Islam Question and Answer - Her husband is very bad-tempered and has divorced her three times

Her husband is very bad-tempered and has divorced her three times

I have been married for approximately nine years. My husband is a very very bad-tempered person, more than you can imagine. When he gets angry he loses his mind and does things that he does not mean. I am not giving excuses, but this is how it is and Allaah is witness to that. My problem is that on several such occasions he spoke the word of divorce (talaaq) and I want to know: does this count as a divorce or not? 


On the first occasion we were travelling abroad and there was a big problem. He said to me: “You are divorced when we go back to our country.” He says that this was intended as a threat, to scare me. In fact we came back to our country and he forgot about the matter, but I did not forget. I asked our Shaykh and he said that this did not count as a divorce and he explained that to me. 


On the second occasion, following a big problem he beat me then left the house. I did something foolish, and sent him nine messages on his cell phone, all of them insults and put-downs. He sent me a message saying “You are divorced.” That happened in the afternoon, and he came back at night and it was as if nothing had happened and we made up. On that occasion I also asked a Shaykh and he said that the divorce sent by message did not count. 


On the third occasion, there was another big problem and he got very angry, to such an extent that he did not know what he was doing. He divorced me and I went to my family’s home, but he went to the court and the qaadi ruled that the divorce did not count, so he took me back after the family got involved, and I went back to him. 


In all these cases he did not really mean to divorce me, and in fact the last of these incidents took place nearly two years ago. He has not repeated these words since, and his temper has calmed down in general. But my problem is that I always wonder whether I am living with him in haraam? Did the divorce count as such? I do no know if the shaytaan is whispering to me or not?.

 

Praise be to Allaah.

Firstly: we ask Allaah to make things easier for you and to
help you and guide you, and to set things straight between you and your
husband. 

Secondly:  

With regard to what you have asked about in these three
incidents, the answer is as follows: 

1 – In this case your husband said to you, “You are divorced
when we return to our country.” In this case the divorce took effect when
you returned to your country, because this was a clear statement of divorce,
i.e., it was not intended to encourage you to do something or prevent you
from doing something, or to confirm or deny something. 

If we assume that he said: “I meant that I would divorce you
after coming back,” this cannot be accepted from him either, because his
saying, “You are divorced” is clearly one of the words of divorce (talaaq),
so it cannot be accepted that he meant it as a threat of divorce. 

Shaykh Ibn Baaz (may Allaah have mercy on him) said:  

An oath to divorce is a statement of divorce by means of
which the person intends to encourage (his wife) to do something, or to
prevent her from doing something, or to urge his listeners to believe him or
disbelieve him. This is the oath to divorce which is intended to encourage
or discourage something, or to confirm or deny something, unlike a statement
of divorce which is intended as such, which cannot be regarded as an oath,
such as saying, “When the sun rises, my wife is divorced,” or “When Ramadaan
comes, my wife is divorced.” This is not described as an oath (yameen),
rather it is simply a statement of divorce in which a condition is
stipulated, and when the stipulated event takes place, the divorce comes
into effect. 

End quote from Fataawa al-Talaaq, p. 129-131 

We have already answered a similar matter in question no.
43481 

2 – In this incident, he sent you a message by phone saying,
“You are divorced.” This depends on his intention at the time of writing it.
If he was determined to divorce you, then it counts as a divorce, but if he
wrote that but meant something other than divorce, such as to alarm his
family and scare them, then it does not count as a divorce because that was
not his intention.  

See the answer to question no.

72291. 

3 – In this incident, he got so angry that he did not know
what he was doing, and he divorced you, then he went to the court and the
qaadi ruled that the divorce did not count. What matters here is the ruling
passed by the qaadi, because there are some cases of anger in which divorce
does not count. From what your husband told him, the qaadi may have realized
that his anger was so intense that it means that the divorce does not count.
In the answer to question no.
45174 we have mentioned the ruling on a divorce given in a moment of
anger. 

Our advice to this husband is to fear Allaah and to control
his tongue and avoid uttering words of divorce, so that this will not led to
the break-up of his family. 

We ask Allaah to help and guide you both. 

And Allaah knows best.

Islam Q&A

 

Islam Question and Answer - Divorce at the time of menses

 

Divorce at the time of menses

On the first day of her menses she forgot to tell her husband, and asked him for a divorce, and the third talaaq was issued. Then she remembered that and told him. What is the shar’i response to that?.

 

Praise be to Allaah.

The fuqaha’ differed as to whether the divorce of a
menstruating woman counts as such or not. The majority are of the view that
it does count as such, but there is a group of ‘ulama’ who say that it does
not, and this is the view reflected in the fatwas of many contemporary
fuqaha’ such as Shaykh Ibn Baaz (may Allaah have mercy on him) and Shaykh
Ibn ‘Uthaymeen (may Allaah have mercy on him). 

Shaykh Ibn Baaz (may Allaah have mercy on him) said: Divorce
of a menstruating woman does not count as such according to the more sound
of the two scholarly opinions, which is contrary to the view of the
majority. The majority of scholars think that it does count as such, but the
correct scholarly view is that reflected in the fatwas of some of the
Taabi’een and in the fatwa of Ibn ‘Umar (may Allaah be pleased with him).
This is also the view favoured by Shaykh al-Islam Ibn Taymiyah and his
student Ibn al-Qayyim and a number of scholars who said that this divorce
does not count as such, because it is contrary to the laws of Allaah. Allaah
decreed that a woman should be divorced when she is in a state of purity,
free from nifaas (postpartum bleeding) and menses, and during a time of
purity when her husband has not yet had intercourse with her. This is the
divorce that is prescribed according to sharee’ah. If he divorces her during
her menses or nifaas, or during a time of purity when he has had intercourse
with her, then his divorce is bid’ah (an innovation) and does not count as
such according to the more sound of the two scholarly views, because Allaah
says (interpretation of the meaning): 

“O Prophet! When you divorce women, divorce them at their
‘Iddah (prescribed periods) and count (accurately) their ‘Iddah ”

[al-Talaaq 65:1] 

What this means is when they are pure (not menstruating) and
you have not had intercourse with them. This is what the scholars have said
about divorcing them at their prescribed periods, they should be pure (not
menstruating) and you should not have had intercourse with them, or they
should be pregnant. This is what is meant by divorce at their prescribed
periods. End quote from Fataawa al-Talaaq, p. 44 

It says in Fataawa al-Lajnah al-Daa’imah (20/58):
There are several kinds of innovated divorce: where a man divorces his wife
during her menses or nifaas, or during a time of purity when he has had
intercourse with her. The correct view is that this does not count as a
divorce. End quote. 

Based on this, if the divorce was issued at the time of her
menses, it does not count and the woman is still married to her husband. 

Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) was
asked about a man who divorced his wife when she was menstruating but he did
not know that she was menstruating – does this divorce count as such? 

