Book 9, Number 3491:
Ibn 'Abbas (Allah be pleased with them) reported that the (pronouncement) of three divorces during the lifetime of Allah's Messenger (may peace be upon him)
and that of Abu Bakr and two years of the caliphate of Umar (Allah be pleased with him) (was treated) as one.
But Umar b. Khattab (Allah be pleased with him) 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.
A Muslim who wishes to divorce his wife is advised – in the first instance – to ask for an arbitration meeting,
arranged by elders of the couple so that a reconciliation may be reached. If such efforts fail and the man sincerely thinks he cannot live a harmonious life with his wife,
he may divorce her either verbally or in writing. In both cases, it is recommended for there to be two witnesses present on the occasion of the pronouncement of such a divorce.
A man should divorce (a) only once, (b) only during the time when his wife is not on her menses, and (c) when there has been no sexual contact with her since the time of her last menses.
After a divorce is pronounced by the husband, his wife must wait for a given period of 3 months or 3 menstrual cycles (‘iddat’). During this period,
the wife is allowed to stay in the same house and the husband is responsible for her welfare and maintenance. He may choose during the Iddat to reconcile with her,
in a process known as Ruju’. This can be a verbal statement or resuming normal marital life. If, after this waiting period, the husband fails to take his wife back, then the couple are completely divorced.
It is also recommended to have two witnesses present when the husband decides to take back (‘ruju’) his wife, before the end of the iddat.
Where a man has pronounced three divorces, on three different occasions, he can neither take back his former wife, nor remarry her.
The Council issues a divorce certificate on the basis of “Talaq Nama”, signed by the applicant in the presence of two witnesses. The man is required to pay the dower amount in full to the woman.
The Arabic word for divorce is talaq which means "freeing or undoing the knot" (Imam Raghib).In the terminology of the jurists. Talaq signifies the dissolution of marriage, or the annulment of its legality by the pronouncement of certain words.
Divorce is of three kinds: the Ahsan, or most laudable, the Hasan, or laudable, and the Bid'a or irregular.
Talaq Ahsan or the most laudable divorce is where the husband repudiates his wife by making one pronouncement within the term of Tahr (purity. when the woman is not passing through the period of menses) during which he has not had sexual intercourse with her, and she is left to observe her 'Idda.
Talaq Hasan or laudable divorce is where a husband repudiates an enjoyed wife by three sentences of divorce, in three Tuhrs
Talaq Bid'a or irregular divorce is where a husband repudiates his wife by three divorces at once. According to the majority of the jurists, the Talaq holds good, but it is against the spirit of the Shari'ah, and, therefore, the man who follows this course in divorce is an offender in the eye of Islamic Law.
The right of woman in demanding the dissolution of marriage is known as Khula' (meaning, literally,the putting off or taking off a thing).It is a kind of facility provided to the wife in securing Talaq from her husband by returning a part or full amount of the bridal gift.
We have described before that, according to Islam, marriage is a civil contract; yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity that a high degree of sanctity is attached to it.But, in spite of the sacredness of the character of the marriage tie,Islam recognises the eternity of divorce in cases when marital relations are poisoned to a degree which makes a peaceful home life impossible.But Islam does not believe in unlimited opportunities for divorce on frivolous and flimsy grounds, because any undue increase in tht facilities for divorce would destroy the stability of family life.Therefore, while allowing divorce even on genuine grounds, Islam has taken great care to introduce checks designed to limit the use of available facilities. The French legists Planiol and Ripert have explicitly emphasised Islam's point of view in regard to divorce in these words: "Divorce is a mischief.However, it is a measure that cannot be avoided for the welfare of the community, because it is the only remedy for another harm which may be wore dangerous The prohibition of divorce, whatever harm it may imply, is like the prohibition of surgery, because the surgeon is compelled to amputate some of the limbs of the patient's body.However, there is no danger whatsoever, in legislating for divorce (in accordance with the practice established by Islam) since it is not divorce that spoils married life and dissolves its sacred tie, but the misunderstanding that arises between the married couple and hinders the strengthening of this (union by marriage) and demolished it.Divorce alone puts an end to the hatred that may occur between the husband and his wife before it is aggravated and becomes an intolerable mischief to society" (quoted by Hasan Ibrihim Hasan, Islam, Religious, Political.Social and Economic Study, p. 274).
Was Ibn Taymiyah alone in his fatwa of divorce.
