I am deeply concerned with the advice given to fellow Muslims about talaaq. A lot of questions state that the husband said talaaq thrice in anger and the answer given was is that the marriage is over. Talaaq is a very sensitive issue and a simple yes or no answer is not enough. Many scholars have different opinions about this and this should be mentioned to all the people who ask talaaq questions and all the Ahadith and Aayaat should be mentioned, not just a few that support the student/ mufti’s opinion.
I have researched enough to find out that Allah does not take thoughtless oaths seriously and talaaq is also considered an oath. Also, everyone gets angry, and when this happens, words and reasoning can’t be taken seriously as anger makes people insane to extreme levels. So talaaq given in anger is a thoughtless and insane oath. Also, many scholars mentioned a Hadith from Hazrat Abu Bakr radhiallahu anhu stating that talaaq given thrice at any one time is counted as one talaaq.
My personal opinion is that if a person is not sane, then how can the talaaq from such a person in that state be taken seriously! I feel it is common sense. Allah hates divorce and it cannot be that easy to get done. Majority of people say things in anger and if everyone took these words seriously, we would not have families or a society etc.
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
We have analyzed your email and understand that you are expressing your opinions rather than asking a query. While your concern for the Ummah and sincerity is appreciated, the fact of matter is that concern for the Ummah must be addressed through the channels of Shariah; Quran, Ahādīth, Ijmā’ and Qiyās.
Qiyās is the science of analogy which has its defined rules in Shariah. It is only when the rules are correctly applied that the outcome will be valid. Not all analogies are valid and accepted. Before we destruct your analogy of talāq on oaths and anger on insanity, we hereby present a brief to you about the rules of analogy in Shariah.
An analogy (qiyās) is conducted to search for a ruling about an issue which is not expressly mentioned in the Quran or Ahādīth.[1] Qiyās (analogical deduction) linguistically means to evaluate and examine one thing based on another.[2] [3] In the terminology of Usūl ul fiqh, it is applying the ruling of an Asl to a Fara’; the Asl refers to a known ruling and the Fara’ refers to an unknown ruling. [4] [5]
In the science of analogy, the illah (effective cause) of the Asl is derived and the Fara’ is analyzed to see if it fits all the characteristics of the Asl in order to determine whether the ruling of the Asl can be extended to the Fara’ or not. There are many laws that govern the science of Qiyās.
There are four components of Qiyās:
1. Asl: This is an issue proven from the Quran, Ahādīth or Ijmaa (consensus)
2. Fara’: This is a new issue not found in the Quran, Ahādīth or Ijmaa
3. Illah: The cause of the ruling of the Asl.
4. Hukm: The ruling given for the Fara’ based on the Asl after conducting the Qiyās.
There are 5 conditions for a Qiyās to be valid.
1. The Qiyās cannot oppose a nas (express decree) :
Example: Can a woman travel with a group of women based on the analogy that she can travel with a mahram? Just as she is safe with a mahram, she is also safe with other women. This analogy is invalid as the prohibition of a woman travelling without a mahram is expressly stated in the Hadīth. [6]One therefore cannot apply any analogy on a woman travelling without a mahram.
2. The Qiyās should not change the ruling of anything proven from the nas:
Example: There are four body parts that must be washed during wudhu; the arms, face, head and feet. This is based on the verse of the Holy Quran.[7] Therefore, to analogize wudhu on tayammum and say that niyyah is also compulsory in wudhu as it is in tayammum is incorrect. This is because adding the compulsion of niyyah to wudhu will be adding on the nas[8]which is impermissible.
3. The Asl should not be contrary to Qiyās (Amre ta’abbudi/ khilāfe qiyās):
Example: If a person laughs aloud in salah, both his salah and wudhu will break and he will have to perform wudhu and salah again. We can understand the salah breaking, but why does the wudhu break? This is ‘contrary to Qiyās’- we cannot understand the reasoning behind it; but we accept it as this is the ruling mentioned in the nas.[9]Now, if someone backbites or sings in salah, can we analogize these issues on laughing in salah and conclude that backbiting and singing breaks one’s wudhu aswell? This analogy is incorrect as the ruling of wudhu breaking due to laughing is illogical. This cannot serve as an Asl for the other issues.
4. The illah in the Qiyās should be based on a Sharī ruling, not a linguistic matter:
Example: The linguistic meaning of ‘Hajj’ is to travel. To say that it is compulsory for a person to do ‘Hajj’ (go to a certain place other than Makkah…) if he has enough money and the means to go is incorrect. It is incorrect because in the light of Shariah, only the journey to Makkah in the months of Hajj with the intention of performing Hajj is called ‘Hajj’. All other journeys do not fall under Shariah’s definition of Hajj.
5. The ruling of the Fara’ should not be mentioned in the nusūs[10]:
Example: Allah Ta῾ālā instructs the believers in the Holy Quran not to come close to salāh after they have drunk alcohol. For a person to use this verse to say that it is permissible to drink alcohol before salah will be incorrect because Allah has prohibited alcohol as whole in another place in the Holy Quran.
Please note that the above five conditions are general conditions. Each of the components (Asl, Fara’, Hukm and Illah) all have certain requirements and conditions that must be fulfilled.
Below is an illustration to demonstrate the correct use of Qiyās:
_______________________________________________________________________________
Example of Qiyās
Hypothetical question posed: What is the ruling for taking cocaine?
After searching through the nusūs (Qurān and Ahādīth), we realise that there is no explicit ruling regarding cocaine. We now need to deduce the ruling of cocaine in Shariah. We analyze some of the characteristics of cocaine to determine the closest example of it in Shariah.
Further research into the issue shows us that one of the characteristics of cocaine is that it intoxicates. This characteristic is also found in wine which is proven to be impermissible from the nusūs[11]. So… The jurists take the ruling of wine (impermissibility) and apply it to cocaine.[12]
_______________________________________________________________________________
The above is just a basic example of qiyās. You have unfortunately analogized talaaq with a thoughtless oath and given talaaq the same ruling as a thoughtless oath. This analogy is incorrect as the analogy violates the first condition of Qiyās; there are nusūs about talaaq[13] [14] [15] therefore Qiyās cannot be conducted.[16]
Rasulullah sallallahu alaihi wasallam is reported to have said:
عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ قَالَ: ثَلَاثٌ جَدُّهُنَّ جَدٌّ، وَهَزْلُهُنَّ جَدٌّ: النِّكَاحُ، وَالطَّلَاقُ، وَالرَّجْعَة [17]
Translation: Rasulullah sallallahu alaihi wasallam said: “There are three things which, whether undertaken seriously or in jest, are treated as serious: Marriage, divorce and taking back a wife.”
We do not understand how you came to the conclusion that talaaq is a thoughtless oath; because it is not even an oath to start off with; it is a statement. Nevertheless, we assume that you are referring to yameene laghw ‘thoughtless oath’. There are numerous concerns and problems that emerge from this analogy.
If talaaq was given the same ruling as a thoughtless oath and regarded as invalid, then we would face the same problem that the women faced in the time of Jahiliyyah. A husband could have the power issue a divorce whenever he wants to and could then revoke it saying that he didn’t mean it.
عَنْ عَائِشَةَ قَالَتْ: كَانَ النَّاسُ وَالرَّجُلُ يُطَلِّقُ امْرَأَتَهُ مَا شَاءَ أَنْ يُطَلِّقَهَا، وَهِيَ امْرَأَتُهُ إِذَا ارْتَجَعَهَا وَهِيَ فِي العِدَّةِ، وَإِنْ طَلَّقَهَا مِائَةَ مَرَّةٍ أَوْ أَكْثَرَ، حَتَّى قَالَ رَجُلٌ لِامْرَأَتِهِ: وَاللَّهِ لَا أُطَلِّقُكِ فَتَبِينِي مِنِّي، وَلَا آوِيكِ أَبَدًا، قَالَتْ: وَكَيْفَ ذَاكَ؟ قَالَ: أُطَلِّقُكِ، فَكُلَّمَا هَمَّتْ عِدَّتُكِ أَنْ تَنْقَضِيَ رَاجَعْتُكِ، فَذَهَبَتِ المَرْأَةُ حَتَّى دَخَلَتْ عَلَى عَائِشَةَ فَأَخْبَرَتْهَا، فَسَكَتَتْ عَائِشَةُ، حَتَّى جَاءَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَأَخْبَرَتْهُ، فَسَكَتَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ، حَتَّى نَزَلَ القُرْآنُ: الطَّلَاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ[18]
Translation: Hazrat Aisha radhiallahu anha narrates that a person would give his wife however many talāq’s he wished and she would still be considered his wife if he took her back into his marriage even if he divorced her a hundred times or more. Until the extent that one man told his wife “I swear that I will put you in such a situation wherein you won’t separate from me and I won’t approach you ever.” She inquired “How do you intend to do that?” He said “I will divorce you. Then whenever your iddah (waiting period) is close to finishing, I will take you back into my marriage and I will constantly keep on doing this.
So this woman went to Hazrat Aisha radhiallahu anha and explained the situation to her. Hazrat Aisha remained silent until Nabi sallallahu alaihi wasallam arrived and she informed him. Nabi sallallahu alaihi wasallam also remained silent and did not say anything. Then Allah revealed the verse of the Holy Qurān “Talāq is twice (after which one can take his wife back into his marriage). Then either keep your wife in a good manner or release her amicably.”
This was a practice from the time of the days of Jāhiliyyah (ignorance) as stated in Tafsīr al Tabarī .[19] What this effectively means is that a husband could have control over his wife for as long as he wants.
He could just divorce her when he felt like it and stop her from marrying anyone else by taking her back into his marriage. He would make her life miserable because he would not have marital relations with her and he would not let her go. She would remain in this ‘hanging’ state as long as he wanted.
When the Prophet Sallallahu alaihi wasallam was asked about it, the above mentioned verse was revealed ordaining that a man has a maximum of two chances. If he gives her a third talāq, he cannot take her back. This is for the ease and consideration of the wife as much as it is for the man. On the other side, regard the talaaq to be valid and observe the restraint and cautiousness in men when uttering talaaq. This inadvertently gives respect and protection to women.
If talaaq is regarded as a thoughtless oath, a husband will keep on issuing divorces and he will not be sanctioned with the loss of his wife. On the other hand, the wife will be forced to live a life of suspense; she will be a wife in theory but in reality she is neither here nor there. This is the absurd conclusion that would emerge if we accepted your erroneous analogy of talaaq on a thoughtless oath.
Another problem with giving talaaq the same ruling as a thoughtless oath is that a thoughtless oath has nothing to do with another person. It is limited to oneself; whereas the laws and rulings of talaaq are extended to another person; a man’s wife.
An additional aspect that you have overlooked is that a ‘thoughtless’ oath is only one type of oath. There are two other oaths that a person WILL be held responsible for; yameene ghamoos and yameene mun’aqidah. However, this is not the time to delve into this because the analogy of talaaq on a thoughtless oath is flawed and erroneous from the beginning.
You have also made Qiyās of anger on insanity. From the principle, theoretical and academic angle, your analogy of anger on insanity is incorrect. This is because the fundamental requisite for extending a ruling from the Asl to the Fara’ is that the Asl and Fara’ must share a common cause (illah muttahidah); which is non-existent in this scenario rendering the Qiyās incorrect from the outset. Furthermore, there are a number of inconsistencies with this analogy. Being in the state of anger doesn’t justify an act. For example, if a person shoots and kills someone out of anger, he cannot justify his murder by saying “I did it because I was angry, if I was in the right state of mind I wouldn’t have pulled the trigger.” The same applies for what we say with our tongues. Just because we are angry at the moment of uttering something doesn’t mean the ruling won’t be applied.
Insanity is when a person is mentally unstable to such an extent that he cannot distinguish or differ between fantasy and reality, between right and wrong, between good and bad. It is the result of a person being mentally deficient. Anger, on the other hand is caused by destructiveness, grandiosity, selfishness, vengeance, hurtfulness, and unjust blaming. In a marriage, it is when a spouse expresses dispassion, evasiveness and ineffectualness along with the previously mentioned things. It is when one doesn’t have his priorities in the right order and acts impulsively knowing the consequences but deciding to overlook them to express ones feelings.
Aisha radhiallahu anha narrates that Rasulullah sallallahu alaihi wasallam said:
” رُفِعَ الْقَلَمُ عَنْ ثَلَاثَةٍ: عَنِ النَّائِمِ حَتَّى يَسْتَيْقِظَ، وَعَنِ الصَّغِيرِ حَتَّى يَكْبَرَ، وَعَنِ الْمَجْنُونِ حَتَّى يَعْقِلَ[20]
Translation: “The pen has been lifted from three persons; from a sleeping person until he awakes, from a young immature person until he grows up and from an insane person until he regains his sanity.”
The reason (illah) as to why these three people are not held accountable for what they do or say is because they have no control over what they do or say. They cannot differentiate between right and wrong, between harmful and safe. The same cannot be said for an angry person. An angry person generally has full control over what he does or says; the only issue is that his anger might cause him to make rash decisions.
The point being made is that there is a fundamental difference between insanity and anger. They are not the same thing and one cannot be used interchangeably. Inevitably, the amount of anger one has differs from person to person, but Allah has given every sane person the ability to control their anger, or better still to control what they do and say when they are angry. All anger is either justified or unjustified; however one alone bears the sole responsibility of how it is expressed regardless of the cause and extent of it.
The Fuqahā have taken into consideration the fact that there are some people that get angry to such an extent that they do not know or have control over what they are doing or saying in this state of anger. The rulings for such a person are different from a normal person. The challenge in such a claim is to determine whether the person is indeed insane or not. The Fuqahā have stated that there are more than 70 categories of insanity. To fit a person into one of these and thereafter apply the ruling is no easy job.
The aforementioned rules and conditions of Qiyās are just the basics that a student learns in the second or third year of a six to seven year Aalim course. There are numerous other issues and conditions that must be learnt, applied and taken into consideration before Qiyās can be correctly implemented.
Advice
Allah Ta῾ālā states in the Holy Quran:
وَرَفَعْنَا بَعْضَهُمْ فَوْقَ بَعْضٍ دَرَجَاتٍ
(43/32)
“And we have raised some people above others in rank.”
Allah Ta῾ālā has bestowed different people with different qualities, abilities and virtues. Some people excel in law whereas others excel in sociology. Some are well versed in poetry whereas others are skilled surgeons and doctors. Some are professional chefs and others are professional footballers. Similarly, some people choose to study and pursue Islamic knowledge; the Quran, Ahādīth and Islamic jurisprudence and excel in their chosen field. There is no one person who can do everything.
Allah Ta῾ālā instructs us in the Holy Quran:
فَاسْأَلُوا أَهْلَ الذِّكْرِ إِنْ كُنْتُمْ لَا تَعْلَمُونَ
(16/43)
“And ask the people of knowledge if you do not know.”
When a person requires medical attention, he consults a physician. He cannot pretend to be a physician and treat himself. In that instance, he will remain sick and his health may deteriorate. This is something that everyone understands. Furthermore, if a competent physician diagnoses the sickness, the patient places his trust in the physician and acknowledges his expertise. Will it be correct for the patient to object to the physicians’ diagnosis? It is understood if an equally or more highly qualified physician disagrees. That is a disagreement based on qualifications. It is an academic disagreement; which is appreciated. The disagreement of an ignorant person pretending to be qualified is not appreciated.
Similarly, in issues of religion and religious verdicts, one should be humble, honest and act responsibly.
Allah Ta῾ālā states in the Holy Quran:
فَاسْأَلُوا أَهْلَ الذِّكْرِ إِنْ كُنْتُمْ لَا تَعْلَمُونَ
(16/43)
“And ask the people of knowledge if you do not know.”
Three points are illustrated in this verse:
1. The word فَاسْأَلُوا suggests that if he does not know, he should humble himself and acknowledge the fact that he does not know. Don’t pretend to know.
2. The words إِنْ كُنْتُمْ لَا تَعْلَمُونَ suggest that one should be honest in his conclusion of not knowing.
3. The words أَهْلَ الذِّكْرِ suggest that one should act responsibly and refer to people of knowledge.
Religious verdicts are a result of following certain disciplinary rules and codes. A correct verdict is measured with the disciplinary rules applied in arriving to its conclusion. If the road travelled on (principles) is correct, the destination (verdict) will be realised. There must be consistency between the principles (usool), application and its verdict. Being short of anything in this will be academic gymnastics or promiscuous interpretation.
If one is not qualified in the field of Fiqh or Usoole Fiqh and pretends to be qualified, that is total dishonesty and a major sin. His attitude is similar to a patient objecting to a competent physician’s diagnosis, except that in the case of the patient, it is detrimental to his health. Here, it is detrimental to ones religion.
And Allah Ta’āla Knows Best
Mawlana Saanwal ibn Muhammad,
UK
Student Darul Iftaa
Checked and Approved by,
Mufti Ebrahim Desai.
www.daruliftaa.net
[1] اصطلاحاً: إبانة حكم لحادثة ليس لها حكم من الكتاب أو السنة أو الإجماع بمثلها ثبت لها حكم بنصٍ أو إجماع لعلّة تجمع بينهما
)المدخل إلى الفقه الإسلامي وأصوله, ص.٨٨, جامعة آل البيت(
[2]لغة: تقدير الشيء على مثاله، فيقال: قس الشيء بغيره، وعلى غيره،
)سبيل الوصول إلى علم الأصول, ص.١٤٨, دار الفرقان(
[3] لغة: مصدر قاس، فقاسه بغيره وعليه يقيسه قياساً واقتاسه قدره على مثاله فانقاس
)المدخل إلى الفقه الإسلامي وأصوله, ص.٨٨, جامعة آل البيت(
[4] الحاق مالم يرد في بيان حكمه نص من الكتاب او السنة و لا الاجماع, بامر منصوص على حكمه في احد هذه الاصول الثلاثة لاشتراكهما في علة الحكم
)الموجز في اصول الفقه, ص.٢٤٣, دار السلام(
[5] فَإِنَّهُ تَعْدِيَةُ الْحُكْمِ مِنْ الْأَصْلِ إلَى الْفَرْعِ بِعِلَّةٍ مُتَّحِدَةٍ
)التوضيح في حل غوامض التنقيح, ص.١٧٩(
[6] لا يحل لامرأة تؤمن بالله و اليوم الاخر ان تسافر فوق ثلاثة ايام و لياليها الا و معها ابوها او زوجه او ذو محرم منها
[7] يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ
[8] يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ
[9] عَنْ مَعْبَدٍ الْجُهَنِيِّ , قَالَ: كَانَ النَّبِيُّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ يُصَلِّي الْغَدَاةَ فَجَاءَ رَجُلٌ أَعْمَى وَقَرِيبٌ مِنْ مُصَلَّى رَسُولِ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ بِئْرٌ عَلَى رَأْسِهَا جُلَّةٌ , فَجَاءَ الْأَعْمَى يَمْشِي حَتَّى وَقَعَ فِيهَا , فَضَحِكَ بَعْضُ الْقَوْمِ وَهُمْ فِي الصَّلَاةِ , فَقَالَ النَّبِيُّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ بَعْدَمَا قَضَى الصَّلَاةَ: مَنْ ضَحِكَ مِنْكُمْ فَلْيُعِدِ الْوُضُؤَ وَلْيُعِدِ الصَّلَاةَ
[11] إِنَّمَا الْخَمْرُ وَالْمَيْسِرُ وَالْأَنْصَابُ وَالْأَزْلَامُ رِجْسٌ مِنْ عَمَلِ الشَّيْطَانِ فَاجْتَنِبُوهُ لَعَلَّكُمْ تُفْلِحُونَ(Surah:5 Ayah:90)
[12] الموجز في اصول الفقه, ص.٢٤٧, دار السلام
[13] عَنْ مَحْمُودَ بْنَ لَبِيدٍ، قَالَ: أُخْبِرَ رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ عَنْ رَجُلٍ طَلَّقَ امْرَأَتَهُ ثَلَاثَ تَطْلِيقَاتٍ جَمِيعًا، فَقَامَ غَضْبَانًا ثُمَّ قَالَ: أَيُلْعَبُ بِكِتَابِ اللَّهِ وَأَنَا بَيْنَ أَظْهُرِكُمْ؟
)سنن النسأى, ج.٦,ص.١٤٢, مكتب المطبوعات الإسلامية(
[14] عَنْ نَافِعٍ قَالَ: قَالَ ابْنُ عُمَرَ: مَنْ طَلَّقَ امْرَأَتَهُ ثَلَاثًا، فَقَدْ عَصَى رَبَّهُ، وَبَانَتْ مِنْهُ امْرَأَتُهُ
)مصنف ابن ابي شيبة, ج.٤, ص,٦١, مكتبة الرشد(
[15]وَقَالَ اللَّيْثُ: حَدَّثَنِي نَافِعٌ، قَالَ: كَانَ ابْنُ عُمَرَ، إِذَا سُئِلَ عَمَّنْ طَلَّقَ ثَلاَثًا، قَالَ: لَوْ طَلَّقْتَ مَرَّةً أَوْ مَرَّتَيْنِ، فَإِنَّ النَّبِيَّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ أَمَرَنِي بِهَذَا، فَإِنْ طَلَّقْتَهَا ثَلاَثًا حَرُمَتْ حَتَّى تَنْكِحَ زَوْجًا غَيْرَكَ
)صحيح البخاري, ج.٧, ص.٤٣, دار طوق النجاة(
[16] أَحدهَا أَن لَا يكون فِي مُقَابلَة النَّص
)اصول الشاشي, فصل شُرُوط صِحَة الْقيَاس خَمْسَة, ص.١٩٦, دار الكتب العلمية(
[17] سنن أبي داود, ج.٢, ص.٢٥٩, المكتبة العصرية
[18] صحيح مسلم, ج.٣, ص.٤٨٩, مطبعة مصطفى البابي الحلبي
[19] ذكر من قال إن هذه الآية أنزلت لأن أهل الجاهلية وأهل الإسلام قبل نزولها لم يكن لطلاقهم نهاية تبين بالانتهاء إليها امرأته منه ما راجعها في عدتها منه، فجعل الله تعالى ذكره لذلك حدًّا، حرَّم بانتهاء الطلاق إليه على الرجل امرأتَه المطلقة، إلا بعد زوج، وجعلها حينئذ أملك بنفسها منه
عن هشام بن عروة، عن أبيه قال: كان الرجل يطلق ما شاء ثم إن راجع امرأته قبل أن تنقضي عدتها كانت امرأته، فغضب رجل من الأنصار على امرأته، فقال لها: لا أقربُك ولا تحلّين مني. قالت له: كيف؟ قال: أطلِّقك، حتى إذا دنا أجلك راجعتك، ثم أطلقك، فإذا دنا أجلك راجعتك. قال: فشكت ذلك إلى النبي صلى الله عليه وسلم، فأنزل الله تعالى ذكره:” الطلاق مرتان فإمساك بمعروف”الآية.
تفسير الطبري, سورة البقرة, اية.٢٢٩, مؤسسة الرسالة
[20] سنن ابن ماجه, ج.١, ص.٦٥٨, دار إحياء الكتب العربية