Halala and Remarriage In Islamic Law

HALALA AND REMARRIAGE <!--[if gte mso 10]> HALALA AND REMARRIAGE In ISLAMIC LAW By Hadia Awan, Principal, Punjab Law College, Lahore Constitution of the Islamic Republic of Pakistan under Articles 2A, 3, 4, 9 and 14 ensures rule of law and protection of people of Pakistan against all sorts of exploitations in the context of injunctions of Islam and Sunnah of the Holy Prophet (p.b.u.h.) All laws are to be brought in conformity with these injunctions1 is another promise envisaged in the constitution. Under the principles of policy protection of family is granted2. The guiding principle of eradication of social evils and promotion of social justice3 in making policies and laws is incorporated. 1. Article 227 of the Constitution of Pakistan 1973 2. Article 35 3. Article 37 On the other hand laws that are made to materialize the aforesaid promises are full of provisions to supplement the constitutional pledge but when it comes to practice there are some heartbreaking breaches occurring regularly around us. The most abhorring thing about these doings is that these are done in the name of religion. One of such breaches is the intervening marriage commonly known as halala. An intervening marriage or halala as is generally known is a kind of temporary marriage or more appropriately, a device practiced in our society, to legitimize subsequent marriage between the same divorced Muslim couple. Accordingly, where a husband divorces his wife and then realizes that he committed a folly and wants to bring her back home; his divorced wife is required to go through the ordeal of a temporary, planned marriage with another man (Muhallil), and unless this planned marriage is consummated between her and Muhallil, her previous husband cannot take her home for remarriage. Among others, what is ridiculous and agonizing about this marriage, which I would prefer to call an `arrangement', the Muhallil is paid an agreed sum of money to divorce the temporary wife. In this way a Muslim woman is legitimized for her previous husband through consummation by a third man. It is generally propagated that this shameful act strikes at the ego of an imprudent husband who divorces his wife without any just and reasonable cause; and that he should think many times before divorcing his wife because once he divorces her, then he has to accept his own wife through another man. How could Islam, a religion of piety, decency and sublime morality, particularly in family relationships, allow such shameful device? How is it possible that an act of remarriage between same couple if forbidden directly could be designed to be done indirectly? Another important aspect is that the poor woman about whom the plan is crafted, why should she be made to suffer this humiliation for a fault not of her making; and this aspect will further raise questions about her own legal personality; her rights, freedoms and liberties as a human being? Apparently this device is a deal between two men i.e. previous husband and the Muhallil, which is forced upon her. What about her own free will and consent for this agreement? In some reported cases women preferred to live with the ephemeral husband instead of the previous one (in all probability due to shame)4 and where Muhallil refuses to return the woman, what happens then?5 4. In a reported case, a man in order to remarry his divorced wife managed her Halala with a cleric. Marriage took place but after the marriage the wife refused to go back to the previous husband and preferred to live with the cleric. Such cases are seldom highlighted in Press or brought to courts; nonetheless authentic reports of such incidents do pilferage in families. In yet another similar incident at Quetta a socially well placed lady was divorced by her husband after many years of her marriage. Subsequently realizing his folly, he arranged her Halala with a cleric but after consummation of this marriage, the lady opted to live with the second husband, in all probability, out of shame and humiliation. 5. It is reported that a few years ago, an army officer and his divorced wife with the help of a female lawyer arranged `Halala' as there was no other way out to marry again. They paid Rs 5000 to the muhallil; but when the muhallil was asked for the divorce he refused. The previous husband had to indulge in high handedness to get notice of divorce from the muhallil. After a coercive divorce from him they married once again to live happily thereafter. These reports are merely reflective of numerous unpleasant incidents of the kind which do occur in our society but are seldom highlighted. They are not even talked of notwithstanding serious questions about the validity of such `arrangements' and their immense negative impact on family and society; upon individual rights, especially of women. The concerned people, the Ulema, Lawyers and judges seem to be indifferent to the upshots, complexities and consequences that arise from such `arrangements'. Lack of awareness of common man about this sensitive issue is in different ways eroding our social fabric. In non-Muslim and secular world this concept is looked at with surprise and disbelief; and discussed with disgust and humiliation6. 6. James M. Arlandson: A strange divorce and remarriage law in quran, ."strange marriage law for the divorced couple in this situation after they worked out their differences. It says that a divorced couple may remarry each other if and only if the wife first marries another man ..." A survey was held at the Punjab Law College to assess the level of awareness about this intervening marriage. The purpose of the survey was to know about the perception of law students regarding re-marriage between the divorced couples especially with reference to Halala. Fifty students from the senior most class were given questionnaires. The results were alarming and illustrative of the dismal situation. To our astonishment 95% of the students (remaining 5% were not sure) believed that Halala is sine qua non to legitimize the subsequent marriage between the divorced spouses. It was commonly perceived that this extreme measure was a reprimand to the wife or husband lest they should act in haste or irrationally in dissolving the marriage; a crude reminder to them of the "sanctity" of marriage contract. The reason to write this article is to find out which Islamic injunction is twisted in such a way that it has become a source of humiliation for Muslims throughout the world? The first part of this article answers the question, why is there a misconception about intervening marriage? In the second part we discuss about the status and legal consequences of intervening marriage if commenced with intention to legitimize marriage between divorced couple. And finally in third part we would like to gather from the primary and secondary sources of Islamic law that under what circumstances and how can a couple remarry after complete divorce? The devised intervening marriage is known as Halala as if the woman is being made `Halal' for the former husband. The misconception about Halala comes from the misinterpretation of the following verse in the Holy Qur'an: "And if he divorces her (after the first two revocations) then she is not lawful unto him thereafter until she marries another husband then if the other husband divorces her, it is not sin for both of them that they re-unite, provided they feel that they can keep the limits ordained by Allah. These are the limits of Allah, which he makes plain for people..." (2:230) Let's take things in the order as are given in the Quranic text. First thing mentioned here is the issue of two effective divorces. The second is the intervening marriage and finally the question of remarriage. PART I WHAT IS MEANT BY EFFECTIVE DIVORCE? Divorce is said to be effective when it is irrevocably complete between the spouses. By `irrevocably complete' means that now man cannot reconcile with his wife within that wedlock which, he broke himself. There is no relationship of man and wife between them. After an effective divorce there are two courses open for the divorced couple; first, they are free to contract marriage with anybody else of their choice; secondly, they may opt for remarriage if effective divorce between them is not for the third time. If this divorce is for the third time then spouses are prohibited for each other. In Shariah there are various modes of divorce and the legal consequences vary accordingly. The four modes of divorce in Islamic law are: * Dissolution by husband (talaq) * Dissolution by mutual consent of the parties (mubara'at) * Dissolution at demand of wife (khula) * Dissolution on some valid ground by authority/court (judicial divorce) The effectiveness of divorce is determined in all these kinds as follows: In case where divorce is through husband i.e. talaq, there are three modes of pronouncing it and effectiveness is evaluated according to the mode used by him. The modes are, Talaq-e ahsan7 Talaq-e-hasan Talaq-e-bidda/slasa Scholars agree and trace authority from the Holy Prophet (p.b.u.h.) that approved way of talaq is through Ahsan mode8. 7. Talaq-e-ahsan: this is a mode divorce in which the husband pronounces divorce once and abstains from the wife during the period of idda without any express or implied reconciliation with her. The divorce is effective at the lapse of idda. Talaq-e-hasan: the mode of divorcing in which husband pronounces divorce once each in the three consecutive tohurs (the period of purity) and refrains from reconciliation either expressly or impliedly. After the lapse of idda the divorce is irrevocably final. Talq-e-bidda or Mugalliza: this is a mode of talaq pronounced thrice at once and it becomes irrevocably effective at once without any waiting period. 8. Imam Muhammad quotes from Ibrahim Nakhee, "the companions of Prophet liked this that a man gave one divorce to his wife and stayed away until three cycles lapsed". Sahib Fateh-ul-Taqdeer Vol.2 P.246 Imam Muhammad's own words about the Holy prophet (s.a.w.) are "His approved way regarding talaq was that one should not exceed one until the time period lapses". Imam Malik says, "Two divorces are Bidda talaq and is Mubah only if given once. Because firstly Talaq in itself in not a liked one action and is allowed only to meet a necessity; which is met with one pronouncement". The principle of Islamic Jurisprudence is that the thing which is not forbidden (Mubah) is only permitted to that extent where necessity is met e.g. eating dead animal is permitted only to that extent where that is to save human life. In talaq-e-hasan three pronouncements are repeated in three tohurs and no re-conciliation is effected during idda. In talaq-e-bidda three pronouncements are made at a time and talaq becomes effective immediately. There is difference of opinion amongst scholars; few say that upon third pronouncement three