1. Imam Mur’i bin Yusaf al Karmi (d 1033 h) said:
Ibn Tamiyah rahimaullah said “If the divorce is given three times at one time then one divorce will be counted” He is not alone in this saying rather it is narrated from Ali, Zubair, Abdul Rahman bin Awf, Ibn Masood, Ibn Abbas, This is said by Ata, Tawus, Amr bin Denar, Saeed bin Jubayr, Abul Shoatha, Muhammad bin Ishaq, Hajjaj bin Artaah, This is said by Scholars of Qartaba, and group of them are Muhammad bin Salaam al Khisshni (d 286 h) Faqeeh Asar, Asbegh bin al Habbab, This is accepted by Abu Hayaan Andalusi in his Tafseer “al Nahr” and Imam Ibn Al Qayyim”[ash-Shahadatul Zakaiyah fe Thana Al Aimma al Ibn Tamiyah page 90-91]
Then he said “Ibn Tamiyah was a Mujtahid as the scholars of his time are witness over it.. only a rigid and jahil would go against this
[ash-Shahadatul Zakaiyah fe Thana Al Aimma al Ibn Tamiyah page 91]
2. Shaykh Ibn Tamiyah himself said:
” الثالث ” : أنه محرم ولا يلزم منه إلا طلقة واحدة . وهذا القول منقول عن طائفة من السلف والخلف من أصحاب رسول الله صلى الله عليه وسلم مثل الزبير بن العوام وعبد الرحمن بن عوف ويروى عن علي وابن مسعود وابن عباس القولان ؛ وهو قول كثير من التابعين ومن بعدهم : مثل طاووس وخلاس بن عمرو ؛ ومحمد بن إسحاق ؛ وهو قول داود وأكثر أصحابه ؛ ويروى ذلك عن أبي جعفر محمد بن علي بن الحسين وابنه جعفر بن محمد ولهذا ذهب إلى ذلك من ذهب من الشيعة وهو قول بعض أصحاب أبي حنيفة ومالك وأحمد بن حنبل
The third opinion is that it (three talaq at once) is Forbidden and there is no obligation except one Talaq and this opinion came from a group of Salaf and later ones of the companions of the prophet like Zubair bin alAwwam, Abdul Rahman bin Awf, and it was narrated from Ali ra and Ibn Masood and Ibn Abbas. It is also reported from a lot of the Tabieen (second or third generation) as Tawoos, Khallas bin Amr and Muhammad bin Ishaq. It was also the opinion of Dawood and the majority of his companions and it was also narrated from Abu Jaafar Muhammad bin Ali bin Al Hussein and his son Jaafar and that is why some of the Shia chose it and it is also the opinion of some of the companions of Abu Hanifa, Malik and Ahmad. [Majmoo Fatawa 8/33]
3. Ata bin abi Rabah RA said
إن طلقت امرأة ثلاثا ولم تجمع فإنما هي واحدة بلغني ذلك عن بن عباس
If you divorce your wife three times and did not do ruju, then it is only one divorce because it has reached us that Ibn Abbas had same opinion. [Musannaf abdul razzaq vol 6 page 335 no: 1106] .
4. Fatwa of Tawus (Tabiyee)
عن ابن شهاب ، أن ابن عباس قال : ” إذا طلق الرجل امرأته ثلاثا ، ولم يجمع كن ثلاثا ” قال : فأخبرت ذلك طاوسا قال : فأشهد ما كان ابن عباس يراهن إلا واحدة .
Ibn Shahab said that Ibn Abbas said: ” If a man divorces his wife three times,and did not do ruju they will be counted as three, He said I told this to Tawus (Student of Ibn Abbas) He said: I am witness that Ibn Abbas considered it only one.[Musannaf Abdul Razzaq Vol 6 page 335 hadeeth no: 11077]
And in another Narration He said:
والله ما كان بن عباس يجعلها إلا واحدة
BY ALLAH Ibn Abbas ra considered it one.[Musannaf Abdul Razzaq Vol 6 page 335 hadeeth no: 11078]
5. Fatwa of Ikrimah
Imam Abu Dawud said:
وَرَوَى حَمَّادُ بْنُ زَيْدٍ عَنْ أَيُّوبَ عَنْ عِكْرِمَةَ عَنِ ابْنِ عَبَّاسٍ إِذَا قَالَ ” أَنْتِ طَالِقٌ ثَلاَثًا ” . بِفَمٍ وَاحِدٍ فَهِيَ وَاحِدَةٌ وَرَوَاهُ إِسْمَاعِيلُ بْنُ إِبْرَاهِيمَ عَنْ أَيُّوبَ عَنْ عِكْرِمَةَ هَذَا قَوْلُهُ لَمْ يَذْكُرِ ابْنَ عَبَّاسٍ وَجَعَلَهُ قَوْلَ عِكْرِمَةَ .
