Divorce In Islam

Maulana Ilyas Dalal

The Islamic law of divorce is

probably the most misunderstood
branch of Islamic law.
The misunderstanding is not only
among Non-Muslims but also among
Muslims as well who, due to
ignorance of its basic rules and
procedure, have abused the right of
divorce and exercised it in a matter
that is opposed to the Islamic law
itself.

Marriage and divorce in light of

Quran and Sunnah
Marriage in Islam is not simply a contract
like other commercial contracts such as
sale, hire, partnerships, donation etc. In
essence, the marriage tie in Islam consists of
two elements: an element of (1) contract and that of
(2) Ibadat (worship).
Marriage viewed from one perspective is a
contractual relationship in that it is based
on the consent of the parties, and from
another prospective, it is an act of Ibadat.

There is no doubt that the existence of a nation

and lineage and the preservation of its
characteristics are not possible without the divinely
prescribed limits and Islamic Laws. The actual and
real object of the Prophets was to establish and
maintain a proper system of life for man. An
important part of their duty was to rectify the
character of man and to place man on the
highest pedestal of creation.
Nabi (sallallahu alayhi wasallam) completed and
perfected every respect and branch of Divine
Law. He paid particular attention to marital life and
demonstrated and taught the various laws
regarding maintenance,dowry,divorce,etc.

The Reality of Talaaq

For the perpetuity of the calmness and
tranquillity of society, the Shariah has also made
permissible a distasteful thing such as Talaaq,
which can be applied in certain unfortunate
cases. The reason being that in some cases the
real benefit of Nikaah is not achieved due to a
number of reasons. For example due to their
weakness in their physical and natural abilities or
the inability to cope with the habits and nature of
others.
A veil is thrown over the merits and virtues of the
opposite party and then instead of love,affection
and strengthening of family ties, hatred,
animosity and revulsion are fostered.

BEFORE DIVORCE
If you fear a breach between the two of them, then appoint
two arbitrators, one from his family and the other from hers.
If
they seek to set things aright, Allah will cause their
reconciliation. For Allah has full knowledge and is
acquainted
with all things. (an-nisaa)
The Prophet of Allah has said: The curse of Allah rests on
him
who repudiates his wife with no proper reason.
The man who bears the ill manners of his wife will receive
rewards equivalent to what Allah gave to Ayub (alayhis
salaam) during his afflictions. The woman who bears her
husbands ill manners shall receive the reward equivalent to
what he granted Aaseeyah (a.s.) the righteous wife of
Pharaoh.

Talaaq in Shariah means to

severe (break) the bond of
Nikaah
Among the things that Allah greatly dislikes but has
allowed, is divorce. (Abu Dawood)
In the sight of Allah the worst of all Halaal acts is
Talaaq (Tirmidhi)
Whichever woman asks her husband for Talaaq, the
fragrance of Jannat is Haraam upon her. (Mishkaat)
Make Nikaah (but) do not give Talaaq because
Talaaq shakes the Arsh (throne) of Allah

Why Men Have Right of Talaaq?

Allah has made man responsible for overseeing the rights of
women and to attend to their moral and character. Islam has
also placed the delicate and important issue such as Talaaq in
his hands as well. It has also placed barriers and limits for its
implementation, So that it cannot be abused.
When the discussion of Talaaq is raised in the Quran, then this
act is attributed to men.Allah says:
When you issue Talaaq to women When you have divorced
her When they intend Talaaq In his hand is the knot of
Nikaah It is also mentioned in the Hadith Indeed (the right
of) Talaaq lies in the hands of the one who holds the thigh (i.e.
the husband)

RULES OF TALAAQ

1. The Talaaq given by a sane,married adult will be

valid.
2. The Talaaq given during sleep by the husband
will be invalid.
3. The Talaaq given during the state of intoxication
will be valid.
4. The female cannot divorce her husband, but
under certain conditions the wife can appeal to the
Qadhi (Islamic judge) to have the Nikaah annulled.
5. The Talaaq given in the state of anger will be
valid, since no one gives a Talaaq in a state of
happiness.

 6.

The Talaaq uttered whilst joking or

messing around will be valid.
7. The Talaaq uttered under the condition
of threat and duress will be valid.
8. The number of Talaaq a husband can
give his wife is one, two or three.
9. The husband who gave one or two
Talaaqs can reconcile by retracting by
means of raj`at (revocation).
10. If 3 Talaaqs are given in one sentence
it will be regarded as three Talaaqs and not
one.
11. The maintenance for the divorced
woman is paid by the husband until her
iddat is over.
12. The husband who is dumb will divorce
his wife by means of signs and writing.

