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Divorce (2)



Knowledge is essential in religion on things that pertain you. If you are not a businessman you may spare yourself the distress of learning about business relations in Islam.  Likewise, if you are not a farmer, you may care less about what the Shari’ah says on lands for farming, the zakah of produce and whatnot. But you are married. You have no reason to be ignorant about the rules governing marriage in Islam. You have no time to study the Shari’ah on marital relations, but you have the time for dailies, Facebook, Twitter and endless hours on WhatsApp, not to talk about Google, football league matches, television series and other time wasting pastimes. Many people will be shocked to find out, on the Day of Qiyaamah, that they have consorted with their wives in haraam, in Zina. “I have not slept with any other woman besides my wife”, he will say. Your wife? When you have pronounced words of divorce against her on so and so dates. “But I have taken her back Oh Allah.” No. Taking back a wife after a divorce has conditions which you have not followed.

“Does man think that he will be left uncontrolled, (without purpose)? “ (al-Qiyaamah, 38)

Everything was created in due proportion – the heavens, earth, all planetary bodies, the galaxies, the entire solar system – why will man be different? He wants to live like animals without laws or any form of control and restrictions.

Ignorance is not a defence against sanction for doing the wrong thing. If you give half of the time you spend daily on WhatsApp to reading about marital issues in the Shari’ah, you will become an authority in that field within a year.

As a married man you must have knowledge about marriage in Islam, the right and wrong ways of divorce, and where that happens, the ways of taking back your wife in line with the rules laid down by the Shari’ah. You should know the rights that a spouse has over the other; what is for you or what is against you. But, instead, your main concern was the marriage ceremony, not the Faatihah; good-looking features, not the character; the wealthy background, not the integrity; the party, not the Waleemah. And after all these heedlessness, you want a peaceful home and a successful marriage. A ship will sale only in the ocean, not in an open desert.

“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.”

‘Women shall have rights similar to the rights against them…’ means both husband and wife have similar rights, ‘according to what is equitable;’ it is not by Affirmative Action, whatever that means, or feminism, or union-like revolt or fighting against the laws of Allah. It is not by Boko and claiming of human rights; it is by mutual respect, patience, understanding and obedience.

You want your husband to be properly dressed, according to his means; to wear fragrance, and move among his peers in dignity. That is your right, as it is his right to see you in similar appearance according to what he is able to provide.

Whatever you want from your wife, she wants the same thing from you. Whatever you think is your right over your wife, she has the same right and claims over you.

‘…but men have a degree (of advantage) over them.’

What is this ‘degree of advantage’ that men have ‘over’ women? It is the Qawaamah; you are the lord of the household; you are the leader of the family, head of the herd. The seal of the marital contract is with you, according to some of the scholars. The power of divorce mainly is with the husband. Of course, there are instances when she could, through the courts, release herself from the union. Another position among the scholars on the degree of advantage over women is that she needs your permission to observe non-obligatory fast. She also needs your permission to go out, admit someone into your house, or allow access to your private chambers, where you recline.

Another area the scholars touched on the matter is the bed. You have a right to invite her into the bed whenever you feel the need, and she has to answer. If she refuses, she spends the night with a curse from the angels. She has a similar right of inviting you to the bed but you are under no obligation to answer the call. Why?

Let me answer this in an allegory. She must answer your call to bed because she is a receptacle; you can switch on her engine easily, and she will accommodate you, take you in, at all times. You have the option to answer her call to bed because your engine is at times difficult to start. Most of the time you lack vigour. Your going to that bed may result in total disappointment and emotional distress for her.  I will not say more.

Every intelligent person understands the allegory.

“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.”

Therefore, fear Allah, oh man, and respect the rights of your wife. She has equal rights as the ones you enjoy. Avoid divorce as much as possible for its consequences are dire. It destroys homes; it destroys the pleasure of a tranquil home. Yes, Allah sanctions it as a solution to the incompatible couple.

