By Ghulam Ghaus Siddiqi
There are two questions in this treatise.
The first question is; Is it allowed to give three divorces at one go or not?
According to Imam Abu Hanifa and Imam Malik, this is haram (forbidden) and bidat (innovative). A narration of Imam Ahmad also supports this opinion. It is also quoted that the holy companions like Hadrat Umar Faruq, Hadrat Ali, Hadrat Ibn Masuood, hadrat Ibn Abbas and Hadrat Ibn Umar (may Allah be pleased with all of them) also adopted the same view.
According to Imam Shaafi, it is allowed to pronounce divorce this way. Other narration of Imam Ahmad also supports it. The same is also narrated by Abu Thaur, Daud, Hasan Bin Ali and Abdur Rahman.
The Hanafis base their opinion on the narration of Mahmud bin Labeed which has been recorded by Nasaai.
Mahmud bin Labeed says: “The Messenger of Allah (peace and blessings of Allah be upon him) was told about a man who had given all the three divorces to his wife. He stood up angrily and said: Is the Book of Allah being toyed with, while I am still among you? Then a man stood up and said: ‘O Messenger of Allah, shall I kill him?” (Sunan an-Nasa’i: Book 27, Hadith 13)
The Ruling of Occurrence of Three divorces Pronounced Together
The second important question deals with the ruling of occurrence of three divorces, that is, when a person pronounces three divorces to his wife with one statement or at one go, do all the three divorces occur or not? There are three positions on this question:
- The first is the position of all the four great Imams, the vast majority of the scholars from the Salaf and the khalaf. According to them, all three divorces will take place and the woman will become mughallazah (permanently irrevocably divorced). She will not be lawful for her ex-husband thereafter until she marries another husband. This was narrated from Ibn Abbas, Abu Hurayrah, Ibn Umar, Abd Allah ibn Amr, Ibn Masud and Anas. It is also the opinion of Majority of the people of knowledge from among the companions, Tabi’in and Tabe-Tabi’in and Imams etc.
- Second, if a person gives three divorces to his wife at one go or with one statement, not a single divorce will take place thereby. This is the position of the Ja’fari Shiah, as stated by al-Hilli ala-Shi’i in Shara’i al-Islam (2:57) and al-Nawawi also related it from Hajjaj bin Artah, Muhammad bin Ishaq and Ibn Muqatil.
- The third is the position of some people of Zahir (A school at thought related to Dawud Zahir), Shaykh Ibn Taymiyyah, Ibn Qayyim and Akramah. According to them, if a person gives three divorces to his wife at one go or with one statement, only one revocable divorce will take place thereby. Now-a-days, the Ghair Muqalledin also insist on holding this position.
However, one thing is common among all the aforementioned three groups that when three divorces are uttered in three different states of purity, all the three divorces will take place thereafter. All these groups unanimously agree that such divorced woman will be permanently irrevocable. Even the people of Zahir and Rawafidh also hold that the pronouncement of three divorces in the three different states of purity will make the woman as absolutely irrevocable.
The Proofs of the Jamhoor on Three Divorces occurring together
(Note: The term ‘Jamhoor’ refers to the Vast Majority of Jurists of the three noblest eras of Islam; Sahaabah, Taabieen and Tab-e-Taabieen)
As per the Jamhoor, they quote many hadiths that prove the occurrence of three divorces, even if a person utters them at one go or with one statement. Some of them are as follows:
- It is narrated by Sha’bi in Sunan Nasa’I that Fatimah bint Qais said: “I came to the Prophet and said: ‘I am the daughter of Ali Khalid and my husband, so and so, sent word to me divorcing me. I asked his family for provision (Nafaqah) and shelter but they refused.’ They said: ‘O Messenger of Allah, he sent word to her divorcing her thrice.'” She said: “The Messenger of Allah said: “The provision and shelter will be given to the woman only when her husband has the right of taking her back” (Sunan Nasa’i, Book 27, Hadith 15)
It is clear from this that the prophet (peace and blessings of Allah be upon him) did not give the husband the right of returning to his ex-wife, after the three divorces are pronounced.
- Suwaid Ibn Ghaflah narrates in “Baihqi” and in “Tibraani” that Imam Hasan Ibn Ali (radi Allahu anhum) gave three divorces at once to his wife Ayesha Khsh`amyah. He was later informed that she cried a lot in his separation. When he heard this, he also cried and said: “I would have returned to her if I had not heard from my father that if a person gives three divorces to his wife separately or all at once, then that woman is not lawful for him without Halalah”. (Sunan Kubra Lil Baihqi, Vol. 7, pg. 339)
- Hadhrat `Aisha narrated: “A man divorced his wife thrice, then she married another man who also divorced her. The Prophet (peace and blessings of Allah be upon him) was asked if she could legally marry the first husband (or not). The Prophet (peace and blessings of Allah be upon him) replied, “No, she cannot marry the first husband unless the second husband consummates his marriage with her, just as the first husband had done.” (Narrated by Bukhari)
- It is narrated by Sahl bin Sa’d As-Sa’idi in Bukhari that ‘Uwaimir Al-‘Ajlani came to ‘Asim bin ‘Adiy and said: “What do you think, O ‘Asim! If a man finds another man with his wife, should he kill him, and be killed in retaliation, or what should he do? O ‘Asim! Ask the Messenger of Allah about that for me.” So ‘Asim asked the Messenger of Allah about that, and the Messenger of Allah disapproved of the question, and criticized the asking of too many questions until ‘Asim felt upset. When ‘Asim went back to his people, ‘Uwaimir came to him and said: “O ‘Asim, what did the Messenger of Allah say to you?” ‘Asim said: “You have not brought me any good. The Messenger of Allah disapproved of the question you asked.” ‘Uwaimir said: “By Allah, I will go and ask the Messenger of Allah.” So he went to the Messenger of Allah and found him in the midst of the people. He said: “O Messenger of Allah, what do you think if a man finds another man with his wife –should he kill him, and be killed in retaliation or what should he do?” The Messenger of Allah said: “Something has been revealed concerning you and your wife, so go and bring her here.” Sahl said: “So they engaged in the procedure of Li’an, and I was among the people in the presence of the Messenger of Allah. When ‘Uwaimir finished he said: “I would have been telling lies about her, O Messenger of Allah, if I keep her.” So he divorced her thrice before the Messenger of Allah told him to do so.”
- Imam Abdur Razzaq in his Musannaf and Imam Tabrani narrate on the authority of Hadhrat Ubaadah Ibn Saamit (may Allah be pleased with him) that he said, “Someone from my forefathers gave one thousand divorces to his wife. His sons came to the Holy Prophet (peace and blessings of Allah be upon him) and enquired, “O Messenger of Allah! Verily our father has given one thousand divorces to our mother. Is there anyway way out for him? The Holy Prophet (peace be upon him) said, “Your father did not fear Allah that He make a way out for him from his affair. She has separated from him by three divorces which were given against the sunnah and the sin of nine hundred and ninety-seven remains upon his neck”.
- Mahmud bin Labeed says: “The Messenger of Allah (peace and blessings of Allah be upon him) was told about a man who had given all the three divorces to his wife. He stood up angrily and said: Is the Book of Allah being toyed with while I am still among you? Then a man stood up and said: ‘O Messenger of Allah, shall I kill him?” (Sunan an-Nasa’i: Book 27, Hadith 13). Since the holy prophet (peace be upon him) expressed his anger, this is the proof of occurrence of three divorces.
- Al-Tabrani transmitted the story of Ibn ‘Umar’s divorce of his wife while she was menstruating, and he added at its end: “O Messenger of Allah! Had I divorced her thrice, would it be [allowed] for me to take her back?” He said: “Then, she would have separated from you, and it would be a sin.”
(Al-Haythami said after citing it in Majma‘ al-Zawa’id (4:336): “And al-Tabrani narrated it, and in it is ‘Ali ibn Sa‘id al-Razi. Al-Daraqutni said: ‘He is not that [strong], and [others] besides him glorified him, and the rest of its narrators are trustworthy.” The weak slave (may Allah pardon him) says: Al-Dhahabi wrote a biography of ‘Ali ibn Sa‘id al-Razi in Mizan al-I‘tidal (3:131 – Biography: 5850), and he said: “A hafiz, well-travelled, itinerant. Al-Daraqutni said: He is not that [strong], he was isolated in [narrating] things. I say: He heard Jubarahm ibn al-Mughallis and ‘Abd al-A‘la ibn Hammad. Al-Tabrani, al-Hasan ibn Rashiq and a group narrated from him. Ibn Yunus said: ‘He would understand and memorise.’” Hence it is clear that no one spoke ill of him besides al-Daraqutni, and he criticised him using only light words, and al-Dhahabi was not satisfied with them. Isra’il ibn Yunus declared him trustworthy, and al-Dhahabi considered him a Hafiz. Hence, the hadith of the like of him will not be rejected, and it is corroborated by what has preceded from the author [Muslim] (hadith 354) through the route of Nafi‘: He said: “Then, when Ibn ‘Umar was asked about a man that divorced his wife while she was menstruating, he would say: ‘And if you divorced her thrice, you would have disobeyed your Lord in that which He commanded you in terms of [the procedure of] divorcing your wife, and she would become separated from you.” The outward of it [suggests] that he heard that from the Messenger of Allah (Allah bless him and grant him peace).
- It is reported by Ibn Majah that Fatma Bint Qais (may Allah be pleased with her) says, “My husband gave me three divorces at once before he left for Yemen”. The Holy Prophet (peace and blessings of Allah be upon him) legalised these as three divorces. (Ibn Majah, Chapter – “Who gave three divorces in one sitting”)
- ‘Abd al-Razzaq transmitted in his Musannaf (6:393 – hadith: 11340) through the route of al-Thawri from Salamah ibn Kuhayl from Zayd ibn Wahb that [the case of] a man who divorced his wife a thousand times was raised to ‘Umar, and he said: “I was only playing.” So ‘Umar (Allah be pleased with him) overcame him with the whip, and he said: “Only three of those would have been sufficient for you!”
Al-Bayhaqi (7:334) transmitted it also through the route of Shu’bah from Salamah ibn Kuhyal, and both routes and their narrators are the narrators of the Group.
- Malik transmitted in al-Muwatta’ (Bab Talaq al-Bikr, p. 208) from Mu‘awiyah ibn Abi ‘Ayyash al-Ansari that he was sitting with ‘Abd Allah ibn al-Zubayr and ‘Asim ibn ‘Umar. He said: Muhammad ibn Iyas ibn al-Bukayr came to them, and he said: “A man from the people of the desert divorced his wife thrice before he penetrated her so what do you opine?” ‘Abd Allah ibn al-Zubayr said: “No statement has reached us on this matter, so go to ‘Abd Allah ibn ‘Abbas and Abu Hurayrah, for indeed I left them with ‘A’ishah, so ask them and then come to us and inform us.” He went and asked them, so Ibn ‘Abbas said to Abu Hurayrah: “Answer him, O Abu Hurayrah! For indeed a complicated [matter] has come to you.” Abu Hurayrah (may Allah be pleased with him) said: “One separates her, and three makes her impermissible until she marries a husband besides him.” Ibn ‘Abbas (may Allah be pleased with him) said the like of this.
In addition to the above mentioned hadiths, there are many other proofs and Aathar (speeches) of the holy companions that prove the view that the three divorces at one go or with one statement will be counted as three.
