"The Qur'anic Concept of Divorce"
Shehzad Saleem based on Javed Ahmad
When a man
and a woman marry each other, it is their utmost wish to remain in this
relation of wedlock forever. They are desirous of the fact that the
change in times not change their commitment to each other and only death
separate them in this world. But then, sometimes there does arise a
situation when part they must. Differences become so pronounced that it
becomes necessary to sever this relationship. If such circumstances do
befall that a husband and wife must separate permanently, Islam lays
down a specific procedure for this separation. In Islamic terminology
this dissolution of marriage is called Talaq (divorce). It says that
both a man and a woman have an equal right to it. The only difference is
that a man divorces a woman while a woman demands a divorce from her
husband. In the following paragraphs, we shall attempt to explain the
Qur'anic concept of divorce.
If a husband has decided to divorce his wife, he should first wait until
she has completed her menstrual cycle and then desisting from any
further carnal relationship, he should utter the divorce sentence just
once. The wife, after she has been divorced in this way, must stay in
her husband's house for a period of three menstrual cycles. This period
is called Iddat. If a woman does not have menstrual cycles owing to age,
disease or any other reason, and still there is a chance of pregnancy,
then she must wait for three months. For a pregnant woman this period is
up to the birth of the child, while for a newly married couple who have
had no contact, divorce does not entail any period of Iddat for the
wife. According to the Qur'an, there are two basic reasons for this
waiting period: i) to ascertain whether a wife is pregnant or not so
that the lineage of the child does not remain a matter of doubt, and ii)
to give the husband and other family members a chance to rectify the
situation, for matters in which emotions and feelings run high,
sometimes only time is needed for recovery.
During this Iddat period:
husband cannot turn his wife out from the house except if she is guilty
of adultery, nor should she leave the house herself.
(b) The wife, if she is pregnant, must not hide her pregnancy.
(c) The husband should continue to provide for her.
(d) A husband, if he changes his mind, can revoke his decision. The only
thing required, according to the Qur'an, is that he should call in two
persons to testify to his decision1.
this period of Iddat, a man is still firm in his stance, his wife shall
be considered as separated permanently. She is now a free woman and if
she wishes to marry some other person, she has all the right to do so
and must not be inhibited in any way. If circumstances change, she can
even remarry her former husband. Furthermore, the Qur'an stresses that
on this occasion of parting it is not at all lawful for a husband to
take back any property or asset gifted to her(2). This, it must be kept
in consideration, does not pertain to mehr (dower) only, but to every
type of gift given to the wife. Not only should a husband not take back
these gifts, he should, in fact, give her something on this occasion of
separation. Even if her mehr has not been fixed, it is better for him to
give her something. If the mehr has been fixed but the divorce occurs
before the husband and wife have had contact, he must return half the
money, unless the wife even forgoes this. In this case also, though it
is better that he should give her the whole money.
However, in case the husband revokes his decision during the Iddat
period, there is no need for re-marriage. The two shall be considered as
husband and wife once again. If after annulment of this divorce, due to
some reason, the untoward situation arises a second time that the
husband intends to divorce his wife, the Qur'an says that the husband
can exercise his right of divorce for the second time as well. He should
pronounce just one talaaq sentence to repudiate his wife. Again, the
post-divorce period shall be observed in the manner just described. Once
again, if the husband wishes, he has the chance to revise his decision
during this period, in which case the divorce shall be considered null
and void and the two shall once again become husband and wife. If,
unfortunately, for the third time, the situation arises that divorce
becomes inevitable, the Qur'an says that a husband can exercise his
right for the third time as well and pronounce the divorce sentence.
However, this time the wife she shall be permanently separated from him.
After divorcing his wife for the third time, he cannot re-marry her now,
unless and until, the wife marries some other person and owing to some
reason gets divorced from him -- not under a planned strategy, but on
account of naturally arisen circumstances. This last measure, actually,
is meant to prevent this affair from becoming mere childplay.
In the words of the Qur'an:
divorce [in which the husband can revoke his decision in the Iddat
period] is permitted twice only. (2:229)
evident from these details that the Qur'an only prescribes one divorce
sentence and stresses that a husband has the right to divorce her wife
three times in his life. It does not at all approve the utterance of
three divorce sentences in one go. Consequently, it is clear from these
details that the two prevailing procedures of talaq ie (1) pronouncing
three consecutive talaq sentences in one instance, and (2) pronouncing
each of the three sentences in three months are not at all prescribed by
the Qur'an. When the Prophet (sws) came to know that a certain person
had divorced his wife by pronouncing three divorce sentences one after
the other, he stood up in anger and said:
presence, such playful attitude has been adopted with the Book of Allah.
as mentioned earlier, has an equal right to divorce. The only difference
is that in such a situation she will demand a divorce from her husband.
