The Sunni view

The preferred method of pronouncing talaq/repudiation is as per the Hanafi school is to follow Talak al Ahsan[1], where the husband makes one pronouncement of divorce and then abstains from her resulting in the divorce becoming revocable prior to the iddah subject to the wife’s consent, but post the iddah becoming irrevocable but may remarry the husband under a new contract  when the woman is pure - Narrated Abi Ghallab Yunus bin Jubair: I asked Ibn 'Umar,"(What is said regarding) a man divorces his wife during her period?" He said, "Do you know Ibn 'Umar? Ibn 'Umar divorced his wife while she was menstruating. 'Umar then went to the Prophet and mentioned that to him. The Prophet ordered him to take her back and when she became clean, he could divorce her if he wanted." I asked (Ibn 'Umar), "Was that divorce counted as one legal divorce?" He said, "If one becomes helpless and foolish (will he be excused? Of course, not)[2] . It is said that one does need witnesses[3], but regards needs to be had to the sahih  hadith where it is the suggestion that witnesses should be present- “Narrated Mutarrif ibn Abdullah: Imran ibn Husayn was asked about a person who divorces his wife, and then has intercourse with her, but he does not call any witness to her divorce nor to her restoration. He said: You divorced against the sunnah and took her back against the sunnah. Call someone to bear witness to her divorce, and to her return in marriage, and do not repeat it”.

The alternative is Talaq al Hasan which is also known Talaq al Sunnah where the husband makes one pronouncement of divorce in each cycle which results in an irrevocable divorce and cannot remarry the woman until she remarries and divorces. However, the husband may revoke the divorce in the 1st and 2nd  pronouncement, but not the 3rd which makes it irrevocable[4]. The Maliki[5] views this as bidda as it places restrictions whereas the Hanifa view[6] is that in the absence of any urgent reasons the process should be followed[7].  So, if man states he is going to divorce according to the sunnah, then divorce would occur subject to the Iddat period.

The least recommended is Talak al Biddat and any person who uses this is regarded as “an offender against the law”[8].  Shafi's view is that given divorce is a lawful act, the methods of the divorce are also, Marghinani argues that this a dangerous path to follow[9] in the absence of any urgency this method should not be used[10]. The Hanafi view is that divorce is not to be rushed unless there is urgency[11]. Maliki views this method as not following the sunnah[12].  It seems that there is a place for Talak al Biddat but it would need to be justified by urgency as opposed to a whim.

Talaq/repudiation can be pronounced post sexual activity[13], but it is not advisable as it would be inappropriate to issue the 3 talaqs in the absence of an urgency. One has to assume that the reason for this is that not only would it be regarded derogatory to the woman who has been intimate but the woman have started the conception of life. One could argue that either the man or the woman is infertile or have used contraception, but one must have regard to the fact it is God who decides when a child comes into being as per verse 42: 49[14].  So, one should not place the woman in the state of irrevocable divorce when there is such an uncertainty. However, that does not mean that one should pronounce divorce when a woman is in her menses either as that will not be valid - Abdullah (b. 'Umar) reported that he divorced a wife of his with the pronouncement of one divorce during the period of menstruation. Allah's Messenger ﷺ commanded him to take her back and keep her until she was purified, and then she entered the period of menses in his (house) for the second time. And he should wait until she was purified of her menses. And then if he would decide to divorce her, he should do so when she was purified before having a sexual intercourse with her; for that was the 'Idda which Allah had commanded for the divorce of women. Ibn Rumh in his narration made this addition: When 'Abdullah was asked about it, he said to one of them: If you have divorced your wife with one pronouncement or two (then you can take her back), for Allah's Messenger ﷺ commanded me to do it; but if you have divorced her with three pronouncements, then she is forbidden for you until she married another husband, and you disobeyed Allah in regard to the divorce of your wife what He had commanded you. (Muslim said: The word" one divorce" used by Laith is good.) [15].

Drink or in Jest

Shafi and the other Sunni schools presupposes that divorced uttered by those in drink is not valid; whereas the Hanafi view is it would be valid[16] unless it could be shown “reasoning was suspended”[17] .

The same applies to a person who sought to divorce in jest or seeks to argue they did not intend to divorce [18], the Hanafi view is it valid as they have chosen to say it[19]. So one has to be careful with the wording that is used as it could lead to inadvertent divorce - “Narrated Abu Hurayrah: The Prophet (ﷺ) said: There are three things which, whether undertaken seriously or in jest, are treated as serious: Marriage, divorce and taking back a wife (after a divorce which is not final”

Complusion

Where the individual is compelled to pronounce a talaq/repudiation, Shafi says it is not valid[20], the Hanafi view is that the person has exercised choice, meaning that they could refuse to [21] so it is valid, this is not accepted by the other schools. The Hanifa schools view is applying a literal construction to the meaning of what a pronouncement is, without having regard to the circumstances, this is a draconian interpretation as even under secular law where a person is coerced the law looks to see if there was duress which negated free will, the fact the Hanifa take the view there was choice does not sit with verse 2:229[22] -“If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom” which suggests that a woman should be released where the man is unable to comply with God’s limits which then gives rise to requirement that there has to be free will to invoke a divorce.  

