Like every other thing, divorce has a proper procedure as well. There is a contradiction among scholars about the procedure of divorce. According to one school of thought, three divorces given in one sitting is considered as one divorce after which reconciliation is permitted and the other view is that when a person says talaq three times to his wife then it is considered as three divorces and there is no way of reconciliation.
Forms of Divorce in Islam
There are three types of divorces in Islam.
- Talaq e tafwid ( delegated talaq)
Talaq e Tafwid
This is a right which is given to wife in the contract of marriage. In Islamic marriage contract, there is a section where husband can delegate the right of divorce to his wife as well. If this right is given to a wife then wife can divorce herself similarly by saying words of talaq in presence of her husband and then they no longer will remain husband and wife.
Khula is the type of divorce which is demanded by the wife through court if she is not delegated with the right of divorce. If a wife is not happy with her husband she can demand divorce through Islamic court which after a proper trial grants divorce to the wife. Procedure of khula will be discussed in another topic.
Thawban narrated that : The Messenger of Allah said: Whichever woman seeks a Khul from her husband without harm (cause), then the scent of Paradise will be unlawful for her. Tirmazi, book of talaq, hadith 1187.
There is a contradiction for procedure of divorce among scholars. Divorce has three types as well according to the schools of thoughts.
- Talaq e Bidaah
- Talaq e Hassan
- Talaq e Ehsan
History of divorce
Talaq e Hasan and talaq e Ehsan are proven from the Quran and Hadith. In Quran, Surah al bakarah verses 227 to 232 and verses 236, 237 then surah Ahzaab verse 28,29,49 and Surah talaq verses 1 to 7 throw light on this topic. There are also a lot of ahadith on the topic of Talaq e Hasan and talaq e Ehsan in the book of talaq of different Hadith books.
The Talaq e Bidaah is the one which was started at the time of Hazrat Umer R.A. Prophet Muhammad (p.b.u.h) was very lenient in this matter as he used to ask the person about his intention of one divorce or three divorces if one pronounced three divorces simultaneously. And the point, on which the person agreed, was agreed by the Prophet(p.b.u.h) . But at the time of Hazrat Umer R.A, he strongly condemned the idea of three talaqs pronounced simultaneously and then ordered that three divorces pronounced simultaneously will be considered as three divorces whether person was intended for one divorce instead of three.
Ibn ‘Abbas (Allah be pleased with them) reported that the (pronouncement) of three divorces during the lifetime of Allah’s Messenger ( صلی اللہ علیہ وسلم ) 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. Sahih muslim book of talaq hadith no 3673
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 ( صلی اللہ علیہ وسلم ) 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). Sahih muslim book of talaq hadith 3675
Talaq e Bidaah
This is a type of divorce which is very common amongst Muslims. It is called talaq e bidaah because it is the sunnah of Hazrat Umer R.A instead of sunnah of Prophet Muhammad (P.B.U.H) and it is not even prescribed in the verses of Quran. In this type, if a man divorces his wife spontaneously with three divorces( talaq e mughaliza) then divorce is irrevocable and there can be no reconciliation between the parties.
In this type of talaq a wife observe iddah after the divorce has been given. After the iddah period, the wife is free to marry anyone other than the previous husband.
If couple wants to reunite
If the divorced couple wants to reunite then there can be no alternative for them until the woman marries another man who after consummating the marriage divorces the wife with his free will. Then after divorce the woman can marry her first husband. But it is necessary not to do the marriage with another man with an intention to get a divorce or the Nikkah will not consider valid.
Talaq e Hassan
In this type of talaq, a person gives one divorce ( talaq e raji) to his wife and then waited for one menstruation cycle then again divorces his wife and waited for another menstruation cycle and after that gives the final divorce to his wife. After third divorce the talaq is finalized between the parties and wife is free to marry someone else after observing iddah.
If no reunification after 1st or 2nd divorce
If after first divorce, parties don’t want to reunite then divorce e raji is implemented and after period of iddat wife is free to marry someone else or remarry the same husband if they want.
If parties want to remarry after third divorce
If parties want to remarry after third divorce then they cannot marry until the wife marries another person without the intention of talaq. Nikkah should be consummated and the new husband divorces the wife with his free will.after divorce the parties can remarry.
Talaq e Ehsan
This is the most authentic type of divorce which is proved by the Quran (surah al bakarah verses 227 to 232). In this type of divorce, a man gives one divorce ( talaq e raji) to his wife then the iddah of three months for wife starts. If the husband reconcile during the three months, then the divorce becomes invalid.
If after sometimes husband gives one divorce to wife again then it is counted as second divorce. The iddat of wife starts and if husband reconcile then divorce also becomes invalid.
If husband again gives divorce to wife then it is considered as talaq e mughaliza which is irrevocable and wife after the period of iddat is free to marry any person of her choice besides her previous husband.
Remarrying after 1st or 2nd divorce
If the husband after 1st or 2nd divorce does not reunites with the wife then after completing iddat period, wife can remarry(with the normal procedure of Nikkah) the same husband without any other obligation.
And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not. Surah al Bakarah verse 232.
Remarrying after 3rd divorce
If the parties want to remarry after the three divorces then they cannot do it without intervention of any other marriage which should be consummated. The intention of divorce should not be present at the time of marriage.
And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah . These are the limits of Allah , which He makes clear to a people who know. Surah al bakarah verse 230.
When a person gives divorce to his wife then he should make two witnesses for it.
And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah . That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah – He will make for him a way out. Surah al talaq verse 2.
Proof of Divorce from Quran
Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise. Surah al Bakarah verse 228.
And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things. Surah al Bakarah verse 231
Proof of Divorce from Hadith
Ibn ‘Umar (Allah be pleased with them) reported that he divorced his wife while she was menstruating during the lifetime of Allah’s Messenger ( صلی اللہ علیہ وسلم ). ‘Umar b. Khattib (Allah be pleased with him) asked Allah’s Messenger ( صلی اللہ علیہ وسلم ) about it, whereupon Allah’s Messenger ( صلی اللہ علیہ وسلم ) 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. Sahih muslim book of talaq Hadith 3652
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