What is the wisdom behind the prescription of divorce?
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The questioner : What is the wisdom, O honorable Shaykh, behind the prescription of divorce?
The Shaykh : The wisdom behind the prescription of divorce is not singular; rather, it is multiple. This is because divorce has causes, one of which is that a woman may dislike her husband. If a woman dislikes her husband, it is recommended for him, if he sees that her remaining with him will cause her distress, sorrow, and hardship, that the best course is to divorce her in pursuit of her comfort. This is one of the wisdoms: to release this wife who dislikes staying with him, indeed dislikes staying with him, and to save her from hardship.
Another of the wisdoms is that the man himself, the husband, may dislike the woman and be unable to bear living with her, so divorce was prescribed for him as a means of escaping this harm. Another is that something may become apparent in the woman that he cannot bear, such as morals that are not praiseworthy, so he does not wish her to remain with him. There are other rulings that do not come to mind now, but I would like to point out an important issue: it is not permissible for a man to divorce his wife unless she is pregnant, or in a state of purity in which he has not had intercourse with her, or in a state of purity from menstruation in which he has not had intercourse with her. If she is pregnant, then her divorce is a valid divorce in accordance with the Sunnah, based on the saying of Allah the Exalted in Surat al-Talaq:[At-Talaq 65:4]. What is widespread among the common people, or some of the common people, that the divorce of a pregnant woman does not take effect has no basis in the Book, nor in the Sunnah, nor among the scholars of knowledge. In fact, divorce does take effect on a pregnant woman.
As for the non-pregnant woman, he must not divorce her during menstruation, nor in a state of purity from menstruation in which he has had intercourse with her, based on the saying of Allah the Exalted:[At-Talaq 65:1]. Ibn 'Umar (may Allah be pleased with him and his father) divorced his wife while she was menstruating, and this was reported to the Prophet (peace and blessings be upon him and his family), who was displeased with it. When 'Umar reported to him about his son's divorce, he said: Jami` at-Tirmidhi 1176Sahih (Darussalam).
Therefore, it is incumbent upon the one asked to write a divorce for a woman to inquire in detail from the husband. If she is in a state in which her divorce is not permissible, he should refrain and not write the divorce, and he should guide the husband to the state in which divorce is permissible so that he may be on clear knowledge.
Someone might say: The mufti is not obligated to inquire about the presence of a barrier. For example, if a questioner asked you and said, "A person died leaving behind a father and a mother," you are not obligated to ask whether the father is a slave or free, whether he is a killer or not, or whether he is a disbeliever or not. We say: The matter is such that the mufti is not obligated to ask about the presence of a barrier, because the original state is its absence. However, because many people today are ignorant of the rulings of divorce, it became appropriate to ask the one who wants to divorce whether there is a barrier in his wife that prevents the divorce from taking effect or not.
Here is a second issue also in the matter of divorce: if the divorced woman is of the type who can be taken back (raj'iyyah), meaning her ex-husband has the right to take her back into his marriage bond without a new contract, then it is obligatory for her to remain in her husband's house until the waiting period ('iddah) ends, based on the saying of Allah the Exalted:[At-Talaq 65:1]. So the wife whom her husband has the right to take back without a new contract remains in the husband's house until the waiting period ends. In this state, it is permissible for her to adorn herself for him, to uncover her face for him, to converse with him, and to be alone with him, because she is still his wife. However, he must not have intercourse with her. Rather, Allah the Mighty and Majestic prescribed for her to remain in the house for the wisdom that Allah the Exalted mentioned at the end of the verse, which is His saying: [At-Talaq 65:1]. Perhaps Allah will place love and affection in the heart of the husband, if he is the one who disliked the wife, or in her heart, if she is the one who disliked him. So she remains in her husband's house and does not leave it. It is not permissible for her to leave, nor is it permissible for her husband to expel her from the house until the waiting period ends. Yes.
The questioner : May Allah bless you, O honorable Shaykh. This listener is Egyptian and works in the Kingdom. He says:
The Shaykh : The wisdom behind the prescription of divorce is not singular; rather, it is multiple. This is because divorce has causes, one of which is that a woman may dislike her husband. If a woman dislikes her husband, it is recommended for him, if he sees that her remaining with him will cause her distress, sorrow, and hardship, that the best course is to divorce her in pursuit of her comfort. This is one of the wisdoms: to release this wife who dislikes staying with him, indeed dislikes staying with him, and to save her from hardship.
Another of the wisdoms is that the man himself, the husband, may dislike the woman and be unable to bear living with her, so divorce was prescribed for him as a means of escaping this harm. Another is that something may become apparent in the woman that he cannot bear, such as morals that are not praiseworthy, so he does not wish her to remain with him. There are other rulings that do not come to mind now, but I would like to point out an important issue: it is not permissible for a man to divorce his wife unless she is pregnant, or in a state of purity in which he has not had intercourse with her, or in a state of purity from menstruation in which he has not had intercourse with her. If she is pregnant, then her divorce is a valid divorce in accordance with the Sunnah, based on the saying of Allah the Exalted in Surat al-Talaq:
And for those who are pregnant, their term is until they give birth
وَأُوْلاتُ الأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّAs for the non-pregnant woman, he must not divorce her during menstruation, nor in a state of purity from menstruation in which he has had intercourse with her, based on the saying of Allah the Exalted:
O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah, your Lord.
يا أيها النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ وَاتَّقُوا اللَّهَ رَبَّكُمْTell him to take her back, then let him divorce her while she is pure or pregnant.
مره فليُراجعها ثم ليُطلقها طاهراً أو حاملاًTherefore, it is incumbent upon the one asked to write a divorce for a woman to inquire in detail from the husband. If she is in a state in which her divorce is not permissible, he should refrain and not write the divorce, and he should guide the husband to the state in which divorce is permissible so that he may be on clear knowledge.
Someone might say: The mufti is not obligated to inquire about the presence of a barrier. For example, if a questioner asked you and said, "A person died leaving behind a father and a mother," you are not obligated to ask whether the father is a slave or free, whether he is a killer or not, or whether he is a disbeliever or not. We say: The matter is such that the mufti is not obligated to ask about the presence of a barrier, because the original state is its absence. However, because many people today are ignorant of the rulings of divorce, it became appropriate to ask the one who wants to divorce whether there is a barrier in his wife that prevents the divorce from taking effect or not.
Here is a second issue also in the matter of divorce: if the divorced woman is of the type who can be taken back (raj'iyyah), meaning her ex-husband has the right to take her back into his marriage bond without a new contract, then it is obligatory for her to remain in her husband's house until the waiting period ('iddah) ends, based on the saying of Allah the Exalted:
Do not turn them out of their [husbands'] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah. And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a [different] matter.
لا تُخْرِجُوهُنَّ مِنْ بُيُوتِهِنَّ وَلا يَخْرُجْنَ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ وَتِلْكَ حُدُودُ اللَّهِ وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ لا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَلِكَ أَمْرًاYou know not; perhaps Allah will bring about after that a [different] matter.
لا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَلِكَ أَمْرًاThe questioner : May Allah bless you, O honorable Shaykh. This listener is Egyptian and works in the Kingdom. He says: