Presentation on theme: "Three or One: The Debate About Three Talaq in One Session Under Islamic Law By Dr. Muhammad Munir, Associate Professor Department of Law, IIUI."— Presentation transcript:
Three or One: The Debate About Three Talaq in One Session Under Islamic Law By Dr. Muhammad Munir, Associate Professor Department of Law, IIUI
Three or One Talaq: An Outline What are the different types of talaq? What is the position of majority (jamhur)? What is the position of Ibn al-Taymiyyah, Ibn- al-Qiyyam, and Shi‘a Imamiyyah? What are the arguments of majority? What are the arguments of minority? Which opinion is adopted by Muslim States in their legislations?
Three or One Talaq: Outline What is the law on talaq in Pakistan and Bangladesh? How is the law on talaq in Pakistan interpreted by Courts?
Types of talaq in Islamic law There are two main types: 1. talaq al-sunnah (talaq in according with the sunnah) 2. talaq al-bid‘a (talaq not in conformity with the sunnah) Talaq al-sunnah is divided into two: 1. Ihsan and 2. Hasan
Types of talaq Ihsan: the husband pronounces only one talaq when the wife is in her purity in which he has not had sexual intercourse with her and does not revoke it till the end of the third purity. After the iddat period both can remarry with a fresh nikah without an intervening marriage
Types of talaq Hasan: The hasan form of talaq is commonly misunderstood by most modern authors. They believe that in this mode of talaq the three repudiations must be made in three successive or consecutive tuhrs (periods in which the wife is free from menstruation) However, this is not the right procedure of the hasan form since it is the minimum time period in which the three separate pronouncements will be completed, not the maximum period for this form of talaq
Types of Valid Talaq A valid talaq is divided by jurists into: Ba’in (Irrevocable) and raji‘ (revocable) Ba’in divorce is due to the absence of consummation, or due to the number of pronouncements of divorce. In the raj‘i divorce the husband possesses the right over his wife’s return, without there being a choice for her in the matter provided that the marriage is consummated
Issues about triple talaq What is triple talaq? Is triple talaq permissible? What is the position of jamhur (majority) regarding it? Is triple talaq binding and effective?
What is triple talaq? Jurists disagreed to the form of triple divorce first, where the divorce is pronounced thrice in one majlis (session) within one phrase such as ‘anti taliq thalathan’ (you are divorced thrice); secondly, where the divorce is uttered in three sentences in one majlis (session) such as, ‘anti taliq anti taliq anti taliq’ (you are divorced, you are divorced, you are divorced).
Triple talaq The majority of Muslim jurists agree that triple talaq, is not permissible. They argue that it is an innovation and its performance is prohibited. However, if this type of divorce is performed, the overwhelming majority of Sunni jurists consider it as a valid, binding and effective divorce.
The legal effect of triple talaq If the divorce is pronounced thrice in one phrase at once, such as, ‘you are divorced thrice’ or repeated three times in one session, such as ‘you are divorced, you are divorced, you are divorced’, or if the divorce is uttered at three different times within one purity or menstruation without any revocation,
The legal effect of triple talaq This has the effect of the third and final repudiation according to the majority of jurists among the sahaba, Tab‘een, those who came after them, and the fuqah of the four Sunni schools of thought including the four founders and their disciples
Arguments of the majority First, the Qur’an states that “talaq is twice; then either to retain in all fairness, or to release nicely.” [2:229] They argue that the verse allows a husband to tell his wife, anti taliq, anti taliq at once, and if he did it, it is valid, binding and effective. In the next verse, the Qur’an mentions the third repudiation and says:
Arguments from the Quran ‘Thereafter, if he divorces her, she shall no longer remain lawful for him unless she marries a man other than him. Should he (the second husband) too divorce her, then there is no sin on them in their returning to each other, if they think they would maintain the limits set by Allah. These are the limits set by Allah that he makes clear to people who know (that Allah is alone capable of setting these limits).’ (2:230)
Arguments from the Quran The third repudiation mentioned in this verse may be pronounced in the same tuhr in which the two are already pronounced. They argue that the Qur’an uses the alphabet ‘fa’ and not the word ‘thumma’ (fain talaqha, i.e. thereafter, if he divorced her) for the third repudiation which means that if the husband pronounced the third repudiation in the same tuhr in the same session, then it will be valid, effective and binding whether or not such a talaq was allowed or permissible in essence
Arguments from the Qur’an The Qur’an says, “O Prophet! When you [intend to] divorce women, divorce them with a view to the waiting period appointed for them, and reckon the period [carefully], and be conscience of God, your Sustainer. … These, then, are the bounds set by God – and he who transgresses the bounds set by God does indeed sin against himself …. (65:5)
Arguments from the Qur’an Jamhur argue that the first part of this verse pertains to talaq al-sunnah and the second part (i.e. these, then, are the bounds set by God - and he who transgresses the bounds set by God does indeed sin against himself) is in respect of triple talaq in one phrase or three different phrases in one session because if it were not effective and binding, he would not be transgressing the limits set by God
Arguments from the Sunnah It is reported that Rukana b. ‘Abd Yazid divorced his wife “batta” in a single session, and was greatly saddened in his longing for her. The Prophet asked him, how did he divorce her? Rukana said that he divorced her thrice in a single session but he intended one. The Prophet (peace be upon him) asked him to swear on God that he intended only one, which he did.