Some of the Aathar of the holy companions are as follows:
Sa`eed Ibn Jubair (may Allah be pleased with him) narrates that Hazrat Abdullah Ibn Abbas (may Allah be pleased with him) told a man who gave three divorces to his wife, “Your wife has become Haraam [unlawful] upon you”. (Sunan Kubra, Vol. 7, pg. 370)
Baihqi narrates from Mohammad Ibn Ayaz Ibn Kabeer (may Allah be pleased with them), that a person gave three divorces at once to his wife before he had intercourse with her. He intended to marry her afterwards. He approached Hadhrat Abu Hurairah and Hazrat Abdullah Ibn Abbas (may Allah be pleased with them) to find a solution. They told him, “We do not see any possibility for re-marriage without Halalah”. The man said, “I have given three divorces at once”. When Hazrat Abdullah (may Allah be pleased with him) heard this, he said: “Whatever was left in your ownership you have given it away collectively”. (Sunan Kubra, Vol. 7, pg. 335)
Hazrat Imam Jafar Sadiq (may Allah be pleased with him) narrates from Hazrat Ali (may Allah be pleased with him) that Hazrat Ali said: “Whosoever gives three divorces to his wife at once, his wife will not be lawful for him without Halalah”. (Sunan Kubra Lil Baihqi, Vol. 7, pg. 335)
Habib Ibn Abi Sabit (may Allah be pleased with him) narrates: “A man came to Hazrat Ali (may Allah be pleased with him) and said, `I have given thousand divorces to my wife`. Hazrat Ali (may Allah be pleased with him) told him, `Three divorces have made her Haraam upon you. Go and distribute the remaining divorces amongst your other wives`”. (Sunan Kubra Lil Baihqi, Vol. 7, pg. 335)
Some references of the speeches [Aathar] of the holy companions are given below which also prove that three divorces uttered at one go are counted as three:
The speech of Hadhrat Umar as narrated by Anas bin Malik (may Allah be pleased with them)- (see Sunan Kubra lil Behqi, vol. 7, p. 334)
The speeches of Hadhrat Uthman and Hadhrat Ali (see Musannaf abdur Razzaq, Vol. 6 p. 394,)
The speeches of Abdullah bin ‘Amr bin al-‘As, (Muwatta Imam Malik, p 521, Talaqul bikr)
The speech of Hadhrat Abdullah bin Masuood (Musannaf abdur Razzaq vol. 6, p. 395)
The speech of Hadhrat Abdullah bin Umar (Musannaf abdur Razzaq vol. 6, p. 395, / Behqi vol, 7, p. 335)
The speech of Hadhrat Ali (Behqi vol. 7, p. 334)
The speech of Hadhrat Imaran bin Husain and Hadhrat Abu Musa Ashari (Behqi, vol.7 p.332)
The speech of Hadhrat Musallam bin Jaa’far (Behqi vol.7, p. 320)
For More speeches of the holy companions (see: Musannaf ibn Abi Shaiba vol. 5, p.10 to 14)
In all the proofs, some may be weak in narration but the group of the Sahabah, the likes of ‘Umar, ‘Ali, ‘Uthman, Ibn Mas ‘ud, Ibn ‘Umar, ‘Abd Allah ibn ‘Amr, ‘Ubadah ibn al-Samit, Abu Hurayrah, Ibn ‘Abbas, Ibn al-Zubayr, ‘Asim ibn ‘Umar and ‘A’ishah are all agreed on the occurrence of three even if a person gives his wife three divorces in one sitting. And they are sufficient as proof and support.
The Answers to the Opposing Evidences
- The Answers to the First Opposing Evidence
As it is mentioned above that people of Zahir (A school at thought related to Dawud Zahir), Allama Ibn Taymiyyah, Ibn Qayyim are of the view that when a person gives three divorces to his wife at one go or with one statement, only one revocable divorce will take place thereby. In support of their stance, they present two Ahaadith.
The first is the speech of Hadhrat Abdullah Ibn Abbas (may Allah be pleased with him) recorded by Imam Muslim in his Sahih; which states that “three divorces were counted as one in the time of the Holy Prophet (peace and blessings of Allah be upon him), Abu Bakr and for two years into the khilafat of Umar Ibn Khattab. Then Hadhrat Umar (may Allah be pleased with him) said, “Surely people have rushed into a matter in which there was some respite for them, so it would be better if we put an end to it. Then he executed the ruling. (Sahih Muslim: Vol 1, Chapter of Three divorces)
There are several answers to this narration. Some of the best are as follows:
- The explanation mentioned in the narration refers to the person who does not consummate the marriage and divorces his wife with three separate words. In fact the people, in the era of the holy prophet peace be upon him, used to divorce their wife with whom they did not have intercourse yet, that “You are divorced, you are divorced, you are divorced.” In this situation, only the first divorce was sufficient for baain, and the remaining two divorces were ineffective. Ibn Mansoor has narrated this from Ishaq bin Rahooyah and it is also further supported by the narration of Sunan Abi Dawood, Vol 2, p. 228)
- The second answer is that this hadith was regarding a specific scenario in which a man repeats the word “divorce” with the intention of emphasis not initiation, as he says: “You are divorced, you are divorced, you are divorced.” If anyone had to lie regarding his intention, he would be exposed through revelation. Also, In the blessed time of the Prophet (peace be upon him), if someone pronounced the sentence three times and said his intention was to give only one divorce with the first sentence and that repetition was merely for emphasis, not to give three separate divorces, then because of the purity of the hearts of the people, his claim would be accepted.
