'' Our Lord ! grant us good in this world and good in the hereafter and save us from the torment of the Fire '' [Ameen]
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{in Arab} :->
Rabbanaa aatinaa fid-dunyaa hasanatan wafil aakhirati hasanatan waqinaa 'athaaban-naar/-
(Surah Al-Baqarah ,verse 201)
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Doubt as to whether divorce is effectuated: If a man has doubt as to whether or not the divorce is effectuated, his doubt is ]regarded as[ inconsiderable, for certainty could not be removed by doubt according to the consensus of Islamic jurists. The woman has to rest assured of that.
The woman being authorized to divorce herself: The man has the right to authorize his wife to divorce herself. Among the words that denote this authorization we may mention, "Choose for yourself", "Your affairs are in your hand", or "Divorce yourself if you wish". If the woman chooses to divorce herself in this context, her divorce becomes irrevocable according to the soundest opinion. However, if she chooses to remain his wife, it would not be regarded as divorce. ‘Aa‘ishah, may Allaah be pleased with her, said, "The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, gave us the freedom of choice )to leave him or remain with him as his wives(, and we chose )to remain with( him. He did not regard it as a divorce." ]Narrated by Al-Jamaa’ah[ It is also possible for the man to authorize anyone else to divorce )his wife on his behalf(.
Taking witnesses to divorce
Divorce becomes effective without taking witnesses to it according to the opinion of the majority of Islamic jurists. That is because it is the husband's right, which Allaah The Almighty has put in his hand, and not in the hand of anyone else. In confirmation of that, Allaah The Almighty Says )what means(:}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.{]Quran 2:231[ According to Ibn Al-Qayyim, may Allaah have mercy upon him, "Divorce then is the right of he who marries, for it is he alone who has the right to retain, which is revocation."
However, it is narrated on the authority of some Companions, may Allaah be pleased with them, Taabi‘is )Followers(, may Allaah have mercy upon him and the chiefs of the Prophet's family that taking witnesses to divorce is obligatory, confirming their argument with the Aayah in which Allaah The Almighty Says )what means(:}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.{]Quran 65:2[ It is narrated on the authority of ‘Imraan ibn Husayn, may Allaah be pleased with him, that he was asked about a man who divorced his wife, and then had sexual intercourse with her, and he took no witnesses to divorcing her nor to taking her back, thereupon, ‘Imraan said, “You have divorced )your wife( without following the Sunnah )Prophetic tradition(, and have taken her back without following the Sunnah: take witnesses to your divorcing her, as well as to your taking her back, and do not return to do so once again.” ]Abu Daawood[
The apparent meaning of these texts implies the obligation to take witnesses to divorce and taking back )one's wife(; and this is, indeed, preferable, particularly nowadays, when certainty has become weak, memory has been impaired, and the people have become hasty in effectuating divorce. Taking witnesses )to divorce( then is more cautious for man's religion and more supportive in adhering to what is right and preserving rights )for their people(.
Question of the restoration of a divorced wife
If a woman is separated from her husband by minor irrevocable divorce and then gets married to another man and is then divorced and returns to her former husband after fulfilling the term of her ‘Iddah, a new contract is necessary. It is the preponderant opinion that after the new contract, the husband has the right to three divorces on his wife, return to him, since the other husband cancels out any divorce of the previous husband, whether they are three or less.
Muhallil and Muhallal
If a man divorces his wife for the third time, she is separated from him by major irrevocable divorce, and becomes unlawful for him )to remarry( until she marries another man with a valid marriage under the Sharee‘ah and he consummates the marriage with her. Of course, if he likes to live with her, he could live with her, and if he dislikes to live with her, he could divorce her; and in this case, she becomes lawful for the first husband to remarry. Allaah The Almighty Says about the husband who divorces his wife thrice )what means(:}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 Allaah .{]Quran 2:230[
The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, was asked about a man who divorced his wife )thrice(, and then another man married her and consummated the marriage with her, and divorced her before he had sexual intercourse with her: would she be lawful for the former husband )to remarry(?" He, sallallaahu ‘alayhi wa sallam, said:"No, until the other )i.e. the second husband( takes pleasure in her, and she takes pleasure in him )i.e. have sexual intercourse(."]An-Nasaa‘i[
But, if the man who divorces his wife thrice hires another man to marry his wife with a formal contract but without seeing her, and then to divorce her immediately in return for a certain sum of money, this would not make the woman lawful to her )first( husband, and his life with her in this state is unlawful. Allaah The Almighty cursed the Muhallil, i.e., the man hired )to make the irrevocably divorced woman lawful for her first husband to remarry by his marriage to her( and the Muhallal lahu, i.e. the irrevocably divorcing man )who hires him in order to make his irrevocably divorced woman lawful for him to remarry(. The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, said:“Shall I not inform you of the male-goat that is borrowed )from among men(?”They said, “Yes, O Messenger of Allaah.” He said:“It is the Muhallil: May Allaah curse the Muhallil and the Muhallal lahu.”]Ibn Maajah[
Revocation
The man who divorces his wife has the right to take her back so long as she is still in the term of her ‘Iddah, if he divorces her for the first or the second time. In confirmation of that, Allaah The Almighty Says )what means(:}And their husbands have more right to take them back in this ]period[ if they want reconciliation.{]Quran 2:228[ The way he takes her back is debatable among religious jurists. Some say that if he has sexual intercourse with her, he then has taken her back, provided that he has the intention of taking her back. Others say that if he touches her with sexual desire, he has taken her back. In order for one to take back his wife, the intention to do so is sufficient about which he should tell his wife, whose consent is not requisite, for taking her back )one's wife( as it is the right of the husband.
