Tafsir of Surah Al-Baqarah - Verse 236

Divorce before consummating the Marriage

Allah allowed divorce after the marriage contract and before consummating the marriage. Ibn `Abbas, Tawus, Ibrahim and Al-Hasan Al-Basri said that `touched' (mentioned in the Ayah) means sexual intercourse. The husband is allowed to divorce his wife before consummating the marriage or giving the dowry if it was deferred.

The Mut`ah (Gift) at the time of Divorce

Allah commands the husband to give the wife (whom he divorces before consummating the marriage) a gift of a reasonable amount, the rich according to his means and the poor according to his means, to compensate her for her loss. Al-Bukhari reported in his Sahih that Sahl bin Sa`d and Abu Usayd said that Allah's Messenger ﷺ married Umaymah bint Sharahil. When she was brought to the Prophet he extended his hand to her, but she did not like that. The Prophet then ordered Abu Usayd to provide provisions for her along with a gift of two garments.

Commentary

Keeping dower and consummation in view, divorce can be of four situations. The injunction concerning the first two of these has been stated in these verses. (1) Dower is not fixed and consummation has not taken place. (2) Dower is fixed but consummation has not taken place. (3) Dower is fixed and consummation has taken place. Here the fixed dower will have to be paid in full. This injunction appears elsewhere in the Holy Qur'an. (4) Dower has not been pre-fixed but divorce was given after consummation. Here full mahr al-mithl مھر المثل (a dower as in the divorcees' family) will have to be paid. It means the amount of the dower will be the same as customarily given in the immediate family circle of the woman. This too has been taken up in yet another verse of the Holy Qur'an.

The injunction related to the first two situations has been stated in the verses appearing here. Out of the two, the injunction for the first situation is: No dower is due but it is obligatory for the husband to

give something on his own to the woman -- the least being a set of clothes. In fact, the Holy Qur'an has not fixed any amount for this gift. However, it does indicate that the affluent should give in accordance with their capacity, which carries an element of persuasion for the man of means who should not behave tight-fisted in this act of grace. Sayyidna Hasan ؓ ، in a situation like this, gave a gift of twenty thousand dirhams to the divorced woman, and Qadi Shurayh, that of five hundred dirhams; and Sayyidna Ibn ` Abbas ؓ has said that the lowest degree here is to give one set of clothes. (Qurtubi)

If the bride-gift is fixed at the time of marriage, but separation takes place before the consummation of the marriage, according to the Islamic law, half the dower fixed shall be paid by the man to the woman. But the spirit of goodwill calls for both husband and wife to adopt a liberal rather than a legal attitude. The woman should feel that, when the marriage has not been consummated she should, as the law requires, remit half the amount of the bride-gift due to her. While the man should feel, that although he is legally entitled to deduct half of the amount, he should rather hand over all of it as a gesture of goodwill. This attitude of liberality and goodwill is required in all matters of life. A truly Muslim society is that in which its members are more interested in giving to one another, rather than in taking from one another. Furthermore, this attitude of liberality should be evinced in times of enmity as well as in friendship.