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What Is The Word Of Talaaq?

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A man said ‘divorced’ to his wife; just the word, in the past tense – ‘divorced’. Another said, ‘From today onward you are haraam to me.’ Or ‘Go  back to your family; don’t let me see your face after this day.’

The scholars said divorce could be in a plain language or in a metaphorical expression. Example of divorce in clear language is ‘you are divorced’, ‘I divorce you’.

Example of metaphorical expression in divorce is: ‘Return to your family’, ‘Go to your father’s house’, ‘Get out of this house, never to return again’, ‘You are haraam to me’.

What is the difference between the two?

In the case of plain, clear words of divorce like ‘I divorce you, or ‘You are divorced’, the man cannot say later that ‘no, I’m only jesting; I don’t mean it’. Never; that is not acceptable at all. The wife is certainly divorced by such words. He will not be asked about his intention, as his words have made that very clear.

But in the case of a metaphorical expression in divorce, where he said ‘Go to your father’s house’, he will be asked what he means exactly. When you said your wife should return to her father’s home, do you mean that she is divorced? If he says yes, then she is divorced. If he says ‘no’, Allah knows his real intention; the marriage stands.

Another opinion is that metaphorical expression is divorce, and his saying to her ‘You are haraam to me’ makes it an irrevocable divorce, since a woman cannot stay with a man that divorces her three times until she marries another man, then, ‘You are haraam to me’ means that the divorce is an irrevocable one. Similar is the case when he says ‘Intercourse with you is forbidden to me’ or ‘Our separation is forever’, or words of similar import, the scholars said the woman is divorced irrevocably.

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

If a man divorces his wife and allows the ‘iddah period to elapse. Of course we learnt that there is no ‘iddah in respect of a marriage that is not consummated; that the ‘iddah period is three monthly courses for a woman that menstruates; and that those who do not menstruate, have not started or whose menstruation ceases, as in menopause, their ‘iddah is three months; that the ‘iddah of a pregnant woman extends to the time of delivery. All these we have mentioned with authorities from the Qur’an.

“It is not lawful for you, (Men), to take back any of your gifts (from your wives),”

Meaning it is haraam for you to take back any of your gifts from your wives because of divorce. You cannot take back anything you have given her – the dowry, a house, a car, jewels, anything. You cannot say ‘Now that we are divorced, drop the key to the I gave you’, or ‘Let me have the C of O to the house I bought for you’. It is haraam for you to do so.

“…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.”

If a woman surrenders something out of the dowry, part of it or all of it, that she received from her husband to secure release from him in the marriage, she has given something for her freedom. Once he agrees and accepts, an irrevocable divorce has occurred. He cannot take her back during the period of ‘iddah, since the divorce is an irrevocable one, but, and this is a big ‘but’, he can remarry her even before the end of the ‘iddah. Why? Because ‘iddah is observed in order to cleanse the womb for the next husband, but in case of this man, he IS THE husband. He accepted from her the dowry and an irrevocable divorce occurred, but after three days, or so, he regretted his acceptance and his action. He can remarry her even after three days, yes, within the period of ‘iddah or after it, before she marries another husband or after.

“…except when both parties fear that they would be unable to keep the limits ordained by Allah.”

What is the meaning of this? They said, equitable consortium; living as husband and wife in kindness. That is where both or one of them cease to love the other, and there is serious irresolvable discord where the house becomes an epitome of hell on earth. In this type of situation the wife may even say to the husband, ‘I hate you’. If she really meant what she said, with genuine reasons, the scholars are of the opinion that she is entitled to seeking her freedom as contained in this verse. This is where the parties in the marriage fear that they will not be able to live together on equitable terms, and thus are unable to keep the limits ordained by Allah; or where the arbiters, the judges fear that the consortium cannot subsist and thus Allah’s limits will not be kept, then there is no harm if the woman can ransom herself by giving to her husband whatever is agreed. But the scholars also said, even though accepting the wife’s offering is lawful to the husband, the acceptance by him is not part of gentlemanly conduct; it is mean, and heartless.