He replied: 

The scholars differed concerning a divorce that takes place
when a woman has her monthly period, and there was a lengthy discussion as
to whether the divorce counts or not. The majority of scholars are of the
view that it does count as such and is regarded as a divorce, but the man
should be told to take her back and keep her until she has become pure from
her menses, then menstruated a second time and become pure. Then if he
wishes he may keep her and if he wishes he may divorce her. This is the view
of the majority of scholars, include the four imams: Ahmad, al-Shaafa’i,
Maalik and Abu Haneefah. But the more correct view in our opinion is that
favoured by Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him),
that divorce at the time of menses does not count as such, because it goes
against the command of Allaah and His Messenger. The Prophet (peace and
blessings of Allaah be upon him) said: “Whoever does any action that is not
in accordance with this matter of ours will have it rejected.” The evidence
concerning this very issue is the hadeeth of ‘Abd-Allaah ibn ‘Umar, when he
divorced his wife at the time of her menses. He told the Prophet (peace
and blessings of Allaah be upon him) about that and the Messenger of Allaah
(peace and blessings of Allaah be upon him) got very angry and said:
“Tell him to take her back, then keep her until she has become pure, then
menstruated, then become pure, then if he wishes he may keep her after that
and if he wishes he may divorce her.” Then the Prophet (peace and
blessings of Allaah be upon him) said: “That is the prescribed period at
which Allaah has commanded men to divorce women.” The prescribed period at
which Allaah has commanded men to divorce women means that a man may only
divorce his wife when she is pure (not menstruating) and he has not had
intercourse with her. Based on this, if he divorces her when she is
menstruating, he has not divorced her in accordance with the command of
Allaah, so it is to be rejected. We think that the divorce that has been
issued to this woman does not count as such, and that the woman is still
married to her husband. It does not matter whether the husband knew that she
was menstruating or not menstruating when he issued the divorce. Yes, his
knowledge of her condition does not matter, but if he knew about that then
he has committed a sin, and the divorce does not count. If he did not know,
then the divorce still does not count, but there is no sin on the husband.
End quote. 

Fataawa Islamiyyah, 3/268.

Islam Q&A

 

 

Islam Question and Answer - Divorce in writing

Divorce in writing

If a husband writes a text message to his wife on the cell phone, saying “You are divorced” then he says that he did not mean it as a divorce, does that count as a divorce?.

 

Praise be to Allaah.

Firstly: 

The fuqaha’ are
unanimously agreed that divorce may take place in writing, because divorce
may be understood from writing letters, so it is akin to speaking, and
because writing may take the place of words uttered by the writer. The
evidence for that is the fact that the Prophet (peace and blessings of
Allaah be upon him) was commanded to convey the message, so he conveyed it
sometimes by speaking and sometimes in writing. So the writing by means of
which divorce takes place is clear writing, such as writing on a paper, a
wall or on the ground, in a manner that can be understood and read. As for
writing that is not clear, such as writing in the air or in water or
anything that cannot be understood and read, this does not count as a
divorce, because this writing is like muttering that cannot be heard. End
quote. 

Al-Mawsoo’ah al-Fiqhiyyah,
12/217 

Secondly: 

If the husband writes a
message to his wife saying “You are divorced,” whether that is via a mobile
phone or on a piece of paper or via e-mail, then it depends on his intention
at the time of writing. If he was determined to divorce her, then it counts
as a divorce, but if he wrote that without the intention of divorce, rather
he wanted to make his wife upset or some other reason, then it does not
count as a divorce. 

Ibn Qudaamah (may Allaah have mercy on him) said: Divorce
does not take place if the word of divorce (talaaq) is not uttered, except
in two cases, one of which is when a person is unable to speak, such as a
man who is mute; if he issues a divorce by means of gestures, then his wife
is divorced. 

The second case is if the divorce is written; if he intended
it as such then his wife is divorced. This is the view of al-Sha’bi,
al-Nakha’i, al-Zuhri, al-Hakam, Abu Haneefah and Maalik, and it is the view
that is narrated from al-Shaafa’i. 

If a man writes it without intending divorce, then it does
not count as such according to the majority of scholars, because writing is
open to interpretation, and he may have intended just to test the pen, or
improve his handwriting, or upset his wife, without intending it (as a
divorce). End quote from al-Mughni, 7/373 

It says in Mataalib Ooli al-Nuha (5/346): If the one who
wrote the words of divorce says: I only intended to improve my handwriting
thereby, or I only intended to upset my wife, that is to be accepted,
because he knows best what his intention was, and he intended something that
may be interpreted as other than divorce… and if he intended to upset his
wife by making her think that he was divorcing her when in fact that was not
the case, then he was not intending to divorce her. End quote. 

Shaykh Ibn Baaz (may Allaah have mercy on him) was asked: a
man was sitting with his sister and his wife and he asked his sister to
bring him a pen, then he wrote on a paper: “Talaaq, talaaq (divorce,
divorce)” without referring to anybody. His sister got angry and took the
pen, then she wrote three times, Talaaq, talaaq, talaaq (divorce, divorce,
divorce).” Then she threw the paper to his wife and said to her: “Look, is
what I have written correct?” But he did not intend to write these words for
his wife. 

He replied: This divorce does not count as such for the wife
mentioned, if he did not intend thereby to divorce her. Rather he was simply
writing or he intended something other than divorce, because the Prophet
(peace and blessings of Allaah be upon him) said: “Actions are but by
intentions…” 

This view was held by very many of the scholars and some of
them narrated that it was the view of the majority, because writing is like
a metaphor, and a metaphor does not count as a divorce unless it is intended
as such, according to the more correct of the two scholarly opinions, unless
the writing is accompanied by evidence that the intention was divorce, in
which case it counts as such. 

In the incident mentioned, there is nothing to indicate that
the intention was divorce, so the marriage remains as it is, and actions are
judged by intentions. End quote. 

Shaykh Muhammad ibn Ibraaheem (may Allaah have mercy on him)
said: 

We have received your question, from which we understand that
a man wrote one divorce to his wife So and so the daughter of So and so, and
that he added his signature and name to the writing, but he did not intend
thereby to divorce his wife at all. Rather he wrote the paper to scare his
wife and threaten her so that she would stop treating her husband badly. You
are asking whether this man’s divorce of his wife counts as such or not.

The answer: Praise be to Allaah. If the matter is as
described, and by clearly writing words of divorce to his wife he did not
intend anything other than to threaten her and scare her so that she would
stop treating him badly, and he did not intend divorce at all, then this
does not count as a divorce. And Allaah is the Source of strength. End
quote. 

Fataawa Muhammad ibn Ibraaheem,
11/ question no. 3051 

Shaykh Muhammad ibn
Ibraaheem was also asked about a man who wrote words of divorce to his wife,
intending thereby to upset his wife and threaten her. He replied: 

It seems to us that this divorce does not count as such,
rather he intended thereby to upset his wife and threaten her. The scholars
have stated that if he intended by writing the words of divorce to improve
his handwriting or upset his family, then his intention is to be accepted
and the divorce does not count as such. It says in Sharh Zaad
al-Mustaqni’ (vol. 3 p. 150): If a man clearly writes the word of
divorce to his wife in such a way that it appears clear, it counts as a
divorce even if he did not intend it as such, because it is clearly stated.
If he says, “I intended only to improve my handwriting or to upset my
family,” that is to be accepted. End quote. 

And Allaah is the Source of strength. End quote. 

Fataawa Muhammad ibn Ibraaheem, 11/question no. 3050.

Islam Q&A

Islam Question and Answer - He issued a divorce document when he does not really want to divorce

He issued a divorce document when he does not really want to divorce

My father has issued a divorce document in my mother’s presence; so that I can obtain exemption from military service. They both signed the document. My father did not utter the word of divorce neither did he write it. They explained to the registrar that the document is needed for the mentioned purpose only, and that he does not to divorce my mother. 


1- What is the ruling on what my father did?


