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in category Fiqh (Jurisprudence)

What is the stance of classical scholarship on triple talaq?

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I am an Islamic researcher from al-Azhar University, the Faculty of Islamic Studies, Arabic Dept. I am a Masters student of Hanafi Jurisprudence.
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[Co-authored by Ahmed Gamal
, a graduate of Islamic Studies from Al-Azhar University.] 

In a Nutshell:
There is an Ijma (consensus) of the companions and classical scholarship of madhahib on the triple divorce in one sitting is considered as an absolute irrevocable divorce (baynonah kubra) if the husband intended the three talaqat. But if he intended the affirmation (ta'keed) and not issuing the rest of talaqat, it would be counted as only one talqah. If a judge or a mufti issued a judgement to the contrary, it has to be nullified. An eighth-century hijri group of scholars however argued triple talaq in one sitting counted as one talqah (revocable divorce).
Introduction

The triple talaq (Talaq al-Thalath) has two forms: triple talaq in one sentence "anti taliq bi al-Thalathah" (you are divorced through the three talaqat) or triple talaq in three sentences (to say you are taliq (divorced), you are taliq (divorced), you are taliq (divorced)). This would be what this answer refers to by "triple talaq" below.

Classical Scholarship on Triple Talaq

All reliable and trustworthy classical scholarship of the four madhahib, even the Dhahiris, before the eighth-century of Hijrah as well as the companions, tabi'een and their followers argued the triple talaq in one sitting is counted as three talaqat (absolute irrevocable divorce) whether issued in one time or separated, but if he meant by them the ta'keed (affirmation) it would be considered as one. There is an Ijma (consensus) on this issue.

See for example the opinions of classical madhahib in the following established texts:

  • Hanafi: Zayla'i, Tabieen al-Haqa'iq, Vol. 2, p. 190;
  • Maliki: Qurtubi, al-Muntaqa fi Sharh al-Muwataa, Vol. 4, pp. 3-5;
  • Shafi'i: Khateeb Shirbeeni, Mughni al-Muhtaaj, Vol. 4, pp. 503-504;
  • Hanbali: Ibn Qudamah, al-Mughni, Vol. 7, p. 282, Al-Buhuti, Daqa'iq Uli al-Nuha, Vol. 3, p. 80;
  • Dhahiri: Ibn Hazm, al-Muhala, Vol. 9, pp. 383-400.
In the eighth-century of Hijrah, some scholars (e.g., the Hanbali mujtahid ibn Taymiyah) argued triple talaq in one sitting only counted as one talqah (revocable divorce) and quoted a number of arguments
that were either weak, corrupt, limited, , misunderstood or by unreliable scholars who lacked the necessary expertise rendering their views with no weight.

I will discuss this view later.

Evidences 

Classical scholars present a number of evidences (including Qur'an, sunnah, companions' fatwas, Ijmaa of sahabah and reliable classical scholars for seven centuries and even Qiyas) to prove their case. A contemporary study gathers the evidences presented in classical scholarship which exceed 100 in number - see Professor Salah Abu al-Haj's "Mi'at Daleel wa Daleel Ala Woqu' Talaq al-Thalath". There are also other similar books such as al-Ishfaq authored by al-Kawthari (a judge in the Ottoman Caliphate).

I will only mention some of them here - if further details are needed please review these valuable studies.

Qur'an:

There are around twelve references in the Qur'an for talaq that don't differentiate uttering the talaq in one sitting or in separate ones. All are mutlaq khitab (absolute order) that are not restricted with one or separate sittings.

For example, Allah says:

"Divorce is two times; then, either keep (her) in an acceptable manner or release (her) with good treatment." (Qur'an 2:229)
The eight-century muhadith al-Karamani argued whilst this verse is absolute (mutlaq) and no restrictions (taqyeed) are mentioned, it finds no problem with joining two talaqat together and so why should three affective talaqat be uncounted. (Shawkani, Nayl al-Awttar, Vol. 6, p. 276)

There are many other similar verses, such as:

"There is no blame upon you if you divorce women you have not touched nor specified for them a Faridah (mahr)." (Qur'an 2:236)
All of the verses do not include any taqyeed and so, putting an additional condition has to emerge from the text (or another source of legislation as we will discuss below) - something which does not exist.

Sunnah:

There are a large number of consistent comments on these verses by the Prophet (saw) with no ahadith to the contrary (except weak ahadith quoted by later scholars). These ahadith have many chains of narrators and appear in most, if not all, of the hadith collections.

