Once again the Bill on Domestic Violence (Prevention and Protection) for the Islamabad Capital Territory (ICT) has been deferred by the joint session of Parliament on April 4. This Bill was unanimously passed by the National Assembly in 2009. It was stuck in the Senate that referred it to the mediation committee for further deliberation. The Bill remained in the cold storage till the passage of 18th Constitutional Amendment that devolves legislative issues to the provinces. With the drastic increase in all forms of social, economic and political insecurities under the present regime, the only feather in the cap of the present government is that it has managed to pass some pro-women statute laws. This includes Sexual Harassment at Work Place Act (2010), Acid Control and Acid Prevention Act (2011), Prevention of Anti-Women Practices Act (2011) and Women in Distress and Detention Act (2011). Women who entered parliaments on reserved seats for women have been making efforts for the passage of a Bill on Domestic Violence since 2002. Every time the Bill on Domestic Violence is blocked by decadent, anti-women right wing forces sitting in the legislative assemblies at the national and provincial levels. The question is why there is so much resistance to the passage of Domestic Violence Bill in our country? What is the argument of those who keep on blocking this important, urgently needed piece of legislation? What are the implications of this Bill for the family and the society? These are important questions that need to be addressed and analysed. The JUI and the PML-N which opposed the Bill on Thursday did not refer to any particular clause of the Bill that they had objections to.Maulana Fazulur Rehman simply blasted the Bill on the ground that it was the conspiracy of the West and foreign funded NGOs which are working against Islam and trying to destroy our family system through the introduction of this Bill. He accused women rights activists as agents of the Western powers who are working on women’s rights for American dollars. The PML-N simply asked for more time to review the Bill. It was very obvious from the arguments of the representatives of both parties which blocked the Bill that none of them had even bothered to read it. First of all, as mentioned earlier that this is the Bill that was unanimously passed by the National Assembly in 2009. The PML-N and JUI had expressed no reservation at that time then why now? The opposition to the Bill is clearly a part of political bargaining in new political alignments. Secondly, if they had objection to some of the clauses of the Bill (the position they are taking now), why those inadequacies were not shared with the mover of the Bill and the committee that was working on the Bill, which includes the representatives from all parties, including JUI and PML-N. If the PML-N did not bother to give their input in the drafting of the Bill over the last many months, how would they do so in the next few days? It appears a lame excuse and simply a retarding ploy to block the Bill. REFERENCE: Politics of domestic violence bill Dr Farzana Bari Tuesday, April 10, 2012
http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=102205&Cat=2&dt=4/10/2012
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Based on the Qur’anic teachings, the Prophet Muhammad (pbuh) explained the procedure and mode of divorce clearly. In the light of these guidelines, Muslim jurists set out the detailed rules for all matters related to divorce. The key points relevant to this discussion are outlined below:
Any talaq given for the period during which the husband can revert back to his wife is called talaq-e-rujaee (revocable divorce). After the first or second pronouncement of divorce, even if the iddah period is completed, the husband, prior to the pronouncement of the third divorce, has the option of taking his wife back by re-solemnization, with her consent. This type of divorce is called talaq-e-bain sughra. The third pronouncement makes divorce final and irrevocable — it is then called talaq-e-bain kubra or mughallaza (the third, irrevocable divorce). The third divorce means that the couple can never rejoin, unless the extraordinary condition of halala is fulfilled. Halala is the situation where a divorced woman marries another man in a regular manner with the solemn intention of living with him, but again unfortunately separates from him due to his death or divorce. She is then allowed under Islamic law to remarry her former husband, if she so wishes.[20] Notably, the ugly custom of preplanned halala, in which the former husband manipulates someone to marry his former wife and then divorce her immediately without even consummation for enabling him to remarry the woman, is a mockery of the divine law and is cursed by the Prophet Muhammad (pbuh).[21] The Caliph Omar and Abdullah bin Omar regarded such marriages as adultery.[22] - REFERENCE: Dissolution of Marriage: Practices, Laws and Islamic Teachings Policy Perspectives, Vlm 4, No.1