2- Is that considered divorce? Bear in mind that my father has divorced my mother twice before, and the third time (which I am asking about) has taken place while my mother wasn’t in her menstruating days, my father did not have intercourse with her. He had intercourse with her a while after they signed the divorce document. What should my father do? 


If what my father did is not considered divorce then how can my father ensure my mother’s right in his inheritance? In the eye of law my mother is a divorcee.  


My mother lives with us in the same home. My father is spending on her and provides for her all that she needs. But my father is married to another woman and he lives in another home with his second wife. He visits us a lot and sees to our needs. 


My father wants to know the ruling on what he has done, and is asking if it permissible for him to return my mother to him after this documented divorce without another document of raj’aa (a man taking his divorced wife back to him).

 

Praise be to Allaah.

Firstly: 

If a man writes a clear statement of divorce in his own hand,
then it does not count as a divorce unless he intended it as such, according
to the majority of scholars, because writing may be subject to different
interpretations. 

Ibn Qudaamah (may Allaah have mercy on him) said (7/373):
Divorce does not count as such without uttering the words of divorce, except
in two cases:

(i)               
a person who is unable to
speak, such as one who is mute; if he issues a divorce by means of gestures
then his wife is divorced. This was the view of Maalik, al-Shaafa’i and
ahsaab al-ra’y, and we do not know of anyone who disagreed with them.

(ii)             
if he writes the divorce – if
he intended it then his wife is divorced. This is the view of al-Sha’bi,
al-Nakha’i, al-Zuhri, Abu Haneefah and Maalik, and it is the stated view of
the Shaafa’is.  

But if he wrote it without intending to divorce her, then
some scholars are of the view that it counts as such. This is the view of
al-Sha’bi, al-Nakha’i, al-Zuhri and al-Hakam, because of what we mentioned. 

The second view is that it only counts as such if he intended
it. This is the view of Abu Haneefah and Maalik and is the stated view of
al-Shaafa’i, because writing is subject to interpretation. He may have
intended thereby to try out the pen, or improve his handwriting, or make his
wife worried without intending divorce. End quote. 

As your father did not utter the word of divorce and did not
write it, rather it was written by someone else, and he signed it without
intending divorce, then divorce has not taken place. 

Secondly:  

Your father’s actions have obvious negative results,
including the issue of inheritance if the estate is divided by the state,
because there is no inheritance between your father and your mother in this
case. But if the inheritance will not be divided by the state, then the way
out is for your father to bring two witnesses of good character to testify
that the marriage is still in effect between him and your mother, and also
broadcast that among people. Then if one of them died the other will inherit
from him or her. 

Another negative consequence is that if Allaah blesses him
with a child from your mother, then he will not be able to register the
birth, in addition to the lying and fabrication involved in his action. 

Thirdly: 

As the divorce asked about does not count as such – as stated
above – there is no need for him to take your mother back formally.

And Allaah knows best.

 

Islam Q&A

 

Islam Question and Answer - What should the woman who is revocably divorced avoid and what should she avoid if she is irrevocably divorced?

What should the woman who is revocably divorced avoid and what should she avoid if she is irrevocably divorced?

I have just divorced my Husband and was wanting to know the exact rights that I have during my 3 months of waiting...So does this mean I can not even talk to men Online and would it be ok if my mom and dads friend to come and pick me up to take me back home..

 

Praise be to Allaah.

A woman does
not have the right to divorce her husband by talaaq. Talaaq can only be
issued by the husband. The words in the Qur’aan which speak of issues and
ruling of divorce (talaaq) are addressed to husbands, not to wives. Allaah
says (interpretation of the meaning): 

“And when
you have divorced women and they have fulfilled the term of their prescribed
period, either take them back on reasonable basis or set them free on
reasonable basis”

[al-Baqarah 2:231] 

“There is
no sin on you, if you divorce women while yet you have not touched (had
sexual relation with) them, nor appointed unto them their Mahr (bridal-money
given by the husband to his wife at the time of marriage)”

[al-Baqarah 2:236] 

“O you
who believe! When you marry believing women, and then divorce them before
you have sexual intercourse with them, no ‘Iddah [divorce prescribed period]
have you to count in respect of them”

[al-Ahzaab 33:49]

 “O
Prophet! When you divorce women, divorce them at their ‘Iddah (prescribed
periods) and count (accurately) their ‘Iddah (periods). And fear Allaah your
Lord (O Muslims)”

[al-Talaaq 65:1] 

It was
narrated that Ibn 'Abbaas (may Allaah be pleased with him) said: The
Messenger of Allaah (peace and blessings of Allaah be upon him) said:
“(The right of divorce) belongs to the one who takes hold of the calf [i.e.,
her husband].” 

Narrated by
Ibn Maajah (2081), classed as hasan by al-Albaani in Irwa’ al-Ghaleel
(7/108). 

When a
husband leaves his wife and she gives him a sum of money in return for that,
this is called khula’. This means that the wife frees herself from her
husband by returning the mahr or whatever the husband asks for, then he
leaves her if he wants to. This is an annulment of the marriage, not a
divorce (talaaq). In this case the woman’s ‘iddah is one menstrual cycle. 

This has
already been discussed in the answer to question no.
14569. 

Secondly: 

When khula’
is carried out, she becomes a non-mahram to her husband immediately, and it
is not permissible for him to be alone with her, and he has no right to take
her back, except with a new marriage contract and a new dowry. 

When the
‘iddah – which is one menstrual cycle, or when she gives birth if she is
pregnant – is over, it is permissible for her to marry whomever she wants,
in accordance with the shar’i conditions of having a wali (guardian) and two
witnesses of good character. 

But if the
husband has divorced her with a first or second talaaq, it is not
permissible for her to go out of her house during her ‘iddah, and it is not
permissible for him to throw her out until her ‘iddah is over, whereupon she
becomes a non-mahram for him. The reason for that is that perhaps he may
decide to take her back, which is what Islam encourages. Allaah says
(interpretation of the meaning): 

“And turn
them not out of their (husband’s) homes nor shall they (themselves) leave,
except in case they are guilty of some open illegal sexual intercourse. And
those are the set limits of Allaah. And whosoever transgresses the set
limits of Allaah, then indeed he has wronged himself. You (the one who
divorces his wife) know not it may be that Allaah will afterward bring some
new thing to pass (i.e. to return her back to you if that was the first or
second divorce)”

[al-Talaaq 65:1] 

During her
‘iddah, it is permissible for her to uncover in front of her husband and
adorn herself for him, and for him to speak to her and be alone with her,
but he does not have the right to have intercourse with her until after he
has taken her back, or he has intercourse with her with the intention of
taking her back. 

If the
husband has divorced his wife with the last of three talaaqs, or he has
divorced her twice or once and her ‘iddah has ended, then she becomes a
non-mahram for him and it is not permissible for him to be alone with her,
to touch her or to look at her. 

This has
been stated in the answer to question no.
21413 and
36548. 

In the
answer to question no. 12667 we have explained all types of ‘iddah. 

It should be
noted that the ‘iddah of a woman divorced by talaaq who menstruates is three
menstrual cycles, not three months. Three months is the ‘iddah for a minor
who does not menstruate, or an older woman who no longer menstruates. You
will find more information in the answer referred to. 

Thirdly: 

It is not
permissible for a woman to go out with non-mahram men or to speak to them
over the internet. The evidence for that and the fatwas of the scholars have
been quoted in the answers to questions no.
34841,
6453 and
10221. 

