Hadith 3351

(1) The statement: “Divorce is twice, etc.”: These two verses address revocable divorce, khul‘, and the final divorce. Regarding the first, His saying, “Divorce is twice”, clarifies that in the pre-Islamic era, the number of divorces was not fixed, allowing a man to divorce his wife multiple times (e.g., ten) and still take her back. He could revoke the divorce at the end of her waiting period, divorce her again, and repeat this cycle. A woman complained to Aishah about her husband’s repeated revocations and divorces, and when this was brought to the Messenger of Allah (ﷺ), the verse “Divorce is twice” was revealed. This means that revocable divorce, which allows revocation, is limited to two times, not more. After that, one must either keep her with kindness or release her with good treatment. This is a command in the form of a statement, as if to say: “Divorce revocably twice.” This interpretation is mentioned in Husayni, Zahidi, Baydawi, and Talwih, aligning with the views of Ash-Shafi‘i and Abu Hanifah. Another interpretation, specific to Abu Hanifah and favored by the authors of Kashshaf, Madarik, and Fakhr al-Islam, holds that this refers to the lawful method of divorce, not just revocable divorce. Lawful divorce is pronounced one at a time with intervals, not all at once. The term “twice” does not imply two divorces at once but rather repetition, as in “Then look again twice” [Al-Mulk: 4], meaning one look after another, not two at once. This is supported by the use of “marratan” (twice) instead of “ithnayn” (two), indicating a command in the form of a statement. Otherwise, it would imply falsehood, as two divorces can occur together. Ash-Shafi‘i permits pronouncing two or three divorces at once. The preferred rulings are: The best divorce is one pronounced in a clean period without intercourse, followed by no further divorce. The good method, per Hanafis, is three divorces in three clean periods or three months, contrary to Malik, who considers this innovated. Innovated divorce includes pronouncing two or three divorces in one clean period, in one statement, or one divorce in a period with intercourse or during menstruation with prior intercourse. Ash-Shafi‘i permits this except during menstruation. After one or two divorces, revocation is allowed during the waiting period if pronounced explicitly. If the waiting period ends or ambiguous terms are used, she is fully divorced and may remarry him or another. After three divorces, explicit or ambiguous, with or without compensation, she is not lawful to him until she marries another husband, as Allah states. Revocable divorce is addressed in two verses: “Divorced women shall wait…” [Al-Baqarah: 228], followed by “And their husbands have more right to take them back”, for one divorce, and “Divorce is twice”, for two divorces, followed by “Then, either keep [her] in an acceptable manner or release [her] with good treatment”, meaning after two divorces, either revoke with kindness or release by letting the waiting period end or pronouncing a third divorce in the third clean period. Revocation after the third divorce requires her to marry another husband who consummates the marriage and then divorces her, as in “And if he has divorced her…” [Al-Baqarah: 230]. After the waiting period of one or two divorces, the divorcing husband or another may marry her, as in “And when you divorce women and they have fulfilled their term…” [Al-Baqarah: 231]. This is the detailed explanation. Regarding the second, “And it is not lawful for you…”, commentators explain that Jamilah, the wife of Thabit ibn Qays, was averse to him despite his love for her. He had given her a garden as her dowry. She sought khul‘ by returning the garden, making it the cause of her divorce. He divorced her and took back the garden. The Messenger of Allah (ﷺ) encouraged her to stay for his sake, but she insisted on separation. He asked, “Will you return his garden?” She said, “Yes.” This was the first khul‘ in Islam, and this verse was revealed. The verse means it is not lawful to take back anything given as dowry unless both fear they cannot uphold Allah’s limits, i.e., discord arises, such as the wife’s rebellion, bad character, or lack of respect, or the husband’s unjust beating or abuse. If you fear they cannot uphold Allah’s limits in this manner, there is no blame on either for what she ransoms herself with to free herself. This is called khul‘, a final divorce. However, the term “khul‘” must be explicitly mentioned, e.g., the husband says, “I grant you khul‘ for a thousand dirhams, and I accept,” or the wife says, “I seek khul‘ from you for this, and you accept.” If the term “khul‘” is not used, e.g., the husband says, “I divorce you for a thousand,” or the wife says, “Divorce me for a thousand,” it is not khul‘ but a divorce for compensation. Khul‘ is permissible when needed, with anything valid as dowry being valid as compensation, though not vice versa. Taking compensation is disliked if the discord is from the husband, and taking more than the dowry is disliked if from the wife. Khul‘ is a transaction for her, allowing her to revoke or stipulate an option, limited to the session, and an oath for him, reversing rulings for him. This is detailed in fiqh books. Scholars differ on whether khul‘ is a dissolution or a divorce. Ash-Shafi‘i’s old opinion and Ibn Amr ibn Abbas hold it is a dissolution, not a divorce. Hanafis and Ash-Shafi‘i’s new opinion, one narration from Uthman, hold it is a divorce. Fakhr al-Islam explains that Allah mentioned one or two divorces followed by revocation, then khul‘ in “But if you fear that they will not keep [within] the limits of Allah…” [Al-Baqarah: 229]. He began with the husband’s action (divorce) and added the wife’s action (ransom). Mentioning the wife in “concerning that by which she ransoms herself” confirms the husband’s prior action (divorce, not dissolution), as ransom involves giving something for something. This indicates the compensation is for the wife, and the corresponding action (divorce) is for the husband, not dissolution, which involves both. The practical difference is that Hanafis count khul‘ as a divorce, while others do not. Thus, “And if he has divorced her…” [Al-Baqarah: 230] connects to “Divorce is twice” [Al-Baqarah: 229], not khul‘. Regarding the third, “And if he has divorced her…” [Al-Baqarah: 230], scholars differ. Most commentators connect it to “Divorce is twice”, meaning after one or two revocable divorces, a third divorce makes her unlawful to him forever until she marries another husband who consummates the marriage and divorces her. Then, there is no blame on the first husband and wife to remarry if they believe they can uphold Allah’s limits of marital rights, good companionship, and harmony. On this view, the khul‘ ruling is an interjection to clarify that it is also a divorce, indicating divorce can be without or with compensation. Jurists agree that mentioning divorce in “And if he has divorced her…” with the letter fa’ (then) after khul‘ indicates two things: divorce is valid after khul‘, per the fa’, and khul‘ is a divorce, not a dissolution, as dissolution would not be followed by divorce. This is supported by “concerning that by which she ransoms herself”, as explained in Tafsir al-Ahmadiyyah (summarized).