As time passed and Hadhrat Umar (may Allah be pleased with him) became the caliphate, the population had increased. Hadhrat Umar noticed that lying had become commonplace. People would repeat the word divorce three times and then say that they were only emphasising the first one and so he decreed that three divorces take effect and count as three.
Furthermore, in the time of the Holy Prophet (peace be upon him) pronouncing even one divorce was considered as severe as three. For this reason, Hadhrat Umar, after seeing a decline in moral standards declared three divorces to count as three in case people begin taking the issue of divorce lightly.
The holy companions (Sahaba) reached consensus on the validity of what ‘Umar decreed, and none of them condemned that. If his decree was an innovated decree – and refuge is from Allah – or was against the decree of the Messenger of Allah (peace be upon him), not even one of the companions would be satisfied with that, let alone all of them, such as Ibn ‘Abbas himself – and he is the one who narrates the hadith of the chapter and the hadith of Rukanah, both of them – would issue fatwa on the binding-ness of three divorces. Abu Dawud transmitted with a chain authenticated by Hafiz [Ibn Hajar al-‘Asqalani] in Fath al-Bari through the route of Mujahid, he said: I was with Ibn ‘Abbas, and a man came to him and said that he divorced his wife thrice, so he was silent until I thought that he would return her to him. Then he said: “One of you proceeds and commits a foolish deed, and then says: ‘O Ibn Abbas! O Ibn Abbas!’ Verily Allah said: ‘Whoever fears Allah, He brings forth a way out for him” (65:2), and indeed you did have fear of Allah, so I find no way out for you. You disobeyed your Lord and your wife is irrevocably separated from you.”
Thus it is inconceivable from Ibn ‘Abbas that he had in his possession a ruling from the Prophet (peace be upon him), and then he issued a fatwa in opposition to it, except for a reason that became manifest to him. And the narrator of a report is more learned than [those] besides him of what he narrated.
The Answers to the Second opposing Evidence
The second evidence of the people of Zahir and Shaykh Ibn Taymiyyah is the hadith of Rukanah transmitted by Ahmad in Musnad that Ibn Abbas (may Allah be pleased with him) said: “Rukanah ibn ‘Abd Yazid divorced his wife thrice in one sitting, so the Prophet (peace be upon him) said: “That is only one, so take her back if you wish,” whereupon he took her back.”
The answer to this is that the reports on the story of Rukanah’s divorce are conflicting. Thus, it is narrated from him that he divorced his wife thrice as in the hadith of Ibn ‘Abbas, according to Ahmad; and it is narrated from him that he divorced his wife with the word “albattah” (meaning ‘Baain’, the separating divorce, as opposed to Raj’ee, which means one in which returning to the woman, is allowed), as in the hadith of Rukanah himself, according to Abu Dawud.
This is why Imam Bukhari found it defective due to the inconsistency. He comments that there is defect (idtirab) in this hadith. In some narrations it is quoted as “I divorced my wife three times.” In others it is mentioned that he issued one divorce whereas in others it is mentioned that he said, “I have divorced my wife absolutely” (al-Batata)”.
Ibn ‘Abd al-Barr declared this hadith weak in al-Tamhid as mentioned in al-Talkhis by Hafiz (3:213).
This narration of Ibn ‘Abbas according to Ahmad was regarded as objectionable by al-Jassas and Ibn al-Humam due to its opposition to the narration of firm trustworthy narrators who narrated it with the word “albattah,” and Hafiz Ibn Hajar regarded it as defective in al-Talkhis al-Habir.
