(Kitab The Book of Divorce
INTRODUCTION
The Arabic word for divorce is talaq which means" freeing or undoing the knot" (Imam Raghib). In the terminology of the jurists. Talaq signifies the dissolution of marriage, or the annulment of its legality by the pronouncement of certain words.
Divorce is of three kinds: the Ahsan, or most laudable, the Hasan, or laudable, and the Bid'a or irregular.
Talaq Ahsan or the most laudable divorce is where the husband repudiates his wife by making one pronouncement within the term of Tahr (purity. when the woman is not passing through the period of menses) during which he has not had sexual intercourse with her, and she is left to observe her 'Idda.
Talaq Hasan or laudable divorce is where a husband repudiates an enjoyed wife by three sentences of divorce, in three Tuhrs
Talaq Bid'a or irregular divorce is where a husband repudiates his wife by three divorces at once. According to the majority of the jurists, the Talaq holds good, but it is against the spirit of the Shari'ah, and, therefore, the man who follows this course in divorce is an offender in the eye of Islamic Law.
The right of woman in demanding the dissolution of marriage is known as Khula' (meaning, literally, the putting off or taking off a thing). It is a kind of facility provided to the wife in securing Talaq from her husband by returning a part or full amount of the bridal gift.
We have described before that, according to Islam, marriage is a civil contract; yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity that a high degree of sanctity is attached to it. But, in spite of the sacredness of the character of the marriage tie, Islam recognises the eternity of divorce in cases when marital relations are poisoned to a degree which makes a peaceful home life impossible. But Islam does not believe in unlimited opportunities for divorce on frivolous and flimsy grounds, because any undue increase in tht facilities for divorce would destroy the stability of family life. Therefore, while allowing divorce even on genuine grounds, Islam has taken great care to introduce checks designed to limit the use of available facilities. The French legists Planiol and Ripert have explicitly emphasised Islam's point of view in regard to divorce in these words:" Divorce is a mischief. However, it is a measure that cannot be avoided for the welfare of the community, because it is the only remedy for another harm which may be wore dangerous The prohibition of divorce, whatever harm it may imply, is like the prohibition of surgery, because the surgeon is compelled to amputate some of the limbs of the patient's body. However, there is no danger whatsoever, in legislating for divorce (in accordance with the practice established by Islam) since it is not divorce that spoils married life and dissolves its sacred tie, but the misunderstanding that arises between the married couple and hinders the strengthening of this (union by marriage) and demolished it. Divorce alone puts an end to the hatred that may occur between the husband and his wife before it is aggravated and becomes an intolerable mischief to society" (quoted by Hasan Ibrihim Hasan, Islam, Religious, Political. Social and Economic Study, p. 274).
Chapter 1: IT IS FORBIDDEN TO DIVORCE THE WOMAN DURING HER MENSES
Book 009, Number 3473:
Ibn 'Umar (Allah be pleased with them) reported that he divorced his wife while she was menstruating during the lifetime of Allah's Messenger (may peace be upon him). 'Umar b. Khattib (Allah be pleased with him) asked Allah's Messenger (may peace be upon him) about it, whereupon Allah's Messenger (may peace be upon him) said: Command him ('Abdullah b. 'Umar) to take her back (and keep her) and pronounce divorce when she is purified and she again enters the period of menstruation and she is again purified (after passing the period of menses), and then if he so desires he may keep her and if he desires divorce her (finally) before touching her (without having an intercourse with her), for that is the period of waiting ('ldda) which God, the Exalted and Glorious, has commanded for the divorce of women.
Book 009, Number 3474:
Abdullah (b. 'Umar) reported that he divorced a wife of his with the pronouncement of one divorce during the period of menstruation. Allah's Messenger (may peace be upon him) commanded him to take her back and keep her until she was purified, and then she entered the period of menses in his (house) for the second time. And he should wait until she was purified of her menses. And then if he would decide to divorce her, he should do so when she was purified before having a sexual intercourse with her; for that was the 'Idda which Allah had commanded for the divorce of women. Ibn Rumh in his narration made this addition: When 'Abdullah was asked about it, he said to one of them: If you have divorced your wife with one pronouncement or two (then you can take her back), for Allah's Messenger (may peace be upon him) commanded me to do it; but if you have divorced her with three pronouncements, then she is forbidden for you until she married another husband, and you disobeyed Allah in regard to the divorce of your wife what He had commanded you. (Muslim said: The word" one divorce" used by Laith is good.)