For example, Umayr al-Ajlani (ra) came to the Prophet (saw) and claimed he found his wife with another man with no witnesses. He and his wife went to the Prophet (saw) and made the li'aan (as in surah al-Noor 6-10) and the man interrupted and issued the triple talaq in the presence of the Prophet (saw) to break the marriage contract and the Prophet (saw) did not object (an action known as an approved sunnah or sunnah taqririyah):

فطلنقها ثلاثاً قبل أن يَمره رسول الله
"He divorced her three times before the Messenger of Allah could have ordered him." (Muslim 3553-3555, Bukhari 5259Nasa'i 3402 and others)
The point here that he issued a triple divorce in one sitting with no objection (which is in fact an approval) of the Prophet (saw). So, if the marriage was unbroken, the Prophet (saw) would have said "you have to separate them," rather it became affected immediately. (al-Haytami, Tuhfat al-Muhtaj, p. 385, Ibn Hazm, al-Muhala, Vol. 9, p. 390)

In another hadith, ibn Umar (ra) divorced his wife with one talqah and asked the Prophet (saw) how to deal with the case. The Prophet (saw) told him to take her back in her iddah (typically around 3 months or 3 period cycles). Ibn Umar (ra) then asked:

"O Messenger of Allah, what if I had divorced her three times, would it have been legally valid for me to take her back her? He (the Prophet) said: no, she would have become irrevocably divorced (banat) and it would be a sin." (Darqutni 3488 and others)
This is a clear response from the Prophet (saw) of the effectiveness of such form of talaq and it is considered as a talaq ba'in baynonah kubra. Umar (ra) even learned the lesson and taught it to his followers when a man asked of divorcing his wife with triple divorce in one sitting. Umar (ra) replied:

"Allah's Messenger (saw) had commanded him to take her back, and then allow her respite until she enters the period of the second menses, and then allow her respite until she is purified, and then divorce her (finally) before touching her (having sexual intercourse with her).
But for you, you have pronounced (three divorces at one and the same time) you have in fact disobeyed your Lord with regard to what He commanded you about divorcing your wife. However you have irrevocably divorced her." ('Muslim 3474-3477, Nasa'i 3557)
It was also narrated a man came to the Prophet (saw) and said he issued a triple divorce but swore he meant to issue only one. The Prophet (saw) said:

"By Allah, you only meant a single divorce? Rukanah answered I swear by Allah that I meant it to be only a single divorce. The Prophet (saw) allowed him to take her back." (Abu Dawood 2206, Ibn al-Mulaqan, al-Badr al-Muneer, Vol. 6, p. 214, Tirmidhi 1177,  Musnad al-Shafi'i (al-Fadh al-Talaq section), al-Mustadrak and others)
The point here is that if the triple divorce was not counted as absolute irrevocable divorce, there is no sense of going to the Prophet (saw) to ask him and the affirmation of the Prophet (saw) of willing only one would make no sense. He would not have returned to the Prophet (saw) or the Prophet would had easily said "in both cases you are fine and she is still your wife." But the understanding of the companion and the Prophet (saw) proves the triple divorce when intended as three, it is counted as an absolute irrevocable divorce.

It was also narrated the Prophet (saw) was told of a man who divorced his wife (ثلاث تطليقات جميعًا) three talaqat together at one (sitting). The Prophet (saw) became angry for not doing it separately (which is the correct way), but he passed it and did not say take her back or she is still your wife. (Nasa'i, al-Mujtaba and others)

There are also many narrations where a man (Rifa'ah al-Quradhi) divorced his wife three talaqat and she married Abd al-Rahman ibn al-Zubayr (ra) who did not touch her. She wanted to reunite with Rifa'ah but the Prophet (saw) objected:

"No, she cannot marry the first husband unless the second husband consummates his marriage with her, just as the first husband had done." (Bukhari 5261,  5317, Muslim 1433, 3357, Muwatta 1112, Nasa'i 3407 and the rest of the nine books of hadith)
Which legally means the triple talaq has an effect (absolute irrevocable divorce) and she now needs to marry another man who has to sleep with her and then if divorced her, she can go back to the previous husband. Ibn Hajar even suggested these narrations could refer to more than one occasion with the same results. (Ibn Hajar, Fath al-Bari, Vol. 9, p. 465)

It was also narrated a man called Hafs ibn al-Mughirah issued triple talaq and came to the Prophet (saw) from Yamen to inform him of his talaq asking him whether he has to pay nafaqah or not. The Prophet (saw) responded to the nafaqah answering no and commented not on the triple talaq proving that it effected and became an absolute irrevocable talaq. (Muslim, Abu Dawood, Bayhaqi and others)

Imam Shafi'i noted:

"We don't know that the Prophet (saw) forbade this (triple divorce) and all the companions did it and gave fatwa to others with it." (Khateeb Shirbeeni, Mughni al-Muhtaaj, Vol. 4, pp. 503-504)
These narrations are enough to prove the case and there are many others in the above literature I referred to.

