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Friday, November 2, 2012

Divorce


Divorce

Narrated Abu Huraira: Allah’s Apostle (peace be upon him) said, “No woman should ask for the divorce of her sister (Muslim) so as to take her place, but she should marry the man (without compelling him to divorce his other wife), for she will have nothing but what Allah has written for her.”
Sahih Al-Bukhari – Book 77 Hadith 598

Narrated Aisha: Rifa’a Al-Qurazi divorced his wife irrevocably (i.e. that divorce was the final). Later on ‘Abdur-Rahman bin Az-Zubair married her after him. She came to The Prophet (peace be upon him) and said, “O Allah’s Apostle! I was Rifa’a's wife and he divorced me thrice, and then I was married to ‘Abdur-Rahman bin Az-Zubair, who, by Allah has nothing with him except something like this fringe, O Allah’s Apostle,” showing a fringe she had taken from her covering sheet. Abu Bakr was sitting with The Prophet (peace be upon him) while Khalid Ibn Said bin Al-As was sitting at the gate of the room waiting for admission. Khalid started calling Abu Bakr, “O Abu Bakr! Why don’t you reprove this lady from what she is openly saying before Allah’s Apostle?” Allah’s Apostle did nothing except smiling, and then said (to the lady), “Perhaps you want to go back to Rifa’a? No, (it is not possible), unless and until you enjoy the sexual relation with him (‘AbdurRahman), and he enjoys the sexual relation with you.”
Sahih Al-Bukhari – Book 73 Hadith 107

Narrated ‘Aisha: A man divorced his wife thrice (by expressing his decision to divorce her thrice), then she married another man who also divorced her. The Prophet (peace be upon him) was asked if she could legally marry the first husband (or not). The Prophet (peace be upon him) replied, “No, she cannot marry the first husband unless the second husband consummates his marriage with her, just as the first husband had done.”
Sahih Al-Bukhari – Book 63 Hadith 187

Narrated Ibn Umar: (Divorcing my wife during her menses) was counted as one legal divorce.
Sahih Al-Bukhari – Book 63 Hadith 180

Narrated Abdullah ibn Abbas: Tawus said: AbusSahba’ said to Ibn Abbas: Do you know that a divorce by three pronouncements was made a single one during the time of the Prophet (peace be upon him), and of AbuBakr and in the early days of the caliphate of Umar? He replied: Yes.
Sunan of Abu-Dawood – Book 12 Hadith 2194

Narrated Thawban: The Prophet (peace be upon him) said: If any woman asks her husband for divorce without some strong reason, the odour of Paradise will be forbidden to her.
Sunan of Abu-Dawood – Book 12 Hadith 2193

The Irrevocable Divorce
Yahya related to me from Malik that he heard IbnShihab say that if a man said to his wife, “You are free of me, and I am free of you, ” it counted as three pronouncements of divorce as if it were an ‘irrevocable’ divorce. Malik said that if a man made any strong statement such as these to his wife, it counted as three pronouncements of divorce for a woman whose marriage had been consummated, or it was written as one of three for a woman whose marriage had not been consummated, whichever the man wished. If he said he intended only one divorce he swore to it and he became one of the suitors because, whereas a woman whose marriage had been consummated was made inaccessible by three pronouncements of divorce, the woman whose marriage had not been consummated was made inaccessible by only one pronouncement.
Malik said, “That is the best of what I have heard.”
Al-Muwatta – Hadith 29.1.9

