Tag archive for ‘divorce in islam’

Divorce in Islam: Procedure and Rulings (by IslamOnline)

Divorce decree

Divorce should always be a last resort.

 

Date: 09/Sep/2003Name of Mufti: Muzammil SiddiqiTopic: Divorce: Islamic Procedure & Rulings

Name of Questioner: K. from United States

Question: Dear scholars, As-Salamu `alaykum. Please explain what the proper Islamic procedure of divorce is. If a person divorces his wife in anger three times, is it counted one divorce or three divorces? In case he feels sorry about his words and wants to keep the marriage relationship, what is the proper procedure to annul the divorce? A detailed answer will be very much appreciated.

Answer:

Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.

In the Name of Allah, Most Gracious, Most Merciful.

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.

Dear brother in Islam, we commend your keenness on getting your self well-acquainted with Islam and its teachings, which is the way Allah has chosen for the welfare of His servants.

We must state clearly that divorce in Islam is the most abhorrent of all permitted things, and, as such, it must be resorted to only in extreme cases of necessity, and that too following certain stringent procedures and conditions. Among such procedures and conditions is: One must resort to divorce only after having exhausted all efforts of proper reconciliation and mediation. If, all efforts fail, while pronouncing divorce, one must be in a sober state of mind, and having clear intention to divorce. Just as marriage in Islam is contracted in a sober state of mind, and with clear intention, divorce must also be made in the same way.

In his answer to the question in point, Dr. Muzammil H. Siddiqi, former President of the Islamic Society of North America, states:

“Divorce is the most hateful thing to Allah, but it is allowed (halal) only in the case of absolute necessity. If a couple tried their best to reconcile their differences, but they still could not agree and they found impossible to live with each other, then only in that case they should separate in a proper and decent manner.

Divorce can be initiated by the husband or by the wife. The husband has the right to pronounce the words of divorce (talaq) to his wife. He can also give her a statement of divorce in writing.

The wife can seek divorce from her husband through khul`, but if he refuses to grant her request then she can seek the dissolution of marriage through the court of law. The Shari`ah has not given the right to a woman to divorce her husband, because only the husband has all the financial obligations of the family.

After divorce he will be responsible to provide her maintenance during her `iddah and if there are any children in the family then he will be responsible for their expenses. Thus to grant her that right equally with the husband while she has no financial obligation is unfair and unjust. The wife can, however, divorce her husband if her husband gave her that right either at the time of marriage or afterwards.

A husband who wants to divorce his wife should use the words of divorce with full awareness after much thinking and consideration. Using the words of divorce in haste or anger is not right. The proper procedure is to give divorce when a woman is not pregnant and is not going through her monthly menstrual cycle. Divorce can take place by saying one time “I have divorced you” (talluqtuki) or “You are divorced” (anti taliq).

After this the woman should spend the time of her `iddah. During the period of `iddah the husband can cancel his divorce and can resume the matrimonial relationship, but if it does not happen then the divorce takes effect and at the end of the `iddah period their marriage ends. There is no need to repeat the words of divorce more than once. Even one divorce is sufficient to terminate the relationship.

The provision of the second and third divorce is given for a husband who divorces his wife one time and then cancels his divorce, but then after sometime changes his mind and divorces her again second time. Then he changes his mind and resumes the relationship and then again after that he divorces her. The Shari`ah says that now this relationship should end.

Marriage is a serious matter. One cannot keep divorcing one’s wife and returning her back. After the third divorce he cannot take her back. The third divorce is called the “irrevocable divorce” (talaq mughallaz). The wife now becomes forbidden to her husband completely. She cannot go back to this husband who has divorced her three times, unless she marries another person who out of his own free will divorces her and then after the `iddah she and her previous husband want to remarry. This is called halalah in the language of the Shari`ah. This rule is given by the Shari’ah to reduce the occurrence of three divorces and to protect the honor of the woman.

