Establishing Women’s Right to Divorce in the Qur’an and Explaining the Meaning of “Divorce Is Twice”

Although I have had no plan to focus my series of Qur’anic articles on verses related to women and their rights, in practice it has turned out that way, and this is due to the many controversies that exist today over the said verses. Hence I too have endeavored to present my understanding in this regard for the critique and consideration of esteemed readers.(1) Now, in this space, I intend first to establish women’s right to divorce in the Qur’an, and thereafter to explain the meaning of “divorce is twice.”

The prevailing opinion concerning the right to divorce confines it to the will of men, whereas it can easily be shown that the Qur’an permits divorce to be contingent upon the will of women as well. After stating the strategy for dealing with women’s nushūz in verse 34 of Sūrat al-Nisāʾ,(2) the Qur’an says in verse 35: “وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فابْعَثُوا حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَآ إِن يُرِيدَآ إِصْلَاحًا يُوَفِّقِ ٱللَّهُ بَيْنَهُمَآ”, and if you fear a breach between the two, then (O their relatives) appoint an arbiter from the man’s family and an arbiter from the woman’s family; if they (the man and woman) desire reconciliation, God will bring about harmony between them. Now, one branch of the matter is that the man and woman accept the solution of the two arbiters and make peace, but the second branch is that they do not accept the arbiters’ ruling and do not make peace. In this case, even if the man desires reconciliation and the woman does not, no peace will be established, and the only remaining solution will be their separation from one another, which will in fact take place by the woman’s will. Therefore, based on verse 35 of Sūrat al-Nisāʾ, the right to divorce for women is established. Let us note that the subject of these verses is women’s nushūz,(3) and the Qur’an grants them this right even in the event that women commit nushūz; therefore, a fortiori, this right is established for women who do not commit nushūz. And again, a fortiori, for women who do not commit nushūz and whose husbands commit nushūz, this right is decreed, for verse 128 of Sūrat al-Nisāʾ says: “وَإِنِ امْرَ‌أَةٌ خَافَتْ مِن بَعْلِهَا نُشُوزًا أَوْ إِعْرَ‌اضًا فَلَا جُنَاحَ عَلَيْهِمَا أَن يُصْلِحَا بَيْنَهُمَا صُلْحًا وَالصُّلْحُ خَيْرٌ”, and if a woman fears nushūz or desertion from her husband, there is no blame upon them if they make peace between themselves, and peace is best. Now, if they do not make peace, what is the ruling? It is obvious that if they do not make peace, a breach occurs between them and they separate from one another, and in this case too, the separation has been by the woman’s will, since she feared her husband’s nushūz.

But to establish women’s right to divorce in the Qur’an, one can also cite verse 10 of Sūrat al-Mumtaḥanah, which says: “O you who believe, when believing women come to you as emigrants, test them, although God is most knowing of their faith; but if you know them to be believers, then do not return them to the disbelievers; for they are not lawful for those men, nor are those men lawful for these women; and compensate them for whatever their husbands have spent on them; and there is no blame upon you if you marry them, provided you give them their dowries…”

Now, if the separation of believing emigrant women from their disbelieving husbands is recognized by the Qur’an, is its opposite not recognized? That is, if disbelieving women desire separation from their believing husbands and go over to the disbelievers, should this desire of theirs not be fulfilled? Can we, in today’s Muslim societies, fundamentally draw a line between disbelievers and believers and separate them from one another in order to say that this right of separation applies only to those women who are themselves believers and whose husbands are disbelievers? Can we say that this verse was specific to the early Islamic period and has no application today? Let us bear in mind that the degree of faith and disbelief of every person is relative, and how many disbelievers there are who consider themselves believers. Therefore, considering the relativity of the category of faith and disbelief, and also taking into account that the rulings of the Qur’an are for all times and all places, meaning they find application in all times and places (because they express a continuous reality)(4), we can, based on verse 10 of Sūrat al-Mumtaḥanah as well, consider women to possess the right of separation.

In addition to these verses, one may also cite verse 2:228, since it asks divorced women to restrain themselves for three menstrual cycles and observe the waiting period, and, if they are pregnant, not to conceal it, because in that case their husbands are entitled to take them back if both desire reconciliation. Now the question arises: if women who sought separation were not covered by this verse, and only women who were divorced at the husband’s wish were covered, why would they need to conceal their pregnancy?! If these women did not want separation and desired the continuation of the marital bond, their pregnancy would be the best means of returning to married life and finding another opportunity to attract their husband’s attention. Therefore, at least some of the women covered by this verse themselves desired separation, and when they realized they were pregnant, in order to free themselves from the marital bond, they resorted to concealment—something God does not deem lawful for them.