http://www.ips.org.pk/islamic-thoughts/1120-dissolution-of-marriage-practices-laws-and-islamic-teachings.html#_ftn21
Teen Talaq Aur Halala Part 1 Of 6 (By Syed Tauseef ur Rehman)
SAYING Talaq three times to effect a divorce has become part of the psyche of some Muslims in South Asia, to have the word ready to be blurted out three times whenever stress is felt in the husband-wife relationship. This act of pronouncing all three talaqs in one breath and its destructive and tragic fallout is the result of lack of knowledge about the injunctions on divorce in the Quran and hadith. The Holy Prophet (PBUH) is reported to have said that divorce is one of those permitted acts which is most disliked by God. When Hazrat Omar was the caliph, he used to punish those men severely who pronounced a three-in-one divorce. This is why if husband and wife cannot get along, two arbitrators, one from each side, should provide counselling to avoid a divorce (4: 35). As a last resort, if steps have to be taken to bring about a divorce, then the prescribed method should be followed, which is to pronounce it once after the woman is clear of her monthly cycle. Then both should live in the same house (65: 1) for a month, during which time the husband will have the right to revoke the divorce. If he does not, he’ll have to pronounce a second divorce after one month. Then after the second monthly cycle is over, he will either have to revoke it or pronounce the divorce for the third and the final time, making it irrevocable: “…either the woman should be asked to stay honourably or asked to leave in the best way. It is not lawful for you to take back anything from what you have given them.”(2: 229) If the man initiates the divorce, he is not supposed to take back any of the dowry or mehr given at the time of marriage or later as gifts. The presence of witnesses at the time of divorce is necessary to make the procedure of divorce complete: “And appoint two honest witnesses from among yourselves, and give testimony for God” (65: 2). The divorced woman should restrain herself for three months before she re-marries (2: 228). “If he divorces her (three times), she will not be lawful for him after this, until she marries another husband and if he (the second husband) divorces her, then there will be no blame on either if they re-marry.” (2: 230)If the woman marries another man, with good intentions, but the second husband divorces her as well, only then she may remarry the first husband. In Surah Al-Baqarah, it is stated, “When you divorce women and they complete their period of waiting, do not prevent them from marrying the husbands of their choice, when they have agreed mutually, in a befitting manner”(2: 232). But in Pakistan, sometimes a man divorces his wife and when she re-marries, he accuses her of adultery and has her and her husband booked under Hudood Ordinances. This is made easier when the divorce is not registered officially. In the case of khula, the unconditional right of the wife to initiate and obtain a divorce, she has to approach the relevant authorities(2: 229). This means if the husband and wife are not able to live together with love and harmony, the woman can ask for a divorce. When she sues for a divorce, without bringing any charges against the husband, she has to return the mehr and the husband is allowed to take it back. There was the case of a beautiful woman, Jamilah bint Abi bin Salul, who came to the Prophet (PBUH) and conveyed to him that she could not bear to be with her husband, Thabit bin Qais. She found him unattractive. The Prophet (PBUH) asked her if she was willing to return whatever mehr he had given her. When she consented, he sent for her husband, discussed the matter with him and brought about a divorce between them. In case pregnant women are divorced, there are instructions to treat them well, “…if they are pregnant spend on them till they lay down their burden” (65: 6). The father is responsible for all the needs of his child. During the time that the divorced wife nurses the child, the father should pay for the mother’s upkeep as well. The parents should cooperate in the matter of the children: “The mothers should nurse their children for a total of two years. This is for those who wish to complete the nursing period. And on him whose child it is, is (the responsibility of) feeding and clothing (even of the divorced, nursing mother), in a befitting manner” (2: 233). So the proper way of giving a divorce is to pronounce it three times at intervals, once a month, for three months, in front of two witnesses, right after the woman’s monthly cycle is over, while she should be living in the same house as the husband. All the jewellery or wealth, etc., given to her will be her property. In order to reform society and to protect husband and wife as well as their children from undue suffering, the Quranic method of giving a divorce should be explained by our scholars, who should be convinced to make people aware of the right and wrong methods of giving a divorce by mentioning these details in their sermons and lectures. REFERENCE: Injunctions on divorce By Nilofar Ahmed Friday, 24 Sep, 2010