Annulment of Marriage by Husband’s Vow to Refrain from Intercourse (Ila)
Yahya related to me from Malik that he had heard that Marwan ibn al-Hakam decided about a man who had made a vow to abstain from intercourse with his wife, that when four months had passed, it was a divorce and he could return to her as long as she was in her idda.
Malik added, “That was also the opinion of IbnShihab.”
Malik said that if a man made a vow to abstain from intercourse with his wife and at the end of four months he declared his intent to continue to abstain, he was divorced. He could go back to his wife, but if he did not have intercourse with her before the end of her idda, he had no access to her and he could not go back to her unless he had an excuse – illness, imprisonment, or a similar excuse. His return to her maintained her as his wife. If her idda passed and then he married her after that and did not have intercourse with her until four months had passed and he declared his intent to continue to abstain, divorce was applied to him by the first vow. If four months passed, and he had not returned to her, he had no idda against her nor access because he had married her and then divorced her before touching her.
Malik said that a man who made a vow to abstain from intercourse with his wife and continued to abstain after four months and so divorced her, but then returned and did not touch her and four months were completed before her idda was completed, did not have to declare his intent and divorce did not befall him. If he had intercourse with her before the end of her idda, he was entitled to her. If her idda passed before he had intercourse with her, he had no access to her. This is what Malik preferred of what he had heard on the subject.
Malik said that if a man made a vow to abstain from intercourse with his wife and then divorced her, and the four months of the vow were completed before completion of the idda of the divorce, it counted as two pronouncements of divorce. If he declared his intention to continue to abstain and the idea of the divorce finished before the four months the vow of abstention was not a divorce. That was because the four months had passed and she was not his on that day.
Malik said, “If someone makes a vow not to have intercourse with his wife for a day or a month and then waits until more than four months have passed, it is not ila. Ila only applies to someone who vows more than four months. As for the one who vows not to have intercourse with his wife for four months or less than that, I do not think that it is ila because when the term enters into it at which it stops, he comes out of his oath and he does not have to declare his intention.”
Malik said, “If someone vows to his wife not to have intercourse with her until her child has been weaned, that is not ila. I have heard that Ali ibnAbiTalib was asked about that and he did not think that it was ila.”
Al-Muwatta – Hadith 29.5.19

What is Not Clear in Giving Wives Right of Divorce
Yahya related to me from Malik that he had heard that Abdullah ibn Umar and Abu Hurayra were asked about a man who gave his wife power over herself, and she returned it to him without doing anything with it. They said that there was no divorce. (i.e. The man’s giving his wife power over herself was not interpreted as a desire for divorce on his part.)
Yahya related to me from Malik from Yahyaibn Said that Said ibn al-Musayyab said, “If a man gives his wife authority over herself, and she does not separate from him and remains with him, there is no divorce.”
Malik said that a woman whose husband gave her power over herself and they separated while she was unwilling, had no power to revoke the divorce. She only had power over herself as long as they remained together.
Al-Muwatta – Hadith 29.4.16

Narrated Anas bin Sirin: Ibn ‘Umar said: “I divorced my wife while she was menstruating.” ‘Umar mentioned that to the Prophet. The Prophet (peace be upon him) said, (to my father), “Let your son take her back.” I asked (Ibn ‘Umar), “Is such a divorce counted (i.e. as one legal divorce)?” Ibn ‘Umar said, “Of course.” Narrated Yunus bin Jubair: Ibn ‘Umar said, “The Prophet (peace be upon him) said to ‘Umar, ‘Order him (Ibn ‘Umar) to take her back.’ ” I asked, “Is such a divorce counted (as one legal divorce)?” Ibn ‘Umar said, “What do you think if someone becomes helpless and foolish?”
Sahih Al-Bukhari – Book 63 Hadith 179

Narrated Nafi: Ibn ‘Umar used to say about the Ila (which Allah defined (in the Holy Book), “If the period of Ila expires, then the husband has either to retain his wife in a handsome manner or to divorce her as Allah has ordered.” Ibn ‘Umar added, “When the period of four months has expired, the husband should be put in prison so that he should divorce his wife, but the divorce does not occur unless the husband himself declares it. This has been mentioned by ‘Uthman, ‘Ali, Abu Ad-Darda, ‘Aisha and twelve other companions of the Prophet (peace be upon him) .”
Sahih Al-Bukhari – Book 63 Hadith 213

Narrated Aisha: Regarding the explanation of the following verse: “If a wife fears Cruelty or desertion On her husband’s part.” (4.128) A man may dislike his wife and intend to divorce her, so she says to him, “I give up my rights, so do not divorce me.” The above verse was revealed concerning such a case.
Sahih Al-Bukhari – Book 43 Hadith 630

Narrated Abu Hurayrah: The Prophet (peace be upon him) 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)
Sunan of Abu-Dawood – Book 12 Hadith 2189


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