Kitab at-Talaq
What is the literal & shari' meaning of Talaq?
What are the three types of Talaq?
(hint: its based on when he gave it, and how many he gave)
Literally means to remove constraint; come from Itlaq (meaning ‘to release’)
Shari’ meaning: remove constraint of the contract of nikah/release from contract of nikah
Best Talaq: He gives her one talaq in a single tuhr period in which he didn’t have intercourse with her and leaves her until she completes her iddah
Best b/c he has thought it through; didn’t do it out of anger
No possibility of pregnancy
Sunnah Talaq:
He gives the woman he has consummated with three talaqs in three tuhr periods (one talaq per tuhr period)
Her iddah starts from first talaq
No ruju’
Bid’ah Talaq:
3 times in one statement or 3x in one tuhr
This talaq counts but he is a sinner (the evidence is in the hadith about Ibn Umar)
1. What happens when he says to another man, “Divorce my wife"?
2. What about if he says “Divorce her if you want”?
1. He can divorce her in the session or after bc he is essentially giving the other man wakalah.
2. he may only divorce her during the sitting bc this was ikhtiar and thats only valid in the majlis.
What happens if he uses the word “everytime” كلما when giving Talaq?
Why does the condition not become void after 1 Talaq?
everytime she fulfills the condition (like entering the house for example), a divorce will occur until she gets 3 divorces.
If he remarries her (after halala) then the condition isn’t valid anymore b/c he already used up 3. New nikah = 3 new talaqs
Basically, the condition does not become void after only 1 talaq (b/c he owns three). So if he marries her again after 1, and she fulfills the condition, another divorce will occur.
However, if she walks through the door after iddah and before remarriage, it doesn’t count b/c she is not in his nikah (ownership)
Does the divorce take place if he says InShaAllah?
If he says you are divorced thrice, except for one, how many take place?
What happens when a husband becomes owner or part owner of his wife (or vice versa)
No it does not. Bc it makes the statement unclear
Two take place
Immediate separation takes place bc you cannot marry that which you own.
What is the linguistic and Shari' meaning of Raj'ah?
When does it usually apply?
What are the two ways to do ruju'?
What is the proof for ruju'?
Are two witnesses needed for Ruju'?
linguistic: to return
shari': make nikah remain in same state it was before and its only possible as long as woman is in her iddah
only applies in talaq sareeh
by word or by action
No, but it is mustahabb.
Quran 2:231
What happens if a man divorces a woman during her haydh?
The book says its mustahabb to take her back.
The more correct option is that it is Wajib to take her back [b/c he committed a sin by divorcing her in haydh]. He must wait till the second tuhr period b/c Talaq in Hayd + Talaq in Tuhr right after is Talaq Bidi’ [2 consecutive Talaqs]
Evidence: RasulAllah commanded Ibn Umar to take his wife back when he divorced her in haydh.
If a man says any of the Talaq Bain phrases without the intention of Talaq, will it occur?
What happens if he gives her a talaq while fighting (he's angry)?
If he gives a sareeh talaq but adds additional terms (ex: You are Taaliqun Baainun), what kind of Talalq occurs? Why?
No, unless it was mentioned in the discussion of Talaq. Then the talaq will occur in the court, but not on the DOJ.
Talaq occurs with every word whose purpose isn't to curse or abuse
Talaq Baain. Adding additional terms to a clear (sareeh) divorce makes it بائن (b/c it’s a more severe form of divorce) → Sareeh بائن
**
The court can declare separation b/w the two if the judge makes the judgement only when Talaq was being discussed, even if he didn’t have the intention.
The judge cannot rule on words of curse or abuse but words that aren’t of curse/abuse (“I leave you”) is a strong basis for qadhi to rule divorce.
**
What is a plaintiff and defendant called in Islamic court? Who has to bring the proof?
If a husband and wife differ whether a condition took place (for conditional Talaq), what happens?
If the husband says "If you menstruate, you and xyz will be divorced", will both women be divorced?
In Islamic court, a plaintiff is known as مُدَّعي while the defendant is know as مُدَّعي عايه. The plaintiff (one making the claim) is always the one who has to bring the proof. The plaintiff is going against the asl/norm by making the claim.
His word is taken, unless she brings proof. She is the plaintiff bc she is claiming that he divorced her (while he says he didn’t) and she is going agaisnt nikkah (which is the norm)
^ the only exception to this is if the condition was from her part (like if you menstruate, i will divorce you). then her word is taken.
No, only she will (based on her qawl). Her statement is only enough for her divorce. For the other woman’s divorce 2 male witnesses (or 1 male & 2 females) are needed.
What happens if he says you are divorced "at" a place vs when he says you are divorced when you "enter" a place?
What about when he says you're divorced tomorrow?
