An irrevocable (bci ‘in) divorce becomes operative immediately with all the legal effects attendant on the dissolution of a marriage with regard to matrimonial and financial rights.
After divorcing the wife for the first and the second time, the husband may take her back by means of a new marriage and a new dower.
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A revocable (raj’i) divorce becomes operative only after the expiration of the waiting-period; within that period, the husband may take the wife back without her consent and without a new marriage, by express declaration or significant conduct, provided the marriage had been consummated; he may take her back to this way after the first and the second divorce.
If the husband does not take the wife back within the waiting-period, the divorce becomes irrevocable, and if he subsequently wishes to take her back, it has to be by means of a new marriage and a new dower.
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After the third divorce, the wife is not permitted to return to the husband either during the waiting-period or by means of a new marriage until she has been married to another man, the new marriage has been consummated or she has been divorced by the other man in good faith.
The purpose of this harsh provision, the tahlil introduced by Muhammad, is to prevent ill-usage of the wife by unlimited alternate divorce and reinstatement (without a new marriage), in other words, to deter the husband from such a divorce by creating a formidable obstacle to his taking back the wife after she has been divorced for the third time.
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This provision was stultified by all the orthodox schools, which permit divorcing one’s wife in one session by, the use of an expression known as triple repudiation, which has the effect of three separate divorces, although they deprecate this form of divorce as taldq al-bid’ci (in contrast to the various forms of taldq al-sunna, recommended by them). Muhammad’s provision thus did not achieve its purpose and may even have aggravated the position from the point of view of both spouses.
The various kinds of divorce take effect through explicit (,sarih) or metaphorical (kindya) taldq expressions and differ from one another as to the formula, the degree of finality and the element of the husband’s intent (niyya).
The Ottoman legislator, although recognizing both explicitly and metaphorically pronounced divorces, lay down that the meaning of the expression used must be known and clear; if it is not, the divorce is valid only after the husband’s intention to divorce the wife has been proven.
The Sijills contain a variety of triple repudiation formulas, including some combining triple repudiation with archaic expressions, such as Ila and Zihdr: About 90% of Taldq divorces were single, irrevocable ones.
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In fewer than 10% of divorces other than by judicial proceedings, the wife was divorced three times. This was almost always done in one session by triple repudiation, only rarely was the wife divorced by three separate acts.
Almost three-quarters of the triple repudiations were taldq divorces performed unilaterally by the husband, as against about one-quarter which was by the mutual agreement. Triple repudiations constitute about one-quarter of taldq divorces other than by agreement.
Triple repudiation was particularly frequent under the following circumstances: a fit of anger, or provocation by the wife; an affront to the husband’s honour, disgraceful misconduct of the wife, such as adultery; serious disputes between the spouses or their families; suspended repudiation intended to make the wife obey the husband by the threat of the ultimate sanction, or a vow of divorce intended to demonstrate serious intention or firm belief regarding a matter not necessarily connected with the wife (more than one-third of suspended repudiations were by triple repudiation);
In the case of exchange marriages, triple repudiation of one of the wives, which leads to triple repudiation of the other; in the case of childlessness or a cousin marriage, where the spouses wish to demonstrate that they do not intend to restore their marriage in the future; the husband’s wish to grant the wife maximum freedom in return for renunciation of matrimonial rights; and the intention to take another wife in place of the divorced one.
The Sijills do not to a significant extent reflect the grave human problems likely to arise from the desire of the spouses to restore their marriage legally after a triple divorce. The author came across only one instance of an intermediate marriage, and this was undoubtedly a fictitious marriage contracted specifically Biqasd al-tahlil, in order that the wife might again be permitted to return to her first husband, in express contradiction to the Shari’a (as propounded by some schools of law).
The second “husband” told the court ingenuously that he had contracted the marriage as a Muhallil min al-talaq, one who causes the wife to be again permitted to her first husband, from whom she has been separated by triple repudiation. He swore that he had consummated the marriage.
Thereupon the wife was divorced, at her request, on agreed terms of renunciation; the qadl confirmed the divorce and instructed her to observe the ‘idda before remarrying. The ease with which this divorce was performed and confirmed may indicate that this was a customary way of circumventing the intermediate- marriage provision.
Another method was referred to in a case in which the wife alleged that the husband had divorced her some years previously by triple repudiation and had remarried her a year later without her having been married to another man.