http://www.paklinks.com/gs/religion-and-scripture/454662-punishment-for-triple-talaq.html
Teen Talaq Aur Halala Part 2 Of 6 (By Syed Tauseef ur Rehman)
http://www.youtube.com/watch?v=Gz6L2n_m9CE
The recent meeting of the All-India Muslim Personal Law Board (AIMPLB) at Kanpur had raised considerable expectations that the 'ulama associated with it, who exercise a powerful influence on Muslim opinion, would finally declare the obnoxious practice of triple talaq in one sitting to be null and void, and, therefore, illegal. That, however, was not to be. In fact, it so transpires that the question of banning the practice of triple talaq was not even on the agenda of the 'ulama gathered at Kanpur. Leading Deobandi and Barelvi scholars, whose schools represent the majority among the Indian 'ulama, see the practice as Islamically valid, and as an integral part of the shari'ah. Hence, they insist, the practice cannot be scrapped, as that would allegedly be tantamount to interfering with divinely revealed laws. This opinion appears to be widely shared among the ‘ulama associated with the AIMPLB, which explains the refusal of the Board to ban the practice despite considerable public pressure to do so. The argument that the practice of triple talaq in one sitting is an integral part of the shari'ah is hotly contested by a minority among the 'ulama, such as those belonging to the Ahl-i Hadith, among the Sunnis, as well as by the Shi'as. This clearly points to the diversity of understandings of what precisely constitutes the shari'ah, and to element of human effort in the construction of notions of the shari'ah itself, a fact that the conservative 'ulama themselves are reluctant to acknowledge. The refusal of the AIMPLB to ban the practice of triple talaq clearly suggests that one can hardly expect the 'ulama associated with the Board to take any bold step in the future that might threaten to undermine the patriarchy that is sought to be provided with a suitable 'Islamic' gloss. The Deobandi 'ulama who dominate the Board are carefully groomed in a tradition of extreme patriarchy, as is evident from even a cursory reading of the fatwas and writings of their leading scholars. Hope for reform, therefore, lies in the writings and arguments of Islamic scholars from other schools of Islamic thought and jurisprudence.
One such school is the Ahl-i Hadith, representing a small minority among the Indian Muslims. In contrast to the Deobandis and the Barelvis, the Ahl-i Hadith insist that Muslims need not be bound by jurisprudential precedent of the early 'ulama, but, instead, should rely solely on the Qur'an and the genuine (sahih) Prophetic traditions. They are rigid scripturalists and extreme literalists, sharing much in common with the Wahhabis of Saudi Arabia. Although their position on a range of issues is thoroughly reactionary and obscurantist (leading Ahl-i Hadith scholars are on record as hailing the Wahhabi rulers of Saudi Arabia as representing the only 'true' Islamic regime in the world), on the question of triple talaq they adopt a somewhat progressive stance, declaring the practice as unequivocally illegal. The Mumbai-based Maulana Mukhtar Ahmad Nadvi is a leading Indian Ahl-i Hadith scholar. In his recently published Urdu book titled 'Talaq: Kitab-o Sunnat Ki Roshni Mai Tafsili Jai'za' (' Divorce: A Detailed Study in the Light of the Qur'an and the Prophetic Practice')1, he writes that the practice of triple talaq was sternly condemned by the Prophet himself. The Prophet, he says, declared divorce to be the 'most hateful' of things allowed by God. He argues that Islam pays great stress to harmonious conjugal relations, and quotes a hadith or saying of the Prophet in which Muhammad is said to have told his followers that the best among them was he who was best for, or towards, his wife. He then goes on to describe the method of divorce laid down in the Qur’an and enforced by the Prophet. In case a dispute arises between husband and wife, Nadvi writes, they should first try to solve it through dialogue. If this does not work, the Qur'an instructs them to appoint one arbiter each from the family of the husband and the wife, who can try and resolve their differences. Only when this fails should they take the drastic measure of divorce.