irrevocable talaqs are effective but others say that pronouncing three talaqs constitutes only one effective talaq. This mode of talaq is condemned and is called talaq-e-mughalliza also. Shah Wali Ullah says, "To pronounce three divorces in single Tohur is highly unapproved".9 During period of Prophet of Allah (p.b.u.h.) 1st Caliph and even the initial two years of 2nd Caliph, three divorces (Talaq-e-Salasa) were considered one divorce. But when 2nd Caliph saw that people were not careful in pronouncing divorce through this mode, rather they acted in haste and impulsively, he directed to consider such single pronouncement as three.10 Allama Shibli Noumani states11 that to consider Talaq-e-Salasa as three was enforced in the period of Umer-e-Farooq (R.A.). Among Hanafis some e.g. Qehstani & Tehtavi agree that initially three divorces were considered as one.12-13. 9. Hujat-ul-Baliqha Vol.2 P.140 10. Muslim, Abu Dawood, Nasaee, Hakim, Behqui 11. Al Farpoq 12. Tahtari Dar Mukhtar Vol.2 P.105 13. Qehstani's Jamai-ul-Ramooz P.321 Allama Fakhr-ud-Din Razi says that many of the scholars agree that those who give two or three divorces in single spell, only one is effective and this is closer to analogy because prohibiting something reflects that this act may give rise to some bad and ugly thing. Happening of (three divorces) may give the ugly thing hence pronouncing three divorces in one spell should be ordered (as one). 14 Allama Ibn-e-Taimia gives reasons to prove that talaq-e-slasa is to be taken as one with the following examples. a. Shariat demands four vows on Lia'n but if one takes four vows in one word, this is considered insufficient by our scholars. They declare that all four vows should be taken separately. Hence it is compulsory that three pronouncements are declared severally. b. Exactly like `Rami Jamar', where seven stones are required to be thrown, if one throws seven stones (Pebbles) in one go it is considered only one. c. When someone takes oath that he would send Darood o Salaam upon the Holy Prophet (p.b.u.h.) one lac times. If he sends darood once and says that this is one lac times his saying of darood o salaam with prefix one lac is not enough; he has to say it one lac times severally. Only then he would be considered as the keeper of his oath. Moulana Sheikh Muhammad Thanvi who is teacher of Maulana Ashraf Ali Thanvi writes, "The meaning of Ayat15 is that Divorces should be pronounced one after the other. Hence talaq which is given in several courses (Tohur) is valid, not the one pronounced thrice in one sitting ".16 14. Tafseer Kabir Vol.2 P.248 15. Al-Quran 2:229 16. Hashiya Nasayee Vol.2 P.29 Allama Ainee writes in Umdat-ul-Qari, "Taoos Ibn-Ishaq, Hijaj Bin Artat Nakhee, Ibn-e-Muqatil and Zahria agree that if husband pronounces three divorces in a spell to his wife, one would happen. These people have deducted from the tradition narrated by Abu-Sehba in Muslim". Brailve and Deoband agree that divorce (thrice) in one sitting amounts to one divorce. Summary of this discussion regarding effectiveness of divorce is that: In ahsan mode talaq is pronounced once and then man waits for three tuhrs of wife; if they do not reconcile and time of idda lapses, talaq becomes effective. In hasan mode of talaq divorce is pronounced once, in each tohur of wife. Upon third pronouncement, followed by no reconciliation, talaq is effective. In talaq-e-bidda all three pronouncements are given in a single spell and after third calling, talaq is effective. There is a divergence of opinion among scholars whether three pronouncements constitute one irrevocable divorce or three independent irrevocable divorces. PART II INTERVENING MARRIAGE AND ITS CONSEQUENCES: Coming to the second part of the injunction, which is regarding intervening marriage it is a sheer misunderstanding that to contract re-marriage woman needs to go through (the rituals of) an "intervening" marriage" or "Halala". The verse17 is interpreted as if the intervening marriage is required by design for remarriage. The interpretation is clearly not correct. There is no concept and even no need of Halala in Islam as it is understood in our society. Islamic law like any other law18 does not allow the designing of things in a manner to defeat the purpose of any principle of Islam. As far as re-marriage is concerned, it is clear in the light of the aforesaid verse of Holy Qur'an and Sayings of holy Prophet (p.b.u.h.) that man can contract re-marriage twice without any intervening marriage but he cannot remarry his former wife whom he has divorced three times because now the woman is prohibited for him. If is provided in Willie: 19 17. Al-Bagara:230 18. S. 17 Contract Act 1872 19. Digest of Mohammedan Law, Baillie Neil B.E. third edition p. 44 `It is not lawful for a man to marry a free woman whom he has repudiated three times' .. Next part of this saying is used by some who do not understand the real spirit of Islamic law. It goes, ."till another husband consummated with her" The reason for misunderstanding is the contingency highlighted in bold letters20; that though she is prohibited for the previous husband as she is no more the subject of legality for him, she may attain legality for her previous husband if she marries another man and the marriage is consummated by the new husband. 