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On Triple Talaq Or Three Pronouncements Of Divorce In One Sitting: Judiciary Should Implement The Qur’anic Mode Of Talaq


By Sohail Arshad, New Age Islam

5 Jan 2012

The issue of the pronouncement of three Talaqs in a single sitting again came to the fore as Bharatiya Muslim Mahila Andolan, an organisation working for the rights and welfare of women demanded that the practice of pronouncing three Talaqs should be abolished. They also demanded that the practice of verbal Talaqs should also be made illegal through the codification of Muslim Personal Law.

The custom of divorce did not originate in Islam but has roots in pre-Islam pagan Arab society. The practice was in vogue in pre Arab society where a husband had the power to divorce his wife any time he wished that too on flimsy grounds, and most of the time for no reason at all. This practise of the Jahiliya is still followed among the Muslims of the sub-continent who divorce their wives by pronouncing triple Talaq in one sitting often on flimsy or ridiculous grounds as one of the women recounted her experience in the conference on Talaq organised by BMMA. She said she was given Talaq because she suffered from poor eyesight.

Most of the Talaqs are pronounced in a fit of rage or in a drunken state or sometimes even in jest. But the most painful part of the sorry state of affairs is that the Ulema or the muftis declare such divorces valid though in many cases the husband says that he uttered the three Talaqs in rage or in a drunken state and did not actually intend to divorce his wife.

The mode of pronouncing three Talaqs in one sitting in practice among Muslims is mentioned below:

a)       In the presence of wife

b)       In the absence of wife

c)       Verbally (in a fit of anger, in a drunken state or in jest)

d)       In writing

e)       Through sms

f)       Over the telephone

And in all the cases the fatwa is declared valid. The women suffer because in most cases they are not at fault and get the divorce due to the irresponsible behaviour or the ignorance of the husbands about the correct way of pronouncing Talaq.

The ignorance of the general Muslims about the correct process of pronouncing three Talaqs (Talaq Ahsan)  has led them to think that delivering Talaq to their wives is the most easy practice in Islam and that being a husband, one has the unhindered right of giving three Talaqs to his wife without being accountable to her or to the society. That’s why she is divorced at the drop of a hat. The circumstances in which she is divorced are many. For example, she is divorced for forgetting to put salt in the pulses, for not being able to send her son to school, for having a poor sight, for not voting the candidate of the husband’s choice in an election, for not obliging in bed due to illness and so on and so forth.

But in truth, the Quran has not made the process of giving Talaq so easy. It has laid down specific rules in case the couple think that they cannot get along well any longer. The Quran encourages husband and wife to have a long lasting relationship, and to help them maintain that relationship, it calls for mutual understanding, sympathy, kindness, fulfilment of mutual rights, showing kindness and obedience.

“And live with them in kindness.” (Surah an Nisa:19)

“They are clothing/covering (Libas) for you and you for them….” (Al Baqura: 187)

There are other verses in the Quran which emphasize the significance of dignity and honour of wife in the life of a husband. And that’s why God expects husband and wife to strive towards having a lasting and fulfilling life.

However, if differences arise between the two, the Quran enjoins on both of them to make all the necessary efforts to make a reconciliation to save the marriage. But if even then they cannot strike a chord, the Quran advises them to have a meeting in the presence of two arbiters, one from the husband’s side and one from the wife’s side. Let’s go through the verses of the Quran in this context:

“If a couple fears separation, you shall appoint an arbitrator from his family and an arbitrator from her family; if they decide to reconcile, GOD will help them get together. GOD is Omniscient, Cognizant.” [4:35]

But if still the husband wants to divorce his wife, he should pronounce one Talaq after she has achieved tuhr following the menstruation period and before having intercourse with her after the menstruation. If he has an intercourse with her, he cannot pronounce Talaq in that cycle and has to wait for the next menstrual cycle. If he revokes the Talaq within the Iddah period, it is good otherwise he can pronounce the second Talaq after the Iddah anytime in her state of tuhr (purification after menstruation) but before having sexual intercourse with her. Similarly, if he pronounces the third Talaq, his marriage is dissolved and he cannot remarry her.

The Quran says:

O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah, your Lord. (Surah At Talaq: 1)

It also speaks on the process of giving Talaq in Surah Al Baqura:

“Those who intend to divorce their wives shall wait four months (cooling off); if they change their minds and reconcile, then GOD is Forgiver, Merciful. If they go through with the divorce, then GOD is Hearer, Knower. “[Al Baqarah: 226-227]

In the next verse, the Quran prescribes the behaviour of the divorced women and their rights with regard to divorce:

And the divorced women should keep themselves in waiting for three courses. And it is not lawful for them to conceal that which God has created in their wombs, if they believe in God and the Last Day. And their husbands have a better right to take them back in the meanwhile if they wish for reconciliation. And women have rights similar to those against them in a just manner, and men are a degree above them. And God is Mighty, Wise. (Al Baqura: 228)

It clearly says that in the process of getting the divorce, the wife is not a passive party. She has all the right to defend her innocence if she claims to be so and has one arbiter to defend her in matter of divorce and when finally the divorce is testified, she is present with two equitable witnesses. The Quran says:

“And women have rights similar to those against them in a just manner.” (Al Baqura: 228)

So, after the completion of the second term, the husband can either retain his wife or divorce her finally:

“Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (them) go with kindness.”  [Al Baqura: 229]

 And the process will be finalized in the presence of two witnesses.

