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in category Fiqh (Jurisprudence)

Does triple talaq in one session count as one or three?

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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
graduate from al-Azhar University, Islamic studies department.]  

In a Nutshell:
Triple talaq counts as 3 talaqs - this is the ijma (consensus) of the companions and classical scholarship across all schools of thought who agreed it was an absolute irrevocable divorce (baynonah kubra) if the husband intended the three talaqat. But if he intended it just for emphasis (ta'keed) and not issuing all 3 talaqat, it would be counted as only one talqah.
An eighth-century group of Hijrah of scholars differed to this stance, arguing triple talaq in one sitting counted as one talqah (revocable divorce), their evidences were either weak, limited, or misunderstood or issued by unreliable scholars.
Background

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 is what this answer refers to as "triple talaq".

The Stance of classical Scholarship

There is an ijma (consensus) of classical scholarship of madhahib (legal schools of thought) on the triple divorce in one sitting is an absolute irrevocable divorce (baynonah kubra) if the husband intended the three talaqat. But if he intended emphasis (ta'keed) and not issuing 3 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.

It was also reported by the fifth-century Maliki Andalusi judge ibn al-Waleed al-Baji after presenting the issue above:

وَالدَّليلُ عَلَى مَا نَقُولُهُ إِجْمَاع الصَّحَابَةِ ... وَلَا مُخَالِف لِهُمْ .

"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)
Whilst an eighth-century of Hirah 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.

To review a full discussion of classical scholars view on the issue and their evidences and arguments, read this answer
.

The Eighth-Century Objection

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. (Shawkani, Nayl al-Awtaar, Vol. 6, p. 274)

Qur'anic Evidence

They quoted a verse:

الطَّلَاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ 
"Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment." (Qur'an 2:229)
They interpreted the word (مرتان - two times or twice) as two separate times (دُفَعَات) and so the triple talaq is counted as one batch (duf'ah). (Shawkani, Nayl al-Awtar, Vol. 6, p. 274)

But this understanding is not correct and was not noted by any of classical mufasiroon before the eighth-century pf Hijrah. All of the mufasiroon say the verse refers to the Sunnah ordained talaq
who have to be issued in this way, i.e. one talqah in a purity state, then one talqah in the following purity state and then one final talqah in the following purity state without interruption with intercourse. (Tabari, Jami al-Bayan, Vol. 2, p. 456, Kalbi, al-Tasheel li-Ulum al-Tanzeel, Vol. 1, p. 82, Razi, Mafatih al-Ghayb, Vol. 3, p. 385, ibn al-Jawzi, Zad al-Maseer, Vol. 1, p. 263, ibn Atiyah, al-Muharar al-Wajeez, Vol. 1, p. 306)

Narrations from the Companions:

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, except the narration of Tawoos who quoted ibn Abbas (ra), but his opinion was opposed by the more trustworthy students of ibn Abbas (ra). So, the narration of Tawoos is shadh (contradicts other sound and more authentic narrations).

Many of the contemporary, and former, scholars and found there is no one authentic narration except a shadh narration of ibn Tawoos. For example, Prof. Hashim Jameel, an Iraqi jurist who studied at al-Azhar, made a review and checked the narration quoted and he concluded:

أما الصحابة الذين نقل عنهم هذا القول، فلم أعثر على نقل مسند عن أحد منهم إلا عن ابن عباس نقله عنه أبو داود من رواية طاوس، وهي رواية انفرد بها طاوس مخالفًا بذلك بقية أصحاب ابن عباس الذين نقلوا عنه هذا القول بما يوافق الجمهور، فهي على هذه الرواية شاذة، ولو سلمت من الشذوذ فإن ما جاء فيها هو رأي قديم لابن عباس صح رجوعه عنه.

"For the companions who were quoted saying this opinion, I did not found any musnad (with full sound chain of narrators) narration from them except from ibn Abbas reported by Abu Dawood on the authority of Tawoos.

