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in category Fiqh (Jurisprudence)

How does a husband take back a wife (raj'ah) after undertaking a revocable divorce (talaq)?

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Islamic researcher, graduated from Al-Azhar University, Islamic Studies in English.
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[Translated from Arabic by Omar Gebril, a graduate from al-Azhar University, Islamic studies department.] 

In a Nutshell: Scholars introduced two methods for making a Raj'ah (retraction after divorce): by uttering special words indicating the continuity of marriage as well as by doing some sexual-related acts with the wife. Whilst scholars agree that Raj'ah takes effect by uttering these special words, they disagree on the validity of Raj'ah by having sexual intercourse or acts lead to it. Whereas Hanafis, Malikis, view that sexual intercourse and its preliminaries make Raj'ah valid, Hanbalis argue that only sexual intercourse makes Raj'ah takes effect. However, Shafi'is view that Raj'ah takes effect only by uttering a related word.

Background

Scholars divide divorce in respect of retraction into two types:

Talaq Raj'ai: A divorce after which a man reserves to himself the right of returning his wife without her permission and consent and without making a new contract or paying a new dowry. Allah says:

وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ إِنْ أَرَادُوا إِصْلَاحًا ۚ - 2:228

And their husbands have more right to take them back in this [period] if they want reconciliation. (Qur'an 2:228)
And Talaq Ba'in (irrevocable divorce): A divorce after which the husband may only live again with his divorcee after he had contracted a new marriage with her, according to the conditions prescribed by the shari'ah. (Bada'i al-Sana'i, Vol. 3, p. 181; Al-Sharh al-Kabir, p. 369; Mughni al-Muhtaj, Vol. 3, p. 335)

Definition of Raj'ah

Linguistically: Raj'ah is an infinitive noun meaning to return or to come back. (Al-Mu'jam Al-Wassit, "Raj'ah")

Technically: Raj'ah means taking back a woman to the wedlock after the occurrence of a revocable divorce and during her waiting period in a special manner. (Khatib Shirbini, Mughni al-Muhtaj, Vol. 3, p. 335).

Review of the Classical Scholarly Views

Based on the scholarly discussion of Raj'ah, there are two ways to make Raj'ah:

  • Raj'ah by Words
Scholars agree that Raj'ah is valid by the words indicating the meanings of returning one's wife after the occurrence of divorce such as when the divorcer says to the divorcee during the waiting period: "I returned you back", or "I return you back to my marriage bond".

Scholars categorised the words that make Raj'ah valid into two types:

  1. Explicit words such as when the husband says: "I returned you back", or "I took you back to my wedlock". These words make Raj'ah valid, even without having the intention of Raj'ah.
  2. Kinayah (metonymical expressions): These expressions may implicate the meaning of Raj'ah and might have different meanings, such as when the husband says: "you are to me like your former state" or he says,  "you are my wife" while having the intention of Raj'ah.
Because metonymical expressions may implicate the meaning of Raj'ah and may denote otherwise. Thus, jurists said: it is stipulated that the divorcer had had the intention of Raj'ah and should be asked about it. (Al-Binayah ala al-Hidayah Vol. 4, pp. 593-593; Bada'i al-Sana'I, Vol 3, pp. 181-182, Khurashi, Vol. 4, p. 80; Mughni al-Muhtaj Vol. 3, p. 337; Kashaf al-Kina Vol. 5, p. 342)

  • Raj'ah by Action
Classical jurists, however, differed on the validity of Raj'ah by action. But those who viewed the validity of Raj'ah by action disagreed on validity of some of these acts in making Raj'ah. Following are the position of the four madhabs on this issue:

Hanafi  Madhab:

Hanafis view that sexual intercourse or its preliminaries make Raj'ah valid, Burhan al-Din al-Marghinani stated:

 أَوْ يَطَؤُهَا، أَوْ يَلْمَسُهَا بِشَهْوَةٍ، أَوْ يَنْظُرُ إِلَى فَرْجِهَا بِشَهْوَةٍ، وَهَذَا عِنْدَنَا" –العيني في الهداية مع حاشية البناية 6/593

According to our madhab, this also includes having sexual intercourse with her, or lustily touch her body or sexually looking to her genitals. (Al-Iny, Al-Hidayah with Hashiyat al-Binayah, Vol. 4, p. 593).
They also stipulate that these acts should be accompanied by sexual desire in order for Raj'ah to be valid. (Ibid, Vol. 4, p. 594).

This is also the opinion of some Tabi'een such as Sa'id ibn al-Musa'ib, Hasan al-Basri, Muhammad ibn Sirin, Tawus, Ata ibn Abi Rabah , Awza'I, Thawri, ibn Abi Layla, Shu'abi and Sulayman al-Tamimi. Hanfis, however,  restricted the viewing of the parts of the body which make Raj'ah valid to woman's genitals. (Ibid, Vol. 4, p. 593).