Right of divorce must be

exercised in the prescribed
time: time of purity.
The marriage should not be cancelled at any time at
the arbitrary will of the husband. The Quran has
specified a fixed period within which the right of
divorce must be exercised. When you divorce
women, divorce them at their prescribed periods.
(65:1)
The prescribed periods referred to in this verse
means a period of purity in which sexual relations
have not taken place. This also appears from a
statement of a well known Sahabi Abdullah ibne
Abbas (r.a.) where he explains the above verse the
statement of Allah divorce them at their prescribed
period means divorce them in a period of purity in
which sexual intercourse has not taken place.

Taahir

Period Taahir Period Taahir Period

Spends in iddat

Husband gives one Talaaq to his

wife and does not cohabit with her.

Taahir

Methods of Talaaq
There are three methods of applying Talaaq:
1. Talaaq Ahsan.
2. Talaaq Hasan.
3.
Talaaq Bid`ee
1. Talaaq Ahsan The husband gives his wife
one Talaaq while she is Taahir (not
menstruating) on condition that he does not
cohabit with her during this period of tuhur
(purity). Thereafter she is allowed to
complete her iddat of three complete
menstrual cycles if she is not expecting. An
expectant mothers iddat will terminate at
childbirth.

Rules of Talaaq Ahsan

1.

The husband may reconcile with his wife

(without making a new Nikaah) before the
termination of her iddat by means of raj`at.
2. The husband may reconcile with his wife
after her iddat. However, this is done by
performing a new Nikaah.
3. Upon the expiry of the prescribed period
of waiting or iddat, the wife is free to marry
her same husband or whosoever she wants.
4. It is preferable that the divorce be
evidenced by two witnesses to avoid any
dispute.

Talaaq Hasan

The husband gives his wife three Talaaqs in three consecutive

taahir (non menstruating) periods. It is conditional that the
husband does not cohabit with his wife during these three taahir
periods.
Rules
1. The husband can reconcile with his wife after the first and
second divorce by means of raj`at.
2. The husband cannot reconcile with his wife after the third
divorce.
3. The intention of the Prophet in using the term Sunnah is not
that reward will be received because the act of giving three
divorces in three stages of purity is permissible but is not liked
or recommended. On the contrary the meaning is this that this
procedure has been adopted in religion, and that there will be no
punishment for the adoption of this procedure. (Rooh ul Ma-ani)

Talaaq Bid`ee

1.A husband divorces his wife with three Talaaqs

in one instance (sentence). E.g. he says: I give
you three Talaaqs or he says I give you Talaaq, I
give you Talaaq, I give you Talaaq.
2. A husband divorces his wife one or two Talaaqs
while she is in a state of haiz (period).
3. A husband divorces his wife giving one Talaaq
while in haiz (period) or a husband divorces his
wife giving her one Talaaq while she is taahir
(pure) and also cohabited with her.

Rules regarding Talaaq

Bid`ee
1. If the husband had given Talaaq to his wife while
she was in her period, it is Mustahab for the
husband to retract his divorce by means of raj`at
(revocation).
2. Any form of Talaaq Bid`ee will be considered as a
valid and recognised Talaaq. Therefore,if the
husband gave his wife a Talaaq Bid`ee, but
thereafter retracted it and gave her another Talaaq,
then this will be regarded as two Talaaqs given.
3. Talaaq given in the state of Haiz prolongs the
iddat.
4. The iddat for a non-expectant mother who is
divorced is three complete Haiz (period) cycles and
the iddat for a pregnant mother is until the child is
born, irrespective of whether the child is born after
one day or eight months.

RAJ`AT
(retraction/revocation)
This

means that the husband takes back his

wife during the iddat period, after having
divorced her by one or two unambiguous
Talaaqs. No new Nikaah is required.
However, although the husband revokes the
Talaaq it will still be counted when adding
the Talaaqs. For example, if he gives her
one Talaaq, it will be considered as one thus
leaving him with only two Talaaq
opportunities, and if he gives her two then
it will leave him with only one Talaaq.

Rules of Raj`at (retraction)

1. The condition of raj`at is that less than three

Talaaqs have to be given.

2. It is Mustahab to make a verbal raj`at in the
presence of two witnesses.
Method of verbal raj`at
The husband tells his wife, I have taken you back in
my Nikaahor he tells someone else, I have taken my
wife back.
It should be done before the period of iddat expires.
Method of practical raj`at
The husband does those acts which cause affinity. For
example, kisses his wife passionately .

