Fiqh

Types of Divorce and Orders of Return

Fiqh 215-216

 

Irrevocable and revocable divorce

– Irrevocable divorce means that after the divorce, the husband is not entitled to take back his wife, that is, he is not entitled to take her as his wife without Nikah.

This divorce is of many kinds namely:

The divorce of a woman who is in menopause. The divorce of a woman whose husband has not had sexual intercourse with her after their marriage. The third divorce of a woman who has been divorced three times. The divorce called Khul’a and Mubarat. The divorce by intervention of Mujtahid, in the case of a wife whose husband is neither prepared to maintain her nor to divorce her.

Rules pertaining to these kinds of divorces will be detailed later. Divorces other than these are revocable, in the sense that as long as the wife is observing Iddah her husband can take her back.

– When a person has given revocable divorce to his wife, it is haram for him to expel her out of the house in which she was residing at the time of divorce. However, in certain cases, like, when she has committed fornication or adultery there is no harm in expelling her. Also, it is haram for the wife to go out of the house unnecessarily, without her husband’s permission.

Orders regarding return (Ruju’)

In the case of a revocable divorce a man can take back his wife in two ways:

-By telling her words which would mean that he wants her again as his wife. By acting in a manner which would convey his intention to take her back

And taking her back will be established by sexual intercourse although the husband may not have intended it. But touching, kissing, with or without intention of taking her back is not sufficient

– It is not necessary for taking her back that the husband should call any person to witness, or should inform his wife. On the other hand if he takes her back without anyone else realizing this, the Ruju’ is in order. However, if the husband claims after the completion of Iddah that he took his wife back during Iddah, he must prove it.

– If a person who has given revocable divorce to his wife takes some payment from her, making a compromise with her that he will not make Ruju’ to her, though this compromise is valid and it is obligatory on him not to ‹return›, yet he does not forfeit the right to ‹return›. And if he ‹returns› to her, the divorce given by him does not become the cause of their separation.

– If a man divorces a woman twice and takes her back, or divorces her twice and takes her back by Nikah, or takes her back after one divorce and returns her by Nikah after the second divorce, she becomes haram for him after the third divorce. But if she marries another man after the third divorce, she becomes halal for the first husband on fulfilment of five conditions, that is, only then he can remarry her.

The marriage with the second person should have been of permanent nature. If he contracts with her a temporary marriage for one month or a year, and then separates from her, the first husband cannot marry her. The second husband should have had sexual intercourse with her, and the obligatory precaution is that the sexual intercourse should have taken place in the normal way. The second husband divorces her, or dies. The waiting period (Iddah) of divorce or Iddah of death of the second husband should have come to an end. On the basis of obligatory precaution the second husband should have been Baligh at the time of intercourse.

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