If the husband refuses, she has all the right to take the matter to the
court. The matter will then be decided by the ruling of the court. A
common misconception in this regard is that she must give some wealth to
her husband on this occasion of separation. This, we are afraid, has no
basis in the Qur'an; on the contrary, the Qur'an says that it is not at
all permissible for the husband to demand anything from his wife on this
occasion. However, if a husband has gifted a lot of wealth and property
to her wife and is afraid that in divorcing her he would lose all his
riches, the Qur'an says that she can forgo some or all of her share and
return it to her husband to end the whole affair. It is clear that this
is only an exception and not a general principle as is generally held
and practiced. It is allowed when only wealth is the husband's reason
for not divorcing his wife.
This is the shariah as far as the concept of divorce is concerned.
However, as does happen with prescribed laws and procedures, situations
arise in which a person is guilty of breaching the law and deviating
from the right course. Human nature is prone to extreme emotional
conditions in which it deviates from the path set forth by the Almighty.
These deviations, it is extremely evident, are not part of the shariah;
they fall into breach of law category and it is up to the legislature of
a country to enact laws about such departures. At times, such cases are
even left to the discretion of the judge and at other times the judge
himself is bound by the legislation done in this regard by the
In case of divorce, keeping in view various precedents, this deviation
is generally of two types:
i) A husband divorces his wife during her menstrual period, or divorces
her after he has had contact with her in her period of purity.
ii) A husband divorces his wife by pronouncing the divorce sentence
As far as the first deviation is concerned, an Islamic government can
ask the husband to revoke his decision and carry it out in the proper
manner at the proper time. The Prophet (sws) in his own times dealt with
the case of Abdullah bin Umar (rta) in a similar manner.
In case of the second deviation, a deliberation on the injunctions of
divorce, particularly on their linguistic aspects, reveals that there
are three possible solutions:
(a) The husband can be called to court and asked to testify to the
nature of these pronouncements: if he testifies that he had pronounced
the three sentences in anger to only strongly assert his decision or
that he had thought that pronouncing three sentences was the correct
procedure of divorce, the court, if satisfied by his statement, can
re-unite the husband and wife. In this case, it shall be clearly spelt
out to the husband that he now has exercised one of his three chances to
repudiate his wife. If on the other hand, a person testifies that he had
consciously uttered the three sentences knowing that he was exercising
his three rights in one time, the wife, of course, shall be divorced
from him. The case of Rukaana Bin Abdi Yazeed (rta) was decided in a
similar manner by the Prophet (sws).
(b) A second possible solution in this regard is that a state, while
observing that people have adopted a carefree attitude in following this
procedure, legislates that three divorce sentences shall be considered
as three whether pronounced in anger or in a normal emotional state. A
precedent of this solution can be found in the times of the Caliph 'Umar
(rta). He himself, in the capacity of a ruler in consultation with the
members of the shura, upon seeing that people had adopted a very
careless attitude in this regard, as a punishment, promulgated three
divorce sentences as final.
(c) A third possible solution in this regard is that the state while
observing the fact that people are mostly ignorant of the correct
procedure and in their ignorance think that the correct way of divorce
is to pronounce the sentence three times, legislates that the three
pronouncements shall be considered as one.
Any of these three ways can be adopted keeping in view the welfare of
the Muslims. However, in adopting the second or third solutions, it is
necessary that a legislation has been done in their favour, but as far
as adopting the first solution is concerned, no prior legislation is
needed and the matter can be left to the discretion of the judge.
After explaining the Qur'anic concept of divorce and various aspects of
legislation in case of any deviation from it, an important issue which
must be elaborated upon before we end this article is the fate of the
children after divorce. In this regard, it should remain clear that this
is basically a matter which has been left to the discretion of the
court. The basic consideration in this matter is the welfare of the
children. The court can decide in favour of the father or mother,
depending upon who among them is more beneficial to the children.
1. This testimony, as is evident from the Qur'an, is not a legal
requirement. It is only a sound piece of advice for the welfare of the
2. The only exception to this rule is when the wife is guilty of
committing adultery, in which case a husband can take back all the
wealth and property gifted to her.
Shehzad Saleem based on Javed Ahmad Ghamidi's interpretation