Diploma TertinggiPerguruanUgamaSyariah
English Language ll
BI 0202
Title: Divorce in Islam
Mu’minahBteHj Ibrahim
12DT067
Tutors name: UstazahHjhSaadiahBteHussien.
Divorce in Islam
Meaning of Divorce.
If there is one way to break free someone from marriage it is called Talaq. It is a situation where there is no understanding between husband and wife.Talaq is considered as a last choice when marriage between husband and wife cannot be saved anymore. However, bear in mind that although divorce is allowed in Islam, Allah does not like it. The Prophet said as narrated by Abu Daud “of all the things allowed in law, divorce is the most hateful things in the sight of Allah”.
Talaqis the word used in Islamic law for divorce. In Arabic word it meansto set free. However, in Islamic terms it means release from the marriage tie with the pronouncement of husbandlike divorce. For example, a husband said to his wife "I divorce you", with these words, it means the husband and wife become divorced.Talaq is permitted in Islam as a lawful method to bring marriage contract to an end.
Types of Talaq.
There are four types of Talaq. They are TalaqarRaji’ie (revocable divorce), Talaq al Ba’in (irrevocable divorce), Khul' (divorce at the instigation of wife) and Fasakh (annulment of marriage).
TalaqarRaji (revocable divorce) is where the husband pronounces Talaqone or twice. After the pronouncement of divorce the wife’s period of Iddah starts. Before the period of Iddah expires, the husband may take his wife back if he wants. This is called Rujuk (return). But the right of Rujuk will be lost as soon as the Iddah is complete and the Talaq cannot be revocable. However, the husband and wife can still reconcile with a new Akad. After that there are only one or two divorces allowed or will be counted as an absolute or irrevocable divorce.
Talaq Al Ba’in is divorce with the pronouncements of divorce by the husband consecutive sitting or at the same sitting or divorce before the consummation of marriage. If a husband divorces his wife three times, he cannot remarry her until after she has married another man and that the second husband has divorced her. It is a sin when the ex husband ask a man or someone he knows to marry his ex wife then ask him to divorce her so that he can marry his ex wife. This person is called Muhalil. The Prophet said as narrated by IbnuMajjah “the curse of Allah be on the man who commits Halalah and the man for whom the Muhalil is commited.
Khul (divorce at the instigation of wife) is a divorce demanded by the wife to the husband by paying to the husband according to the rates agreed. In return she might have to pay back the dower (Mahar), money, jewellery and so on that she received from her husband at the time of marriage. Reported by Al Baihaqi, a women came to the Prophet and said “I hate my husband and want separation from him”. The Prophet replied, “Would you return the orchard that he gave you as a dower?” She replied, “Yes even more than that”. The Prophet said, “You should not return more than that”.
Fasakh (annulment of marriage) is where a muslim wife can also obtain a divorce through process of dissolving marriage by applying for it in a Muslim Court or Qadhi. If there are any suspicion or defect on his or her spouse therefore, the husband can report to the Qadhi the reasons why he demands the fasakh. Same with the wife, she will be requiredto prove that her husband has behaved unreasonably and has not fulfilled his obligation to her as a husband. If the Qadhi is satisfied that the women is prejudiced by her marriage, he will annul the marriage. In this type of divorce the husband and wife with mutual consent, can reunite within the period of Iddah. After the Iddah has expired, they can still reconcile with a new Akad only.
Laws of divorce.
In view of the good or harm between husband and wife, divorce law is divided into four sections:
Wajib. When disputes between husband and wife, while the two rulings of (the center) or arbitrators of a husband and wife who judge things felt that they should divorced.
Sunat. When the husband is not willing anymore to maintain the welfare of his wife, or the wife does not care for his self-respect, as noted by The Prophet interpretation, a man came to the Prophet and said: “whereas my wife will not refuse the touch of the other man’s hand”. The Prophet answer: “You should divorce your wife”.
Haram.HaramBid'eiis when a husband impose divorce in two circumstances, namely: divorcing his wife when shehad her period or childbirth. Divorcing wife during the holy consummated. Supposed if he wants to divorce herwife he should not consummate his wife after she purifies from menstruation.
Makruh. If a husband divorced his wife of who has good behavior, obedience to religion and not to make any mistake.
Pillars of divorce and divorce terms.
There are threepillars of divorce, namely:
Husband.Husband at the age of puberty, thoughtless and with their own free will and not being forced.
Wife.Must be of his legal wife. The wife was still in his power even in she is in IddahRaj'ie.
