Divorce by Hijr Miskeena Rauda El-Miskeen

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2073

The Divorcer (al-Mutalliq)
A divorcer should possess the following characteristics:

  1. Adulthood: Divorce by a child is not valid, even if of a discerning age (mumayyiz), according to all the schools except the Hanbali, which observes: Divorce by a discerning child is valid even if his age is below ten years.
  2. Sanity: Divorce by an insane person is not valid, irrespective of the insanity being permanent or recurring, when the divorce is pronounced during the state of insanity. Divorce by an unconscious person and one in a state of delirium due to high fever is also not valid. The schools differ regarding the state of intoxication. The Imamiyah observe: Such a divorce is not valid under any circumstance. The other four schools remark: The divorce is valid if the divorcer has voluntarily consumed an unlawful intoxicant. But if he drinks something permissible and is stupefied, or is coerced to drink, the divorce does not materialize.

Divorce by a person in a fit of anger is valid if the intention to divorce exists. But if he loses his senses completely, the rule which applies to an insane person will apply to him.

  1. Free volition: All the schools except the Hanafi concur that divorce by a person under duress does not take place in view of the tradition: رُفع عن أُمتي الخطأ والنسيان وما استكرهوا عليه

My ummah have been exculpated of genuine mistakes, forgetfulness, and that which they are coerced to do.
The Hanafis say: Divorce by a person under duress is valid.
The practice of the Egyptian courts has been not to recognize the divorce by a person under duress or intoxication.

  1. Intention: According to the Imamiyyah, divorce pronounced unintentionally or by mistake or in jest is not valid.

Abu Zuhrah says (page 283): The Hanafi School considers divorce by all persons except minors, lunatics and idiots as valid. Thus divorce pronounced by a person in jest or under intoxication by an unlawful intoxicant, or under duress, is valid. On page 286 he writes: It is the accepted view of the Hanafi School that a divorce by mistake or in a state of forgetfulness is valid. On page 284 he observes: Malik and al-Shafi’i concur with Abu Hanifah and his followers regarding a divorce pronounced in jest, while Ahmad differs and regards such a divorce as invalid.
Ibn Rushd states (Bidayat al-mujtahid, vol. 2, p. 74): Al-Shafi’i and Abu Hanifah have said, “Intention (niyyah) is not required in divorce”.
The Imamiyyah have narrated from the Imams of the Ahl al-Bayt (A): لا طلاق إلاّ لمن أراد الطلاق ، لا طلاق إلاّ بنية
No divorce (takes effect) except by one who intends divorce. Divorce does not take place except by intention.
The author of al-Jawahir says: If one pronounces divorce and subsequently denies intention, his word shall be accepted as long as the divorcee is undergoing her ‘iddah, because the fact of his intention cannot be known except from him.
Divorce by the Guardian (Talaq al-Wali)
The Imamiyyah, the Hanafi and the Shafi’i Schools state: A father may not divorce on behalf of his minor son, because of the tradition: الطلاق لمن أخذ بالساق
The Malikis state: A father may divorce his minor son’s wife in the khul’ form of divorce. Two opinions are ascribed to Ahmad.
The Imamiyyah observe: When a child of an unsound mind matures, his father or paternal grandfather may pronounce divorce on his behalf if it is beneficial for him. If the father and the paternal grandfather do not exist, the judge may pronounce the divorce on his behalf. As mentioned earlier, the Imamiyyah allow the wife of a lunatic to annul the marriage.
The Hanafis state: If a lunatic’s wife suffers harm by living with him, she may raise the issue before a judge and demand separation. The judge is empowered to pronounce divorce to rescue her from the harm and the husband’s father has no say in this affair.
All the schools concur that divorce by a stupid husband (safih) and his agreeing to khul’ are both valid.
The Divorcee (al-Mutallaqah)
There is consensus that the divorcee is the wife. For the validity of the divorce of a wife with whom intercourse has occurred, the Imamiyyah require that she should not have undergone menopause nor she should be pregnant, that she be free from menses at the time of divorce, and that intercourse should not have occurred during the period of purity. Thus, if she is divorced during her menses or nifas, or in a period of purity in which she has been copulated with, the divorce will be invalid.
Al-Razi in his exegesis of the first verse of Surat al-Talaq:
يَاأَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمْ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ
has said, “By ‘iddah it is meant the period of purity from menses, by consensus of all Muslims. A group of exegetes has observed that by divorce at the time of ‘iddah is meant that the wife may be divorced only during the period of purity in which intercourse has not occurred. In brief, it is compulsory that divorce occur during the period of purity, otherwise it will not be according to the Sunnah, and divorce according to the Sunnah is conceivable only in the case of an adult wife with whom marriage has been consummated, and one who is neither pregnant nor menopausal.”
For there is no sunnah concerning the divorce of a minor wife, a wife who has not been copulated with, or a wife in menopause or pregnancy. This is exactly what the Imamiyyah hold.
In al-Mughni (vol.7, p.98, 3rd.ed.) the author states: “The meaning of a sunnah divorce (talaq al-sunnah) is a divorce in consonance with the command of God and His Prophet (S); it is divorce given during a period of purity in which intercourse with her has not occurred.” He continues (p. 99): “A divorce contrary to the sunnah (talaq al-bid’ah) is a divorce given during menses or during a period of purity in which she has been copulated with. But if a person pronounces such a divorce, he sins, though the divorce is valid according to the view generally held by the scholars. Ibn al-Mundhir and lbn ‘Abd al-Birr have said: None oppose the validity of this form of divorce except the heretics (ahl al-bida’ wa al-dalalah)”! If to follow the command of Allah and the Sunnah of His prophet (S) is heresy and misguidance, then it is of course proper that following Satan be called ‘sunnah‘ and ‘guidance’.
Whatever the case, the Sunnis and the Shi’ah concur that Islam has prohibited the divorcing of an adult, non-pregnant wife with whom marriage has been consummated, who is either undergoing periods or has been copulated with during her period of purity. But the Sunni schools add that the Shari’ah’s prohibition makes the divorce haram (unlawful) but not invalid, and one who pronounces divorce in the absence of these conditions sins and is liable to punishment, but the divorce will be valid. The Shi’ah state: The Shari’ah’s prohibition is for invalidating such a divorce, not for making it haram, for the mere pronouncing of divorce is not haram and the sole purpose is to nullify the divorce as if it had not taken place at all, exactly like the prohibition of sale of liquor and swine, where the mere recital of the contract of sale is not haram, only the transfer of ownership fails to take effect.
The Imamiyyah permit the divorce of the following five classes of wives, regardless of their state of menstruation or purity:

  1. A minor wife under the age of nine.
  2. A wife whose marriage has not been consummated, regardless of whether she was a virgin or not, and irrespective of his having enjoyed privacy with her.
  3. A menopausal wife; menopause is taken to set in at fifty for ordinary women and at sixty for Qurayshi women.
  4. A wife who is pregnant.
  5. A wife whose husband has been away from her for a whole month and the divorce is given during his absence from her, since it is not possible for him to determine her condition (whether she is in her menses or not). A prisoner husband is similar to a husband who has been away.

The Imamiyyah state: The divorce of a wife who has reached the age of menstruation but does not have menses due to some defect or disease or childbirth, is not valid unless the husband abstains from intercourse with her for three months. Such a woman is called al-mustarabah (a term derived from rayb, doubt).
The Pronouncement of Divorce (al-Sighah)

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