The Quranic Teachings

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Strained Relations and TALAQ or Divorce

FIRST STAGE OF STRAINED RELATIONSHIP: FRIVOLOUS SWEARING OR INDECENCIES (IN AN ANGRY MOOD)

One way in which the relationship between a husband and wife can become strained is that in an angry mood, a man may call his wife by a name, which he may regret later. For instance, in his anger, man may call her his mother, but after this anger subsides, he regrets. Such name calling is called ZIHAR in Arabic. About such frivolous swearing, Allah says:

Allah will not call you to account for your thoughtlessness and frivolous swearing, but for the intention in your hearts; and He is Oft-forgiving, Most Forbearing. [2:225]

Allah has not made for any man two hearts in his (one) body: nor has He made your wives whom you call  by Zihar your mothers [Zihar means to say one’s wife ‘you are to me like the back of my mother, i.e. you are not lawful for me as a wife’. The man who says this estranges himself from his wife]: nor has He made your adopted sons your sons. Such is (only) your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right) Way. [33:4]

If any men among you call their wives their mother by Zihar, they cannot be their mothers:  None can be their mothers except those who gave them birth. And in fact they use words (both) iniquitous and false: but truly Allah is one that blots out (sins), and forgives (again and again).[58:2]

Allah discourages these kinds of frivolous swearing and calling wives mothers so much so that He commands atonement before resuming the conjugal relationship.

But those who call their wives mothers by Zihar, then wish to go back on the words they uttered,- (It is ordained that such a one) should free a slave before they touch each other: Thus are ye admonished to perform: and Allah is well-acquainted with (all) that ye do. And if any has not (the wherewithal), he should fast for two months consecutively before they touch each other.  But if any is unable to do so, he should feed sixty indigent ones, this, that ye may show your faith in Allah and His Messenger. Those are limits (set by) Allah. For those who reject (Him), there is a grievous Penalty.[58:3-4]

SECOND STAGE OF STRAINED RELATIONSHIP: INTENTIONAL SWEARING TO FALL SHORT OF DOING WHAT IS REQUISITE IN RESPECT OF WIVES OR SWEARING TO NOT TO GO INTO WIVES

In such a situation, Quran gives a period of four months to revert. If they do so, then it will not affect their conjugal relationship, although they will have to give something as an atonement which is given in the following verse:

Allah will not call you to account for what is futile in your oaths, but He will call you to account for your deliberate oaths: for expiation, feed ten indigent persons, on a scale of the average for the food of your families; or clothe them; or give a slave his freedom. If that is beyond your means, fast for three days. That is the expiation for the oaths ye have sworn. But keep to your oaths. Thus doth Allah make clear to you His signs, that ye may be grateful. [5:89]

If man does not revert within four months, then this would mean that he wants to end the relationship with divorce. Leaving the wives dangling by neither resuming conjugal relationship nor divorcing them goes against the education of Quran. They should make their decision within four months. If the decision, at the end of the four months, is to divorce then the divorce procedure should start. If there is no decision by the man even at the end of the four months, the woman cannot be left dangling and the court should interfere.

THIRD STAGE OF STRAINED RELATIONSHIP: DECISION TO DIVORCE

And if they have resolved on a divorce, then Allah is surely Hearing, Knowing.[2:227]

1. Talaq means freeing oneself from the contract of Nikah (or the bond of holy matrimony). [The word was used by the Arabs for a she-camel when it became free or loosened from it bond or cord by which her fore shank and her arm had been bound together.]. Marriage is a solemn contract, a strong commitment and a tenacious bond [2/235, 2/237, 4/21]. By virtue of this solemn contract a man and a woman make pledge to accept the rights and obligations laid down by the Quran in respect of their being husband and wife in order to lead a life of companionship. Since this contract was made between two parties, namely a man and a woman, no one of them has the right to revoke it on one’s own, whenever one wants, by just saying, “divorce, divorce, divorce”. The rights of the other person have also to be safeguarded.

2. Quran does not leave the matter of divorce to an individual. The society is ordered to take up this matter which decides on the disputed issue. Now a days, this is either called a government or a court. Quran says in 4:35

If you fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for agreement, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things. [4:35]

If we see the above verse carefully, the addressees are neither the arbiters nor the husband or wife but Islamic Authority or the Court.

