by Ibrahim B. Syed, Ph. D.
Talaq-i-Bid’ah
Talaq-i-Bid’ah means innovated (or sinful) form of Divorce. It is defined as a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (tuhr), i.e., when man says: "I divorce you, I divorce you, I divorce you." The Hanafis believe that though this form of divorce is sinful and innovative, it is nevertheless valid and divorce will take place. According to the Hanafis when triple divorce is pronounced, the wife will become totally alienated from the husband and he cannot remarry her. She becomes haram (totally prohibited) for him. Neither can he take her back nor can he go for fresh nikah with her. He can go for nikah with her only after she marries another person and that person divorces her on account of marital conflict or she becomes a widow.
According to Maulana ‘Umar Ahmad ‘Usmani this is the position of not only Abu Hanifa but also of Imam Malik and Shafi’i. Imam Shafi’i says this form of divorce is perfectly valid. It is not innovation (bid’ah). It is quite proper on the part of the husband to pronounce such a divorce. No husband can be prevented from adopting a valid course. Even Imam Ahmad Hanbal’s position is the same as that of Imam Hanifa and Imam Malik. Thus it ‘seems that all major founders of four schools of jurisprudence accept the validity of triple divorce.’
But Imam Taymiyyah has proved that Imam Ahmad bin Hanbal had retracted from his earlier position of accepting the validity of triple divorce and in a later period he used to say that when I reflected on the Qur’anic position I came to the conclusion that it permits only raj’i Talaq, i.e., divorce in which the wife can be taken back. He then took the position that even if someone pronounces triple divorce it should be treated as one only. The husband thus will have the right to take his wife back within the ‘iddah period or go for nikah if the ‘iddah period has expired. Imam Ahmad’s companions and disciples also adopted this position. Many companions of the Noble Prophet like Ibn Abbas, Hazrat Ali, etc. also were of this opinion. Some have quoted companions like Abdullah bin Mas’ud, Abdur Rahman bin’Auf and Zuber bin al-Awwam also adopting this position. Ahl-e-Hadith also are of this opinion, i.e., that triple divorce is not valid. The Ithna ‘Asharis (i.e., twelve Shi’as) and Imamiyas believe that if three divorces are pronounced together, even one divorce does not take place, let alone three. Even some Hanafi jurists like Hajjaj bin Artat and Muhammad Ibn Muqatil believe that if one pronounces three divorces, no divorce will take place.
Maulana ‘Usmani tells us that according to Muhammad Muqatil one of the two opinions of Imam Hanifa was that only one divorce will take place if three divorces are pronounced. Similarly according to Imam Tilmisani Imam Malik also held the opinion that only one divorce takes place if three divorces are pronounced. Usmani also quotes from Hafiz Ibn Hajar’s Fath al-Bari to the effect that many eminent jurists held that if one pronounces three divorces, only one take place.
From among the ‘ulama of later period, Sheikh Shaltut, who was Sheikh al-Azhar, writes in his Fatwa that if one gives three divorces, only one divorce Talaq-i-raj’i will take place and the husband will have the right to take his wife back by saying so or by having sexual contact with her. Another prominent ‘Alim ‘Allama Rashid Rida’ in his Tafsir al-Manar (Vol. IX, p. 683) has expressed a similar opinion. Another contemporary eminent, Arab ‘Alim Shaikh Jamal al-Din al-Qasim has discussed this problem at great length in his book al-Istinas and has concluded that triple divorce has no validity and it should be treated as one divorce only. Quoting all these authorities Maulana ‘Usmani says that triple divorce is not in keeping with the rulings of the Qur’an.
After quoting all these authorities Maulana ‘Usmani discusses the whole issue in the light of the Noble Qur’an. He refers to the Qur’anic verse 2: 229-30, which begins with Al-talaqu marratan, i.e., divorce may be pronounced twice. He says the word marratan implies a gap between two pronouncements (all Hanafi jurists accept this), which means there should be a large enough time-gap between the two pronouncements of divorce. Marratan (twice) itself carries this sense. When we say "I went to your house twice but you were not there" cannot mean one went to his house twice in one go but after some reasonable gap of time. Once he went, he was not there, then again he went, he was not there. Thus the act of going had to be accomplished in two different periods of time. ‘Usmani then quotes other verses of the Qur’an where the word marratan occurs and explains that everywhere it implies a gap of time in between.
The question is despite triple divorce being sinful, innovative and against the Qur’an will it occur if someone pronounces triple divorce? The second question is did anyone make such mistake (of pronouncing triple divorce) in Prophet’s (pbuh) time and did he accept it as triple divorce? Or did he take it to be one divorce only? Lastly, when would the practice of triple divorce start again?