A talaq pronouncement may be made via a number of mediums[23] and provided the word talaq is used or words or acts that give the same effect this will result in divorce taking place[24]. A person who is dumb can divorce by way of signs[25]. A pronouncement can be immediate (Munjaz) or contingent (Muallaq)[26] which is valid[27],  Shafi and Hanbali view is the divorce becomes effective on the date set, Hanafi and Maliki view is it is immediately effective.

With regards to the pronouncement it has to be made by the husband or through an agent provided it is not a child.

The Shia view

The Shia only accept 2 forms of talaq/repudiation as being valid, those are Talaq al-Iddah[28] and Talaq al Sunnah[29]. The difference between the Shia and the Sunni  is where a marriage has been consummated is that the Shia school requires a precise formula to be used in how pronouncement is made, as “ Khomeni says that the divorce formula must be read in the correct Arabic”[30], the wording has to be clear and explicit as in “ My wife, Fatimah, is divorced”[31]. The talaq/repudiation has to occur in the presence of 2 witnesses[32], the intention to divorce must be immediate, therefore cannot be conditional[33] the converse applies in Sunni schools[34]

The Shia view Talaq al Biddat[35] as one pronouncement making it a revocable divorce, as opposed to an irrevocable one. They do not accept that a divorce can be validly pronounced in state of intoxication, in jest or under duress as intention is required[36] or a deferred pronouncement is considered void[37].  

The views expressed in this article are the personal views of Yasin M Din- Barrister at Law

References

[1]  Jawad, Haifaa (1998) The Rights of a Women in Islam, Macmillan Press (UK) Page 79

[2] Sahih al-Bukhari, Vol. 7, Book of Divorce, Hadith 184- https://muflihun.com/bukhari/63/184

[3] However when one looks at this hadith which is regarded as sahih, the suggestion is that witnesses should be present and from a point of record there should be evidence that the divorce has taken place - “Narrated Mutarrif ibn Abdullah: Imran ibn Husayn was asked about a person who divorces his wife, and then has intercourse with her, but he does not call any witness to her divorce nor to her restoration. He said: You divorced against the sunnah and took her back against the sunnah. Call someone to bear witness to her divorce, and to her return in marriage, and do not repeat it” -  Sunan Abi Dawood, Vol. 3, Book of Divorce (Kitab Al-Talaq), Hadith 2181- https://muflihun.com/abudawood/13/2181

[4] Jawad, Haifaa (1998) The Rights of a Women in Islam, Macmillan Press (UK) Page 80

[5]  Ie on being released from a dangerous woman Ali ibn Abi Bakr Marghinani. (2008) The Hedaya, trans. Charles Hamilton. New Delhi, page 72

[6] Ali ibn Abi Bakr Marghinani. (2008) The Hedaya, trans. Charles Hamilton. New Delhi, page 72 – see “Abu Hanifa said that if he makes a single repudiation during each period of purity, he is acting according to the Sunna (form)” – Ibn Rushd The Distinguished Jurists Primer Volume II page 75 at 19.1.2.1

[7] one would have to assume as this would give the woman a longer period to adjust, make alternative arrangements and to allow the husband to change his mind as well.

[8] Ali ibn Abi Bakr Marghinani. (2008) The Hedaya, trans. Charles Hamilton. New Delhi, page 73

[9] it will lead to the irreversible divorce arising and marriage is not only a temporal affair, it was also a spiritual one

[10] Ali ibn Abi Bakr Marghinani. (2008) The Hedaya, trans. Charles Hamilton. New Delhi, page 73

[11] Marghinani. (2008) view being the sunnah could not be forsaken in the absence of the husband being needed to be protected

[12] Ibn Rushd The Distinguished Jurists Primer Volume II page 76 at 19.1.2.2

[13] This applies to both pregnant and non-pregnant but Iddat period would be affected should the woman fall pregnant Ali ibn Abi Bakr Marghinani. (2008) The Hedaya, trans. Charles Hamilton. New Delhi, page 74

[14]  “To Allah belongs the dominion of the heavens and the earth. He creates what He wills (and plans). He bestows (children) male or female according to His Will (and Plan Yusuf Ali translation - http://tanzil.net/#42:49

