Mu' meneen Brothers and Sisters,

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One of our brothers/sisters has asked this question:

Asalam-o-alaikum,

1. Question about Divorce

One day I said to my wife that "I cannot live with you". Before saying these wording I was of the view that instead of living life together in trouble it is better not to live together. I must add here that while saying these wording I did not mean that I am divorcing my wife at that very time. On one hand these words were based on my mental stretched condition but on the other hand these words were based on proper thinking and decision of not living together.

Further, the situation of my mind while saying these words was like that if my wife argued about it then I must explain or soften my view point. However, my wife did not argue about these wordings and took these words as my final decision of not living together. Just after the incident, my wife handed over my 19 months old baby to me as my wife was of the opinion of not keeping the baby with her after separation. Thereafter, I came back to my home with my baby. All along the way-back to my home I was thinking that I have ended up my relation.

I want to know if my wordings constitute a divorce. However, at the time of conveying my wordings I did not mean to divorce my wife at that very time. Also explain if these words constitute a divorce then what type of divorce should have taken place whether Raji or Bain? Your detailed answer with proper reference will be highly appreciated. Jaza-ka-Allah

2. Need explanations about Talaq-e-Bain

Further to my above question 1; I want to know why it is said that Talaq-e-bain occurs when a husband speaks to his wife not in clear words of Talaq, either with intention of Talaq or without such intention. Why this results in breaking of Nikah suddenly with no reconciliation and to resume marital relations why it needs new Nikah, whereas, clear statement of divorce gives the chance of reconciliation within Iddah Period without new Nikah?

I want to know what is the origin of Talaq-e-bain and on what facts and references it is based on. What I know Quran (2:228) provides the rights to the husband to make Rajuh after talaq then wherefrom this Talaq-e-bain originates thereby not giving rights to the husband to resume marital relations without new Nikah.

To me depriving the husband from resuming marital relations within Iddah period looks against the guidance in the Holly Quran(2:228). Explain with reference to Quran and authentic Sunnah not with regards to any specific school of thought. It is also requested to put the name of the Scholar/Mufti and about his school of thought.

Wa-Alaikum-u-Salam and Jaza ka Allah

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Answer:

Talaq divorce bain and raji

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is none worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

Your Question: ….I want to know if my wordings constitute a divorce. However, at the time of conveying my wordings I did not mean to divorce my wife at that very time.

In light of Shariah Law, there are two major types of divorce declarations:

1. Talaq-Sirri (absolutely clear declaration of divorce)
2. Talaq-Kinaya (unclear declaration of divorce)

Ref: Talaq-Sirri

If the husband were to declare to his wife words to the effect ‘I divorce you’ or ‘You are ‘haraam’ to me’, etc….regardless of what conditions or intentions prompted the husband to declare such a phrase, a divorce will be established in the marriage.

Ref: Talaq-Kinaya

But if the husband were to declare to his wife words to the effect: ‘I cannot live with you’, then one would have to investigate the exact intentions of the husband when he declared such a statement. If the intention of the husband was to divorce his wife, then indeed a divorce will be established.

But if the intention of the husband was not to divorce his wife, then no divorce will be established.

Your Question: …Also explain if these words constitute a divorce then what type of divorce should have taken place whether Raji or Bain? Your detailed answer with proper reference will be highly appreciated. Jaza-ka-Allah

We reiterate again that because you did not intend to divorce your wife when you declared ‘I cannot live with you’, rest absolutely assured that no divorce has been established in your marriage.

A divorce in Shariah Law is of two types:

a. Talaq-Raji (one which is revocable)

b. Talaq-Baayin (one which is irrevocable)

Ref: Talaq-Raji:

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verse 229 (part):

229 A divorce (revocable) is only permissible twice: after that the parties should either hold together on equitable terms or separate with kindness.

Shariah Law has allowed the husband to pronounce three divorces in any one marriage; the first two of which are revocable (Raji), but if Allah forbid the husband were to declare divorce for a third time, it would constitute an absolutely irrevocable divorce.

Ref: Talaq-Baayin:

Talaq-Baayin or the irrevocable divorce can be further categorized into three types:

1. Small: like a ‘khula’ when the wife initiates the divorce in a Shariah Court of Law and the Judge grants the wife the divorce she seeks. In a ‘khula’ divorce, the husband has no right to revoke the divorce; although the couple are at liberty to re-marry each other again with a brand new Nikaah and a new ‘Mehr’ determination.
2. Large: If the husband declares divorce unto his wife for the third time in one marriage, it will constitute an irrevocable divorce and the same couple can never ever remarry each other again unless the wife happens to marry another husband, and her new husband, of his own free will, happens to divorce her or he dies.
3. Largest: When the husband and the wife take the oaths of ‘Lian’ as prescribed by the Quran. When this happens, it is absolutely prohibited for the same couple to ever remarry each other again.