“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. (Surah At Talaq: 2)

From all of the verses, one can clearly make out that in Islam, divorce is not an arbitrary unreasonable process to be adopted by the husband and it gives both husband and the wife to decide their future course of action cool-headedly. A Talaq happens when all the efforts have been exhausted in a stipulated period of time.

But the practice of triple arbitrary Talaqs which is only reminiscent of the Jahiliya is rampant today destroying millions of happy families that could have been saved but for the unscrupulous Fatwas from our Ulema.

Now the question is how this practice of Talaq al Bid’ah crept into the Muslim society and assumed the status of a Shariah-compliant custom, enjoying the approval of even the clergy. And to understand the root of the problem we will have to go back to the life of the Prophet (pbuh).

From the accounts of the holy companions and from various Hadiths, it can be fairly established that during the life of the Prophet (pbuh) the practice of Talaq-e-Ahsan (Quranic process of Talaq) was in vogue as the holy Prophet (pbuh) disapproved triple Talaq (Talaq-e- mughallaza). During his life, three or more Talaqs at one go were considered one pronouncement. Here is a Hadith in this context:

“Abd-e-Yazid divorced his wife (mother of Abu Rakanah and his brother) by pronouncing three Talaqs and married a woman of Muzainah tribe. But soon after that Abd Yazid’s second wife went to the holy Prophet (pbuh) and said, “O apostle of God, he (Abd Yazid) is of no use to me like this hair (and she pulled out a hair from her head to suggest he was impotent). The holy Prophet (pbuh) became very angry. He pointed out the resemblances that Rakanah and his brother had to their father. (How could Abd Yazid be impotent then?). The prophet (pbuh) then commanded Abd Yazid, “Divorce her”. He obeyed. The prophet (pbuh) then said to Abd Yazid, “Take your wife (mother of Rakana and his brother) back in marriage.” Abd Yazid said, “I have divorced her by three pronouncements”. The holy Prophet said, “I know; take her back”, and recalled the verse in the Quran, “O Prophet, when you divorce women, divorce them at their appointed periods.” (Sunan Abu Dawood vol 2 Hadith no. 2191 p 59; Ahmad ibn Hanbal, Musnad)

This incident is also reported in Musnad Ahmad Ibn Hanbal that once Rakanah pronounced three divorces against his wife but later he was very sorry for it.  When the Prophet (pbuh) asked him, ‘How did you divorce your wife?’ Rakanah replied that he had pronounced three divorces. The Prophet asked, Did you pronounce it in one sitting? When he said, yes, the noble Prophet said, Treat it as one divorce only and if you want you can take your wife back.  And Rukanah took his wife back.

The above quoted Hadiths show that since Abd Yazid had pronounced three Talaqs together, the Nikah had not broken as it was considered only one Talaq and so the prophet (pbuh) asked Abd Yazid to take his wife back.

Imam Muslim quotes Ibn Abbas reporting that in time of the prophet (pbuh) and during the caliphate of Hadhrat Abu Bakr and the first two years of the caliphate of Umar; three pronouncements were considered one revocable Talaq.

Another Hadith in Sahih Muslim says:

“Abdullah Ibn Abbas (RA) said: “Three divorces were considered to be one in the time of the Prophet (SAW), during the caliphate of Abu Bakr (RA) and in the first two years of Hadhrat Umar’s (RA) caliphate. Thereafter, Umar (RA) declared three divorces at one go to be valid” (Sahih Muslim).

However, there are also Hadiths that show that people during the life of the Prophet (pbuh) resorted to triple Talaq and were validated by the Prophet (pbuh). These Hadiths are presented by the muftis and Ulema to annul the marriages where the husbands pronounced three Talaqs at a time.

One of the Hadith that is famous in this regard is as follows:

Uwaimir al-Ajlani (RA) pronounced three divorces at once (i.e. simultaneously) to his wife in the presence of the Prophet (SAW). This has been recorded by Imam al-Bukhari and others in the famous incident of li’an (Public imprecation). The Prophet (pbuh) did not negate what Uwaimir al-Ajlani (RA) had said, which is a sign that all three divorces were affected simultaneously.

There is another Hadith that is presented by this section:

Hasan ibn Ali (RA) said (in a long Hadith, after divorcing his wife): “Had I not heard my father (Ali) narrating from my grandfather (Prophet (SAW)) say: “when a man pronounces three divorces, then his wife will no longer remain lawful for him, unless she marries another man”, I would have taken my wife back.” (Sunan al-Bayhaqi)

Here, in the first Hadith the case is of lian (public imprecation) and therefore may not be considered a general divorce. In the second Hadith, Hasan Ibn Ali (RA) says that he heard his father narrating from his grandfather, the holy Prophet (pbuh) that when a man pronounces three divorces, then his wife will no longer remain lawful for him. This seems to be a general statement of the prophet about the pronouncement of three Talaq and does not specify if the Prophet (pbuh) meant triple Talaq or Talaq-e-Ahsan or Talaq-e-Hasan (Talaq pronounced in three consecutive ‘tuhr’. But from the Hadiths about the case of Abd Yazid and the Hadith reported by Hadhrat Ibn Abbas, it is established that the prophet (pbuh) endorsed the Talaq as laid down by the Quran, that is, Talaq-e-Ahsan.