20. ...till another husband consummated with her.... It is a general principle of interpretation that provision of law should be taken in good faith and for the application of this provision the pre-requisite of bona fide should be met.21 That means that if divorced thrice, she marries another person with good intention to reap all benefits of a valid marriage22 but by bad luck the subsequent husband dies or divorces her, she attains a legal right to marry any Muslim including her previous husband. The purpose of the verse and the explanation is to facilitate woman by removing prohibition regarding remarriage with previous husband. This is not to be taken as a device to legitimize something which is not legally permissible. The hand of husband are twice soiled with an act which has been declared by the Holy Prophet (p.b.u.h.) the most disliked act amongst the halal (permissible) acts23. There is no justification to facilitate him by allowing him to design a so called intervening marriage at the cost of the lady who has already been victim of two divorces by him. Here are some of the Ahadith which expressly abhor and reject this arrangement, clearly implying that Islam does not recognize halala at all. Quoted in Hedaya by Charles Hamilton: " ..If a man marries a woman whose husband had repudiated her by three divorces, under a condition of rendering her lawful to her former husband, as if he were to declare to her ..'I marry you under a condition of rendering you lawful to your former husband,' or, as if she were to say to him 'I marry with you under the condition of my becoming lawful to my former husband', this is an abominable marriage because the second husband is here termed as Muhallil, or legaliser and the Prophet (p.b.u.h.) has said ... "let the curse of God fall upon Muhallil and the mohallal-e-hoo (the thing rendered legal. It means, on this occasion, a thing rendered legal by some indirect and unapproved expedient)24 ...." 21. Id: pg1 22. Mulla.D.F; Mohammaden Law; "Procreation and legitimization of the children"... 23. The act of divorce 24. Hamilton Charles, Hidaya 2nd Edition, pg 108 The same thing has been asserted with the help of an analogy in these words.... " .The second husband here endeavors to precipitate a thing which the law postpones (for the law postpones her legality to her former husband to the death of the present), and therefore meets a due return in the defeat (sic) of his design (to wit, legalizing the woman to her former husband) ; in the same manner as in the murder of an inheritee; that is to say that if any person slay his inheritee, he is thereby cut off from inheritance, as having attempted to precipitate that which the law has postponed, and thus meet his punishment in the defeat of his design to wit, immediate inheritance25 " 25. Hamilton Charles, Hidaya , 2nd Edition, pg 109 MARRIAGE WITH MUHALLI26 The literal meaning of Muhallil is the person who makes something lawful. In Shariah a person who causes restoration of legality of a woman towards his ex husband is known as Muhallil. 26. Muhallil: he is the man who opts to marry temporarily with ex wife of another muslim in order to make her legal for the ex husband. In the literature of Hadith curse has been cast on the person who designs this malafide27 act to legitimize the illegality. The intervening marriage with Muhallil is not legitimate as this is done to defeat the spirit of law. But if woman solemnizes a valid marriage with any other Muslim for the legitimate objects of marriage28 i.e. the procreation and legitimacy of children, this is acknowledged as legally and morally justifiable. He owes a duty to maintain her and keep her in good conditions of life. Both the parties have same rights and obligations inter se arising out of a valid marriage. 27. ibid 28. ibid It is interesting to note that the purpose of law is to give right of marriage to woman. It gives her a chance to become a useful member of society instead of feeling left out and dejected after two divorces. But this virtue of Islamic law is distorted in a highly shameful manner by ignorant Muslims. As regards second part of aforesaid saying i.e. issue of consummation; those who misinterpret this Hadith impress upon the need of consummation of marriage totally ignoring the fact that sense and rationality of lawful purpose of marriage is the procreation of children, their upbringing in a congenial family environment where parents are amicably living together. It is agreed by most of the Muslim scholars that the purpose of this consummation is not to legitimize her for the previous husband but to give her a fair chance to live with another person and lead a happily married life. The diction used in Hadith, ".... The tasting of sweetness of intercourse...."29 ....shows that consummation is not taken merely as a sensual act rather a means to foster a relationship based on love and affection. The purpose of a number of traditions where the Holy Prophet (p.b.u.h.) did not allow the woman to remarry her previous husband" without first being consummated by the subsequent husband30 is to protect the sanctity of the institution of marriage and not to make it a means to make inroads in the limits which Allah has laid down.31 This arrangement also offends some well recognized principles of Contract Law. 1. that agreement done against public policy is void32. 