If the arbiters succeed to persuade them to come together, then well and good, but if their efforts fail, they will have to report to the court that appointed them. This court will decide whether a divorce should become effective and what the conditions should be. When the prophet [p.b.u.h] was alive, he himself was the judge (of such a court).

The first verse of Sura At-Talaq reads:

O Nabi (p.b.u.h), when you divorce your women then… [65:1]

In 65:1, Nabi has been ordered to make the divorce effective. Nabi never divorced his own wife. This order from Allah is for deciding the divorce cases for believers. In 4:59, the believers have been commanded by Allah to refer their disputes to Allah and Rasool. The verse 4:65 also makes this point clear.

O you who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If you dispute in anything among yourselves, refer it to Allah and His Messenger, if you do believe in Allah and the Last Day: That is best, and most suitable for final determination. [4:59]

But no! by your Lord! they do not believe (in reality) until they make you a judge of that which has become a matter of disagreement among them, and then do not find any resistance in their hearts as to what you have decided and submit with entire submission. [4:65].

Now if we come back again to verse 65:1, the key word used for divorce is “Tallaqtum” which is a plural word. This signifies that the prophet [p.b.u.h] may not be the only one to affect the decisions about divorce. Those who he charged with authority could also make such decisions when and where the prophet [p.b.u.h] would not be present, as is also suggested by 4:59. From this, it is clear that in respect of divorce, it is the Islamic Authority i.e. the Islamic Court that makes the final decision and the husband and wife cannot do so individually. The court should announce its decision when the monthly period of the woman expires, because ‘IDDAT’ will be counted from onwards.

3. When the couple has been divorced in the prescribed way, the woman cannot marry anyone else during the period of IDDAT. But if they reconcile then the ex-husband can marry her again during this period. However, there is no limitation on the man. If he wants could marry another woman the very next day after the divorce. This is the only one respect men have an advantage over women (2:228).

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. [2:228]

4. If the divorced couple does not get re-married during the three month period then after the announcement of the completion of IDDAT in the presence of two just witnesses, the woman is free to marry any other man. This would be called the first divorce. It must also be made clear that the former husband and wife could remarry after the period of “IDDAT”.

5. If following their re-marriage after the first divorce, they cannot sustain their second marriage and get divorced again, then this would be counted as their second divorce. If they desire, they would even be allowed to marry again after the second divorce. However, if they re-marry and divorce again, then this would be their third divorce. After the third divorce, they cannot marry each other again, whether during or after “IDDAT”. This is what the verse 2:229 means.

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 wrong (themselves as well as others).[2:229]

If after the third divorce, the woman is married to another man, and is then either widowed or divorced, then she can thereafter re-marry her former husband [2:230]

So if a husband divorces his wife (three times), He cannot, after that, re-marry 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 re-unite, 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.[2:230]

6. An important point that must be remembered is that following the first divorce, the man should not intend to trap or pester that woman (2:231)

And when you divorce women and they reach their prescribed time, then either retain them in good fellowship or set them free with liberality, and do not retain them for injury, so that you exceed the limits, and whoever does this, he indeed is unjust to his own soul; and do not take Allah's communications for a mockery, and remember the favor of Allah upon you, and that which He has revealed to you of the Book and the Wisdom, admonishing you thereby; and be careful (of your duty to) Allah, and know that Allah is the Knower of all things.[2:231]

7. Another point to remember is that if a woman wants to re-marry her former husband, nobody can forbid her from doing so as long as it is in accordance to the commands of Allah

When ye divorce women, and they fulfil the term of their ('Iddat), do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms. This instruction is for all amongst you, who believe in Allah and the Last Day. That is (the course Making for) most virtue and purity amongst you and Allah knows, and ye know not. [2:232]

8. The guidelines for the nuptial gift (MEHER), in case of divorce are as follow:

A. If woman wants to continue the marriage but man insists on divorce, then nothing should be returned from the MEHER. See 4:20.

But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, Take not the least bit of it back: Would you take it by slander and manifest wrong? [4:20]

B. If the divorce happens before the consummation of marriage, then man has to give one half of what was fixed as MEHER. However, the woman or her attorney may agree to forgo something out of it, and the man, too, may decide to pay her the full MEHER. See 2:237.

