2003 PLP 2623 (YLR)

2.230. "So if a husband Divorces his wife (irrevocably), He cannot after that, Remarry her until After she has married Another husband and He has divorced her, In that case there is No blame on either of them If they reunite, provided They feel that they Can keep the limits Ordained by Allah, Such are the limits, Ordained by Allah, Which He make splain To those who know." 2.231. "When ye divorce The term of their 'Iddat') On equitable terms; But do not take them back To injure them, (or) to take Undue advantage; If any one does that, He wrongs his own soul, Do not treat Allah's Signs As a jest, But solemnly rehearse Allah's favours on you, And the fact that He Sent down to you The Book And Wisdom, For your Instruction, And fear Allah." And know that Allah Is well acquainted With all things." (Underlining is mine) 2.232. When ye divorce Women, and they fulfil The term of their ('Iddat), Do not prevent them From marrying Their (former) husbands, If they mutually agree On equitable terms. This instruction Is for all amongst you, Who believe in Allah And the Last Day. That is (the curse Making for) most virtue And purity amongst you. And Allah knows, And ye know not. 4.35. "If ye fear a breach Between them twain, Appoint (two) arbiters, One from his family, And the other from hers; If they seek to set things right, Allah will cause Their reconciliation; For Allah hath full knowledge, And is acquainted With all things." Surat-Al-Talaq 65.1. "O Prophet When ye Do divorce women, Divorce them at their Prescribed periods, And count(accurately) Their prescribed periods; And fear Allah your Lord; Except in case they are Guilty of some open lewdness; Those are limits Set by Allah and any Who transgresses the limits Of Allah, does verily Wrong his (own) soul; Some new situation." (Underlining is mine).

16. In the commentary of Holy Qur'an published by King Fahd Holy Qur'an Printing Complex, Al-Madina Al Munawarah, the following views have been recorded:-- "Verses 225-27 should be read together with verse

224. The latter, though it is perfectly general. Leads up to the other three. The Pagan Arabas had a custom very unfair to women in wed-lock, and this was suppressed by Islam. Sometimes, in a fit of anger or caprice, a husband would take an, oath by Allah not to approach his wife. This deprived her of conjugal rights, but at the same time kept her tied to him indefinitely, so that she could not marry again. If the husband was remonstrated with, he would say that his oath by Allah bound him. Islam in the first place disapproved of the thoughtless oaths, but insisted on proper solemn intentional oaths being scrupulously observed. In a serious manner like that affecting a wife, if the oath was put forward as an excuse, the man is told that it is no excuse at all. Allah looks to intention, not mere thoughtless words. The parties are allowed a period of four months to make up their minds and see if an adjustment is possible. Reconciliation is recommended, but if they are really determined against reconciliation, it is unfair to keep them tied indefinitely." (Emphasis supplied). "Where divorce for mutual incompatibility is allowed, there is danger that the parties might not act hastily, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit is prescribed. Two divorces (with a reconciliation between) are allowed. After that the parties must definitely make up their minds, either to dissolve their union permanently, or to live honourable lives together in mutual love and forbearance to "hold together on equitable terms", neither party worrying the other nor grumbling nor evading the duties and responsibilities of marriage. As to Verse No. 231: "The termination of a marriage bond is a most serious matter for family and social life. And every lawful device is approved which can equitably bring back those who have lived together, provided only there is mutual love and they can live on honourable terms with each other. If these conditions are fulfilled, it is not right for outsiders to prevent or hinder re-union. They may be swayed by property or other considerations. This verse was occasioned by an actual case that was referred to the Holy Prophet in his lifetime. "

17. Verse No.229 contemplates the third divorce and in that case it will be irrevocable. Verses Nos.228-229 and 231 also provide for a reunion during the period of Iddat. Verse No. 1 of Surat-al-Talaq, mandates that a divorcee is not to be turned out of the house during the period of Iddat. This clearly contemplates scope for reconciliation. Proceedings of reconciliation are also provided in Verse No.35 of Surat-An-Nisa. Maulana Muhammad Ali has explained this verse as follows:-- "This verse lays down the procedure to be adopted when a case for divorce arises. It is not for the husband to put away his wife; it is the business of the Judge to decide the case. Nor should divorce cases be made too public. The Judge is required to appoint two arbiters, one belonging to the wife's family and the other to the husband's. These two arbiters will find out the facts, but their objective must be to effect a reconciliation between the parties. If all hopes of reconciliation fail, a divorce is allowed, but the final decision for divorce rests with the Judge who is legally entitled to pronounce a divorce. Cases were decided in accordance with the directions contained in this verse in the early days of Islam."

18. The views of various Schools of Thought on triple 'Talaq' are as under:-- (i) Fiqah Jaffaria does not recognize it valid. (ii) Malikies also share the same view. (Mohmodan Law by Amir Ali, Vol.II 7th Edition) (iii) Shafies also share the same view; (iv) Hanblies recognize triple divorce as one if marriage is consummated and it pronounced in a particular form. (P/91 Muslim Law of Divorce by K.N. Ahmed (1984).

19. Chapter 4 of the Muslim Law of Divorce by K.N. Ahmad (1984) provides an instructive reading on the subject of divorce. At page 86, it is noted as follows:-- "Ibn 'Abbas has reported that the pronouncement of three divorces at one and the same time was treated as one divorce during the time of the Prophet (peace be on him), the first Caliph and during the first two or three years of regime of the Second Caliph. But the Second Caliph found that people used to pronounce divorces wantonly many times and in order to discourage this undesirable practice he introduced the rule that pronouncement of three divorces at one and the same time shall be treated as three divorces or a final or Mughallazah divorce." And, at page 89 the following views have been expressed:-- "Islam has permitted the dissolution of marriage in case of necessity, but dissolution has been strongly disapproved of and discouraged. A divorce in the proper form, laid down in the Qur'an, becomes final and absolute only after the observance of Iddah and so ample time is given to a husband to think over the matter coolly and to retrieve his action if he so decides. The main idea in the procedure for divorce, as laid down by Islam, is to give the parties an opportunity for reconciliation. If the three pronouncements are treated as a Mughallazah divorce, then no opportunity is given to the spouses or the husband to retrieve a hasty divorce. This rule was introduced long after the time of the Prophet (peace be on him) and it renders ineffective the measures provided in the Qur'an against hasty action thereby depriving people of 2 chance to change their minds, retrieve their mistakes and retain their wives. The object of Caliph Umar in treating it as a Mughallazah divorce was clearly to stop people from wanton repetitions of divorce and from treating the matter of divorce in a light and non-serious way. It must have suited the needs of his own time, but the practice in the modern times has resulted in a great d6al of harm."

20. I am, therefore, of the view that Talaq pronounced by Sultan Ali, deceased followed by written notice had not become final in accordance with the Injunctions of the Qur'an and Mst. Dhami continued to remain widow of Sultan Ahmad, deceased, entitled to inherit his estate.

21. For what has been stated away, find no merit in this revision petition which is, accordingly, dismissed. M.H./S-683/L Revision dismissed.