“Cursed be the second husband who makes the wife (divorced) lawful for her first husband, and cursed be the first husband for whom she is made lawful.”—(Mishkāt, xiii. c. xv.)
III. Sunnī Muḥammadan Doctors are not agreed as to the Moral Status of Divorce.
The Imām ash-Shāfiʿī, referring to the three kinds of divorce (which will be afterwards explained), says: “They are unexceptionable and legal because divorce is in itself a lawful act, whence it is that certain laws have been instituted respecting it; and this legality prevents any idea of danger being annexed to it.” But, on the other hand, the Imām Abū Ḥanīfah and his disciples say that divorce is in itself a dangerous and disapproved procedure, as it dissolves marriage, an institution which involves many circumstances both of a spiritual as well as of a temporal nature. Nor is its propriety at all admitted, but on the ground of urgency of release from an unsuitable wife. And in reply to ash-Shāfiʿī, they say that the legality of divorce does not prevent its being considered dangerous, because it involves matters of both a spiritual and temporal character.
The author of the Sharḥu ʾl-Wiqāyah, p. 108, says:—“Divorce is an abominable transaction in the sight of God, therefore such an act should only take place from necessity, and it is best to only make the one sentence of divorce” (i.e. t̤alāqu ʾl-aḥsan).
IV. The Sunnī Law of Divorce:—Divorce may be given either in the present time or may be referred to some future period. It may be pronounced by the husband either before or after the consummation of the marriage. It may be either given in writing or verbally.
The words by which divorce can be given are of two kinds:—Ṣarīḥ, or “express,” as when the husband says, “Thou art divorced”; and kināyah, or “metaphorical,” as when he says, “Thou art free; thou art cut off; veil yourself! Arise! seek for a mate,” &c. &c.
Divorce is divided into t̤alāqu ʾs-sunnah, or that which is according to the Qurʾān and the Traditions, and t̤alāqu ʾl-badiʿ, or a novel or heterodox divorce, which, although it is considered lawful, is not considered religious.
T̤alāqu ʾs-sunnah is either the aḥsan, or “the most laudable,” or ḥasan, the “laudable” method. T̤alāqu ʾl-aḥsan, or the “most laudable” method of divorce, is when the husband once expressly pronounces to his enjoyed but un-pregnant wife the sentence, “Thou art divorced!” when she is in t̤uhr or a state of purity, during which he has had no carnal connection with her, and then leaves her to complete the prescribed ʿiddah, or “period of three months.” Until the expiration of the ʿiddah, the divorce is revocable, but after the period is complete, it is irreversible, and if the husband wishes to take his wife back, they must go through the ceremony of marriage. But it must be observed that after the t̤alāqu ʾl-aḥsan, the woman is not, as in the other kinds of divorce, compelled to marry another man, and be divorced before she can return to her former husband. All that is required is a re-marriage. The author of the Hidāyah says this mode of divorce is called aḥsan, or “most laudable,” because it was usually adopted by the Companions of the Prophet, and also because it leaves it in the power of the husband to take his wife back, and she thus remains a lawful subject for re-marriage to him. Some European writers on Muḥammadanism have overlooked this fact in condemning the Muslim system of divorce.
The t̤alāqu ʾl-ḥasan, or “laudable divorce,” is when the husband repudiates an enjoyed wife by three sentences of divorce, either express or metaphorical, giving one sentence in each t̤uhr, or “period of purity.” Imām Mālik condemns this kind of divorce, and says it is irregular. But Abū Ḥanīfah holds it to be ḥasan, or “good.”
The t̤alāqu ʾl-badiʿ, or “irregular form of divorce,” is when the husband repudiates his wife by three sentences, either express or metaphorical, given them one at a time: “Thou art divorced! Thou art divorced! Thou art divorced!” Or, “Thou art free! Thou art free! Thou art free!” Even holding up three fingers, or dropping three stones, is held to be a sufficiently implied divorce to take legal effect. The Muslim who thus divorces his wife is held, in the Hidāyah, to be an offender against the law, but the divorce, however irregular, takes legal effect.