Famous Islamic jurist As Shokani has also held the view that triples Talaq should be considered one. He says:

“And a group of the people of learning has preferred the opinion that divorce did not become effective if pronounced successively and in this situation there occurs only one divorce.

How then did the practice of triple Talaq come into force and accepted by the Muslims. According to Ibn Abbas, the triple Talaqs were considered one during the life of the prophet (pbuh) and the life of Hadhrat Abu Bakr and in the first two years of Hadhrat Umar’s caliphate. In the third year, Hadhrat Umar ruled that from then on, triple Talaqs will be considered three. The decision was taken by him due to some exigency.

About the circumstances in which Hadhrat Umar declared triple Talaqs to be three. The noted Egyptian historian Muhammad Husain Haykal's book 'Umar al-Farooq explains the Ijtihad of Hadhrat Umar in enforcing the triple Talaq. According to him, Umar (RA) permitted triple Talaq under the prevalent situation. When the Arabs conquered Syria, Egypt, Persia, etc they came in contact with many women who were more beautiful than their wives and wanted to marry them. But those women did not know about Islam’s abolition of triple Talaq in one sitting, and therefore insisted that before marrying them the men should pronounce Talaq thrice to their existing wives. They agreed to do this as they knew that triple Talaq in one sitting will not dissolve their marriage. This way after marrying the Syrian and Egyptian women, they retained their earlier wives. When the Egyptian and Syrian women discovered that they had been cheated, they complained to Umar, the Caliph, and requested him to enforce triple divorce again in order to prevent its misuse by the Arabs. Hadhrat Umar (R.A.) complied with their request to stop the misuse of the Talaq law and to make the husbands suffer for their deceitful ways.

According to a tradition, later Hadhrat Umar abolished the practice of triple Talaq as it had become a widespread practice among the Arabs who hastened to give triple Talaqs to their wives to get rid of them (Hadith no. 3493 in Sahih Muslim). But the practice had already taken root in the Muslim society.

The Ummayyid dynasty gave validity to the Talaq-e-biddah (triple Talaq) and the society in general accepted the practice. The jurists also took pains to find all those Hadiths, however weak, that validated triple Talaq to support their view on triple Talaq and ignored the ones in which the prophet (pbuh) is said to have supported Talaq-e-Ahsan based on the procedure laid down by the Quran.  Some jurists gave the argument that the holy companions who were alive during the caliphate of Umar did not object to Hadhrat Umar’s ruling and accepted it. That’s why triple Talaq should be considered three Talaqs. But they forget that the enforcement of the triple Talaq was an administrative decision to deal with an emergency that was faced by the society of his time whereas the Quranic injunctions and the teachings of the Hadiths cannot be changed.

As a ruler and administrator Hadhrat Umar is known to resort to Ijtihad to tackle social and religious issues of the then Arab society. For example, he had suspended the punishment for stealing (cutting off of the hands of the thieves) during a drought, as during such a situation, people are tempted or forced to steal. (Islam aur jadeed maddi ifkar by Md Qutub). So, not realizing the difference between the religious teachings and the steps of an administrator, Muslims spread this Bid’ah to find an escape route from the strict Talaq rule which was in practice during the life of the Prophet (pbuh) and the first two caliphates because the Arab society believed in polygamy and the limitation on having more than four wives together had become a burden for them as the Quranic mode of Talaq was a time consuming one while the triple Talaq was convenient for them to get rid of one of the four wives and get a new one instantly.

The current practice of triple Talaq or Talaq-e-Bid’ah is a sheer violation of the Quranic ordainments and the practices of the holy Prophet (pbuh). The Hanafis believe that though this form of divorce is sinful and innovative, it is nevertheless valid and divorce will take place once triple Talaq is pronounced.

All the four Sunni schools of jurisprudence – Hanafi, Maliki, Shafi’I and Hanbali follow the rule of triple Talaq with slight differences in wordings. It’s a paradox that though the Hanafis view the triple Talaq as an innovation (a Bid’ah), they still hold the view that if the husband pronounces triple Talaq, the marriage is dissolved. The Malikis say that if the husband uses the word ‘and’ between the pronouncements, ( I divorce you and I divorce you and I divorce you) it will be considered three Talaqs and if he says three Talaq only to emphasise the first Talaq, it will be considered only one Talaq. But if he says three Talaqs without any intention of emphasizing on one Talaq, then three Talaqs have been given.

Imam Malik also gives the concept of conditional Talaq that is, ‘if you go to your father’s house, then three Talaqs to you’ which again does not find sanction in the Quran.

The Shafi’i school says that if the husband says three Talaqs and intends to give one, then one Talaq will apply otherwise it will be three Talaqs.

Therefore, in essence all the four schools follow the same rule of triple Talaq with slight variations. The use of word or emphasis which the three schools argue in favour of does not mean anything to the laymen or the illiterate who does not understand the difference between the expressions ‘I divorce you, I divorce you, I divorce you’ and ‘I divorce you and I divorce you and I divorce you’. When the Prophet (pbuh) asked Abd Yazid if he had pronounced Talaq thrice or once, he did not want to know if he used the word ‘and’ between the pronouncements or whether he used the other two pronouncements to emphasise the first. He (pbuh) only asked him if he had pronounced three Talaqs in one sitting and on being told that it was in one sitting, he (pbuh) ruled that it was to be considered only one Talaq.