In the Qur’an, nikah is described as misaqan ghaliza, i.e., strong bond and has explained how and with whom one can enter into this strong bond and this strong bond cannot be dissolved without proper reason and method. It certainly cannot be dissolved whimsically. A man has to pass through different stages to bring about reconciliation either by persuading his wife to behave properly, or by appointing arbitrators as per Qur’anic injunctions (4:35). If all this fail only then recourse can be taken to divorce. Thus, according to the Qur’an, divorce is not an arbitrary and whimsical thing. The method prescribed by the Qur’an for divorce is that one can give divorce twice only, i.e., on two different occasions and then either he has to keep the woman with kindness or leave her with benevolence. In pre-Islamic Arab society they used to pronounce divorce even one thousand times and keep the sword of divorce hanging on her head. The Qur’an disallowed it and permitted pronouncement of divorce only twice. The Maulana says that even giving divorce in three periods of purity (pronouncing divorce once in every period of purity thrice is also not proved by the Qur’an and is thus prohibited. Once talaq is pronounced once, it takes place and woman goes out of marital bond at once and is now free to marry other man after completing the period of ‘iddah. Why then pronounce talaq more than once? For what reason? Repeating the word more than once is just absurd, says the Maulana. Talaq should not be pronounced more than once in any case.
He then takes up the second question-whether anyone had divorced thrice in the Prophet’s period? And did he accept it? He then quotes from Sahih Muslim, Imam Abu Da’ud, etc., to show that during the Noble Prophet’s time, during Hazrat Abu Bakr’s time and for two years during Hazrat ‘Umar’s time three divorces given at a time were taken as one divorce only. But after two years of his Khilafat period Hazrat ‘Umar again enforced it (i.e., triple divorce) as people were misusing it and there were several complaints.
Maulana ‘Usmani quotes from Musnad Ahmad Ibn Hanbal that once Rukanah pronounced three divorces against his wife but later he was very sorry for it. When the Prophet (pbuh) asked him, How did you divorce your wife? Rukanah replied that he had pronounced three divorces. The Prophet asked, Did you pronounce it in one sitting? When he said, Yes, the Noble Prophet said, Treat it as one divorce only and if you want you can take your wife back. And Rukanah took his wife back.
This hadith of the Prophet narrated by Ibn Abbas is found in Sahih Muslim, Sunan Abu Da’ud and other authentic collections of Hadith literature. No one has questioned its authenticity pertaining to marriage, divorce, inheritance or custody of children. In certain respects his views on the treatment of women differs radically from other traditional jurists. Also he bases his views entirely on the Qur’an and hadith, nothing else and comes to entirely different conclusions from many other noted traditional jurists. The Maulana has written his magnum opus Fiqh al-Qur’an in eight volumes. The book which is written in Urdu is a veritable treasure of Islamic jurisprudence though it is written in a traditional style and full of repetitions.
Maulana ‘Usmani points out that Hazrat ‘Umar had enforced triple divorce as triple divorce and it had become law. It is within the power of the caliph of the time to enforce certain ordinances in view of the prevailing situation, or to meet some crisis situation and no one can question it. It is, therefore, possible that Ibn Abbas might have given a fatwa accepting triple divorce after Hazrat ‘Umar enforced the ordinance. The original hadith, accepting three divorces as one, therefore, is not affected, maintains ‘Umar Ahmad ‘Usmani. Thus it is proved by this hadith that during the time of the Noble Prophet triple divorce, if pronounced by someone, was accepted as one divorce only.
Then the Maulana takes up the third question- when did the triple divorce begin to be accepted as three divorces? It is well know that Hazrat ‘Umar, after the initial two years of his Khilafat, had enforced triple divorce as triple divorce and no one will be permitted to take his wife back after pronouncing three divorces in one go. To substantiate his point the Maulana refers to the noted Egyptian historian Muhammad Husain Haykal’s book ‘Umar al-Farouq in which the author says that ‘Umar made such an ijtihad (interpretation) in what is well establishedQur’anic injunction in 2: 229-30 (Divorce is twice … which we have discussed in detail above) that until today we are opposing him in this matter. The Qur’an requires all attempts for reconciliation before a divorce (4:35)
Then Maulana ‘Umar Ahmad further quotes from Haykal’s book to show why Hazrat ‘Umar was constrained to enforce triple divorce despite the Qur’anic injunction contrary to it. Muhammad Haykal says that when the Arabs conquered Iraq, Syria, Egypt, etc., the women prisoners from these regions were brought to Mecca and Medina. These women were very attractive and charming and the Arabs were captivated by their charm and wanted to marry them. But these women insisted on the men giving irreconcilable divorce to their former wives. To satisfy them they would pronounce triple divorce and pretend to having divorced their wives for good.
REFERENCES:
1. Maulana ‘Umar Ahmad ‘Usmani and Women’s Rights in The Qur’an, Women and Modern Society, Asghar Ali Engineer, Select Books, India, 1999
