Changing the rules of divorce
Source: Al-Nass Wal-Ijtihad, Text and Interpretation
By: Allama Abdul Husayn Sharafuddin al-Musawi
The three-divorce, after which a divorced wife cannot return to her husband except after getting married to another one and then being divorced, is called the third divorce which is preceded by two returns after two divorces; that is to say: a husband divorces his wife for the first time and then he gets her back, then he divorces her for the second time and gets her back again and then he divorces her for the third time. Now she becomes prohibited for him as a wife unless she gets married to another man and then this man divorces her.
This is the three-divorce after which a wife becomes prohibited for her husband until she marries another man and then the second husband divorces her. Allah has said: “Divorce may be twice, then keep (them) in good fellowship or let (them) go with kindness… So if he divorces her (the third time) she shall not be lawful to him afterwards until she marries another husband; then if he divorces her there is no blame on them both if they return to each other (by marriage)” (Qur’an 2:229-230).
Here is the interpretation of these verses by one of the great scholars of the Arabic language. Az-Zamakhshari says in his Tafseer al-Kashshaf: “Divorce may be twice means to be repeated twice and not to be pronounced all at once like His saying: “Then turn back the eye twice”(Qur’an 67:4) which means a time after another.
…It is also said that it means the twice revocable divorce - one time after the other - because there is no return after the third divorce…if he (the husband) divorces her (the wife) for the second time as Allah has said (Divorce may be twice)…or if he divorces her for the third time after the two divorces, she will not be his legal wife after that unless she will get married to another man and then this man will divorces her…
This is the meaning of the verse that comes to mind straightway and such all the interpreters have interpreted this verse. The saying of Allah “So if he divorces her (the third time) she shall not be lawful to him afterwards” cannot be applied to the saying of a husband to his wife: “You are divorced, you are divorced, you are divorced in one occasion” unless he has divorced her twice before that and after each one he has got her back.
But Umar, during his caliphate, saw that men had got used to divorce their wives the third divorce by using one certain diction 97 and so he forced them to do what they had bound themselves with as a kind of punishment and discipline. There are many true traditions that have ascribed this doing to Umar.
Tawoos mentioned that Abu as-Sahba’ had said to Ibn Abbas: “Has (uttering the form of divorce three times in one occasion) not been considered as one divorce during the time of the Prophet (S) and the time of Abu Bakr?” Ibn Abbas said: “Yes, it has, but at the reign of Umar, people got used to this kind of divorce and he (Umar) made it permissible to them?” 98
Muslim mentioned another tradition that Ibn Abbas had said: “During the time of the Prophet (S), the time of Abu Bakr and the first two years of the reign of Umar the divorce of three-repeated-statement (in one occasion) was considered as one divorce. Then Umar said: “People have hastened in a matter which had deliberateness to them. Would that we permit it to them!” And then he permitted it to them.” 99
Al-Hakim has mentioned this tradition in his Mustadrak and said that it was true according to the conditions of the two sheikhs; al-Bukhari and Muslim. Ath-Thahabi has also mentioned it in his book Talkhees al-Mustadrak and said that it was true according to al-Bukhari and Muslim. 100
Ahmad bin Hanbal has mentioned this tradition of Ibn Abbas in his Musnad 101 and many other scholars of Hadith have mentioned it in their books. 102
Sheikh Rasheed Redha has mentioned this tradition in al-Manar Magazine 103 from Abu Dawood, an-Nassa’iy, al-Hakim and al-Bayhaqi and then he said: “From among the judgments of the Prophet (S) was the tradition that al-Bayhaqi had mentioned from Ibn Abbas.104 Ibn Abbas said: “Rukana has divorced his wife three times in one occasion. He became too sad for her. The Prophet (S) asked him: “How did you divorce her?” He said: “Three times.” The Prophet (S) asked him: “In one occasion?” He said: “Yes.” The Prophet (S) said: “It is one divorce. You can get her back if you like.”
An-Nassa’iy mentioned a tradition narrated by Makhrama bin Bukayr from his father that Mahmood bin Labeed had said: “Once the Prophet (S) was told that a man had divorced his wife three times together in one occasion. The Prophet (S) became very angry. He got up and said: “Is it played with the Book of Allah while I am still among you?” A man said: “O Messenger of Allah, should we kill him?” 105 Besides this there are many other true traditions and therefore the ulama of Islam and the reliable scholars have admitted this fact.