However, Maulana Umar Ahmad Usmani quotes the view of Ibn Taimiya who says that Imam Ahmad Ibn Hanbal later retracted his position on triple Talaq:

“But Imam Taimiyah has proved that Imam Ahmad bin Hanbal had retracted from his earlier position of accepting the validity of triple divorce and in a later period he used to say that when I reflected on the Qur'anic position I came to the conclusion that it permits only raj'i  Talaq, i.e., divorce in which the wife can be taken back.  He then took the position that even if someone pronounces triple divorce it should be treated as one only. The husband thus will have the right to take his wife back within the 'Iddah period or go for Nikah if the 'iddah period has expired.  Imam Ahmad's companions and disciples also adopted this position. 

Many companions of the Noble Prophet like Ibn Abbas, Hazrat Ali, etc. also were of this opinion. Some have quoted companions like Abdullah bin Mas'ud, Abdur Rahman bin'Auf and Zuber bin al-Awwam also adopting this position. Ahl-e-Hadith also are of this opinion, i.e., that triple divorce is not valid. The Ithna 'Asharis (i.e., twelver Shi'as) and Imamiyas believe that if three divorces are pronounced together, even one divorce does not take place, let alone three.  Even some Hanafi jurists like Hajjaj bin Artat and Muhammad Ibn Muqatil believe that if one pronounces three divorces, no divorce will take place.”

“Usmani also quotes from Hafiz Ibn Hajar's Fath al-Bari to the effect that many eminent jurists held that if one pronounces three divorces, only one takes place.”( Maulana 'Umar Ahmad 'Usmani and Women's Rights in The Qur'an, Women and Modern Society, Asghar Ali Engineer, Select Books, India, 1999)

Only the Salafis or ahl-e-Hadith and the Shias consider triple Talaq in one sitting as one Talaq.

Therefore, it can be concluded that triple Talaq is unlawful and sinful as it is a Bid’ah (an innovation in religion) as Imam Ahmad bin Hanbal after reflecting on the Quranic injunctions relating to divorce rightly came to the conclusion that triple Talaq was not in accordance with the Quranic principles.

But unfortunately this has been in practice as the only mode of Talaq in Muslim societies today, particularly in India. Going by the Fatwas of the Darul Ifta of Deoband and other seminaries of India, it can be assumed that the jurists of India have endorsed this mode of Talaq-e-Bid’ah giving the impression among the general masses that this is the correct and only mode of giving divorce.

On this phenomenon, renowned jurist Abdur Rahim says poignantly, “I may remark that the interpretations of the law of divorce by jurists, especially of the Hanafee school, is one flagrant instance where because of literal adherence to mere words and a certain tendency towards subtleties they have reached a result in a direct antagonism to the admitted policy of the law on the subject.”(Abdur Rahim: Muhammedan Jurisprudence)

Here, a recent case from the Darul Ifta of Darul Uloom, Deoband can be presented where the jurist rules that Talaq has happened as the husband has given three Talaqs in one sitting.

Question No. 41378

“I said Talaq five times to my wife in a fit of anger under the influence of alcohol. Is this valid and final? Now I as well as my wife is genuinely interested in reconciliation/reunion. What is the right procedure to do so? Kindly guide us to the right path. “  

Answer Sep 20, 2012

(Fatwa: 859/865/N=1433)      

(1) In the question mentioned above three Talaqs took place on your wife. She became Haram for you and now there is no way to be Halal for you without Shariah Halala. Almighty Allah says in the holy Quran:

فَإِن طَلَّقَهَا فَلاَ تَحِلُّ لَهُ مِن بَعْدُ حَتَّىَ تَنكِحَ زَوْجاً غَيْرَهُ [البقرة : 230

It is painful to see that the husband and wife did not want to be separated but the fatwa forced them to. The fatwa also quotes verse No. 230 of the Quran to create the impression in the mind of the questioner that it applies to his case whereas the verse speaks of the third and final Talaq according to the process laid down by the Quran. The verse says:

“So if he divorces her (the third time), she shall not be lawful to him afterwards until she marries another husband. If he divorces her, there is no blame on them both if they return to each other (by marriage), if they think that they can keep within the limits of God. And these are the limits of God which He makes clear for a people who know.”(Surah Al Baqura: 230)

The jurist here does not mention the earlier verse which speaks of separation after two pronouncements.

“Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (them) go with kindness.( Al Baqarah:229)

Abd Yazid had also repented after pronouncing three Talaqs to his wife in one sitting and the holy Prophet (pbuh) had told him that only one Talaq had occurred so he could take his wife back. The Talaqs were pronounced by the two persons in the same situation but the fatwa is different from that of the holy Prophet (pbuh).

Apart from the problem of triple Talaq in one sitting there is the problem of giving divorce in a fit of anger, in a drunken state, in jest or under duress. In such circumstances also, the jurists hold that Talaq is valid even though the husband says that he did not actually intend to divorce his wife. 

Most of the divorces are given in a fit of anger. Some of them are given in a state of intoxication and some in jest. However, all the four schools with some differences in their attitude hold the same belief that the Talaq given under these circumstances are valid. In such conditions, if the Talaq is given even in jest, or under the influence of alcohol or in anger are considered only one Talaq, then also many homes and conjugal lives can be saved. But unfortunately in all the cases the application of three Talaq (Talaq al Bid’ah) is resorted to despite the Quran and Hadiths speaking to the contrary.

The jurists quote the following Hadith to support the divorce in jest or anger.

Abu Huraira (RA) reports that the Prophet (SAW) said that there are three things, which are counted as serious even if they were not intended seriously, and they are Nikah (Marriage), Talaq (Divorce) and Rajat (taking a wife back). (Mishkaat Shareef P284 V2)

However, the Hadith does not specify if saying three Talaqs in jest will be counted as one or three. Since the position of the holy Prophet (pbuh) is clear that triple Talaq means one, even if the Talaq pronounced in jest is counted one, It will save a marriage and will also act as a warning to the husband. But unfortunately that is not what is followed by our jurists.

It is stated in Durul-Muhtar, “As for (issuing Talaq in) jest and jokes, indeed a Talaq takes effect, according to (Sharia) law because Prophet (pbuh) has stated that jesting is also serious.” (Raddul-Muhtar P443 V4)

Another case of three Talaq given in anger came up to the Darul Ifta in October last year. The reply was the same. Talaq.

Question: 41424, United States of America

“My question is this that if a husband in anger said to his wife three times face to face that "I divorce you, I divorce you, I divorce you", at the same time then is this divorce valid? After telling these words now he is saying that he was in anger and he had no intention to give divorce to her. So I have some more questions below: (1) is intention necessary, important and essential part to give divorce by a husband? If there is no intention and a husband used words of divorce three time like "I give you divorce" then has divorce taken place? What is the importance of intention of a husband to give divorce? (2) If the husband was in anger, and now saying he was angry, then divorce given in anger is valid? (3) Is divorce given three times all at the same time saying words like "I give you divorce, I give you divorce, I give you divorce" is consider as one divorce or it is valid for three time divorce? And can a husband still take her wife back?”

  Answer: 41424, Oct 01, 2012

(Fatwa: 1680/B=405/TB=1433)

(1) There is no need of intention when Talaq is given in clear word. Talaq takes place without intention as well:

لأن الصريح لا يحتاج إلى النية (عالمگیری)

(2) According to Hanafi Fiqh, Talaq takes place in the state of anger as well.

(3) By giving three Talaqs in a single meeting all the three Talaqs take place. One cannot keep one’s wife with him after giving three Talaqs without a valid Halala. It is mentioned in the holy Quran:

فَإِن طَلَّقَهَا فَلاَ تَحِلُّ لَهُ مِن بَعْدُ حَتَّىَ تَنكِحَ زَوْجاً غَيْرَهُ [البقرة : 230]

The same fatwa that the Talaq occurred and the same verses quoted emphasizing the need to go through Halala. The first clause of the fatwa echoes the opinion of the jurists who say that while giving Talaq, the intention is not important. But the Quran has a different say on the topic. In surah Al Baqarah, verse No. 227, the Quran lays stress on intention:

“And if they decide on divorce - then indeed, Allah is Hearing and Knowing.” In the Arabic text the word for 'decide' is ‘azam’ meaning determination. But it is a great paradox that while the Quran says that determination, not mere intention, should be behind the decision, our muftis say that intention is not at the least required.  It is also important that in Islamic Shariah, niyyat (intention) is necessary for every religious practice be it fasting or prayer or for charity to be accepted. It’s only in the event of Talaq, that the Ulema say that niyyat or the lack of it will not be given a thought.

There is one more fatwa on triple Talaq which clearly says that the Talaq would not otherwise have happened but the jurist not only declared that the Talaq occurred but also stressed that the husband and wife who were living together after getting a fatwa from a judicious mufti that only one Talaq had occurred should be separated. The question and the fatwa are in Urdu. It is being translated into English for our readers.

“I want to ask you one question: A woman of my neighbourhood was divorced three years ago. But her husband obtained a fatwa from some mufti saying that divorce did not occur as it was pronounced together. So she started living with her husband again. They had four children before divorce and they are now grown-ups. They have been living together for the last three years. But the woman wants a legitimate solution to this. If we secretly get her married with someone and arrange for Halala, what should be the procedure? The woman does not even want to go to her parents’ home and because of children she does not want to be separated from her husband. Will she be Halal for her first husband without completing the Iddah after getting divorce from her second husband? Please guide us in the light of the Quran and Sunnah.”

