Alhassanain(p) Network for Heritage and Islamic Thought

Maintenance of Relatives

Who are the relatives entitled to maintenance and who amongst them is liable to provide maintenance? What are the conditions which make such maintenance wajib?

Definition of a Relative's Maintenance

According to the Hanafi’s, the criterion for the responsibility of the relative to provide maintenance of another is the prohibited degree of marriage, so that if one of them is supposed a male and the other a female, marriage between them would be considered haram.

Therefore, this responsibility includes fathers-how high so ever-and sons-how low so ever-and also includes brothers, sisters, uncles and aunts, both paternal and maternal, because marriage between any two of them is prohibited.

The nearest relative shall be liable to provide maintenance, and affinity here has nothing to do with the title to inheritance. Therefore, if there is someone in the two classes of lineal ascendants and descendants, maintenance will be wajib on him, even if he is not entitled to inherit (from the person he is liable to maintain). One not belonging to these two classes will not be liable to provide maintenance, though he should be entitled to inherit. For example, if a person has a daughter's son and a brother, his maintenance will be wajib upon the former and not the latter, though the latter alone be entitled to the entire legacy to the exclusion of the former (al-Durar fi sharh al-Gharar, vol. 1, bab al-nafaqat).

Similarly, between two relatives of the same class, the nearer one will be responsible, even if he isn't entitled to any share in the legacy. Therefore, if a child has a paternal great grandfather and a maternal grandfather, his maintenance will be wajib upon the latter not the former, though the former should be an heir to the exclusion of the other. The secret here is that the maternal grandfather is nearer though he does not inherit, while the paternal great grandfather is comparatively distant, though he is an heir.

The Hanafis also state: The well-to-do son is responsible for the maintenance of his indigent father's wife, and he is also liable to get his indigent father married if he needs a wife.

The Malikis observe: Maintenance is wajib only on parents and children, not on other relatives. Thus, a grandson is not responsible to maintain his paternal or maternal grandfathers or grandmothers, and, reciprocally, a grandfather is not liable to maintain his grandsons and granddaughters. On the whole, the responsibility for maintenance is limited to parents and children, to the exclusion of grandparents and grandchildren.

They also state: It is wajib upon a well-to-do son to maintain the servant of his indigent parents, even if they don't need him; but it is not wajib for a father to maintain his son's servant. A son is also liable to maintain his father's wife and her servant and have his father married to one or more wives, if one wife does not suffice.

The Hanbalis state: It is wajib that fathers, how high so ever, provide and receive maintenance. Similarly, it is wajib that sons, how low so ever, provide and receive maintenance, irrespective of their title to inheritance. Maintenance of relatives not belonging to the two classes is also wajib if the person liable to provide maintenance inherits from the person being maintained either by fard1 or by ta'sib2 ; but if excluded from inheritance, he will not be responsible for maintenance. Thus, if a person has an indigent son and a well-to-do brother, neither may be compelled to maintain him, because the son's indigence relieves him of the responsibility, and the brother by being excluded from inheritance due to the son's presence (al-Mughni, vol. 7, bab al-nafaqat).

They also state: It is wajib on the son to arrange for his father's marriage and to maintain his wife, in the same way as it is wajib on the father to have his son married if he is in need of marriage.

According to the Imamiyyah and the Shafi'i schools, it is wajib for sons to maintain their fathers and mothers, how high so ever, and it is wajib for fathers to maintain sons and daughters, how low so ever. The obligation of maintenance does not transcend these two main lineal classes to include others, such as brothers and paternal and maternal uncles.

But the Shafi’is are of the view that a well-to-do father is liable to have his indigent son married if in need of marriage: and a son is likewise bound to arrange for his indigent father's marriage if in need of marriage. Moreover, the liability for a person's maintenance includes the maintenance of his wife (Maqsad al-nabih, bab nafaqat al-'aqarib).

Most Imamiyyah legists state: It is not wajib to arrange for the marriage of a person whose maintenance is wajib, irrespective of whether he is father or son. Similarly, it is not wajiib for a son to maintain his father's wife if she is not his mother, or for a father to maintain his son's wife, because the canonical proofs (adillah) which make maintenance wajiib include neither the father's wife nor the son's, and an obligation is assumed to be non-existent until proved.