2. that when an agreement is done which may not appear to be an illegal in itself but its object is to defeat any provision of any other law, the agreement is said to be fraudulent and is voidable at the option of aggrieved party33 3. The conditional contract, wherein condition is impossible is void34 29. Malik's Mawatta, book 28 number 28.7.17 &18 30. Yahya related to me from Malik from al-Miswar ibn Riffa al-Quradhi from Az-Zubair ibn Abd ar Rahman ibn Az Zubair that Riffa ibn Simwal divrced his wife, Tamima Bint Wahab, in the time of the messenger of Allah, may Allah bless him and grant him peace, three times. Then she married Abdur Rahman Az-Zubair and turned from her and could not consummate the marriage and so he parted from her. Riffa wanted to marry her again and it was mentioned to the messenger of Allah, may Allah bless him and grant him peace, and he forbade him to marry her. (Malik's Muwatta, book 28 number 28-7-17 31. Yahya narrated to me from Malik from Yahya ibn Said from al Qasim ibn Mohammad that A'isha, the wife of prophet, may Allah bless him and grant him peace, said when asked whether it was permissible for a man to marry again a wife he had divorced irrevocably if she had married another man who divorce her before consummating the marriage, "not until she has tasted the sweetness of intercourse" , supra number 18. 32. S.23 Contract Act 1872 33. S.17 Contract Act 1872 34. S.35 Contract Act 1872 When these principle are applied to remarriage the consequences are that though act of marriage is not illegal but if it is performed to evade the bar which was created by law, then notwithstanding consent of parties, the arrangement is void35 IS HALALA A CHALLENGE TO THE EGO OF MAN? In the survey on the subject, more than 70% students when asked to give justification of halala stated that it was to shake the ego of man at their schools, colleges, in their social interactions and at homes. They further narrated that it is deterrence for man who acts rashly and unreasonably in divorcing his wife and he should be aware that without an intervening marriage and consummation by another man he won't be able to get her back. This reasoning may not be wholly without substance but the way this has been canvassed, is awful. The purpose of creating deterrence for man is only to make him careful about use of abhorrent tool of talaq. Another serious objection to the above argument is that if at all this design (arrangement) receives legal acceptability; the loser is always the woman who is contracting a temporary marriage. Logically the person who takes a decision has to take responsibility of the consequences thereof. Paradoxically she alone bears the brunt of consequences of divorce pronounced by her former husband. Ego of man has nothing to do with the woman whom he has divorced twice and who is prohibited for him now. According to general principles of Islamic jurisprudence woman has a separate legal personality for all purposes and ought to enjoy all her rights. She is entitled to own property, to do business, and to take important decisions concerning her pursuits in life but if she is forced to contract a sham marriage for one or two nights, it would be a serious blow to her rights of life and liberty. She suffers immense damage to her honour, status and gets wounded socially, physically and psychologically. This arrangement, besides being immoral, is technically nude36, lopsided37, unconscionable38 and fraudulent39. 35. S. 23, Contract Act 1872 36. Nudem pactum; contracts without consideration are nude: because this is not woman who gets dower in this arrangement rather the mohallil gets remuneration for his malicious services. 37. The agreement which supports one party more than the other contracting party is called lopsided agreement. 38. S. 18 Contract Act 1872: The terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them is termed as unconscionable bargain.... it simply shakes the conscience of humanity and is never granted. 39. S.17 Contract Act 1872 It may be said that the woman may not always be so innocent and without blame. She might be voluntarily willing to participate in the arrangement of halala as opposed to a situation where she has been forced to do so. In this situation there could be two possibilities. The first is that seemingly she is a privy to this arrangement with free consent but in fact she is constrained to take this decision as there were no real options for her to remarry freely with any other man. If so, this type of contract, where resources are monopolized to push the party for only a specific, intended choice and party is constrained to do that; is taken as "unconscionable contract". Second possibility could be that she out rightly is a party to this fraudulent and sham arrangement of halala; she is going to suffer as she is wilfully defeating the moral and lawful object of marriage. She herself is accepting an indecent proposal at the stake of her respect and prestige. LEGAL CONSEQUENCES OF INTERVENING MARRIAGE As it has been said earlier if the intervening marriage is designed to create a loophole in Shariah and to defeat the spirit of law, this is highly condemnable. Rightly guided companions (R.A.) of the Holy Prophet (p.b.u.h.) took it very seriously. Hazrat Umar-e-Farooq (R.A.) opined upon this situation in these words, `if Muhallil and Muhallil lo are brought before me I would rijam (stone to death) them'. It is reported that Usman-e-Ghani (R.A.) Hazrat Ali (E.A.) and Hazrat Abdullah Bin Abbas (R.A.) got such marriage dissolved.40 Abdullah bin Umar (R.A.) equated this arrangement with zina41 Imam Malik declares, "Spouses if marry with a scheme of divorce are to be