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in category Fiqh (Jurisprudence)

What is the sunnah method of divorce (talaq) and when does it become forbidden (bid'a)?

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Islamic researcher, graduated from Al-Azhar University, Islamic Studies in the English Language. I also studied at Temple University in the US.
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In a Nutshell:
Sunnah ordained talaq is the divorce with only one pronouncement of one talaq whilst the wife is in a non-menstrual state (tuhur) - with no intercourse since the previous menstruation.
Bid'i talaq is the opposite of the above in terms of the state of the wife (i.e. during menstruation) and the number of talaqat in one sitting is more than one. Whilst it is prohibited on the husband to issue such a talaq (Shafi'i disagreeing regarding the issuance of multiple talaqs in one sitting), all agree it affects the marriage contract.

Background

Scholars divide the talaq – in terms of its hukm – into two categories:

  • Sunnah ordained talaq (technically knowing as sunni talaq ) and
  • Bid'i talaq (prohibited method).
Scholars fully agree that both methods affects the marriage contract.

The Sunnah Method of Talaq

Scholars generally agree on the basics of the Sunnah ordained talaq (al-Talaq al-Sunni) so here I will add them without the terminological subdivisions within the Sunnah ordained talaq itself between the madhahib. This would include classifications such as those of the Hanafi school of law of the Sunnah ordained talaq into Ahsan (best way to do it) and hasan (a generally good way to do it). So, I will leave that distinction here as they may cause confusion with no significant benefit.

Sunnah ordained talaq is:

  • When a husband divorces his wife with one talqah (not triple talaq) during his wife's period of purity between menstruation (tuhr) in which he did not have intercourse with her and there is no sign of pregnancy. He is allowed to take her back during her iddah (which lasts for three menstrual cycles or aqraa).
  • It is also allowed to divorce her during her pregnancy with only one talqah.
  • If the wife's period ceased due to advanced age, or for some other reason, the husband is allowed to divorce her at any time with only one talqah.
  • If the marriage contract had not yet been consummated, it is allowed to divorce her at any time and in any state.
This is the Sunnah method - it has to do with either the number of talaqat (one talqah) and/or the state of purity, so no menses is involved during the talaq. (Abu al-Hassan, Bidayat al-Mubtadi, p. 68, Tha'labi, al-Talqeen fi al-Fiqh al-Maliki, Vol. 1, p. 124-125, Nawawi, Rawdat al-Talibeen, Vol. 8, p. 3-8)

The sixth-century jurist and philosopher ibn Rushd reported an ijma al-ullama on this issue:

أَجْمَعَ الْعُلَمَاءُ عَلَى أَنَّ الْمُطَلِّقَ لِلسُّنَّةِ فِي الْمَدْخُولِ بِهَا هُوَ الَّذِي يُطَلِّقُ امْرَأَتَهُ فِي طُهْرٍ لَمْ يَمَسَّهَا فِيهِ طَلْقَةً وَاحِدَةً، وَأَنَّ الْمُطَلِّقَ فِي الْحَيْضِ الَّذِي مَسَّهَا فِيهِ غَيْرُ مُطَلِّقٍ لِلسُّنَّةِ
"The jurists have unanimously agreed that Sunnah ordained talaq (regarding the consummated marriage) is to divorce the wife with one talqah in a tuhr in which he did not touch her and the one who divorces during the menses, he did not divorce according to the sunnah," (Ibn Rushd, Bidayar al-Mujtahid, Vol. 3, p. 86)
So, the best way to issue an irrevocable talaq is to give each talqah (of the three) separately in the wife's three purity states, ensuring he did not have intercourse with her in any of them.

The evidence for this is, for example, what Ibn Mas'ood noted:

 طَلاَقُ السُّنَّةِ تَطْلِيقَةٌ وَهِيَ طَاهِرٌ فِي غَيْرِ جِمَاعٍ فَإِذَا حَاضَتْ وَطَهُرَتْ طَلَّقَهَا أُخْرَى فَإِذَا حَاضَتْ وَطَهُرَتْ طَلَّقَهَا أُخْرَى ثُمَّ تَعْتَدُّ بَعْدَ ذَلِكَ بِحَيْضَةٍ
"The Sunnah divorce is a divorce issued when she is pure (not menstruating) without having had intercourse with her.
If she menstruates and becomes pure again, give her another divorce (if you still insist divorcing her) and if she menstruates and becomes pure again, give her another divorce (if you still insist your decision of talaq), then after that, she should wait for another menstrual cycle." (Sunan al-Nasa'i 3394)
But Hanafis argued the best way of talaq is to give one talqah in a purity state and leave her until her iddah (the waiting period) ends, not three talaqat separately in each following purity state. (Badlahi, al-Ikhtiyar li-Ta'leel al-Mukhtaar, Vol. 3, p. 122, Mukhtasar al-Quduri, p. 154, Abu al-Hassan, Bidayat al-Mubtadi, p. 68)

The Wisdom:

The reason for this is it gives a three-month period for the husband to re-evaluate his decision and for problems to be solved when they miss each other and yearn for one another.

The Prohibited Method of Talaq

The bid'i talaq is the talaq that violates the Sunnah ordained talaq above. So, we have two categories of talaq bid'i:

  • Bid'i talaq because of time in which the husband issued the talaq. He is not allowed to issue the talaq in the menstrual state, postpartum period, during her period of purity (tuhr) in which he had intercourse with her and there is no any signs of pregnancy.
    The husband must tack her back until immediately (if it was not the third talqah) and keep her for the next menstrual period as well as the following purity period then he can divorce her if he still wills.
  • Bid'i because of the number of talaqat he issued in one sitting. So, it is not allowed to issue more than one talqah or triple talaq in one sitting such as to say 'you are taliq taliq taliq,' or 'you are taliq trice.'
The talaq, in either case, was enforced and affected the marriage contract by consensus, but it is prohibited (a sin) to do it according to the majority's opinion.

The fourth-century Maliki jurist al-Tha'labi noted:

وَطَلاَقٌ الْحائِضَ وَالنُّفَسَاءِ مُحْرِمٌ وَيُلْزَمُ إِنْ وَقَعَ، وَيُجْبَرُ الْمُطْلِقُ عَلَى الرَّجْعَةِ فِيمَا كَانَ مِنْه رَجْعَِيًا ثُمَّ لَيْسَ لَهُ أَنْ يُطْلِقَ إلّا أَنَّ تَطَهُّر مِنَ الْحَيْضَةِ الثَّانِيَةِ التَّالِيَةِ لِلْحَيْضَةِ الَّتِي طَلَّقً فِيهَا

"It is haram (prohibited) to divorce the woman in menstruation or after child-birth (ha'id and nufasaa). When occurred, it is necessary to force the husband to take her back (raj'ah) when he has not yet finished the three talaqat.
He can only then divorce her after she is purified from the next following menses period after the hayd in which he divorced her." (Tha'labi, al-Talqeen fi al-Fiqh al-Maliki, Vol. 1, p. 125)
Similarly, was noted by the Shafi'i jurist imam juwini who reported the agreement of scholars on it:

يَحْرُمُ عَلَى الرَّجُلِ أَنْ يُطْلِقَ زَوْجَتَهُ الْمَدْخُولِ بِهَا فِي زَمانِ الْحَيْضِ … هَذَا مُتَّفَقٌ عَلَيه

"It is haram against the husband to divorce his wife, with whom he consummated the marriage, during her menses … this notion is agreed upon." (Juwini, Nihayat al-Matlab fi Dirayat al-Madhab, Vol. 14, p. 4)
The evidence used for this ijma is the famous incident of ibn Umar (ra) when he divorced his wife during her menses:

قُلْتُ لاِبْنِ عُمَرَ رَجُلٌ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ فَقَالَ أَتَعْرِفُ عَبْدَ اللَّهِ بْنَ عُمَرَ فَإِنَّهُ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ فَأَتَى عُمَرُ النَّبِيَّ صلى الله عليه وسلم فَسَأَلَهُ فَأَمَرَهُ أَنْ يَرْجِعَهَا ثُمَّ تَسْتَقْبِلَ عِدَّتَهَا ‏.‏ قَالَ فَقُلْتُ لَهُ إِذَا طَلَّقَ الرَّجُلُ امْرَأَتَهُ وَهْىَ حَائِضٌ أَتَعْتَدُّ بِتِلْكَ التَّطْلِيقَةِ فَقَالَ فَمَهْ أَوَإِنْ عَجَزَ وَاسْتَحْمَقَ.
"I said to Ibn 'Umar (Allah be pleased with them): A person divorced his wife while she was in the state of menses, whereupon he said: Do you know 'Abdullah b. Umar (Allah be pleased with them), for the divorced his wife in the state of menses. 'Umar (Allah be pleased with him) came to Allah's Apostle (saw) and asked him, and he (the Holy Prophet) commanded him that he should take her back, and she started her 'idah. I said to him: When a person divorces his wife, and she is in the state of menses, should that pronouncement of divorce be counted? He said: Why not, was he hopeless or foolish?" (Sahih Muslim 3484)
For triple talaq there is an Ijmaa (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. 
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.

Read a full discussion on triple talaq here
.

Scholarly Juristic Analysis

There are some issues that classical scholarship of madhahib disagree one. One of the most important of them if the triple talaq. They all agree on 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 Sunnah ordained talaq (and so not a sinful) or Bid'i (and so sinful). The majority of jurists argue it is Bid'i talaq, but the Shafi'i madhab argued it is Sunnah ordained talaq. (Ibn Qudamah, al-Mughni, Vol. 7, p. 368)

Shafi'i's Evidence:

Imam Shafi'i used the hadith of Umayr al-Ajlani (ra) who 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 one sentence) 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):

فَطَلَقَهَا ثَلَاثًا قَبْلَ أَنَّ يَمُرْهُ رَسُولَ اللهِ
"He divorced her three times before the Messenger of Allah could have ordered him." (Muslim 3553-3555, Bukhari 5259, Nasa'i 3402and 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, but he Prophet (saw) did not condemn his action, so it is not forbidden. (Ibn Rushd, Bidayar al-Mujtahid, Vol. 3, p. 86, Al-Haytami, Tuhfat al-Muhtaj, p. 385, Ibn Hazm, al-Muhala, Vol. 9, p. 390)

The Majority's Arguments:

The majority of classical scholars argue the contrary of Shafi'i's view due many narrations mention that such an activity is a sin (معصية):

For example, in the hadith of ibn Umar (ra) above. Ibn Umar (ra) then asked the Prophet:

يا رَسُولٌ اللَّهِ رَأَيْتَ لَوْ أَنَِّي طَلَقْتُهَا ثَلَاثًا أَكَانَ يَحِلُّ لِي أَنْ أُرَاجِعَهَا، قَال: لَا كَانَتْ تَبَين مِنْكَ وَتَكُونُ مَعْصِيَةَ

"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)
In another hadith when one of the sons Ubadah ibn al-Samit (ra) divorced his wife 100 times in one sitting, he asked the Prophet (saw) who replied:

بَانَتْ بِثَلَاثٍ فِي مَعْصِيَةٍ، وَتِسْعُمِائَةٍ وَسَبْعٌ وَتِسْعُونَ فِيمَا لَا يَمْلِكُ
"She was irrevocably divorced with three of them, but he does not have the authority to issue 97 talaqat whom he does't own." (Badlahi, al-Ikhtiyar li-Ta'leel al-Mukhtaar, Vol. 3, p. 122)
The Hanafi jurist al-Jasas noted:

وَأَنَّ جَمْعُ الثَّلاثِ مَعْصِيَةً؛ لِقُوّلِهِ عَلَيهِ الصَّلاَةِ وَالسّلامِ : فَتَكُونُ مَعْصِيَةً.

"Triple talaq is a sin because the Prophet (saw) said (regarding it): it would be a sin." (Abu Bakr al-Jasas, Sharh mukhtasar al-Tahawi, Vol. 5, 19)
Similarly, other jurists argued the same in the above quoted literature except for Shafi'i texts.

The view of the majority seems more convincing as the silence of the Prophet (saw) in the evidence of Shafi'i does not mean he did not condemn it in a later incident as reported in many ahadith; the possibility also remains the narrator did not narrate some later comment by the prophet (saw) or why he remained silent. When the Maliki jurist Ibn Rushd evaluated the views, he too recommended the majority's view. (Ibn Rushd, Bidayar al-Mujtahid, Vol. 3, p. 86)

Objection

Some Shiites scholars argued the triple talaq is haram, and doesn't affect the marriage contract (meaning it is not counted at all, not even one talqah). They argued the shari'ah identified the way to divorce and whoever divorces contrary to this has not done it in an Islamic way and so it has no effect.  (Ibn Rushd, Bidayar al-Mujtahid, Vol. 3, p. 87)

But this argument is too weak as the shari'ah recognised both ways and identifies the separated divorce to be the Sunnah ordained talaq but the triple divorce as Bid'i and both of them affect the marriage contract. So, the hukm is from within the shari'ah, not an external ruling. (See a full discussion here.)

Imam Juwaini commented on their view:

اتَفَقَ حَمَلَةُ الشَّرِيعَةِ عَلَى أَنَّ الطَّلاَقَ - وَإِنَّ كَانَ مُحَرَّمًا - نَافِذٌ، وَلَا اِكْتِرَاثَ بِمُخَالَفَةِ الشِّيعَةِ فِي ذَلِكَ

"The carriers of shari'ah (classical scholars) agreed that (the triple) talaq – even if prohibited – it is executed and there is no weight for the disagreement of Shiites on this." (Juwini, al-Diraysh, Vol. 14, p. 8)
This answer was co-authored with Muhammad Talaat, a Master student of comparative jurisprudence at Al-Azhar University.

Conclusion

Sunnah ordained talaq is the divorce with only one pronouncement of one talaq whilst the wife is in a non-menstrual state (tuhur) - with no intercourse since the previous menstruation.
Bid'i talaq is the opposite of the above in terms of the state of the wife (i.e. during menstruation) and the number of talaqat in one sitting is more than one.

It is prohibited for the husband to issue such a talaq (Shafi'i's disagreement regarding the issuance of multiple talaqs in one sitting is unpersuasive), it affects the marriage contract. During the period renders it ineffective whilst multiple talaqs terminates it and counts as three.


References

Abu al-Hassan, Bidayat al-Mubtadi
Abu Bakr al-Jasas, Sharh mukhtasar al-Tahawi
Al-Haytami, Tuhfat al-Muhtaj
Badlahi, al-Ikhtiyar li-Ta'leel al-Mukhtaar
Juwini, Nihayat al-Matlab fi Dirayat al-Madhab
Ibn Rushd, Bidayar al-Mujtahid
Ibn Qudamah, al-Mughni
Ibn Hazm, al-Muhala
Quduri, Mukhtasar al-Quduri fi al-Fiqh al-Hanafi
Tha'labi, al-Talqeen fi al-Fiqh al-Maliki

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