Conditions for the Wujub of Maintenance

The following conditions are necessary for making the maintenance of one relative wajib upon another.

1. The person to be maintained must be in need of maintenance. Therefore, maintaining a person who is not needy is not wajib. The schools differ regarding a person who is needy and can earn his livelihood but does not do so, as to whether it is wajib to maintain him or not.

The Hanafi and the Shafi’i school state: The inability to earn is not a necessary condition for the wajib of the maintenance of fathers and grandfathers. Therefore, their maintenance is wajib on sons even if they have the ability to work but neglect to do so. Regarding other relatives who are able to make a living for themselves, their maintenance is not wajib; rather, they will be compelled to make a living, and a one who neglects to work or is sluggish commits only a crime against himself. But the Shafi'is say regarding a daughter: Her maintenance is wajib on the father until she is married.

The Imamiyyah, the Maliki and the Hanbali schools state: If one who was earlier making his livelihood by engaging in a trade that suited hi condition and status later neglects to do so, his maintenance is not wajib upon anyone, irrespective of whether it is the father or the mother or the son. The Malikis agree with the Shafi’is' position regarding a daughter and the reason for this is that formerly women were considered generally incapable of earning their own livelihood.

2. That the maintainer be well-off, according to all the schools, except the Hanafi’s who say: Being well-to-do of the maintainer is a condition only for the maintenance of those who are neither ascendants nor descendants; but financial capacity is not a condition in the maintenance of the scion by one of the parents or the maintenance of the parents by the scion. The only condition here is the presence of the actual ability to maintain or the presence of the ability to earn. Therefore, a father who is capable of work will be ordered to maintain his child, and similarly a son with respect to his father, except where one of them is indigent and incapable of making an earning, such as due to blindness. etc.

The schools differ regarding the degree of financial ease necessary to cause the liability for providing maintenance to a relative. According to the Shafi'i school, it is the surplus over the daily expenditure of his own, his wife's and his children's.

The Malikis add to this the expenditure incurred upon servants and domestic animals.

According to the Imamiyyah and the Hanbali schools: It is the surplus over the daily expenditure of oneself and one's wife, as the maintenance of descendants and ascendant belongs to the same category.

Hanafi legists differ in defining the state of financial ease. According to some of them, it is possession of an amount of wealth which gives rise to the incidence of zakat (nisab); according to others, it should be enough to prohibit his taking of zakat. The third opinion differentiates between the farmer and the worker, allowing the farmer his and his family's expenditure for a period of one month and the worker a day's expenditure as deduction

3. According to the Hanbalis, their belonging to the same religion is necessary: thus, if one of them is a Muslim and the other a non-Muslim, maintenance will not be wajib (al-Mughni , vol. 7).

The Maliki, the Shafi’i and the Imamiyyah schools state: Their belonging to the same religion is not necessary. Therefore, a Muslim can maintain a relative who is not a Muslim, as is the case when maintenance is provided by a Muslim husband to his wife belonging to Ahl al-Kitab.

The Hanaf'is observe: Belonging to the same religion is not required between ascendants and descendants, but necessary between other relatives. Therefore, a Muslim will not maintain his non-Muslim brother and vice versa (Ab Zuhrah).

Determination of Relative’s Maintenance

It is necessary that maintenance paid to a relative be sufficient to cover his/her essential needs, such as food, clothing and housing, because maintenance has been made wajib to protect life and to provide its needs. Thus it is to be determined in accordance with the needs (al-Mughni, vol. 7. al-Tawahir, vol. 5).

It should be noted that if a relative entitled to maintenance receives the maintenance of a day or more through litigation, through gift, zakat or some other manner, the maintenance due to him will be deducted to the extent of what he reived through these means, even if the judge has ordered the payment of maintenance.

The Order of Relatives on Whom Maintenance is Wajib

The Hanafis observe: If there is only one person responsible for maintenance, he will pay it; if two or more belonging to the same category and capacity are responsible-such as two sons or two daughters-they will share equally in providing maintenance, even if they differ in wealth, after their financial capacity has been proved.3

But where they are of different categories of relationship or of varying capacities, there is confusion in the views of Hanafi legists in providing the order of those responsible for maintenance (al-'Ahwat al-shakhsiyyah, Abu Zuhrah).

