Can the right of divorce (talaq) be given to the woman too? Can a man easily divorce a woman by saying “divorce” to her three times? Does it not have drawbacks?

Although both parties have to give their consent for the establishment of marriage, why is it that only the man has the authority to end the marriage, and on what grounds? Will you please explain in detail?

Dear Brother / Sister,

Islam has given the right to divorce to the man because the power of divorce, which can destroy a marriage in an instant, could not be given to the woman, who can often act emotionally. If this right belonging to the man had been given to the woman in the same way, the destruction of the marriage would occur frequently; the woman who would use the word divorce in every moment of anger and rage would not be able to keep the home standing, and it would collapse. It is because of this sensitivity of the woman the following is stated in the aphorisms:

“The woman is always dominated by feelings and the man by reason.”

The right to divorce was not given to the party overwhelmed by feelings in the first place.

However, the woman is not completely deprived of this right. During the marriage contract, the woman can say yes to the marriage on the condition that she is given the right to divorce. This right can be valid for life or for a certain period of time. During this period, if she is sure of her husband, she can give up her right to divorce before the end of that period. The man cannot take back this right of divorce that he gave at the time of marriage even if he later regrets it. He is obliged and bound to be faithful to what he promised.

In Islamic law, “tahyir” actually means the transfer of the right to divorce. The husband gives his wife the option of divorcing him or staying with him. The decrees of the fiqh scholars deduced from the Book and Sunnah on this issue are as follows:

1) Once the husband has given this right to his wife, he cannot take it back or prevent her from using it. However, the wife does not necessarily have to use this right. She can decide to stay married to her husband, or to divorce him, or she can choose to do neither and cancel the right of tahyir.

2) There are two situations in which this right (tahyir) can be transferred to the woman:

      a) The husband must make it clear that he has given his wife the right to divorce. If he does not explicitly mention divorce, he must have that intention. For example, indirect statements like “It is your choice” or “It is up to you” do not cause the right to divorce to pass to the wife unless the husband’s intention is certain. If the wife makes a claim and her husband swears that he did not mean it, the husband’s statement will be accepted unless the wife proves that those words were uttered during a quarrel or in connection with divorce. If they are uttered during a quarrel, they are regarded to have been uttered with the intention of divorce and tahyir.

      b) The woman knows that she has been given the right to divorce. If she was not there when it was said, she would learn it from others, and if she was there, she would hear it herself. The right of divorce does not pass to her unless she hears those words or is informed of them.

3) As for the time limit for her to use this right, if her husband has given her the right to divorce without specifying a time limit, fiqh scholars have different opinions on the issue. Some scholars are of the opinion that she should use her right in the assembly where her husband has given her this right. If the woman leaves the assembly without giving any answer, or if she turns her attention to something else as if she does not want to give an answer, it means she has given up the right she has been given, and there is no longer any right of freedom of choice for her. That is the view of Umar, Uthman, Ibn Mas’ud, Jabir b. Abdullah, Ata, Jabir bin Zayd, Mujahid, Sha’bi, Nahai, Imam Malik, Imam Abu Hanifa, Imam Shafii, Imam Awzai, Sufyan ath-Thawri and Abu Thawr. According to the other view, the decision is not limited to that assembly and that the woman can decide later on. That is the view of Hasan Basri, Qatada and Zuhri.

4) If the husband sets a time limit for his right, for example, if he says, “You have one month or one year to choose, or you are free to choose within such and such period,” the woman can use this right only within that period. However, if he says: “You can use this right at any time,” she can use it indefinitely.

5) If a woman decides to divorce, she must express this intention clearly and decisively. Vague and slippery words that do not fully reveal the intention are of no effect.

6) Legally, the husband can give this right to his wife in three ways: He can say, a) “It is in your hands”, or b) “Choose for yourself”, or c) “If you wish, divorce yourself”. The legal consequences of each of those statements are different:

     a) If the husband says, “It is in your hands” and the wife clearly states that she has decided to divorce him, according to Hanafis, it is a ba’in talaq (irrevocable divorce). It means that the husband and wife can remarry after that if they wish. If the husband says, “It is in your hands, but only for one talaq,” it is regarded as a rij’i talaq (revocable divorce) meaning that the husband can return to his wife within the period of iddah. However, if the husband intends to do all three talaqs at the time he gives her the right of freedom of choice, and if he himself expresses it, the woman’s use of this right is an irrevocable talaq, whether or not she says that she has divorced him three times (three ba’in talaqs).

      b) If the husband gives this right to his wife with the words “choose for yourself”, and she uses this right with a clear statement, according to Hanafis, it means revocable (rij’i) talaq even if the husband has intended three talaqs.

However, if the husband has explicitly given the right of choice for three talaqs, three talaqs will take place when the wife uses this right. According to Imam Shafii, if the husband had the intention of divorce at the time he gave her the choice, and she uses this right, it is a revocable divorce (rij’i talaq). According to Imam Malik, if this right is given to a woman who has had sexual intercourse, it means three talaqs, and if this right is given to a woman who has not had sexual intercourse, the husband’s claim that he intended one talaq is accepted.

     c) If the statement “If you wish, divorce yourself” is used, and the wife uses this right and chooses to divorce, it is a rij’i talaq (in which the husband has the right to return to his wife during the period of iddah), not a ba’in talaq (which is irrevocable without a marriage contract).

7) If the husband gives the woman the right to remain married after the husband has given her the right to choose, the divorce does not take place. Umar, Abdullah bin Mas’ud, Aisha, Abud-Darda, Ibn Abbas and Ibn Umar hold this view. Many other fiqh scholars have also accepted this view. When Masruq asked Aisha (ra) about it, she replied as follows: “The Prophet (pbuh) gave his wives the right to choose and they chose to live under his marriage. So can it be considered talaq?” According to the narrations regarding the issue, Ali (ra) and Zayd (ra) are of the opinion that in such a case, an irrevocable talaq takes place. However, according to another narration, both of those two Companions hold the view that talaq does not occur.

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