Surah al-Baqarah (The Cow) 2 : 229

Overview (Verses 229 - 230)
 
Fair and Balanced Divorce Systems
 
The next set of rules relates to the number of times divorce can take place and the wife’s full entitlement to her dowry, except in the case when a wife buys herself out of a marriage she feels she could not sustain for fear that she might commit an act of disobedience to God. Under such circumstances, a wife may forgo part of her dowry or make an agreed settlement in order to release herself when her husband is unwilling to divorce her.
 
The sūrah says: “Divorce may be [revoked] twice, whereupon a woman may either be retained in fairness or released with kindness. It is unlawful for you to take back from women anything of what you have given them [as dowry], unless they both [husband and wife] fear that they may not be able to keep within the bounds set by God. If you have cause to fear that they would not be able to keep within the bounds set by God, it shall be no offence for either of them if she gives up whatever she may in order to free herself These are the bounds set by God; do not, then, transgress them. Those who transgress the bounds set by God are wrongdoers indeed.” (Verse 229)
 
Couples are allowed to divorce and revoke their divorce twice before the condition stated in the next verse applies. Under this provision, remarriage with a three-times divorced wife cannot take place except in the case when she legally marries another husband who may subsequently, and in the normal course of events, divorce her. Should this take place normally, without it being pre-arranged, the woman and her first husband may be re-married, if they believe that by now they are able to make their marriage successful.
 
The background to this ruling is that in pre-Islamic Arabia no limitation was set on the number of times divorce could take place. Men would marry, divorce and remarry the same woman, virtually at will. When a man from Madinah had fallen out with his wife and grew to dislike her intensely, he vowed that he would neither keep her nor let her go; he would divorce her and then take her back just before her waiting period had elapsed. The woman complained to the Prophet Muĥammad, to whom this verse was then revealed.
 
This is another example of the prudent and propitious method the Qur’ān had adopted in providing the Muslims with the rulings and directions they needed to organize their community. This approach continued throughout the period of the revelation of the Qur’ān until all the main provisions of the Islamic code were fully laid down, enabling succeeding generations of Muslims to live by their guidance and principles.
 
Limiting the number of times divorce can be revoked prevents its abuse. The first time a man divorces his wife he would be entitled, without the need for any formalities, to take her back anytime during her waiting period. If this period elapses, the divorce would become final and a fresh marriage contract, with a fresh dowry, would have to be entered into. In both cases, the husband is allowed one additional divorce if matters again go wrong. The third time a divorce takes place, it is final and irrevocable. The only way a three-times divorced couple could resume a married relationship would be if the ex-wife married a different man who subsequently dies or, in the normal course of events, divorces her and she completes her waiting period without the marriage being re-instated.
 
The first divorce, as we said earlier, would put the whole relationship to the test, the second one would provide a second and final chance to reassess the situation before judging whether it is irreconcilable. If the marriage could be saved, well and good. A third divorce would, however, be evidence of a total breakdown of the relationship, and that the marriage was unworkable.
 
In any case, divorce should only be a last resort option to remedy a situation which could not otherwise be saved. Once divorce takes place twice, it would only be fair to either maintain the relationship with honour and dignity and resume as happy a life as possible, or to amicably bring it to an end without pain or acrimony. This would be the third divorce, after which both man and woman are free to start afresh with a different spouse. This is an extremely realistic approach, providing practical solutions. It neither denies the problem nor condemns it, nor attempts to re-create human nature to suit it, nor, indeed, does it ignore the problem altogether or try to sweep it under the carpet.
 
If the marriage proved unsustainable, the woman would be entitled to everything that had come to be hers during the marriage including the dowry. She would not have to reimburse the man for any upkeep or other costs he had incurred, unless it was her decision to end the marriage, for reasons of her own which had convinced her that life with that particular husband was no longer tolerable or would drive her to transgress the limits of decency, with herself or in her relationship with her husband. In this case the woman may ask for a divorce but would be obliged to compensate the man for the break-up of his marriage home, through no fault of his own, by giving him back the dowry he had paid her, or reimbursing him for all or some of the costs he had incurred while keeping her and enabling her to preserve her honour and dignity.
 
These realistic and scrupulous measures take account of all possible situations and feelings, ensuring that a wife will never have to accept an unhappy marriage under duress, and that a husband does not forgo any of his rights if his marriage breaks up through no fault of his own.
 
The merits of this approach may be illustrated by an event during the Prophet Muĥammad’s lifetime. Mālik reports in al-Muwaţţa’ that one morning, at dawn, the Prophet found Ĥabībah bint Sahl, wife of Thābit ibn Qays, waiting at his door. He asked her what she wanted and she replied: “I can no longer live with Thābit ibn Qays.”
 
The Prophet sent for her husband and told him what Ĥabībah had said. Ĥabībah then turned to the Prophet and said: “I still have all that he had given me,” upon which the Prophet said to Thābit: “Take it back”; which he did and Ĥabībah went back to her people.
 
