Talaaq and Khulaa (Divorce)

By: Khursheed Alam Dawood Qasmi

Email: qasmikhursheed@yahoo.co.in

Talaaq is an Arabic word. Linguistically it means “Divorce”. So, wherever, I will mention here the word Talaaq that will mean the same one. As far as the word Khulaa is concerned, I’ll define it at the end of the topic, In-Shaa-Allah.

 

As Nikaah (Wedlock/It’s a contract deliberately aimed at owing the right to enjoyment. Ownership of enjoyment refers to a man’s right with a woman to sex, touching and kissing) is the first step of married life, the Talaaq is the last stage of marital life. Following the divorce, there is no any kind of marital relation between the very wife and the very husband. According to a narration of the prophet Muhammad (Sallallahu Aleihi Wa Sallam), the most despised permitted action in the sight of the Exalted Allah is the divorce. The Hadeeth is:

عن محارب قال، قال رسول الله ــ صلى الله عليه وسلم ــ ‘‘ما أحل الله شيئا أبغض إليه من الطلاق’’۔ (سنن أبي داؤد)

Translation: It is narrated on the authority of Muhaarib that he said, the Messenger of Allah said: “Allah didn’t make anything Halaal (permitted) that is more despised in His sight than divorce.” (Abu Dawood)

It is natural that when two people live together, there will be differences of views and opinions and sometimes it will take place in the shape of conflict. What about the husband and wife who stay always together? There also maybe conflict, difference, disparity, fighting, quarrel, discord and dispute of views and opinions on certain topics. If such things take place between wife and husband, in this case, it is the best that they should reconcile on the issue among them. If they aren’t able to do that, they should meet any elderly person of the family to solve the issue. If the elderly person is also unable to solve the matter, they must meet any elder one of the community. If he can’t solve it, they should meet anyone else who is more powerful than them to solve the matter. By this way, the conflict between the wife and husband should be solved.

But, if they, despite making all efforts, can’t reconcile and they feel that by remaining together, the laws and limits of Allah, the Almighty will be transgressed, then he or she should take step for divorce or Khulla.

It must be noted here that the Talaaq and Khulaa must be on the base of a religious affair. If one of the couple is sure, I’m repeating the point, that by remaining together the laws and limits of Allah, the Almighty will be transgressed, then he or she should take the step towards Talaaq or Khulaa.

Let me cite some examples of the transgressing the laws and limits of the Almighty Allah. If one of the couple is habitual of Zinaa (adultery) and the second one is forbidding him/her from this habit, but the one is not ready to do so. Or, if one of the couple is in the habit of drinking the alcohol, beer and wine, and the second one is forbidding him/her from this bad habit, but the one is not ready to do so. These are the examples of the transgressing the law and limit of the Almighty Allah. So, in this case, the one is allowed to take step for Talaaq and Khulaa. Similarly, there are many other examples, people can know and understand easily that where one is transgressing the law and limit of the Exalted Allah.

Following this preface and introduction of the topic, let’s recite a verse of the glorious Quran with translation and commentary that is related to Two Rajee divorces.

Allah, the Exalted said in the glorious Quraan:

 الطَّلاَقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ وَلاَ يَحِلُّ لَكُمْ أَن تَأْخُذُواْ مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلاَّ أَن يَخَافَا أَلاَّ يُقِيمَا حُدُودَ اللّهِ فَإِنْ خِفْتُمْ أَلاَّ يُقِيمَا حُدُودَ اللّهِ فَلاَ جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللّهِ فَلاَ تَعْتَدُوهَا وَمَن يَتَعَدَّ حُدُودَ اللّهِ فَأُوْلَئِكَ هُمُ الظَّالِمُونَ۔ (سورۃ البقرۃ:۲۲۹)

 Translation: Divorce is twice; then either to retain in all fairness, or to release nicely. It is not lawful for you to take back anything from what you have given them, unless both apprehend that they would not be able to maintain the limits set by Allah. Now, if you apprehend that they would not maintain the limits set by Allah, then, there is no sin on them in what she gives up to secure her release. These are the limits set by Allah. Therefore, do not exceed them. Whosoever exceeds the limits set by Allah, then, those are the transgressors. (Al-Baqarah: 02, Verse: 229)

 Commentary: “The best way to divorce a woman, if the need to do so is pressing, is to pronounce one unambiguous divorce during a period of Tuhur (it means when a woman is not menstruating), in which no sexual contact was made. This will be considered a Rajee divorce if the marriage was consummated (otherwise, it will be Baain). This will, however, become Baain once the Iddat (Period of three menstrual courses or three months) has expired. A Baain divorce would mean that he will lose the right to take her back into his wedlock without her consent. The same will apply if he pronounced another clear divorce before the expiry of this Iddah.

 If he issues a third divorce, it will now be termed Muhgallaza, meaning that he cannot ever wed her again unless she is married to another person and consummates the marriage, whereafter, he dies or divorces her, and she completes her Iddah. If this subsequent marriage is not consummate, she can still not be married to the previous husband, as is clearly stated in the Ahaadeeth. It is Makrooh Tahreemi (close to Haraam) for an agreement to be reached between the couple to marry, consummated the marriage and then be divorced. Messenger of Allah, Muhammad (Sallahu Aleihi Wa Sallam) has cursed such people. The Hadeeth is:

 عن بن عباس قال ‘‘لعن رسول الله ــ صلى الله عليه وسلم ــ المحلل والمحلل له۔’’ (سنن ابن ماجۃ)

 Following the above paragraphs in the light of the glorious Quraan, now I would like to explain the Talaaq in the light of the Fiqh (Islamic Jurisprudence) in the following paragraphs.