Types of words used for

Talaaq
1.

Talaaq Sareeh (explicit)

2. Talaaq Kinaayah (inferred / ambiguous)
1.

Talaaq Sareeh (explicit)

Talaaq Sareeh is when a husband divorces
his wife using such words which are clear
and explicit and there is no possibility of it
meaning anything else. For example he
says to his wife Talaaq or I divorce you.
In this type of Talaaq the intention of the
husband is not taken into consideration.

2. Talaaq Kinaayah (inferred/ambiguous)

Talaaq Kinaayah is when the husband divorces his wife, and

the words or phrases which he has used have a dual
meaning and depend solely on the intention of the
husband. For example:
1. The husband tells his wife, you are alone. this could
mean the wife is divorced/separated from the husband or it
could mean that the man is telling his wife she is his only
wife.
2. Count your iddat. this could mean the wife should
calculate the number of days for her iddat or that she is
going to sit in iddat.
3. If the words of Kinaayah are used after an argument,
then Talaaq will take place.
In the above situation, the intention of the husband is taken
into consideration I.e. if he intended Talaaq, a Talaaq is
counted, but if he did not intend it, then no Talaaq will be
given. Words such as I have not married you or there is
no Nikaah between us or I have no need for you. The
use of such sentences will not effect a Talaaq, even if he
intends so.

Types and amounts of Talaaq

There

are three categories of Talaaqs:

1. Talaaq Raj`ee (revocable divorce)
2. Talaaq Baa`in (irrevocable)
3. Talaaq Mughallaza (supreme)
1.

Talaaq Raj`ee (revocable divorce)

Talaaq Raj`ee means that the husband divorces
his wife by using words of Talaaq Sareeh (I have
divorced you). The husband only gives one or
two such divorces, but he does not give all 3
divorces. Cohabitation does not become
Haraam by this Talaaq but he must retract
before the expiry of her iddat.

2. Talaaq Baa`in (irrevocable)

Talaaq

Baa`in means that the husband

divorces his wife by using the words of
Kinaayah (ambiguous).
If one or two such Talaaqs are given the
husband can only reconcile by performing a
new Nikaah after the period of iddat.
In this type of Talaaq cohabitation becomes
Haraam.
If the husband gave 3 Talaaq Kinaayah he
cannot marry her again unless she marries
someone else first.

3. Talaaq Mughallaza (supreme)

Talaaq

Mughallaza means that the

husband gives his wife three (3) divorces
and it can be as follows:
1. Three divorces in one sentence.
2. Three divorces in the course of one
non-menstruating period.
3. Two divorces and then he reconciles.
After reconciliation he gives her another
divorce. (This totals 3 divorces).
4. Three Talaaqs spread over three
periods of tuhur.

Rules of Talaaq Mughallaza

1. One cannot make raj`at after Talaaq Mughallaza.

2. It is immaterial whether the husband gives his

wife 3 Talaaq Sareeh or 3 Talaaq Baa`in, it will still
be considered as Talaaq Mughallaza.
3. The husband can only marry her again if one of
the following takes place:
a. If the wife marries somebody else and the
second husband dies and she completes her iddat.
b.If the wife marries somebody else and then her
second husband divorces her due to some
problems. This is commonly known as Halaalah

Halaalah

If a couple intend reconciling after 3 Talaaqs have been issued, then

it is necessary that Halaalah takes place. Halaalah is that after a
woman is given 3 Talaaqs, she has to complete her iddat, where
after she has to marry someone else and she has to cohabit at least
once. Now, when the second husband gives her Talaaq, and after
she completes this iddat, she may remarry her first husband. The
main criteria for Halaalah is that cohabitation must take place.
Ejaculation is not necessary.

It is mentioned in Bukhari that Ayesha (r.a.) mentions that a person

issued his wife 3 Talaaqs. His wife then re-married. The second
husband divorced her without having intercourse with her.
Rasoolullah was asked is she permissible for the first husband?.
He replied, she will not be permissible for the first husband as
long as the second husband does not have intercourse with

her.

Miscellaneous Talaaqs

Talaaq Tafweed: means when the husband gives

someone else the option of Talaaq.
Method:There are 3 ways of implementing it:
a. The husband authorizes his wife.
b. The husband authorizes someone else.
c. The husband sends someone else with the message of
Talaaq.
Talaaq Ta`leeq (for time): this kind of divorce is linked
to the condition of time and / or place.
Method if the husband tells his wife, when Ramadhan
starts, you are divorced or if tomorrow comes, you are
divorced. Then Talaaq becomes effective from the
stipulated times. If the husband tells his wife, if you enter
the house you are divorced, or if you enter your mothers
house, you are divorced then the Talaaq becomes
effective when the stated conditions happen. In all of
these examples, one Talaaq raj`ee becomes effective.