And if you divorce them before consummation, but after the fixation of a dower for them, then the half of the dower (Is due to them), unless they remit it or  is remitted by him in whose hands is the marriage tie; and the remission (of the man's half) is the nearest to righteousness. And do not forget Liberality between yourselves. For Allah sees well all that you do. [2:237]

C. If the divorce happens before the consummation of marriage, but due to some reason MEHER was not fixed, then the man will have to pay according to what he can afford. See 2:236. 

There is no blame on you if you divorce women before consummation or the fixation of their dower; but bestow on them (A suitable gift), the wealthy according to his means, and the poor according to his means;- A gift of a reasonable amount is the duty on  the doers of the good [2:236].  

D. If the cause of the divorce is the woman’s lewd behaviour, then a part of the MEHER may be withheld. A court will decide on it. See 4:19. 

O ye who believe! Ye are forbidden to inherit women against their will. Nor should ye treat them with harshness, that ye may Take away part of the dower ye have given them,-except where they have been guilty of open lewdness; on the contrary live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and Allah brings about through it a great deal of good. [4:19] 

E. If man wants to keep his marriage but the woman insists on divorce, then a portion of her MEHER would stand forfeited. See 2:229. This, too, will be decided by the court. 

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 for what she gives up to become free (of the marital bond) thereby. These are the limits ordained by Allah; so do not transgress them if any do transgress the limits ordained by Allah, such persons wrong (Themselves as well as others). [2:229] 

WOMEN CAN ALSO TAKE THEIR CASE FOR DIVORCE TO THE COURT 

The following verse alludes to the right of a woman to go to the court to complain against her husband 

"Allah has indeed heard the woman who was disputing with you concerning her husband, and complaining to Allah (about the maltreatment she was receiving at the hands of her husband) and Allah was hearing the contentions of both of you. Surely Allah hears and sees (all things)."[58:1] 

The Quran has used the term "Talaaq" (Divorce) both in respect of the husband and the wife. The term "Khul'ah" (divorce obtained by a wife against a ransom by herself or through an attorney) is nowhere to be found in the Quran. Moreover, when it is said that a husband has delegated his right of divorce to his wife this is not correct; according to the Holy Quran because husband and wife have equal rights of divorce. Delegating the right of divorce by husband ("Tafweez" in juristic terminology) makes no sense. 

WAITING PERIOD AFTER A DIVORCEE (IDDAT)


A. 'Iddat' is the name given to a period in which a divorced woman or a widow cannot remarry. In fact it is meant to make sure if she is pregnant; and in case of pregnancy, the would-be child shall be the legitimate offspring of the former husband. There is no 'Iddat' for man. The Quran says: (2:228)"Women have the right relative to their obligations, but men have an advantage over them". The advantage is that there is no 'Iddat' for man. He can marry another woman immediately after divorce.

B.  The 'Iddat' for a divorced woman is three menstrual periods (2:228). The divorce comes into effect after the menstrual period comes to an end. This is for the sake of certainty in the counting of 'Iddat' (65:1).

C. For old women who have reached menopause or for those who do not menstruate on account of a disease, 'Iddat' shall be three calendar months instead of three monthly cycles:(65:4)

D.  'Iddat' for a pregnant woman is until the termination of pregnancy. (65:4) "For those who are pregnant, 'Iddat' is until they deliver (their burdens)." They should declare, in the event of divorce, that they are pregnant: (2:228) "Nor is it lawful for them to hide what Allah has created in their wombs."

E. There is no 'Iddat' for a woman who is divorced before sexual intercourse: (33:49)  

"O You who believe! When you marry believing women and then divorce them before you have touched them, it is not required of you to count the Iddat in respect of them (during which period the responsibility of their sustenance lies with you and the women cannot marry any other husband), so give them suitable provision and part from them in a goodly manner". [Marriage is a contract. When you find it difficult to carry out the contract, end it in a lawful manner. There is no need to create bitterness __ (2:228-236); (65:1-4)].