 If one wants to divorce, he must follow the religious method in this regard as well. There are two best methods of giving Talaaq:

1.      The first one is called “Ahsanut Talaaq”.

2.      The second one is called “Talaaqus Sunnah”.

 Definition of Ahsanut Talaaq:

Linguistically it means best method of Talaaq. In term, it means to divorce the wife once whilst she is in a state of purity in which the husband didn’t have sex with her. He then doesn’t have sex with her until her Iddah finishes.

 Method of Ahsanut Talaaq:

When husband needs to divorce his wife, he should say: “I divorce you or I give you Talaaq”, during the period of Tuhur (when a woman is not in the case of mensturing) and in that Tuhur no sexual contact was made. Then the husband should not meet her, until three menstrual courses or its periods have passed. Then relation won’t remain longer between them and the marriage has broken at that point of time.

 Definition of Talaaqus Sunnah:

Linguistically it is the method of Talaaq that the prophet Muhammad (Sallallahu Aleihi Wa Sallam) taught his companions. In the religious term, it means to divorce thrice the wife whom he had sex with. The three pronouncements will be in three purity periods without sex.

 Method of Talaaqus Sunnah:

In this method, husband should say once: “I divorce you or I give you Talaaq”, during the period of Tuhur and in that Tuhur no sexual contact was made. It will be the first divorce. Then after the passing the next menstrual course or one month, he should repeat the same sentence in the period of Tuhur in which the sexual contact was not made. It will be regarded the second divorce. Then once again the husband should repeat the same sentence following passing the second menstrual period or the second month in the period of Tuhur in which the sexual contact was not made. This one will be the third Talaaq. Then relation won’t remain longer between them and the marriage has broken at that point of time.

Except these two methods, if a person divorces in any method, the Talaaq will take place, but the other methods are the worst one. So, when one needs to divorce, he should follow the one of the two above mentioned methods. My Allah protect our family and community members from this cursed action!

 Khulaa:

The word Khulaa is an Arabic word. Literally it means the paying of wife to the husband for her divorce. In Shariah it means “The ransoming of wife with money to free herself from her husband. If she says: “I cast you off (Khulaa) for such-and-such amount” and he accepts, a Baain divorce takes place and she is liable to pay the mentioned amount.” This is called Khulaa.

Although the right of divorce rests with the man, a woman has not been deprived of securing a divorce should the situation warrant it. This may be achieved through the agency of Khulaa, whereby she offers to pay the husband a stipulated sum in exchange of a divorce. If he agrees, payment will be due from her and a Baain Talaaq will come into effect. It doesn’t mean that she is able to divorce herself from him, nor can she do so in a court without a reason that the Shariah regards as a valid reason. In certain extreme circumstances, it is possible that a Muslim judge or ruler revoke a marriage upon the woman’s plea.

Some Necessary Terms:

In this article, I used some Arabic terms related to the topic. At the end of the article, I feel necessary to mention the definitions of those Arabic terms separately, so that it will easy for readers to understand.

Tuhur: It is an Arabic word that means purity. In Shariah, when a woman is not in the state of menstruating that period is called Tuhur.

Talaaq Rajee: It’s also an Arabic word. Linguistically it means revocable. If a husband gives only one Talaaq and with the period of 4o days, he reconciles the matter and wants to take her back, he can take her back without any process. In this case only husband needs to say: “I take my wife back.”

Talaaq Baain: It’s an Arabic word too. It means irrevocable. The method mentioned above as Ahsanut Talaaq and Talaaqus Sunnah, in these cases, the Talaaq that takes place is called “Talaaq Baain”. This means that the husband has lost the right to take her back in his wedlock without her consent. Following wife’s consent, the new Nikaah is needed as well.

Talaaq Mughallazah: It means final divorce. If the husband issues Three Talaaqs at a time, it will now be termed as Mughallazah. It means that he cannot ever wed her again unless she is married to someone and consummated the marriage, whereafter, he dies or divorces her, and she completes her Iddah. Now the first husband can marry with her with her consent.

Iddah: It is an Arabic word that means period. In Shariah, if a man divorces his wife then she is not allowed to marry another man until she has spent three complete menstruations or three month (if she is small age or old age and there is not expectation of menstruations.) or until she gives birth (if she is pregnant) remaining in a house, where the Gheir Mahram (strange-man) can’t see her, this period is called Iddah.

Conclusion:

Our beloved prophet Muhammad (saws) says: “The most despised allowed and permitted action in the sight of Allah is divorce”, as I mentioned the Hadeeth in the beginning of the article. We must try to avoid from this evil action. It doesn’t affect only the life of the couple, but in the most cases, it destroys and ruins the life of the children. The whole family members have to spend the nights sleeplessly. Let’s make Duaa: May the Almighty Allah protect our family and community and us from this cursed action. Here I conclude my talk.

 

(The author is a graduate of Darul Uloom, Deoband, India and at present teacher of Moon Rays Trust School, Zambia, S. Africa. He can be reached at qasmikhursheed@yahoo.co.in)