Arguments from the Sunnah According to some jurists and commentators, if three talaq in one session would not be effective, then why would the Prophet ask Rukana to swear that he intended only one and not three (talaq)? Batta: Literally, it means talaq that severs relations between a husband and a wife. The jurists differed on the meaning of ‘batta’ talaq. Some argue that it means either one or three talaq. Others bring in two talaq into it.
Arguments of Minority “talaq is twice (al-talaqu marratan) [2:229].; then either to retain in all fairness, or to release nicely” they argue that the word ‘marratan’ means ‘marrtan b‘da marrah’ (i.e. one after the other). This means that the talaq in which the husband has the right to exercise revocation is to divorce her twice, one after the other and it does not make any difference whether the husband pronounces one or three or one thousand talaq.
Arguments of minority Hadith: “‘Abdullah b. ‘Abbas who said: ‘The divorce in the period of the Prophet, Abu Bakr and in the first two years of the caliphate of ‘Umar, if pronounced thrice at once was counted as one, but ‘Umar gave it effect against them.” (‘al-talaq kana ‘ala ‘ahdi Rasulolallah …’)
Arguments of minority Hadith of Ibn ‘Abbas: ‘Rukana divorced his wife thrice in a single session and was greatly saddened in his longing for her. The Prophet questioned him, ‘how did you divorce her?’ He replied, ‘I divorced her thrice in a single session.’ The Prophet said ‘that is a single divorce, return to her by revocation if you want.’
Ibn Taymiyyah’s opinion Ibn Taymiyyah considers the ruling of ‘Umar (i.e. three talaq means three) in the nature of ‘discretionary punishments’, which can be used when it is needed. He mentions that 1. ‘Umar’s ruling was opposed by his opponents amongst the companions, 2. because this ruling did not differentiate between those who deserved punishment, 3. because they performed it intentionally, while aware of its consequences, and those who performed it in ignorance, i.e. were unaware of its consequences.
Ibn Taymiyyah Ibn Taymiyyah asks how the jamhur can consider triple divorce to be impermissible and yet also claim that the resultant talaq is binding. The textual evidences necessitate that only the talaq al-Sunna can be binding, argues Ibn Taymiyyah.
Ibn Taymiyyah’s opinion He charges that, if this divorce is considered by the Lawgiver to be impermissible but valid, what purpose is served by the division of divorce into, permissible and prohibited? If this were true it would lead to the existence of a contradiction in the legal rulings, but Allah is far removed from making contradictory rulings.
Evaluation/rebuttal of the arguments of minority The jamhur question the hadith reported by Ibn ‘Abbas that ‘the talaq [al-talaq] at the time of the Prophet, Abu Bakr and the first two years of khilafa of ‘Umar …’ and ask, what is meant by ‘al-talaq’ in this hadith? If it meant every form of talaq, then a person divorcing his wife in three successive tuhr would also be considered to have pronounced only one.
rebuttal Hadith Ibn Abbas: Tawus – the reporter is considered as a liar and a fabricator of ahadith The fatwa of Ibn ‘Abbas is against the hadith of Tawus
rebuttal since pronouncing three talaq in one phrase or in three sentences in one session was a prohibited act; was condemned by the Prophet and was considered as ‘istihza’ bi Kitabillah’ (mockery with God’s law). then could the sahabs dare to carry out this illegal act at the time of the Prophet, Abu Bakr and in the beginning of ‘Umar’s ruling? were the sahabas pronouncing bid‘i talaq all the time and were committing this bid‘at for 15 years?