The Shafi'is state: If a person in need has a father and a grandfather who are both well-off, his maintenance will be provided solely by the father. If he has a mother and a grandmother, the maintenance will be solely provided by the mother. If both the parents are there, the father will provide the maintenance. If he has a grandfather and a mother, the grandfather will provide the maintenance. If he has a paternal grandmother and a maternal grandmother according to one opinion, both are equally responsible according to another opinion. the paternal grandmother will be solely liable (Maqsad al-nabih, nafaqat al-'aqarib).

The Hanbalis state: If a child does not have a father, his maintenance will be on his heirs; and if he has two heirs, they will contribute in proportion to each's share in legacy. If there are three or more heirs, they will contribute in proportion to their share in legacy. Tutt if he has a mother and a grandfather, the mother will contribute one-third of maintenance and the grandfather the remainder, as they inherit in the same proportion (al-Mughni. vol. 7).

The Imamiyyah state: The child's maintenance is wajib on the father, If the father is dead or indigent, its maintenance will lie upon the paternal grandfather; and if the grandfather is dead or indigent, the mother will be liable for maintenance. After him, her father and mother along with the child's paternal grandmother will share equally in the maintenance of the grandchild if they are financially capable. But if only some of them are well-off, the maintenance will lie only on those who are such.

If an indigent person has father and a son, or father and a daughter, they will contribute to his maintenance equally. Similarly, if he has many children, it will be shouldered equally by them without any distinction between sons and daughters. On the whole, the Imamiyyah consider the nearness of relationship a criterion while determining the order of relatives who are liable to provide maintenance; on their belonging to the same class, they are compelled to contribute equally without any distinction between males and females or between ascendants and descendants, except that the father and the paternal grandfather are given priority over the mother.

Notes

1. By fard is meant the specific share of inheritance decreed for an heir by the Qur'an.

2. Al-Tasib is a doctrine accepted by the Sunni schools. It applies in situations where the total shares of the decreed sharers fall short of the total legacy. Here, the Sunni schools assign the balance to be inherited by distant relatives, as the nearer relative have already received their decreed shares and are not entitled to anything in addition to their decreed shares. For example, if a person dies leaving behind a daughter and an uncle, the decreed share of the daughter being half, the other half will be inherited by the uncle and the daughter will not be entitled to inherit more than her decreed share.

The Imamiyyah do not accept this doctrine and in the above example entitle the daughter to inherit the whole heritable interest to the exclusion of the father's uncle. They apply the rule: the nearer in degree excludes the remote.

3. Some judges distribute the maintenance of a relative between those on whom his maintenance is wajib in accordance with the financial capacity of each. Therefore, if an indigent father has two sons, one of them very rich, and the other merely well-off, the first will contribute more than the second to the father's maintenance.

The Hanafis give no weightage to this difference in financial capacity and consider the two equally liable after their capacity has been proved. This is a right required by the legal bases, and the statements of the author of al-Jawahir also bear this out where he says: If he has a son who is presently well-off and another son who is in the course of becoming such, the two will contribute equally because the applicable adillah are unconditional.

7. Divorce

Divorce

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 schools1 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.

3. 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.

4. 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.2

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,3 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 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)

The Imamiyyah observe: Divorce requires the pronouncement of a specific formula without which it does not take place. This formula is:

أنتِ طالق (you are divorced), or فلانة طالق ('so and so' is divorced), or هي طالق (she is divorced).

Thus if the husband uses the words: الطالق or المطلّقة or طُلّقت , or الطلاق or المطلّقات etc., it will have no effect even if he intends a divorce because the form طالق is absent despite the presence of its root (t-l-q). It is necessary that the formula be properly recited without any error in pronunciation and that it be unconditional. Even a condition of certain occurrence such as, 'at sunrise', etc. is not adequate.

