Divorcing a Person


Bahishti Zewar, Fiqh, Part 4-Nikah (Marriage) in Islam / Thursday, July 15th, 2010

1. Only the man has the right to divorce. Once the man divorces his wife, the divorce comes into effect. The woman has no choice in this irrespective of whether she accepts the divorce or not. In all cases, the divorce comes into effect. The wife cannot divorce her husband.

2. The man has the right of issuing three talâqs only, and not more. If he issues four or five talâqs even then only three will be considered.

3. Once the man utters: “I divorce my wife”, and utters these words in such a tone that he himself can hear these words, divorce comes into effect. This is irrespective of whether he uttered them in private or in public, and whether his wife heard him uttering these words or not. In all cases, divorce takes place.

4. Divorce is of three types:

The First Type: Is that the nikâh is completely annulled and it is not permissible to live with the man without renewing the nikâh. If the woman wishes to stay with this man again, and the man also agrees to keep her, they will have to have their nikâh performed again. Such a talâq is known as talâqul bâ’in.

The Second Type: Is that if the husband and wife wish to remarry, then after completing the ‘iddah for the first divorce, she will have to marry another person. When he divorces her, she will have to complete the ‘iddah for this second divorce. Only then will it be permissible for her to remarry her first husband. Such a talâq is known as talâqul mughallazah.

The Third Type: Is that the nikâh has not broken as yet. If the husband divorces his wife by uttering the words of divorce one or two times and thereafter regrets his action, it will not be necessary to renew this nikâh. He can live with this wife without performing another nikâh and it will be permissible for them to live as a normal couple. However, if the man divorced her and maintained this divorce of his, i.e. he did not regret his action nor did he decide to continue living with his wife, then the moment the ‘iddah of talâq expires, the nikâh will break and the woman will be separated from her husband. As long as the ‘iddah does not expire, the man has the choice of either keeping his wife or not keeping her. Such a talâq is known as talâqur raj’î. It should be borne in mind that if the husband issues three talâqs, he will not have the choice of keeping his wife.

5. There are two ways in pronouncing or issuing the talâq.

The First Way: Is that the husband clearly utters: “I divorce you” or “I divorce my wife.” In other words, he issues the divorce in such clear words that there is no possibility of taking any other meaning from these words. Such a divorce is known as talâq-e-sarîh.

The Second Way: Is that the husband does not utter the words of divorce clearly. Instead, he speaks in very vague terms from which divorce could be deduced and from which some other meaning could also be taken, e.g. the person says: “I have distanced you from me.” From this, it could be deduced that he said: “I divorce you” or “I have not divorced you, but I will not keep you with me. Remain with your parents. I will not even bother about you.”

Alternatively, he could have said: “I will have no contact with you.” “I have no need for you.” “You have been separated from me.” “I have separated you from me.” “I have separated you from my house, go away.” “Get out.” “Go far from here.” “Go away to your parents.” “Go away to your house.” “I will not accommodate you any longer.”

Uttering any of the above words or other words similar to these, in which there is the possibility of several meanings is known as talâq-e-kinâyah.

6. If the divorce is issued in clear terms, divorce will take place the moment the words are uttered. This is irrespective of whether one had the intention of divorcing his wife or not, or whether he issued the divorce jokingly. When a divorce is issued in clear terms, the third type of divorce will take place. That is, the husband has the choice of keeping or divorcing his wife until just before the expiry of her ‘iddah. By uttering the divorce once, only one divorce will come into effect – not two nor three. However, if he utters the divorce three times, or says: “I give you three talâqs”, three talâqs will take place.

7. A person issued one divorce. As long as the wife is in her ‘iddah, he has the right to issue her a second or a third divorce. If he issues a second or third divorce, it will be valid and come into effect.

8. A person says: “I will divorce you.” Divorce will not take place. Similarly, if he says: “If you carry out a particular action, I will divorce you.” Divorce will not take place irrespective of whether she carries out the action or not. However, if the person says: “If you carry out a particular action, you are divorced”, then once she carries out the action, divorce will take place.

9. A person uttered the divorce and at the same time said: “’Inshâ’ Allah”. Divorce will not take place. Similarly, if he says: “If Allah wills, I divorce you” divorce will not take place. However, if the person uttered the divorce, waited for a while and thereafter said “’Inshâ’ Allah”; divorce takes place.

10. A person called his wife and addressed her as a “divorcee”. Divorce will take place even if he says this jokingly.

11. A person says: “When you go to Lucknow (or any other place which he mentions), you are divorced.” As long as she does not go to Lucknow, divorce will not take place. Once she goes there, divorce will take place.

12. The person did not clearly state the words of divorce. Instead, he issued the divorce in vague words and terms. If at the time of uttering these words, he had the intention of issuing divorce, divorce will take place. In such a case, the first type of divorce will take place, i.e. talâqul bâ’in. Now it will not be permissible for him to keep his wife without renewing the nikâh. If the person did not utter these words with the intention of talâq and instead had some other meaning in mind, talâq will not take place. However, if it is learnt through some evidence or indication that he had in fact intended divorcing her and that he is lying, then in such a case the woman should not live with him and she should regard it as if she has been divorced. For example, the wife comes angrily to her husband and says: “I cannot live with you any more. Divorce me!” And the husband replies: “Okay, I leave you.” In such a case, the woman must consider this to be a divorce.

13. A person says: “I divorce you, I divorce you, I divorce you.” Three divorces will take place. Alternatively, he divorces her three times, but in very vague terms. Even then, three divorces will take place. However, if the person had only intended one divorce but had uttered it three times in order to emphasize his point, only one divorce will take place. However, the woman does not know his intention. She should therefore regard it as three divorces.

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