Halala and Triple Talaq

By Professor Masood Alam Falahi, New Age Islam

Translated from Urdu by New Age Islam

11 March 2017

Significance of Marriage in Islam

Marriage in Islamic Shariat is considered a pure and sustained act. Allah Almighty wants men and women to lead their marital relationship as a prosperous and evergreen life bereft of every sort of disputes. He does not like any pollution of clashes and divisions to touch the refinement and purity of this relationship. For a marriage to be cheerful and cordial, He has given some responsibilities to the husband and the wife. In order to live a good martial life, the spouses always need to create passion of patience, tolerance, self-sacrifice and ignore all the trifles.

Talaq is a process of breaking this marital relationship. Therefore Islam does not like it. It is recorded in a Hadith, 'the devil is most pleased when a husband and wife are separated'.[i]

It is narrated by Hadhrat Thauban (may Allah be pleased with him) that the prophet peace be upon him said: "Whichever woman seeks a Khul' from her husband without harm (cause), then the scent of Paradise will be unlawful for her."[ii]

On the basis of these Ahadith, the Islamic jurists [Fuqaha] have regarded divorce as a condemnable and undesirable practice, when it is practiced without any severe requirement, as is evident by some Ahadith, for instance, when the woman becomes immoral and immodest. 

As for Islamic Shariat, the purpose behind marriage is to ensure for the couple a prosperous and cordial life. However, Islam recognizes that in cases where the husband and wife develop such bitterness and hate that it is impossible for them to live together, it violates the very purpose of marriage. In such a situation therefore, Islam makes an allowance for divorce and amicable separation of spouses.   

Islamic Measures to Prevent Divorce

The first attempt of Islam is that Talaq should not be taken place. However, when there is a severe need for the couple to dissolve their marital life, then the second attempt is that divorce should not be given in the first round of conflict and dispute, but that all possible measures should be implemented which can eradicate the tension between the spouses. Ignoring the negative aspects of each other, both the spouses must focus on their positive aspects, because every human being comprises of good and evil and no one is the center of the only good or the only evil. Pointing to this fact, the holy Quran says:

“....and it may be that you dislike a thing which is good for you and that you like a thing which is bad for you. Allah knows but you do not know.” (2:216).

If this becomes possible, there is no need of divorce. Islam has laid a comprehensive map of initial measures needed to be adopted prior to divorce. Allah Almighty says, 

“...As to those women on whose part you see ill-conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly, if it is useful), but if they return to obedience, seek not against them means (of annoyance). Surely, Allah is Ever Most High, Most Great." (Qur'an:4:34)

"If you fear a breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other from her's; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All-Knower, Well-Acquainted with all things. (Qur'an:4:35)

 

It is clear from these two verses of the Quran that the first remedial measure to be adopted by the husband is to admonish his wife in an amicable way that is such words of love to be spoken to her as would attract her to accept the reformatory efforts. The words of love are more effective for this situation than those of discord and wrath. If this effort fails, then the second measure should be taken, that is you should isolate her in bed in order to show that you are displeased with her, as for a loving selfless wife no punishment is bigger than that. If even this measure also fails and woman is not ready to be reformed, then it is allowed for the husband to adopt a little hardship, taking into account her inherent weakness. Now if the woman disciplines and reforms herself, then the husband should not look out any way of oppression and aggression but live with her peacefully.      

All these measures are taken by the husband. However, if all these efforts fail in reforming the wife who is still stubborn with her excessively wrong attitude, then in such a situation a collective measure should be taken, as has been explained in other verses of the Quran, according to which, an arbiter each from the relatives of husband and wife be appointed, and both these arbiters should try to persuade the spouses to bring in mutual reconciliation between them. If this effort gets success, then it is the responsibility of both the husband and the wife to end up their tensions and disputes running in their marital life by way of mutual love and affection.   

However if the efforts made by mediation and penchants also fail in bringing in reconciliation between the spouses, and the woman continues to disobey, then Shariat allows the husband to give divorce.

This is the summary of the above mentioned two verses of the Quran, which is a panacea to end up disputes and clashes between the husband and the wife. For this situation there is no other solution on this plant as reasonable and quickly effective as this one.