“Hammad bin Zaid narrated it from Ayyub from ‘Ikrimah on the authority of Ibn ‘Abbas. This version adds If he said “You are divorced three times saying in one pronouncement, it constitutes a single (divorce). Isma’il bin Ibrahim narrated it from Ayyub from ‘Ikrimah. This is his (‘Ikrimah’s) statement. He did not mention the name of Ibn ‘Abbas. He narrated it as a statement of ‘Ikrimah.”[Abu Dawud 2197]
So the Fatwa of Ikrimah is same, like that of Ibn Abbas.
6. Ibn Hajar al Asqalani mentioned those who declared 3 talaq at a time is 1
وهو قول محمد بن إسحاق صاحب المغازي، واحتج بما رواه عن داود بن الحصين عن عكرمة عن ابن عباس قال ” طلق ركانة بن عبد يزيد امرأته ثلاثا في مجلس واحد، فحزن عليها حزنا شديدا، فسأله النبي صلى الله عليه وسلم: كيف طلقتها؟ قال: ثلاثا في مجلس واحد فقال النبي صلى الله عليه وسلم: إنما تلك واحدة، فارتجعها إن شئت.
فارتجعها ” وأخرجه أحمد وأبو يعلى وصححه من طريق محمد ابن إسحاق.
وهذا الحديث نص في المسألة لا يقبل التأويل الذي في غيره من الروايات الآتي ذكرها.
And this is the saying of (1)Muhammad bin Ishaq Sahib AL MAGHAZI and he take evidence from Dawood bin Husain from Ikrimah from Ibne Abbas ra, Rukanah bin Abd Yazeed divorced his wife three times. He became too sad, Prophet Peace be upon him asked How do you divorced? (كيف طلقتها) Rukanah said I have given 3 talaaq. Prophet Peace be upon him asked in a single Majlis? He (rukahan) said YES. (Prophet) said Then it is only one talaaq if you want to do ruju (with ur wife) you can. Rukahnah did ruju
and Imam Ahmad and Abu yala mentioned this and authenticated from the turq of Muhammad bin Ishaq and this hadeeth is Nus in this Masla we can not do taweel (end)
Then Ibn Hajar al Asqalani said.
الرابع أنه مذهب شاذ فلا يعمل به، وأجيب بأنه نقل عن علي وابن مسعود وعبد الرحمن بن عوف والزبير مثله، نقل ذلك ابن مغيث في ” كتاب الوثائق ” له وعزاه لمحمد بن وضاح، ونقل الغنوي ذلك عن جماعة من مشايخ قرطبة كمحمد بن تقي بن مخلد ومحمد بن عبد السلام الخشني وغيرهما، ونقله ابن المنذر عن أصحاب ابن عباس كعطاء وطاوس وعمرو بن دينار.
ويتعجب من ابن التين حيث جزم بأن لزوم الثلاث لا اختلاف فيه ، وإنما الاختلاف في التحريم مع ثبوت الاختلاف كما ترى ، ويقوي حديث ابن إسحاق المذكور ما أخرجه مسلم
Fourthly this (saying 3 talaq equals 1) is Odd Madhab so it is not practiced, It is answered this(the madhab of 3 talaq=1) is narrated from (2) Ali, (3)Ibne Masood, (4)Abdul Rahman bin Awf and (5)Zubair (RadhuAllahanhun) same is mentioned by Ibn e Mugeeth in Kitab al wathaiq and Muhammad bin Wadah attributed to him, and Ghanwi mentioned same(madhab) from Scholars of Qartaba like (6)Muhammad bin Taqi bin Muhammad,(7)Muhammad bin Abdus Salam Al Hashni etc, And Ibn e Munzar mentioned (same fatwa) from Companions of (8)Ibn e Abbas ra Like (9) Ata (bin abi ribah),(10)Tawus(bin Kaisan),(11)Omar bin Dinar.
Astonishment over Ibn Teen when he said with certainty that there is no difference of opinion in the obligation of Triple Talaaq (taking place) and difference is only on prohibition while there is a difference of opinion as you are seeing. The hadith of Ibn Ishaq becomes powerful with the hadith of Sahih Muslim. (Fath ul Bari 9/369)
Ibn hajar’s opinion was otherwise but still he did justice on the opinion against him.
