Question # 357: As Salamu Alaikum Warahmatullah. What if a husband has divorced his wife twice (for her two menses period) & than after did not come back to her until after a period of EIGHT MONTHS (he returned back to her after 8months just because he felt very SICK & thus returned back to her but after 8months) & NOT before that from the time they were separated in the beginning for her 2months menses period. So now according to the rulings of Islamic Sharia is she still his wife OR they are NO MORE considered as husband & wife of each other’s?
bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Shorter Answer: If a man divorces his wife with the first or second talaaq, once her ‘iddah is over she is divorced and becomes a “stranger” (non-mahram) to him; she cannot go back to him except with a new marriage contract which fulfils all the conditions set out in shari’ah. But if he divorces his wife with the third talaaq, then she becomes haraam to her husband.
Long Answer: The Muslim jurists differentiate between two kinds of divorce as far as the number is concerned.
First, Rajei divorce; the revocable divorce, in which a husband has the right to bring his divorced wife back to conjugal life without making any new marriage contract. Taking her back to conjugal life is permissible only before the expiry of the period.
Second, the Bain divorce; (complete separation). It is of two kinds:
- “Minor Bain divorce” is a kind of separation. If the husband has made one pronouncement or two pronouncements of divorce and he did not take his wife back to conjugal life during her Iddah (waiting period) and her Iddah has expired then it is permissible for him to take her back to conjugal life if he makes a new marriage contract fulfilling all requirements of marriage.
- “Major Bain divorce”. If the husband divorces his wife (three) times, then it becomes prohibited for him to take her back or marry her again unless she gets married to another man and has sexual intercourse with him (that man). If they are then separated by divorce or by the death of the second husband, the first husband can marry her if he wishes through a new marriage contract.
(The above reply is based on answer provided on Islamweb.net, a web site belonging to the Ministry of Awqaf and Islamic Affairs in the State of Qatar)
[Hence, similar to the situation under consideration,] if a man divorces his wife with the second talaaq, once her ‘iddah is over she is divorced and becomes a “stranger” (non-mahram) to him; she cannot go back to him except with a new marriage contract which fulfils all the conditions set out in shari’ah.
But if he divorces his wife with the third talaaq, then she becomes haraam to her first husband until she has married a second husband in a genuine marriage which is consummated. Allah (سبحانه و تعالى) says in the Qur’an: “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness… And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” (Soorah al-Baqarah, 2:229-230). The last divorce refers to the third divorce, according to all the scholars.
The evidence from the Sunnah is the hadith narrated by ‘Urwah ibn al-Zubayr, according to which ‘Aa’ishah told him that the wife of Rifaa’ah al-Qurazi came to the Messenger of Allah (صلى الله عليه و سلم) and said, “O Messenger of Allah, Rifaa’ah divorced me thrice, then I was married to ‘Abd al-Rahmaan ibn al-Zubayr al-Qurazi, but he has nothing with him except something like this fringe. The Messenger of Allah (صلى الله عليه و سلم) said, “Perhaps you want to go back to Rifaa’ah? No, (it is not possible), unless and until you enjoy the sexual relation with him (‘Abd al-Rahmaan), and he enjoys the sexual relation with you.” (Narrated by al-Bukhari and Muslim)
The phrase “divorced me three times” means that this was the divorce which meant that she was no longer married to him, which is the third talaaq. The Prophet’s words “until you enjoy the sexual relation with him (‘Abd al-Rahman), and he enjoys the sexual relation with you” refer to intercourse.
Al-Nawawi said: “This hadith indicates that the woman who has been divorced by a third talaaq is not permissible to the man who has divorced her until she has been married by another husband, who has intercourse with her then separates from her, and she completes her ‘iddah. Merely drawing up the marriage contract with her does not make her permissible to the first husband. This is the view of all the scholars among the Sahaabah, Taabi’een and those who came after them. (Sharh Muslim)
(The above reply is based on answer provided by Shaykh Muhammad Saalih al-Munajjid on the topic)
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.