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my solution for triple talaq problem

my solution to triple talaq (triple divorce) problem in islam that i have written at http://islam.stackexchange.com/a/32792 at july 26 – 27, and i edited it at july 27 – august 4, and i have added something at 2017-05-06, and have added something and deleted something at 2017-06-03 :

after reading quran, many years ago, firstly i thought that waiting term (time) of 3 periods (menstruations) should be waited before second talaq can {be said and be effective}. when i read quran after that, i felt some ambiguity. nearly 1-2 months ago i have read somewhere that even umar ibn al-khattab allowed “triple divorce” (3 divorces said and accounted as performed within short time like 1 minute), and that now it is allowed in india, and that in some countries scholars decided to make some term of waiting after saying of one talaq until second talaq can be said and they put some random standart for it like one month.

further i will write “iddah” instead of “waiting term of 3 periods”, and you can see in last paragraph and in quran 65:4 that iddah is not always 3 periods (not always 3 menstruations).

i have read quran again to find, where is problem. and i have found that indeed there is a problem, an ambiguous place in quran. and i have chosen one of interpretations, and i think you should also choose same interpretation when you read arguments for different interpretations.

let’s read quran’s translation from 2:226 and i write my comments. i copy here from http://quran.com/2/226 , default translation is “Sahih International”.

226: For those who swear not to have sexual relations with their wives is a waiting time of four months, but if they return [to normal relations] – then indeed, Allah is Forgiving and Merciful. 227: And if they decide on divorce – then indeed, Allah is Hearing and Knowing.

— 226-227 are about a long act, that, after it is done, i think, can be used to make divorce fastly, and, it is about what to do with such oath without term: after 4 month such oath without term is accounted as fullfilled.

228: Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise.

228: i see here is said: “husbands have more right to take them back”. but in some translations it is said other way:

228, muhammad asad translation: And the divorced women shall undergo, without remarrying, a waiting-period of three monthly courses: for it is not lawful for them to conceal what God may have created in their wombs, if they believe in God and the Last Day. And during this period their husbands are fully entitled to take them back, if they desire reconciliation; but, in accordance with justice, the rights of the wives [with regard to their husbands] are equal to the [husbands’] rights with regard to them, although men have precedence over them [in this respect]. And God is almighty, wise.

i read a translation like this, without “more” – kuliev’s translation into russian. i think adding “more” does not make much change, and i do not want to think much about it, since i have decided to write my solution. later in this text i have writen about that this “more” has some usage.

— and, i interpret this this way:

  • the 3 periods are obligatory to talaq to happen after it is said, except of case said in 226-227
  • in connection with 226-227, i think, they mean that if husband said that he never will have sex with his wife, and then 4 months without having sex passed, “talaq” can be said and it happens immediately after saying.but what happens if he does not say talaq? can they live as married couple without having sex? (then, if they have such right, and husband continues not having sex but wants to be married with his wife, but his wife wants to divorce, does she have to make khula divorce?) or they do not have such right?, i.e. 226-227 should be interpreted even as that in such case after 4 months they automatically become divorced, even without saying talaq, or, husband must either say talaq or to say that he cancels his oath to not have sex?
  • i have seen today in some texts that in case three divorces only between same woman and man are done, iddah is not needed, and that is why the triple talaq was so desired by people. but i think, that iddah is needed even {after the intention to divorce {after 2 divorces already performed within same spouses, without marriage of the woman to another men between and after them}}, and it is required for both of wife and husband, and it is required even if the husband has 4 wifes. idea of this is that before the iddah has passed, neither the husband nor the wife are not divorced yet. you should see later, why i have selected/chose such interpretation.
  • as you can see, since it is said that the “divorced women” should wait iddah, the “divorced women” means “women who was said talaq to”, not “women who was said talaq to and had fullfilled iddah”. the word “mutallaqat” is used here at “divorced”, of same root with “talaq”. the “mutallaqat” in this ayat enters into reaction with “talaq” in the next ayats 229-230, because they are of same root. but meaning of “talaq” in 229-230 is ambiguous.

229: Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah . But if you fear that they will not keep [within] the limits of Allah , then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah , so do not transgress them. And whoever transgresses the limits of Allah – it is those who are the wrongdoers.
230: And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah . These are the limits of Allah , which He makes clear to a people who know.

