42 At the time when this verse was sent down, the Holy Prophct had four wives with him: Hadrat Saudah, Hadrat 'A'ishah, Hadrat Hafsah and Hadrat Umm Salamah. He had not yet married Hadrat Zainab. (Ibn `Arabia Ahkam ai-Qur an. Egyptian Edition, 1958, vol. III, pp. 512-13). When this verse was revealed, he first spoke to Hadrat 'A'ishah, and said: "I ask you a thing; do not be hasty in answering; consult your parents, then decide." Then he told her of Allah's Command and recited this verse. She replied: "Should I consult my parents about this?-I seek Allah and His Messenger and the Hereafter. After this he went to each of his wives and asked the same thing and each one gave the same reply as had been given by Hadrat `A'ishah. (Musnad Ahmad, Muslim, Nasa'i).
This is termed takhyir, i. e. to give the wife the option to decide for herself whether she would stay in wedlock or would separate from the husband. This was obligatory for the Holy Prophet because he had been commanded by Allah to offer such an option to his wives. If a lady from among the holy wives had opted to separate she would not have separated automatically but would have been separated by the Holy Prophet, as is clear from the words: " . . . I shall give you of these and send you off gracefully." But the Holy Prophet would certainly have separt red her because as a Prophct it would not behove him not to honour the word. After divorce apparently the lady would have stood excluded from the category of the holy wives, and she would not be forbidden to any other Muslim; for she would have chosen divorce from the Holy Prophet only for the sake of the world and its adornments of which she had been given the choice, and obviously the option could not be exercised in case she was forbidden to re-marry. On the other hand, the intention of the verse also seems that the Holy Prophet was not left with any authority to divorce the wives who chose Allah and His Messenger and the Hereafter in preference to the world. For takhyir had only two sides: if a wife opted for the world, she would be divorced; if she opted for Allah and His Messenger and the Hereafter, she would not be divorced. Obviously, if a lady chose one alternative, the other would become forbidden in her case by itself.
In Islamic Law takhyir. in fact, amounts to delegation of the right to obtain divorce. The husband himself gives the wife the choice to stay in wedlock with him or be separated. Here are briefly the injunctions which the jurists have derived from the Qur'an and Sunnah in this regard:
(1) Once a husband has given this choice to a wife, he can neither withdraw it nor stop her from exercising it. However, it is not necessary that the woman must exercise it. She may choose to remain in wedlock with the husband, or may prefer to separate, or may opt nothing and let the right of divorce be annulled.
(2) There are two conditions of this choice being transferred to the woman: (a) The husband should have given her the right of divorce in clear words, or if there was no clear mention of the divorce, he should have had the intention of giving this right; e.g. if he says, "You have the choice" or "your business is in your own hand," such indirect words will not transfer the right of divorce to the woman without the intention of the husband. If the woman claims it and the husband states on oath that he had no intention of giving the right of divorce, his statement will be admitted, unless the woman produces evidence to the effect that those words were said during a dispute, or in connection with divorce, because in that context delegation of the right would mean that the husband had the intention of giving the right of divorce. (b) The woman knows that she has been given the right of divorce. If she was absent, she should receive information of this, and if she is present, she should hear the words. Unless she hears the words, or receives the news, the right will not be transferred to her.
(3) As to the time limit within which the wife has to exercise her right if the husband gives it her absolutely without specifying any limit, there is a difference of opinion among the jurists. Some jurists have expressed the opinion that the woman can exercise the right at the same sitting at which the husband gave it her; if she leaves the place without making a response, or turns her attention to something else which indicates that she does not want to make a response, she forfeits the right invested in her and her choice no longer remains. This is the opinion of Hadrat `Umar, Hadrat `Uthman, Hadrat Ibn. Mas`ud, Hadrat Jabir bin `Abdullah, `Atta, Jabir bin Zaid, Mujahid, Sha'bi, Nakha`i, Imam Malik, Imam Abu Hanifah, Imam Shafe`i, Imam Auza`i, Sufyan Thauri `and Abu Thaur. The other opinion is that her exercise of the choice is not confined to that sitting but she can exercise it even afterwards. This opinion is held by Hadrat Hasan Basri, Qatadah and Zuhri.
(4) If the husband specifies a time limit and says, for instance, "You have the option for a month or a year, or your business is in your own hand for so long," the wife would enjoy the option only for that long. However, if he says, "You can exercise this option as and when you like," her option would be unlimited.
(5) If the woman intends to obtain separation, she should express her intention clearly and definitely. Vague words which do not express the intention clearly will have no effect.
(6) Legally, the husband can give the option to the waft in three forms:
(a) He may say, "Your business is in your own hand;" or
(b) he may say: "You have the option; " or
(c) "You are divorced if you so please. "
The legal consequences of each arc separate as explained below:
(a) If the husband has said: "Your business is in your own hand," and the woman responds clearly to the effect that she would opt for separation, it would amount to an irreversible divorce according to the Hanafites. That is, after this the husband will forfeit his right to have her back as his wife. However, they can remarry if they so like after the expiry of the waiting period. And if the husband said, "Your affair is in your own hand to the extent of one divorce," this will be regarded as the first reversible divorce. That is, the husband can take her back as his wife within the waiting-period. But if the husband had the intention of all the three divorces at the time of delegating to the woman the right of divorce, or mentioned this specifically, the woman's exercise of the option in such a case would amount to divorce no matter whether she pronounces divorce thrice on herself or says only once that she has chosen separation or divorced herself.
(b) If the husband gives the woman the option to separate with the words: "You have the option," and the woman opts for separation in clear words, it will amount to one reversible divorce according to the Hanafites even if the husband had the intention of giving option for three divorces. However, if the husband has clearly given option for three divorces, the three divorces will take place only on the woman's exercise of the option for divorce. According to Imam Shafe'i, if at the time of giving the option, the husband had the intention of divorce, and the woman opts for separation, it will amount to one reversible divorce. According to Imam Malik, it will amount to three divorces in case the wife had been enjoyed; in case she had not been enjoyed, the husband's claim to have intended only one divorce will be admitted.
(c) In case the words "You are divorced if you so please" have been used and the woman has opted for divorce, it will be a reversible divorce and not an irreversible one.
(7) If after the husband has given the option for separation, the woman chooses to remain in wedlock, no divorce will take place at all. This is the opinion of Hadrat 'Umar, Hadrat 'Abdullah bin Mas'ud, Hadrat 'A'ishah, Hadrat Abu ad-Darda, Ibn `Abbas and Ibn `Umar, and the same has been adopted by majority of the jurists. When Masruq asked Hadrat `A'ishah about this, she replied: "The Holy Prophet had given his wives the option and they chose to continue to live as his wives. Then, was it deemed to be a divorce?" The opinion of Hadrat `Ali and Zaid bin Thabit that has been reported in this regard is that one reversible divorce will take place. But according to another tradition these two great Companions also held the opinion that no divorce will take place at all.