If the husband gives the wife the option of divorcing herself and she does so, divorce will not take place according to Imami scholars. Similarly, divorce will not take place if the husband is questioned. "Have you divorced your wife", and he answers affirmatively with the intention of effecting a divorce. If the husband says, "You are divorced, three times", or repeats the words, "You are divorced", thrice, only a single divorce takes place if the other conditions are fulfilled. Divorce does not take place through writing or by gesticulation, unless the divorcer is dumb, incapable of speech. It is necessary that the divorce be recited in Arabic when possible. It is better for a non-Arab and a dumb person to appoint an attorney, if possible, to recite the divorce on his behalf. Similarly, according to the Imamiyyah, divorce will not take place by an oath, a vow, a pledge or any other thing except by the word طالق , on fulfillment of all the limitations and conditions.

The author of al-Jawahir, citing a statement from al-Kafi, says: "There can be no divorce except (in the form) as narrated by Bukayr ibn A'yan, and it is this: The husband says to his wife (while she is free from menses and has not been copulated with during that period of purity): انتِ طالق (You are divorced), and (his pronouncement is witnessed by two just ('adil) witnesses. Every other form except this one is void". Then the author of al-Jawahir quotes al-Intisar to the effect that there exists consensus on this issue among the Imamiyyah.

Consequently, the Imamiyyah have restricted the scope of divorce to its extreme limits and impose severe conditions regarding the divorcer, the divorcee, the formula of divorce, and the witnesses to divorce. All this is because marriage is a bond of love and mercy, a covenant with God. The Qur’an says:

و كيف تأخذونهُ و قَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنْكُمْ مِيثَاقاً غَلِيظاً

How can you take it back after one of you hath gone in into the other, and they (the wives) have taken a strong pledge from you? (4:21)

وَمِنْ آيَاتِهِ أَنْ خَلَقَ لَكُمْ مِنْ أَنفُسِكُمْ أَزْوَاجاً لِتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُمْ مَوَدَّةً وَرَحْمَةً

And one of His signs is that He created mates for you from yourselves that you may find tranquility in them, and He ordained between you love and compassion. (30:21)

وَلاَ تُمْسِكُوا بِعِصَمِ الْكَوَافِرِ

...And hold not to the ties of marriage of unbelieving women.... (60:10)

Therefore, it is not permissible in any manner that one break this bond of love and compassion, this pledge and covenant, except with a knowledge that leaves no doubt that the Shari'ah has surely dissolved the marriage and has broken the tie which it had earlier established and confirmed.

But the other schools allow divorce in any manner in which there is an indication of it, either by oral word or in writing, explicitly or implicitly (such as when the husband says: "You are haram for me", or "You are separated" or "Go, get married", or "You are free to go wherever you want," or "Join your family," and so on). Similarly, these schools allow an unconditional as well as a conditional divorce (such as when the husband says: "If you leave the house, you are divorced," or. "If you speak to your father you are divorced," or "If I do this, you are divorced," or "Any woman I marry, she is divorced:" in the last case the divorce takes place as soon as the contract of marriage is concluded!). There are various other pronouncements through which divorce is effected, but our discussion does not warrant such detail. These schools also permit a divorce in which the wife or someone else has been authorized to initiate it. They also allow a triple divorce by the use of a single pronouncement. The legists of these schools have filled many a long page with no result except undermining the foundation of the family and letting it hang in the air.4

The Egyptian government has done well in following the Imamiyyah in most aspects of divorce. Apart from this, the four schools do not consider the presence of witnesses a condition for the validity of divorce, whereas the Imamiyyah consider it an essential condition. We hand over the discussion to al-Shaykh Abu Zuhrah regarding this issue.

Divorce and Witnesses

In al-Ahwal al-shakhsiyyah (p. 365), al-Shaykh Abu Zuhrah has observed: "The Twelve-Imami Shi’i legists and the Isma'iliyah state: A divorce does not materialize if not witnessed by two just ('adil) witnesses, in accordance with the Divine utterance regarding the rules of divorce and its pronouncement:

فَاذا بلغنَ اجَلَهُنَّ فَأمسِكوهُنَّ بِمعروفٍ أو فارِقوهُنَّ بِمعروفٍ وَأَشْهِدُوا ذَوَى عَدْلٍ مِنْكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ ذَلِكُمْ يُوعَظُ بِهِ مَنْ كَانَ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الآخِرِ وَمَنْ يَتَّقِ اللَّهَ يَجْعَلْ لَهُ مَخْرَجاً * وَيَرْزُقْهُ مِنْ حَيْثُ لاَ يَحْتَسِبُ

Then when they (the wives) have reached their 'iddah retain them honourably, or part from them honourablv. And have two just men from among yourselves bear witness, and give testimony for Allah's sake. By this then is admonished he who believes in Allah and the Last Day. And whoever is careful of (his duty to) Allah, He will provide for him an outlet and give him sustenance from whence he never reckoned (65:2-3)

This command about the witnesses in the Qur'an follows the mention of divorce and the validity of revoking it. Therefore, it is appropriate that the calling in of witnesses should be related to divorce. Moreover, the reason given for calling in the witnesses, that God seeks thereby to admonish those who believe in God and the Last Day, confirms this interpretation, because the presence of just witnesses is not without the good advice which they would offer to the couple; and this could bring about for them an escape from divorce, which is the most hated of lawful things in the eyes of God. If it were for us to choose the law to be acted upon in Egypt, we would choose this opinion, which requires the presence of two just witnesses for effecting a divorce".

Together with the restrictions that the Imamiyyah have laid down for the divorcer, the divorcee, and the pronouncement of divorce, they have also laid down an additional limitation regarding the witnesses by demanding that if all conditions are fulfilled except that the two just witnesses do not hear the pronouncement of the divorce, the divorce will not take place. Therefore, a single witness will not suffice even if he is a good substitute, not even if he is an infallible (ma'sum) person.5

Further, the witnessing of the pronouncement by one of them by listening and of the other by testifying to their admission (of having concluded the divorce) is not sufficient. The testimony of a group of people will also not suffice, even if it is big enough to make the divorce a known public fact. The testimony of women, with or without the testimony of men, is not sufficient. Similarly, if the husband pronounces the divorce and then brings in the witnesses, it will have no effect.

The Case of a Sunni Husband and a Shi'i Wife

If a Sunni husband divorces his Shi’i wife, either through a conditional divorce contingent upon something, or in a period of purity during which sexual intercourse has occurred, or during menses or nifas, or without two just witnesses being present or by an oath of divorce, or by saying, حبلك على غاربك ; “Go wherever you want,” or in any other form which is valid in accordance with Sunni law and invalid according to Shi’i law, is such a divorce considered valid by the Shi'ah, so that the woman may remarry after completing her 'iddah?

The answer is that there is consensus among the Imami jurists that every sect is bound by its own precepts,6 and that the transactions of its followers, as well as their affairs pertaining to inheritance, marriage and divorce, are valid if performed according to rules of their shari'ah. A tradition has been narrated from the Imams of Ahl al-Bayt (A):

ألزموهم من ذلك ما ألزموا أنفسهم

Bind them with the laws with which they have bound themselves.

In another tradition, al-Imam al-Sadiq (A) was questioned regarding a woman who had been divorced by a Sunni husband against the principles of the Sunnah, whose compliance is necessary for the validity of a divorce according to the Shi'ah. The Imam (A) replied:

تتزوج، ولا تُترك المرأة من غير زوج

She will marry, and a woman shall not be left without a husband.

In a third tradition it is stated:

يجوز على أهل كل دين ما يستحلّون

For the followers of every religion, that which they consider lawful is permissible for them.

A fourth tradition says:

من دان بدين قوم لزمته أحكامهم

One who follows the religion of a particular sect, is bound by its rules, (al-Jawahir, vol. 5, the discussion regarding sighat al-talaq).

Consequently, if a Shi'i husband divorces his Sunni wife according to the principles of her school and not his, the divorce is invalid, and if a Sunni divorces his Shi'i wife according to the principles of his own school, the divorce is valid.

Revocable and Irrevocable Divorce

A divorce is either revocable or irrevocable. The schools concur that a revocable divorce is one in which the husband is empowered to revoke the divorce during the 'iddah, irrespective of the divorcee's consent. One of the conditions of a revocable divorce is that the marriage should have been consummated, because a wife divorced before consummation does not have to observe the 'iddah in accordance with verse 49 of Surat al-Ahzab:

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمْ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا

O believers! When you marry the believing women and then divorce them before you touch them, you are not entitled to reckon for them an 'iddah....

Among the other conditions of a revocable divorce are that the divorce should not have been given on the payment of a consideration and that it should not be one which completes three divorces.