separated necessarily"42. Imam Abu Hanifa differs a bit with the aforesaid opinion and declares dissolution of such marriage as makruh.43 Imam Malik says, "Imam Shafie and Abu Yousuf are of the view that if marriage is held with the intention that after consummation the woman is to be divorced, this is totally invalid.44 40. Tafseer Ibn-e-Kabeer 195/1 41. Behqui 208/7 42. Mauta Imam Malik 43. Hadiya Vol.1 P.376 44. Mouta Imam Malik Imam Malik Bin Ans, Imam Laes Bin Sa'ad, Imam Suffyan Suri, Imam Abu Abaida, Imam Ahmad Bin Hunbal all agree, "Both should be separated and Nikah be invalidated". Imam Hafiz Ibn-e-Qayyem says, "Nikah of Halala was neither permitted nor would it ever be. None amongst companions ever practiced or gave verdict for it. The woman who does Halala she commits rape with two men; one with the person in Halala and one with previous husband"45 Imam Behqui writes about Ibn-e-Abbas from whom somebody asked, "If a person who has divorced his wife, if somebody makes that woman permitted (Halal) for him, how is it?" He replied "who designs against Allah; Allah would fail his scheme", 46 According to Abu Yousaf and Imam Muhammad who are students of Imam Abu Hanifa, the temporary marriage with intention to make women rightful (halal) for the previous husband, does not make her halal for him (the previous husband).47 According to many authorities48 temporary intervening marriage (halala) is not permitted (Haram); this does neither legitimize the wife for previous husband nor the existing marriage is valid. Allama Ibn-ul-Hemam while interpreting Abu Yousuf says, "If nikah (with condition to dissolve) could be right then it must not have been cursed; we (the companions) during time of the Holy Prophet (p.b.u.h.) took it as Zina.49 Ibn-e-Taimia says, "This intervening marriage is not traced during period of Holy Prophet of God (p.b.u.h.), or four rightly guided companions (caliphs) and it is not proved that they ever sent any woman to his previous husband. People used to do it in secret and Prophet of God (p.b.u.h.) has cursed them for this.50 Peer Karam Shah Bhervi and Peer Karam Shah Al-Azhari both declare halala liable to be cursed and against the spirit of Islam51-52." 45. Aelam ul Muqaeen 46. Imam Behqui Vol.7 P.237 47. Hadaya 4000/2 Katab ul Talaq 48. Fiqa Hadiya Vol.2 P.380, Muhtar Shami Vol.2 P.540, Kanz-ul-Dagaeq Behr-ul-Raeq Vol.4, P.58 also available at :http://www.esnips.com/user/islam/urdu Umdat-ul-Raeya Vol.2 P.18 49. Fateh-ul-Qadeer Shara Hadiya Vol.4 P.35 50. Ibn-e-Taimia Vol.3 51. Majmoa-t-Maqalat-e-Asba P.243 52. Zia-ul-Quran H.298 Imam Badar-ud-Din Al-Ainee declares it an openly shameful act.53 Mullah Ali Qari Hanafi declares that parties in this type of arrangement are to be cursed.54 Maulana Ahmad Saeed Dehlvi,55 Maulana Abdul Haq Haqqani56, Maulana Ashraf Ali Thanvi57, Mufti Shafie58 are unanimous that all parties involved in this arrangement are to be cursed.59 Shia school of thought also declares this type of intervening marriage as foolish.60 PART III 3: WHEN AND HOW CAN A COUPLE REMARRY? Before going into the details of legitimacy of re marriage let us differentiate it from `reconciliation' or `rijaat'. In rejaat, husband and wife can reconcile before talaq gets effective; whereas re marriage is performed after divorce becomes effective.61 The Quranic concept of rija'at is: "A divorce may be revoked twice; whereupon the marriage must either be resumed in fairness or dissolved in a goodly manner".62 According to the dictionary of Islam63 Rija'at means, 53. Albanaya Shara ul Hadiya 54. Murqat shara MushkawatVol.7 P.443 55 Exegesis of al-Quran 56. Tafseer-e-haqqani 57. Bahishti zewer 58. Muariful Quran vol:1, p.558-559 59. Tafseer Haqaani 60. Mr. Shahid Naqvi, al-aarif, monthly, February 1996 61. Rejaat: the reconciliation by husband during the persistence of idda. Re marriage: re solemnization of marriage inter se the same couple after divorce. 62. Al Quran, 2:229, Dr Asad elaborates in the explanation ...."In other words, a third pronouncement of divorce makes it final and irrevocable" 63. Hughes Patrick Thomas, A Dictionary of Islam, 1885, pg533(Hidaya,vol:1 pg.289) "Restitution...[r]eceiving back a wife who has been divorced, before the time has fully elapsed when the divorce must of necessity take place. In other words continuance of the Marriage bond" With prefix of "re" before "marriage" means the re-doing of contract of marriage. According to Muslim scholars the purpose of marriage is the procreation and legalization of children. Remarriage is a condition where previous marriage has been rescinded by divorce and new marriage has commenced between same spouses for the same object. A necessary condition for this marriage is that divorce must be effective between the parties. As there are more than one mode and kind of divorcing so the effectiveness of divorce varies not only with the kind but with the mode of divorcing. Before going ahead let's review these modes and kinds vis-a-vis their effectiveness. It means that remarriage is the re arrangement of marriage whereas Rijaat is the reconciliation between spouses during idda. There is no requirement of any formal or express action for reconciliation. Upon Rijaat marriage is refreshed from the point where it was dissolved. On the other hand re marriage is actually the re arrangement of the contract of marriage. It carries all liabilities and rights of fresh marriage. It could be said that this is a pact de novo64. It should be clear that when it is said that a man divorces his wife irrevocably, that means the marriage is dissolved for all purposes. He is allowed to re marry the same woman and if he divorces her for the second time; again he is allowed to remarry her. Thereafter if he divorces her for the third time, this woman becomes (haram) for him. He cannot contract marriage with her in natural probability of circumstances. The same is not the case with reconciliation; the spouses carry on with the previous contract of marriage and there is no need of any fresh contract. Holy Qur'an ordains in Al-Baqra, "And if the husband divorces his wife (for the third time) she shall not remain his lawful wife after this absolute divorce ... 