In the Prophet's time, Nadvi explains, divorce took the form of the husband uttering the word talaq three times, spaced over three consecutive menstrual cycles of the wife. In this period, the husband was to abstain from sexual intercourse with his wife, but was to keep her in the house and provide for her. In this way, the husband was given adequate time to seriously reconsider his decision to divorce. The first two talaqs could be revoked by the husband, but if the third talaq was pronounced during or at the end of the third menstrual cycle the divorce was considered final and irrevocable. If the husband had sexual intercourse with his wife before uttering the third talaq in the third menstrual cycle, the previous talaqs were nullified. Likewise, if he uttered the talaq at a time when his wife was menstruating it would not be considered as valid. In this regard, Nadvi relates that once a companion of the Prophet gave talaq to his wife at a time when she was in menstruation. On learning this, the Prophet ordered that he take back his wife, and did not recognise the talaq. Nadvi also writes that at the time of the Prophet if a man uttered the word talaq more than once in one sitting, it was considered as just a single talaq. This being the method of divorce at the time Prophet, it is considered to be in accordance with his sunnat or practice, and hence is called talaq-i sunnat. Since Muslims consider the Prophetic practice as a normative model for them to follow, Nadvi says, this is the method of divorce that they should adopt. No other method of divorce, he writes, can be considered binding as that would be a violation of the sunnat. Nadvi devotes considerable attention to the practice of triple talaq in one sitting, arguing that it has no sanction in the Qur'an and in the traditions of the Prophet. Being, in Islamic legal parlance, a bida'at or wrongful innovation, it is not part of the Prophet's sunnat, and hence, cannot be considered as sanctioned as being in accordance with the shari'ah. In this regard, Nadvi refers to a saying of the Prophet in which he strongly condemned all forms of bida'at, suggesting that those who created innovations in the faith were accursed by God. Since the practice of triple talaq in one sitting is a bida'at, he argues that those who practise or sanction it actually do so in violation of God's will, and, hence, are condemnable in God's eyes. In fact, he stresses, the Prophet explicitly condemned the practice of triple talaq. He writes that once, when the Prophet heard that one of his companions or sahaba had sought to divorce his wife in this way, he was enraged, and sternly admonished him, saying, 'What, shall God’s book be played around with and I am present among you?’. Nadvi refers to another hadith, according to which once Rukana, a companion of the Prophet, pronounced three talaqs in one sitting but later repented. He approached the Prophet for help, and the Prophet told him that the three talaqs that he had given amounted only to a single talaq, and that, therefore, he could go back to his wife if he wanted to. To bolster his argument about the illegality of three talaqs in one sitting Nadvi further adds that not a single instance is reported of such a form of talaq being accepted by the Prophet as constituting a final, irrevocable divorce.
The talaq-i sunnat method, Nadwi writes, was followed in the Prophet's time, and this was continued under his successor and the first caliph of the Sunnis, Abu Bakr. The second Sunni caliph, 'Umar, too, followed this rule, but in the third year of his reign he is said to have modified it and to have made three talaqs in one sitting as legally binding and as constituting an irrevocable divorce. If the couple divorced in this fashion wanted to reunite they could only do so through by resorting to what is called halala: the woman would have to marry another man, this marriage would have to be consummated, the woman would have to take a divorce from her second husband and only then could she remarry her first husband. The 'ulama who continue to insist on the legality of this method of talaq, and who also sanction the practice of halala, rely essentially on this decision of 'Umar. As a Sunni, Nadvi does not challenge 'Umar's decision directly, but in order to argue that this method of divorce has no sanction in Islam he insists that this innovation was simply 'Umar's own personal opinion or ijtihad, which cannot be held to supersede or overrule the explicit commandments of the Qur'an and the Prophet on divorce. He argues that 'Umar intended this modification to be only a temporary measure, and simply as a means to address a novel situation that had arisen in his time when men were misusing their prerogative to divorce their wives. It was, he writes, in order to stop men from abusing their right to talaq that 'Umar decided to make three talaqs in one sitting as a final, irrevocable divorce. By doing so, he intended to warn men of the grave consequence of the break-up of their families if they misused their right to divorce. ‘Umar’s ruling was thus intended to protect women, rather than harass them, although this ruling is today being used precisely to serve the latter purpose. Nadvi insists that this constitutes a flagrant violation of Islam, and here quotes the Prophet as imploring for God's wrath on those men who misuse their right to divorce.