Steps to Divorce in Islam

When all efforts of reconciliation in the above mentioned situations fail, the husband has a right to pronounce only one Talaq. This will be when the woman is in a state of purity i.e. when she is clean after her menstrual period and the husband had not had sexual intercourse with her. This divorce is called Talaq-e-Raj’i i.e. Revocable Divorce. In this form of Talaq, if after giving Talaq, the husband feels sorry for his mistake, he can return to her i.e. take her back as wife but only before the expiration of what is known as the Iddat period or waiting/cooling-off period. In the terminology of Islamic Fiqh, this revocable process is called ruja’t. After this form of Talaq, if the husband and wife are still stable on the decision of separation, the husband should leave her in the very state; their marital relation will automatically end up after expiration of Iddat period. 

After the expiration of Iddat period, if the husband feels sorry for the pronouncement of Talaq and the ex-husband and the ex-wife wish to resume their marital life, then as per Islamic Shariat, they can re-marry. If after this remarriage, the spouses create tensions and disputes between them, then they should enact all the above mentioned measures. However, if all efforts of reconciliation fail, the husband can give Talaq once. Having given second Talaq, if the husband again feels sorry and the spouses desire to live peacefully once again, then he can return to her without marriage but only before the expiration of waiting [iddat] period. If after Iddat period, they wish to live with each other, then they will have to re-marry. After this second marriage, if disputes again arise between them and all efforts of reconciliation fail, then the husband can give third Talaq as a last option.     

Having pondered over the steps of divorce in Islam, it is evidently clear tha Talaq is not a joke, but rather it is allowed only in the state of extremely compulsion and after all efforts of reconciliation. Only one Talaq is allowed in one occasion. Giving more than one Talaq in one setting is tantamount to making fun of Islamic Shariat. Islam seeks to retain the relationship, therefore it commands the husband not to expel the wife from his house but he should let her pass her Iddat period in the house. This gives the couple time to calm down, evaluate the relationship and perhaps reconcile. The holy Quran has explained it in the following verses:

"The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mehr or a part of it) for her Al-Khul' (divorce). These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are the Zalimun (wrong-doers, etc.)." (2:229)

"And when you have divorced women and they have fulfilled the term of their prescribed period, either take them back on reasonable basis or set them free on reasonable basis. But do not take them back to hurt them, and whoever does that, then he has wronged himself. And treat not the Verses (Laws) of Allah as a jest, but remember Allah's Favours on you (i.e. Islam), and that which He has sent down to you of the Book (i.e. the Qur'an) and Al-Hikmah (the Prophet's Sunnah - legal ways - Islamic jurisprudence, etc.) whereby He instructs you. And fear Allah, and know that Allah is All-Aware of everything."(2:231)

“And when you have divorced women and they have fulfilled the term of their prescribed period, do not prevent them from marrying their (former) husbands, if they mutually agree on reasonable basis. This (instruction) is an admonition for him among you who believes in Allah and the Last Day. That is more virtuous and purer for you. Allah knows and you know not.” (2:232)

In the Quranic verse (2:232), the relatives of the woman have been warned that they should not stop the woman from remarrying her ex-husband, if she, after the passing of Iddat period of revocable divorce [Talaq-e-raj’i], desires to return to her ex-husband by way of remarriage. On the other hand, her ex-husband is also being commanded that if the woman, having passed the Iddat period, wants to marry someone else other than him, then he should not stop her from doing so.

This is the Islamic and Quranic method of divorce. We do not find any place in the Quran where it has been asked to give triple Talaq at one setting. But in the society we see that the people give triple Talaq at one setting due to ignorance, believing that Talaq will not be valid without giving triple Talaq. They should know that one Talaq is also valid, after which the spouses can separate from each other. There is disagreement among ulemas as to whether triple Talaq in one setting is counted as one or three. Many scholars including Ulemas of Ahle Hadith count triple Talaq in one setting as one. However, all the four Islamic jurists count it as three Talaq, presenting the important argument from the act of Hadhrat Umar (may Allah be please with him) in which he commanded to implement triple Talaq in one setting as three, in order to teach the men of that time a lesson, taking into account the conditions and needs of that time. Hanafis regard triple Talaq in one setting as three, but at the same time they consider it ‘Talaq-e-Bida’t’, i.e. they also adopt the Quranic method of divorce. It is clear from the discussion now that triple Talaq in one setting is just a violation of the Quranic teachings, for which Allah Almighty has warned, “And treat not the Verses (Laws) of Allah as a jest.” (Qura'n: 2:231)