What happens if he says i“If you love me or hate me, then you are divorced,” and she replies, “I love you,” or “I hate you"?
at a place -> immediately takes effect
enter -> only gets divorced when she enters that place
If he says, “You are divorced tomorrow,” the divorce takes effect upon her with the rising of the true dawn.
The divorce takes place even if she doesn't feel that in her heart.
If she denies that he did ruju' with her in her iddah, what happens?
What if he says "I take you back", and she says "my iddah is done"
What happens if the husband of a slave girl said I took you back, and her master confirms it, but she denies it?
Her word is taken and she doesn't have to take an oath according to Imam Abu Hanifa.
Imam Abu Hanifa says the ruju' isn't valid.
The slave girl's statement is taken bc she knows bets when her period (aka iddah) ended.
The divorce of which types of men doesn't count?
Can the master give divorce to the wife of his slave?
Does tha Talaq of a slave man count?
A child, an insane person, or a sleeping person. The talaq of every sane and baaligh man counts.
No, he cannot.
Yes, if he married with the permission of his master
What happens if he attributes Talaq to her as a whole? Or to her body part?
What if he gives her 1/2 a divorce, or 1/3?
If he attributes Talaq to her as a whole → counts as a divorce
If he divorces her by mentioning a part that could refer to her entirely or a general part (like ⅓ or ½ of your body) → also counts as divorce
However, mentioning a body part like legs or hands won’t count
It counts as one bc there is no such thing as part of a divorce
How many talaqs can a slave woman get & what is her iddah? (mention diff of opinion b/w us and other three imams and our refutation)
A slave woman can be given two talaqs and her iddah is two hayd periods (doesn't matter if her husband is free or slave). This is bc slave women get 1/2 ruling of free woman, but no such thing as 1.5 talaqs.
Hanafis say the # of talaqs and the iddah is according to the woman. Other three say # of talaqs is based on the man, while iddah is according to woman (their proof is a hadith by Abdullah bin Abbas RA)
our refutation is that a) the hadith is mawquf ( riwaya cannot be traced to RasulAllah) b) giving talaq is the right of the man, not the # of talaq. c) hadith by Ayesha RA about slave girl's talaq and iddah being 2.
What is the ruling regarding inheritance when a man with a terminal illness gives his wife a talaq baain?
Why was this specifically mentioned, i.e, what is the usual rulings regarding Talaq and inheritance?
If he dies during her iddah, she gets inhertance. If he dies after, she doesn't get.
Normally, if a man gave her talaq rajee and died (not from a terminal illness), she gets inheritance during her iddah.
If its a Talaq Baain and he dies (not from a terminal illness), there in no inheritance.
The mentioned scenario is different bc he knew he was going to die and might have been trying to stop her from getting inheritance
1. When does iddah end in relation to a period?
2. What if she forgot to wash a body part in ghusl? Did her iddah end?
3. what should a woman in iddah do?
4. what should man do?
5. is intercourse prohibited in iddah?
6. If talaq bain < 3 times occurred, can they remarry? when?
1. if haydh = 10 days -> iddah ends exactly at 10th day, no need for for ghusl
haydh < 10 days -> a) ghusl or b) one complete prayer time passes or c) tayammum + prays (According to shaykhayn; imam muhamamd says only tayammum is ok)
2. if more than a full limb -> iddah didnt end. if less than it ended
3. she should adorn herself
4. mustahab for him to ask for her permission and hear his footsteps
5. no
6. yes, during iddah or after it both are permissable.
What are the two types of Talaq?
Explain the ibarah on page 320 (last two lines). Why is is that when he intends 2, only 1 counts. But when he intends 3, all three count?
Sareeh (Explicit) divorce and Kinayah (have to look at intention and situation)
Thus if he intended 1 or 2 talaqs, only one counts. If he interes three, three count.
This is specific to the arabic language.
What is the Hanafi proof for the Talaq of an intoxicated person counting?
Hanafi vs Shafi' POV on forced divorces
Drunk people were addressed in the Quran showing that they are Mukhatab (have sound reasoning)
He is committing a sin & you shouldn’t let things slide → must bear the consequences b/c he chose to drink
A forced Talaq doesn’t count according to Shafi’s. Hanafis say it counts b/c technically he chose divorce b/w divorce & death. Also it relates to huquq al-ibaad not huquq of Allah.
A confession of divorce (under force) doesn’t count. Ex: “I have divorced her before” (is only a lie)
If a man divorces his wife (who he did not have dukhool with) three times, does three count? Mention the nuances.
(hint: difference b/w using waw and qabla, ba'da)
Also what does dukhool refer to here?
Dukhool means intercourse or khalwah
If he says I divorce you 3x (meaning he doesn't separate b/w them), all 3 take effect. BUT if he separates b/w them (I divorce you, I divorce you, I divorce), only the first one takes places. shes already baain (not in his marriage), thus the last 2 don't count.
