Islam Question and Answer - The wife’s consent is not a condition of taking her back after divorce

The wife’s consent is not a condition of taking her back after divorce

If a man divorces his wife in a fit of temper, then two weeks later he comes to take her back, but she does not agree to go back to him, because he is unjust and has a number of wives, and he does not treat them fairly and he had forsaken her for more than a year – does she become haraam for him and is she regarded as divorced, or what?.

 

Praise be to Allaah.

Firstly: 

The divorce issued by one who is angry and does not know what
he is saying because of his anger or temper does not count as such. But if
his anger did not affect his reasoning, and he knew what he was saying, then
it does count as a divorce. The issue of divorce at times of anger has been
discussed in the answers to questions no.
45174 and
22034. 

Secondly: 

The husband has the right to take his wife back and it is not
essential that she agree to that, so long as he is taking her back within
the ‘iddah of a first or second talaaq, because Allaah says (interpretation
of the meaning): 

“And divorced women shall wait (as regards their marriage)
for three menstrual periods, and it is not lawful for them to conceal what
Allaah has created in their wombs, if they believe in Allaah and the Last
Day. And their husbands have the better right to take them back in that
period, if they wish for reconciliation. And they (women) have rights (over
their husbands as regards living expenses) similar (to those of their
husbands) over them (as regards obedience and respect) to what is
reasonable, but men have a degree (of responsibility) over them. And Allaah
is All-Mighty, All-Wise”

[al-Baqarah 2:228] 

This verse points to the conditions of taking back the wife,
which are: 

1-   
That it applies to talaaq
(divorce). If it is the matter of annulment of the marriage, the husband
cannot take her back, because Allaah says “And divorced women”.

2-   
That it should be a revocable
divorce, which can only be a first or second talaaq. The phrase “The
divorce is twice” [al-Baqarah 2:229] refers to the divorce where it is
possible to take back the wife. If the third talaaq takes place, then he
cannot take her back unless she marries another husband in a genuine
marriage, then he separates from her in a proper manner after consummating
the marriage.

3-   
It should be within the ‘iddah
period, because Allaah says “And their husbands have the better right to
take them back in that period” i.e., during the ‘iddah. If the ‘iddah
comes to an end and he wants to take her back, that is only possible with a
new marriage contract and mahr.

4-   
By taking her back, he should
not intend to harm her, rather he should intend to reconcile and set things
straight, because Allaah says “if they wish for reconciliation”. If
he intended to harm her, she has to prove that to the shar’i judge so that
he may rule as he sees fit. 

The verse clearly indicates that the wife has no choice in
the matter if the husband wants to take her back, and she has no right to
refuse to go back to him, because Allaah says “And their husbands have
the better right to take them back”. Even if she does not go back to his
house, if he says he takes her back and brings witnesses to that, then he
has in fact taken her back. 

Thirdly: 

The ‘iddah period during which the husband can take back the
wife is “three menstrual periods” i.e., three menstrual cycles
according to the majority of scholars, or before she gives birth, if she is
pregnant. 

Based on this, what is mentioned in the question about him
wanting to take her back after two weeks is within the ‘iddah period, unless
she was pregnant and gave birth before he took her back. 

Fourthly: 

Divorce does not take place just by keeping away from one's
spouse and forsaking her. In the answer to question no. 11681 we have
explained that a lengthy absence on the husband’s part does not count as a
divorce unless a divorce is issued by the husband or qaadi. 

Fifthly: 

The husband who has several wives must fear Allaah with
regard to his wives and treat them fairly as enjoined by Allaah. For more
information on the obligation to treat co-wives fairly, see the answer to
question no. 10091 and
13740. 

Sixthly: 

If a man forsakes his wife for no legitimate reason, that is
haraam. If he shuns her in order to set her straight and make her do some
duty that she has forsaken or give up some sin that she is doing, it is
permissible for him to forsake her. 

Undoubtedly for a man to forsake his wife for such a long
time (a year) indicates that the problem is serious and that they cannot
solve it. In that case Allaah has enjoined appointing two arbitrators, one
from his family and the other from hers, to examine the matter and rule
according to whatever they think is in the interests of the couple and will
ward off harm from the one who is being harmed. 

Allaah says (interpretation of the meaning): 

“If you fear a breach between them twain (the man and his
wife), appoint (two) arbitrators, one from his family and the other from
hers; if they both wish for peace, Allaah will cause their reconciliation.
Indeed Allaah is Ever All‑Knower, Well‑Acquainted with all things”

[al-Nisa’ 4:35] 

The husband should understand that he is enjoined to do one
of two things: 

He should either keep his wife and treat her kindly, or he
should divorce her in a proper manner, giving her her rights and not
wronging her. Allaah says (interpretation of the meaning): 

“after that, either you retain her on reasonable terms or
release her with kindness”

[al-Baqarah 2:229]. 

For more information please see the answer to questions. No.
45600 and
11971. 

And Allaah knows best.

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