The version related by al-Bukhārī mentions that Ĥabībah said to the Prophet: “I take nothing against Thābit’s religious or moral behaviour, but as a Muslim I cannot live with him and be ungrateful.” The Prophet asked her: “Would you give him back his orchard?” (The orchard being the dowry Thābit had given her.) She agreed and the Prophet said to Thābit: “Take back the orchard and divorce her once.”
 
Another version related by al-Ţabarī mentions that Abū Jarīr had asked `Ikrimah how the khul` had been instituted. He said that Ibn `Abbās used to say that the first case of khula` was when `Abdullāh ibn Ubayy’s sister went to the Prophet and said: “Nothing could ever make me put my head next to his! I lifted my curtain and saw him with a group of men. He was the darkest, shortest and the least handsome of them all.” Her husband then said: “But I have given her the best of what I have: my orchard. If she gives it back to me, I shall let her go.” She agreed and offered to give him more, if he so wished. The Prophet annulled their marriage.
 
These incidents show how the Prophet took into consideration the psychological and emotional state of the wife, and settled the matter fairly and forthrightly, in full appreciation of human nature and consideration of family relations and personal feelings.
 
To put these rulings within their proper religious context, the verse ends with a powerful reminder, saying: “These are the bounds set by God; do not, then, transgress them. Those who transgress the bounds set by God are wrongdoers indeed.” (Verse 229)
 
We pause here to reflect on a subtle difference in the use of two Qur’ānic expressions denoting a similar meaning in two different contexts.
 
Verse 187 of this sūrah may be given in translation: “It is lawful for you to be intimate with your wives during the night preceding the fast. They are as a garment for you, as you are for them. God is aware that you have been deceiving yourselves in this respect, and He has turned to you in His mercy and pardoned you. So, you may now lie with them and seek what God has ordained for you. Eat and drink until you can see the white streak of dawn against the blackness of the night. Then resume the fast till nightfall. Do not lie with your wives when you are in retreat in the mosques. These are the bounds set by God, so do not come near there. Thus God makes clear His revelations to people, that they may remain God fearing. “
 
We note here that the verse closes with the words: “These are the bounds set by God, so do not come near them”, while the present verse uses the expression: “These are the bounds set by God; do not, then, transgress them.” While one warns against drawing near to the act of wrongdoing itself, the other warns against transgression.
 
In the first instance, the warning was against being attracted or tempted by certain desires and it was appropriate to talk of resisting those temptations and keeping away from them. In the second instance, the subject matter involves conflict and acrimonious disputes, and the danger here is of either party overreaching or exceeding their limits, so it is more pertinent to advise restraint and., steering away from transgression.
 
This is a good example of the remarkably precise diction of the Qur’ān.
 
The sūrah continues, giving more rulings relating to divorce: “Should he divorce her [a third time], she shall not thereafter be lawful for him to remarry until she has wedded another husband. If the latter’ then divorces her it shall be no offence for either of the two if they return to one another, if they feel that they will be able to keep within the bounds set by God Such are the bounds set by God He makes them plain for people who have knowledge.” (Verse 230)
 
If a third divorce takes place in a marriage, it could only be a sign of serious and irreversible deterioration within that relationship. The best solution in this case would be permanent separation, and for each partner to seek happiness with someone else. However, if any or all of the three divorces were pronounced by the man lightly, or out of spite, or in the heat of the moment, here again, a drastic measure must be taken to prevent men abusing their divorce privilege. Such s an unhappy relationship should not be perpetuated, since the man has no appreciation for it, nor is keen to protect it.
 
The question may here be put, therefore, as to why the woman should have to suffer the consequences of a rash utterance by her husband, thereby jeopardizing her life, peace and security? The answer is that the ruling has to be realistic. Let us look at this more closely and ask: What would be the alternative solution? Should the man be forced to live with a woman in a marriage he has little or no respect for? Should he be told that his repeated divorcing of his wife is not enforceable and that his wife is his responsibility, whether he likes it or not? This, in fact, would be far more humiliating for the wife, and degrading to the marriage itself, neither of which Islam would condone. A more proper censure of the man’s behaviour would be to deprive him of the right to his wife and make him in the first and second divorces liable to pay a new dowry, under a new marriage contract, after he had failed to take her back before the passing of the waiting period. The third time a man resorts to divorce, the separation shall be deemed final and the woman has to marry someone else and be legally divorced by him before being able to return to her former husband. The first husband would stand to forfeit the dowry he had paid as well as all the costs he had incurred during the marriage. He will also, in any case, be liable for alimony payments. This is a practical and workable manner in which to approach this delicate and emotionally-charged situation.
 
If, after the third divorce, the woman marries someone else and this marriage is then terminated, in the normal course of events, by divorce or by the husband’s death, she may be reunited with the first husband as long as “they feel that they will be able to keep within the bounds set by God.” (Verse 230) This indicates very clearly that the matter is not left to the couple to decide as they please, but it is regulated by terms and conditions set out by God for a proper social order that conforms to His will. These terms and conditions are fully expounded in the Qur’ān for all who are capable of learning and understanding.