If a man issues one clear divorce to his wife before their marriage is consummated, can he revoke that divorce? What if the marriage has not been consummated, but the couple has been alone together?
In the case of a divorce taking place before consummation of marriage, the legal ruling (hukm shar’i) needs to be understood in relation to two important matters:
1) The Waiting Period (idda)
a) If the marriage has not been consummated and neither has the couple been alone together (khalwa), and the husband pronounces one divorce, then there is no obligation upon the woman to observe the waiting period (idda). Allah Most High says:
“O you who believe, when you marry believing women and then divorce them before you have touched them; then they have no obligation of any waiting period for you that you may count…..” (Qur’an: 33/49)
According to the Hanafi jurists (fuqaha), the statement “before you have touched them” refers to consummation (dukhul) as well as being alone together. As such, if both – consummation and being alone – did not take place, the woman is not obligated to observe the waiting period.
b) However, if the marriage was not consummated but the couple did remain alone together, then observing the waiting period is necessary.
It is stated in Al-Fatawa al-Hindiyya, “The waiting period is necessary after being alone together (khalwa), regardless of the presence of a deterrent from having sexual intercourse (fasida) or otherwise (sahiha).…” (Al-Fatawa al-Hindiyya 1/306)
The renowned Hanafi jurist Imam Ibn Abidin (Allah have mercy on him) states, “The [reliable] position of the [Hanafi] School is that of the obligation of observing the waiting period after being alone together, regardless of the presence of a deterrent from having sexual intercourse (fasida) or otherwise (sahiha). (See: Radd al-Muhtar ala ‘l-Durr al-Mukhtar 2/483)
In other words, being alone together (khalwa) – in this case – has the same implication as that of consummation. A woman divorced before consummation but after ‘Khalwa’ is also obligated to observe the waiting period (idda). As for being alone witha deterrent from having sexual intercourse – known as khalwa fasida – there is an opinion within the Hanafi School that idda is not necessary, but the reliable and mainstream position is that idda is necessary in this case also. (See: Fatawa Mahmudiyya 13/382)
2) Revoking the Divorce (raj’a)
Normally, when a divorce is pronounced in clear words after consummation of marriage, it results in a revocable (raj’i) divorce and, as such, the husband has a right of revoking the divorce/taking the wife back (raj’a) within the waiting period.
However, when a divorce is pronounced in clear words before consummation of marriage, it results in an irrevocable (ba’in) divorce and, as such, the husband does not have a right of revoking the divorce. The woman may marry another man instantly after divorce, since – as explained in the first issue – she is not obliged to observe the waiting period.
As for being alone together, in this case it does not have the same implication as that of consummation. Accordingly, even if the couple had remained alone together, the divorce is still considered as irrevocable (ba’in).
Imam Badr al-Din al-Ayni (Allah have mercy on him) states, “Consider that ‘being alone together’ has the same implication as that of consummation in relation to: [paying] the entire dower (mahr) and the obligation of the waiting period (idda), but not in relation to other than these two issues. As such, if the man divorces her [even] after being alone together (khalwa), the divorce will be irrevocable.” (Al-Binaya)
Since the divorce is considered irrevocable even after khalwa, the husband will not have a right of revoking the divorce within the waiting period.
Imam Haskafi states in his Al-Durr al-Mukhtar, “Revoking the divorce is not valid in the waiting period after remaining alone together [without consummation].” (See: Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/37)
In conclusion, to answer your specific question, if a divorce takes place before consummation AND khalwa, it results in an irrevocable divorce, and there is no idda and the husband cannot revoke the divorce. If divorce takes place before consummation but AFTER khalwa, it again results in an irrevocable divorce, and the husband cannot revoke the divorce. However, in this case, the wife is obligated to observe the idda.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK