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

 

 

Islam Question and Answer - Rights of revocably and irrevocably divorced women

 

 

Rights of revocably and irrevocably divorced women

I would like to ask about the rights of the wife in the case of divorce when she has custody. Please note that she is the one who asked for talaaq.

 

Praise be to Allaah.

If a woman has asked for divorce – when her husband has
consummated the marriage with her – one of two scenarios must apply: 

1-

Either she has asked for it because of the husband’s
shortcomings in fulfilling her rights, or because of some attitude in him
that annoys her and deprives her of her rights, or because he has fallen
into sin, and other such reasons which make it permissible for her to ask
for talaaq. The shar’i judge is the one who should evaluate them and decide
whether they are valid reasons or not. If they are valid, then the husband
must divorce her by talaaq in that case, and give her all her rights in
full, which are: 

(i)               
The full mahr that was agreed
upon, both the earlier portion, if any of it is still outstanding, and the
delayed portion, because the Messenger of Allaah (peace and blessings
of Allaah be upon him) said: “If he has consummated the marriage with her,
then the mahr is hers because of his intimacy with her.” Narrated by
al-Tirmidhi (1102); classed as saheeh by al-Albaani in Irwa’ al-Ghaleel
(1840).

(ii)             
Reasonable maintenance,
including food, drink, accommodation and clothing during the ‘iddah period,
if it is revocable divorce. 

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

The woman who has been revocably divorced is still a wife so
long as the ‘iddah continues, and she is entitled to the same as other wives
of maintenance, clothing and accommodation. End quote. 

Al-Mulakhkhas al-Fiqhi (2/317). 

If the divorce is not revocable, such as a third talaaq, then
she is not entitled to maintenance or accommodation. 

Muslim (1480) narrated that Faatimah bint Qays (may Allaah be
pleased with her) was divorced by her husband for a third time, and she
asked the Messenger of Allaah (peace and blessings of Allaah be upon
him) about what she was entitled to of maintenance. He said:  “You are not
entitled to maintenance or accommodation.” 

If she has custody of her children from him, then in that
case he must also give her: 

(iii)           
Payment for custody and
breastfeeding.

(iv)           
Maintenance for the children. 

Allaah says (interpretation of the meaning):

“The mothers shall give suck to their children for two
whole years, (that is) for those (parents) who desire to complete the term
of suckling, but the father of the child shall bear the cost of the mother’s
food and clothing on a reasonable basis. No person shall have a burden laid
on him greater than he can bear”

[al-Baqarah 2:233]. 

So Allaah has made it obligatory for the father of the child
to spend on the mother who breastfeeds her child. This includes the woman
who is pregnant or divorced; the father must pay for maintenance.  

Tafseer al-Sa’di (p. 105). 

Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allaah have
mercy on him) said: 

The woman who is thrice-divorced is not entitled to
maintenance from her husband for herself, but he should spend on her for the
sake of the pregnancy. On that basis, whatever she needs of maintenance
because of the pregnancy, the husband must provide it, and after the
delivery, he should pay for the breastfeeding and clothing and the like of
the child, but he is not obliged to provide the mother’s food after the
delivery. Allaah says (interpretation of the meaning):  

“And if they are pregnant, then spend on them till they
lay down their burden”

[al-Talaaq 65:6]. 

Liqaa’aat al-Baab il-Maftooh
(147/question no. 8). 

It says in al-Mawsoo’ah al-Fiqhiyyah (17/311): 

The Shaafa’is and Hanbalis are of the view that the woman who
has custody is entitled to demand payment for custody, whether the woman
with custody is the mother or someone else, because custody is not
obligatory for the mother, and if she refuses custody it should not be
forced upon her, generally speaking. End quote. 

Setting the amount of payment and maintenance should be
referred to the qaadi (judge). 

It is not permissible for the husband to put pressure on his
wife so that she will give up any of the rights mentioned above. This has
been explained in the answer to question no.
42532. 

2-

The second scenario is where the woman asks for divorce from
the husband with no cause. In that case the husband may ask her to return
the mahr that he gave her, in return for divorcing her. This is what is
called khula’. 

See the answers to questions no.
1859,
26247 and
34579. 

In this case the four rights mentioned above no longer
remain, except payment for breastfeeding and custody, and maintenance of the
child who is still being breastfed. 

‘Abd al-Razzaaq narrated in al-Musannaf (4/90) that
al-Sha’bi was asked about the woman who is divorced by khula’ – is she
entitled to maintenance? 

He said: How can he spend on her when he takes from her? 

Because if the khula’ is done, the husband cannot take her
back, so she is like one who is irrevocably divorced, and is not entitled to
maintenance. 

Ibn al-Qayyim (may Allaah have mercy on him) said: 

The irrevocably divorced woman (unless she is pregnant) is
not entitled to maintenance or accommodation according to the saheeh Sunnah
of the Messenger of Allaah (peace and blessings of Allaah be upon him);
indeed this is in accordance with the Book of Allaah and is what is implied
by qiyaas (analogy) and it is the view of the fuqaha’ of hadeeth. 

I’laam al-Muwaqqi’een (3/378). 

See also the answer to question no.
49821. 

And Allaah knows best.

Islam Q&A