The Companions:

There are many fatwas and examples of the sahabah for this hukm, but I will only cite two of them.

It was narrated the grandson of the Prophet (saw) al-Hassan (ra) married a woman. When Ali (ra) was assassinated, he entered her home and she congratulated him with being a Khalifa. He believed she was rejoicing at the murder of his father so he said:

"Do you rejoice at the murder of Ali; go, you are taliq thalathan (with the three)." (Haythami, Majmaa al-Zawa'id, Vol. 4, p. 342, al-M'jam al-Kabeer 2757, Darqutni, Bayhaqi, Tabarani and others)
Someone later explained what she had meant and he was upset at leaving her, but he replied:

"If I did not hear my grandfather (saw) – or my father heard my grandfather – that he said: 'When a man divorces his wife trice together (as clarified in another narration), or trice during the period, she would not be legally permissible to marry except when she marries another husband.' I would take her back." (Ibid)
It was also narrated a man told ibn Abbas (ra) he had issued a triple divorce and asked for a solution. Ibn Abbas (ra) asvised he had issued an irrevocable divorce:

عصيتَ ربك، فبانت منك امرأتك
"You disobeyed your Lord and your wife was (irrevocably) separated (banat) from you." (Abu Dawud 2197)

Consensus:

There are many scholars reporting the ijma on this issue. I will refer to some of them here.

The fifth-century leading Maliki jurist ibn al-Arabi noted:

ولا تجد هذه المسألة منسوبة إلى أحد من السلف أبدًا
"You will not find this issue (of revocable divorce of triple talaq) attributed to any of the righteous predecessors." (Ibn al-Arabi, Adwaa al-Bayaan, Vol. 1, p. 254)
It was also reported by the fifth-century Maliki Andalusi judge ibn al-Waleed al-Baji after presenting the issue above:

والدليل على ما نقوله إجماع الصحابة ... ولا مخالف لهم.
"The evidence for what we say is the ijma of the companions … and there is not anyone disagreed with them." (Baji, al-Muntaqa, Vol. 4, p. 4)
Similar reports were mentioned by ibn al-Teen (d. 611 H), ibn Hajar, ibn Abd al-Barr, and many others. (Ibn Hajar, Fath al-Bari, Vol. 9, p. 365, Ibn Abd al-Bar, al-Istidhkaar, Vol. 17, pp. 8-9)

Objections

Some people would object and say there are some narrations from the companions' fatwa or deeds and other scholars say the contrary to the above.

This stance began in the eighth-century of Hijrah with the Hanbali mujtahid jurist and theologian ibn Taymiyah and followed by his student ibn al-Qayim, and later Shawkani and others.

They referred to some narrations from Ali, ibn Mas'ood, ibn Abbas and other companions. They also quoted some of the tabi'een such as Tawoos, Sa'eed ibn Jubayr, Ikrimah and others, in addition to later so-called scholars.

Evaluating their claims

There will be a separate answer for this issue
, but for now, I can summarise: all the narrations of the companions are weak and unreliable in the fiqhi paradigm and it was proven by the authentic narrations that they said and performed the contrary.

The same thing for the tabi'een who reported the triple divorce is baynonah kubra, except Tawoos who quoted ibn Abbas (ra), but his opinion was opposed by the more trustworthy students of ibn Abbas (ra).

Some scholars argue al-Hajaj ibn Arta'ah (a student of some of the tabi'een) noted the triple divorce is only counted one talqah. But Qurtubi argued what is well-known about him in this issue is baynonah kubra, the other opinion attributed to him is shadh (contradicts other sound and more authentic narrations). (Qurtubi, Al-Jami li Ahkam al-Qur'an, Vol. 3, p. 86)

Other scholars, such as ibn Abd al-Barr, argued even if he said so, he is definitely not a jurist but a muhaddith, so his fiqhi views are not reliable. (Al-Istidhkar, Vol. 6, p. 8)

When there is reliable evidence for a certain view that contradicts other reliable views, this would be an ikhtilaaf (valuable disagreement); but the views based on no evidence and authored by no skilled jurists is khilaaf (unconsidered disagreement).

