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Divorce

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Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah Hath created in their wombs if they have faith in Allah and the Last Day. And their husbands have the better right to take them back in that period if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. And Allah is Exalted in Power, Wise. (Al-Baqarah 228

“Divorced women shall wait concerning themselves for three monthly periods.” This is a restrictive order mentioned in a general sense because not all divorced women will wait for three monthly periods. A pregnant woman, for example, if she is divorced, will not wait for three months as the waiting time in her case lingers until she delivers.

“…for those who carry (life within their wombs), their period is until they deliver their burdens:..” (At-Talaaq, 4)

Also, out of this general sense mentioned of divorced women in the verse is a divorced woman before consummation of the marriage. After contracting marriage, the bride is divorced before the husband sleeps with her; no waiting period is stipulated for such a woman.

“O ye who believe! When ye marry believing women and then divorce them before ye have touched them, no period of ‘Iddat have ye to count in respect of them:..” (Al-Ahzaab, 49)

Therefore, “Divorced women” as mentioned in 228 of al-Baqarah, refers to women whose marriage has been consummated before a divorce, and who are not pregnant.

“Divorced women shall wait concerning themselves for three monthly periods.”

What is the meaning of three monthly periods? Is it the menstrual blood, or is it purity from it? Or is it menstrual blood and purity from it at the same time?

The scholars agreed on the number – three – but disagreed on what it refers to.

Those who understood ‘three monthly periods’ to be menstrual blood, said that the waiting means a divorced woman will witness her period and purify herself at its end for the first month, and repeat the process for the second and the third periods. When she purifies herself for the third menstrual period, the woman has finished her ‘iddah and is disqualified from her husband’s inheritance. Because a revocable divorce entitles the woman to a share of the husband’s inheritance if he dies within the period of her ‘iddah. This is so because the husband has the right to take her back as his wife during the period of ‘iddah, since she is still under his guardianship, protection; so, if he dies, she inherits him, but after her purity from the third monthly cycle, she is not entitled to a share in the heritage in case he dies afterwards.

This is the first position of scholars like Imam Abu Haneefah and Imam Ahmad Ibn Hambali. ‘..three monthly periods’ to them means menstrual blood and purity therefrom after which the husband forfeits the right of taking his wife back. And if he wants her as his wife a second time, after the expiration of the ‘iddah, then there has to be a fresh dowry, a new marriage contract and so on.

But as for Imam Malik and Imam Ash-Shaafi’iy, ‘three monthly periods’ means three purities from menstrual cycles. Based on this, the divorced woman shall wait for purity and not menstruation. If her husband, for instance, divorces her today while she is in a state of purity, and her menstruation starts tomorrow, or even immediately after the divorce, then that is counted as one purity out of the three mentioned in the verse. When she is clean from this menses that commenced after the divorce, she has attained the second purity. Then the third menses will come, and as soon as she is clean from this, the woman has completed the ‘three monthly periods’ mentioned in the verse, and with the first drop of blood for another menses afterwards, she is out of the husband’s guardianship and is disqualified from his inheritance. That is the difference between the scholars concerning the meaning of ‘three monthly periods’. And of course, the position of Imam Malik and Imam Ash-Shaafi’iy is better for the woman as she may spend slightly above forty days to attain purity of the three periods, since the least period for menstruation is just a day and a night, and the maximum period, according to some of them is fifteen days.

The Sunnah of divorce as taught by the Messenger of Allah, sallallaahu alaihi wa sallam, is for a woman to be divorced in purity devoid of intercourse, not during her period.

What is the rule then if after purity there was intercourse before the divorce? The husband, according to the scholars, has sinned by having intercourse with his wife after her purity from menses before he divorced her, but the divorce stands, just as is the case where he divorces her during menstruation. Some of them said the divorce will not hold since he divorces her during her menses, thus putting something in the wrong place. Yes, he sins by pronouncing divorce during menses, but it does not stand.

Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah Hath created in their wombs if they have faith in Allah and the Last Day.

It is not lawful for them to conceal what Allah has created in their wombs, of menstrual blood, purity therefrom and of pregnancy. Because concealing pregnancy may discourage the husband from rescinding the divorce and taking her back; with her term complete, the wife may eventually remarry and thus ascribe the pregnancy to her new husband; the wrong parentage.

And their husbands have the better right to take them back in that period if they wish for reconciliation.