[15] Abdullah (b. 'Umar) reported that he divorced a wife of his with the pronouncement of one divorce during the period of menstruation. Allah's Messenger ﷺ commanded him to take her back and keep her until she was purified, and then she entered the period of menses in his (house) for the second time. And he should wait until she was purified of her menses. And then if he would decide to divorce her, he should do so when she was purified before having a sexual intercourse with her; for that was the 'Idda which Allah had commanded for the divorce of women. Ibn Rumh in his narration made this addition: When 'Abdullah was asked about it, he said to one of them: If you have divorced your wife with one pronouncement or two (then you can take her back), for Allah's Messenger ﷺ commanded me to do it; but if you have divorced her with three pronouncements, then she is forbidden for you until she married another husband, and you disobeyed Allah in regard to the divorce of your wife what He had commanded you. (Muslim said: The word" one divorce" used by Laith is good.) • Sahih Muslim, Vol. 4, Book of Divorce (Kitab Al-Talaq), Hadith 3474- https://muflihun.com/muslim/9/3474

[16] Given that intoxicants are prohibited in the first place it would be valid

[17] Ali ibn Abi Bakr Marghinani. (2008) The Hedaya, trans. Charles Hamilton. New Delhi, page 76

[18] - Sunan Abi Dawud 2194.

[19] Unless it can be shown there is immaturity or sanity

[20] “divorce of one acting upon compulsion, from threats is effective, according to our doctors. Shafei maintains that it is not effective” - Ali ibn Abi Bakr Marghinani. (2008) The Hedaya, trans. Charles Hamilton. New Delhi, page 75

[21] Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed Page 122 -

[22] “. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom

[23] Including expression and grammatical which are recognised by the Laws of Syria (Art. 87/1), Morocco (Art. 46), Jordan (Art. 86), Kuwait (Art. 104) and Sudan (Art. 129). 

[24] As noted in Syria and Jordan (Arts. 93 and 95, respectively) but not by the Yemeni Article 58

[25] The signs of the dumb are authorised by custom Ali ibn Abi Bakr Marghinani. (2008) The Hedaya, trans. Charles Hamilton. New Delhi, page 76

[26]  The law of Egypt, Syria, Morocco and Jordon set out 3 versions of the contingent divorce (1) the requirement for the wife to do something “ if you leave home I will divorce you” which construed as an oath; (2)  If you commit adultery I will divorce you and (3)  the future act “ I will divorce in one year” – see Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed Pages 124-125

[27]  Sunni jurist as well as Arab legislators accept this Nasir Jamal (2009) The Status of Women under Islamic Law and Modern Islamic Legislation, Library of Congress, 3rd Ed Page 125

[28] Where the wife observes her iddah period

[29] Which applies in the absence of consummation

[30] McGlin, Sin (2000) Family Law in Iran - An essay prepared under the supervision of Leon Buskens for the paper on ‘Islamic Family Law’ at the University of Leiden, the Netherlands, in the 2000-2001 academic year.Verstion 20) Page 62 cited by the UN Civil Registration & Vital Statistics Knowledge Base - https://unstats.un.org/unsd/vitalstatkb/KnowledgebaseArticle50547.aspx

[31] McGlin, Sin (2000) Family Law in Iran - An essay prepared under the supervision of Leon Buskens for the paper on ‘Islamic Family Law’ at the University of Leiden, the Netherlands, in the 2000-2001 academic year.Verstion 20) Page 62 cited by the UN Civil Registration & Vital Statistics Knowledge Base - https://unstats.un.org/unsd/vitalstatkb/KnowledgebaseArticle50547.aspx

[32] “A divorce does not materialize if not witnessed by two just ('adil) witnesses, in accordance with the divine utterance regarding the rules of divorce and its pronouncement (65:2-3)” - Mughniyya, Muhammad Jawad, The Five Schools of Islamic Thought, Al-Islam.org Page 285

[33] Mughniyya, Muhammad Jawad, The Five Schools of Islamic Thought, Al-Islam.org Page 283

[34] ““But the other schools allow divorce in any manner in which there is an indication of it, either by oral word or in writing, explicitly or implicitly”- Mughniyya, Muhammad Jawad, The Five Schools of Islamic Thought, Al-Islam.org Page 284

[35] They also allow a triple divorce by the use of a single pronouncement. The legists of these schools have filled many a long page with no result except undermining the foundation of the family and letting it hang in the air”- Mughniyya, Muhammad Jawad, The Five Schools of Islamic Thought, Al-Islam.org Page 284

[36]  “No divorce (takes effect) except by one who intends divorce. Divorce does not take place except by intention”- Mughniyya, Muhammad Jawad, The Five Schools of Islamic Thought, Al-Islam.org Page 280

[37] “Similarly, according to the Imamiyyah, divorce will not take place by an oath, a vow, a pledge or any to fulfillment of all the limitations and conditions” Mughniyya, Muhammad Jawad, The Five Schools of Islamic Thought, Al-Islam.org Page 283