Giving multiple divorces at once

If a man says the word for divorce 3 times or says ‘I divorce you’ three times, if no one is witness to this and no one else has heard these words are they still married? If these words were said one after the other, in one go is this still a full divorce. How can the couple re-marry after this?

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

First of all, it should be known that there are three types of divorce: (1) Ahsan (most preferred), (2) Sunnah (preferred) and (3) Bid’a (sinful & unlawful innovation).

The Ahsan (most preferred) divorce is to make one pronouncement of divorce to the wife, in an interval between menstruations (Tuhr), in which no sexual intercourse with the wife has taken place. After which she is left until her waiting period (Iddah) is over.

The Sunnah (preferred) divorce is to pronounce three divorces in three separate intervals of Tuhr, in which no sexual intercourse with the wife has taken place.

The Bid’a (sinful and unlawful innovation) divorce consists of either making a pronouncement of divorce during the woman’s menstruation period (Haid) or to pronounce two or three divorces at once or to issue a divorce in a Tuhr (purity) in which sexual intercourse with the wife took place.

From the above we can see that, if a man pronounces three divorces at once, either by saying: “I give you three divorces” or by saying: “I divorce you” three times, it is considered an unlawful act and innovation. One will be sinful by divorcing the wife in such a way.

The reason for this prohibition is that, if divorce is pronounced in the period of purity (tuhr) in which sexual intercourse took place, there is a possibility that the woman may have conceived. This will prolong the waiting period for the woman, (which is until she gives birth), thus placing hardship and difficulty upon the woman, which is disliked by Shariah. Also the husband may regret giving the divorce after seeing his wife conceive.

The great Hanafi Jurist Sultan al-Ulama, Imam al-Kasani states in his famous work in fiqh, Bada’i al-Sana’i:

“There is a possibility that the woman conceives due to that intercourse and at the confirmation of pregnancy, the man will be regretful.” (Kasani, Bada’i` al-Sana’i`, 3.89)

Divorcing the wife in her menstruation (Haid) will also prolong her Iddah, as she will have to begin from the next Haid. This is also unnecessary hardship which can be avoided. Also another reason for the prohibition of pronouncing divorce in Haid is that, generally the man is less inclined towards his wife when she is in her menstrual periods. Therefore, one may hasten towards pronouncing divorce in this period without thinking properly of the consequences. This is not the case when the wife is in purity.

The reason behind the prohibition of issuing two or three divorces at once is that, divorce can be affected with only one. There is no need to pronounce two or three divorces. Also, if one divorce is given, one can take back the wife if he feels remorseful.

The above is clear in pointing out that an innovated divorce (in all its various forms) is unlawful (and sinful) and contrary to the teachings of Shariah. One must avoid Talaq al-Bid’a at all times.

However, this does not mean in any way that, an unlawful divorce will not be affected. Many people object to this by saying: “If the divorce is unlawful, then why should it come into effect?” The simple answer to this is that, one should not say why, how and but, etc., when there are clear evidences from the Qur’an and Sunnah declaring the pronouncement of three divorces at once to be three divorces, then it is necessary that one accepts it without any hesitation. These evidences will be mentioned further along Insha Allah; however I would like to answer this from an analogical point also.

An example which this humble servant usually gives when asked regarding this issue is that, Allah Almighty has prohibited murder as is common knowledge. It is a totally outrageous act, condemned by humanity, let alone all the religions.

Now, when a person is killed and murdered without any (lawful) reason, one can not say that, due to this act being prohibited, one should not die! If a person was to say that, then he will be regarded to be insane by everybody. The act being unlawful does not prevent death.

The great Imam al-Kawthari (Allah have mercy on him) refuses to use analogy in this issue in his famous work on the subject al-Ashfaq ala Ahkam al-Talaq. He says:

“We are not in need of any analogy as the evidences are clear and explicit from the Messenger of Allah (Allah bless him and give him peace), but an example for it is ‘Zihar’ (likening the wife to the back of a mahram woman, i.e. in prohibition). This has been described in the Qur’an as “evil and false”, yet the effect still remains.” (al-Ashfaq, P: 13)

Therefore, if a man pronounced three divorces at once by stating to the wife: “I divorce you three times” or by saying: “I divorce you”, three times, then three divorces will be effected and the divorce will be irrevocable. The woman will be free to re-marry another man after the termination of her Iddah. She cannot return to her former husband’s marriage unless she is divorced once again from her second husband.