Nadvi opposes the view of many traditionalist scholars who claim that 'Umar's decision was unanimously agreed upon by all the sahaba or companions of the Prophet present. He insists that 'Umar's decision does not constitute an 'ijma or collective consensus of the sahaba, which is evoked as a principal source of law by the 'ulama. He cites the instances of several leading sahaba who dissented from 'Umar's decision in this regard, including, and most importantly, 'Ali, the fourth Caliph of the Sunnis and the first Shi'a Imam, ‘Abdullah ibn Abbas, Zubair ibn Awam and 'Abd ur-Rahman ibn Awf . Following them, several of their followers, too, differed with 'Umar on this issue. In fact, Nadwi writes, there has never been any 'ijma on three talaqs in one sitting as constituting a final, irrevocable divorce. Numerous 'ulama down the ages to the present-day have opposed this position, strongly criticising those 'ulama who hold the contrary opinion for upholding what they consider as a bida'at. Nadvi writes that among those who dissented from ‘Umar’s decision of considering three talaqs in one sitting as constituting a final divorce were such leading Islamic jurisprudents such as Imam Ahmad ibn Hanbal, founder of the Hanbali school of Sunni jurisprudence, several followers of Imam Malik and Imam Abu Hanifa, founders of the Maliki and Hanafi schools of jurisprudence respectively, the influential scripturalist reformist Ibn Taimiyah and his disciple Imam Ibn Qayyim al-Jawziya. Having thus proved the absence of any 'ijma on 'Umar's decision, Nadvi writes that Muslims must accept the sunnat of the Prophet and the practice of Abu Bakr, rather than 'Umar's opinion, on the matter of talaq. The Prophet's sunnat, and not that of his caliphs, has normative authority for Muslims, and if any of the caliphs departed from the Prophet's tradition, Muslims must follow the Prophet and not the caliphs in this regard. Furthermore, as the first caliph of the Sunnis, Abu Bakr had more authority than 'Umar, and so his practice in the matter of talaq, which was identical to that of the Prophet, must be followed, instead of 'Umar's opinion. Umar’s ijtihad cannot be considered, Nadvi stresses, as constituting a permanent modification of the shari'ah which cannot be changed. The only unchangeable sources of law, he says, are the Qur'an and the genuine hadith, and both these set out the sunnat method of talaq, which, therefore, must be strictly adhered to. Since 'Umar's opinion on talaq departs from the Qur'an and the genuine hadith, it cannot be accepted as a legally binding decision. Furthermore, Nadvi writes that since it is argued by those who defend 'Umar's rule that it was intended as a punishment (ta'zir) for erring husbands, one must raise the question as to whether this decision has proved to be adequate or suitable for the purpose. Since it is today being used largely to harass hapless wives instead of punishing oppressive husbands, it does not serve its original purpose at all, and hence must be banned, Nadvi insists.
The conservative 'ulama, Nadvi observes, depart from the sunnat of the Prophet not only on the issue of triple talaq but also on a range of other issues related to talaq that impinge on the rights of Muslim women. Thus, he notes, many 'ulama (and these include most Barelvis and Deobandis) insist that talaq uttered by the husband while drunk or while asleep, in a fit of anger or while under coercion, is binding. This, Nadvi insists, is completely at odds with the teachings of the Prophet. He writes that talaq given under coercion has no recognition or validity, for the Qur'an explicitly lays down that there can be 'no coercion in religion'. Just as if a person is forced to utter 'words of infidelity' (kalimat-i kufr) he is not considered to have become a disbeliever, or if a non-Muslim is forced to utter the Islamic creed of confession he is not considered as a Muslim, so, too, if a man is coerced into pronouncing talaq, it has no validity in law. Similarly, Nadvi writes, if a person pronounces talaq in a state of drunkenness or insanity, it is not to be considered valid, for he is at that time not in possession of his senses. To back his argument he refers to a Qur'anic verse which warns people not to pray while drunk, and to worship only when they know what they are saying. This implies, he says, that God does not regard a drunken man's utterances of any value. Similarly, using the same logic, Nadvi opposes the argument of those 'ulama who claim that talaq uttered in a fit of anger, when the man does not know the consequences of what he is saying, is binding. On the question of halala, too, Nadvi stiffly opposes the Deobandi and the Barelvi ‘ulama. He writes that the practice is abominable, and goes so far as to equate it with adultery (zina). He says that it has no sanction whatsoever in Islam, quoting the Prophet as having invoked God's anger on those who engaged in the practice. He adds that there is an urgent need to promote popular awareness about halala and its seriously deleterious consequences, especially for hapless women who are sometimes subjected to this practice.