Nikah Tahleel (Halala)

If three divorces are given or completed in the above mentioned Quranic way, it will be called Talaq-e-Mughallaza i.e. irrevocable Talaq, after which the husband cannot remarry his ex-wife. However, if he wants to remarry her, he will have to abide by the following steps:

1.       After passing the Iddat period, the woman, on her will, should marry other man without any Heela (excuse) or conspiracy [Heela in the Shariah terminology is meant to follow the letter of the law without breaking the law itself! One is allowed to use Heela under specific circumstances of emergency; but if one uses Heela to break or circumvent the laws of Allah Almighty, or just does Heela to play with the commandments of Allah, it will be considered a grave sin in the sight of Allah Almighty. Translator]

2.       The man whom she has married should also have sexual intercourse with her.

3.       After that, that man should give Talaq to her on his own will or when he dies.

4.       Then, the woman should pass the Iddat period of Talaq or his death

After that, that woman can be legitimate [Halal] for her first ex-husband. The process of being legitimate for the former ex-husband is regarded as ‘Nikah e Tahleel i.e. Halala.

Allah Almighty has explained it in the following verse:

“And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allah. These are the limits of Allah, which He makes plain for the people who have knowledge.” (2:230)

The Legal Status of the Customary Halala

A recent vile practice running among the Muslim community is that the people marry or get others married with the intention that they will give Talaq after or without sexual intercourse and thus the woman will be legitimate [Halal] for her ex-husband. In the eye of Shariat, this customary condition of Halala is an extremely vile practice and a sign of non-conscience.    

'Uqbah bin 'Amir [may Allah be pleased with him] narrated that the Messenger of Allah (peace be upon him) said, "Shall I not tell you of a borrowed billy goat" They said: "Yes, O Messenger of Allah!” He [peace be upon him] said: “He is Muhallil May Allah curse the Muhallil and the Muhallal lahu [Muhallil is the man who marries a woman in order to divorce her, so that she can go  back to her first husband. Muhallal lahu is the first husband for whom this is done.]”[iii]

This Hadith has been narrated with differences of words and narrators in several books of Hadith in an authentic chain of narration [Sahih Isnad].[iv] 

Therefore, the respected companions, Tabieen, Tab al-Tabieen and jurists such as Hadhrat Umar, Hadhrat Uthman, Hadhrat Ali, Abdullah bin Masood, Abdullah bin Salam, Ubay Ibn Kaa’b, Abdullah bin Umar, Abdullah bin Abbas, Ayesha (may Allah be pleased with them), Anas bin Maalik, Saeed bin Musayyab, Hasan Basari, Ibrahim Nakhi’, ‘Ata  bin Abi Rubaah, Abu Sha’sha’ Jabir bin Zaid, Sha’abi, Qatadah, Bakr bin Abdullah Muzni, Malik bin Anas and his companions, Awzaa’I, Laith bin Sa’ad, Sufyan Thauri, Ahmad bin Hambal, Ishaq bin Raahwyya, Abu Ubaid Alqasim bin Salam, Sulayman bin Daud Hashmi, Abu Khaithma Zuhair bin Harb, Abu Bakr bin Abi Shaiba, Abu Ishaque Jauzjaani, Imam Shaafi, Imam Abu Yusuf and Imam Muhammad Hanafi etc– all opine that unIslamic way of Halala i.e. conspiracy Halala will not make the woman legitimate [Halal] for her ex-husband and this marriage will be considered invalid. Imam Muhammad declares this type of unIslamic Halala as Mut’a, which is forbidden under all circumstances. Abdullah bin Umar (may Allah be pleased with him) states that it will be the state of Zina (adultery) for the man and the woman to live together after doing conspiracy Halala.