7. Imam Abu Zaid Daboosi al Hanafi (367 – 430h)
He said in his book Al Asrar
ثم من هؤلاء من قال: لو طلقها ثنتين أو ثلاثاً لا يقع إلا واحدة وهذا هو الأقيس،
There are those who says If a person pronounce two or three divorce in one sitting, it does not count but only one and this saying is more probable.[Tafsir Gharaaib al Qur`an by Imam Nesaburi d 850 h under Surah al Baq`rah ayah 229]
8. Fakhar ul Din Al Razi said under 2:229
: وهو اختيار كثير من علماء الدين، أنه لو طلقها اثنين أو ثلاثاً لا يقع إلا الواحدة، وهذا القول هو الأقيس، لأن النهي يدل على اشتمال المنهي عنه على مفسدة راجحة، والقول بالوقوع سعى في إدخال تلك المفسدة في الوجود وأنه غير جائز، فوجب أن يحكم بعدم الوقوع.
Large number of scholars of Islam have maintained that even if divorce is pronounced two or three times it will not count but only one, and this saying is more probable since what is prohibited is harmful, and those who maintain that (three divorces) take place are striving to resort to corrupt and harmful practices and it is inadmissible So it is Obligatory to maintain its inadmissibility(end)
Comment: Fakhr ud din al-Razi came a century before Ibn Tamiyah and he said “Larger number of Islam have maintained that even if divorce is pronounced two or three times it will not count but only one” and his own opinion is also with larger number of scholars.
Did Ibn Taymiyyah go against the binding agreement of the scholars [‘Ijm’a] with his opinion on divorce?
Ibn Taymiyyah and the three divorce issue:
Ibn Rushd [may Allah have mercy upon him] died nearly 200 years before Ibn Taymiyyah’s birth wrote in his monumental classic Bidāyat al-Mujtahid wa Nihāyat al-Muqtaid concerning this issue. “The contention of the majority of the scholars is that three pronouncements of divorce are equal to three divorces. The Dhahiriyah and a group of others hold that such an act is equal to only one divorce.”
Thus, it is quite clear from this statement that Ibn Taymiyyah did not reject the ‘Ijma of the scholars on this issue since, as Ibn Rushd mentioned, there was only a “Majority” and no “‘Ijm’a” consensus on the issue.
However, the question arises as to why Ibn Taymiyyah would take such an opinion?
Imam al-Shaf’i, Imam Abo Dawud, Imam al-Daraqtuni relate that Ibn ‘Abbas said, “Rukah divorced his wife three times in one sitting. Thereafter he was extremely grieved and went to the Prophet [may the peace and blessings of Allah be upon him] and complained to him. The Prophet [may Allah’s peace and blessings be upon him] asked him, “How did you divorce your wife?” He responded, “I pronounced three divorces at once.” The Prophet [may Allah’s peace and blessings be upon him] responded, “Indeed, this type of divorce is only equal to one divorce.”
Some scholars questioned the strength of this hadith stating that it was mutarib such as Imam al-Bukhari. However, Ibn Kathir states, “However, Abu Dawod narrated it with a different chain and it is a good hadith inshallah.” See Bidyatul Mujtahid Dar al-Salam print volume 2 pg 1383.
In addition, Imam Ahmed adds that the Prophet [may Allah’s peace and blessings be upon him] said, “Return her if you like?” Ibn Abbas adds, “So he returned her” and Imam Ahmed considered this narration good.
al-Hakim relates that a man came to Ibn ‘Abbas and asked him, “Are you aware that three divorces during the time of the Prophet [may Allah’s peace and blessings be upon him] equaled one [divorce]?” Ibn Abbas responded, “Yes.” al-Hakim states that this hadith is sound
Dr. Abdullah al-‘Uhad states, “There was a group of scholars who contended that one pronouncement of divorce could not follow another (meaning one said I divorce you! I divorce you! I divorce you! All at the same moment) but that, if it took place, it would only count as one divorce. This was related by Abu Musa as the opinion of Ali bin Abi Talib [may Allah be pleased with him], Ibn ‘Abbas, Tawus, ‘Ata, Jabir bin Zaid, al-Hadi, al-Qasim, al-Baqir, al-Nasir Ahmed bin ‘Esa and Zaib bin ‘Ali [may Allah be pleased with them all]
This was also the opinion of some of the later day scholars: Ibn Taymiyya, Ibn al-Qayyim and other critical scholars. This was also related to be the opinion of the scholars of Cordoba and is currently followed by a large body of Muslim scholars do to its ease and removal of hardship.” See Sharh Bidayatul al-Mujtahid pg. 1384
1. If we were to bring back the fatwa of the Jamhur how many Muslims marriages would suddenly become void? In the Middle East, at least, it could easily be in the hundreds of thousands.
2. Egypt’s current law is based on the Hanafi madhab. However, its divorce law is based on the fatwa of Ibn Taymiyyah [ra].
3. Sh. Mustapha Zarqa [ra] when asked to establish a contemporary Shari’ah law [for Syria] choose the opinion of Ibn Taymiyyah [ra] regarding divorce.