“But if they separate [by divorce], Allah will enrich each [of them] from His abundance…’ (an-Nisaa, 130)

Divorce is Rahmah to a union that has turned a matrimonial home into hell, provided it is done according to all that we have mentioned. It is not an instrument of terror or intimidation. Your wife is a human being, not a beast. She deserves the best from you. She is the first to be with you, the only one when you are struck by any ailment, to call the doctor or take you to the hospital. Treat her well. Consort with her in kindness. Marriage is love; marriage is mercy. No one should lord it over another. Where both of you realise that the union cannot be sustained because you have committed a terrible mistake by marrying this person, then follow the laid down rules for separation.

A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah; so do not transgress them; if any do transgress the limits ordained by Allah, such persons wrong (themselves as well as others). (al-Baqarah 229)

Divorce is, therefore, separated and in stages. In the first instance, when you intended to divorce her you waited for both her menses and her purity therefrom. You did not touch her after her purity, and you divorced her. During her ‘iddah, you took her back as your wife and established witnesses thereto. On the second occasion, you repeated the same process as you did when you desired to divorce at the first. After purity from her menses, you divorced her a second time.  That is the meaning of:

“A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms or separate with kindness.”

After the second divorce, ‘the parties should either hold together’ by returning to the fold of marriage as husband and wife, ‘on equitable terms’, before the expiration of the ‘iddah, ‘or separate with kindness’. In which case the husband will allow the ‘iddah to expire, thus letting the woman to be released from his guardianship and from inheriting him.

‘…separation with kindness’ is that which is devoid of harm to the woman. You are not making life miserable for her because of the separation. You will not smear her image in any way, or create obstacles to prevent her suitors to have access to her. Since you have divorced her, then let no man marry her.  You are forbidden from revealing her secrets or exposing her weaknesses. Why will you do that? It is despicable! You have your own weaknesses and secrets as a human being that you will not want her to expose.

‘..separation with kindness..’ is Allah’s instruction to you in divorce matters. It is right conduct. You are to be a gentleman. Do not obstruct the way of your former wife in getting another husband after you. Whatever happened between the two of you is now a classified history in the minds of both of you. None of you should use it in order to harm the other.

“A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness.”

What is the position of a man who divorces his wife two or three times at once? Out of his anger and ignorance, he said his wife is divorced three times. He does not want to have anything to do with her again. He sees no need to create any room for reconciliation through ‘iddah. He, thus, terminates the union by pronouncing divorce twice or thrice. What is the position of this divorce?

The scholars said, divorce is stipulated by Allah Himself in the way that we have mentioned and as expounded by the Messenger of Allah, sallaahu alaihi wa sallam; that the divorce should be made at the end of menses from which the woman is purified and the husband does not approach her within the period; that the pronouncement for such divorce is once at a time; that the man could take her back within the ‘iddah period; that the man may allow the period of ‘iddah to elapse in which case he cannot take her back as his wife but has to join other suitors, in the event of his desire to remarry her, in a brand new arrangement, if the woman agrees, with fresh dowry, marriage contract, waliy, witnesses and whatnot. This is what Allah sanctioned and what His Messenger, sallaahu alaihi wa sallam exemplified regarding divorce. The scholars said, therefore, that the pronouncement of divorce three times all at once is null and void, just as a person who said, for example, “I swear by Allah three times”; is this an oath or three oaths? They said it is an oath, one oath, except where he repeats it three times, but the mere mention of the word three in the sentence does not make it three oaths. Thus, his saying to his wife, “I divorce you three times” is considered, to this group of scholars, as only one divorce, and not three.

Where he said, clearly and distinctly, “I divorce you. I divorce you. I divorce you.” some of them said, even at that, the divorce is to be taken as one divorce, not three. But other scholars, among them the Salaf and the companions of the Messenger of Allah, sallaahu alaihi wa sallam, with Umar  Ibn al-Khattaab (RA) spearheading and who said:

“Allah has bestowed people a matter in which they can delay, but they hasten it and it becomes binding on them.”

Thus, if a man pronounces divorce three times, at once, against his wife, the pronouncement stands, and the wife becomes forbidden to him. He has the leverage, which he does use, to divorce her only once at a given time, but he chooses to expend all his cards at once. Our Lord has given you the opportunity to procrastinate, to reconsider, but you choose to release her all at once; then, you are on your own; you can never get her until she marries another person, and is divorced from him.



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