Divorce: When a three-time divorce is bindingQuestion
Many of us felt a great relief when we read your reply, explaining that a divorce pronounced three or more times in one session is counted as one revocable divorce.
1. The relief comes from the fact that it is common practice in our part of the world to pronounce divorce three times together, which has resulted in many a broken homes. However, it is mentioned by scholars that all four schools of thought are unanimous in considering a divorce pronounced three times as three divorces, which renders the break of the marriage irreparable. Please comment in detail.
2. It is common practice that a man casts his wife by pronouncing the word of divorce three times. It is often true that this irrevocable break up of the marriage has no reason other than the husband's desire for another woman or some such silly thing. In this way, he uses the law of divorce to satisfy his whims. Could you please explain what sort of protection is given to the woman to guard against such abuse of the law?Answer
Any law or regulation can be subject to abuse. Unless you appoint someone to watch over every person to ensure that he abides by the letter and spirit of the law, you cannot achieve a proper adherence to the law. But Islamic laws and regulations are given the support of the very real feeling which Islam implants in the mind of every one of its followers that Allah watches over him or her. When we realize that Allah knows our intentions and the real reasons behind our actions, we feel that we must always watch out. We must never abuse Allah's law or be guilty of any wrongdoing. As people who believe in the Oneness of Allah and in the message of the Prophet Muhammad (peace be upon him) we know that we have to face a detailed reckoning on the Day of Judgment, when we have to answer for every action that we may make in this life. It is the total sum of what we have done in life and the net result of our good actions set against our bad ones that determines our destiny in the life to come.
As believers we know that heaven and hell are a reality and that we must do our best to ensure our admission into heaven. Therefore, we must always guard against doing injustice to anyone, particularly those whom we are required to look after and to whom we are supposed to bring happiness, i.e. our wives and close relatives. The other safeguard is the fact that in a Muslim community, women are properly looked after either by their husbands or by male members of their families, such as their fathers, brothers or uncles.
In addition, if we are good believers and know that following the teachings of the Prophet Muhammad (peace be upon him) brings us the greatest reward of all, namely, that Allah is pleased with us, we should work hard to implement the Prophet's teachings in our lives. The Prophet has repeatedly emphasized that we must take good care of our women. To take good care of one's wife cannot be accomplished by abusing the law of divorce in order to get rid of her, or "cast her away" as you say.
In order to understand the difference, you should know that there are two types of divorce in Islam, one is called sunni, which means it is done according to what has been stipulated in the Sunnah; the other kind is called bid'i, which means it has been done in a different way contrary to the Sunnah of the Prophet (peace and blessings be upon him). A sunni divorce means that a husband divorces his wife once at a time she is not menstruating or in a period of purity that no sexual intercourse were held. A bid'i divorce means the husband divorces his wife in a situation opposite to what has been stated in the sunni divorce, such as during menstruation.
Divorcing a wife thrice in one sitting is considered a bid'i divorce. That is why Muslim scholars have held different views on whether such divorce counts or not, and if it does count, does it count as revocable or irrevocable divorce. The majority of scholars said that a triple divorce counts as once, because it is reported that a man came to the Prophet (peace and blessings be upon him) and told him that he had divorced his wife three times. The Prophet (peace and blessings be upon him) told him that one of them had been considered and the rest been disregarded.
May I now turn to the other point of divorcing one's wife three times in the same session. I have explained several times that this is forbidden. When the Prophet heard that one of his companions did this, he expressed extreme anger and addressed the Muslim community, saying: "Will Allah's book be trifled with when I am still alive among you?" He described a divorce pronounced three times in the same session as "trifling with Allah's Book." There can be no greater emphasis that such an action is absolutely forbidden. Yet people do it all the time.
I am afraid that many are under the false impression that unless they pronounce the word of divorce three times together, the divorce does not take effect. Therefore, this comes as a result of ignorance. The question is whether what people do, pronouncing the word of divorce three times in quick succession, or in one session, or on the same day, counts three divorces as the four schools of thought say, or counts as one divorce, as I have explained on more than one occasion.
