Islam allows for only one sort of physical relationship between men and women,
and that is in the form of marriage which is announced and publicly known. It
is but inevitable that differences will arise between the spouses. According to
Islam, the way out is not by seeking to wipe out these differences but to
accept them, or seek to reconcile them or for the spouses to continue to live
together despite them. Yet, it sometimes happens that the spouses are unable to
properly manage their differences and so decide to go in for a divorce. Divorce
has been accepted in Islam as something that can be resorted to in extreme
circumstances. At the same time, Islam frowns upon divorce. The Prophet
Muhammad is reported to have said that although divorce is permissible, God
does not like it.
Very often divorce is resorted to in anger, and this is why Islam has devised a
method to control it. The Quran says that a man can give two revocable
utterances of divorce, after which he can retain his wife and stay together on
equitable terms or else leave her in kindness. (Surah Al-Baqarah: 229). This is
the prescribed method of divorce as laid down in the Quran. Accordingly, a man
who intends to divorce his wife should issue the first utterance of divorce in
the first month at a time when his wife is not undergoing her monthly menstrual
cycle, and the second utterance in the next month when she is in a similar
state. After this, the husband can revoke his divorce pronouncement if he
wants. But in the third month if he issues the third utterance of divorce it is
irrevocable and the two can no longer be considered husband and wife.
This method of divorce over a period of three months was devised so that if the
husband, in a fit of anger, wants to divorce his wife, but later, when his
temper cools down, changes his mind and wants to carry on with the marriage he
can do so. If he still wishes to divorce his wife, then he has to wait till the
third month in order for it to take place. This pragmatic method of divorce was
followed in the early period of Islam. But towards the end of the period of the
first Caliph, Hazrat Abu Bakr, some men, out of anger, began issuing three
utterances of divorce in one sitting. At this time, this practice was an
exception, but by the time of the latter half of the period of the Caliphate of
Hazrat Umar, the second Caliph, it had become increasingly common.
In the face of this, and in his capacity as Caliph, Hazrat Umar decided to take
action against this misuse of the law. Hence, in the case of some men he
accepted their issuing three utterances of divorce in one sitting as
constituting an irrevocable divorce. But along with this he also arranged for
these men to be physically punished by being whipped on their backs.
This practice of Hazrat Umar was not based on any divine revelation. Rather, it
was his own executive order, the intention behind which was to lessen, through
stern punishment, such a form of divorce. And this is precisely what happened
as a result.
However, this method of divorce remains fairly widespread today, especially in
the Indian subcontinent. Men arbitrarily utter the word ‘talaq’ three times in
one breath, often in anger. This is a misuse of shariah laws, and is a grave
sin on the part of the husband. This practice has become very common today, and
it urgently demands that the position of the shariah on the matter be clarified.
I believe that there are two possible ways out of this dilemma. One way is to
consider that the utterance of the word ‘talaq’ three times by the husband in a
fit of excess emotion or anger to be equal to just one utterance. If the
husband was not serious about the divorce then he can revoke it soon after, and
if he actually wishes to divorce his wife then he should do it according to the
method prescribed by the Quran, over a period of three months, as explained
above.
Another possible solution of this vexed issue is to accept the method that the
Caliph Umar allowed for by recognizing the utterance of the word ‘talaq’ by the
husband three times in one sitting to constitute an irrevocable divorce. But in
this case, following the method used by the Caliph Umar, the husband should be
sternly punished. It may not be possible under the present legal system to have
the husband whipped, as Hazrat Umar had ordered, but an alternative is
possible. And that is, just as in the well-known Shah Bano case the Indian
ulema pressurized the Government of India to pass a special law for Muslim
divorcees, in this matter, too, they should get the Indian Parliament to agree
to a new law, according to which if a Muslim man utters the word ‘talaq’ in one
sitting the divorce takes place but for this anti-shariah act of the husband he
must be sternly punished. He must be forced to pay a hefty penalty, the entire
sum of which should
be given to his divorced wife. If he is unable to pay this sum, he must be
punished with rigorous imprisonment for an extended period. In this matter
strict deterrent punishment is vital, and no punishment lighter than this can
serve this purpose.
This is a translation of a chapter titled Nikah Aur Talaq (‘Marriage and
Divorce’) in Maulana Wahiduddin Khan’s Urdu book Hikmat-e Islam (Goodword
Books, New Delhi, 2008).
The Delhi-based Maulana Wahiduddin Khan is a noted Islamic scholar. Numerous
articles written by him can be accessed on the web.