Based on
this, a woman is not forbidden to wear adornment, perfume, jewellery and
other things that are forbidden to the woman who is observing ‘iddah after
the death of her husband. Rather what is forbidden to her during the ‘iddah
of a revocable divorce is going out of her husband’s house. Going out with
men and speaking to them is forbidden in all cases. 

And Allaah
knows best.

Islam Q&A

 

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.

Islam Q&A

 

Islam Question and Answer - They became Muslim after they got divorced and they have a daughter. What are the rights of both of them?

They became Muslim after they got divorced and they have a daughter. What are the rights of both of them?

If a couple where Kuffar and the woman found out she was pregnant, then the male asked her to get an abortion. She refused regardless of his suggestion and had the child. Later the couple became Muslim together, but were divorced. Does the father still have more right then the mother when he clearly did not desire for the child to be born in the first place? (It is a female child).

 

Praise be to Allaah.

Firstly: 

We praise
Allaah for having guided you both to the truth. This is the greatest
blessing that Allaah can bestow upon His slave, because it brings happiness
in this world and in the Hereafter. We ask Allaah to help you to do that
which He loves and which pleases Him, and to help you to remain steadfast in
following His religion. 

Secondly: 

You did well
by refusing to have an abortion, because abortion is a sin, whether it was
done before the soul is breathed into the foetus or afterwards, but the sin
is greater after the soul has been breathed into the foetus. 

This has
been explained in the answers to questions no.
40269 and
42321. 

Thirdly: 

If a man
divorces his wife, and they have a child, then according to Islam the
mother’s right to custody of the child is greater than the father’s, so long
as there is no impediment such as her having remarried or being lacking in
religious commitment or failing to take proper care of the child. 

This has
been discussed in the answers to questions no.
8189,
20705 and
21516. 

Fourthly: 

The father’s
bad conduct in demanding an abortion does not mean that his rights are
waived, such as the right to having the child attributed to him, care,
spending, naming, and visiting the child when he or she is in the mother’s
custody. He also has the right to custody if there is some impediment to the
mother taking custody, such as if she remarries. 

We hope that
Allaah will forgive him as he has become Muslim, for Islam erases the sins
that come before it. 

Fifthly:

 The
questioner asks: “Does the father still have more rights than the mother”? 

It should be
noted that the father’s rights are not always greater than the mother’s,
rather her rights take precedence with regard to custody, as stated above,
and her right also takes precedence over his with regard to good treatment.
It was narrated that Abu Hurayrah (may Allaah be pleased with him) said: A
man came to the Messenger of Allaah (peace and blessings of Allaah be
upon him) and said: “O Messenger of Allaah, who among people is most
deserving of my good company?” He said: “Your mother.” He said, “Then who?’
He said, “Then your mother.” He said, “Then who?’ He said: “Then your
mother.” He said: “Then who?” He said: “Then your father.” 

Narrated by
al-Bukhaari (5971) and Muslim (2548) 

Al-Nawawi
(may Allaah have mercy on him) said: 

This
indicates that we are urged to honour our relatives, and that the mother is
the most deserving of them, then after her comes the father, then the next
closest and the next closest. The scholars said: the reason why the mother
is given precedence is because of her great efforts for the sake of the
child, her kindness towards him and her service; she suffers hardship in
pregnancy, then she suffers hardship when giving birth to him, then she
breastfeeds him, then she raises him, serves him and takes care of him when
he is sick, and so on. Al-Haarith al-Muhaasibi narrated that the scholars
were unanimously agreed that the mother is to be given precedence in kind
treatment over the father. Al-Qaadi ‘Iyaad narrated that there was a
difference of opinion concerning that, but the majority said that she is
given precedence. Some of them said they should be honoured equally. He
said: some of them attributed this view to Maalik. But the correct view is
the first one, because this is clearly stated in these ahaadeeth. End
quote. 

And Allaah
knows best.

Islam Q&A

 

Islam Question and Answer - Accepting what a woman says about the beginning and end of a period

Accepting what a woman says about the beginning and end of a period

If a man divorces his wife, and he does not know that she is menstruating, then after the divorce the woman says that she was menstruating at the time of the divorce, should what she says about that be accepted?.

 

Praise be to Allaah.

Firstly: 

In the answer to question no.
72417 we have stated that the
scholars differed as to whether the divorce of a menstruating woman counts
as valid, but the correct view is that it does not count. 

Secondly: 

The word of a woman concerning the start and end of her
period, and other matters of which men have no knowledge, is to be accepted
because she is to be trusted with that. Al-Shaafa’i (may Allaah have mercy
on him) said: “Sufyaan narrated to us from ‘Amr ibn Dinar that ‘Ubayd ibn
‘Umayr said: A woman is to be trusted with regard to personal matters.” End
quote from al-Umm, 5/225. 

The fact that a woman’s words concerning such matters is to
be accepted is indicated by the verse in which Allaah says (interpretation
of the meaning): 

“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”

[al-Baqarah 2:228] 

al-Jassaas (may Allaah
have mercy on him) said: The fact that Allaah commands women not to conceal
(what He has created in their wombs) indicates that what a woman says about
menstruation or the absence thereof is to be accepted, and the same applies
to pregnancy too, because these are both things that Allaah has created in
her womb. If a woman’s word concerning these matters were not acceptable,
then He would not have warned woman not to conceal them. Thus it is
established that if a woman says, “I am menstruating”, it is not permissible
for her husband to have intercourse with her, and when she says, “My period
is over,” it is permissible for him to have intercourse with her. By the
same token our companions said that if he says to her, “You are divorced
when you get your period,” and she says, “I have got my period,” then she is
divorced and her words are like proof. End quote from Ahkaam al-Qur’aan,
1/506 

Al-Sa’di (may Allaah have mercy on him) said (p. 102): 

This indicates that what a woman says about matters that
concern her and of which no one else can have any knowledge, such as
pregnancy, menstruation, etc., is to be accepted. End quote. 

It says in Mu’een al-Hukkaam  (p. 95): Concerning
passing judgement on the basis of the statement of one woman in matters of
which women alone have knowledge: that is matters concerning which only
women have knowledge, such as childbirth, whether a woman is a virgin or
not, menstruation, pregnancy, miscarriage, faults of free woman and slave
woman and everything that is beneath their garments. The point here is that
because these are matters to which men are not privy and they have no
knowledge of them, then in these cases the testimony of women is regarded as
equal to that of men, because of necessity. End quote. 

In order for a woman’s words concerning these matters to be
accepted, her claim that a period has begun or ended must come at a time
when that is possible; if she makes such a claim at a time when it is not
possible, then her words should not be accepted. 

Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said: 

Among the things that we learn from this verse are the
following: 

What a woman says concerning her ‘iddah is to be accepted,
because Allaah , may He be exalted, says: “and it is not lawful for them
to conceal what Allaah has created in their wombs” [al-Baqarah 2:228].
The point here is that Allaah has made their words carry weight; if they did
not carry weight, then their concealing (what has been created in their
wombs) would not have any effect. So if she says that her ‘iddah has ended,
and that is within the possible time frame, then she should be believed, and
she is to be trusted with regard to that. But if she claims that her ‘iddah
has ended within an impossible time frame, then her words are to be
rejected, because one of the conditions of a claim being accepted is that it
should be something that is possible, and a claim of something that is
impossible should not be listened to at all. End quote.  

Tafseer Soorat al-Baqarah, p.
102 

See also: al-Mughni, 7/158; al-Fawaakih al-Dawaani,
2/34 

And Allaah knows best.