Before answering this question let me point out three very important facts:
First, a verdict may be accepted by a large number of highly prominent scholars, including, the founders of the four schools of thought, yet it may be supported by less weighty evidence than an opposite verdict which may be advocated by a smaller number of scholars. If we find that evidence supporting the view of the minority weightier, then we do not hesitate to accept that opinion, because no one, a scholar or others, of even the highest eminence, is immune from making a mistake or giving a judgment which relies on a misunderstanding, etc.
All our scholars agree that no opinion of any person is to be taken in preference to an authentic Hadith. Even the founders of the four schools of thought have expressed this view very clearly. Imam Al-Shaf'ie says: "If I say something and you find an authentic Hadith saying something different, then take the Hadith and leave my opinion aside."
The second point is that when there is more than one verdict in relation to a particular question, a person in my position, having to answer people's queries and explain what people should do in order to earn Allah's pleasure, should not leave his readers in a position of confusion. He must tell them the view that he believes to be the correct one, as supported by the weightier evidence. If any reader decides that he wants to take the other view, he is free to do so, but he should make his decision based on a proper understanding of the evidence relevant to the question on hand.
Thirdly, if the leader of a Muslim community chooses a verdict which is supported by good and weighty evidence and decides that this is the one to be implemented by the courts of law, he must be obeyed provided that he is only acting in the best interests of the community.
Those who consider that a divorce pronounced three times in succession, or in one session, or written down on the same piece of paper counts as three divorces rely on a ruling by Umar ibn Al-Khattab who, as a ruler of the Islamic state, enforced that piece of regulation. He justified it by saying: "People have precipitated something in which they have been given relief, it may be appropriate to enforce what they have precipitated."
So he enforced it. It is clear from this statement that Umar meant this as a punishment befitting the misbehavior of people who precipitate the irrevocability of divorce by divorcing their wives three times in succession. In other words, he was saying that "People want that irrevocability to take place immediately, then let them have it."
The companions of the Prophet who were alive at that time accepted Umar's view, because they felt that the punishment was appropriate. Later scholars have taken this as a unanimous verdict by the companions of the Prophet and include it in their books as the appropriate ruling. The fact that it was merely a punishment is the acknowledgment implied in Umar's own statement that people have already been granted a relief, but they still precipitate the ultimate result.
It is only appropriate to ask what that relief is. The answer is contained in the authentic Hadith included in this report by Abdullah ibn Abbas: Rukanah ibn Abdyazid divorced his wife three times in the same place, and then he was full of grief of having done so. Allah's Messenger (peace be upon him) asked him: "How did you divorce her?" Rukanah said: "I have divorced her thrice." The Prophet asked him: "In one session?" He answered: "Yes." The Prophet said: "That is one divorce, and you may return to her if you wish." He revoked the divorce and remarried her."
This Hadith tells us that the Prophet himself gave the ruling that a divorce pronounced three times in a succession, or in one place counts only as one divorce. It is well known that a remarriage between a divorced couple can take place if the divorce is taking effect for the first or second time. Indeed, this was the ruling enforced by the Prophet throughout his life, and also enforced throughout the reign of Abu-Bakr and the early period of the reign of Umar. All companions of the Prophet who were alive in that period were unanimous in their acceptance of such a divorce as a single divorce.
This ruling, as I have mentioned earlier, is one adopted by a number of renowned scholars, including Imam Ibn Taimiyah and Imam Ibn Al Qayyum. Earlier in this century, when the family law in several countries was enacted, scholars who were entrusted with the task of formulating the Islamic teachings in a well coded family law chose this ruling as the correct one and incorporated in that family law. It was then endorsed by the ruler. As such, it takes a much stronger effect.
From a totally different point of view, it is well known that in Islam, when a person says to his wife that she is divorced, intending a termination of his marriage to her, she begins the procedure of divorce [and her waiting period] immediately. She is, technically speaking, a divorcee, but she is observing a waiting period.
When he says the same thing to her a second time, whether immediately or a short while afterwards, his statement is no more than an idle talk because she is no longer his wife. How is it possible to divorce a woman who is not one's wife? That is certainly impossible and, therefore, the second and any subsequent utterances of the word of divorce have no significance whatsoever.