The divorcee in a revocable divorce enjoys the rights of a wife, and the divorcer has all the rights of a husband. Therefore, both will inherit from each other in the event of death of one of them during the 'iddah. The deferred mahr payable on the occurrence of any of the two events, death or divorce, will become payable only after the expiry of the 'iddah if the husband does not revoke the divorce during that period. On the whole, a revocable divorce does not give rise to a new situation except its being accountable for ascertaining whether the number of divorces has reached three.

In an irrevocable divorce, the divorcer may not return to the divorced wife, who belongs to one of the following categories:

1. A wife divorced before consummation, by consensus of all the schools.

2. A wife who has been divorced thrice. There is consensus here as well.

3. A divorcee through khul'. Some legists consider this form of divorce void and say that it is not a divorce at all.

4. A menopausal divorcee, in the Imami school, which observes: She has no 'iddah and the rules applicable to a divorcee before consummation apply to her as well. According to it, in verse 4 of Surat al-Talaq:

وَاللاَّئِي يَئِسْنَ مِنْ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنْ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلاَثَةُ أَشْهُرٍ وَاللاَّئِي لَمْ يَحِضْنَ

If you are in doubt concerning those of your wives who have ceased menstruating, know that their waiting period is three months, and (the same is the waiting period of) those who have not yet menstruated ...

the phrase· اللائي يئسن does not imply those women who are known to have reached menopause but those whose menses have stopped and it is not known whether the reason is disease or age; consequently, their 'iddah is three months. There is no question of doubt regarding those whose menopause is certain. The doubt arises in cases of uncertainty, as indicated by the words: إِنْ ارْتَبْتُمْ (if you are in doubt) of the verse, because it is not the Lawgiver's wont when explaining a law to say: "If you are in doubt regarding the law regarding something, the law is that....". This confirms that the doubt mentioned in the verse relates to the fact of menopause, in which case she is to observe an 'iddah of three months. As to the phrase: وَاللاَّئِي لَمْ يَحِضْنَ it refers to women who despite attaining the age of menses do not have them due to some congenital or contingent factor. Many traditions have been narrated from the Imams of the Ahl al-Bayt (A) with this interpretation of this verse.

5. The Hanafis say: Valid seclusion (khalwah) with the wife, even without consummation, requires the observance of 'iddah. But the divorcer is not entitled to return to her during the 'iddah, because here the divorce is irrevocable.

The Hanbalis state: Seclusion is similar to consummation in all respects so far as the necessity of 'iddah and the right of revocation is concerned. As mentioned earlier, seclusion has no effect according to the Imamiyyah and the Shafi'i schools.

The Hanafis observe: If a husband says to his wife: "You are divorced irrevocably" or "divorced firmly," "(with a divorce as firm) as a mountain," and such similar strong words, the divorce will be irrevocable and the divorcer will not be entitled to return during the 'iddah. Similarly, a divorce pronounced by using words which connote a break of relationship (such as, "She is separated," "cut off," "disassociated").

The Triple Divorcee

The schools concur that a husband who divorces his wife thrice cannot remarry her unless she marries another person through a valid nikah, and this second person consummates the marriage, in accordance with verse 230 of Surat al-Baqarah:

فَإِنْ طَلَّقَهَا فَلاَ تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنكِحَ زَوْجاً غَيْرَهُ

So if he divorces her, she shall not be lawful to him afterwards, until she marries another husband (2:230)

The Imami and the Maliki schools consider it necessary that the person who marries her (muhallil) be an adult. The Hanafi, the Shafi'i and the Hanbali schools consider his capacity for intercourse as sufficient, even if he is not an adult. The Imami and the Hanbali schools state: If in a marriage contract tahlil (causing the woman to become permissible for her former husband to remarry) is included as a condition (such as when the second husband says, "I am marrying you to make you halal for your divorcer), the condition is void and the contract valid. But the Hanafis add: If the woman fears that the muhallil may not divorce her after the tahlil, it is permissible for her to say, "I marry you on the condition that the power to divorce be in my hands," and for the muhallil to say, '"I accept this condition." Then the contract will be valid and she will be entitled to divorce herself whenever she desires. But if the muhallil says to her: '"I marry you on the condition that your affair (of divorce) be in your own hands," the contract is valid and the condition void.