Pronouncement of Talaq. Must use a clear pronouncement (sarikh) or tease (kinayah) or signal. Husband should understand the language which he spoke though it is not Arabic. He should mention her name or show towards her whenfallingthe Talaq. Willfully.Talaq is not valid if divorce is inadvertently.
Pronouncement of Talaqsarikh is clear words used only as specified in the divorce for instance “I divorce you”. Pronouncement of Talaqkinayahis teasing words that contain the meaning of divorce and others such as lets separate. Itshould be accompanied with intention for it to be valid. If not, then the divorce will not be valid.
Some problem in divorce:
Divorce will not be valid except with clear pronouncement of either words or sarcasm or use sign language. Pronouncement of Talaq pronounced clearly required just sounded to himself the divorce invalid if uttered in a voice so low that does not sound to himself. Calculated divorce pronounced fall although not in front of her wife or infront of witnesses. The terms of divorce required the husband to fully aware or understanding, not crazy or in other word is mentally unstable or mentally disordered to be specificand not a child. Divorce should be taken seriously. If a husband do not take the word divorce seriouslyeither in normal conditions or in one-on-one role play, drama, divorce still falling. Narrated by Abu Hurayrah: The Prophet said “There are three things which, whether undertaken seriously or in jest, are treated as serious: Marriage, divorce and taking back a wife (after a divorce which is not final)”.
Talaqsunniis a divorce that was inflicted on the wife that has been consummated then imposing Talaqon her while being purified from menstruation and did not consummated within the time so that the period of her Iddah will be completed early. Such as the interpretation ofAllah“when you divorced a woman (wife), so you must divorce in which they can count in her Iddah (sacred time)”. It is related that in the time of the Prophet, may Allah bless him and grant him peace, 'Abdullah ibn 'Umar divorced his wife while she was menstruating. 'Umaribn al-Khattab asked the Messenger of Allah, may Allah bless him and grant him peace, about that. The Messenger of Allah, may Allah bless him and grant him peace, said, "Command him to take her back. Then he should keep her until she becomes pure and then menstruates and becomes pure.
TalakBid’eiis divorcing wife in two circumstances which violate the requirements on the condition. Divorcing over wife that has neverbe consummated at a time when she is in her period of menstruation or at the state of purity but consummated inthat time. This type of divorce is forbidden because to prevent hasty terminations due to anger and allows both parties time to reconsider as well as to see if the wife is pregnant. If the wife is pregnant, the waiting period is lengthened until she delivers. At any point during this time, the husband and wife are free to resume their conjugal relationship, thereby ending the divorce process. During this waiting period, the husband remains financially responsible for the support of his wife.
Talaq which is not Talaqsunni and TalaqBid’ei.
Talaqthat is not Talaq Sunni and Bid'ei are:
Imposing the divorce on his wife who is still small and have not yet menstruation.Divorcing on the older wives who has stop from all of postmenopausal period. Khul’ (the divorce sought by the wife to the husband) but has not been consummated because it does not have Iddah. Wife who was pregnant. All four of these people can be divorced any time.
Numbers of divorce.
Number of divorce against a husband who is independent is from one to three. In the divorce of one or two, a husband can take back his wife before the expiration of her Iddah. The husband can still be remarried with a new contract or Akad. As for divorce three Talaqor triple Talaqcan notRujuk (return) and can not remarry unless the woman (wife) married to another man, then was divorced by the second husband and has finished her Iddah. As the interpretation of Allah if divorced by the second husband then there is no objection for the first husband to go back to his ex-wife if both are doing it untukmendapatkankeredhaan Allah. As stated in Surah Al-Baqarah verse 230.
From that it is clear that the first husband can marry again with his ex-wife after the second husband and wife were divorced (after she finished her Iddah) provided that the second husband must have consummated with his wife. Therefore it is not enough with just married then divorced without consummated.
It is worth remembering that this second marriage is what both men and women really want, not because to enable the first husband to marry his ex-wife likewhat we see a lot going on nowadays.
There are three ways to pronounce triple Talaq:
Triple talaq is made by saying "talaq, talaq, talaq" when the wife is in the state of purity. No fault needs to be found with the wife for a husband to divorce her and she will have been divorced upon the third time.
The first way is dropping it three times on different occasions such as: the husband imposingTalaqagainst his wife. Then in time of her Iddahdroping it again with one Talaq then in the second Iddah once again with one Talaq. The second way is dropping divorce of a husband against his wife then married again then after the completion of her Iddah imposing Talaq once again, then remarried again and after finished her Iddahimpose it again for the third time. Both the way scholars view that divorce falls into three and the beginnings of divorce laws Talaq three as mentioned above report. The third way is dropping divorce husband as he says "I divorce you three times in a row.
