Al-Baqarah: (230) And if he divorces her, then...

Know that this is the fifth ruling concerning divorce, which clarifies that the third divorce severs the right of return (Raj'ah). This involves several issues:

Issue 1: The Meaning of "or a kind release"

Those who argue that the phrase {or a kind release} (Al-Baqarah: 229) refers to the third divorce suggest that the subsequent verse, {And if he divorces her}, is an explanation of "a kind release." This was the view of Mujahid.

However, we have previously established that it is preferable for "a kind release" not to refer to the third divorce. This is because, after the second divorce, the husband has three possible states regarding the wife:

1. Reconciliation (Raj'ah): This is meant by {but retain her with kindness} (Al-Baqarah: 229).
2. Allowing the waiting period (Iddah) to expire without reconciliation: This results in final separation (Baynunah) and is meant by {or a kind release}.
3. Issuing a third divorce: This is meant by {And if he divorces her}.

Since there are three distinct scenarios, and the Almighty mentioned three distinct phrases, each phrase must correspond to one of the three meanings. If we interpret {or a kind release} as the third divorce, we would be repeating two phrases for one meaning and neglecting the third scenario. Clearly, the first interpretation is superior.

Know that the verse concerning Khul' (redemption/dissolution initiated by the wife) appears awkwardly placed between these two verses. The proper sequence of the verses is: {Divorce is twice. Then, either keep [her] in fairness or release [her] with kindness. But if he divorces her [for the third time], then she is not lawful to him afterward until she marries a husband other than him}.

If someone asks: If this is the correct order, why was the verse on Khul' inserted between these two?

We reply: The reason is that reconciliation (Raj'ah) and Khul' are only valid before the third divorce; nothing of that remains afterward. Therefore, God mentioned the ruling on reconciliation, followed it with the ruling on Khul', and then mentioned the ruling of the third divorce, as it serves as the conclusion to all valid rulings in this chapter. And God knows best.

Issue 2: Conditions for Remarriage After the Third Divorce

The majority of jurists hold that a woman divorced three times does not become lawful for the first husband unless five conditions are met:

1. She completes her waiting period (Iddah) from him.
2. She enters into a valid marriage contract with a second husband.
3. The second husband consummates the marriage with her.
4. The second husband divorces her.
5. She completes her waiting period from the second husband.

Sa'id ibn al-Musayyib and Sa'id ibn Jubayr held that she becomes lawful merely upon the marriage contract. Scholars differed on whether consummation is required by the Sunnah or the Quran. Abu Muslim al-Isfahani argued that both are established by the Quran, which is the preferred view.

Before delving into the evidence, a preliminary point raised by Uthman ibn Jinni must be noted. He asked Abu Ali about the usage of "he married the woman" (nakaha al-mar'ah). Abu Ali explained that usage differentiates:

• If they say, "So-and-so married so-and-so," they mean he contracted marriage with her.
• If they say, "He married his wife," they mean sexual intercourse.

I agree that what Abu Ali stated is logically sound based on rational principles. The relationship established between two entities (like marriage) is distinct from the essence of each entity. If one says, "So-and-so married his wife," this marriage is an event occurring between him and his wife, separate from both of them. Furthermore, "wife" (zawjah) is not merely the essence of that woman, but the essence qualified by the status of being a spouse. The singular essence precedes the composite description.

Given this, when we say, "So-and-so married his wife," the act of marrying (nakih) comes later than the concept of being a spouse (zawjiyyah), as the singular precedes the composite. Therefore, it must be concluded that this marriage (nikah) is different from the status of being a spouse (zawjiyyah).

If this is established, then the phrase {until she marries another husband} implies that this marriage must be distinct from the status of zawjiyyah. Everyone who holds this view asserts that it means consummation (watu). Thus, the verse indicates the necessity of consummation: {marries} (tankih) indicates consummation, and {a husband} (zawjan) indicates the contract.

The view that the verse does not mandate consummation, and that it is only established by the Sunnah, is weak. This is because the verse implies that the prohibition of lawfulness is extended up to a limit, which is {until she marries}. Whatever sets the limit for a ruling must terminate the ruling upon its occurrence. If "marriage" meant only the contract, the verse would imply the prohibition ends upon the contract, meaning that lifting the prohibition by a solitary Hadith would constitute abrogating the Quran by a solitary report, which is impermissible. However, if we interpret nikah as consummation and {a husband} as the contract, this contradiction is avoided.

As for the famous Hadith in the Sunnah, it is narrated concerning Tamimah bint Abd al-Rahman al-Quraziyyah, who was married to Rifa'ah ibn Wahb ibn 'Utaik al-Qurazi (her cousin). He divorced her three times. She then married Abd al-Rahman ibn al-Zubayr al-Qurazi. She came to the Prophet (PBUH), saying: "I was married to Rifa'ah, and he divorced me with a final divorce. I then married Abd al-Rahman ibn al-Zubayr, but he has nothing with me like the hem of a garment [i.e., he has not consummated the marriage], and he divorced me before touching me. Shall I return to my cousin?" The Messenger of Allah (PBUH) smiled and said: "Do you wish to return to Rifa'ah? No, not until you taste his honey and he tastes your honey." "Honey" ('usaylah) refers to sexual intercourse, likened to honey due to the pleasure derived. She remained for a time, then returned to the Prophet (PBUH) and said: "My husband [Abd al-Rahman] touched me." The Messenger of Allah (PBUH) disbelieved her, saying: "You lied the first time, so I will not believe you the second time." She remained until the Prophet (PBUH) passed away. She then approached Abu Bakr, seeking permission [to return to Rifa'ah]. He told her: "Do not return to him." She remained until Abu Bakr passed away. She then approached Umar, seeking permission. He said: "If you return to him, I will stone you." Regarding the story of Rifa'ah, the verse {And if he divorces her, then she is not lawful to him afterward until she marries a husband other than him} was revealed.

By analogy (Qiyas): The purpose of conditioning the lawfulness upon this requirement is to deter the husband from divorce. This is because the husband typically finds it repulsive that another man should sleep with his wife. For this reason, some scholars said that God prohibited the Prophet's wives from marrying anyone else due to the disgrace involved. Deterrence is achieved only by conditioning lawfulness upon consummation; mere contract does not carry the same level of aversion, so it cannot serve as the barrier and deterrent.

Issue 3: The Effect of the Second Marriage on the Count of Divorces

Al-Shafi'i said: If a man divorces his wife once or twice, and she then marries another husband who consummates the marriage with her, and she then returns to the first husband via a new contract, he only has one divorce remaining against her (the one left from the initial count).

Abu Hanifah said: He regains the right to three divorces, just as if she had married another husband after the third divorce.

Al-Shafi'i's proof is that this is effectively a third divorce, so the severe prohibition must apply. We say it is a third divorce because it is a divorce occurring after the first two, and the third divorce necessitates the severe prohibition, according to the Almighty's saying: {And if he divorces her, then she is not lawful to him afterward...}. The phrase {And if he divorces her} is general enough to include divorce after marrying another husband or divorce without marrying another husband; thus, both cases are covered.

Issue 4: Stipulations in the Second Marriage Contract

Al-Shafi'i's view is that if a man marries a woman divorced three times on the condition that if she makes him lawful for the first husband (by consummating the marriage), then there is no marriage between them, this is a temporary marriage (Nikah Mut'ah) with an unknown term, and thus void.

If he marries her on the condition that he will not divorce her after making her lawful for the first husband, there are two opinions:

1. The marriage is invalid.
2. The marriage is valid, but the condition is void. This is the view of Abu Hanifah.

If he marries her unconditionally, believing that he will divorce her after making her lawful, the marriage is valid, but this act is disliked and sinful.

Malik, Al-Thawri, and Ahmad said this marriage is void.

Our evidence is that the verse indicates the prohibition ends upon consummation preceded by a contract. Since this has occurred, the prohibition must end. Where we rule the marriage void, if he consummates the marriage with her, does it effect the tahlil (making her lawful)? There are two opinions, but the soundest is that it does not effect the tahlil.

As for the Almighty's saying {And if he divorces her}, it means if the second husband (who married her after the third divorce) divorces her. This is because the Almighty mentioned him by saying: {until she marries a husband other than him, then there is no blame upon them}—meaning the divorced woman and the first husband—{if they return to each other} via a new marriage contract. The term "marry" (tanakah) is used here because the spousal relationship (zawjiyyah) already existed between them; when they marry again, they are returning to the state of marriage they previously held. This is a linguistic return.

Two issues remain in the verse:

The apparent meaning of the verse suggests that when the second husband divorces her, the first husband is permitted to remarry her immediately. However, this is restricted by the Almighty's saying: {And divorced women shall wait by themselves for three periods} (Al-Baqarah: 228). The purpose of the Iddah is to ascertain the womb's purity, which is achieved here. This is what Sa'id ibn al-Musayyib relied upon when arguing that tahlil occurs merely upon the contract, because if consummation were required, the Iddah would be obligatory. This verse indicates the dropping of the Iddah because the particle fa' (then) in {then there is no blame upon them if they return to each other} indicates that the lawfulness of return occurs immediately following the second husband's divorce. However, the answer is what we previously stated [regarding the necessity of consummation].

Al-Khalil and Al-Kisa'i said that the position of {if they return to each other} (an yataraja'a) is in the genitive case (khafd) due to an implied preposition, meaning "concerning their return." Al-Farra' said its position is accusative (nasb) by dropping the preposition.

As for the Almighty's saying {if they both think that they will keep the limits of Allah}, there are two issues:

Many commentators said {if they both think} (in dhanna) means "if they know and are certain" that they will uphold the limits of Allah. This view is weak for several reasons:

1. One does not say, "I knew that Zayd would stand," but rather, "I knew that Zayd stands."
2. A person cannot know the future decree (Qadar); he can only think or assume it.
3. It is analogous to the verse: {And their husbands are more entitled to take them back in that [period] if they seek reconciliation} (Al-Baqarah: 228), where assumption (dhann) is the criterion. Thus, it should be the same here.

If this view is rejected, the intended meaning is assumption itself: whenever this assumption arises, and they resolve to uphold the limits of Allah, this reconciliation is good. If this assumption does not arise, and they fear discord from her or harm from him upon reconciliation, then reconciliation is forbidden.

The word {if} (in) in Arabic is conditional. A condition is absent when its prerequisite is absent. The apparent meaning of the verse suggests that if this assumption does not occur, the permissibility of return does not occur. However, this is not the case, as the permissibility of return is established whether this assumption occurs or not. We say that this is not a condition for the validity of the return; rather, it means that upon returning via a new contract, they are obligated to observe the rights of God Almighty and intend to uphold His limits and commands.

Then He said afterward: {And those are the limits of Allah, which He makes clear to a people who know}. This involves several issues:

The phrase {And those are the limits of Allah} refers to the obligations mentioned previously. The phrase {He makes clear} refers to the future. The combination of past and future tense seems contradictory. In my view, most of these preceding texts are general and subject to many specific exceptions, most of which are known only through the Sunnah. Therefore, the meaning, and God knows best, is that these rulings mentioned are the limits of Allah, and He will clarify them perfectly through the tongue of His Prophet (PBUH), similar to His saying: {to make clear to the people what was sent down to them} (An-Nahl: 44).

'Asim, in the narration of Aban, recited {We make clear} (nubayyinuha) with the Nun (indicating the majesty of God). The rest recited it with the Ya' (indicating God as the subject).

Scholars specified this clarification for people who "know" for several reasons:

1. They are the ones who benefit from the verses; others are like those disregarded, similar to {In it is guidance for the righteous} (Al-Baqarah: 2).
2. They are singled out for mention, like {and His angels and His messengers and Gabriel and Michael} (Al-Baqarah: 98).
3. It refers to the Arabs due to their knowledge of the language.
4. It refers to those possessing intellect and knowledge, like {And none will understand them except the learned} (Al-'Ankabut: 43). The intent is that only the rational, knowledgeable person is obligated, as their excuse is removed.
5. The phrase {Those are the limits of Allah} refers to the previously mentioned rulings, which God clarifies to those who know that God sent down the Book and the Messenger so that they might learn His commands and refrain from what He has forbidden.

7 < {And when you divorce women and they have fulfilled their term, then either retain them in fairness or release them in fairness. And do not retain them for harm, [intending] to transgress. 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 He has sent down to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is, of all things, Knowing.} > 7