rebuttal Many jurists have attempted to defend this solitary hadith from Ibn ‘Abbas but one has to be very careful when doing this because it is a matter of halal and haram (permitted and prohibited) and any hadith which is not even acceptable to its reporter cannot be accepted in haste.
rebuttal If some bad practice existed at the time of the Prophet, it does not necessarily imply that he knew about it and that such practice was taking place with his permission. certain practices took place at that time but the Prophet had no knowledge of them. Moreover, since the above hadith is neither the saying nor the act of the Prophet (al-talaq kana ‘ala ‘ahdi Rasulolallah …), then why should it be raised to the status of a textual authority?
rebuttal Ibn Hazam who argues that “there is nothing in this hadith which proves that the Prophet treated three talaq as one or counted them as one. Nor does it reveal that the Prophet ordered this practice to be maintained when he knew about it because what is counted as a proof is only acceptable if the Prophet said something, or did it or approved it.”
rebuttal It does not mean that three talaq in one session were considered as one. It simply means that at that time people used to pronounce one talaq instead of three. Thereafter, if the husband wanted, he would give a second and a third in the two successive tuhr otherwise he would wait till the end of the third tuhr till the wife would become free from him. This hadith does not tell us that talaq pronounced used to be three but would be counted as one.
rebuttal If the report of Tawus was a well-known social fact of that time, then why only one man (who does not have good reputation among the muhadithin) is reporting it? Such a known social reality should have been reported by many of his contemporaries.
rebuttal How could the companions of the Prophet keep quiet when ‘Umar allegedly innovated the rule? i.e. that three talaq in one session will be considered as three. Hadith Rukana: The Jamhur argue that Rukana pronounced only one talaq and not three and this narration has the support of Rukana’s family;
rebuttal There are authentic reports from ‘Abdullah b. ‘Abbas in which he considers three talaq in one session as valid, binding and effective
conclusions It can be concluded from the above criticism that the hadith of Ibn ‘Abbas, i.e., talaq at the time of the Prophet …, 1. is not authentic; 2. it shall not be called hadith of the Prophet but is a narration attributed to Ibn ‘Abbas who himself, as reported in many other ahadith, considers three talaq in one session as valid, binding, and effective;
conclusions 3. if it is accepted as authentic, it does not say three talaq used to be counted as one. It only mentions that people used to pronounce one talaq; 4. declaring three talaq as one and treating three talaq of ‘ghayr madkhulanbiha’ (woman with whom the marriage is not consummated) to be having the same legal effect as all other forms of talaq cannot be accepted because of its contents as well as its narrators;
conclusions 5. the hadith of Rukana cannot be accepted as all the narrators are very da‘ef (weak) and are known for fabricating ahadith. In case the hadith is authentic even then it shows that three talaq are counted as three otherwise why was the Prophet asking Rukana to swear that he intended one; 6. how can da‘ef ahadith (weak reports), such as, ‘the talaq at the time of the Prophet …’ as well as the hadith of Rukana be used as proof for making something legal or illegal.
The Position of Shi‘a Imamiyyah Shi‘a Imamiyya consider three pronouncements in one session as haram (illegal). ‘Allama Hilli argues that if a person uttered three talaq in one session, nothing [no talaq] is affected. In another place of his book he says: one talaq is counted.
The Position of Shi‘a Imamiyyah Qutbuddin al-Rawandi compares talaq with li‘an and says, “just like in li‘an swearing four times is obligatory, but if four [oaths] are uttered in one phrase, it will not be effective, similarly, if [during the hajj] seven stones are thrown together to hit the devil [a symbolic hitting of devil called rami], it will not be effective (i.e. counted as seven times), so is [the issue of] the talaq.
conclusions To sum it up, if divorce is pronounced thrice in one phrase at once, or repeated three times in one session, or the divorce is uttered at three different times within one purity or menstruation without any revocation, this has the effect of the third and final repudiation according to the majority of jurists among the sahaba, Tabi‘in, those who came after them, and the fuqaha of the four Sunni schools of thought including the four founders and their disciples.
conclusions The majority of Muslim jurists agree that three pronouncements in one session are not permissible but when pronounced will be effective, valid, and binding in law.
Conclusions According to Ibn Taymiyyah, Ibn al-Qiyamm, and Shi‘a Imamiyyah, three pronouncements in one session amount to one Both sides have bitterly criticized the ahadith put forward by the other side The hadith of Ibn Abbas, if authentic, is his saying and not a saying of the Prophet or his approval It doesn’t say that three talaq in one session used to be counted as one It only mentions that people used to give one talaq