Doubt as to whether divorce is effectuated: If a man has doubt as to whether or not the divorce is effectuated, his doubt is ]regarded as[ inconsiderable, for certainty could not be removed by doubt according to the consensus of Islamic jurists. The woman has to rest assured of that.
The woman being authorized to divorce herself: The man has the right to authorize his wife to divorce herself. Among the words that denote this authorization we may mention, "Choose for yourself", "Your affairs are in your hand", or "Divorce yourself if you wish". If the woman chooses to divorce herself in this context, her divorce becomes irrevocable according to the soundest opinion. However, if she chooses to remain his wife, it would not be regarded as divorce. ‘Aa‘ishah, may Allaah be pleased with her, said, "The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, gave us the freedom of choice )to leave him or remain with him as his wives(, and we chose )to remain with( him. He did not regard it as a divorce." ]Narrated by Al-Jamaa’ah[ It is also possible for the man to authorize anyone else to divorce )his wife on his behalf(.
Taking witnesses to divorce
Divorce becomes effective without taking witnesses to it according to the opinion of the majority of Islamic jurists. That is because it is the husband's right, which Allaah The Almighty has put in his hand, and not in the hand of anyone else. In confirmation of that, Allaah The Almighty Says )what means(:}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.{]Quran 2:231[ According to Ibn Al-Qayyim, may Allaah have mercy upon him, "Divorce then is the right of he who marries, for it is he alone who has the right to retain, which is revocation."
However, it is narrated on the authority of some Companions, may Allaah be pleased with them, Taabi‘is )Followers(, may Allaah have mercy upon him and the chiefs of the Prophet's family that taking witnesses to divorce is obligatory, confirming their argument with the Aayah in which Allaah The Almighty Says )what means(:}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.{]Quran 65:2[ It is narrated on the authority of ‘Imraan ibn Husayn, may Allaah be pleased with him, that he was asked about a man who divorced his wife, and then had sexual intercourse with her, and he took no witnesses to divorcing her nor to taking her back, thereupon, ‘Imraan said, “You have divorced )your wife( without following the Sunnah )Prophetic tradition(, and have taken her back without following the Sunnah: take witnesses to your divorcing her, as well as to your taking her back, and do not return to do so once again.” ]Abu Daawood[
The apparent meaning of these texts implies the obligation to take witnesses to divorce and taking back )one's wife(; and this is, indeed, preferable, particularly nowadays, when certainty has become weak, memory has been impaired, and the people have become hasty in effectuating divorce. Taking witnesses )to divorce( then is more cautious for man's religion and more supportive in adhering to what is right and preserving rights )for their people(.
Question of the restoration of a divorced wife
If a woman is separated from her husband by minor irrevocable divorce and then gets married to another man and is then divorced and returns to her former husband after fulfilling the term of her ‘Iddah, a new contract is necessary. It is the preponderant opinion that after the new contract, the husband has the right to three divorces on his wife, return to him, since the other husband cancels out any divorce of the previous husband, whether they are three or less.
Muhallil and Muhallal
If a man divorces his wife for the third time, she is separated from him by major irrevocable divorce, and becomes unlawful for him )to remarry( until she marries another man with a valid marriage under the Sharee‘ah and he consummates the marriage with her. Of course, if he likes to live with her, he could live with her, and if he dislikes to live with her, he could divorce her; and in this case, she becomes lawful for the first husband to remarry. Allaah The Almighty Says about the husband who divorces his wife thrice )what means(:}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 Allaah .{]Quran 2:230[
The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, was asked about a man who divorced his wife )thrice(, and then another man married her and consummated the marriage with her, and divorced her before he had sexual intercourse with her: would she be lawful for the former husband )to remarry(?" He, sallallaahu ‘alayhi wa sallam, said:"No, until the other )i.e. the second husband( takes pleasure in her, and she takes pleasure in him )i.e. have sexual intercourse(."]An-Nasaa‘i[
But, if the man who divorces his wife thrice hires another man to marry his wife with a formal contract but without seeing her, and then to divorce her immediately in return for a certain sum of money, this would not make the woman lawful to her )first( husband, and his life with her in this state is unlawful. Allaah The Almighty cursed the Muhallil, i.e., the man hired )to make the irrevocably divorced woman lawful for her first husband to remarry by his marriage to her( and the Muhallal lahu, i.e. the irrevocably divorcing man )who hires him in order to make his irrevocably divorced woman lawful for him to remarry(. The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, said:“Shall I not inform you of the male-goat that is borrowed )from among men(?”They said, “Yes, O Messenger of Allaah.” He said:“It is the Muhallil: May Allaah curse the Muhallil and the Muhallal lahu.”]Ibn Maajah[
Revocation
The man who divorces his wife has the right to take her back so long as she is still in the term of her ‘Iddah, if he divorces her for the first or the second time. In confirmation of that, Allaah The Almighty Says )what means(:}And their husbands have more right to take them back in this ]period[ if they want reconciliation.{]Quran 2:228[ The way he takes her back is debatable among religious jurists. Some say that if he has sexual intercourse with her, he then has taken her back, provided that he has the intention of taking her back. Others say that if he touches her with sexual desire, he has taken her back. In order for one to take back his wife, the intention to do so is sufficient about which he should tell his wife, whose consent is not requisite, for taking her back )one's wife( as it is the right of the husband.
Published By, NajimudeeN M- INDIA
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