Al-Baqarah 2:229

The issue

The Qur’ān justifies, or approves, repeated divorces. According to verse 229, the man is given the right to divorce his wife twice and to remarry her after the first and second divorces. But, if he divorces her a third time, she is not allowed to return to her ex-husband, “until she marry another husband” (Q 2.230). (See the article “Women in the Qur’ān” on page 117.)

A story is told that a Muslim called Thābit Ibn Yasar from the Ansār divorced his wife. When her period of waiting (‘idda) was near its end, he would take her again and then divorce her again. He would do that just to hurt her. To end this type of abuse, the verse Q 2.231 came down, saying, “but do not keep them by force to transgress….” Did the above-mentioned man find support for his practice in a jāhilīya (pre-Islāmic) custom or in an Islāmic principle that was later annulled? Because there is no information about the basis for this practice, we cannot come to a final verdict. However, this principle used to allow the man, if he divorced his wife, to take her back before the end of her ‘idda, no matter how many times he divorced her.

This pre-Islāmic principle allowed men to toy with the destiny of their wives, taking them back and then rejecting them. The Muslim scholars explain that the reason for enacting “until she marry another husband” is to prevent the husband from playing with his wife’s emotions and to liberate her from being a pawn of his moods. Muslim scholars further studied the meaning of “until she marry another husband” and gave two viewpoints on the application of this statement:

In the first viewpoint, scholars believe that what is meant by the word nikāh (“marry”) in the verse is “having a marriage contract.” Once the other person (wife) is “contracted,” even if the couple (wife with second husband) does not have sexual intercourse, she could go back to the first husband.

In the second viewpoint (the view held by most scholars) nikāh means sexual contact. They supported this opinion with a story about the wife of Rifā‘a al-Quradhiy, whose name was Tamīma bint Waheb. She was divorced by her husband but she married another man simply to enable her to return to her ex-husband under Islāmic laws. But Muhammad said to her, “Do you want to go back to Rifā‘a? Not until you experience dhawq al-‘asīla with him [her second husband], and he with you.” While this expression is usually translated as “experiencing orgasm,” there are other views on the meaning of these words.

Muhammad’s remarriage condition (dhawq al-‘asīla) is explained in two different ways:

1. The scholars explain this condition as the act of having sexual relations. They use the expression taghyīb al-h. ashafa (making the tip invisible) to describe having intercourse. The Companions of Muhammad agreed that a woman is not lawful to her ex-husband until the other husband has had intercourse with her.

2. The second explanation means the genitals are touching one another. They use the expression iltiqā’ al-khitānayn (meeting of the tips of the parts). However, it is clear from the story of Rifā‘a’s wife that Muhammad meant complete sexual contact; option two above would not fit this criteria. He clearly confirmed this, saying, “Nothing but a marriage of desire. ‘No’ to a fraudulent marriage, and ‘no’ to making a mockery of the book of Allah. Then, he must experience dhawq al-‘asīla with her.” Thus, he warned against tah. līl, an intervening marriage contracted for the sole purpose of legalizing a remarriage between a divorced couple. Muhammad said, “Allah[’s] curses be upon the muh. alil, the one making it permissible, and the muh. alal lahu, the one that it would become lawful to.” Muhammad further described the person who would play the role of the muh. alil, saying he is “a borrowed billy goat.”

Hence, the process of going back to the first husband necessitates going through the following stages:

• Waiting the mandated period of time (‘idda);

• Making a marriage contract with the second husband;

• Having sexual intercourse with the second husband (dhawq al ‘asīla);

• Divorcing the second husband;

• Waiting the mandated period of time (‘idda).

Without any doubt, removing the custom allowing a man to overly manipulate a woman was necessary. However, does the enactment by Muhammad that is based on “until she marry another husband” and “experiencing dhawq al-‘asīla with him” show that it is a heavenly ruling? This method of dealing with divorce requires the education of legislators and their own personal understanding of the relationship between a man and a woman rather than a divine or theological view.

Note: The rule of divorcing three times does not apply to all Muslims. Islāmic scholars ruled that a slave can marry only two women and only divorce twice. The waiting period for a slave woman before remarrying is two menstrual cycles; however, if she is not experiencing menses, then it is two months. This waiting period is shorter than for a free woman, who must wait through three menstrual cycles.