Triple Talaq, Halala, AIMPLB  and UCC

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Triple Talaq, All India Muslim Personal Law Board (AIMPLB) and Uniform Civil Code (English)

Part 1

Part 2

Triple Talaq, All India Muslim Personal Law Board (AIMPLB) and Uniform Civil Code (Urdu)

Part 1

Part 2

Part 3

Fatwa on Halala

Shaykh (Mufti) Ebrahim Desai (HA)

Q. When a hus­band divorces his wife three times, she is already trau­ma­tized, why does Shari­ah pun­ish her again by sub­ject­ing her to halalah? Why isn’t a sim­ple nikah suf­fi­cient with­out con­sum­ma­tion? Why should the divorcee be dirt­ied by anoth­er man? I per­son­al­ly won’t return to such a woman. Doesn’t the process of halalah also cre­ate temp­ta­tions of oth­er men in the divorcee?

A. The con­cept of halalah, where the divorcee of three times (Talaq-e-Mugal­lazah) is required to mar­ry anoth­er man and have the mar­riage con­sum­mat­ed as a pre­con­di­tion for her to revert to her hus­band is express­ly men­tioned in the Quran (Baqarah: 230) and many Aha­dith (Bukhari, vol. 2 — pg. 731 H.M. Saeed). Allah Ta’ala is Al-Hakeem (The All-Wise). Every decree of Allah is filled with wis­dom. The full depth of the wis­dom of Allah Ta’ala can nev­er be fath­omed by all the most intel­li­gent peo­ple of the world. We as the slaves of Allah Ta’ala are duty bound to express sub­mis­sion to Allah. He is our Mas­ter and we are His slaves. We have to sim­ply obey the orders of Allah whether we under­stand them or not. Allah out of infi­nite mer­cy has also grant­ed the under­stand­ing of deen to the Ula­ma. That under­stand­ing cre­ates a sense of ful­fill­ment in express­ing servi­tude to Allah. The prac­tice of halalah is the express order of Allah. This was also advised by Rasu­l­ul­lah (sal­lal­lahu alay­hi wasal­lam) to the wife of Rifa’ah Al-Qurazi who was pre­vi­ous­ly mar­ried to Abdul Rah­man Ibn Zabeer. This inci­dent is record­ed in almost every book of Hadith and sev­er­al places in Bukhari. Let us briefly dis­cuss the wis­dom of this decree of Allah. Shari­ah has grant­ed a lofty posi­tion to a woman as a daugh­ter, as a wife, as a sis­ter and as a moth­er. She ascends on the throne of nobil­i­ty as she pass­es the dif­fer­ent phas­es of a woman. My focus here is only on her posi­tion as a wife and main­tain­ing the mar­riage bond.

It is men­tioned in Bukhari that at the time of Jaahiliyah a man could divorce his wife for any num­ber of times and take her back as he wished to. Any noble woman would under­stand the trau­ma of this prac­tice. She can nev­er be focused in life. There is absolute­ly no dig­ni­ty or hon­or for her if she is repeat­ed­ly divorced. Her posi­tion as a wife is always in sus­pense. She was no more than a cheap com­mod­i­ty, in fact worse. The rea­sons for that are clear as she is a human being with feel­ings equal to a man. Shari­ah has restored her with a right of dig­ni­ty and restrict­ed the unlim­it­ed num­ber of divorces. If a man wants her as a wife, he must under­stand the com­mit­ment of mar­riage and the respect of his wife. He knows ahead of time that the lim­it of divorce is three. Shari­ah has advised him that divorce is the most abhorred thing. Rasu­l­ul­lah (sal­lal­lahu alay­hi wasal­lam) said, Ver­i­ly the most abhorred among per­mis­si­ble things is divorce. The hus­band must exer­cise restraint and tol­er­ate his wife just as she too, tol­er­ates him.

