Posts Tagged ‘Tuhrs’

What is a “Halala/Tahleel-marriage” in Islam?  

January 25, 2020

Image result for pic of a Muslim divorced couple?

Answered a question on Halala (briefly) on 01/15/2020 at Quora.com

Halala Also known as Tahleel Marriage” loosely means to “legitimize” something.

Most often, the concept of Halala” is misunderstood and misquoted by ignorant Muslims and Non-Muslims alike.

Halala is neither a convenience nor a short-cut to undo an irrevocable divorce; but a sort of punishment for the man, who has committed an abominable act without due diligence and deliberation. 

A woman will not become lawful for the first husband to marry again, had the second husband divorced her without consummating the marriage, even at his own free will.  Bukhaari (2639) and Muslim (1433) Narrated by Ayesha (r.a.a)

This matter ought to be looked at; bearing in mind; that the act of “Divorcing” though permissible, is considered the most despised act, by the Almighty!

Hadith. The Prophet (PBUH) said, “Among lawful things, divorce is most hated by Allah.” (Abu Dawud).

 These are the three most important verses in the Holy Qura’an; setting the principles and modalities of “Divorce” Tahleel-Marriage” and “Post-Tahleel-Behavior”, to be followed.

“And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things” [Q, 2:231]

“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah (SWT). These are the limits of Allah, which He makes clear to a people who know” [Q, 2:230]

“And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not” [Q, 2:232]

It has been emphatically advised that the utterances of “Divorce” [talaq] should not be carried out in one go but in three stages, spanning through the duration of married life, known as (Talaq al-bayyina al-sughra) [agreed upon by the majority of scholars and schools]. Affording the couple at least two opportunities in their married life to reconsider their decision and re-unite (Raja’a), before it is too late, and the irrevocable divorce becomes established. (Talaq al-bayyina al-kubra)

Hadith. [Ibn ‘Abbas (Allah be pleased with them) reported that the (pronouncement) of three divorces during the lifetime of Allah’s Messenger (PBUH) and that of Abu Bakr and two years of the caliphate of Umar (R.A. A) was treated as one. But Umar bin. Khattab (R.A.A) said: Verily the people have begun to hasten in the matter in which they are required to observe respite. So, if we had imposed this upon them, and he imposed it upon them]. Book 9, Number 3491.

NOTE: – Here, if a couple, after the first divorce, hasn’t re-united within the idda period, an irrevocable divorce would become established. They may, nevertheless, re-marry, with a fresh nikah. So, would they be entitled to, after the second divorce as well—either to re-unite before the expiration of the idda period or re-marry afresh after the lapse of idda-period. {re-union without nikah is available before the expiration of the idda period after all three divorces. The convenience of re-marrying after the lapse of third idda-period, however, would come to an END, and the compulsion of Tahleel-marriage would kick in. 

 

Divorce is of four kinds:  Ahsan, most laudableHasan, laudable, In-correct/irregular Bida’a and under duress Mukrah.

Talaq Ahsan–most laudable divorce–is where the husband repudiates his wife by making one pronouncement within the period of Tahr (purity–when the woman is neither menstruating nor having post-natal bleeding) and husband has not had sexual intercourse, and (after the utterance of “Talaq”) she is left to observe her ‘Idda waiting-period:-

Iddah. “Women who are divorced shall wait, keeping themselves apart, three (monthly) courses. (Q, 2:228).  And as for pregnant women, their term shall end with delivery. (65:4).   And those among you who die and leave behind wives, (these wives) should keep themselves waiting for four months and ten days” (Q, 2:234).

Talaq Hasan–laudable divorce–is where a husband repudiates an enjoyed-wife (having had intercourse with) by three sentences of divorce, in three Tuhrs

Talaq Bida’a—irregular or In-correct divorce–is where a husband repudiates his wife by three utterances of “Divorce” (talaq) in one go. According to the majority of the jurists, the Divorce, though valid, is against the spirit of the Shari’ah, therefore, the man following this course would be a deviator in the eyes of Allah (SWT).

Talaq Mukrah–under duress.