(2) The statement: “And if you wish to exchange a wife…”: It is reported that in the pre-Islamic era, if a man admired another woman for her beauty, wealth, or perfection and wanted to marry her by divorcing his current wife, he would falsely accuse his wife of immorality to force her to ransom herself with what he gave her. He did this to marry the other woman and take back his wealth deceitfully. Allah prohibited this, saying, “And if you wish to exchange a wife…”, meaning if you desire to replace one wife with another for beauty or perfection, having given the first a great amount, do not take anything back, as it would be unjust and sinful. How can you take it when you have been intimate and they have taken a solemn covenant, meaning companionship, intimacy, or Allah’s firm covenant in “Then, either keep [her] in an acceptable manner or release [her] with good treatment” [Al-Baqarah: 229], or the Prophet’s (ﷺ) saying, “Treat women kindly…” This is the verse’s meaning. The author of Hidayah cites this to argue that if the discord is from the husband, taking compensation is disliked, as in the chapter on khul‘: If the discord is from him, it is disliked to take compensation, per “And if you wish to exchange a wife…” to “do not take [back] from it anything” [An-Nisa: 20]. The term “qintar” (great amount) indicates dowry can be any amount, as it means vast wealth. It is narrated that Umar said on the pulpit, “Do not exaggerate women’s dowries.” A woman responded, “Do we follow your words or Allah’s: ‘And you have given one of them a great amount’?” Umar said, “Everyone is more knowledgeable than Umar. Marry with what you wish.” This verse also clearly supports Abu Hanifah’s view that dowry is confirmed by valid seclusion, as Allah prohibits taking back wealth, justified by intimacy (seclusion without barrier), as in Madarik and Tafsir al-Ahmadiyyah (summarized).

(1) The statement: “Allah has already ordained for you [Muslims] the dissolution of your oaths”: This means Allah made prohibiting the lawful an oath, requiring expiation. The end of the verse mentioning “dissolution of your oaths” relates to the beginning about prohibiting the lawful. It is narrated from Muqatil that the Messenger of Allah (ﷺ) freed a slave to expiate prohibiting Mariyah. Allah did not merely prescribe expiation but termed it an oath, as in Tafsir al-Ahmadiyyah (summarized). The author of Kashshaf says: If asked about the ruling on prohibiting the lawful, it is disputed. Abu Hanifah views it as an oath in all cases, considering the intended benefit of what is prohibited. If one prohibits food, it is an oath against eating it; a slave woman, against intimacy; or a wife, against ila’ (oath of abstinence) if no intent is specified. If one intends zihar (likening to a kin), it is zihar; if divorce, it is a final divorce. If two or three divorces are intended, it follows the intent. If one says, “I intended to lie,” it is a matter between him and Allah, not upheld in judgment. If one says, “All lawful things are unlawful to me,” it applies to food and drink if no intent is specified, otherwise per the intent. Ash-Shafi‘i does not view it as an oath but a cause for expiation only for women. If divorce is intended, it is revocable for him. Abu Bakr, Umar, Ibn Abbas, Ibn Mas‘ud, and Zayd say prohibiting the lawful is an oath.

(2) The statement: “Accept the garden and divorce her…”: This proves the legitimacy of khul‘, on which scholars unanimously agree. The details of khul‘ were discussed under “Divorce is twice”, which is relevant here.

(3) The statement: “The Prophet (ﷺ) made khul‘ a single final divorce”: Scholars differ on whether khul‘ is a divorce. Hanafis say it is a single final divorce, as do Uthman, Ali, Ibn Mas‘ud, Al-Hasan, Ibn al-Musayyib, Ata, Shurayh, Ash-Sha‘bi, Qabisah ibn Dhu’ayb, Mujahid, Abu Salamah, An-Nakha‘i, Az-Zuhri, Ath-Thawri, Al-Awza‘i, Mak-hul, Ibn Abi Najih, Urwah, Malik, and Ash-Shafi‘i in his new opinion. Ahmad and Ishaq say it is a separation and dissolution, not a divorce, as do Ibn Abbas and Ash-Shafi‘i in his old opinion. Our evidence is this Hadith and other narrations. The practical difference is that khul‘ reduces the number of divorces and her waiting period follows the second ruling, not the first, as in At-Taliq al-Mumajjad and Umdat ar-Ri‘ayah (summarized).