I now turn to extracting the meaning of “al-ṭalāqu marratān” (Divorce is twice) contained in verse 2:229, which states: “al-ṭalāqu marratān fa-imsākun bi-maʿrūfin aw tasrīḥun bi-iḥsān”—Divorce is twice; then either retention in a fair manner or release with kindness. The common understanding of this verse is that a man may divorce his wife twice, and if he divorces her a third time, he may not return to her unless she marries another man, consummates the marriage, and is divorced, so that she may then remarry her former husband. They base this meaning on the following verse, which says: “fa-in ṭallaqahā fa-lā taḥillu lahū min baʿdu ḥattā tankiḥa zawjan ghayrahū fa-in ṭallaqahā fa-lā junāḥa ʿalayhimā an yatarājaʿā in ẓannā an yuqīmā ḥudūda llāh.” Of course, verses 2:226 and 2:227 are also involved in this matter, since they derive the right of return from them: “li-lladhīna yuʾlūna min nisāʾihim tarabbuṣu arbaʿati ashhurin fa-in fāʾū fa-inna llāha ghafūrun raḥīm, wa-in ʿazamū ṭ-ṭalāqa fa-inna llāha samīʿun ʿalīm”—For those who swear īlāʾ (5) from their wives, a waiting period of four months is prescribed; then if they return, indeed God is Forgiving, Merciful; and if they resolve on divorce, then indeed God is Hearing, Knowing.

But this common understanding is misguided, because if we take the phrase “al-ṭalāqu marratān” to mean that the right of divorce belongs to men twice, then this phrase has no logical connection with the phrase “fa-imsākun bi-maʿrūfin aw tasrīḥun bi-iḥsān,” which immediately follows it and begins with “fa-,” which carries within it the sense of a conclusion and the next stage. In the common understanding, they have in fact substituted “īlāʾ” for “ṭalāq” in the phrase “al-ṭalāqu marratān.” Regarding the meaning of “īlāʾ,” they have said it is the oath taken by men to abstain from intercourse with their wives. And they have said that, so that men do not use īlāʾ to harm women, the Qur’an has decreed that a man may return to his wife at most twice after īlāʾ. If they have not substituted “īlāʾ” for “ṭalāq,” how have they said that a man cannot return to his wife after a third divorce?! The Qur’an says divorce is twice, so where did they get the third time from?! If we assume that the Qur’an means that divorce is permissible twice, then a man may return to his wife at most once, not twice.

But the Qur’an’s intent is not that divorce is permissible “twice”; rather, it says that divorce is a “two-stage” process, the reason for which I will explain. Verse 1 of Sūrat al-Ṭalāq states: “ياأَيُّهَا النَّبِىُّ إِذَا طَلَّقْتُمُ النِّسَآءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ”. Let us note that the verb for divorcing is used twice in this verse: O Prophet, whenever you [pl.] divorce women, then divorce them with the stipulation of their waiting period. The first verb of divorce is in the past tense and the second verb of divorce is in the present tense. Thus, in the first instance, separation has not yet occurred; rather, it means “declaring the intention to separate,” whereas in the second, with the stipulation of completing the waiting period, separation occurs. In other words, the verb for divorce in the Qur’anic verses carries two semantic loads: 1) declaring the intention to separate, 2) the occurrence of separation. In the Qur’an, the “occurrence of separation” is also expressed with the word “tasrīḥ” or a verb from the root “s-r-ḥ”: “الطَّلاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ” (al-Baqarah 229) and “وَإِذَا طَلَّقْتُمُ النِّسَآءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ” (al-Baqarah 231). In verse 2 of Sūrat al-Ṭalāq, instead of using the word “tasrīḥ” or “sarriḥūhunna,” the word “fāriqūhunna” is used, which carries the semantic load of the “occurrence of separation”: “فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ”. Therefore, according to the Qur’an, “divorce” has two stages: the first stage is “declaring the intention to separate,” after which the woman must observe a waiting period, and the second stage, which is after the completion of the waiting period, is the time for making the final decision regarding the “occurrence of separation.” At this stage, if the man desires divorce and the woman desires the continuation of the marital bond, the man decides whether to keep his wife or separate from her.