This is the position held by all the Sunni schools of Islamic law, i.e., Hanafi, Shafi’i, Maliki and the Hanbali. This was also the view of the overwhelming majority of the Sahaba (Allah be pleased with them all) and Tabi’in (followers). Only the Ja’fariyya sect amongst the Shi’a and those who followed the literal meaning of the texts, like Imam Ibn Taymiyya and his student Ibn al-Qayyim differed with this view. There view, however, was not accepted by the majority of the Ummah. (See Ibn Qudama, al-Mugni, V: 7, P: 104)

Some of the evidences declaring all three divorces to be in effect:

1) Allah Almighty says in the Qur’an:

“Divorce is (only permissible) twice, thereafter either retaining her honourably or releasing her kindly…If he divorces her (the third time), she will not be lawful for him unless she marries another husband (and he also divorces her).” (Surah al-Baqarah, V: 229/230)

2) Sayyida A’isha (Allah be pleased with her) reports that: A man pronounced three divorces to his wife. She (after her Iddah) married another man. The Messenger of Allah was asked whether it was lawful for her to return to the first husband. He said: “Not until they have sexual intercourse.” (Recorded by Imam al-Bukhari in his Sahih)

It is clear from the above Hadith that three divorces at once will be affected. The woman was allowed to marry another man. The Prophet of Allah (Allah bless him and give him peace) would have surely pointed out, had three divorces not come into effect at once. The husband in this incident pronounced all three divorces at once as the great scholar of Hadith, Ibn Hajr rightly points out in his monumental commentary of Sahih al-Bukhari, ‘Fath al-Bari’.

3) The Companion Uwaimir al-Ajlani (Allah be pleased with him) pronounced three divorces at once to his wife in the presence of the Messenger of Allah (Allah bless him and give him peace), which has been recorded by Imam al-Bukhari and others in the famous incident of Mula’ana or li’an (Public imprecation). The Messenger of Allah (Allah bless him and give him peace) did not negate what he said, which is a sign that all three divorces were effected. Also, all the companions (Allah be pleased with them) considered them to be in effect.

4) Sayyiduna Hasan ibn Ali (Allah be pleased with him) said (in a long Hadith, after divorcing his wife): “Had I not heard my father (Ali) narrating from my grandfather (Allah bless him & give him peace) say: “when a man pronounces three divorces, then his wife will no longer remain lawful for him, unless she marries another man”, I would have taken my wife back.” (Sunan al-Bayhaqi)

There are many other narrations recorded by the scholars of Hadith in their respective books, but time does not allow us to mention them all. The above evidences are sufficient for a person who intends to seek the truth.

Those who hold the view that only one divorce will be effected, usually present the following narration of Ibn Abbas in support of their argument.

Sayyiduna Abd Allah ibn Abbas (Allah be pleased with him) says: “Three divorces were considered to be one in the time of the Messenger of Allah (Allah bless him and give him peace), Abu Bakr and in the first two years of Umar’s reign. Thereafter, Umar (Allah be pleased with him) declared it to be three divorces.” (Sahih of Imam Muslim).

The scholars of Hadith have analyzed this narration thoroughly in the context of all the other narrations. The great Hafidh, Imam Ibn Hajr deals with it in detail in his Fath al-Bari.

One of the meanings mentioned by the scholars is that, this narration is specific to only one situation, that is, when a person pronounces three divorces, but the repetition is only for emphasis (ta’kid) and not to issue another divorce. In the early days, people were morally more sound and reliable and thus when they said, it was only for emphasis and not to issue another divorce; it was taken at face value.