65 64. Fresh agreement between the parties 65. 2.230 A plain meaning of the holy verse is that a man can remarry his wife short of three validly effective divorces. However the marriage is not permissible if he divorces her for the third time; the woman is forbidden for him after divorce for the third time. It's narrated by Sayed Hasan Basri that Maaqal Bin Bisyar got his sister married with a man who divorced her. Afterwards that man realized that he had committed a wrong. The idda had elapsed. He requested Maaqal to permit him to remarry his sister but he refused by saying that he divorced his chaste sister now he would not give her again into his nikah. Then the following ayat mubarikah of Surah Al Baqrah were revealed. `And when you divorce woman, and they have come to the end of their waiting term., hinder them not from marrying other men if they have agreed with each other in fair manner'.66 Upon this revelation Maaqal agreed to give his sister in remarriage to the same man67. According to Abdullah Bin Abbas; Rukana (p.b.u.h.) divorced his wife thrice in one sitting and repented afterwards and went to the Prophet (p.b.u.h.) for a resolve. The Prophet (p.b.u.h.) asked him about the mode of divorce. He replied that he had pronounced divorce thrice in one sitting. Upon that the Prophet of God (p.b.u.h.) said that the divorce would be considered as one and he could reconcile with his wife after idda. The holy companion reconciled with his wife accordingly.68 According to Hidaya if a Muslim divorces his wife irrevocably, short of three divorces (in case she is a free woman and in case of the slave, twice), he can re marry her but not afterwards.69 66. 2:232 67. Ibn e Lal Din; halala ki chhuri, 50, 51 also available at :http://www.esnips.com/user/islam/urdu. 68. Masnad e Ahmad 265/1, behequi 339/7, fatahul bari 363/9, masnad abi yaala musti (2495)65/3 69. Hamilton Charles, Hidaya 186, by Sheikh Burhanuddin Abi Al Hasan Ali Marghinani, Reprinted (2005) In light of the mode and kind of divorce the possibility of remarriage varies as follows: In cases where talaq is given through ahsan mode this is one effective divorce and man can remarry the same spouse but not if this divorce is given for the third time. In cases of talaq by hasan mode according to Quranic principle man can marry the same woman after two such talaqs but not after the third time. In cases where talaq is given by mughlliza mode, there is divergence of view of the scholars; some consider three pronouncements as one effective talaq but others take three pronouncements as three talaqs at a time. If first view is followed that means, till third such divorce, the course of remarriage is open. But if second view is taken, the woman is now prohibited for man. In all other three types of divorces i.e. khula, mubara'at and judicial divorce; divorce is effective according to the law of the land and possibility of remarriage is there. The limitation of two talaqs is applicable only in case of divorce through "talaq". In all other dissolutions this limitation is not applicable70 70. PLD 2003 Pesh. 169 CONCLUSION Human being is the nucleus and family is basic unit of Islamic law. All laws not only revolve around man but also keep him within the protective bounds of respect and honour. These bounds result into smooth bonding of relationships and harvest goodness in the society. The significant feature of personal law is that it weaves pattern of the social fabric. These laws are meant to hold steadfast and to tame the twigs of irregular, malicious and weird development in a society. This is done through constructive and contextual interpretation of laws. Because laws are used to regulate the personal relations of the members of society and each provision is to be understood in perspective of overall objectives of law. No provision is to be taken in isolation. If any provision is taken separately it may/will limit the vision and spirit of law. For example if current proposition is seen in isolation and without its context, it may mislead ones perception regarding principles of Shariah in respect of marriage and re-marriage. One may take this topic as "let's not talk about" type, on the ground of decency or may assume that Islam is secretly allowing the intervening marriage to protect institution of family or may conceive that Islam is proposing a compromising solution to revive the broken homes. But when searched in light of Islamic Jurisprudence the answer is different. Islamic injunctions provide for preservation and development of society on substantial principles not on compromises or the excuses of expediency. Islam protects family unit by drawing lines for the spouses and warning them of serious