 

Islam Q&A

 

 

Islam Question and Answer - Divorce does not take place on the basis of a decision or intention unless the words are uttered

Divorce does not take place on the basis of a decision or intention unless the words are uttered

A woman rebelled against her husband after many problems and a lack of understanding in a short marriage life that did not last more than four months. She gave birth at her family’s home, a daughter from this husband. All attempts to make them return to each other failed. So the husband filed a lawsuit against her to force her return to him, and it sentenced for his favour.  


The wife appealed against this sentence and complained to the police that the assaulted her and as result of this harm she asked the court for divorce. She asked as well for financial and moral compensation, and obligating him to give her all her rights. For two years this case has not reached conclusion. The husband does not want her to return or to be his wife after he saw how evil and unfair she and her family are towards him. But he does not want to divorce her before the court says its word in the matter, as he hopes the court will be fairer to him, he thinks he is the oppressed side not the oppressor as how they claim. 


The question is:


Is this talaaq valid by him intending in his heart to divorce her despite waiting all this time for the court’s word? Is he considered sinful, knowing that he pays her the monthly nafaqah (money to spend on herself and their daughter)? Is there any other duties he is obliged by towards his wife and his two year old daughter?.

 

Praise be to Allaah.

We ask Allaah to reward you greatly for your keenness to
perform all duties perfectly and we ask Him to settle matters between you
and your wife in the way that is best for you in this world and in the
Hereafter. 

With regard to divorce, it does not take place on the basis
of a mere decision or intention; rather it is essential that the words be
uttered. 

Al-Haafiz Badr al-Deen al-‘Ayni (may Allaah have mercy on
him) said: 

No one (among the scholars) disagrees with the view that if a
person intends divorce in his heart but does not utter the words, then he
does not have to do anything, apart from what was narrated by al-Khattaabi
from al-Zuhri and Maalik, that divorce does take place once one decides upon
it. But this is very unlikely to be correct, and al-Khattaabi refuted this
view in his discussion of zihaar (a jaahili and invalid form of divorce) and
other forms of divorce. So they were agreed that if a person decides to
divorce his wife by zihaar, it does not become binding unless he utters the
words; and if he thinks of slandering, he is not a slanderer; and if
thoughts in the form of words cross his mind during the prayer he does not
have to repeat it. Allaah has forbidden speaking during the prayer, so if
thoughts had the same effect on the prayer as speaking then his prayer would
have been invalid. 

Among those who said that thinking of divorce does not have
any effect were ‘Ata’ ibn Abi Rabaah, Ibn Sireen, al-Hasan, Sa’eed ibn
Jubayr, al-Sha’bi, Jaabir ibn Zayd, Qataadah, al-Thawri, Abu Haneefah, the
companions of al-Shaafa’i, Ahmad and Ishaaq. End quote. 

‘Umdat al-Qaari Sharh al-Bukhaari (20/256). 

It says in al-Mawsoo’ah al-Fiqhiyyah (29/23): 

If he intends to speak the words of divorce but then he does
not speak them, then no divorce takes place, according to scholarly
consensus, because the words were not uttered at all. Al-Zuhri disagreed and
said that the divorce of one who intends to divorce does take place even if
he does not utter it. 

The evidence of the majority is the words of the Prophet
(peace and blessings of Allaah be upon him): “Allaah has forgiven my ummah
for what they think of to themselves, so long as they do not act upon it or
speak of it.” end quote. 

It says in Fataawa al-Lajnah al-Daa’imah (20/27): 

If you have not said anything other than saying to your
brother, “We want to get divorced”, then these words do not count as a
divorce, rather it is only a promise to get divorced. End quote. 

It says in Fataawa al-Shaykh Muhammad ibn Ibraaheem
(11/70): 

Divorce does not take place unless it is uttered or expressed
in some way that takes the place of speech, whether directly or indirectly.
End quote. 

We have also discussed this issue previously on our website
in the answers to questions no.
20660 and 34164. 

As for your obligations at present towards your wife and
child, so long as you are spending on them every month then you are free of
sin and wrongdoing, in sha Allaah, until the sharee’ah judges judge between
you, then you will have to do whatever they tell you to do at that time. 

And Allaah knows best.

Islam Q&A

 

 

Islam Question and Answer - If he says to his wife: “You are haraam for me”

If he says to his wife: “You are haraam for me”

If the husband says to his wife: “You are haraam for me”, does this count as a divorce?.

 

Praise be to Allaah.

A husband declaring his wife to be haraam for him is
something concerning which the fuqaha’ differed. Some of them ruled that it
is zihaar, and some ruled that it is talaaq. 

Perhaps the most correct view is that if he intended talaaq
or zihaar or an oath, then it is as he intended. 

If he did not intend anything, he must offer expiation for
breaking an oath (kafaarat yameen). This is the view of Imam al-Shaafa’i
(may Allaah have mercy on him). 

This is indicated by the fact that this wording may imply
talaaq or zihaar or an oath, so in deciding what it is, reference should be
made to the intention of the one who said it, because the Prophet
(peace and blessings of Allaah be upon him) said: “Actions are but by
intentions, and each person will have but that which he intended.” 

It was narrated that Ibn ‘Abbaas (may Allaah be pleased with
him) said: If a man declares his wife to be haraam for him, then it is an
oath for which expiation must be offered. 

Narrated by al-Bukhaari (4911) and Muslim (1473). 

Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said: 

If someone were to say: What is the difference between these
three things (i.e., talaaq, zihaar and an oath)? We say: The difference
between them is:

1 – It is an oath if what he intended was to declare her to
be haraam for him, either subject to a condition, or starting from that
moment, such as if he said, “If you do such and such then you are haraam to
me.” This is conditional. In this case he did not mean to make his wife
haraam for him, rather he meant to stop his wife doing that thing. 

Similarly, “you are haraam to me” means that he wants to
refrain from intimacy with his wife. So we say that this is an oath too,
because Allaah says (interpretation of the meaning): 

“O Prophet! Why do you forbid (for yourself) that which
Allaah has allowed to you, seeking to please your wives? And Allaah is
Oft‑Forgiving, Most Merciful.

2. Allaah has already ordained for you (O men) the
absolution from your oaths”

[al-Tahreem 66:1-2] 

In the phrase “that which Allaah has allowed to you”,
the word ma (translated as “that which”) is a relative pronoun which
is general in meaning and includes one's wife, slave woman, food, drink and
clothing.  This ruling is the ruling on an oath. Ibn ‘Abbaas (may Allaah be
pleased with him) said: If he says to his wife, “You are haraam for me,”
this is an oath (yameen) for which he must offer expiation. The fact that
this view is based on the verse is quite clear. 

2 – It is a divorce (talaaq) if that is what he intended. So
when he said “You are haraam to me” he meant that he wanted to leave her and
this is a talaaq, because these words may mean separating, and the Prophet
(peace and blessings of Allaah be upon him) said: “Actions are but by
intentions, and each person will have but that which he intended.” 

3 – It is zihaar if that is what he intended. What is meant
by zihaar is that he means that she is forbidden for him. One of the
scholars said: it is not zihaar because it does not include the wording of
zihaar. Another scholar said that it is zihaar because the phrase of zihaar,
“You are to me like the back of my mother” has no other meaning but “You are
haraam.” He has likened her to the most forbidden of things to him, which is
his mother’s back, because that is the most haraam thing for him, so this is
zihaar. 