Wahidatun wa wahidatun, Wahidatun ba'daha wahidatun, Wahidatun qabala** -> only one occurs
Wahidatun qablaha wahidatun, Wahidatun ba'da wahidatun, Wahidatun ma'a -> both will occur
1. in the arabic langauge this is like saying i give you the second divorce before the first one even takes place
2. one after another -> cosnecutive -> counts as 2
Explain what happens when he says to his wife "Choose yourself" (intending divorce) or "Divorce yourself".
What happens when he says "Divorce yourself whenever you want"
She can divorce herself as long as they remain in the majlis (same sitting).
If she chooses herself -> one talaq baain takes place, even if he intends 3. The word "nafs" must be mentioned in his or her statement
If she divorces herself -> one talaq raj'ee takes place. If she says it 3x and he intended thrice, then all three take place.
She can give herself a divorce in the same majlis or after.
1. whats halalah?
2. does an adolescent boy count for halalah?
3. what about sintercourse of the master with his slave-woman?
4. if they get married with the shart of halalah, will it count?
5. when she returns to her first husband, how many talaqs do they have left?
1. marry someone else (a sahih nikah), have intercourse with him, then divorce him or he dies.
2. yes
3. no
4. yes but its makruh.
5. all three
How many talaqs does Sareeh count as? What kind of Talaq does it result in?
How many talaqs does kinayah count as? What kind of Talaq does it result in?
(hint: think of the different words from the ibarah)
Sareeh:
Using clear wording
Counts only as one talaq, even if he intends more (unless he specifies more)
Talaq Raj’ee (always)
Kinayah:
Three words that give (1) talaq raj’ee
إعتدي → count [your waiting period]
إستبرئي رحِمك → seek to keep your womb free (don’t have sexual relations/ don’t be pregant); he could just be saying dont be pregant, thus not clear.
أنت واحدة → you are alone
All other ambiguous wording which he intends Talaq with
Count as (1) Talaq بائن
if he intends 1 or 2 → count as 1; b/c talaq بائن is already irrevocable’ they are already separated so no need for a second
Intends 3 → counts as 3 and are forever separated; counts because it becomes a talaq مغلظة (instead of بائن)
(( إختاري )) specifically tells her to choose; if she says “I choose myself” → she gives herself a Talaq بائن. If she says “I divorce myself” → she gives herself a Talaq رجعي
What happens if a man is married to a woman and conditions Talaq upon something?
What happens if an unmarried man conditions Talaq on nikah (mention the hanafi, shafi', and maliki opinion)
What happens if he conditions talaq on something other than nikah to a random woman?
when the condition is fulfilled, the talaq occurs
Hanafis → this goes through as 1 Talaq
Daleel: A man came to Umar ( رَضِيَ اللهُ عَنْهُ) and said: “Every woman that I marry will be divorced 3x” Umar ( رَضِيَ اللهُ عَنْهُ) said it will be as you said
Shafi’s → not correct b/c you aren’t in a marriage to begin with
“there is no talaq except for in that which you possess & no freeing except for that in which you possess”
Our response: this is correct, that’s why the divorce doesn’t occur until he marries her
Malikis → if he specified a woman/tribe it counts, if it’s general it doesn’t
Ibrahim (a tab’i) narrated from a Sahabah: as long as he specifies a woman or a woman from a certain tribe, it will go through”
Ex: telling a random woman, or even your fiance’ if you enter the house you will be divorced. It is baatil according to everyone
Mention the difference of opinion when he says "If you enter the house, then you are divorced once and once"
Imam Abu Hanifa -> counts as one only (following original logic)
Sahibayn -> wa in the arabic language can be for separation but it can also be jam' (gathering two things together), thus it counts as 2
What is the sunnah amount and time of Talaq?
Do either of them change based on whether you consummated with the woman or not?
Does the sunnah time differ for a pregnant, minor, or menopausal woman?
What is the sunnah way to divorce these women? (hint: diff of opinion here)
The sunnah amount is the same whether you consummated the marriage with her or not, and that is once per tuhr.
The sunnah time of the one he consummated with is:- in a tuhr period he didn’t have intercourse with her.
He shouldn’t give her talaq in haydh b/c it prolongs her iddah
The sunnah time of the one he didn’t consummated with is in the state of tuhr or hayd (doesn’t matter which one)
The wisdom behind this is that a woman he didn’t consummate with has no iddah. It also shows darurah of divorce (he doesn’t want to be with her if they has time to consummate and he didn't). There is also no possibility of pregnancy.
He doesn’t need to have a waiting time period b/w intercourse and Talaq for a minor & menopausal woman. This is b/c they can’t get pregnant. However, Ulema mention that it is still better to have a period of no intercourse so he can think it over.
The same applies for pregnant women. Since they are already pregnant, he can divorce them immediately after intercourse.
If he wants to do it the sunnah way, he would give three talaqs and wait one month between each (according to Shaykhayn). Imam Muhamamad says giving one Talaq is Sunnah.