Umar (Allah be pleased with him) however, observed in his time that, people are becoming morally corrupt. Bad habits such as deceiving, cheating and lying, etc., have become prevalent. As a result he declared that, people’s statements will not be accepted as far as the courts are concerned. If the man is adamant that he only repeated the words to emphasize, then this will be between him and Allah.

In conclusion, if a person pronounced three divorces at once in any way, then in the light of the above evidences and in accordance with the scholarly consensus, it will be considered as three divorces.

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK


http://islamqa.org/hanafi/daruliftaa/7895

A man said to his wife ‘I am separating you from me’ and then said the word ‘divorce’ to her. His exact words were: ‘I am separating you from me, Talaq’ What is the Islamic ruling? Has divorce occurred or not. If it has then how many and whether is it revocable or irrevocable? Please clarify

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

Primarily, there are two situations here and depending on which situation we have, the ruling of divorce will differ. The husband’s statement can be perceived in two ways. It can be considered as one sentence, in that he did not intend two separate pronouncements; rather, he was merely emphasizing (ta’keed) the divorce. The second situation is where the husband intended a second pronouncement of divorce with the word ‘Talaq’ and he was not merely confirming the divorce. In other words, he was not merely emphasizing the divorce, but was actually thinking that this is a second statement of divorce that he is directing to his wife.

1) In the first situation, where the husband did not intend two separate pronouncements, one irrevocable divorce (talaq ba’in) has come into effect. The husband’s statement ‘I am separating you from me’ is an allusive (kinaya) statement that normally results in an irrevocable divorce if the husband has an intention to divorce. Here, the husband did have the intention to divorce his wife, as he clearly said ‘Talaq’ directly after it. Even if he did not intend divorce with this (first) statement, the second statement ‘Talaq’ is a clear statement of divorce which normally results in a revocable divorce with or without an intention. However, if this clear statement of divorce is joined with other words of emphasis, then it will result in an irrevocable divorce. Thus the statement ‘Talaq’ has been emphasised with the statement ‘I am separating you from me’ hence it will result in one irrevocable divorce and not a revocable one. (See: Radd al-Muhtar, 3/250)

As such, one irrevocable divorce has been effected and the wife must observe the waiting period (idda) immediately. If the couple wish to reconcile, they may do so by having a new Nikah contracted within the waiting period or after it. The husband, however, must remember that in future he will only possess two more divorces. If he was to ever divorce his wife two more times, the marriage will be completely over.

2) The second situation is where the husband meant to pronounce two separate statements of divorce. In this case, two irrevocable (ba’in) divorces will be effected, with the husband only possessing one further divorce in the future (if the couple were to reconcile). Here, the statement ‘I am separating you from me’ is an allusive statement of divorce which results in an irrevocable divorce. Thereafter, the husband pronounced a clear word of divorce, which normally results in a revocable divorce.

The renowned Hanafi jurist, Imam Haskafi (Allah have mercy on him) mentions four possible scenarios with regards to following up a divorce with another divorce. He states:

‘A clear (sarih) divorce follows a clear (sarih) divorce and an irrevocable (ba’in) divorce, with the condition of (this being in) the waiting period. And an irrevocable divorce (ba’in) follows a clear (sarih) divorce……. And an irrevocable (ba’in) divorce cannot follow another irrevocable (ba’in) divorce.’ (See: Radd al-Muhtar ala al-Dur al-Mukhtar, 3/306-308)

The meaning of the above text is that there are four scenarios with regards to following up a divorce with another divorce:

a) sarih + sarih
b) ba’in + sarih
c) sarih + ba’in
d) ba’in + ba’in

(Sarih means divorce in clear terms which normally results in a revocable/raj’i divorce, and ba’in means an irrevocable divorce).

a) Following up a clear (sarih) divorce with another clear (sarih) divorce ( as-sarih yalhaq as-sarih):

A clear divorce is where the husband pronounces divorce in clear terms. This type of divorce normally results in a revocable (raj’i) divorce and is effected even without the intention of divorce. As such, if a husband said to his wife: ‘I divorce you, I divorce you’ then two revocable divorces will come into effect. The husband may take his wife back (raj’a) provided he does so within the waiting period (idda) of the woman. If the waiting period is over, they may still get back together but now a new marriage contract will be needed.

