Scholars introduced two methods for making Raj'ah (retraction after divorce): by uttering special words indicating the continuity of marriage as well as by doing some sexual acts. Whilst they 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 leads to it. Whilst Hanafis, Hanbalis and Malikis view that sexual intercourse and its preliminaries make Raj'ah valid, Hanbalis argue that only sexual course makes Raj'ah takes effect. However, the Shafi'is view that Raj'ah takes effect only by uttering a related word.
Review of the Classical Scholarly Views
Majority of scholars held that letting the wife know about Raj'ah is recommended as it blocks the ways of disputes between both sides. (Al-Ayni, Binayah ala al-Hidayah, Vol 4, p. 597; Ibn Hazm, al-Muhala, Vol. 10, 251; Khurashi, Vol. 4, p. 87)
وَيُسْتَحَبُّ أَنْ يُعْلِمَهَا " أَيْ يُعْلِمَ الْمَرْأَةَ بِالرَّجْعَةِ، فَرُبَّمَا تَتَزَوَّجُ عَلَى زَعْمِهَا أَنَّ زَوْجَهَا لَمْ يُرَاجِعْهَا وَقَدِ انْقَضَتْ عِدَّتُهَا وَيَطَؤُهَا الزَّوْجُ، فَكَانَتْ عَاصِيَةً بِتَرْكِ سُؤَال زَوْجِهَا وَهُوَ يَكُونُ مُسِيئًا بِتَرْكِ الإْعْلاَمِ – العيني في البناية على الهداية 4/597
It is recommended to let the woman know about Raj'ah because she may get married after the termination of her idah (waiting period), thinking that the first husband have not yet returned her back and the second husband may then consummate the marriage with her. Thus, the wife is sinful because she did not ask the first husband and he is sinful because he did not let her know. (Al-Ayni, Binayah ala al-Hidayah, Vol 4, p. 597)
However, if he did not let her know about Raj'ah, the Raj'ah is valid because Raj'ah is to resume the contracted marriage and not to create a new one. (Ibid, Vol 4, p. 597)
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.
Ibn Rushd discussed this issue, in Bidayat al-Mujtahid, and reviewed the positions of scholars:
Malik held that she belongs to the person who has now contracted marriage with her, irrespective of the consummation of such marriage. This is also the opinion of al-Awza'i and al-Layth. However, ibn al-Qasim has related from Malik that he withdrew his earlier opinion and said that the first husband has a prior right, unless the second husband has consummated the marriage with her. But the first opinion is the famous opinion of Malik and was adopted by his disciples in Medina, and that it is also an opinion of Umar ibn al-Khattab from whom it was related by Mallik in al-Muwatta.
The evidence for the first opinion is what has been related from the senior tabi'i Sa'id ibn al-Musayyib, who said:
مَضَتِ السُّنَّةُ فِي الَّذِي يُطَلِّقُ امْرَأَتَهُ ثُمَّ يُرَاجِعُهَا فَيَكْتُمُهَا رَجْعَتَهَا حَتَّى تَحِلَّ فَتَنْكَحَ زَوْجًا غَيْرَهُ أَنَّهُ لَيْسَ لَهُ مِنْ أَمْرِهَا شَيْءٌ، وَلَكِنَّهَا لِمَنْ تَزَوَّجَهَا – ابن رشد في بداية المجتهد 3/106
There is a precedent about the person who divorces his wife and then takes her back without letting her know about it till such time that she is free to marry, and she does marry a second husband, that he has no right over her and she belongs to the person who has now married her. (Ibn Rushd, Bidayat al-Mujtahid, Vol. 3, p. 106)
Al-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. This is also the opinion of Dawud, Abu Thawr. It is related from Ali, and Ibn Rushd then stated:
وَهُوَ الْأَبْيَنُ. وَقَدْ رُوِيَ عَنْ عُمَرَ بْنِ الْخَطَّابِ - رَضِيَ اللَّهُ عَنْهُ - أَنَّهُ قَالَ فِي هَذِهِ الْمَسْأَلَةِ: إِنَّ الزَّوْجَ الَّذِي ارْتَجَعَهَا مُخَيَّرٌ بَيْنَ أَنْ تَكُونَ امْرَأَتَهُ أَوْ أَنْ يَرْجِعَ عَلَيْهَا بِمَا كَانَ أَصْدَقَهَا – مصدر سابق 3/106
This is obviously the preponderant opinion. It is related from Umar ibn al-Khattab (ra) that he said, "The husband who made Raj'ah to her has an option to take her back as his wife or demand what he had paid her as her dower." (Ibid, Vol. 3, p. 106)
The argument of this group is that the jurists agreed unanimously that Raj'ah is valid even when the woman is not aware of it. This is based on the evidence of their agreement that the first husband has a prior right to her before she gets married. If the Raj'ah was valid then the second marriage is void and the second marriage has no effect in nullifying the Raj'ah, either before consummation or after it.
It is supported by what is reported by Samura ibn Jundub that the Prophet (saw) said,
أَيُّمَا امْرَأَةٍ تَزَوَّجَهَا اثْنَانِ فَهِيَ لِلْأَوَّلِ مِنْهُمَا، وَمَنْ بَاعَ بَيْعًا مِنْ رَجُلَيْنِ فَهُوَ لِلْأَوَّلِ مِنْهُمَا – الترمذي 11/31
When a woman is married to two men, she belongs to the first, and when one sells something to two persons, it belongs to the first. (Tirmidhi 11:31)
(Ibn Rushd, Bidayat al-Mujtahid, Vol. 3, p. 106)
It is recommended to let the wife know about Raj'ah, but it is not a condition of its validity. Thus, if the husband who traveled away so he was not able to inform the wife about Raj'ah by words or acts, he could make Raj'ah and bring two witnesses to attest the Raj'ah. In this way, Raj'ah is valid even after the termination of her Idah, because it is not a condition for the validity of Raj'ah to inform the wife about it. Also, if he proved he made Raj'ah, even after she got married to another man after the termination of the Idah, the first husband has a superior right to her, irrespective of the second husband having consummated the marriage with her. But, if he did not prove that, Raj'ah is not valid.
Al-Ayni, Al-Binayah ala al-Hidayah
Al-Dardir, Al-Sharh al-Kabir
Al-Khatib al-Shribini, Mughni al-Muhtaj
Al-Musu'a al-Fiqhyah al-Kuwityah
Bahwati, Kashaf al-Qina
Ibn Hazm, Al-Muhla
Ibn Rushd, Bidayat al-Mujtahid wa Nihayat al-Muqtasid
Ibn Qudamah, Al-Mughni
Kasani, Bada'i al-Sana'i
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