But this is a narration only reported by Tawoos contradicts the rest of the students of ibn Abbas (ra) who narrated his view that matches with the view of the majority of scholars (triple talaq is an irrevocable divorce). So, it is a shadh narration; if it was not a shadh narration, it would be an old view of ibn Abbas whom he gave up (as narrated in) sound (narrations)." (Hashim Jameel, Fiqh Sa'eed ibn al-Musayb, Vol. 3, p. 319)

The narration of ibn Abbas of Umar changing the ruling:

It was narrated on the authority of ibn Abbas (ra):

ابْنِ عَبَّاسٍ، قَالَ كَانَ الطَّلاَقُ عَلَى عَهْدِ رَسُولِ اللَّهِ صلى الله عليه وسلم وَأَبِي بَكْرٍ وَسَنَتَيْنِ مِنْ خِلاَفَةِ عُمَرَ طَلاَقُ الثَّلاَثِ وَاحِدَةً فَقَالَ عُمَرُ بْنُ الْخَطَّابِ إِنَّ النَّاسَ قَدِ اسْتَعْجَلُوا فِي أَمْرٍ قَدْ كَانَتْ لَهُمْ فِيهِ أَنَاةٌ فَلَوْ أَمْضَيْنَاهُ عَلَيْهِمْ ‏.‏ فَأَمْضَاهُ عَلَيْهِم
"Ibn 'Abbas (Allah be pleased with them) reported that the (pronouncement) of three divorces during the lifetime of Allah's Messenger (saw) and that of Abu Bakr and two years of the caliphate of Umar (ra) (was treated) as one. But Umar b. Khattab (ra) said:
Verily the people have begun to hasten in the matter in which they are required to observe respite. So if we had imposed this upon them, and he imposed it upon them." (Sahih Muslim 1472)
Adherents of the view of triple talaq counted as one talqah argue this means the stance in the time of the Prophet (saw) and Abu Bakr (ra) was the triple talaq is only counted as one talqah but Umar (ra) changed it as people underestimated it and so it was forced upon them to be counted as three. (Shawkani, Nayl al-Awtar, Vol. 6, p. 278)

Imam Nawawi argued this meaning is unlikely because it means: In the time of the Prophet (saw) and Abu Bakr (ra), people used to issue triple talaq willing with it the emphasis (ta'keed) not the three talaqat (which is considered by classical scholarship as one talqah is the husband intended only the affirmation) as it was the custom at that time. But in the time of Umar (ra), people over-used it and may have claimed every time it was for emphasis. So, Umar (ra) wanted to limit this and counted it as three. (Nawawi, Sharh Muslim, Vol. 10, p. 71)

What supports this understanding is that Umar (ra) explaned why he did this:

الناس استعجلوا في أمر كانت لهم فيه أناه
"Verily the people have begun to hasten in the matter in which they are required to observe respite." (Hadith ibid)
So, the nature and the custom of people had changed. The same explanation was also noted by the third-century Shafi'i judge ibn Surayjj, the Hanafi jurist al-Baji, Bukhari al-Hanafi, ibn Abd al-Barr, and others. (Ibn Hajar, Fath al-Bari, Vol. 9, p. 364, Ibid)

For example, Zayla'i reported:

إن قول الزوج أنتِ طالق أنتِ طالق أنتِ طالق كانت طلقة واحدة في العصرين؛ لقصدهم التأكيد والإخبار وصار الناس بعدهم يقصدون التجديد والإنشاء.
"When people used to say you are divorced, you are divorced, you are divorced, it was counted as one talqah in both ages (i.e. the Prophet and Abu Bakr) because they meant the affirmation and the announcement. But people after them would mean renewing and generating (i.e. willing to issue more than one talqah)." (Zayla'i, Tabyeen al-Haqa'iq, Vol. 3, p. 27)
What contradicts the former understanding is the fact that there are tens of narrations where the Prophet (saw) and his companions before the time of Umar
(ra) judged the triple talaq is considered (three talaqat) an absolute irrevocable divorce.

For example, 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:

والله ما أردت إلا واحدة؟ فقال ركانة والله ما أردت إلا واحدة، فردها إليه رسول الله.
"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 have 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.

There are also other possibilities even if we said for the seek of argument that the former understanding of the post-eight-century scholars are the correct one:

Either the narration is shadh, as argued above, and contradicts the other more trustworthy reports from all the other students of ibn Abbas (ra) who reported the contrary of the narration of Tawoos and they are more trustworthy than him.

For example, one of the sound narrations of ibn Abbas (ra) on the issue of triple talaq reported a man told ibn Abbas (ra) he had issued a triple divorce and asked for a solution. Ibn Abbas (ra) advised 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)
So the narration of Tawoos of the contrary is shadh. This explanation was argued by imam Ahmed, al-Juzani, ibn Rajab, Ibrahim al-Nakh'i, imam Malik, Shu'bah, ibn Abd al-Barr, al-Arabi, al-Qurtubi, ibn Qudamah and many other senior hadith critics. (Ibn Abd al-Barr, al-Istidhkar, Vol. 17, p. 22, Kawthari, al-Ishfaaq, pp. 45-46, Ibn Qudamah, al-Mughni, Vol. 7, p. 282)
Ibn Rajab al-Hanbali noted: 

وكل علماء أهل مكة ينكرون على طاوس ما ينفرد به من شواذ الأقاويل
"All the scholars of Mecca denies Tawoos's shadh views that were only narrated by him." (Ibid)
It may be also argued even if Tawoos heard this from Ibn Abbas (ra), it may be argued it was a former view of ibn Abbas (saw) who gave it up later and his students reported his final decision and Tawoos reported the old view.

