Al-Baqarah Section 29 - Divorce And The Respect For The Law
When divorce becomes irrevocable, Regard for the limits of the Law fixed by God, Wife to be justly allowed to have her own rights, Eligibility for a voluntary separation at the initiative of the wife when she fears impossibility of living together with the husband.
Al-Baqarah Verses 229 - 231
الطَّلَاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَأُولَٰئِكَ هُمُ الظَّالِمُونَ
“Divorce (shall be lawful) only twice then (you should) either keep her in fairness or send her away with kindness; and it shall not be lawful for you to take away anything ye have given them but if both fear that they shall not (be able to) keep (themselves within) the limits (fixed) by God; and if ye 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 giveth up to get herself freed (from the wedlock); These are the limits ordained by God, (Beware!) exceed them not; and those that exceed the limits ordained by God, then these are they that are unjust” (2:229).
فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّىٰ تَنْكِحَ زَوْجًا غَيْرَهُ فَإِنْ طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَنْ يَتَرَاجَعَا إِنْ ظَنَّا أَنْ يُقِيمَا حُدُودَ اللَّهِ وَتِلْكَ حُدُودُ اللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ
“So if he divorceth her (for a third time) then she shall not be lawful unto him until she wedeth another husband; and if he (also) divorceth her, then there shall be no sin on either of them if they return to each other if they think that they shall (be able to) keep (themselves) within the limits ordained by God; these are the limits ordained by God (which) He maketh them clear for a people who understand” (2:230).
وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ وَلَا تُمْسِكُوهُنَّ ضِرَارًا لِتَعْتَدُوا وَمَنْ يَفْعَلْ ذَٰلِكَ فَقَدْ ظَلَمَ نَفْسَهُ وَلَا تَتَّخِذُوا آيَاتِ اللَّهِ هُزُوًا وَاذْكُرُوا نِعْمَتَ اللَّهِ عَلَيْكُمْ وَمَا أَنْزَلَ عَلَيْكُمْ مِنَ الْكِتَابِ وَالْحِكْمَةِ يَعِظُكُمْ بِهِ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِكُلِّ شَيْءٍ عَلِيمٌ
“And when ye have divorced women and they reach their prescribed period then (either) retain them in fairness or set them free with fairness, and do not retain them to hurt them that ye may transgress, for whosoever shall do this, he indeed is unjust to his (own) self; and take not the signs (commandments) of God a joke and remember the bounty of God upon you and what He hath sent down unto you of the Book and Wisdom, admonish you thereby; and take shelter in God and know ye that God is the Knower of all things” (2:231).
Commentary
Verse 229
There is another very effective check against any indiscriminate action on the part of the husband in pronouncing ‘talaq’ or divorce; that is the revocable divorce can be pronounced only twice. In the days of ignorance preceding the advent of the Holy Prophet, a wife could be divorced as many times as the husband would like and could be taken back. Such a repetition could be made to any extent unlimited. Islam effected a check upon this indiscrimination in the matter of marital life, by limiting the revocable ‘talaq’ to be only twice giving the husband a final chance after the second ‘talaq’, either to retain his wife permanently or to bring about a final separation for repeatedly marrying and repudiating is simply scandalous.
If there be any genuine affection between the two still left and there be any possibility of an enduring re-union, the too remorseful experience of separation must be sufficient to keep them within bounds for the future, for man is informed under the succeeding verse1 that should he once again act indiscriminately, he would not be able to get his wife again, save in the most undesirable, degraded and unacceptable condition, i.e. after she becomes somebody’ else’s wife and that somebody else releases her from the wedlock.
It is not lawful for the husband to take or withhold anything out of what he has given or promised to give i.e. ‘Mahr’ or dower to the wife. The dower amount is usually large and much of it usually remains unpaid by the husband, the payment of the dower amount, particularly when the divorce is pronounced is another check upon the husband resorting to an indiscriminate and unnecessary divorce of his wife.
The next part of the verse deals with ‘Khula’ or ‘Mubarat’ as it is called in law. Under this law, if the wife feels unable to pull on any longer with her husband, she may seek to get freed of the wedlock by returning the dower if she has already received it, or to forgo it, if it be still due to her, and take ‘Khula’ from the ‘Hakim ash-Shara’i’ who is the authentic administrator of the law2.