End quote from al-Sharh al-Mumti’ (5/476) 

We should also point out the seriousness of such words, and
that we must beware of uttering them, so as to protect the important bond of
marriage from being broken.  

And Allaah knows best.

Islam Q&A

 

Islam Question and Answer - He said to his wife: If you touch the mobile phone, go by yourself to your family

He said to his wife: If you touch the mobile phone, go by yourself to your family

An argument has happened between my husband and I due to me using the mobile phone to call my family a lot. He said to me exactly the following: “if you touch it, then go alone to your family, if you touch it, then go alone to your family” at the same time, he was pointing by his hand while saying this. I asked him about his intention, he said that he intended to just scare me in order to stop calling from his mobile. Will I be considered divorced if I use the mobile again? Is this a clear phrase or just metaphorical?.

 

Praise be to Allaah.

Utterances of divorce are of two types: explicit and
implicit. 

Explicit utterances are those which cannot be understood to
mean anything but divorce in most cases, such as “I have divorced you” or
“You are divorced” and so on. These phrases constitute divorce even if that
was not the husband’s intention. 

As for the implicit utterances, these are phrases which may
be understood as referring to divorce or to something else, such as the
words uttered by your husband (“Go by yourself to your family”). This may be
understood as meaning that he intended a divorce, or it may be understood
otherwise. The ruling on such words is that they do not constitute divorce
unless the husband intended that.  

If your husband intended divorce when he uttered these words,
then divorce has taken place if the stipulated condition is met, which is
your touching the mobile phone. 

But if he did not intend a divorce, then nothing has
happened. 

The fact that he intended to scare you by saying that does
not mean that he intended it also as a divorce, because a man may try to
scare his wife with the threat of divorce so that she will obey him and not
disobey him. 

The husband has to beware of using the words of divorce,
explicit and otherwise, and he should strive to solve problems in an
atmosphere of love and understanding. 

The wife has to obey her husband and strive to please him,
and she does not have the right to disobey him or make him angry or take his
money without his permission. 

May Allaah help us and you to do that which He loves and
which pleases Him. 

And Allaah knows best.

Islam Q&A

 

 

Islam Question and Answer - She asked her husband for a divorce because he mistreated her

 

 

She asked her husband for a divorce because he mistreated her

My husband divorced me two days ago, after just 11 months of marriage. Our divorce is regarded as khula’, because I gave up a sum of money that my husband was looking after for me. When I noticed that what was stopping him from divorcing me was this money, not the love that there was between us, I gave it up and he divorced me quite readily. I loved him very much and I prayed to Allaah that the divorce would not be completed, and I prayed istikhaarah. I kept quiet in the court and I was looking at the judge hoping that this divorce would not be completed, but when the judge asked me, “Do you agree?” I always said yes, so as to preserve my dignity of which I have been robbed by my husband and his first wife (as I am the second wife). 


I would like to ask about the following: 


1 – What does it mean that the Throne of the Most Merciful is shaken by our divorce? 


2 –Is Allaah angry with me for asking for a divorce in order to preserve my dignity, because my husband was not just in spending and sometimes in the division of his time (between co-wives)?.

 

Praise be to Allaah.

Firstly: 

We ask Allaah to help you to do all that is good, and to
bless you with happiness in this world and in the Hereafter, and to
compensate you with a righteous husband and good offspring. 

You should note that tests and trials are part and parcel of
the life of this world, and that the Muslim must prepare himself to face
hardships and problems. One of the greatest trials that people may face is
the loss of a loved one or friend through death, absence or separation, but
Allaah, by His grace and kindness, still opens the gates of His mercy to
people and makes it easy for them to find loved ones and friends who will
help them to do good and reduce the sorrow that they feel in their hearts. 

Do not grieve for what has happened, for whatever happens to
a person could not have missed him. Allaah, may He be exalted, says
(interpretation of the meaning): 

“and it may be that you dislike a thing which is good for you
and that you like a thing which is bad for you. Allaah knows but you do not
know”

[al-Baqarah 2:216] 

Secondly: 

It is permissible for a woman to ask her husband for a
divorce, if there is a reason for that to be permissible, such as if he
fails to give her her rights or he wrongs her or mistreats her, and does not
respond to advice to treat her well and be kind to her. 

But if a woman asks for a divorce with no reason, that is
haraam and is a major sin. 

The Prophet (peace and blessings of Allaah be upon him)
said: “Any woman who asks her husband for a divorce for no reason, the
fragrance of Paradise will be forbidden to her.”

Narrated by Abu Dawood (2226) and al-Tirmidhi (1187); classed
as saheeh by al-Albaani in Saheeh Abi Dawood. 

Al-Mubaarakfoori said: i.e., without there being strong
reason that compels her to seek a separation. 

Tuhfat al-Ahqadhi, 4/410 

Al-Haafiz Ibn Hajar said:  

The reports which warn a woman against asking her husband for
a divorce are to be understood as referring to cases where there is no
reason for doing that. End quote from Fath al-Baari, 9/402 

See also questions no. 9481,
12496 and
34579. 

Asking for khula’ is also permissible if it is done for a
shar’i reason, so as to ward off wrongdoing or to protect one's rights or
other such reasons. This has already been explained in the answer to
question no. 1859. 

What is haraam is asking for khula’ with no good reason. 

It says in a hadeeth that the Prophet (peace and
blessings of Allaah be upon him) said: “Women who seek khula’ are
hypocrites.” Narrated by al-Tirmidhi (1186) and al-Nasaa’i (3461), both of
whom classed it as da’eef. Ibn Qudaamah said in al-Mughni (7/248):
Ahmad mentioned it and quoted it as evidence, and Ibn Hajar was of the view
that it is saheeh, as it says in Fath al-Baari, 9/403. It was also
classed as saheeh by al-Albaani in Saheeh Sunan al-Tirmidhi,
1186. 

Al-Mubaarakfoori said: 

i.e., those women who
ask for khula’ and divorce from their husbands for no reason. End quote. 

Tuhfat al-Ahwadhi, 4/409 

Thirdly: 

What the husband must
do, if he marries more than one wife, is to adhere to the condition that
Allaah has stipulated for husbands, as He says (interpretation of the
meaning): 

“but if you fear that you shall not be able to deal justly
(with them), then only one”

[al-Nisa’ 4:3] 

If he knows that he will fall short in giving one of his
wives her rights, then it is not permissible for him to keep her suspended
and mistreat her, rather he must give her her rights of maintenance, staying
overnight with her and treating her in a kind and proper manner, and he must
be just and fair between her and his other wives. If he cannot do that, then
he should let her go with kindness, and kindness means that he should not
take anything of her wealth. 

See also question no. 45600. 

If the husband refuses to let her go with kindness and he
does not care about that wrong that is being done to his wife, and the wife
wants to expedite her separation from him, even by paying some kind of
compensation to the husband, then she has the right to do that, and the sin
is on the husband and the money that he takes is haraam wealth. 

We have already discussed that in detail in question no.
42532. 

Fourthly: 

With regard to the question as to whether divorce shakes the
Throne of the Most Merciful: 

There is no saheeh report concerning that. The hadeeth which
is narrated about that is fabricated and false. 

We have explained that in the answer to question no.
43498  

And Allaah knows best.