Book 009, Number 3475:
Ibn Umar (Allah be pleased with them) reported: I divorced my wife during the lifetime of Allah's Messenger (may peace be upon him) when she was in the state of menses. 'Umar (Allah be pleased with him) made a mention of it to Allah's Messenger (may peace be upon him), whereupon he said: Command him to take her back and leave her (in that state) until she is purified. Then (let her) enter the period of second menses, and when she is purified, then divorce her (finally) before having a sexual intercourse with her, or retain her (finally). That is the 'Idda (the prescribed period) which Allah commanded (to be kept in view) while divorcing the women. 'Ubaidullah reported: I said to Nafi': What became of that divorce (pronounced within 'Idda)? He said: It was as one which she counted.
Book 009, Number 3476:
A hadith like this has been narrated on the authority of 'Ubaidullah, but he made no mention of the words of Ubaidullah that he said to Nafi'.
Book 009, Number 3477:
Ibn 'Umar (Allah be pleased with them) reported that he divorced his wife during the period of menses. 'Umar (Allah be, pleas'ed with him) asked Allah's Apostle (may peace be upon him), and he commanded him ('Abdullah b. 'Umar) to have her back and then allow her respite until she enters the period of the second menses, and then allow her respite until she is purified, then divorce her (finally) before touching her (having a sexual intercourse with her), for that is the prescribed period which Allah commanded (to be kept in view) for divorcing the women. When Ibn 'Umar (Allah be pleased with them) was asked about the person who divorces his wife in the state of menses, he said: If you pronounced one divorce or two, Allah's Messenger (may peace be upon him) had commanded him to take her back, and then allow her respite until she enters the period of the second menses, and then allow her respite until she is purified, and then divorce her (finally) before touching her (having a sexual intercourse with her) ; and if you have pronounced (three divorces at one and the same time) you have in fact disobeyed your Lord with regard to what He commanded you about divorcing your wife. But she is however (finally separated from you).
Book 009, Number 3478:
Abdullah b. 'Umar (Allah be pleased with them) reported: I divorced my wife while she was in the state of menses. 'Umar (Allah be pleased with him) made mention of it to Allah's Apostle (may peace be upon him) and he was enraged and he said: Command him to take her back until she enters the second ensuing menses other than the one in which he divorced her and in case he deems proper to divorce her, he should pronounce divorce (finally) before touching her (in the period) when she is purified of her menses, and that is the prescribed period in regard to divorce as Allah has commanded. 'Abdullah made a pronouncement of one divorce and it was counted in case of divorce. 'Abdullah took her back as Allah's Messenger (may peace be upon him) had commanded him. A hadith like this was reported on the authority of Zuhri with the same chain of narrators. Ibn Umar (Allah be pleased with them), however, said: I took her back, and counted this pronouncement of divorce (as valid) with which I divorced her.
Book 009, Number 3479:
Ibn 'Umar (Allah be pleased with them) reported that he divorced his wife while she was in the state of menses. 'Umar (Allah be pleased with him) made mention of it to Allah's Apostle (may peace be upon him) and he said: Command him to take her back, then divorce her when she is pure or she is pregnant.
Book 009, Number 3480:
Ibn 'Umar (Allah be pleased with them) reported that he divorced his wife while she was in her menses. 'Umar (Allah be pleased with him) asked Allah's Apostle (may peace be upon him) about that, and he said: Command him to take her back until she is pure and then she enters the second menses and then becomes pure. Then either divorce her (finally) or retain her.
Book 009, Number 3481:
Ibn Sirin reported: One who was blameless (as a narrator) narrated to me for twenty years that Ibn 'Umar (Allah be pleased with him) pronounced three divorces to his wife while she was in the state of menses. He was commanded to take her back. I neither blamed them (the narrators) nor recognised the hadith (to be perfectly genuine) until I met Abu Ghallab Yunus b. Jubair al-Bahili and he was very authentic, and he narrated to me that he had asked Ibn 'Umar (Allah be pleased with there) and he narrated it to him that he made one pronouncement of divorce to his wife as she was in the state of menses, but he was commanded to take her back. I said: Was it counted (as one pronouncement)? He said: Why not, was I helpless or foolish?
Book 009, Number 3482:
A hadith like this has been transmitted on the authority of Ayyub with a slight variation of words.
Book 009, Number 3483:
Ayyub reported a hadith like this with the same chain of narrators and he said: Umar (Allah be pleased with him) asked Allah's Apostle (may peace be upon him) about it and he commanded him that he should take her back until she is divorced in the state of purity without having a sexual intercourse with her, and said: Divorce her in the beginning of her 'Idda or her 'Idda commences.
