Divorce in Islam - a clarification

Q157 :1. After being married for eighteen months, my nephew had an argument with his wife which resulted in her departure to her parents home. Twenty-five days later, he called her by telephone to ask her to come back. However, on the phone they argued again and, in a sate of extreme anger, my nephew pronounced the words " I divorce you " four times. Regretting what had happened, my nephew consulted several scholars and he came out with two different rulings. The first, according to fiqh, says that as he divorced his wife more than twice, he cannot be reunited with her without an intervening marriage of his divorcee to another man. The other ruling, according to Qur'an and Hadith, says that all four pronouncements count as one divorce, and as such, the divorcee can be reunited in marriage. Their families are at a loss and do not know what to do in the face of these two conflicting rulings. Could you please clarify the situation? May I say that my nephew is a follower of Qur'an and Hadith. 2. I read many questions and answers regarding divorce in your paper, but unfortunately the exact process is not yet clear to me. Could you please let me know how a man can divorce his wife and what instructions he should follow, and when the process is complete, what are the duties of an ex-husband towards his divorced wife.

A157 : Let me first of all say very clearly that there is no such thing as fiqh which can be taken as something separate from, or put in opposition to Qur'an or Hadith. Fiqh is a branch of Islamic scholarship which explains the details of Islamic legislation on the basis of commandments and instructions stated in the Qur'an and the Hadith. Different scholars may arrive at different conclusions on a particular subject, because they may not have the same statements in Hadith available to them. The Qur'an is available to all, but some of its statements may be given in general terms with Hadith explaining or qualifying them. The two rulings your nephew received from scholars in his home town are both given by scholars of fiqh on the basis of the Qur'an and Hadith. Wherever a person goes in the Muslim world, he is bound to be given the same two rulings by scholars. Not only so, the same scholar may explain to him both rulings. How is this possible? The answer is the supporting evidence for each ruling. There is no doubt that both have very valid evidence. We cannot dismiss either ruling out of hand, nor can we ignore its basis. Scholars of highest repute in our history subscribed to either one or the other. How can then a layman manage his own situation and which ruling he should follow? The simple advice is that he should go to a broad minded scholar and explain his case. He should make sure that the scholar does not strictly follow a particular school of thought but rather is one who gives a judgement on each case according to its merit, and as he deems most suitable to the people concerned, using any judgement given by different schools of thought as long as it has sufficient supporting evidence to keep the enquirer within the boundaries of what is acceptable from the Islamic point of view. I do not think that much purpose can be served by a detailed discussion in a newspaper like ours of the different factors relevant to each of the two rulings. However, I can say very briefly that the one which makes a divorce pronounced three times on the same occasion count as three divorces came into operation during the time of Umar without disagreement by any of the learned companions of the Prophet. It was more in punishment for a degree of abuse of the Islamic process of divorce. There is no disagreement among scholars that to divorce one's wife three times or more on the same occasion is forbidden from the Islamic point of view because it is an abuse of a legitimate procedure. When the Prophet was told by one of his companions that he divorced his wife one hundred times on the same occasion, the Prophet was very angry. He addressed his companions in such terms, "Is Allah's Book to be trifled with when I am still alive among you?" However, the overwhelming majority of people who divorce their wives three times on the same occasion nowadays do so out of ignorance. They think that unless they pronounce the word of divorce three times, the divorce is not valid. Hence an explanation of the divorce process in Islam needs to be given time and again until people get to know how to approach divorce, which is disliked by Allah, should they ever need to resort to it. Perhaps I should add that divorce in Islam is a very simple process but well entrenched misconceptions tend to obscure it. Here it is in simple terms : Essentially marriage is a verbal contract and its dissolution is normally made verbally. When a man intends to divorce his wife, he should make sure that she is not in her menstruation period and that the two of them have not had sexual intercourse during her current period of cleanliness from menstruation. If either case is there, i.e. if the woman is in the period or if sexual intercourse had taken place, then to effect a divorce at that particular time is forbidden. Thy should wait until the woman has finished her period or until she has had her next period. The divorce process is started with a simple utterance of the words "I divorce you," or "I divorce_"(naming one's wife). This should be done ONCE ONLY. This can also be done in writing and sent by post. From that moment, a woman starts her waiting period which lasts until she has completed three menstruation periods or three periods of cleanliness from menstruation. If she does not have the period either because she is too old or too young, then her waiting term lasts three months. If she is pregnant, the waiting term continues until she has given birth. During this time, she stays in her home, i.e. her family home where she has been living with her husband. He is not allowed to turn her out. He is required to maintain her through this period but may not share the same bedroom. She is not required to do any housework. The waiting period provides both divorcees with time to reconsider their situation. If they wish to be reunited in marriage, they may do so within the waiting period without any need to have a fresh marriage contract or to pay a fresh dower. If they do not resume their marriage until the waiting period is over, then the divorce process is complete and the woman returns to her parents' home and is entitled to get any deferred portion of her dower. She is not entitled to any maintenance for herself from her ex-husband. If, however, she has the custody of any young children, they are entitled to be supported by their father. Both are also entitled to maintain their normal relationship with their children. On the other hand, if the divorcees want to be reunited in marriage after the waiting period is over, they may do so provided they have a new marriage contract and the woman receives a new dower. This whole process may be done twice. If a man and wife go through the divorce process for a third time, whether they were reunited each time during the waiting period or after it, their divorce this time is final, in the sense that they cannot be reunited again in marriage without an intervening marriage by the woman who must be married to another man in the normal course of events. This means that to all intents and purposes the divorce is final. If the woman receives a proposal from someone else and accepts it and marries him, her marriage must be intended for life. If, however, she gets divorced after a period of time, may be a year or may be ten years, or longer or shorter, she may return after the end of her new waiting period, to her first husband if both of them think that this time their marriage may be successful. I must emphasize here that this intervening marriage must not be arranged for this purpose, as many people unfortunately do. If it is specifically arranged for this period, and the man hired for the purpose agrees to go through it for one night or a week or whatever, everyone involved is committing a serious sin. Moreover, such an arrangement has no effect whatsoever. In other words, the woman cannot return to her first husband on the basis of such an 'arranged' intervening marriage. Having explained the process of divorce, I should say to my first reader that his nephew may consider his divorce to be a single divorce. He can be reunited with his former wife after having a new marriage contract, since her waiting period is over. He should tell his nephew that to divorce his wife three times on the same occasion is forbidden. Perhaps I should add that the family law of several Muslim states adopts this ruling as the standard one. By doing so, the scholars who have codified the family have given due consideration to what serves the interests of the Muslim community and the fact that many people pronounce three divorces at the same time out of total ignorance. His nephew should not be confused by the two rulings and let him not think that to follow fiqh is different from following the Qur'an and the sunnah.

Our Dialogue ( Source : Arab News - Jeddah )