Islam Q&A

 

Islam Question and Answer - Conditional divorce and divorce in a state of extreme anger

Conditional divorce and divorce in a state of extreme anger

What is the ruling on one who swears that his wife will be divorced if she does something such as severing the ties of kinship, and the husband is in a state of extreme anger at that point, and he is not in control of himself, to such an extent that he does not remember what he said?.

 

Praise be to Allaah.

Firstly: 

A man should
not use divorce every time there is an argument between him and his wife,
because of the negative consequences that result from divorce. Many men take
the matter of divorce lightly and every time there is an argument between
them and their wives, they swear to divorce them, and every time they have a
disagreement with their friends, they swear to divorce their wives, and so
on. This is a kind of toying with the Book of Allaah, because the Messenger
of Allaah (peace and blessings of Allaah be upon him) regarded the one
who divorced his wife three times in one go as toying with the Book of
Allaah. So how about one who makes divorce his habit, and every time he
wants to stop his wife doing something or urge her to do something he swears
that he will divorce her? Al-Nasaa’i narrated that Mahmoud ibn Labeed said:
The Messenger of Allaah (peace and blessings of Allaah be upon him) was
told about a man who divorced his wife three times in one go. He got up
angrily and said: “Will the Book of Allaah be toyed with when I am still
among you?”  A man stood up and said: “O Messenger of Allaah, shall I kill
him?”  

Al-Haafiz
said: The men of its isnaad are thiqaat (trustworthy). End quote. It was
classed as saheeh by al-Albaani in Ghaayat al-Maraam (261). 

Shaykh Ibn
‘Uthaymeen (may Allaah have mercy on him) said: These foolish men whose
tongues utter the words of divorce for every issue, great or small, are
going against the teachings of the Prophet (peace and blessings of
Allaah be upon him) who said: “Whoever wants to swear an oath, let him swear
by Allaah or else remain silent.” Narrated by al-Bukhaari (2679). If the
believer wants to swear an oath, let him swear by Allaah, may He be
glorified and exalted. It is also not right to swear a great deal, because
Allaah says (interpretation of the meaning): 

“And
protect your oaths (i.e. do not swear much)”

[al-Maa'idah 5:89] 

One of the
interpretations of this verse is that it means: do not swear a great deal. 

But if they
swear an oath of divorce, such as saying, “I will divorce you if you do such
and such,” or “I will divorce you if you do not do such and such,” or “If
you do such and such my wife will be divorced,” or “If you do not do such
and such my wife will be divorced,” and other such phrases, these go against
the teachings of the Prophet (peace and blessings of Allaah be upon
him). 

End quote
from Fataawa al-Mar’ah al-Muslimah (2/753). 

Secondly: 

When a man
says to his wife, “If you do such and such then you are divorced,” or, “If
you do not so such and such then you are divorced,” this is a conditional
divorce. The majority of fuqaha’ are of the view that this divorce counts as
such when the condition mentioned is fulfilled. Some of the scholars – and
this was the view favoured by Shaykh al-Islam Ibn Taymiyah and others – were
of the view that this condition is subject to further discussion, and it
depends on the intention of the one who said it. If he meant what is
intended by the oath, which is to encourage someone to do something, or to
stop someone from doing something, or to affirm something or deny something,
then it comes under the ruling on oaths and no divorce takes place, but he
must offer the expiation for breaking an oath when it is broken. 

If he
intended thereby to divorce his wife, then she is divorced when the
condition is fulfilled. His intention is known only to Allaah from Whom no
secret is hidden. So the Muslim should beware of trying to deceive his Lord
and of deceiving himself. 

The Standing
Committee was asked about a man who said to his wife: “Come with me or you
are divorced,” and she did not go with him. Does that count as a divorce? 

They
replied: 

If you did
not intend that as a divorce and you only wanted to urge her to go with you,
then that does not count as a divorce, but you have to offer the expiation
for breaking an oath (kafaarat yameen) according to the more correct
scholarly view. If you intended that to count as a divorce if she did not
respond to you, then that counts as one divorce. End quote from Fataawa
al-Lajnah al-Daa’imah (20/86). 

Thirdly: 

It should be
noted that most cases of divorce occur at moments of anger, stress and
agitation, not when one is feeling happy and relaxed. If a husband divorces
his wife at a time of anger, that does not mean that the divorce does not
count, as many people think, except if the anger reaches such an extent that
the man loses his reason and is not aware of what he is saying, in which
case it does not count as a divorce according to scholarly consensus. 

But if it
has not reached such an extent that he loses his reason, but the anger is so
intense that the man is no longer in control of himself, then the majority
of scholars are of the view that this anger does not mean that the divorce
does not count. 

Some
scholars are of the view that it does mean that the divorce does not count.
This was the ruling issued by Shaykh al-Islam Ibn Taymiyah (may Allaah have
mercy on him) and his student Ibn al-Qayyim, and it is the correct view in
sha Allah. See the discussion on that in question no.
45174. We have only referred to the view of the majority so that the questioner and readers may understand the seriousness of uttering the word of divorce, at times of anger and at other times. It may lead to the breakup of his family and to
harm for himself and his family because of his haste and his unruly tongue.
We ask Allaah to keep us safe and sound. 

If the oath
that he swore concerning his wife happened when his anger had reached such an extent, then it does not count as a divorce, in sha Allaah.

And Allaah knows best.

 

Islam Q&A

Islam Question and Answer - Ruling on abortion, divorcing a pregnant woman and putting pressure on a wife to make her give up her rights

Ruling on abortion, divorcing a pregnant woman and putting pressure on a wife to make her give up her rights

What is the Islamic ruling on a husband who tries to make his wife have an abortion in the second month of pregnancy because he wants to divorce her, by giving her medicine against her wishes, although the abortion did not happen? Is that halaal or haraam? What is the expiation for that deed? Is it permissible to divorce a wife when she is pregnant? What is the ruling on forcing a wife to give up her rights before she is divorced?.

 

Praise be to Allaah.

Firstly: 

Aborting pregnancy is not permissible, whether the soul has
been breathed into the foetus or not, but after the soul has been breathed
into it, the prohibition is more emphatic. If a husband orders his wife to
have an abortion, it is not permissible for her to obey him. 

Shaykh Muhammad ibn Ibraaheem (may Allaah have mercy on him)
said: 

As for trying to abort a pregnancy, that is not permissible
so long as the death of the foetus in utero is not proven; if that is proven
then it is permissible. 

Majmoo’ Fataawa al-Shaykh Ibn Ibraaheem
(11/151). 

Shaykh Saalih al-Fawzaan (may Allaah preserve him) said:  

Firstly: 

Aborting pregnancy is not permissible. If a woman is pregnant
the pregnancy must be protected, and it is haraam for the mother to harm
this pregnancy or to put any kind of pressure on it, because it is a trust
that Allaah has placed in her womb and it has rights, so it is not
permissible to mistreat it, harm it or destroy it. The shar’i evidence
indicates that it is haraam to abort pregnancy. 

The fact that she cannot give birth without surgery is no
justification for abortion. Many women cannot give birth without surgery, so
this is not an excuse to abort the surgery. 

Secondly: 

If the soul has been breathed into this foetus and it has
begun to move, then she aborted it after that and it died, then she is
regarded as having killed a soul, so she must offer expiation by freeing a
slave. If that is not possible then she must fast for two consecutive months
as repentance to Allaah. That applies if it was four months old, because in
that case the soul had been breathed into it. If she aborted it after that,
then she must offer expiation as described above. This matter is very
serious and cannot be taken lightly. If she could not bear the pregnancy
because she is sick, then she should take medicines that prevent pregnancy
before it begins, such as taking pills to delay getting pregnant until she
regains her health and strength. 