— here is ambiguity: what is “divorce” here? original word there is “talaq” in 229 and “tallaqaha” in 230. what is it? people may interpret it as saying “talaq”, or as saying “talaq” and waiting iddah fully (i also will name it “full divorce”). in 1st way of interpretation the immediate triple talaq is possible. i thought it is explained in quran, that it is not possible, but indeed such understanding is possible, i am going to show you, and, think, umar ibn al-khattab could not allow it, if it was impossible, etc (all that dispute and different decisions would not happen). the text “divorce is twice” enters into reaction with texts “divorced women” and “take them back” in the previous ayat 228. since the word “mutallaqat”, of same root with “talaq”, is used, for “divorced women”, in the previous ayat 228, seems people can understand that they are about same thing, and it means “to say talaq”, and not just people can understand it that way, but, since the ayat 228 is previous ayat, it is naturally used as definition of “talaq”, i.e. people feel that they should understand “talaq” in the same way as “mutallaqat” means in previous ayat.

and also note that “raddihinna” is used at “take back” in 228 and “imsaku” is used at “keep” in 229.

231: And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things.
232: And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not.

there is no “[nearly]” in some translations, and in kuliev’s translation. for example, pickthall’s translation:

231: When ye have divorced women, and they have reached their term, then retain them in kindness or release them in kindness. Retain them not to their hurt so that ye transgress (the limits). He who doeth that hath wronged his soul. Make not the revelations of Allah a laughing-stock (by your behaviour), but remember Allah’s grace upon you and that which He hath revealed unto you of the Scripture and of wisdom, whereby He doth exhort you. Observe your duty to Allah and know that Allah is Aware of all things.

and i see that there is no such meaning of “nearly” in the original. seems this meaning was added in some translations to support the “1st”, the wrong interpretation of the triple talaq issue, because in such way they make the text about taking back after iddah be understood as text about taking back before iddah, so then it looks like there is no special and different text about taking back after iddah, so the fact and argument of that different terms are used in different cases and that different term is used when it is said about counting of divorces can be left unseen. you can see other english translations in http://www.islamawakened.com/quran/2/231/default.htm .

— it is strongly said about saying “talaq” and waiting iddah fully here, and, word “tallaqtumu” is at “divorce”, and it means unambiguously “just saying talaq”. so, if we understood “talaq” and “tallaqaha” in 229-230 (ayats about counting “talaq”s) as “just saying talaq” (i think this is wrong interpretation), these ayats strengthens that interpretation, and if we understood “talaq” and “tallaqaha” in 229-230 as “saying talaq and waiting iddah fully” (i think this is correct interpretation), these ayats weakens that interpretation.

so, these, ayats 228, 231-232 are reason, why “talaq”, which is to be counted, which is in ayats 229-230, is understood as “just saying talaq”.

but there are also reasons to interpret “talaq” in 229-230, i.e. “talaq” that is to be counted, as “saying talaq and fullfilling iddah”:

  • saying three talaqs within a minute and counting them as three divorces is strange, stupid. with this theory (interpretation as just saying talaq in 229-230), it is possible to divorce and take back 2 times and divorce 3rd time even within a day, and even within a hour, and even within a minute (if it can be done just by saying “i take you back”, and that is probably ok). that does not sound good, there is no conrcete limit of shortness of time.
  • there are different terms (words) and text for “take back within iddah after saying talaq” and “take back after iddah has been fullfilled”, and the second type of taking back is mentioned in ayats about counting:
    • 228, this ayat is about taking back within iddah: “their husbands have more right to take them back” or “their husbands are fully entitled to take them back”. word for “taking back” is “raddihinna”.
    • 229, 231, 65:2 – these ayats about taking back after iddah: 229: “either keep [her] in an acceptable manner”, 231: “retain them according to acceptable terms” (“terms” here means “conditions”), “then retain them in kindness”. word for “taking back in acceptable manner” is “imsaku bimagrufi”, word for “retain them according to acceptable terms” is “amsikuhunna bimagrufi”.

    so, i interpret this this way: if husband takes his wife back within iddah, he can do that without problems and without barriers, and if husband wants to take back the woman after iddah, he should do that “bimagrufi” – “in kindness”. in kuliev translation it is translated as “in reasonable conditions”. similar translation is also in some english translations: as you see, in sahih international, and for example in muhammad asad’s: 229: “resumed in fairness”, 231: “retain them in a fair manner”, yusuf ali’s: 229: “hold together on equitable terms”, 231: “take them back on equitable terms” – see more at http://www.islamawakened.com/quran/2/229/default.htm .

    see about more indications of difference of taking before and after iddah and their meaning below.

    as the term (word) “imsaku bimagrufi” is used both in 229 and 231, and also in 65:2, these ayats about same type of taking back. and 231 and 65:2 are unambiguously about taking back after iddah. so, 229 is also about taking back after iddah. so, only “full divorces” are counted in 229-230.

  • at ayat 227, as i said, i think, the word “talaq” means both “just saying talaq” and “full divorce”, because 4 months of waiting already passed, so, in 229-230 that could be used as definition and “full divorce” also could be possible meaning of “talaq”.
  • there are hadithes that clear that 3 “talaqs” in short time is 1 “talaq”, but they do not clear up whether it should be counted in case wife is taken back within iddah (for example after 1 month) and whether the iddah is required for husband after 3rd divorce without his wife’s marriage to other man after previous 2 divorces: there are many hadithes, i show 2 of 2 types of them as i have seen:
    • Sunan an-Nasa’i – The Book of Divorce – Chapter: Three Simultaneous Divorces And A Stern Warning Against That : http://sunnah.com/nasai/27/13 :

      Makhramah narrated that his father said: “I heard Mahmud bin Labid say: ‘The Messenger of Allah was told about a man who had divorced his wife with three simultaneous divorces. He stood up angrily and said: Is the Book of Allah being toyed with while I am still among you? Then a man stood up and said: ‘O Messenger of Allah, shall I kill him?'”

    • Sahih Muslim – The Book of Divorce – Chapter: Threefold Divorce – 2nd hadith : http://sunnah.com/muslim/18/23 :

      Abu Sahba’ said to Ibn ‘Abbas (Allah be pleased with them): Do you know that three (divorces) were treated as one during the lifetime of Allah’s Apostle (ﷺ), and that of Abu Bakr, and during three (years) of the caliphate of Umar (Allah be pleased with him)? Ibn Abbas (Allah be pleased with them) said: Yes.

  • interpretation as just saying talaq in 229-230 contradicts 2:228 where it is said “Divorced women remain in waiting for three periods”, with this theory she may lose that right.
  • quran 65:2 says about requrement of witnesses after 3 months so it regards only divorce with iddah passed and witnesses witnessed after iddah is passed as divorce, so counting of just saying of “talaq” in 2:229-230 for such serious restriction looks strange. and the 65:2 also denies the method of using human-selected time like 1 month to divorce can be counted.
  • this one is not a reason, but to strengthen arguments. the fact that the root t-l-q has different meanings – with or without iddah etc is ok, because usually words have different meanings and in this case it is also ok because since talaq is said with true intention it is going to be done fully.

difference of taking [ex-]wife back before and after iddah and their meaning:

as “bimagrufi” is translated as “on equitable terms” in some translations, i think it is about that the husband cannot take the woman back after iddah, but it is remarrying: new conditions of marriage can be put by the woman, and she can refuse. also the word “more” in translation at “And their husbands have more right to take them back in this [period] if they want reconciliation” in 228, and, so, maybe, there is such meaning in original, and lack of that word in 229 and 231 shows that the husband lacks the primary right to remarry the woman after iddah has passed. also, even without “more” in 228, ayats 229, 230, 65:2 lack the phrase “their husbands have right to take them back in this” (“ahaqqu” in arabic is of root “hqq” – to justify, to prove true, truth, right – http://corpus.quran.com/qurandictionary.jsp?q=Hqq ), that indicates that husbands have not absolute right to take them back after iddah [is fullfilled].

witnesses

and, see quran 65:2 ( http://quran.com/65 ) :

And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah . That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah – He will make for him a way out

it means that witnesses are required to witness that iddah is passed, and so divorce is “full”, ie, accomplished. and probably it means that witnesses are also needed to witness if taking wife back happens after iddah is passed; it is directly written just about taking back immediately after iddah has passed, but, if it is also about taking back, naturally it also means that taking back after longer time (for example, after several weeks) also requires witnesses. requirement of witnesses for fact of iddah is passed, and that maybe they are required also for taking back after that, also proofs that taking back after iddah is passed is like remarrying.

function of iddah

what is logic of iddah after saying talaq – as you see, it is not just to know out, whether the wife has baby, but it is also because the husband may change his mind, because he may lose his wife after iddah, and allah has ordered that waiting term (iddah), this is why i think that waiting the iddah after saying talaq is required even for husband at 3rd divorce and he already has 4 wifes. (alternative logic is that if a man has 4 wifes and divorces one of them [with intention] to marry another woman, in case it is the “3rd divorce” with her, since he cannot take the wife back, he need not wait the iddah, and so he can quickly marry another woman). (is there other function of 3 periods?)

iddah is not always 3 periods:

see quran 65:4 :

And those who no longer expect menstruation among your women – if you doubt, then their period is three months, and [also for] those who have not menstruated. And for those who are pregnant, their term is until they give birth. And whoever fears Allah – He will make for him of his matter ease.

iddah can be more than 3 months – up to nearly 9 months, and, can be less than 3 months, if abortion happens before 3 months, abortion is counted because it is literally written “deliver their burdens” in quran.