With these descriptions, verse 230 of al-Baqarah, which states: “فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُۥ مِن بَعْدُ حَتَّى تَنكِحَ زَوْجًا غَيْرَهُۥ فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَآ أَن يَتَرَاجَعَآ إِن ظَنَّآ أَن يُقِيمَا حُدُودَ اللَّهِ”, also becomes relevant in the first instance of divorce. That is, whenever a divorce occurs between a man and a woman, that man and woman can no longer remarry each other unless that woman marries another person and then obtains a divorce from him, so that the two can remarry each other. This strictness is so that men do not resolve upon divorce out of a desire to harass women, or for the sake of convenience and irresponsibility, a desire for variety, lustfulness, etc., but rather carefully weigh the option of continuing the marital bond against the option of divorce, release, and separation, and then make a decision. Of course, whenever women also desire divorce, and separation occurs at their request, based on this same verse, they cannot return to the marriage of their former husband without marrying another. In this case, it seems unlikely that the former husband would agree to remarry; hence, this verse also warns women to reflect upon the occurrence of separation and not make decisions based on fleeting emotions, for there may be no way back for them.

Another reason that “Divorce is twice” does not refer to two instances of divorce is that later in the same verse (2:229), God states that it is not lawful for you to take back anything of what you have given them, unless both fear that they cannot keep within the limits set by God. Now, if we take “Divorce is twice” to mean two divorces, the rest of the verse only becomes coherent in relation to that concept if both divorces occur consecutively—that is, the husband divorces the wife, she observes the waiting period, the husband takes her back at the latest by the end of the waiting period, then divorces her again, she observes the waiting period, and then the husband decides either to retain her in a fair manner or release her with kindness and not take back what he has given. Otherwise, if these two divorces are not consecutive—if, for instance, some time elapses between the first divorce and the second marriage—should the husband not be prohibited from taking back what he has given during that interval?! The answer is obviously yes. Therefore, if the Qur’an meant two divorces by “Divorce is twice,” logically the latter part of verse 2:229 should have been placed, for example, at the end of verse 2:231 or 2:232, so that the prohibition against taking back what the husband has given would apply to the first divorce as well and then be extended to the second. If it is argued that the first and second divorces in “Divorce is twice” were consecutive and therefore no objection arises, the response must be that, based on verses 2:231 and 2:232, if the husband retains his wife at the latest by the end of the waiting period, no separation has essentially occurred for a consecutive second divorce to become relevant.

But one more important verse remains, namely: “And when you divorce women and they have fulfilled their term, do not prevent them from marrying their husbands when they have mutually agreed in a fair manner” (2:232). The verse says: And when you divorce women, and they have completed their waiting period, do not prevent them from marrying their husbands when they have mutually agreed in a fair manner. The common interpretation of this verse takes “marrying their husbands” to refer to the women’s former husbands. However, the agency in the phrase “And when you divorce women…” and “do not prevent them” is the same; therefore, it is illogical for the men both to divorce the women and themselves to prevent them from marrying themselves. If we take the agency in “do not prevent them” to be the women’s relatives, it is still illogical for the beginning of the verse to say: whenever you divorce women, and then immediately continue: so (you relatives) do not prevent those women from marrying their former husbands. In other words, using the second-person plural address both in the phrase “And when you divorce women…” and in “do not prevent them”—one signifying the agency of “former husbands” and the other the agency of “the women’s relatives”—would not have been appropriate; rather, one of these two should have been expressed in the third-person plural. Thus, “marrying their husbands” does not refer to marriage with former husbands, but rather to the potential husbands with whom the women have reached a mutual agreement to enter into a marriage contract after their divorce from the former spouse.

The evidence for the correctness of this claim is that at the end, the verse states: “ذَلِكَ يُوعَظُ بِهِ مَن كَانَ مِنكُمْ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الَْاخِرِ ذَلِكُمْ أَزْكَى لَكُمْ وَأَطْهَرُ وَاللَّهُ يَعْلَمُ وَأَنتُمْ لَا تَعْلَمُونَ”, this is an admonition for whoever among you believes in God and the Last Day; this is more conducive to your purity and purer, and God knows while you do not know. The addressees in this phrase are the divorcing men, for they suppose that returning to their former wife is their right, or it is they who are averse to their former wife being with someone else. But God says: I know and you do not know that it is better for you to desist from preventing your former wives from marrying those they wish to marry. Let us note that it says: “ذَلِكُمْ أَزْكَى لَكُمْ...”, “لَکُم” (for you) is congruous with the divorcing men, not with the women’s relatives, nor with the separated men and women. For if the referent of the pronoun were the women’s relatives, the phrase would become meaningless; why would this guidance be a means of purity and purer for the women’s relatives?! If we say “لَکُم” refers to the separated men and women, that is also an error, for both the women desire to marry their spouses, and the men intend to return—so it says do not prevent them. Thus both parties would have considered this remarriage as a means of purity and purer for themselves, which is why they have such a desire, whereas God says: I know and you do not know!!!

