Three Divorces before Consummation of Marriage

Three Divorces before Consummation of Marriage

Question:

What is the Islamic ruling on pronouncing 3 divorces in one go before consummation of marriage? Do they result in 3 divorces or is it only one divorce?

Answer:

In the name of Allah, Most Compassionate, Most Merciful,

As explained comprehensively in a previous answer titled ‘The Issue of Three Divorces’ that if a man pronounces three divorces at once to his wife, then all three divorces come into effect, and the woman is free to re-marry after the termination of her waiting period (idda). It was mentioned, in light of many evidences, that this is the position taken by all four Sunni schools of Islamic law and the overwhelming majority of the Sahaba (Allah be pleased with them all) and the Tabi’un (followers).

However, this ruling applies to the standard situation where the marriage has been consummated. If the marriage is not consummated, however, then a different rule applies, as follows:

The jurists (fuqaha) of the Hanafi School assert that when a marriage is not consummated, three divorces pronounced in one sentence do result in three; but if they are pronounced in separate sentences, then only the first divorce comes into effect, and not the second and third one.

It is stated in Al-Fatawa al-Hindiyya:

“If a man pronounces three divorces to his wife before consummating the marriage, all three come into effect. However, if he separates the [pronouncement of three] divorces, she will be irrevocably divorced from him with the first one; hence, the second and third divorces will not come into effect. (Al-Fatawa al-Hindiyya 1/373)

Similarly, Imams Haskafi and Ibn Abdidn (may Allah have mercy on them) have explained in Radd al-Muhtar ala ‘l-Durr al-Mukhtar that if a man, before consummating the marriage, says to his wife, “I divorce you thrice/three times” then all three divorces come into effect. However, if he utters three separate pronouncements of divorce such as “I divorce you, I divorce you, I divorce you”, then it only results in one divorce.

The reason for this, they explain, is that when a marriage is not consummated, the wife is irrevocably divorced (ba’ina) with the first pronouncement of divorce [i.e. “I divorce you”], since there is no obligation upon her to observe the waiting period (idda) as mentioned by Allah Most High in the Qur’an: “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 (idda) for you that you may count…..”(Qur’an 33/49)

As such, the second and third pronouncements of divorce will be directed at a woman who has already been irrevocably released from the marriage and who is not observing the Idda. Conversely, when all three divorces are pronounced in one sentence [i.e. “I divorce you three times”], then due to them all being directed at one’s wife collectively, they will all come into effect. (Radd al-Muhtar 3/284-286)

Finally, it is important to note here that the above ruling [i.e. the second and third divorces not coming into effect] applies when, as discussed, the marriage is not consummated and neither have the couple been in privacy in a way that there was no possible deterrent from having sex (khalwa al-sahiha). As such, even if the marriage was not consummated but the couple remained in privacy, the second and third divorces would stand.

This is due to the fact that ‘Khalwa (being in privacy)’ here has the same implication as that of consummation of marriage. A woman divorced before consummation but after ‘Khalwa’ is also obligated to observe the waiting period (idda), and as such, the subsequent divorces will be pronounced by the husband in this period. (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/119)

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Question #: 6025
Published: 01/04/2009
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