month period, the third pronouncement making the divorce final. However, just as there are always cases of abuse of the law, there are always cases of divorce carried out by the improper method of uttering the word ‘talaq’ three times on the one occasion.
When the law is misused in this way, there are two ways of dealing with the offenders. Either he can be made to counselor his three utterances of ‘talaq’ as only one, in which case he can still benefit from the right to revoke his initial decision, or he may, as a punishment, be forced to suffer the consequences of his irresponsible behavior, i.e. immediate separation from his wife and resulting destruction of his home and family life. Such a punishment meted out to one man can be a strong deterrent to others. Once it is understood how grave are the consequences of a hasty divorce, few will be inclined to follow the same path.
The executive order of Umar ibn al-Khattab was not meant to become a permanent law of the Shariah to be generally enforced at all times. It was meant only to discourage deviation from the Shariah and to engender respect for the proper way of divorce. Although an exception to the general rule, Umar’s verdict could at some future date be adopted, if the circumstances so warranted it, and it could be enforced just as it was in the past, provided that whoever made such a ruling was vested with the same political power as Umar ibn al-Khattab. The right to pass an executive order belongs only to an administrator. The common man has no such right, whatever the circumstances, because, he does not have the requisite power to deal with the social consequences of such a ruling.