There can be no doubt that such things actually happened, and if they are not reflected in the Sijills, it is because the spouses was anxious to raise problems. The author came across only a limited number of cases in which the wife joined or objected to a triple repudiation,’ and not one case which she tried to soften the blow by claiming there had only been a single repudiation.
Moreover, in a not inconsiderable prober of cases, the wife applied to the court on her own Initiative for registration of a triple repudiation, and sometimes she demanded that the husband perform such a repudiation in return for her renouncing various matrimonial rights or paying in compensation.
Revocable divorce was not widely practiced: according to |je sijills, it represents about 3% of all divorces other than judicial. The real figure is probably higher because there is evidence that the husband who divorced his wife and then took her back during the waiting-period sometimes did not trouble to register the divorce.
This can also be inferred that the fact that the qddi, when called on to confirm the divorce and the wife’s reinstatement, sometimes asked the parties to declare any divorce that might have preceded the divorce question or decided that the husband might take back or refinery the wife if the quota of three divorces had not been filled. In other words, the courts had no way of keeping track of the matter.
It seems that revocable divorce achieved its original purpose in the sense that the husband, regretting his rash act, took face the wife before the end of the waiting-period. He sometimes will do so at the very time the divorce was registered, and sometimes he used go-betweens, ahl al-khayr, for the purpose.
Might ask the court to regard the divorce as revocable so he could take the wife back; this request was occasionally backed up by the plea that the divorce was pronounced in a of anger.24 Sometimes in the case of an irrevocable divorce a husband asked a religious functionary or qddi for a legal opinion, (fatwd) enabling him to take the wife back without a view marriage.
In a few cases the wife was not taken back during the waiting-period and the divorce became irrevocable. Revocable divorce might be combined with suspended repudiation. This combination was apparently intended to ensure the wife’s obedience by deterrence while giving her two chances before the final dissolution of the marriage.
If she failed to obey and the condition was thus fulfilled, she became revocable divorced, but if she persisted in her disobedience during the waiting-period, the husband might not take her back and the divorce would then become irrevocable.
Also, in this manner, the husband reserved to himself the option to preserve the marriage and take the wife back during the waiting-period. Moreover, on reinstatement of the wife during the waiting- period, the question of divorce against the wife’s will was no longer of real concern although the divorce was still counted as one of the three permitted by the shari’a.
At the same time, there is evidence that the question of the wife’s consent arose also in the case of revocable divorce. In several cases in which a suspended repudiation was to give added weight to some pronouncement of the husband totally unconnected with the wife, the husband asked that the divorce be regarded as revocable when the pronouncement had proved wrong.
In other cases, the wife was revocable divorced under an agreement between the parties according to which she renounced various matrimonial rights. It seems that the husband wished to retain an option to take the wife back while restoring the rights she had renounced.
From the wife’s point of view, revocable divorce was advantageous or disadvantageous according to the circumstances of the case: where she did not want a divorce, she hoped that the husband would exercise his right to take her back during the waiting-period; where she wanted a divorce, she feared that he would exercise this right.
Both cases involved an intermediate state of uncertainty and insecurity for the wife: she might be for many months in a limbo between marriage and a divorce. This situation is perhaps the most unpleasant manifestation of the freedom of talaq vested in the husband by Islamic law.
The author came across some cases in which the husband divorced his wife, took her back, divorced her again, took her back again and then divorced her a third time. The outrage was still greater in the case of an exchange marriage, where the alternate divorce and reinstatement of one wife automatically entailed a similar treatment of her badila’
On the other hand, where the wife was not interested in the marriage, she might claim that she had been revocable divorced, that the waiting-period had passed without her being reinstated and that the divorce had thus become irrevocable; or she might contend that she had been irrevocably or triply divorced in the first place whereas the husband might deny having divorced her at all or admit only to a revocable divorce or ask that the divorce be regarded as revocable.
In one case, the wife said that the husband had taken her back against her will by having intercourse with her by force and threats, and that she still did not want ever to be his wife again.36 In sum, it may be said that Muslims are not strict with regard to talaq al-sunna and talaq al-bid’a. Revocable divorce, which is the type most recommended by all the schools, was rather rare, while divorce by triple repudiation, which is the most frowned on, was rather frequent.