Without informing the man and woman, if a person marries the woman for the sake of their goodness, and gives Talaq to her so that she can be legitimate for her ex-husband, then this, according to some Ulema, is lawful only on the condition that the spouses had no knowledge of this person’s intention. However according to some other Ulema, this type of Nikah-e-Halala is also forbidden (Haram) and the woman will not be legitimate for her ex-husband, as they opine that the marriage will be valid only if a situation is created that a person decides to marry her with the intention of living together, but for some unwanted reason he gives Talaq to her.[v]  

The second Caliph Hazrat Umar (may Allah be pleased with him) used to say during his reign that he will punish with stoning to death, those who perform a pre-planned Halala.[vi]

Shaykhul Islam Allama Ibn Taymiyyah (1263-1328) has written a well-researched book consisting of 480 pages on this subject, namely “Bayan al-Dalil ala Butlan al-Tahleel” (Evidence on prohibition of Halala), proving with arguments that such type of marriage is invalid. All the Companions and Salaf have forbidden it.[vii] 

Maulana Sayyad Abul Ala Maududi (1903-1979) also opines the same thing, as he writes:

“From the authentic Ahadith it is clear that if a man gets his ex-wife married to someone else in order to make her lawful for himself, with the condition that she will be given Talaq after marriage, then this is extremely unlawful act. Such type of marriage will be invalid but rather it will be adultery and such type of conspiracy marriage and divorce will not make the woman legitimate for her ex-husband”.[viii]

According to all Companions (may Allah be pleased with them), Tabieen, Taba Al-Tabieen, three Imams and Ahnaaf, the pre-planned or conspiracy Halala is forbidden. Imam Abu Hanifa (699-767 AD) considers it Makrooh-e-Tahreemi (impressible act)[ix], however the marriage will be valid. Imam Abu Hanifa considers it valid, because it fulfills the Quranic condition of “she shall not be lawful afterwards, until she marries another husband”, whether by legitimate or illegitimate way. Due to fulfillment of the Quranic condition, though Imam Abu Hanifa considers this type of marriage lawful; yet he also regards the act of Heela for Halala (i.e. pre-planned Halala) as a sinful and punishable act and asks Muslims not to do so.

There are two types of Heela; first is Shari’i Heela (lawful Heela) as is made during the war and the second is Ghair Shari’ Heela (unlawful Heela), as is made when interpreting the Quranic texts or commands of Allah for one’s purpose or needs, and making Heela in order to deceive others for the sake of self-interest. The holy Quran has forbidden the second type of Heela, as Allah Almighty says describing the signs of hypocrites (Munafeqeen):

“And of mankind, there are some (hypocrites) who say: "We believe in Allah and the Last Day" while in fact they believe not." (2:8)

"They (think to) deceive Allah and those who believe, while they only deceive themselves, and perceive (it) not!" (2:9)

"And when they meet those who believe, they say: "We believe," but when they are alone with their Shayatin (devils - polytheists, hypocrites, etc.), they say: "Truly, we are with you; verily, we were but mocking." (2:14)

"Allah mocks at them and gives them increase in their wrong-doings to wander blindly."(2:15)

 

Allah Almighty had commanded the children of Israel [Jews] not to fish or hunt on Saturdays. But when the children of Israel realized that the fish come in large numbers on Saturday and not in other days, they made a Heela to dig a hole to hunt the fish on Saturday. The water became less in ebb of the sea, fish could not return back again to the sea and remained in the canals/holes. They caught the fish next day. Some men from their community prevented them from it but they did not pay attention to the obedience to Allah Almighty and forgot the divine command. As a result of this illegitimate excuse (Ghair Shari’ Heela), Allah Almighty turned these disobedient people into apes. (Quran 2:163-166) 

It is the responsibility of the learned men of the community to campaign for creating awareness among Muslim Ummah about the prevailing unIslamic way of Talaq and Halala, making them feel about the gravity of this issue. They should make all their efforts for eliminating the wrong practice of Talaq and Halala. The most significant thing is that the forbidden way of Halala is practiced by those people who do not adopt the Quranic method of divorce by giving triple Talaq in one setting. Such people do not take benefit from other schools of thought because of their stagnant attitude on their own school of thought. It is worth mentioning that the four jurists have suggested that if their sayings or opinions oppose the Quranic verses or authentic Ahadith, the people should ignore them and act in conformity with the Quran and the Ahadith. The people adopting unIslamic way of divorce also opine that since Hadhrat Umar (may Allah be pleased with him) has regarded triple Talaq in one setting as three, therefore they also regard it as three. With regard to triple Talaq, they accept the view of Hadhrat Umar (may Allah be pleased with him) which was made as per the needs and conditions, but they ignore his opinion about conspiracy Halala or Heela of Halala as mentioned above. If they adopt the Islamic method of divorce, they will never have to adopt the prevailing condition of forbidden way of Halala.