Revocable divorce

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:

In continuation to my previous Question No. 10336

Asalam-o-Alaikum Wa Rahmatullah,

Thanks and Jaza ka Allah for your very comprehensive and illustrative answer (in response to my question 10336). I still feel thirst to know deeper about the Talaq-Kinaya, which you might have overlooked in your previous answer.

My question was why Talaq-Kinaya (divorce in unclear words) is taken by many Muftis/Ulmahs as one type of Talaq-e-Bain, thereby depriving the husband to revoke the divorce within “Iddah Period” and the Muftis/Ulmahs instead stipulate the condition and make it necessary to have new Nikah to get back the wife. Allow me to argue that it looks against the teachings of Quran (2: 228) which provides the rights to the husband to revoke the Talaq within “Iddah Period” without new Nikah provided the divorce is first or second time.

I agree with you that in case of Khula, husband must be deprived of revoking such type of divorce as it is initiated/ demanded by the will of one’s wife. So it is quite logical that how husband can revoke such divorce by his will only without new Nikah. Whereas the case of Talaq-Kinaya is different as it is divorce given by the husband and therefore according to Quran (2:228) husband cannot be deprived of revoking the divorce (either a clear divorce or Talaq-Kinaya) provided it is first or second time divorce.

I have come across many Muftis/Ulmahs who declare Talaq-Kinaya (divorce in unclear words) as Talaq-e-Bain and stipulate the condition of new Nikah to get back one’s wife. I want to know why they declare this type of Talaq as Talaq-e-Bain and impose/stipulate the condition of new Nikah. I need your explained answer in the light and with proper referencing of Quran and authentic Ahadiths that wherefrom this type of Talaq-e-Bain started and who was the first person who categorized this type of Talaq as Talaq-e-Bain and had stipulated the condition of new Nikah to get back the wife.

Wa alaikum u Salam and Jaza Ka Allah

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Answer:

Revocable 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 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.

Shariah Law dictates that if a husband has pronounced a divorce, regardless of whether it is clear or in ‘kinaya’ with the intention to divorce, and this declaration of divorce is either the first or the second one in the marriage…..the husband is well within his rights to revoke the divorce before the expiration of the waiting period of ‘iddah’.

If the husband happens to revoke the divorce before the expiration of the ‘iddah’ period, there is absolutely no need to perform a new Nikaah or determine a new ‘Mehr’ for the couple to live together again.

If the husband does not revoke his divorce before the expiration of the ‘iddah’ period, at the end of the ‘iddah’ period the divorce is legally established and the woman is free to choose to marry anyone she wills.

If after the expiration of the ‘iddah’ period, the husband wishes to reunite with his ex-wife, he must propose to her, and if she accepts his proposal to remarry, a brand new Nikaah and a brand new ‘Mehr’ must be determined before the couple can live as a husband and wife again.

The above allowance of revoking the divorce is valid absolutely regardless of whether the husband declared the divorce in clear terms or in ambiguous terms with the intention to divorce.

Your Question: ….My question was why Talaq-Kinaya (divorce in unclear words) is taken by many Muftis/Ulmahs as one type of Talaq-e-Bain, thereby depriving the husband to revoke the divorce within “Iddah Period” and the Muftis/Ulmahs instead stipulate the condition and make it necessary to have new Nikah to get back the wife. Allow me to argue that it looks against the teachings of Quran (2: 228) which provides the rights to the husband to revoke the Talaq within “Iddah Period” without new Nikah provided the divorce is first or second time.

If any scholar declares that a husband is not allowed to revoke his declaration of (1^st or 2^nd) divorce before the expiration of the ‘iddah’, or says that a husband can only get back his wife by performing a brand new ‘Nikaah’…..you are absolutely right brother, this would be against the Guidance of the Glorious Quran and thus the ‘fatwa’ or ‘ruling’ of the scholar should neither be accepted or followed!

A husband is well within his rights in Shariah Law to revoke his (1^st or 2^nd) divorce declaration before the expiration of the ‘iddah’ period, absolutely regardless of whether his divorce declaration was in clear terms, or in ambiguous terms with intention to divorce.

The new ‘Nikaah’ and ‘Mehr’ only become necessary if the husband has not revoked his (1^st or 2^nd) divorce within the ‘iddah’ period, and only after the expiration of the ‘iddah’ period wishes to re-marry his ex-wife.

Your Question: ….I have come across many Muftis/Ulmahs who declare Talaq-Kinaya (divorce in unclear words) as Talaq-e-Bain and stipulate the condition of new Nikah to get back one’s wife.

Allah is our witness brother, to date I have not witnessed such a decision or a ruling from any good or recognized scholar of the deen!

Respected brother, our duty as muslims is to follow the Guidance of the Quran and the Sunnah. If you find a ruling which is clearly against the guidance of the Quran and the Sunnah, regardless of who or how great the Mufti or the Scholar is, the ruling of such a scholar will neither be accepted nor followed.

If one trusts, obeys, and follows the guidance and commands of Allah and His Messenger (saws), one can be assured of never ever being misled; but if one believes, obeys and follows any other guidance, other than that of Allah and His Messenger (saws), one can be assured of being led astray.

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