“There are three things in which, not only the serious worlds but nonserious words would also count serious. 1) Nikah 2) Divorce 3) Emancipation of a slave. 4) Re-uniting (raja’a), by revoking the divorce. [Narrated by Abu Dawood and Tirmazi—category—good]

According to Imam Abu Hanifa, Nakhai, Qatadah,  Zuhri, and Al Sha’bi, the application of this hadith is restricted to the divorce under duress/compulsion. [discounting the consideration of the will and the intention]

Imam Shafai’i, Imam Ali Ibn Talib and Ibn Abbas, however, contended otherwise by citing another hadith;

“Removed are, from my Ummah, the consequences of acts done by mistake, in forgetfulness and under duress” [ Narrated by Tabarani and Thawhan—category—authentic]

Imam Abu Hanifa is of the view that the “exculpation” as per this hadith pertains to the hereafter, not this world.

Should this premise be admitted, then in my humble view, the consideration of the will and the intention will inevitably become pertinent and integral! Moreover, the intent/purport of the earlier narration seems to have a deterring-undertone (against a casual attitude in serious matters) rather than injunctive, which will satisfy the conciliatory-requisite for the accommodation of both the narrations.  Famous Hadith: “Actions are judged by the intentions” clearly support the argument. (Allah knows the best).

 Divorce initiated by a Woman. (khula)

The right of a woman in demanding the dissolution of marriage is known as “Khula (meaning, the putting off or taking off of a thing). It is a kind of facility/right provided to the wife in securing “Divorce” Talaq from her husband by returning a part or full amount of the bridal gift.

Hadith. ‘A’isha (Allah be pleased with her) reported: When the Messenger of Allah (may peace be upon him) was commanded to give option to his wives, he started it from me saying: I am going to mention to you a matter which you should not (decide) in haste until you have consulted your parents. She said that he already knew that my parents would never allow me to seek separation from him She said: Then he said: Allah, the Exalted and Glorious, said: Prophet, say to thy wives: If you desire this world’s life and its adornment, then come, I will give you a provision and allow you to depart a goodly departing; and if you desire Allah and His Messenger and the abode of the Hereafter, then Allah has prepared for the doers of good among you a great reward She is reported to have said: About what should I consult my parents, for I desire Allah and His Messenger and the abode of the Hereafter? She (‘A’isha) said: Then all the wives of Allah’s Messenger (may peace be upon him) did as I had done. [Book 9, Number 3498]

 

A desire to re-uniteONLYafter the third and final Divorce (irrevocable—talaq bayyina al-kubra), would necessitate the process of “Halala” or “Tahleel-marriage”

 

One may contend why the woman has to suffer for the fault of the man?

The logical answer is that; a man being the head of the family, custodian of the honor and the dignity, of the family, clan, tribe, etc. would psychologically suffer the most. The woman on the other hand (depending on the ex-husband’s overall behavior/treatment), may or may not like the apparently grotesque process of reunification with her first-husband. However, in all fairness, the woman not only gets re-instated in her status, but she also gets an opportunity extended, to prudently compare and evaluate the present and the past situations. If she feels comfortable and content with the present situation, she may avail of this opportunity and stay put, for she, having been repudiated, was disrespected, dishonored and belittled by her former husband!

Had the man been subjected to go through the process instead, it would have been rather a boon to him; as he is already allowed to marry up to four women. Instead of deterring it would have, most likely, incentivized him for his callous behavior to repeat!

Allah (SWT), is best of the psychologists, therefore, He has ordained the redress jolting the psychological reflexes of the man to the core.

 

Moreover, the woman here neither has the control (over the divorce), nor the obligation to go back to her former husband!

The second husband is also under no moral or legal obligation to divorce. Anyone who does so deliberately; to facilitate the return of the woman to her first husband, has been “cursed” by the Prophet (PBUH)} [Tahleel-marriage in such a situation would become “haram” Invalid]

Women having been endowed with unique temperamental flexibility in terms of the marital relationship by Allah (SWT), therefore, may not take long to adjust in a new situation,

“And one of His signs is that He created mates for you from yourselves that you may find tranquility in them, and He put between you love and compassion; most surely there are signs in this for a people who reflect” [Q,30:21]

 

Divine injunctions, when analyzed from a secular or western frame of mind; often lacking the faith in the Divine will and wisdom, would neither make sense nor would lead to the right conclusion.

 

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