Book 009, Number 3484:
Yunus b. Jubair reported: I said to Ibn'Umar (Allah be pleased with them): A person divorcedhis wife while she was in the state of menses, whereupon he said: Do you know 'Abdullah b. Umar (Allah be pleased with them), for he divorced his wife in the state of menses. 'Umar (Allah be pleased with him) came to Allah's Apostle (may peace be upon him) and asked him, and he (the Holy Prophet) commanded him that he should take her back, and she started her 'Idda. I said to him: When a person divorces his wife, and she is in the state of menses, should that pronouncement of divorce be counted? He said: Why not, was he hopless or foolish?
Book 009, Number 3485:
Ibn 'Umar (Allah be pleased with them) reported: I divorced my wife while she was in the state of menses. 'Umar (Allah he pleased wish him) came toAllah's Apostle (may peace be upon him) and made mention of that to him, whereupon Allah's Apostle (may peace be upon him) told that be should take her back, and when she is pure he may divorce her. if he would so wish. I (one of the narrators) said to Ibn 'Umar (Allah be pleased with them): Did you count (this pronouncement of divorce) in her case? He said: What (after all) prevents him from doing so? Do you find him (Ibn Umar) either helpless or foolish?
Book 009, Number 3486:
Anas b. Sirin reported: I asked Ibn 'Umar (Allah be pleased with them) about the woman whom he had divorced. He said: I divorced her while she was in the state of menses. It was mentioned to 'Umar (Allah be pleased with him) and he then made a mention of that to Allah's Apostle (may peace be upon him), whereupon he said: Command him to take her back and when the period of menses is over, then (he may divorce her in the state of her purity. He (Ibn Umar) said: So I took her back, then divorced her in her purity. I (the narrator) said: Did you count that divorce which you pronounced in the state of menses? He said: Why should I not have counted that? Was I helpless or foolish?
Book 009, Number 3487:
Anas b. Sirin reported that he had heard Ibn 'Umar (Allah be pleased with them) as saying. I divorced my wife while she was in the state of menses. 'Umar (Allah be pleased with him) came to Allah's Apostle (may peace be upon him) and informed him about it, whereupon he (Allah's Apostle) said: Command him to take her back and when she is pure, then divorce her. I said to Ibn 'Umar Allah be pleased with them): Did you count that pronouncement of divorce? He said: Why not? This hadith has been narrated on the authority of Shu'ba with the same chain of transmitters but with a slight variation in wording.
Book 009, Number 3488:
Ibn Tawus narrated on the authority of his father that Ibn 'Umar (Allah be pleased with them) was asked about the person who divorced his wife in the state of menses, whereupon he said: Do you know 'Abdullah b. Umar? He said: Yes. He said: It was he who divorced his wife jn the state of menses and 'Umar went to Allah's Apostle (may peace be upon him) and gave him this information. and he commanded him that he should take her back; and he (Abu Tawus) said: I did not hear any addition to this (hadith) from my father.
Book 009, Number 3489:
Abu Zubair reported that he heard 'Abd al-Rahman b. Aiman (the freed slave of 'Azza) say that he asked Ibn 'Umar (Allah be pleased with them) and Abu Zubair heard: What is your opinion about the person who divorced his wife in the state of menses? Thereupon he said: Ibn Umar (Allah be pleased with them) divorced his wife during the lifetime of Allah's Messenger (may peace be upon him) while she was in the state of menses. Upon this Allah's Messenger (may peace be upon him) told him to take her back and so he took her back and he (further) said: When she is pure, then either divorce her or retain her. Ibn 'Umar (Allah be pleased with them) said that Allah's Apostle (may peace be upon him) then recited this verse:" O Apostle, when you divorce women, divorce them at the commencement of their prescribed period" (Ixv 1).
Book 009, Number 3490:
A hadith like this is reported on the same authority (but with this difference that the narrator) 'Abd al-Rahman b. Aiman (was mentioned) as the freed slave of 'Urwa (Imam Muslim said: He made a mistake who said that it was 'Urwa; it was in fact the freed slave of 'Azza.)
