The Shi'ah - the Divine Code of Living

8 (b) Talaq (divorce)

It is clear that the essence of marriage is the very special union which is established between man and woman, and which makes the two different individuals close companions and partners to each other. The cooperation and communion between wife and husband may be compared to a person's eyes and hands - each hand is different from the other but each complements and perfects the other.

The very nature of this act, that two personalities, who are quite unacquainted with each other, are so strongly joined and united through wedlock that it precludes any conception of a stronger union, shows the particular strength of this alliance. There can be no better words than the following verse of the Holy Quran: "Hunna libasuln lakum wa antum libasuln lahunna" (2:187), "They are your garments and you are their garments." Truly this verse expresses the subtle intimacy of the relationship of marriage.

The obvious feature of the non-temporary alliance is that the two make an agreement to remain together for life.

It may happen however that the marriage is no longer desired either on the part of one or both parties and divorce becomes necessary. The code of religion ordains that certain conditions be fulfilled according to the kind of divorce in question. There are three kinds of divorce: firstly, if divorce is desired from the side of the husband, separation is called "talaq"; secondly, it is desired from the side of the wife, she can obtain "khul"'. And lastly, if disagreement is on both sides, they can have recourse to "mubarat" to obtain separation.

Since Islam is a social religion and it has been founded on unity and oneness, its greatest objective is love and concord. The creation of disharmony in whatever form is to be avoided whenever possible. Accordingly, a large number of traditons have expressed the undesirability of "talaq" (divorce) and some of them say that among the acts made lawful by God, there is no act more undesirable than divorce.

That is why the messenger of God has made clear to man the conditions and restrictions of divorce, so that it may occur as infrequently as possible within the Muslim community.

Among the rules of divorce, the presence of two just witnesses is a necessary condition. If divorce is pronounced in the absence of two just witnesses, it will be considered null and void. This condition is the best means of doing away with mutual hatred, because two 'just' persons will consider it their duty to bring about peace and friendship between the couple through admonition and preaching before carrying out the divorce.

Of course, it will not be successful on every occasion but the number of divorces can be minimized by the intervention of these two persons who are respected within their community for their good sense and justice.

It is regretful to note that our Sunni brothers, do not accept this argument. They did not consider the presence of two just witnesses necessary for divorce. Consequently the number of divorces is growing so great among them that it causes inconvenience to a great number of people.

Unfortunately, many of us, as well as our Sunni brothers, are unaware of the hidden wisdom contained in the religious code. We pray that Muslims may whole-heartedly comply with the divine laws so that the bitterness that has been created in their private lives, and the confusion that has spread in their social affairs, may at least be reduced.

The important condition of divorce is that the one who divorces must not be under compulsion, or in a state of anger, or any other state of mind which diminishes his ability to think clearly and make decisions in a reasonable manner. (Moreover, the divorce should have completed her monthly period of menstruation and not have had sexual intercourse in the 'new month'. This condition inevitably helps to delay and eventually lessen the number of divorces).

In the Ja'fari (Shi'a) 'fiqh', pronouncement of divorce three times in one sitting is counted as only one divorce. Thus if a man pronounces divorce three times in one sitting, his wife does not become forbidden for him forever. They can be united again without any condition.

If the man then again divorces his wife, returns a second time to the woman and then divorces her a third time, the woman shall become forbidden after this third divorce. After that, she cannot become lawful for him unless she marries (and subsequently divorces) another man. If this thing happens, nine times, he will be unlawful for her former husband forever.

Most of the 'ulama' of the Sunni community stipulate that if a husband says three times to his wife that he has divorced her, it will be considered as an irrevocable talaq; resumption of conjugal relations is only possible if the wife marries and subsequently divorces another man, though it is clearly stated in certain of their accepted hadith that divorce pronounced three times in one sitting is to be counted as one divorce.

It is narrated in al-Bukhari, on the authority of Ibn 'Abbas, that "during the time of the Prophet, and during the caliphate of Abu Bakr, and for two years during the caliphate of 'Umar, the 'three divorces' meant only one divorce, but Hadrat 'Umar said: that although people were entitled to delay divorce, they did not wish to wait, and so, seeing no obstacle in the way, we granted permission for them to carry it out" (that is, he recognized the validity of irrevocable divorce after pronouncing divorce three times in one sitting).