The answer is as follows:

Whether the Talaq is given together or separately, in one sitting or in different sittings, according to the majority of holy companions (Sahaba), taba’yin (successors of Sahaba) and tabey tabayin (successors of tabiyin) and all the four imams (Imam Abu Hanifa, Imam Malik, Imam Shafi’i and Imam Ahmad) three Talaqs are three not one and the fatwa of those who claim that Talaq did not occur or only one Talaq has occurred is not correct and therefore following such a fatwa is not appropriate and correct. And after the three Talaqs, the woman becomes completely Haram for the husband and the Shariah does not permit remarriage between them before Halala. God says, “So if he divorces her (the third time), she shall not be lawful to him afterwards until she marries another husband. If he divorces her, there is no blame on them both if they return to each other (by marriage), if they think that they can keep within the limits of God. And these are the limits of God which He makes clear for a people who know.”(Surah Al Baqura: 230)

After this the jurist quotes a number of jurists and books of jurisprudence from Lebanon to India to support his fatwa, then says:

“Therefore, immediate separation between the third time divorced woman living in your neighbourhood and her husband is Wajib (imperative/obligatory). Their cohabitation as husband and wife is in no way permissible by Shariah, it is Haram and they should show penance and repentance for the period they lived together as husband and wife after triple Talaq. She will not be Halal for her first husband until she goes through a true Halala. In the situation mentioned Halala is mandatory and during the Halala, the second husband must have intercourse with the woman. And when the second husband divorces her on his own or dies, then after passing the Iddah period, if she wants to come back to her husband, she will be allowed to do so by remarriage.

Firstly, the questioner had asked guidance in the light of the Quran and the Sunnah but the jurists did not mention the Quranic process or the hadith regarding Talaq Ahsan or Talaq hasan. He mentioned the madhab of the holy companions, of the tabiyins and tabey tabeyins and the books of jurisprudence from Lebanon and India, that is, all the secondary sources leaving out the Quran and the Sunnah.

Secondly, he gave this long answer in this case because the questioner had mentioned that some other mufti had ruled that only one Talaq had occurred. So to invalidate the fatwa, he had to quote the books of jurisprudence and their quotations and explicitly asserted that all those who say that three pronouncements together are considered one are wrong. The husband and wife were rightly living together after the just fatwa by the knowledgeable mufti but because of the woman’s doubts, they again fell in trouble and probably  by now she might have gone through Halala arranged by her ‘well wisher’ who would have offered her his services for this noble cause.

While, declared triple valid, our muftis readily advice the husband to arrange for Halala if he wants reunite with his wife and calls it shar’ee Halala. But the truth is that arranged halala is not Quranic. The Quran says that after the final divorce, the couple cannot remarry. But it leaves the door open for divorced women in case of a coincidence occurs which helps the willing  woman  to re-unite with her husband and so mentions it while discussing divorce. But our jurists have taken the verse in its face value that arranged Halala is a means of re-uniting with the divorced wife. According to the Quran, marriage should be made with the intention of a long lasting relationship and for procreation and to save the society from evil practices. But ironically, Halala itself has become an evil practice. If the Quranic method of Talaq is enforced there will not remain any scope of Halala which no woman worth her salt would like go through.

The custom of Halala has itself become a problem because of its sheer misinterpretation and misapplication. The verses of the Quran have been misinterpreted to misuse the practice of Halala. The Quran says:

“So if a husband divorces his wife (for a third time), he cannot, after that remarry 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 can keep the limits ordained by Allah. Such are the limits ordained by Allah which He makes plain to those who know”. (2:230).


Actually, Halala is not a means of remarrying a wife after uttering divorce. When a man permanently divorces his wife by uttering three Talaqs (divorce) he cannot remarry her at any cost. If only the woman decides to have a second marriage to spend the rest of her life peacefully and for the sake of the future of her children (if any) and at any point of time if the second husband also divorces her on his own accord as a matter of coincidence and if, in case the woman also wants to get back to her first husband, she can remarry her first husband. And this process will be called Halala.

So, the whole episode will be based on a number of coincidences and on the willingness of the woman to get back. Halala is not an option to get her back by stage-managing a mutah (temporary marriage) where everything is planned or agreed upon, that is, a man agrees to marry the divorced woman by charging an amount of money only to divorce her after having physical relationship with her for a stipulated or mutually agreed period of time, say, one day or one week and then divorces her according to the agreement in order to make the woman lawful for her first husband.

The Halala also becomes immoral when the man only wants to keep a mistress for temporary enjoyment and money with the purpose of divorcing her after a mutually agreed period of time like in mutah (temporary marriage) without having any commitment towards her. This kind of Halala is Haram and prohibited in Islam and a bida’t (religious innovation). The Quran and Hadith both prohibit such a marriage and accursed are all those who are involved in such marriages. Such practice of Halala is Haram as it is in clear contravention of Hadith and the Quranic ordainments.

Nowadays, the Halalas are arranged marriages and paid-for-affairs in order to fulfil the minimum criteria to reunite with the spouse. But the holy Prophet (PBUH) has strictly prohibited such practices in the name of Halala. The holy prophet (PBUH) admonishes those who misinterpret the verses of the Quran regarding Halala to serve their own petty interests and removes the confusion. According to a Hadith, the holy Prophet (PBUH) said:

“'The Curse of Allah be upon the one who marries a divorced woman with the intention of making her lawful for her former husband, and upon the one for whom she is made lawful!'.

This Hadith was reported by Hadhrat Ali Ibn Talib (R.A.) (Sunan of Abu-Dawood Hadith 2071).

There is an interesting event from the life of renowned poet of Urdu Allama Iqubal which also sheds light on the deep root of the wrong notion of Talaq into the psyche of the Muslim rank and file.