If they desire reconciliation during the period of ‘iddah, the husbands have the better right to take them back. Therefore, reconciliation is the primary aim of taking the wives back. The husband should fear Allah not to take back the wife with a view to hurting her further after whatever led to the divorce in the first place. The wicked is he who divorces his wife, takes her back only when it is a few days before the end of the ‘iddah, and then divorces her a second time. No; after the divorce has occurred, take back your wife so you can reconcile your life for the better, and do not harm the wife in any way.

How does he take back his wife after divorce? A man divorces his wife, but before the expiration of the ‘iddah he desires to take her back; how does he do that?

They said he can do that by touching her, by kissing, or by having intercourse with her, the wife is returned to her place as his wife, even without uttering a word.

Another opinion said, just as he uttered the word of divorce,  by saying you are divorced, taking her back must be made by such pronouncement as ‘I take you back as my wife’, or words of similar import.

Can he take back the wife without witnesses? A wife, for example, angers her husband, and he said to her ‘you are divorced.’ He met with his friend in that state of agitation and vexation, and the friend advised him. ‘Listen, my friend, don’t ruin your marriage. You acted in anger. Think deeply about your children and how this state of affairs will affect them. Your wife is a nice, loving woman. Please take her back. Allah forgives what is past. ’

After this naseehah, the husband returns to his wife and said, ‘darling, you made me mad at you; that was not what I intended; I’m sorry. I take you back.’ Under this circumstance, is this taking back of his wife valid? The scholars said no, it is not.

Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah. (at-Talaaq, 2)

Therefore, taking wives back after divorce must be witnessed before it will be valid.

Now we can see the foolishness of using the word of divorce carelessly, and how that can lead to a union of debauchery in the name of marriage if after taking the wife back the husband does not call people to witness.

Marriage is like a going concern where partners ‘agree to disagree agreeably.’ The books have to be opened. There are liabilities and responsibilities that must be cleared. The shareholders cannot disperse just like that when they want to close the company for whatever reason. There must be give-and-take; assets and liabilities sorted out. Thus, before you join any union, think of many things that will affect you in case anything goes wrong.

People assume that marriage is just like their shoe; they can go into it and remove it at will without consequences. You just have to say ‘I divorce you’ to end and set asunder what Allah orders to be joint. No. If you want to divorce your wife, you must wait for her menses to come and go, that is purity and cleanliness for the wife. This procrastinating method is certain to give you more time to think and reconsider your position. And even though she is clean from the menses, you cannot touch her if you are determined to divorce. This is when you are permitted to divorce the wife. So, it is not an improvised spur of the moment thing, that you just pronounce divorce at will anytime you will. But for those who are imbecile enough to pronounce divorce without recourse to these conditions, the divorce stands, even though they are sinners for engaging in a bid’ah divorce.

What happens during the period of ‘iddah? You pronounce the divorce. Now after such pronouncement, who leaves the house? Only an ignorant fool says ‘I divorce you; pack your things and go out’. May Allah protect our daughters from marrying ‘one who walks headlong, with his face grovelling,’.

Listen to this. If you divorce your wife, said the scholars, you are the one to get out of the house, and not your wife. The Qur’an says:

O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah: and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation. (at-Talaaq, 1)

Therefore, the scholars continued, you must go out of the house; you cannot stay with her in the same house. Not only that, whenever you want to come for anything, you must seek her permission before you come into the house. When you are in the house, you cannot be alone and secluded with her. She will be in complete hijab since you have chosen to be an outsider by the act of divorce. You are no longer husband and wife. Things will continue in this fashion until the end of the period of ‘iddah, or until when you decide to take her back as your wife. This is the Shafi’i position. Lovely!

Another position said, after divorce, you can go into the house where your visa request is granted, and you can have a private discussion with her since she has once been your wife. On her part, they further said, the wife can dress decently and beautifully as she used to do when she was your wife, perchance your attention may be drawn to what you are missing.

The third position said you can enter the house without permission, and she can dress as a woman may be with her husband without hijaab. Why? They said because if you are tempted to kiss her or to look upon her lustfully, you have inadvertently taken her back as your wife even without uttering the words. Their desire is to ease taking back wives after divorce, thus, they decreed that the wife could dress in a way that your attention could be drawn… to beautify herself, wear perform, elegant outfits, even her hair exposed… The scholars permit you to be alone and secluded with her where she can set lose her entire arsenal against you from the movement of her eyes to the intonement of her voice.


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