One relevant hadith:
Once Rukanah pronounced three divorces against his wife but later he was very sorry for it. When the Prophet asked him, How did you divorce your wife? Rukanah replied that he had pronounced three divorces. The Prophet asked, Did you pronounce it in one sitting? When he said, Yes, the Prophet said, Treat it as one divorce only and if you want you can take your wife back. And Rukanah took his wife back.Reported from Musnad Ahmad Bin Hanbal.
MazhabAsh-Shafi'ie said this form of divorce is not Haram but it is better not to give three Talaqs in one Tuhar (the time between two monthly periods of a woman). Also it means that those three Talaqs would be established as three.
Some scholars opinion on the method above are:
Falling three pronouncements and divorce laws took place three on it. This is according to the mazhab Ash-Shafi’ie. The divorce does not fall at all, as noted by The Prophet means anyone who does not do what we ask to do or follow our instruction or obey our orders then the job is rejected. Falling divorce once the divorce took place. One Talaq means one (husband) can still go back with his wifeas long as his wifeis still in her Idah or could remarry if she has done her Iddah.
Next is Istisna' in divorce. Istisna'means reducing the meaning of the word has already gone by then. Istisna'in the sentence is valid divorce ruling with the following conditions:
In respect of the first word with the second, not punctuated with other words that were not related to divorce or a long silence is more than just breathing. The second word is not the first word did not finish the meaning of the first sentence. For example the husband said to his wife: "you are divorce with three unless it is one Talaq or two Talaq.", but if it says "unless you are divorce withtriple Talaq", ruling three pronouncements fall for the second word of the word "but three did not finish the first word of" divorce you three times ".
TaklikTalaqor a conditional divorce or associated with something else, then if something is achieve from it or committed then the divorce is valid. For example, a husband said to his wife, "if you get out of this house without getting permission from me then I will divorce you or if you go to your parents house then I will divorce you" and so on.
Those who are not legal in imposing the divorce arechildren, people who are mentally unstable and people who are sleeping. Rasulullahsaid that "these three types of people’s act is void.Boy until puberty, a lunatic until his madness iscured and people who sleep until awakened from his
As for the mentally unstable people his Talaq that stems from drunken-made knowingly eat or drink deliberately shall be lawful. People who are forced to divorce his wife, his Talaq is invalid as noted by Prophet Muhammad means "not valid divorce in force" narrated by Abu Dawud and al-hakim.
Some problems associated with divorce are as follows:
If there is signsindicating that the one who is being forced to divorce his wife with or withouthis own wishes thus, the Talaq is valid. For instance the husband is being force to pronounce triple Talaq but he only impose one Talaq thus, the Talaq is still valid.
If the one who iscompelling said "divorce your wife! If not, I'll kill you tomorrow "then the divorce is not valid because the threat was not carried out immediately and instantly. If the heirs of the murdered said to the killer "divorce your wife if not I will kill you!,Then all of a sudden he divorce his wife then it is valid because the one who compel is not considered cruel because it is entitled to demand vengeance against the killer.
Nowadays, some people imposing Talaq via electronic devices and so on. The question is whether the Talaq is valid or void?
Current trend of divorce is by text message(SMS).
If the divorce to be written in writing and presented to his wife, for example, instant messaging, email and so on, it is only considered valid if accompanied by an intention. That is considered Talaq in form of Kinayah (tease) and it is valid.
However, Talaq made through an electronic device does not meet the manners of divorce.
This should not be done because it seemed to lower the syariah court and test the judge's decision.
To determine whether it is valid or not, the court must investigate to ensure whether the pronouncement of Talaq is pronounced according to Islamic law and not forget to look at the pillars of divorce.
There are four conditions that must be met if an electronic divorce process described occurs. First, the husband is the messenger. Second, the husband wishes to divorce. Third, writing messages can not be wrong. Fourth, she has received and read the message. If all of the condition is filled, then the divorce is valid. Usually, the court will ask the husband to do SumpahSyari’e (oath of Syari’e) towardthe messages he has sent.
Closing.
Not all marriages end with happiness.Even the restive and misunderstanding due to no understanding between husband and wife. So to solve the problem then Islam allows husbands to divorce his wife. Muslims do not like to see his people living in disarray even want to look at every wedding of their followers peaceful, harmonious and peaceful.
Bibliography.
- Sixth form notes.