Abu al-Baqaa al-Kafawi noted:

"Ikhtilaaf is what is based on evidence and the khilaaf is what is not based on evidence." (Kafawi, al-Kuliyaat, p. 61)

Clarifying Ibn Umar's Divorce:

There were some rumours in the Muslim world amongst unskilled scholars regarding the story of ibn Umar (ra) when he divorced his wife with one talqah and the Prophet (saw) asked him to take her back. Some minor scholars thought he issued a triple talaq and the Prophet (saw) counted it as one. But this is wrong proven by authentic narrations of the event as well as the fatwa of ibn Umar and Umar (ra) later.

For example, ibn Sireen narrated a similar story:

"Blameless narrators stayed for twenty years reporting to me that Ibn Umar pronounced three divorces to his wife while she was in the state of menses. He was commanded to take her back.
I neither blamed them (the narrators) nor recognised the hadith (to be perfectly genuine) until I met Abu Ghallab Yunus b. Jubair al-Bahili and he was very authentic, and he narrated to me that he had asked Ibn Umar and he narrated it to him that he made one pronouncement of divorce to his wife as she was in the state of menses, but he was commanded to take her back. I said: Was it counted (as one pronouncement)? He said: Why not, was I helpless or foolish?" (Sahih Muslim 1471, Bayhaqi and others)
So, this is either misunderstanding or an unconsidered disagreement (khilaaf not ikhtilaaf).

The scholars said if a judge decides against this clear-cut rule his judgement is not accepted but invalid. 

ولو حكم حاكم بأنّ الثلاث بفم واحد واحدة لم ينفذ حكمه لأنه لا يسوغ الاجتهاد فيه فهول خلاف لا اختلاف
"If a judge issued the triple divorce in one sentence (by one pronouncement) is only one talqah, his judgment is nullified because it is not acceptable to bring ijtihad in this (certain) ruling. This would be a khilaaf, not an ikhtilaaf." (Shawkani, Fath al-Qadeer, Vol. 3, p. 470)
Hanafi jurist ibn al-Humam  and the eleventh-century Hanafi judge Abu al-Baqaa al-Kafawi (Kafawi, al-Kuliyaat, p. 61) argued the same.

Is triple Talaq haram?

All classical scholars agree the triple talaq when issued affects the marriage contract as it is considered an irrevocable divorce (baynonah kubra). But they disagree on whether it is method of talaq whether it is a Sunnah ordained talaq (and so not a sinful) or bid'i talaq (and so sinful). The majority of jurists argue it is bid'i talaq, but the Shafi'i madhab argued it is a Sunnah ordained talaq (technically knwon as sunni talaq). (Ibn Qudamah, al-Mughni, Vol. 7, p. 368)

Read the full discussion here
.

Conclusion

All evidences indicate the triple divorce in one sitting is considered as an absolute irrevocable divorce (baynonah kubra) if the husband intended the three talaqat. But if he intended an affirmation or emphasis (ta'keed) and was not actually issuing the rest of the talaqat, it would be counted as only one talqah. If a judge or a mufti issued a judgement to the contrary, it has to be nullified as the Islamic ruling is clear on this matter and not open to difference of opinion.

Whilst an eighth-century of Hijrah group of scholars objected, arguing triple talaq in one sitting counted as one talqah (revocable divorce), their evidences were either weak, limited, misunderstood or issued by unreliable scholars.

References

Al-Buhuti, Daqa'iq Uli al-Nuha
Baji, al-Muntaqa
Haytami, Tuhfat al-Muhtaj
Ibn Hazm, al-Muhala
Ibn Qudamah, al-Mughni
Ibn Hajar, Fath al-Bari
 Ibn al-Mulaqan, al-Badr al-Muneer
Ibn al-Arabi, Adwaa al-Bayaan
Ibn Abd al-Barr, Al-Istidhkar
Khateeb Shirbeeni, Mughni al-Muhtaaj
Kawthari, al-Ishfaaq
Kafawi, al-Kuliyaat
Qurtubi, al-Muntaqa fi Sharh al-Muwataa
Qurtubi, Al-Jami li Ahkam al-Qur'an
Shawkani, Fath al-Qadeer
Shawkani, Nayl al-Awttar
Salah Abu al-Haj, Mi'at Daleel wa Daleel Ala Woqu' Talaq al-Thalath
Tabarani, al-M'jam al-Kabeer
Zayla'i, Tabieen al-Haqa'iq

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