Al-Muntaqa (5/301, 302). 

Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him)
was asked about a man who said to his wife: Abort what is in your womb and
the sin will be on me. If she did that in obedience to him, what expiation
must they offer? 

He replied: 

If she did that, then they must both offer expiation by
freeing a believing slave. If they cannot do that, then they must fast for
two consecutive months, and they must give a male or female slave to his
heirs who did not kill him, not to the father because the father is the one
who ordered that he be killed, so he does not deserve anything.  

The phrase “male or female slave” refers to the diyah for the
foetus, the value of a male or female slave, which the scholars set at
one-tenth of the diyah for the mother. 

The ruling on abortion has been discussed previously in more
than one question. Please see: 13317,
42321 and
12733. 

Secondly: 

With regard to divorcing a pregnant woman, it is a sunnah
talaaq. It is widely believed among many of the common folk that it is
contrary to the Sunnah, but there is no basis or evidence for their view. 

Muslim (1471) narrated the story of how Ibn ‘Umar divorced
his wife, and the Prophet (peace and blessings of Allaah be upon him)
said: “Tell him to take her back and divorce her when she is pure (not
menstruating) or is pregnant.” 

Ibn ‘Abd al-Barr said: 

With regard to the pregnant woman, there is no difference of
opinion among the scholars that she may be divorced according to the Sunnah
from the beginning of the pregnancy to the end, because her ‘iddah is until
she gives birth. Similarly it was proven from the Prophet (peace and
blessings of Allaah be upon him) in the hadeeth of Ibn ‘Umar that he told
him to divorce her (his wife) when she was pure (not menstruating) or was
pregnant, and there is no distinction between the beginning or end of
pregnancy. 

Al-Tamheed (15/80). 

We have quoted the fatwa of Shaykh ‘Abd al-‘Azeez ibn Baaz
(may Allaah have mercy on him) about the ruling on divorcing a pregnant
woman in the answer to question no. 12287. 

Thirdly: 

It is not permissible for a husband to take any of his wife’s
property unless she gives it willingly, including her mahr (dowry), unless
she has committed an act of blatant immorality, because Allaah says
(interpretation of the meaning): 

“but if they, of their own good pleasure, remit any part
of it to you, take it, and enjoy it without fear of any harm (as Allaah has
made it lawful)”

[al-Nisa’ 4:4] 

“and you should not treat them with harshness, that you
may take away part of the Mahr you have given them, unless they commit open
illegal sexual intercourse”

[al-Nisa’ 4:19] 

Ibn Qudaamah said:  

[The scholars] are unanimously agreed that it is haraam to
take her wealth except in the case of wilful defiance (nushooz) or bad
conduct on her part. Ibn al-Mundhir narrated that al-Nu’maan said: If the
wrongdoing and mistreatment comes from him and she separated from him by
means of khula’, then it is permissible but he is sinning; what he did is
not permissible for him but he should not be forced to return what he took.

Ibn al-Mundhir said: What he says is contrary to the apparent
meaning of the Book of Allaah, and contrary to the proven report from the
Prophet (peace and blessings of Allaah be upon him), and contrary to
the consensus of most of the scholars. 

Al-Mughni (3/137). 

Shaykh al-Islam Ibn Taymiyah said in Majmoo’ al-Fataawa
(32/283): 

It is not permissible for a man to treat his wife with
harshness and put pressure on her until she gives up some of the dowry, or
to beat her for that purpose. But if she commits an act of blatant
immorality, he has the right to treat her harshly so that she will give him
something in return for letting her go, and he may hit her. This is
something that is between a man and Allaah. As for the wife’s family, they
should find out who is in the right and support him or her. If it becomes
clear to them that she is the one who has transgressed the limits set by
Allaah and has been unfaithful to her husband, then she is the wrongdoer and
transgressor so she should give something n return for divorce. End quote. 

What is meant by an act of blatant immorality (translated as
“illegal sexual intercourse”) in the verse “and you should not
treat them with harshness, that you may take away part of the Mahr you have
given them, unless they commit open illegal sexual intercourse”[al-Nisa’
4:19] is zina (adultery) and lack of understanding and bad conduct, such
as speaking bad words or mistreating her husband. 

See Tafseer al-Sa’di, p. 242 

And Allaah knows best.

Islam Q&A

 

 

Islam Question and Answer - Her husband frequently swears by divorce. Is she still married to him?

Her husband frequently swears by divorce. Is she still married to him?

My husband is always swearing by divorce, i.e., he says, “My wife is divorced if I do such and such” then he does not do what he swore to do. My husband has told me several times that it was an oath sworn in anger, then a few days after that, he does it again and repeats the same oath of divorce. 


Firstly: Am I still married to him?


Secondly: Is there any expiation that my husband must offer? 


Thirdly: What is the Islamic way of dealing with this situation?.

 

Praise be to Allaah.

Firstly:  

The ruling
on whether you are still married to him or not depends on whether divorce
actually took place or not. It is well known that if a woman has been
divorced three times, then she becomes irrevocably divorced from her husband
and is not permissible for him until she has been married to another
husband. 

What you
have mentioned is that your husband frequently says, “My wife is divorced if
I do such and such” then he does not do it. This is something concerning
which the scholars have differed. The majority are of the view that divorce
does take place if the oath is broken, i.e., if he does not do what he swore
he would do.

See: al-Mughni (7/372). 

Some of the
scholars – including Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on
him) – were of the view that if a person issues a divorce in the form of an
oath, but his intention was to ensure doing something or refrain from doing
something, then if the oath is broken he has to offer kafaarat yameen
(expiation for breaking an oath) only, and the divorce does not count as
such. This is what was stated in fatwas by Shaykh Ibn Baaz and Shaykh Ibn
‘Uthaymeen (may Allaah have mercy on them). Based on this opinion, your
husband’s intention should be examined. If he intended that a divorce should
take place when the condition was fulfilled, then divorce has taken place,
but if he intended to prevent himself or someone else from doing something,
or to compel himself or someone else to do something, then he broke the
oath, then this is an oath which may be expiated by offering kafaarat
yameen. See the answer to question no.
39941. 

Kafaarat
yameen (expiation for breaking an oath) involves freeing a slave or feeding
or clothing ten poor persons; if that is not possible then one must fast for
three days. 

Secondly: 

With regard
to divorce issued at a time of anger, in some cases it counts as such and in
some cases it does not, depending on the type and degree of anger. For more
details on that please see the answer to question no.
22034. 

Thirdly: 

The Islamic
way of dealing with this problem is for your husband to understand the
seriousness of uttering words of divorce and the consequences of that, as it
exposes his married life to destruction. It is sufficient for him to note
that his staying with his wife now is a matter concerning which the scholars
differed, and the majority of them are of the view that he has divorced her
three times, especially if he utters these words frequently. Perhaps he has
divorced her ten times. Would a Muslim be happy for his staying with his
wife to be the subject of a difference of opinion among the scholars, most
of whom say that it is not permissible for you to stay with her? Verily to
Allaah we belong and unto Him is our return. 

What he has
to do is fear Allaah and understand the seriousness of the words that have
come out of his mouth. He should not swear by anything except Allaah, and he
should stop swearing by anything else. We ask Allaah to keep us and you safe
and sound. 

And Allaah
knows best.

Islam Q&A