One of the greatest answers that only one divorced was issued is that it is clearly stated in the narration of Musnad al-Shafi (1/268, Dar al-kutub al-ilmiyyah), Sunan Abi Dawood (2/231 Dar al-kitab al-Arabi), Sunan Al- Dar Qutni (4/33, Dar al-Ma’rifah), etc that, “He gave her the second divorce in the time of Umar and the third in the era of Uthmaan. (May Allah Ta’ala be pleased with them)”. This clearly shows that only one divorce was issued in the time of the prophet (peace be upon him).
Abu Dawud (may Allah be pleased with him) gave preference in his Sunan to [the interpretation] that Rukanah only divorced his wife with “albattah” due to what he transmitted through the route of the family of Rukanah, and the household is more aware of the story than others. Hafiz [Ibn Hajar] said in Fath al-Bari (9:316): “And this is a strong explanation as it is possible some of its narrators interpreted ‘albattah’ as three, so they said: ‘He divorced her three times.’ Therefore it is impeded to draw evidence from the hadith of Ibn ‘Abbas.
The upshot is that Rukanah (may Allah be pleased with him) only divorced his wife with his statement: “You are divorced albattah,” and he did not intend by that but one divorce, and the Prophet (peace be upon him) considered him truthful and he allowed him to marry her again, and this is the intent of “he took her back” in the hadith. Some of the narrators thought that the intent of “albattah” is three divorces, so they narrated the hadith with the word “three.”
If it is conceded that the reality is the reverse of what we said, and that Rukanah issued three divorces to his wife, and then some of them narrated it with the word “albattah,” then the Messenger of Allah (peace be upon hm) did not regard it as one divorce except after he made him swear an oath that he did not intend by that except one divorce; due to what Abu Dawud, al-Tirmidhi, Ibn Majah and al-Darimi transmitted, in which it is [mentioned]: “He informed the Prophet (peace be upon him) of that and he said: ‘By Allah, I did not intend but one.’ So the Messenger of Allah (peace be upon him) said: ‘By Allah, You did not intend but one?’ Rukanah said: ‘By Allah, I did not intend except one.’ So the Messenger of Allah (peace be upon him) returned her to him.”
Consider how the Messenger of Allah (peace be upon him) made him take an oath twice that he did not intend but one [divorce]. And we have mentioned earlier that the claim of the intention of emphasis was taken into consideration in judicial decrees in the time of the Prophet (peace be upon him) because that era was free of lying and deception. Were three divorces counted as one always, as Ibn Taymiyyah and those who agree him believe, the Messenger of Allah (peace be upon him) would not have made him take an oath that he intended one, because in that case there is no need for intention and no benefit in making him swear an oath, because Ibn Taymiyyah and those who agree with him do not make intention a condition in this, but they regard three as one even if the divorcer intended three. Thus, the most that the hadith of Rukanah (may Allah be pleased with him) proves is that the Prophet (peace be upon him) regarding him as truthful with respect to the intention of emphasis in judicial decree, which is accepted according to us, and there is nothing in it that proves that three divorces are one even if a man pronounces them with the intention of initiating [new divorces]. Hence, adducing it as proof is totally invalid.
All this as discussed above was about the reality of the three divorces. But for some years, the governments of many Islamic countries are legislating the laws which do not accept three divorces given at one go or with one statement as permanently irrevocable. The reason of such laws is made that the people are unaware of the reality of the three divorces. Since these people understand that divorce does not occur unless it is given three times, they always pronounce three divorces. As a result, families after families have broken up.
Indeed this problem is not because of law. This is due to ignorance of the law. Changing the law is not the remedy for this problem. But rather the remedy is possible only by raising awareness of the Islamic ruling on the divorce. By utilising all the possible means of propagation, this ignorance can be eliminated.
Since the pronouncement of three divorces at one go is a sin according to Islamic Sharia, it is possible for the Islamic governments that they consider the pronouncement of three divorces at one go as the criminal offense. The reason is that Saeed bin Mansoor has reported from Hadhrat Anas (may Allah be pleased with him): “when a man giving his wife three divorces [at one time] was brought to Umar (may Allah be pleased with him), he would hurt his back”.
It is clear from the above that there is no justification to change Islamic Shariat on the excuse of the aforementioned defect arising from ignorance. Allah Almighty knows the best.