The Holy Quran is itself unambigious in this matter: "Divorce (shall be lawful) only twice, then (you should) either keep her in fairness or send her away with kindness." (2:229) After this, God, the Almighty, says: "So if he divorces her (for a third time), then she shall not be lawful to him until she weds another husband." (2:230) We have tried to give a brief account of the causes of divorce; if more details are required, one may refer to the books of Islamic jurisprudence..

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There are also other causes of separation such as defects and diseases in either party. If the man is sexually impotent or becomes insane, the woman has the right to divorce him. Certain diseases of a woman's sexual organs entitle the man to divorce his wife. Zihar and illa' (kinds of oaths of rejection of the woman on the part of the man, common amongst the Arabs before the coming of Islam) may also be a cause of separation.

The various kinds of "iddah" and other allied matters are dealt with comprehensively in more specialized works of fiqh. Suffice it to say that after the death of the husband, it is compulsory for the wife to observe "iddah" even if she is "ya'isah" (past the menopause), or is a minor, or has not had coition with her husband. In divorce, "iddah" is compulsory in cases other than the three mentioned above. In unlawful coition (adultery), there is no 'iddah.

The necessary waiting period after the death of the husband is four months and ten days, but, in case the woman is pregnant, she must wait until delivery. This, of course, may be less or more than the four months and ten days. The duration of the "iddah" after the divorce is three months, and for the pregnant woman, it is till delivery and for the kaniz, or slave girl, it is half the period of the free woman.

If the divorce has not accrued twice before and there is no 'khul', the husband can resume conjugal relations at any time during the period of 'iddah. The man no longer has the right to return to the wife unless the two parties are willing to make a new act of marriage (and only then under certain conditions).

It is not considered necessary by the Shi'a that two witnesses be present for the resumption of marriage (as it is in the case of divorce), but it is desirable; it is not necessary moreover to recite anything specific. Such words and signs as serve the purpose are sufficient.

As we have already made clear, the relationship of marriage cannot be broken unless one or both partners expresses dislike for the other; if the dislike is from the side of the husband, he has the right to talaq, through which he can, if he desires, divorce his wife; and if the wife detests him, she can, on payment of some money, demanded by the husband, (it may be equal to or more than the dower) and after reciting the prescribed words (sighah), be released from the bond of wedlock.

This latter is called khul' and it is only valid if all conditions of divorce are fulfilled and there is very strong ill-feelings on the part of the woman for the husband. This is in accordance with what the Holy Qur'an says:

"And if you fear that they shall not (be able) to keep (themselves) within the limits (fixed) by God, there shall be no sin on either of them about what she gives up to get herself free (from the wedlock). These are the limits ordained by God. Beware! Exceed them not." (2:229)

The commentary of the ahlu 'l-bayt about this verse is that it concerns the wife who says to her husband, "I will not believe in your swearing; I will not respect the divine code concerning marriage conduct as far as you are concerned. I will not allow coition; and will bring undesirable people into your house." This obviously shows extreme hatred on the part of the wife and there would then appear to be no possibility of harmonious relations between her and her husband.

If, however, the feeling of dislike is equally strong on both sides, any divorce which takes place is called a "mubarat" divorce. This kind of divorce is likewise only valid if all the conditions of talaq (divorce) are fulfilled, but in this case, the husband has no right to claim more than the dower money that he has paid to the wife. In khul' and 'mubarat', the divorces is irrevocable.

After it, the husband cannot assume conjugal relations. If however the woman takes back the money she gave the husband at the time of 'khal", they may resume the conjugal alliance as long as the period of "iddah" has not come to an end.

There are also other causes of prohibition (for instance, if the husband calls his wife 'mother' or 'sister' or likens her to either, the wife becomes prohibited to him till he performs an act of atonement. This is called zihar.

These are explained in the relevant books. Such incidents seldom take place today as they were particular to the Arabs of pre-Islamic days.