Chapter 2: PRONOUNCEMENT OF THREE DIVORCES
Book 009, Number 3491:
Ibn 'Abbas (Allah be pleased with them) reported that the (pronouncement) of three divorces during the lifetime of Allah's Messenger (may peace be upon him) and that of Abu Bakr and two years of the caliphate of Umar (Allah be pleased with him) (was treated) as one. But Umar b. Khattab (Allah be pleased with him) said: Verily the people have begun to hasten in the matter in which they are required to observe respite. So if we had imposed this upon them, and he imposed it upon them.
Book 009, Number 3492:
Abu Sahba' said toIbn 'Abbas (Allah be pleased with them): Do you know that three (divorces) were treated as one during the lifetime of Allah's Apostle (may peace be upon him), and that of Abu Bakr, and during three (years) of the caliphate of Umar (Allah be pleased with him)? Ibn Abbas (Allah be pleased with them) said: Yes.
Book 009, Number 3493:
Abu al-Sahba' said to Ibn 'Abbas: Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one during the lifetime of Allah's Messenger (may peace be upon him) and Abu Bakr. He said: It was in fact so, but when during the caliphate of 'Umar (Allah be pleased with him) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one).
Chapter 3: ATONEMENT IS ESSENTIAL FOR ONE WHO MADE HIS WIFE UNLAWFUL FOR HIMSELF WITHOUT THE INTENTION OF DIVORCE
Book 009, Number 3494:
Ibn Abbas (Allah be pleased with them) reported about (declaring of one's woman) unlawful as an oath which must be atoned, and Ibn 'Abbas said: Verily, there is in the Messenger of Allah (may peace be upon him) a model pattern for you.
Book 009, Number 3495:
Ibn Abbas (Allah be pleased with them) reported: When a man declares his wife unlawful for himself that is an oath which must be atoned, and he said: There is in the Messenger of Allah (may peace be upon him) a noble pattern for you.
Book 009, Number 3496:
'A'isha (Allah be pleased with her) narrated that Allah's Apostle (may peace be upon him) used to spend time with Zainab daughter of Jahsh and drank honey at her house. She ('A'isha further) said: I and Hafsa agreed that one whom Allah's Apostle (may peace be upon him) would visit first should say: I notice that you have an odour of the Maghafir (gum of mimosa). He (the Holy Prophet) visited one of them and she said to him like this, whereupon he said: I have taken honey in the house of Zainab bint Jabsh and I will never do it again. It was at this (that the following verse was revealed): 'Why do you hold to be forbidden what Allah has made lawful for you... (up to). If you both ('A'isha and Hafsa) turn to Allah" up to:" And when the Holy Prophet confided an information to one of his wives" (lxvi. 3). This refers to his saying: But I have taken honey.
Book 009, Number 3497:
'A'isha (Allah be pleased with her) reported Allah's Messenger (may peace be upon him) liked sweet (dish) and honey. After saying the afternoon prayer he used to visit his wives going close to them. So he went to Hafsa and stayed with her more than what was his usual stay. I ('A'isha) asked about that. It was said to me: A woman of her family had sent her a small vessel of honey as a gift, and she gave to Allah's Messenger (may peace be upon him) from that a drink. I said: By Allah, we would also contrive a device for him. I mentioned that to Sauda, and said: When he (Allah's Apostle) would visit you and draw close to you, say to him: Allah's Messenger, have you taken maghafir? And he would'say to you: No. Then say to him: What is this odour? And Allah's Messenger (may peace be upon him) felt it very much that unpleasant odour should emit from him. So he would say to you: Hafsa has given me a drink of honey. Then you should say to him: The honey-bees might have sucked 'Urfut, and I would also say the same to him and. Safiyya, you should also say this. So when he (the Holy Prophet) came to Sauda, she said: By Him besides whom there is no god, it was under compulsion that I had decided to state that which you told me when he would be at a little distance at the door. So when Allah's Messenger (may peace be upon him) came near, she said: Messenger of Allah, did you eat Maghafir? He said: No. She (again) said: Then what is this odour? He said: Hafsa gave me honey to drink. She said: The honey-bee might have sucked 'Urfut. When he came to me I told him like this. He then visited Safiyya and she also said to him like this. When he (again) visited Hafsa, she said: Messenger of Allah, should I not give you that (drink)? He said: I do not need that. Sauda said: Hallowed be Allah, by Him we have (contrived) to make that (honey) unlawful for him. I said to her: Keep quiet. This hadith has been narrated on the authority of 'Urwa with the same chain of transmitters.
Chapter 4: MERE GIVING OF OPTION OF DIVORCE TO WOMEN DOES NOT MAKE THE DIVORCE EFFECTIVE, BUT WHEN IT IS REALLY INTENDED
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