In addition, Nawawi noted that all the narrators from Tawoos are not known and the isnad (chain of narrators) of this narration involves some unknown narrators. (Shinqiti, Adwaa al-Bayaan, Vol. 1, p. 256)

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)
This could give us insights on even if there were some narrations for any of the companions, it maybe was caused by such stories.

Tabi'een Stance:

Some scholars, such as Shawkani, argue tabi'een such as Sa'eed ibn Jubayr and Ikrimah agreed on the triple talaq, but there are no sound narrations for that. In addition, there are other sound narrations report they accepted the view of the jumhoor.

One narration that could be elevated to be used is the narration that 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. (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 muhadith, 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:

الاختلاف ما يستند إلى دليل والخلاف ما لا يستند إلى دليل
"Ikhtilaaf is what is based on evidence and the khilaaf is what is not based on evidence." (Kafawi, al-Kuliyaat, p. 61)
So, this is either misunderstanding or an unconsidered disagreement (khilaaf not ikhtilaaf).

Narrations of Ahl al-Bayt

The Adherents of the view of the triple talaq is to be counted as one talqah also quote some weak narrations to argue Ahl al-Bay (the family of the Prophet) believed triple talaq is only counted as one. But this could easily be shown as wrong as there are many narrations from Ahl al-Bayt report the contrary.

For example, 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:

لَوْلا أَنِّي سَمِعْتُ جَدِّي ، أَوْ حَدَّثَنِي أَبِي، أَنَّهُ سَمِعَ جَدِّي يَقُولُ ُ: أَيُّمَا رَجُلٍ طَلَّقَ امْرَأَتَهُ ثَلاثًا مُبْهَمَةً ، أَوْ ثَلاثًا عِنْدَ الأَقْرَاءِ لَمْ تَحِلَّ لَهُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ ُ, لَرَاجَعْتُهَا
"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 in the Shiite's books that al-Hassan (ra) said:

أجمع آل الرسول على أن الذي يطلق ثلاثاً فيكلمة واحدة أنها قد حرمت عليه سواءكان قد دخل بها الزوج أو لم يدخل
"The Family of the Prophet (saw) unanimously agree that whoever divorces with triple taalq, his wife becomes haram to him (irrevocable divorde), whether he consummated the marriage with her or not." (Al-Kawthari, al-Fiqh wa Usul al-Fiqh, p. 267, Tahnawi, I'laam al-Sunan, Vol. 6, p. 811)

Conclusion

There is ijmaa (consensus) of the companions and classical scholarship of madhahib on who considered it 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.

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 and misunderstood or issued by unreliable scholars.

This answer was co-authored with Muhammad Talaat, a Masters student of comparative jurisprudence at Al-Azhar University. 

References

Baji, al-Muntaqa
Hashim Jameel, Fiqh Sa'eed ibn al-Musayb
Ibn al-Jawzi, Zad al-Maseer
Ibn Atiyah, al-Muharar al-Wajeez
Ibn Hajar, Fath al-Bari
Ibn Abd al-Barr, al-Istidhkar
Ibn al-Mulaqan, al-Badr al-Muneer
Ibn Qudamah, al-Mughni
Kalbi, al-Tasheel li-Ulum al-Tanzeel
Kafawi, al-Kuliyaat
Kawthari, al-Fiqh wa Usul al-Fiqh
Kawthari, al-Ishfaaq
Nawawi, Sharh Muslim
Qurtubi, Al-Jami li Ahkam al-Qur'an
Razi, Mafatih al-Ghayb
Shawkani, Nayl al-Awtaar
Shinqiti, Adwaa al-Bayaan
Salah Abu al-Hajj "Mi'at Daleel wa Daleel Ala Woqu' Talaq al-Thalath
Salah Abu al-Hajj, al-Madkhal al-Mufasal
Tabari, Jami al-Bayan
Tahnawi, I'laam al-Sunan
Zayla'i, Tabyeen al-Haqa'iq

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