They stated Raj'ah meaning is to keep the marriage tie and these acts suggest this. (Muwsili, Al-Ikhtiar, Vol, 3, p. 147)

They also noted that acts like having sexual intercourse or lusty touching her or looking to her genitals are specially restricted to marriage unlike other acts such as touching  or looking to her without having the sexual desire, or looking to the other parts of her body because these acts may be done by someone else such as physicians.  (Babarty, Al-Inayah Sharh al-Hidayah, Vol. 4, p. 161)

Maliki Madhab:

Malikis view that sexual intercourse and its preliminaries make Raj'ah valid but they stipulated that these acts should be accompanied by an intention of Raj'ah. But if the husband touches her sexually or looks to her body or genital parts lustily, or has sexual intercourse with her without having the intention of making Raj'ah, this Raj'ah is not valid:

أَنَّ الرَّجْعَةَ لاَ تَحْصُل بِفِعْلٍ مُجَرَّدٍ عَنْ نِيَّةِ الرَّجْعَةِ وَلَوْ بِأَقْوَى الأْفْعَال كَوَطْءٍ وَقُبْلَةٍ وَلَمْسٍ – الخرشي 4/81، والدسوقي 2/370

Raj'ah is not valid by doing any act devoid of the intention, irrespective of how intimate these acts may be, such as sexual intercourse, kissing, or touching the body.(Khurashi, Vol. 4, p. 81; Dosouqi Vol. 2, p. 370)
Hanbali Madhab:

According to the Hanbali madhab, sexual intercourse makes Raj'ah valid, whether he had the intention of returning her back or not and without witnesses. But Hanbali jurists disagree whether intercourse preliminaries make Raj'ah valid or not. (Bahwati, Kashaf al-Kina Vol. 5, p. 343). Their argument is that Raj'ah is analogous to retraction after Ila (vow of continence). That is Ila is retracted once the husband has sexual intercourse with her wife. 

But they differ whether sexual intercourse preliminaries make Raj'ah valid or not. According to the most famous narration reporting the view of Ahmed ibn Hanbal, looking to wife genitals, touching or kissing her lustily do not make Raj'ah valid because these acts do not stipulate witnessing a waiting period or paying a dowry.

In addition, acts, like touching the wife or looking to her genitals, may be done by someone else other than the husband such as physicians under certain circumstances. However, another narration reported from Imam Ahmed suggests that these acts make Raj'ah valid since these acts are included in marriage.

Shafi'i Madhab:

Shafi'is view that Raj'ah takes effect, rather only by uttering a related word. Raj'ah is not valid by doing acts whether the husband had sexual intercourse with her or he made anything leads to it. Imam Shafi'i stated:

وَالرَّدُّ يَكُونُ بِالْكَلاَمِ دُونَ الْفِعْل مِنْ جِمَاعٍ وَغَيْرِهِ – الأم 6/244

Taking back (the wife) is only valid through words, not by acts such as sexual intercourse, etc. (Shafi'i, Al-Um, Vol. 6, p. 244)
Shafi'is argue that these acts are devoid of words indicating Raj'ah. It is valid only by the husband's statement suggesting returning her back to the marriage tie. They held Raj'ah to be analogous to marriage and divorce, as marriage and divorce are not valid without the husband's indicating statement. (Ibid, Vol. 6, p. 244; Nawawi, Rawdat al-Talbin, Vol. 8, p. 217)

Marginal Issue: Raj'ah without the husband's communicating it to his wife:

Majority of scholars held that letting the wife know about Raj'ah (retraction after divorce) is recommended. However, if he did not let her know about the retraction, Raj'ah is valid. But scholars differed about the case of a person who divorced his wife through a talaq raj'i (revocable divorce) and takes her back, when he is absent. She then comes to know of the divorce, but not the Raj'ah, and upon the termination of her waiting period, she gets married. Whilst Shafi'i and the Kofis, Abu Hanifa and the others, said that the first husband has a superior right to her, irrespective of the second husband having consummated the marriage with her, Malik held that she belongs to the person who has now contracted marriage with her. (Read this answer
for a full discussion)

Conclusion

Talaq Raj'ah is the talaq after which a man reserves to himself the right of returning his wife back to marriage. Raj'ah is valid by uttering the explicit or implicit words indicating the meaning of returning the wife back to marriage. Also, the husband may make Raj'ah by having some sexual acts with the wife. If the husband claimed that he had made Raj'ah, Raj'ah is valid if the Idah has not been completed yet. But if he claimed Raj'ah after the termination of Idah, Raj'ah is not valid unless he proved it.

A great part of this answer is based on Al-Musu'ah al-Fiqhyah al-Kuwitiyah. 

References

Abu al-Qasim al-Tabrani, Al-Mu'jam al-Wasit
Abu Al-Abbas al-Faywmi, Al-Misbah al-Munir
Al-Musu'a al-Fiqhyah al-Kuwityah
Al-Ayni, Al-Binayah ala al-Hidayah
Al-Dardir, Al-Sharh al-Kabir
Al-Khatib al-Shribini, Mughni al-Muhtaj
Bahwati, Kashaf al-Qina
Ibn Hazm, Al-Muhla
Ibn Qudamah, Al-Mughni
Ibn Rushd, Bidayat al-Mujtahid wa Nihayat al-Muqtasid
Kasani, Bada'i al-Sana'i
Sarakhsi, Al-Mabsut

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