In addition to these points, if the Qur’an’s intent were the remarriage of divorced women to their former husbands, what need would there be, after “وَإِذَا طَلَّقْتُمُ النِّسَآءَ”, to say “فَبَلَغْنَ أَجَلَهُنَّ”?! Why is the completion of the waiting period made a condition?! If they wish to marry their former husbands, according to other verses whose explanation has been given, their husbands could have decided to retain them during the waiting period or after it and refrained from releasing and separating from them, and their relatives ought not to deprive their husbands of this right of decision.

Another point is that this verse uses the word “أَزْواجَهُنَّ” and not the word “بُعُولَتُهُنَّ”, which explicitly means “husbands”. Let us note that in verse 230 of Al-Baqarah, the word “زوجاً” is also used, and there it is explicit that the zawj is other than the separated husband; rather, it refers to a man who has not yet become established in the position of that woman’s husband. Therefore, in this verse as well, what is meant by “أَزْواجَهُنَّ” are the potential husbands whom those women intend to marry.

And yet further explanation: when a man “declares his intention to divorce”, there is no restriction upon his wife that she may not, during the waiting period, seek marriage to another person so that after the expiry of the waiting period and the probable occurrence of separation, she does not remain without shelter, dwelling, etc. For, based on verse 1 of Surah At-Talaq, the provision for women is the responsibility of their divorcing men only during the waiting period (لَا تُخْرِجُوهُنَّ مِن بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّآ أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ). In addition to this, to prevent abuse by men, making the “declaration of intent to divorce” public also seems logical, for if it is not made public, the man can deny it and thereby harass and torment his wife, or make an unfounded accusation against her for seeking another spouse.

Therefore, the conceptual translation of verse 232 of Al-Baqarah is as follows: O men, whenever you divorce women and they have reached the end of their waiting period (and you have decided to release them), do not prevent them (you who are their former husbands) and do not hinder them from marrying those with whom they are mutually agreeable to marry (you have no such right, even if it does not please you) ...

I would also offer this explanation regarding verses 226 and 227 of Al-Baqarah, which state: “For those who swear an oath of abstention from their wives, a waiting period of four months is prescribed; if they return, then indeed Allah is Forgiving, Merciful. And if they resolve on divorce, then indeed Allah is Hearing, Knowing.” For those who withdraw from their wives, there is a four-month respite; if they return, then indeed God is Forgiving, Merciful; and if they resolve on separation, then indeed God is Hearing, Knowing. Based on these verses and the other aforementioned explanations, if a man abstains from intercourse with his wife for four months, he must either “declare his intention to separate” from her, or he must resume intercourse with her and proceed with the normal course of married life. If they declare an intention to divorce, the women have the choice either to remain in their homes for the duration of the waiting period and seek provision, or to consider the divorce as having taken effect, since the four-month period exceeds the length of the waiting period. (And divorced women shall wait concerning themselves for three menstrual courses — Al-Baqarah 228)

In closing, I apologize to esteemed readers that I could not offer a more fluent expression of my understanding regarding the verses under discussion. I hope that by reading my contents with extra care, they will compensate for my deficiency in expression and grasp my intent and meaning.

.

---

.

Footnotes:

1— Articles with the titles “The Permissibility of Relaxing Dress and Comfort for Women in the Presence of Certain Non-Mahrams,” “The Meaning of Striking Disobedient Women in the Qur’an,” “A Critique of the Article A Look at Women’s Nushuz in the Qur’an,” “The Permissibility of Non-Responsibility Towards Certain Widowed Women,” “The Qur’an’s Non-Obligation to Cover Women’s Hair,” “The Absence of a Ceiling on Polygamy in the Qur’an,” and “An Open Discussion on the Meaning of Ma Malakat Aymanukum in the Qur’an.”

2— Refer to “The Meaning of Striking Disobedient Women in the Qur’an” and “A Critique of the Article A Look at Women’s Nushuz in the Qur’an” by the author.

3— Ibid.

4— Refer to “The Meaning of Waging War Against God and Understanding the Reason for Its Punishment in the Qur’an,” “The Attributes of God and the Qur’an’s Addressees,” “On the Decisive and Allegorical in the Qur’an,” and “A Response to Two Questions Regarding the Decisive and Allegorical and the Abrogating and Abrogated” by the author.

5 — Regarding the meaning of “Ila’,” it has been said that it is the swearing of oaths by men to abstain from intercourse with women.

.

---

.

Establishing Women’s Right to Divorce in the Qur’an and Explaining the Meaning of “Divorce Is Twice”

Nima Haghpour — 17 December 2016

[email protected]

.

---

.