The meaning of ‘with the condition of (this being in) the waiting period’ in the above text is that in order for the second divorce to be valid, it must be pronounced within the waiting period. As such, if a man said to his wife: ‘I divorce you’ and then when her waiting period was over, he again made the same statement, then obviously it will be of no consequence, as she is no longer his wife. It is as though he is pronouncing divorce to a complete stranger.

b) Following up an irrevocable (ba’in) divorce with a clear (sarih) divorce (as-sarih yalhaq al-ba’in):

Irrevocable divorce (talaq ba’in) is effected when the husband clearly stipulates that he is issuing his wife an irrevocable divorce, or when he divorces his wife using allusive words with an intention to divorce her. As such, if a husband divorced his wife irrevocably and then followed it up with a clear divorce, for example he said,’I am leaving you, I divorce you’ then in this case both divorces will come into effect.

It should be noted here that the first divorce is irrevocable, hence the marriage is considered to be somewhat over (unlike a revocable divorce). Despite this, when the second divorce is pronounced in clear terms, it will come into effect even if it was pronounced after an irrevocable divorce.

Imam Ibn Abidin (Allah have mercy on him) mentions another point of interest here. He states that if a divorce in clear terms (which normally results in a revocable divorce) is pronounced after an irrevocable divorce, the second clear divorce will also be considered irrevocable. The reason being is that the second divorce in clear terms has been preceded by an irrevocable divorce and that first irrevocable divorce will prevent the second clear divorce from being revocable. As such, two divorces will come into effect and both will be considered irrevocable. If the couple wish to reconcile, a new marriage contract will be necessary within or after the waiting period. (Radd al-Muhtar, 3/306)

c) Following up a clear (sarih) divorce with an irrevocable (ba’in) divorce (al-ba’in yalhaq as-sarih):

The third scenario is where one first pronounces clear (revocable) divorce and then the irrevocable divorce. For example, the husband says, ‘I divorce you, I am leaving you’. In this case, a revocable divorce took effect with the first pronouncement, and thereafter an irrevocable divorce. Hence, now two divorces have come into effect, with the second divorce being an irrevocable one, thus making a new marriage contract necessary if the couple desired to remain together.

d) Following up an irrevocable (ba’in) divorce with another irrevocable (ba’in) divorce (al-ba’in la yalhaq al-ba’in):

For example the husband says to his wife: ‘I am leaving you, I am leaving you’ intending divorce with both statements (although the ruling may be different if he says, ‘I divorce you irrevocably, I divorce you irrevocably’. Please check with a reliable scholar). In this case, only the first divorce will count and the second will be considered futile. Regardless of how many irrevocable divorces a man pronounces, only the first divorce is effected. The reason being is that the first divorce is irrevocable; hence, the marriage bond between the husband and wife has ended. As such, the second irrevocable divorce will not be able to attach itself on a relationship that has already come to an end. (Culled from Ibn Abidin’s Radd al-Muhtar, 3/306-309)

In light of this explanation on the four possible scenarios, two irrevocable divorces have come into effect. You state that the husband said: ‘I am separating you from me, Talaq’ which is from the second scenario, in that he followed up an irrevocable (ba’in) divorce with a clear (sarih) divorce. And as mentioned, in such cases two divorces come into effect and both of them are considered irrevocable. Therefore, if the couple wish to reconcile, a new marriage will have to be contracted and the husband will only have one more divorce in his possession for the future.

To sum up, primarily, there are two situations here. If the husband intended his statement ‘I am separating you from me, Talaq’ to be one statement of divorce, then one irrevocable (ba’in) divorce will come into effect. In this case, a new Nikah will have to be contracted if the couple wish to reconcile. However, if the husband intended two separate statements of divorce, then two irrevocable divorces will be effected, with only one more divorce remaining in the future, if the couple were to remarry.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK