DIVORCE IN ISLAM

In the first phase of Islam, however, a different view of divorce was taken by the second Caliph, Umar ibn al-Khattab. An incident that illustrates his viewpoint was thus described by Imam Muslim. In the Prophet’s lifetime, then under the Caliphate of Abu Bakr and also during the early period of the Caliphate of Umar, three utterances of talaq on one occasion used to be taken together as only one utterance. Then it occurred to Umar ibn al-Khattab that in spite of the fact that a system had been laid down which permitted the husband to withdraw his first, or even second talaq, men still wanted to rush into divorce. He felt that if they were bent on being hasty, why should not a rule be imposed on them binding them to a final divorce on the utterance of talaq three times in a row. And he proceeded to impose such a rule. This act on the part of the second Caliph, apparently against the principles of the Quran and sunnah, did not in any way change the law of the Shariah. To think that this led to any revision of Islamic law would be to misunderstand the situation: the Caliph’s order merely constituted an exception to the rule, and was, moreover, of a temporary nature. This aptly demonstrates how the Islamic Shariah may make concessions in accordance with circumstances. Each law of the Shariah may be eternal, but a Muslim ruler has the power to make exceptions in the case of certain individuals under special circumstances. However, such a ruling will not take on the aspect of an eternal law. It will be purely temporary in nature and duration. Various traditions in this connection show that the second Caliph’s treatment of certain persons was not in consonance with the Shariah. The rulings he gave on these occasions were in the nature of executive orders that were consistent with his position as a ruler. If he acted in this manner, it was to punish those who were being hasty in finalizing the divorce procedure. It is a matter of Islamic historical record that when any such person was brought before Umar for having uttered the word talaq three times on one occasion, he held this to be a rebellious conduct and would order him to be flogged. Perhaps the most important aspect of this matter is that when Umar gave his exceptional verdict on divorce being final after the third utterance of the word talaq on a single occasion, his position was not that of an alim (scholar) but of a ruler invested with the full power to punish—as a preventive measure—anyone who went against Quranic injunctions. For marriage, one utterance is enough, but for a divorce to be finalized, three utterances are required, between which a long gap has been prescribed by the Shariah.