That is why some of the scholars said he can only accept such offering if the discord was from the wife’s side, and not his. She, it was, who started the whole crisis and sought release from the marriage. But if, on the other hand, it was the husband who was making life miserable for the wife, becoming unfriendly and ill-treating her so she could be forced to make an offer, then, the marriage will be dissolved and the husband has sinned and devoured haraam and fire by accepting anything from the wife.

If the judge later discovered the man’s treachery, could he force him to give back to the woman whatever he received? Yes, he can, said the scholars.

The best position, therefore, is for the husband to refrain from taking anything of what he has given his wife, except where she is the cause of the discord, makes the house ungovernable and life miserable for the husband.

What will the husband receive in such a case? They said, the dowry only. If he gave, for example, N50,000 for the sadaaq during the marriage contract, that is what the wife will give him. Nothing more, nothing less. Some of them said he can take from her whatever he wants for such release if she is willing to offer it for her freedom since she is the troublemaker and wants to leave by all means necessary.

The case of Jameelah bint Saluul is usually cited as an example of a woman surrendering something out of the dowry her husband gave to secure release from him. She was the wife of Thaabit Ibn Qais, and sister of Abdillaah Ibn  Abdillaah Ibn Ubay Ibn Saluul. She went to Allah’s Messenger, sallaahu alaihi wa sallam and said, ‘O Allah’s Messenger, I don’t see anything in Thaabit Ibn Qais that I detest either in his character or religion, but I don’t like his presence.’

In other words, she does not like him; she hates him; does not want to be with him.

The Messenger of Allah, sallaahu alaihi wa sallam said to her: ‘You will give him back his garden.’

During the marriage contract, Thaabit gave her a garden as dowry. A fenced garden, in every meaning of the word, full of date palms, and so on. The Prophet said you have to return to him his garden. And Jameelah bint Suluul said, ‘Yes, I will return it to him, O Messenger of Allah.’

The Prophet ordered Thaabit to take back his garden and divorce her.

That was the first Khul’u in Islam.

In another version of the hadeeth, when the Messenger of Allah, sallaahu alaihi wa sallam asked to return the garden, she answered ‘Yes, O Allah’s Messenger, I will give him back his garden and more.’ The Prophet of Allah, said ‘No, you will not give more than the garden.’

It was upon this that the scholar averred that a husband will not collect more than what he gave as sadaaq even where the wife is willing to give more than that since the Messenger of Allah did not allow it from Jameelah bint Saluul.

Another opinion allows the husband to collect more than what he gave, the Prophet’s instructions to Jameelah not withstanding, even though such collection is not part of gentlemanly conduct, as stated earlier, but to the scholars, he has the right to collect more than what he gave if he wants as the wife is willing to leave by all means.

So, we have two positions – those saying the husband should not take more than he has given, and those saying he can. But they all agree that the woman will not be made to pay anything except if the discord originates from her. They accept that there are cases where a woman, however much she tries, will cease to love a man. It is from the heart. If it is not there; you cannot place it there. It is beyond the power of any human being. Certainly, the woman may have a genuine reason to seek to free herself from what, to outsiders may look like a paradise, but to her is a dungeon.

Seeking freedom through paying back sadaaq should be distinct from asking for divorce devoid of genuine reason.

 

“If a woman asks divorce of her husband without a genuine reason, the fragrance of al-Jannah is haraam to her.” Meaning she will not enter Paradise.

This type of hadeeth is what you hear people quote when a woman seeks separation. No; we should consider all the facts. Listen to the woman first, before quoting hadeeth to quieten her. She may be living in hell, and she has no-one to turn to except Allah. She often spends days and nights on end silently weeping, and whenever she looks at her children she rescinds any decision of leaving.

Many of us, the menfolk, have forgotten the Prophet’s admonition to us during the Farewell Hajj in which he adjured us to treat women well; consort with them in kindness. Sadly, many of us who know something about Islam are worse in this regard. Look around you, a Muslim scholar has married and divorced about 10 women. Why will you seek for that person’s advice on marital matters when he is the worst example of a good husband? When women hear us preach they think our homes are an extension of the household of the Messenger of Allah, sallaahu alaihi wa sallam. Our wives know better. Please, forgive me for saying this, but it is the truth. And remember, I said some, not all Muslim scholars.

 

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