FIQH AN-NISAA: Different ways of divorce [Adh-Dhihaar]

It is a statement of a man telling his wife, "You are like my mother’s back to me." If he says, "You are like my mother’s belly for me," according to the Shaafiee scholars, it is still adh-dhihaar. There are differences of opinion when the mother is not specifically mentioned. For example, "You are like my sisters back to me. "According to Imaam Shaafi’ee old thought, this was not adh-dhihaar except when the mother is specifically mentioned. As the Quraan states it, or as stated in the hadeeth of Khawlah whom Aws proclaimed adh-dhihaar against. In his new thought he said it is adh-dhihaar. That is the position of the majority of the scholars.

Also, the scholars differ in the case of someone that is forbidden absolutely. Imaam Shaafiee said it is not adh-dhihaar while Imaam Maalik saidit is adh-dhihaar. Imaam Ahmad has two positions. Let us assume that he says,"Like my fathers back", according to the majority of scholars, this is not adh-dhihaar. He proclaims it to be adh-dhihaar in so far as what he has likened it to is forbidden as far as sexual intercourse is concerned. This holds true also with animals (cattle). Adh-dhihaar takes place with all the words (objects) that are forbidden for marriage or sexual intercourse; with the condition that he said them with that intention; and kaffaarah is obligatory for whoever says it as Allaah says. However, the kaffaarah is obligatory if the husband said it with the clause that he intended going back to her. That is the position of majority of scholars. According to Thawree and a narration from Mujaahid kaffaarah is obligatory if he has uttered adhdhihaar without any clause or condition."

According to At-Tabaraanee and Ibn Mardawah from the hadeeth of Ibn "Abbaas, adh-dhihaar has existed since the time of jahiliyyah, During the time of jahiliyyah, adh-dhihaar made women forbidden. The first person to use adh-dhihaar in the Islamic era was Aws ibn As-Samit His wife was Khaulah. Imaam Shaafiee said, "I heard fromthe pleased ones among the people of knowledge saying, The people of jahiliyyah divorced their wives in three difference ways: adh-dhihaar, al-eelaa and at-talaaq. Allaah affirms at-talaaq (divorce) as attalaq while He judges the issueof al-eelaa (oath of abstention) and adh-dhihaar the way He has explained it in the Quraan."

It is narrated from Yusuf bin Abdullah bin "Abdus-Salaam from Khuwailah bint Maalik bint Tha'labah who said, "My husband, Aws bin As-Samit, made adh-dhihaar from me. I went to the Messenger of Allaah and laid my complaint with him. The Messenger of Allaah argued with me in relation to it and said, Fear Allaah, because he is the son of your uncle.I was not satisfied until the (ayah of the) Quraan was revealed. Allaah says: "Indeed Allaah has heard the statement of her (Khaulah bint Thalabah) that disputes with you (O Muhammad SAW) concerning her husband (Aus bin As-Samit), and complains to Allaah. And Allaah hears the argument between you both. Verily, Allaah is All-Hearer, All-Seer." (Mujaadalah [58]: 1) He said, He should free a slave Khaulah responded, He cannot do it.He said: He should fast two consecutive monthsShe replied: "O Messenger of Allaah! He is an old man, he does not have the power to fast such.He said: "He should feed sixty needy people." She said, "He doesnt have anything with which to do the charity. She said: "The Prophet (salallahu alayhi wa sallam) said: I will help him with an "arq of a tamr. I said, "O Messenger of Allaah! I will assist him with the remaining "arq," The Prophet (salallahu alayhi wa sallam) said, "You have done well. Go and feed sixty needy persons on. his behalf and return to your uncles son, " (Abu Dawud).

This article was culled from the publications of Deen Communication Limited

 

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