Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

I have a question and need a detailed answer by each Fiqah:

A marriage was performed between a man and a woman in December 1994.  The husband did not disclose that he already had a first wife.  Anyhow, it was discovered later and the 2nd wife accepted the first wife as her fate.  Both lived separately.  At that time and still now, he has two sons from his first marriage.  Most of the time there were heated arguments between them due to injustice to 2nd wife.

Sometime in 1999 he pronounced TALAQ to his 2nd wife, in a fit of anger over a dispute while she was pregnant with his 3rd child.  Within a week, they again met and someone advised them to remarry and they entered into another Agreement, AGHD and 2nd time a (Nikah) was performed.

About 4 years later (sometime in 2003) he again pronounced TALAQ to his 2nd wife, again over a dispute and in a fit of anger (this time again while she was pregnent with his 5th child).  Then again they met within a week and they remarried again and entered into another Agreement, AGHD and 3rd time a Nikah was performed.

They love each other but at the same time they lose temper on small issues.  Now they have 5 children and once again as usual there was a fight and again he pronounced TALAQ a week ago to his 2nd wife.

What will be the consequence of this TALAQ, will it be treated as THIRD or FIRST as after each TALAQ they entered into a new agreement AGHD and performed NIKAH.

Please give a detailed reply by each Fiqah.

(There may be some grammatical and spelling errors in the above statement. The forum does not change anything from questions, comments and statements received from our readers for circulation in confidentiality.)

Answer:

Man declares divorce

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.

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

229 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 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 are wrong-doers.

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.

Shariah Law dictates that any one marriage in Islam can contain an absolute maximum of three divorces, the first two of which are revocable; but if one were to divorce one’s wife for a third time, that divorce will be absolutely irrevocable.

The correct way to pronounce divorce in Islam, as taught in the Holy Quran, is that the husband, making sure that his wife is not experiencing her menstruation, pronounces one-divorce to his wife, and they ‘stay-away’ from conjugating with each other for a time period of three menstruations of the wife. If before the three menses periods are over, the husband decides to revoke the divorce and take his wife back, he is well within his rights to do so and there is absolutely no need to perform a new ‘nikaah’ between them; and although one of the three divorces will be deemed established in the marriage, the couple may continue to live together as a married couple.

But if after the declaration of a revocable (1^st and 2^nd) divorce, the three menses period duration passes, and the couple do not come together, then the husband and wife will be considered legally divorced and the woman may marry any man of her choice thereafter. If they wish to re-marry each other after this period, a brand new ‘nikaah’ needs to be performed for them to be husband and wife again. The divorce and re-marriage can only be done twice; and the third time the husband pronounces the divorce, then it will be considered an absolutely final and irrevocable divorce and the couple cannot remarry each other again; unless the woman marries someone else and that new husband divorces her, or dies.

Your Question: What will be the consequence of this TALAQ, will it be treated as THIRD or FIRST as after each TALAQ they entered into a new agreement AGHD and performed NIKAH.

As per your statements, the first divorce was pronounced sometime in 1999, and within a week of the pronouncement, the husband exercised his right to revoke the divorce. Because the husband revoked the divorce before the expiration of the ‘iddah’ period, there was absolutely no need to perform a new ‘nikaah’ or ‘aqd’ between the couple. Anyways, one divorce right in the marriage was utilized.

Then four years later, in 2003, the husband pronounced a divorce for a second time, and within a week revoked the divorce. Because the husband revoked the divorce before the expiration of the ‘iddah’ period, there was absolutely no need to perform a new ‘nikaah’ or ‘aqd’ between the couple. Now both the revocable divorce right in the marriage were utilized.

If the husband (Allah forbid) were to pronounce divorce now for a third time, that divorce will be absolutely final and irrevocable, and the same couple can never legally remarry each other again, unless the woman happens to marry another person and her new husband happens to divorce her, or dies.

Your Question: What will be the consequence of this TALAQ, will it be treated as THIRD or FIRST as after each TALAQ they entered into a new agreement AGHD and performed NIKAH.

The first two divorces in any marriage are revocable in Shariah, and if the husband revokes the divorce before the expiration of the ‘iddah’ period, there is absolutely no need to perform a new ‘nikaah’ or ‘aqd’ between the couple for them to legally remain married in the Sight of Shariah Law.

The ‘nikaah’ or ‘aqd’ the couples performed again after the first two declarations of divorce are absolutely irrelevant; and just because a new ‘aqd’ was performed, does not mean that the divorce count starts again from one!

Because the husband has declared divorce for a third time in the marriage, this declaration of divorce will be considered absolutely final and irrevocable in the Sight of Shariah Law and of Allah Subhanah….and this same couple can never remarry each other again, unless the woman happens to marry another person and her new husband happens to divorce her, or dies.

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