The Maliki, the Shafi'i and the Hanbali schools state: The contract is void ab initio if tahlil is included as a condition. The Maliki and Hanbali schools further add: Even if tahlil is intended and not expressed the contract is void.

The Malikis and some Imami legists consider it necessary that the second husband (muhallil) have intercourse with her in a lawful manner (such as when she is not menstruating or having nifas, and while both are not fasting a Ramadan fast). But most Imami legists give no credence to this condition and regard mere intercourse, even if unlawful, to be sufficient for tahlil.

Whatever be the case, when a divorcee marries another husband and is separated from him, either due to his death or by divorce, and completes the 'iddah, it becomes permissible for the first husband to contract a new marriage with her. Then, if he again divorces her thrice, she will become haram for him until she marries another. This is how she will become haram for him after every third divorce, and will again become halal by marrying a muhallil, even if she is divorced a hundred times.

But the Imamiyyah state: If a wife is divorced nine times in the talaq al-'iddah form, and is married twice (i.e. following tahlil after every third divorce), she will become permanently haram. The meaning of talaq al-'iddah, according to the Imamiyyah, is a divorce in which the husband after divorcing returns to her during the 'iddah and has intercourse with her, and then divorces her again in another period of purity, then returns to her and has intercourse, then divorces her for a third time and remarries her, after a muhallil does the tahlil, by concluding a fresh contract, and divorces her thrice in the same manner, with a muhallil doing the second tahlil, and remarries her again. Now if he divorces her thrice again, the ninth talaq al-'iddah completed, she will become haram for him permanently. But if the divorce is not a talaq al-'iddah (such as when he divorces her, then returns to her and then divorces her again before having intercourse), she will not become haram perpetually, and will become halal through a muhallil, even if the number of divorces is countless.

Doubt in the Number of Divorces

The schools (except the Maliki) concur that he who has doubt regarding the number of divorces (whether a single divorce has taken place or more) will base his count on the lower number. The Malikis observe: The aspect of divorce shall preponderate and the count will be based on the higher number.

Divorcee's Claim of Tahlil

The Imami, the Shafi'i and the Hanafi schools state: If the husband divorces his wife thrice, and he or she knows nothing about the other for some time and thereafter she claims having married a second husband and separated from him and having completed the 'iddah, her word will be accepted without an oath if this period is sufficient for her undergoing all this, and her first husband is entitled to marry her if he is satisfied regarding her veracity, and it is not necessary for him to inquire further. (al-Jawahir, Ibn 'Abidin, and Maqsad al-nabih)

Notes

1. The Hanafi and the Maliki schools are explicit regarding the validity of a divorce by an intoxicated person. Two opinions have been narrated from al-Shafi’i and Ahmad, the preponderant among them is that the divorce does take place.

2. Al-Ustadh al-Khafif writes in his book Farq al-zawaj (p.57): “The Imamiyah accept the validity of a divorce by a safih, if effected by the permission of his guardian, as expressly mentioned in Sharh Shara’i’ al-Islam.” There is no mention of this statement in the said book. Rather, such a statement is not present in any Imami book, and that which is mentioned in Sharh Shara’i’ al-Islam is that the safih husband is entitled to divorce without the permission of his guardian. See al-Jawahir, vol.4, “Bab al-hijr”.

3. Nifas means the vaginal discharge of blood at the time of birth or thereafter, for a maximum period of: ten days according to the Imamiyah, forty days according to the Hanbalis and the Hanafis, and sixty days according to the Shafi’is and Malikis.

4. The author of Ta’sis al-nazar (1st ed. p.49) has narrated from Imam Malik that he has observed: If a person resolves to divorce his wife, the divorce takes place by mere resolution, even if he does not pronounce it.

5. The use of the expression ‘infallible’ (ma’sum) here belongs to the author of al-Jawahir.

6. In Ta’sis al-nazar of Abu Zayd al-Dabusi al-Hanafi it is stated: “According to Abu Hanifah the presumption ab initio is that non-Muslims living under the protection of an Islamic state will be left to follow their beliefs and precepts. But his two disciples, Abu Yusuf and Muhammad, say that they will not be left to themselves.”