The practice of talaq-i bida'at and the associated practice of halala, Nadvi writes, are sought to be legitimised by influential sections of the 'ulama by evoking the notion of jurisprudential precedent. They claim that since the founders of the schools of Sunni jurisprudence, and several of their followers, upheld these practices, they cannot be rescinded. This, indeed, is the position taken by most Deobandi and Barelvi 'ulama in India today. Nadvi stiffly opposes this argument, arguing that the founding imams of the four schools never claimed infallibility for themselves. Indeed, he adds, they went so far as to insist that if any of their opinions violated the Qur'an and the genuine hadith, they were to be rejected, and the latter were to be followed in their place. Since the practice of accepting triple talaq in one sitting as constituting a final divorce and the associated practice of halala violate the Qur'an and the genuine hadith, Nadvi says, those who claim to be faithful adherents of the established schools of jurisprudence, and this includes the Deobandis and the Barelvis, must follow the position of the Qur'an and the genuine hadith in this regard if they are to be considered true followers of their imams. To refuse to do so, Nadvi asserts, is absolutely forbidden (haram). Those who continue to uphold the practice of triple talaq in one sitting and justify halala are thus, he says, 'grave sinners' (sakht gunehgar) in God's eyes. Leading ‘ulama in several Muslim countries, such as Saudi Arabia, Qatar, Kuwait, Egypt, Sudan and Syria have outlawed triple talaq in one sitting and halala on Islamic grounds, and Nadvi insists that there is no reason why the Indian 'ulama should not do the same. Another Indian Ahl-i Hadith scholar who has written on the vexed issue of triple talaq in one sitting is the Kuwait-based Hafiz Muhammad Ishaq Zahid. In his 'Ahl-i Hadith Aur 'Ulama-i Harimayn Ka Ittefaqi Ra'i' ('The Consensual Opinion of the Ahl-i Hadith and the 'Ulama of the Holy Cities')2, Zahid makes much the same argument as Nadvi. He adds that 'Umar's opinion has no legal status since 'Umar himself later revoked it. On the question of the alleged 'ijma of the sahaba on 'Umar's ruling, he follows Nadvi in dismissing this claim, and goes so far as to label it as 'baseless propaganda'. He writes that even the conservative 'ulama who claim an 'ijma of the sahaba on 'Umar's opinion agree that prior to 'Umar there existed an ‘ijma on Abu Bakr’s opposition to triple talaq in one sitting and on his insistence on the talaq-i sunnat method. The 'ijma of the sahaba in Abu Bakr's time has more legitimacy than the alleged 'ijma in Umar's time, says Zahid, for the Sunnis believe Abu Bakr to have been superior to 'Umar. Hence, the 'command' (hukm) of 'Umar cannot be held to overrule the 'ijma of the sahaba in Abu Bakr's time on the matter of divorce, especially since it was identical to the Prophet’s own opinion. Likewise, Zahid, adds, the fourth Caliph of the Sunnis, Hazrat 'Ali, did not accept 'Umar's ruling on triple talaq, and hence the alleged 'ijma cannot be said to have been accepted after 'Umar as well. In actual fact, says Zahid, 'Umar's decision was his own personal ijtihad, not a legal order based on the shari'ah. The ijtihad of a person is not binding on anyone else, and it has no validity if it goes against the explicit commandments of the Qur'an and the genuine hadith. Furthermore, a person’s ijtihad cannot be regarded as permanently binding, for a rule derived from ijtihad changes with change of time or place (zaman-o makan), and lacks permanent status, unlike the Qur’an and the sunnat of the Prophet. For these reasons, Zahid writes, the ruling of 'Umar has no legal binding. Instead of following it, Muslims must follow the method of divorce laid down in the Qur'an and enjoined upon by the Prophet. The Ahl-i Hadith are not alone in their opposition to the stance of many Deobandi and Barelvi 'ulama and the AIMLB on the question of the practice of triple talaq in one sitting. Numerous Muslim reformers have lent their voice to the demand that the practice be outlawed. Yet, blind adherence to the established schools of jurisprudence as well as deeply entrenched patriarchy continue to pose a major hurdle in coaxing the conservative ‘ulama to agree to ban the practice. As the refusal of the ALMPLB to condemn the practice suggests, the conservative ‘ulama seem to be in no mood to listen to the voice of reason or even to arguments that insist that their own position on the issue has no legitimacy in Islam itself. REFERENCE: Interrogating Triple Talaq: The Ahl-i Hadith Counter-Perspective By Yoginder Sikand Tue Jul 13, 2004
http://groups.yahoo.com/group/india-unity/message/2477
Teen Talaq Aur Halala Part 3 Of 6 (By Syed Tauseef ur Rehman)
http://www.youtube.com/watch?v=eDnEcmSOgEI
If a man divorces his wife for the third time, then she is not permissible for him to marry until she has married another man, because Allaah says (interpretation of the meaning): “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” [al-Baqarah 2:230].
It is stipulated that this marriage which will make her permissible for her first husband should be a valid marriage. Temporary marriage (mut’ah marriage) or marriage for the purpose of making her permissible for her first husband then divorcing her (tahleel marriage) are both haraam and invalid according to the vast majority of scholars, and it does not make the woman permissible for her first husband.
See: al-Mughni (10/49-55).
There are saheeh ahaadeeth from the Prophet (peace and blessings of Allaah be upon him) which show that tahleel marriage is haraam.
Abu Dawood (2076) narrated that the Prophet (peace and blessings of Allaah be upon him) said: “Allaah has cursed the muhallil and the muhallal lahu.” This was classed as saheeh by al-Albaani in Sunan Abi Dawood.
The muhallil is the one who marries a woman and divorces her so that she can go back to her first husband, and the muhallal lahu is the first husband.
Ibn Majaah (1936) narrated from ‘Uqbah ibn ‘Aamir (may Allaah be pleased with him) that the Prophet (peace and blessings of Allaah be upon him) said: “Shall I not tell you of a borrowed billy-goat.” They said, Yes, O Messenger of Allaah. He said, “He is al-muhallil. May Allaah curse al-muhallil and al-muhallal lahu.” Classed as hasan by al-Albaani in Saheeh Sunan Ibn Maajah.
‘Abd al-Razzaaq (6/2650 narrated that ‘Umar ibn al-Khattaab (may Allaah be pleased with him) said whilst addressing the people: “By Allaah, no muhallil or muhallal lahu will be brought to me but I will stone them.”
This applies whether he states his intention clearly when doing the marriage contract and they stipulate that when he has made her permissible for her first husband he will divorce her, or they do not stipulate that and he intends it to himself only.
Al-Haakim narrated from Naafi’ that a man said to Ibn ‘Umar: I married a woman and made her permissible for her first husband, and he did not tell me to do that and he did not know. He said: No, marriage should be based on genuine intentions; if you like her then keep her, and if you do not like her then leave her. He said: At the time of the Messenger of Allaah (peace and blessings of Allaah be upon him) we would regard that as zina. And he said: They will still be adulterers, even if they remain for twenty years.
Imam Ahmad was asked about a man who married a woman intending thereby in his heart to make her permissible for her first husband, but the woman did not know about that. He said: He is a muhallil, and if he intends thereby to make her permissible for her first husband, then he is cursed.
Based on that, it is not permissible for you to marry this woman if you intend thereby to make her permissible for her first husband. Doing that is a major sin, and the marriage will not be valid, rather it is zina – Allaah forbid. Tahleel marriage is haraam and invalid
http://islamqa.info/en/ref/109245/Tahleel
جب كوئى شخص اپنى بيوى كو تيسرى طلاق بھى دے دے تو وہ اس كے ليے حرام ہو جاتى ہے اور اس وقت حلال نہيں ہو گى جب تك وہ كسى اور خاوند سے نكاح نہ كر لے، كيونكہ اللہ سبحانہ و تعالى كا فرمان ہے:
﴿ اور اگر وہ اسے ( تيسرى ) طلاق دے دے تو اب اس كے ليے حلال نہيں جب تك كہ وہ عورت اس كے علاوہ كسى دوسرے سے نكاح نہ كر لے ﴾البقرۃ ( 230 ).
اور اس نكاح ميں جو اسے اپنے پہلے خاوند كے ليے حلال كرے گا شرط يہ ہے كہ وہ نكاح صحيح ہو، چنانچہ مؤقت يعنى وقتى اور كچھ مدت كے ليے نكاح ( جسے نكاح متعہ بھى كہا جاتا ہے ) يا پھر پہلے خاوند كے ليے بيوى كو حلال كرنے كے ليے نكاح كر كے پھر طلاق دے دينا ( يعنى نكاح حلالہ ) يہ دونوں حرام اور باطل ہيں، عام اہل علم كا يہى قول ہے، اور اس سے عورت اپنے پہلے خاوند كے ليے حلال نہيں ہو گى.
ديكھيں: المغنى ( 10 / 49 - 50 ).
نكاح حلالہ كى حرمت نبى كريم صلى اللہ عليہ وسلم كى صحيح احاديث سے ثابت ہے.