The ruling of Talaaq by means of a

letter or written word.

Speech is not necessary a condition for the validity

of Talaaq, as Talaaq can also be affected by means
of the written word.
It should be remembered that the written word in
Talaaq, is not always taken at face value according
to the Shariah. Its consideration is at times taken
at legal level and at times in real life scenarios. For
example, if a husband is forced and under duress
to write out a Talaaq, then in such an instance it
will not be counted. But at other times the written
word is imperative, like where a dumb person is
able to write, then in this instance, his written
word will be taken into account.

KHULA (Compensational divorce)

Khula means to discontinue the contract of Nikaah

by accepting an amount of wealth from the wife as
a compensation for divorce.
Rules of Khula:
1. When enmity takes place between the husband
and wife, and the wife wishes to release herself
from the bond of Nikaah, Islam has given
permission to the wife to release herself by offering
a compensation to the husband. If the husband
accepts, one Talaaq Baa`in will be effective.
2. If the enmity is caused by the husband it will be
Makrooh for him to take anything or accept
anything from her as compensation. If the enmity is
caused by the wife, it will be Makrooh for him to
take an amount more than the dowry (Mehr)

 3.

If the husband did not give Mehr at the

time of Nikaah, the wife can forfeit this as
payment of Khula.
4. Maintenance in iddat is the duty of the
husband. It is also the duty of the husband
to provide shelter for the women.
5. If the husband becomes abusive or
violent after verbally accepting Khula, one
Talaaq Baa`in comes into effect and the
wife will not be responsible for any
compensation.
Thus, the definition of Khula is the request
of a wife to her husband for a divorce with
the payment of some compensation in the
form of wealth

SHARIAH COUNCIL
Here

in the U.K.and other places in

the world, a committee or body is
set-up to deal with legal issues of the
Muslims. These represent a Muslim
court which would be existent in a
Muslim State. Their function is to sit
on matters dealing with Muslim
Personal Law (marriage, divorce etc.).
Their rulings are given in accordance
to the Shariah.

The custody of the children

1.

The husband and wife have been

separated, divorce has taken place and
they have a child. The mother of the child
has the right of custody over the child. The
father cannot take this child away.
However,the father will have to pay for all
the expenses that will be borne in order to
bring up the child. If the mother does not
the child, but instead, gives it to the
father, he will have to take it. The mother
cannot be forced to keep the child.

2. If the mother marries a person who is not a

mahram relative of the child, i.e. this relative
is such that Nikaah with him is permissible,
then the mother does not have the right of
custody over the child. However, if the women
marries a mahram relative of the child, then
the mothers right of custody will remain .
3. If , from among the relatives of the child, no
woman can be found in order to take custody
of the child, the father will be the most eligible.
5. The right of custody over a boy remains as
long as he does not reach the age of seven.
Once he reaches the age of seven, the father
has the right of custody. The right of custody
over a girl remains until she reaches nine years
of age.

 Once

the child reaches puberty and has

the ability to discern for himself / herself,
he/she has the option of choosing to stay
with either parent.
Abu Hurrairah (r.a.) narrates that a woman
came to Rasoolullah (sallallahu alayhi wa
sallam) and said: My husband intends to
take my son away, while he (the son)
gave me water to drink and served me.
Rasoolullah (sallallahu alayhi wa sallam)
said to the boy, this is your father and
this is your mother. Take the hand of any
of them you desire. he took the hand of
his mother and thus set off. (Mishkaat)

MAINTENANCE

The Holy Quran states: let the man of means spend

according to his means, and the man whose resources are
restricted, let him spend according to what Allah has given
him. (Surah Talaaq verse 7)
A woman is entitled to maintenance from her husband,
during the period of iddat. Thereafter the responsibility of
maintaining her lies with:
1. Her grown sons
2. Her father
3. Her brothers
The amount of maintenance is determined according to
the financial status of the husband and the social status of
the wife.
The husband is obliged to maintain his children until they
are mature and capable of earning their own livelihood (in
the case of sons) and until they marry (in case of
daughters).

Golden Rules
Think

before you divorce.

Remember,

one Talaaq can do

the same job as three Talaaqs.

If

in doubt ask a Maulana/Mufti.