In his article “Halala: Iqbal style” published in viewpoint online, Khalid Suhail gives an account of Iqbal’s dilemma in taking back his estranged wife. Here is an excerpt from the article:

“...he (Iqbal) received a letter from Sardar Begum, his second wife, who he had mentally divorced and who was still living with her parents. Sardar Begum wrote to Iqbal that she was waiting for him to take her to his home and if Iqbal rejected her, she would never marry again. She expressed her profound sorrow that a person of Iqbal’s mental calibre had judged her only on the basis of gossip and rumour. The letter was bound to make Iqbal feel guilty and he became extremely sad when he later found out that the anonymous letters regarding Sardar Begum were probably written by an advocate by the name of Nabi Bakhsh who wanted Sardar Begum to marry his own son (Rasheeda Begum, as quoted above, disagreed with it and maintained that the letters were the handiwork of Iqbal’s sister). Iqbal talked to some of his friends who knew Sardar Begum’s family and they told Iqbal that there was no truth in the allegations. Embarrassed and guilt-ridden, Iqbal wanted to bring Sardar Begum to his house but there was still an obstacle. Iqbal thought that he had divorced Sardar Begum in his mind and according to some of his friends with religious bent, once divorced, Iqbal could not marry her. She first had to marry someone else, get divorced and only then could Iqbal marry her again according to the religious concept of Halala. Confused, Iqbal sought the opinion of a Muslim cleric who told him that what Iqbal’s friends had suggested didn’t apply to Iqbal’s situation because Iqbal had not consummated his marriage with Sardar Begum. Still somewhat confused, for the satisfaction of his mind, Iqbal went thru the marriage rites again with Sardar Begum before bringing her home and so Sardar Begum, who Iqbal married twice, became his second and fourth wife. “(

This incident shows the even a scholar like Iqbal too thought that even if one becomes mentally detached with his wife, the marriage is dissolved.

Another case is all the more disturbing where the questioner says that the husband during a conversation with his mistress through SMS lied to her that he had divorced his wife. According to the mufti, the marriage had been dissolved. Here is the question and the answer:

 Question: 42465, United Kingdom of Great Britain

A friend has a mistress who is not Muslim and he has fathered an illegitimate child with her. He sent this mistress a SMS to say he has divorced his wife in a conversation in the SMS (a Muslim, married by Nikah). He hasn't said Talaq to his wife 3 times; his intention was to mislead his mistress to allow access to their child. This mistress then sent that SMS to his wife. Is Talaq done? What should he do to repent from his sins and what are Shariah based punishments that a man could face in the country whose laws are based on Shariah?

Answer: 42465, Nov 27, 2012

(Fatwa: 1217/1313/N=1433)

“(1) If your friend admits that he himself or someone else on his behalf wrote the message and sent to that non-Muslim mistress mentioned there in the question and he confessed to give three Talaqs to the wife in the message, then though your friend is liar in his acknowledgement, then too three Talaqs took place on his wife as per the rule and she became Haram for him. The same ruling shall apply when your friend attributes the message to someone else but in this case Shariah witness shall be required against him that he himself wrote the message or got it written by someone else and sent to that non-Muslim mistress.

(2) It is unlawful and forbidden in Shariah to give three Talaqs to wife at once. Hence your friend should do Taubah and Istighfar. And if he has unlawful relation with that non-Muslim mistress and they even have child, then it is purely unlawful and Haram as per the Shariah. Your friend should terminate the unlawful contacts and relations and do true and genuine Taubah and Istighfar to the Almighty Allah, otherwise he will have to bear huge loss in hereafter.

(3) Such person cannot be punished without Shariah evidence and the Shariah evidence is only attached with the Islamic Quazi. You need not worry about others, just advise him about Taubah and Istighfar if he has admitted before you regarding his unlawful relations; otherwise avoid thinking ill of others.”

From the cases and Fatwas, it is very clear that many marriages have been broken not by the husbands but by these unscrupulous Fatwas that do not comply with the principles laid down by the Quran and the mode of Talaq supported by the holy Prophet (pbuh).

Another issue on which there is a lack of unanimity among the Ulema and even the four imams is Talaq given under the influence of liquor or bhang. Fatawai Alamgiri is of the opinion that once Talaq is pronounced even if under the influence of alcohol, it is binding irrespective of the degree of intoxication. However, Ibn Malik holds that if the Talaq is given in a state of intoxication and the husband is so drunk that he cannot distinguish between right and wrong, the Talaq is void.

Imam Shafi’i was first of the opinion that Talaq in a state of drunkenness was invalid but later retracted his position and declared it valid. Similarly Imam Ibn Ahmad bin Hanbal also initially opined that Talaq under the spell of liquor was not valid but later he changed his mind and said that it was a very complicated matter and so the cases in this category should be decided on merit. The Hanafis who support Talaq under the influence of liquor give strange and illogical arguments. They say Talaq under the influence of liquor is held effective in order to punish the husband to discourage drinking. The fatwa Quazi Khan also holds that Talaq under bhang should not be held effective because bhang  is not prohibited but liquor or alcohol is prohibited in Islam so the husband should be made to suffer the consequences—the loss of his wife – for committing the offence.

However, the jurists do not give much importance to the fate of the innocent wife who would have to suffer because of the Talaq. These arguments contradict the Islamic spirit that has equal concerns for the women also in matter of Talaq.