F. 'Iddat' for a widow is four months and ten days. (2:234)

"If any of you dies and leaves his widows behind, they shall wait for four months and ten days (for second marriage). When the 'Iddat' ends, they are free to make a decision about themselves according to law. They have the right to do so. There shall be no blame on them that they have done this way or that way. Remember, Allah knows all that you do."

In case she is pregnant, there is no separate injunction in the Quran for it. But it can be deduced from the injunctions regarding divorced (pregnant) women, that their Iddat shall also be until they give birth.

RIGHTS OF A DIVORCED WOMAN

A. During the period of 'Iddat' the responsibility for providing daily requirements and shelter shall be on the man and its standard shall be the same as during normal life. It is said in Surah At-Talaaq (65th Chapter of the Quran): [(65:6-7); (2:241)] "Let the women live (during 'Iddat' period) in the same style as you live, according to your means; annoy them not so as to tease them. And if they are pregnant, you have to provide their sustenance until their delivery, and if they suckle your (offspring) for your sake [i.e., if you cannot make any arrangement for the suckling and by mutual consent it is settled that she herself shall suckle], give them their due recompense, and enjoin one another to do good; and if you disagree, another will suckle for him."

In determining the scope of providing sustenance to divorcees or compensation for suckling, be considerate of the financial status of the husband. Let the man of means spend according to his means: and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what he has been given. If a difficulty arises for the man on account of the extra expenses, a relief can be obtained according to the Divine Law. (The court shall keep this in view).

But if during this period the woman commits an act of immodesty, the man then, is no more responsible. (65:1) "O Nabi! When you decide the cases of divorce, tell the people that the matter of 'Iddat' is of great importance. It must be accomplished adequately. For this, it is necessary that an accurate count of the prescribed period be kept, so as to submit totally to the injunctions laid down by your Sustainer (2:228-236; 33-49). During this period do not turn out the divorced women from your houses (65:2)."


During the period of 'Iddat' these are still their own homes. Nor shall they (themselves) leave without a proper excuse. However, in case they are guilty of some open immodesty, they can be turned out of the house. These are the limits laid down by Allah, and any one who transgresses the limits of Allah, besides doing wrong to others, he also wrongs his own self.


As stated above, the woman should not leave home and go to some other place during Iddat. But if conditions are not favourable to stay there, she can stay at some other place by permission of the court. This is our deduction from the Quranic verse, in which it is said: (4:130) "And if they separate, Allah will render them both free from want out of His ampleness". Allah shall make arrangement for the fulfillment of their needs, i.e. the society (established under the Divine Order) shall shoulder this responsibility.


B.  For one year's provision of daily needs and residence, the husband should leave a testament. But if before this, the widow leaves, of her own choice to some other place, this responsibility (of the late husband) comes to an end: (2:240) "Those of you who die and leave widows, should make a bequest for their widows for a year's maintenance and residence, but if they leave (the residence) of their own and make some other arrangement for themselves according to the law, there is no blame on you for what they do with themselves. Remember! The Divine Law is exalted in power and is based on wisdom."


C.  During 'Iddat' a widow is not allowed to marry another person but there is no restriction on discussing the possibility of marriage in the meantime: (2:235) "There is no blame on you if you make an offer of betrothal or hold it in your hearts. Allah knows that you would fancy to marry them: but do not take any hidden promise of marriage from them, negotiate with them in a recognised manner, but do not resolve on marriage during the period of Iddat: and always remain conscious of the fact that Allah is aware of the ideas that flash across your mind. You should know that Allah does not want to inflict any hardship on you by means of these limitations. The object of these restrictions is to protect your society from the injuries of wrong attitudes. He does not get angry by your mistakes, so as to entangle you in strict laws. This is done by tyrant rulers, not by Allah.


If (during 'Iddat' or afterwards) a woman intends to re-marry her former husband, do not stand in her way: (2:232) "When you divorce women and they are nearing the completion of their Iddat do not prevent them form marrying their former husbands if they mutually agree to do so in the  recognised manner."

Note: This does not apply after the third divorce).

 

 

 

 

 

 

 

Important

And do not follow (blindly) any information of which you have no (direct) knowledge. (Using your faculties of perception and conception, you must verify it for yourself. (In the Court of your Lord,) you will be held accountable for your hearing, sight, and the faculty of reasoning."[17:36]