In Islam, the legislative power lies with the God and his Prophet. Thus all the rules and traditions are based on the verses of the Qur’ān and the Hadith – sayings and actions of the Prophet. What has been ordained as halāl (legal) and harām (sinful) cannot be changed. The position of the Caliph is that of an executive successor who will promulgate what has been ordained and restrain what is forbidden.
There is much raging debate as to whether the “instant talāq” is legal or not. Was it allowed during the time of the Prophet? Is it mentioned in the Quran? Does it have any legal sanctity drawn from the Hadīs, sayings and actions of the Prophet?
When we go to the original sources, the Quran and the various interpretations and collections of the Sayings, we find that this was actually forbidden by the Prophet! And when it came to be allowed later on, people nomenclated and identified it as “biddat”, that is, something which is forbidden!
Here is what we get in the sources of Islam…Read and decide for your self:
“Abu Sahba’ said to Ibn ‘Abbas (Allah be pleased with them): Do you know that three (divorces) were treated as one during the lifetime of Allah’s Apostle (may peace be upon him), and that of Abu Bakr, and during three (years) of the caliphate of Umar (Allah be pleased with him)? Ibn Abbas (Allah be pleased with them) said: Yes.”
[Sahih Mulsim, Book 009, Number 3492]
According to Sahih Muslim the concept was brought during the period of the second Caliph, Hazrat ‘Umar ibn Khattāb. This is clear from the Hadith compilations considered authentic. Sahih Muslim very clearly mentions:
“Abu al-Sahba’ said to Ibn ‘Abbas: Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one during the lifetime of Allah’s Messenger (may peace be upon him) and Abu Bakr. He said: It was in fact so, but when during the caliphate of ‘Umar (Allah be pleased with him) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one).”
[Sahih Muslim, Book 009, Number 3493]
A Caliph can never make the halāl of the Quran and the Prophet as harām or vice versa. And if such a thing is done, even with good intentions, is transgression of legal authority; and thus illegal. It has to be rejected out rightly! Talāq-i Bida’ or the Triple Talāq is one such act.