It is also paradoxical that intoxicants are Haram in Islam and any act of religious ritual be it Namaz or fasting are not accepted in a state of drunkenness but Talaq pronounced in an inebriated state is effective.

F.B. Tyabji rightly points out that by the deplorable development of the Hanafee Law, the sinful and abominable forms of Talaq (Talaq al Bid’ah) have become the most common for, men always have moulded the law of marriage so as to be most agreeable to themselves.”

However, these difference of opinion among the four schools also do not make our modern day jurists see reason and they rule that whatever the  position or state of mind of the husband at the time of uttering three Talaqs, once the husband has uttered triple Talaq they hold it effective. From the stands of the four schools, it is clear that Talaq under drunkenness or under the spell of any intoxicant is a complicated issue and such a Talaq should not be held effective.

Though the issue of triple Talaq has been in debate for a long time in India and it is clear that triple Talaq is not in accordance with the Quranic principles and the sunnah, the courts have shown reluctance to upheld the procedure of Talaq-e-Ahsan or Talaq-Hasan due to the apprehension of criticism from the clergy. In some cases the courts have though upheld the Quranic procedure holding triple Talaq in one sitting or in a drunken state ineffective or revocable, in most of the cases it abides by the Islamic jurisprudence governed by the four schools of jurisprudence because they do not want to hurt the feelings of the Muslims as in the case of Sara bai vs Rabia bai in 1905, the Bombay High Court ruled that triple Talaq was irrevocable. This precedent was followed by the judiciary until 1978. Later the judiciary followed the same rule of triple Talaq in other cases as well showing reluctance to bring about a revolutionary change in this aspect.

However, later a remarkable effort was made by Justice Bahrul Islam, the Chief Justice of Guahati High Court to judicially redefine Talaq and held that the husband does not have unbridled power to give Talaq to his wife and that for pronouncing Talaq there must be some reason and reconciliation efforts before pronouncing it according to the principle laid down by the Quran and that unintentional Talaq in one sitting was in clear contradiction of the Shariah.

The judiciary has been pronouncing judgments on triple Talaq cases on the basis of unmodified Muslim legal traditions in the absence of an astute. Though overtime the judiciary came of age and adopted a more assertive position vis a vis triple Talaq ruling them one revocable Talaq as in the cases of Rukia Khatun vs Abdul Khalique Laskar {(1981) 1 Gau L.R. 375} or Riaz Fatima vs Md Sharif {135 (2006) DLT 205. In the case of Masroor Ahmad vs the State (NCT of Delhi) & another, the court pronounced a judgement totally in consonance with the Quran and Shariah holding that triple Talaq (Talaq al bid’ah) should be considered one revocable Talaq. It also emphasized the efforts of reconciliation before the divorce and stressed that the husband has to duly establish that he has followed the procedure laid down by the Quran.

Thus it can be seen that the Indian judiciary has come out of its colonial mindset so far as the issue of Talaq is concerned. However, till now it depends on the understanding and the will of the judges individually as there is no legislation to govern the cases of Talaq in the country. Therefore triple Talaq is neither enforced nor totally rejected by the judiciary. However, judicial activism by the apex court can break the ground for changes on this issue as many Muslim and Islamic countries have enacted laws to deal with the Talaq cases.

Under Egyptian law, triple divorce is considered one revocable Talaq. In Iraq, too the triple Talaq is considered one under the Article 37 of the Iraqi Code of Personal Status 1959. Jordanian Code of Personal Status 1976 and the Sudanese Law also hold that three is one. The same  law is in Syria, Morocco, Yemen and even in neighbourhood Pakistan where the section 7 of Muslim Family Law Ordinance holds that the traditional form of Talaq-e-bid’ah is no longer valid and it counts as one giving the couple opportunity for reconciliation within the prescribed period assigned by the Quran.

Thus it can be asked why the same law cannot be enacted in India declaring triple Talaq to be considered one revocable Talaq and requiring the husband to establish that before going for divorce, he has made all the efforts for reconciliation and followed the procedure laid down by the Quran. The fatwa books of the seventh centuries or earlier or later that hold the views in contravention of the Quran and Sunnah should not be taken into consideration any more.

A general consensus has to be reached by our Ulema and Islamic scholars on the issue of Talaq-e-Bid’ah to bring about much needed reforms in the Talaq laws in the country. A conference of the Islamic jurists and scholars should be held and a resolution should be passed and sent to the government to formulate astute on the footsteps of the Islamic countries to stop husbands from misusing their powers and ruining the lives of women due to their whimsical behaviour and ignorance of the Quranic principles.

When clear guidance is present in the Quran and Sunnah, there is no need to consult or follow the fatwa of imams that too those that go against the spirit of the Quran. Ijma and qiyas come in to play when there are no clear injunctions in the Quran and no precedent in the practices of the Prophet (pbuh). It is surprising that the jurists issuing Fatwas altogether ignore the Quran and the Sunnah. While the law can provide remedy for this evil practice, until and unless the dar ul iftas reform themselves and unless their authority is minimized in the matter of issuing judgments on the cases of divorce, much cannot be expected. As Mr AAA Fyzee says, “The proper remedy is to do away with them by statute.

Sohail Arshad is a regular columnist for New