consequences of transgression. But if after all efforts relationship of husband and wife gets eroded Islam provides a way of dissolving it. No one should feel constrained to live in an awful union. But before deciding finally, spouses are given a reasonable time to think over and try to reconcile their differences. This can be done through rijaat. If they can't reconcile during rijaat the divorce is complete. Subsequently they may realize that they had committed a wrong, again they are given chance to re marry. This is a new contract of marriage between them with fresh terms and conditions. This re arrangement could be done twice. But if husband after so many chances is still adamant and practices his right of talaq for the third time, Islam does not provide him umbrella of unremitting protection. Now they cannot marry as the woman is not a subject of legality for man. Take other side of the picture, if man divorces his wife for the third time it creates a deadlock between them. Now this man or woman can not marry inter se. The woman may marry any other man and the man may marry any other woman. This is the limit of Allah. There is no point to transgress now. All doors of marriage are closed between them. They are in the prohibited degrees for each other. But other doors are open for them. They can hold valid marriage with other Muslim men and women. If the subsequent marriage is contracted bona fide it would carry all legal consequences of valid marriage. Along this there is another benefit that it removes the deadlock between previous spouses but this is contingent upon the death or divorce of the husband. The purpose of this allowance and the restriction according to Abul Ala Maududi in `Meaning of Quran'71is, 71. The Meaning of the Qur'an; 10th edition, pg167 "This verse was meant to reform a serious social evil common in Arabia before the advent of Islam. A husband was allowed to pronounce divorce as often as he pleased. Whenever his relations were strained with his wife, he would pronounce divorce and then reunite as and when it suited him. As there was no limit to this, it was repeated over and over again " The misuse of this method was to disgrace the woman by restraining her from doing a lawful act. "...thus the wife could neither have conjugal relations with him nor was free to marry anyone else" .72 And restraining anybody from doing anything what law allows him is cruelty .."This verse of Quran shuts this door of cruelty" 73 Islamic law vows for respect and honour of human beings. It does not allow one partner to exploit the other by retaining her for good even after divorce. It does not leave the woman in a lurch of uncertain expectancy. Rather it provides a fair chance to both of them to re live their lives within the limits of Allah. We agree that the route of Muslim matrimony is different from other religions74 but not the way they interpret it75. Take the example of talaq-e-Ahsan. According to the majority of Sunni Schools this is considered to be the preferred mode of divorcing. The reason is that Islam preserves the grace of every person in all circumstances. If husband divorces his wife by this mode he would have greater chance to reconsider his decision; at least twice during idda and if he does not reconcile during idda he is not required to repeat the words which ruined the relationship again and again. One additional reason appears to be that by repeating the words wife may feel disgraced that she was not a worthy partner of his life. Allah says " leave them with kindnesss76 72. The Meaning of the Quran; 10th edition, p.167 73. The Meaning of the Quran; 10th edition, p.167 74. M-D-M-D-R (marriage-divorce-marriage-divorce-remarriage....Quran) V. M D-R(marriage- divorce-remarriage ..Bible) 75. A strange divorce and marriage law in the Quran; Arlandson James M 76. Al.Bagrah:229 When law is so careful about the grace of the divorced woman, it is not conceivable how can it inflict such a shameful condition that the woman should marry another man and only when the marriage is consummated she can go back to her previous husband? This is mere distortion of the concepts of Islamic jurisprudence. It could be said that the subsequent valid marriage of woman may legitimize the marriage with previous husband after death or divorce of the existing one. The possibility of death and divorce in new marriage is natural and remarriage after that is for the sake of goodness and mercy for human beings but if it is designed and tailored, to get what Allah has prohibited, the only reward is the curse of Allah. This principle has been carried over to the Muslim Family Laws Ordinance 1961. Section 7(6) reads: "Nothing shall debar a wife whose marriage has been terminated by talaq effective under the section from re marrying the same husband, without an intervening marriage with the third person, unless such termination is for the third time so effective." Similar laws have been enacted in other Islamic countries also.77 Therefore a man can remarry his divorced wife, twice even after two effective talaqs. But he is prohibited to marry her for the third time. 'Doctors of Islamic Shariah declare that after two complete effective divorces the woman loses subject (status) of legality for the previous husband but not before that. 77. Infra see discussion over talaq-e-slasa We are not closing the argument, we are leaving it open for thoughtful minds and invite everybody to participate in the debate.