If he divorces her express­ly one or two times (Talaq-e-Raji) in one sit­ting or in dif­fer­ent sit­tings then he can uni­lat­er­al­ly take her back with­in the peri­od of iddat. He can­not take her back there­after with­out her con­sent. This is also the rul­ing if an indica­tive divorce (Talaq-e-Ba’in) was issued. It is now her inde­pen­dent right. She must decide whether she wants to live with the man that divorced her and abused her. Once he gives her three divorces, he just can­not have her back. Now it is not even her right to decide to go back to her ex-hus­band. Shari­ah steps in to pro­tect her dig­ni­ty and hon­or and stop abuse against her. A woman by nature gives in more often and eas­i­ly than a man. It is pos­si­ble she may sim­ply sub­ject her­self to her abu­sive hus­band. Shari­ah con­sid­ers her nature and now throws a strong armour around her. She now is the sole right of the Shari­ah. Now nobody owns her. Her abu­sive hus­band needs to be treat­ed with con­tempt. Any noble man who knows the con­se­quences of three divorces and the process to have his wife back will nev­er divorce his wife. He will respect her and tol­er­ate her. The pur­pose of halalah is clear­ly mis­un­der­stood. It is incor­rect­ly regard­ed as an unjust pun­ish­ment to the divorcee. In fact, the insti­tu­tion of halalah is to pro­tect a woman against the abuse of divorce. If a man can­not respect his wife, he is not wor­thy of respect. He must be taught the hard way. This does not mean that halalah is a pun­ish­ment to the woman.

Shari­ah does not impose on her to remar­ry. It is her right. She can choose not to re-mar­ry. If she does mar­ry, it should not be to mere­ly ful­fill a pre­req­ui­site to revert to her ex-hus­band. It is to be a mar­riage of hon­or and dig­ni­ty, a per­ma­nent and nor­mal mar­riage with all its rights. If this mar­riage hap­pens to be unsuc­cess­ful, then again she has the right to mar­ry her ex-hus­band. She does not have to if she choos­es not to remar­ry him.

It is clear from the above expla­na­tion that the con­cept of halalah is:

  1. To pro­tect the wife from the abuse of her hus­band.
  2. The hus­band should under­stand the impli­ca­tions of three divorces and exer­cise restraint.
  3. If he does not con­tain him­self, he can­not be giv­en an unlim­it­ed right of divorce.

The above expla­na­tion and sub­se­quent points ful­fil you. Now, revert­ing to your points;

  1. You enquire why must she con­sum­mate her mar­riage with her new hus­band. Our response is why not. Why did she re-mar­ry? Just to legit­imize her return? She should not enter into a mar­riage with that inten­tion. If she does so, what rem­e­dy is there for a woman who does not accept the dig­ni­ty grant­ed to her by Shari­ah? She is sub­ject­ing her­self to a process for her abu­sive ex-hus­band.
  2. You state you will nev­er return to a woman dirt­ied by anoth­er man. If you feel like that, you can be a per­fect hus­band and nev­er divorce your wife for her to be “dirt­ied” by anoth­er man. If you do divorce her, why would you be wor­ried about her being dirt­ied for you? You did worse to her by your abuse to her than her mere­ly being dirt­ied. An abu­sive hus­band needs the psy­cho­log­i­cal pun­ish­ment of halalah. If the ex-hus­band feels she is dirt­ied, he doesn’t have to take her back if he doesn’t want to. Nobody forces him to do so. It is his choice. He must decide. If he takes her back, why call her dirty?
  3. You enquire that her sleep­ing with anoth­er man cre­ates more temp­ta­tions for her. That is cor­rect. The hus­band must real­ize all this ahead of time and exer­cise con­trol. A chaste woman will only ful­fil her­self in a legit­i­mate avenue. She will look after her chasti­ty and respect. We are dis­cussing the preser­va­tion of the dig­ni­ty and hon­or of an Allah fear­ing chaste woman, not just any woman.