Your Question: ….Also explain if these words constitute a divorce then what type of divorce should have taken place whether Raji or Bain?

We reiterate again that since your declaration was not a clear statement of divorce and you yourself have borne witness that at the time of your declaration of these terms you did not intend to give a divorce, then rest absolutely assured brother, no divorce has been established in your marriage.

Allah forbid brother, even if you had declared a ‘Sirri’ divorce and pronounced clear terms to the effect of ‘I divorce you’ unto your wife…..and it was your first (or your second) declaration of divorce in the marriage, it would constitute a ‘talaq-Raji’ or revocable divorce.

Your Question: …Need explanations about Talaq-e-Bain Further to my above question 1; I want to know why it is said that Talaq-e-bain occurs when a husband speaks to his wife not in clear words of Talaq, either with intention of Talaq or without such intention. Why this results in breaking of Nikah suddenly with no reconciliation and to resume marital relations why it needs new Nikah, whereas, clear statement of divorce gives the chance of reconciliation within Iddah Period without new Nikah?

Lets say a wife approaches a Shariah Court and initiates a ‘khula’ divorce against her husband and the Shariah Court Judge grants her the divorce she seeks. The husband in this situation is not allowed to revoke the divorce on his own, and perchance if this is only the first or second divorce established in the marriage, there is allowance in Shariah Law for the same couple to remarry each other again, but a brand new Nikaah and a brand new ‘Mehr’ must be determined for them to remarry again.

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verses 229-230:

229 A (revocable) 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 give 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).

230 So if a husband divorces his wife (irrevocably for the third time) he cannot after that remarry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they reunite provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah which He makes plain to those who understand.

Alternatively, if divorce is established in a marriage for the third time, it will be considered a ‘Talaq-Baayin’ (Irrevocable Divorce) in Shariah Law. The same couple can never remarry again unless the wife happens to marry a new husband, and her new husband, without any coercion or planning, happens to divorce her or he dies.

It is only in ‘Talaq-Raji’ (revocable divorce) ie. either after the first or the second declaration of divorce where the husband has the right to revoke his divorce declaration before the expiration of the ‘iddah’ or waiting period of the wife and live with his wife without performing a new Nikaah.

In ‘Talaq-Baayin’ this option of revoking the divorce is not available to the husband.

Your Question: ….To me depriving the husband from resuming marital relations within Iddah period looks against the guidance in the Holly Quran(2:228).

Allah Says in the Holy Quran Chapter 2 Surah Baqarah Verse 228:

228 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.

If one reads the very next Verse 229 of Surah Baqarah which declares: ‘A (revocable) divorce is only permissible twice’ one would realize that Allah Subhanah has allowed the husband a maximum of two revocable divorce rights in the marriage.

Only and only if a divorce is established either for the first or the second time in the marriage by the husband, the husband has a right to revoke his divorce declaration and take his wife back before the expiration of the ‘idda’ or waiting period and resume normal marital relations with her.

But if Allah forbid the husband were to declare a ‘third’ divorce in the marriage, it will constitute a ‘Talaq-Baayin’ or irrevocable divorce and the husband neither has the right to revoke his third declaration of divorce, nor remarry the same woman again unless the woman marries another man and her new husband divorces her or dies.

If Shariah Law had given the husband the right to declare and revoke his declaration of divorce as many times as he willed and pleased, it would have made a mockery of marriage and divorce as seen happening in the un-Godly societies today.

Whenever a small misunderstanding or argument happened, the husband could abuse the right and declare a divorce unto his wife knowing fully well that he can revoke his divorce declaration as many times as he wills and pleases!

To stop this abuse, in His Perfect Wisdom and Knowledge, the Lord Most Exalted gave only two revocable divorce rights to the man in one marriage….so that before one utters a declaration of divorce, one thinks about it a million times before utilizing his right to divorce!

Verse 228 and 229 of the Glorious Quran does not deprive the husband from resuming marital relations with his wife, but rather protects the wife and the sacred institution of marriage from abuse at the hands of the husband.

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only Source of Strength.

Your brother and well wisher in Islam,

Burhan