The address in this verse ‘if ye fear’ refers to the authentically constituted authority i.e. the ‘‘Hakim ash-Shara’i’. The law of ‘Talaq’ i.e. divorce or ‘Khula’ the divorce taken at die instance of the wife, has been laid down in all the necessary’ details of its working.
The main injunction to the husband given under this verse is noteworthy that is, if the wife is to be retained, she must be kept in honour, grace and in respectful fellowship and if she is to be sent away, it should be ‘with kindness.’ The same injunction is repeated in Verse 231.
The opening words of this verse clearly indicate that the pronouncement of ‘Talaq’ more than once at a time is meaningless for if the first pronouncement effects separation the second and the third separation has no meaning. The second pronouncement will be valid only after a reconciliation or the effective withdrawal of the first pronouncement3.
Read the concluding clause ‘Tilka hodoodillah’ - these are the divinely’ fixed limits or ordinances - with Verse 9:97. (A.P.)
Verse 230
The third or the final divorce is mentioned in this verse, and it is laid down here that the husband can get back the same wife only after she becomes somebody else’s wife as stated in the note under Verse 229.
The divorce mentioned in this verse is the third i.e. the irrevocable divorce, the two previous divorces having already been referred to in the previous verse.
Verse 231
Note the warning to the divorcing husband against any cruelty, unjust or unfair treatment to the wife to be divorced. No harm or injury shall be done to her and no interest of her i.e. her right of the dower due to her, shall be prejudiced and she shall not be harassed to forego any of her rights, and she shall not be inconvenienced in the least.
The concluding part of the verse indicates the seriousness of the matter of divorce. Its laws should not be treated lightly.
The one distinctive feature of Islam is evident from the words of appeal to the reason of the individual, used in the conclusion of the verse. It clearly indicates that though Islam prescribes laws, but it always gives a man and a woman the liberty to act to the best of their conscience with the full consciousness of God knowing everything. Hence nothing can ever be concealed from His knowledge. Islam wants man to be free to act according to the laws and be within bounds or the limits fixed by God and earn the reward or the punishment, for his or her own goodness or badness.
The non-Shi’a Schools admit that divorce is proper and regular only when given according to the restrictions given in these verses, but they do not regard these restrictions essential to the validity of the divorce. Thus, they admit the most irregular forms to have legal validity. They give it the name of ‘Talaq Bida’at.’ An irrevocable divorce at once, by merely repeating it thrice.
“It may not even be properly expressed, or even expressed in words at all. This is admitted to be irregular but is not the less effective. One form of making a divorce irrevocable, the pronouncing of it thrice, once in each tuhr (period of woman’s purity) is allowed to be irregular by Hanafees though condemned in the matter of intention. “If a man pronounces a divorce whilst in a state of inebriety from drinking fermented liquor, such as wine, the divorce takes place. Repudiation by any husband who is sane, and adult is effective, whether he be free or slave willing or acting under compulsion; and even though it were uttered in sport or jest, or by mere slip of the tongue instead of some other word”4.
It is these things that have brought the Islamic law of divorce into contempt and ridicule. And it is responsible sometimes, for the most unfortunate cases, so some strange methods have been devised by some to get rid of the effects of these irrevocable divorces.
The Shi’a School condemn all regular forms and regard them as void and ineffective. And for Shi’as it is necessary that “the man must be an adult of understanding, of free choice and mill, and of design and intention when he divorces his wife.”
“It does not take effect if given implicatively or ambiguously whether intent or not” And “it is also absolutely necessary that the sentence should be pronounced by the husband in the presence of two just persons, who shall hear and testify to the wording of the divorce” This last condition is based on the teachings of the Holy Imams who were very strict in this matter. And this is an absolute necessity for disputes about the ‘Talaq,’ and without this condition fulfilled the divorce is simply void and nothing. The wife continues to be his wife in fact though he divorces her a hundred times in any irregular manner. The restriction was apparently made to make it sure that no one divorces his wife without previously letting others know of it. This will give them a chance of remonstrating with him in the matter” (B.H.)