ابو داود ميں حديث مروى ہے كہ:
نبى كريم صلى اللہ عليہ وسلم نے فرمايا:
" اللہ تعالى حلالہ كرنے اور حلالہ كروانے والے پر لعنت كرے "
سنن ابو داود حديث نمبر ( 2076 ) اس حديث كو علامہ البانى رحمہ اللہ نے صحيح سنن ابو داود ميں صحيح قرار ديا ہے.
المحلل: وہ شخص ہے جو حلالہ كرتا ہے تا كہ بيوى اپنے خاوند كے ليے حلال ہو جائے.
المحلل لہ: اس كا پہلا خاوند.
اور سنن ابن ماجہ ميں عقبہ بن عامر رضى اللہ تعالى عنہ سے مروى ہے كہ نبى كريم صلى اللہ عليہ وسلم نے فرمايا:
" كيا ميں تمہيں كرائے يا عاريتا ليے گئے سانڈھ كے متعلق نہ بتاؤں ؟
صحابہ كرام نے عرض كيا: كيوں نہيں اے اللہ تعالى كے رسول صلى اللہ عليہ وسلم آپ ضرور بتائيں.
تو رسول كريم صلى اللہ عليہ وسلم نے فرمايا:
" وہ حلالہ كرنے والا ہے، اللہ تعالى حلالہ كرنے اور حلالہ كروانے والے پر لعنت كرے "
سنن ابن ماجہ حديث نمبر ( 1936 ) علامہ البانى رحمہ اللہ نے صحيح سنن ابن ماجہ ميں اسے حسن قرار ديا ہے.
اور عبدالرزاق نے مصنف عبد الرزاق ميں عمر بن خطاب رضى اللہ تعالى عنہ سے روايت كيا ہے كہ انہوں نے لوگوں كو خطبہ ديتے ہوئے فرمايا:
" اللہ كى قسم ميرے پاس جو حلالہ كرنے اور حلالہ كروانے والا لايا گيا ميں اسے رجم كر دونگا "
مصنف عبدالرزاق ( 6 / 265 ).
يہ سب برابر ہے اور كوئى فرق نہيں كہ عقد نكاح كے وقت اس مقصد كى صراحت كى گئى ہو اور اس پر شرط ركھى گئى ہو كہ جب اس نے اسے اس كے پہلے خاوند كے ليے حلال كر ديا تو وہ اسے طلاق دے گا، يا اس كى شرط نہ ركھى ہو، بلكہ انہوں نے اپنے دل ميں ہى يہ نيت كر ركھى ہو، يہ سب برابر ہے.
امام حاكم رحمہ اللہ نے نافع سے روايت كيا ہے كہ ايك شخص نے ابن عمر رضى اللہ تعالى عنہما سے عرض كيا:
ايك عورت سے نكاح اس ليے كيا كہ اسے پہلے خاوند كے ليے حلال كروں نہ تو اس نے مجھے حكم ديا اور نہ وہ جانتا ہے، تو ابن عمر كہنے لگے:
نہيں، نكاح تو رغبت كے ساتھ ہے، اگر وہ تو تجھے اچھى لگے اور پسند ہو تو اسے ركھو، اور اگر اسے ناپسند كرو تو اس كو چھوڑ دو.
وہ بيان كرتے ہيں: ہم تو رسول كريم صلى اللہ عليہ وسلم كے دور ميں اسے زنا شمار كرتے تھے.
اور ان كا كہنا تھا: وہ زانى ہى رہينگے چاہے بيس برس تك اكٹھے رہيں.
اور امام احمد رحمہ اللہ سے دريافت كيا گيا كہ:
ايك شخص نے كسى عورت سے شادى كى اور اس كے دل ميں تھا كہ وہ اس عورت كو اپنے پہلے خاوند كے ليے حلال كريگا، اور اس كا عورت كو علم نہ تھا ؟
تو امام احمد رحمہ اللہ نے جواب ديا:
يہ حلالہ كرنے والا ہے، جب وہ اس سے حلالہ كا ارادہ ركھے تو وہ ملعون ہے"
اس بنا پر آپ كے ليے اس عورت سے پہلے خاوند كے ليے حلال كرنے كى نيت سے نكاح كرنا جائز نہيں، اور ايسا كرنا كبيرہ گناہ ہو گا، اور يہ نكاح صحيح نہيں بلكہ زنا ہے، اللہ اس سے محفوظ ركھے.
واللہ اعلم.
نكاح حلالہ حرام اور باطل ہے
