HOW SHOULD THE DIVORCE (TALAQ) BE GIVEN
Islam has kept the avenue of divorce open for man. Similarly Islam has given the right of Khula' to woman and also to approach a court of law for dissolving her nikah.
. The correct procedure of pronouncing divorce is as under:
- Divorce should be given when the wife is in a state of purity', i.e. when she is clean after her menstrual period and the husband had not had sexual intercourse with her. Giving divorce during the menstrual period of the wife has been forbidden in the hadith, on the good grounds that during the menstrual period a husband is not attracted towards his wife, and in her state of cleanliness thereafter he may turn towards her and may give up the idea of divorcing her.
- Only one divorce be given, that is the husband may say to the wife: "I divorce you . He should not add any numbers to his divorce. If the divorce is being written on paper then it may be clearly stated that it is one divorce (revocable).
- Divorce be given in the presence of two just witnesses.
- After the divorce, the woman will have to pass her term of waiting (Iddat). It is that period in which a divorced woman cannot be re-marry and it is incumbent upon the husband that he should not turn her out before the end of this period of iddat, and he should provide for her maintenance during this time. Similarly it is incumbent upon the divorced woman that she should pass her period of iddat in her husband's house. The term of iddat is for three menstrual periods. When the third menstrual period is over, the period of iddat ends. And if the woman is not menstruating, then the period of iddat is three lunar months, that is from the day the divorce is given till the end of three lunar months. And if the woman is pregnant, then her period of waiting is the termination of her pregnancy (delivery):
- During the period of waiting (iddat) a husband can return to her, i.e. take her back as wife. For this revocation of divorce, two just men should be called as witnesses.
- If he has not returned to her or revoked the divorce, then after the period of waiting (iddat) is over, the woman would separate from the man. But this would be One revocable divorce'. If after this both the ex-husband and the ex-wife desire, they can re-marry. In other words after the period of iddat, man has no right of revocation, however if he wants to bring her back as a wife, there is an opportunity for him to marry her again with her willingness.
According to the Qur'an and Sunnah this is the correct and better procedure of giving divorce. In this procedure man gets full opportunity to think and to weigh the pros and cons of his steps, and there remains little or no chance for him to regret. The jurists have termed such a divorce that has been given once and in the sate of cleanliness and without an intercourse after the last menstrual period, and no second and third divorce having been given during the period of waiting"but the period of iddat was allowed to pass after one divorce"as the divorce according to Sun na h'.
WHEN SHOULD THE SECOND DIVORCE BE GIVEN
The second divorce is to be given on some other occasion, that is if the husband had taken back the wife after giving one divorce, but in spite of efforts smooth relations did not prevail, then he can give the second divorce in the manner described~ in the above lines, after which the woman will have again to spend her period of waiting (iddat). During this period of waiting, the husband can, if he wishes, return to his wife, i.e. take her back as wife. And if the period of iddat is over, then he can re-marry her with her willingness.
The divorce in which the husband has the right to return to his wife or take her back as wife or to revoke his divorces are the first and second divorces, that is the divorces given on two occasions.
WHEN CAN THE THIRD DIVORCE BE GIVEN
If after giving the second divorce, the husband has revoked his decision and taken her back, but in spite of efforts smooth relations did not prevail, and the husband wants to divorce her, then this time he should arrive at a decision with more careful consideration, because this is the divorce of the third occasion, in which the husband has neither the right of revocation, nor can he re-marry after the passing of the period of waiting unless the woman has re-married and has been divorced by the second husband.
The commands concerning this third divorce are very Strict, and it is called Talaq-i-mughallazah Bainah'. The third divorce is not only baain' (separator) (irrevocable) but is so absolute that the man and the woman cannot remarry even with mutual agreement unless the woman is married to another man and this other man divorces her by his own free will, and not in accordance with a pre-planned understanding, or unless he dies. If this second husband divorces the woman perchance or he dies, and the woman wants to go back to her former husband, then she can remarry him.
Long Story Short.
1.ZoYaan Nikah is invalid.
2. Gul can delay AsYa reunion for another six months, because of the procedure of Talaaq
More interesting is the observation that the Qur'an makes an explicit exception to the above mentioned rule for divorced women:
O you who believe: When you marry believing women and then divorce them before you have touched them, no period of idda (waiting) have you to count in respect of them: so give them a present and set them free in a graceful manner. S. 33:49
In other words, if the marriage was not yet consummated, i.e. there was no sexual intercourse, there cannot be an unborn child. In this case, the woman does not have to observe the 'iddah period; and the husband who does not like to keep her (for whatever reason), does not have to pay her expenses for another three months, which would otherwise be his obligation (cf. S. 65:6-7).
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