Among them is Professor Khalid Muhammad Khalid who has said in his book (Democracy): “Umar bin al-Khattab ignored the holy religious texts of the Qur'an and the Sunna when benefits required him to do that. As the Qur'an had determined a share of zakat to be paid to those, whose hearts were reconciled to Islam by these gifts, the Prophet (S) and Abu Bakr used to do that but when Umar became the caliph, he said: “We do not pay anything for faith in Islam.”
And as the Prophet (S) and Abu Bakr had permitted selling bondwomen, Umar prohibited it.
And as the three-divorce, which took place in one occasion, was considered as one divorce according to the Sunna and the consensus, Umar came to ignore the Sunna and to destroy the consensus.” 106
Dr. ad-Dawaleebi said in his book Usool al-Fiqh: 107 “Among the verdicts that Umar (may Allah be pleased with him) had changed according to the base of “the change of the verdicts owing to the change of time” was permitting the third divorce if it took place in one occasion whereas at the time of the Prophet (S), the time of Abu Bakr and some time of Umar’s caliphate if the three divorces took place (or were said together) in one occasion, they were considered as one divorce as proved by the true tradition of Ibn Abbas when Umar had said: “People have hastened in a matter which had deliberateness to them. Would that we permit it to them!” And then he permitted it to them.”
Dr. ad-Dawaleebi added: “Ibn al-Jawziyya said: “But Ameerul Mo’mineen Umar (may Allah be pleased with him) saw that people began to make little of the matter of divorce and that they did it with one statement and in one occasion, he thought that the benefit required to punish them by executing such divorce that when they knew of that they would refrain from divorcing their wives.
Umar saw that this had a benefit in its own time and he thought that what had been during the time of the Prophet (S), Abu Bakr and some time of his rule was the most suitable for people because they feared Allah and refrained from divorcing their wives…this was one example on “the change of the verdicts owing to the change of time”. 108 The companions perceived the good policy of Umar in disciplining his citizens in this concern and so they agreed with him on that and they gave such a fatwa to whoever asked them about such a matter. 109
But Ibn al-Qayyim himself came and gave his opinion concerning his own time. He wanted to go back to the verdicts that were at the time of the Prophet (S) because time had changed too and the three-divorce were executed with one word and this had led to permit the marriage that had been impermissible at the age of the companions. 110 He said: “If punishment led to corruption more than the corruption of the doing punished for, then giving up this punishment would be more beloved to Allah and His Messenger.” 111
He added: “Ibn Taymiyya said: “If Umar (may Allah be pleased with him) saw that the Muslims had misused the permissibility of the return of a divorcee to her previous husband, he would go back to the verdicts that had been at the time of the Prophet (S).” The valuable notices of Ibn Taymiya have led the legal courts in Egypt to the laws that had been at the time of the Prophet (S) owing to the base of “the change of times”. 112
97. Either to repeat this statement “You are divorced” three times in one occasion or to say “you are divorced thirdly”.
98. Sahih of Muslim, vol.1 p.575, Sunan of al-Bayhaqi, vol.7 p.336, Sunan of Abu Dawood.
99. Sahih of Muslim, vol.1 chap. Divorce.
100. Al-Mustadrak and Talkhees al-Mustadrak, vol.2 p.169. These two books are printed together and the numbers of their pages are the same.
101. Musnad of Ahmad, vol.1, p.314.
102. Al-Bayhaqi in his Sunan, vol.7 p.336, al-Qurtubi in his Tafseer, vol.3. p.130.
103. Vol.4 p.210.
104. Seera of Ibn Ishaq, vol.2 p.191.
105. Qassim Ameen al-Misri has mentioned this tradition in his book Tahreer al-Mar’a (liberating woman) p.172, from an-Nassa’iy, al-Qurtubi and az-Zayla’iy narrated by Ibn Abbas.
106. Democracy, p.150.
108. Glory be to Allah! If the mujtahids had had the right to change the verdicts, like this fatwa, according to the change of time even in that short time between the rule of Abu Bakr and Umar, then the verdicts and the texts of the Book and the Sunna would have vanished. Woe! How dangerous it will be if the mujtahids follow such a rule, which Allah has never revealed!
109. Had they had any proof on that?!
110. Time had no change and the change of time did not require changing the legal verdicts determined by the Book and the Sunna but Ibn al-Qayyim did what he thought that it was the verdict of Allah.
111. Glory be to Allah! What is this playing with the Shari’ah of Allah?!
112. No! But owing to the verdicts of the Book and the Sunna!!