Some people misuse this procedure out of ignorance or willingly. There are some people who think that the divorce (talaq) would not happen unless one makes the statement three times. There are others who repeat the words of divorce for emphasis and have no idea that this could be very serious. The jurists (fuqaha’) have discussed this issue for the last fourteen hundred years. There were some jurists who took the strict position that three divorces whether uttered at once or separately would be considered as three divorces. According to them, whether a person misused this right knowingly or unknowingly the affect would be the same. If some one uttered the words of divorce three times, then this would be talaq mughallaz and his wife would become totally forbidden for him and they could not reconcile without a halalah.

There are, however, some other jurists who emphasize the role of will in marriage and divorce. They say that if the husband used three divorces intentionally as three, then they will be counted as three, but if he repeated the words in anger or to emphasize his point then this is one divorce and he will have the right to resume the relationship with his wife. I feel that the second position is closer to the spirit of the Shari`ah. I am pleased to see that there are now some Hanafi jurists also who are inclined to this position. There were fatwas issued to this effect by the `Ulama’ of Deoband and Nadwa in India as well the `Ulama in Saudi Arabia.

The issue of a divorce given in anger is also important. The basic rule is that divorce must be uttered with full consciousness and without any coercion. If a person pronounced the words of divorce to his wife, in a fit of anger, while he lost all control over himself or due to the influence of intoxicants which he sinfully consumed, or he was forced by someone else to do so, then in all these cases his words of divorce are null and void and have no effect.

In conclusion, let me say that Muslims must protect their family life and must avoid divorce as much as possible. If it becomes necessary to have divorce then use the Islamic methods and procedures. Obviously we cannot give all the details here. Those who need more information they should consult special books on this subject or speak to those who are knowledgeable.”

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Ruling on Triple Divorce

Divorce decreeWhat is the ruling on so-called “triple talaq”, in which a husband makes three successive statements of divorce at one time, intending thereby to divorce his wife irrevocably?

Does it really count as three divorces, making the divorce instant and irrevocable, with no ‘iddah (waiting period) and no opportunity for reconciliation?

Or does it only count as one divorce?

Scholars have held different opinions on this matter. The majority of scholars have ruled that it does indeed count as three irrevocable divorces.

A minority of scholars, including Ibn Taymiyyah, Ibn al-Qayyim, were of the opinion that it counts only as one pronouncement of divorce.

Read below for more details on these rulings, and the evidence and reasoning behind them.

Date: 05/August/2004

Name of Mufti: Group of Muftis

Topic: Ruling on Triple Divorce

Name of Questioner: Hassan from Nigeria

Question: Dear scholars, As-Salamu `alaykum. What is the ruling on triple divorce? Should the divorce pronounced three times in succession be counted as one or three divorces? Jazakum Allah khayran.

Answer:

Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.

In the Name of Allah, Most Gracious, Most Merciful.

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.

Dear brother in Islam, we would like to thank you for the great confidence you place in us, and we implore Allah Almighty to help us serve His cause and render our work for His Sake.

First of all, it is to be stated that Muslims who utter three divorce pronouncements at one time or in one statement are rebels against Allah’s law and are deviating from the straight path of Islam.

In his well-known book, “The Lawful and the Prohibited in Islam”, Sheikh Yusuf Al-Qaradawi states:

“The Muslim is allowed three chances, that is to say, three pronouncements or acts of divorce on three different occasions provided that each divorce is pronounced during the time when the wife is in the period of purity and he has had no intercourse with her.

Those Muslims who utter three divorce pronouncements at one time or in one statement are rebels against Allah’s law and are deviating from the straight path of Islam. Once the Prophet (peace and blessings be upon him) was informed about a man who had pronounced three divorces at one time, he got up in anger, saying: “Is sport being made of the Book of Allah while I am (yet) among you?” (Reported by an-Nasa’i)”

As for the ruling on the triple divorce and whether it is counted as one divorce or three, Sheikh Ahmad Kutty, a senior lecturer and an Islamic scholar at the Islamic Institute of Toronto, Ontario, Canada, states:

“There remains the question: Whether the triple divorce pronounced concurrently by the husband shall be considered as a single divorce or three separate divorces. If it is considered as three separate divorces, then the couple cannot be married again unless someone else has married the woman, and he has, on his own free will, divorced her.

According to scholars such as Ibn Taymiyyah and Ibn al-Qayyim, triple divorces that are pronounced concurrently shall be considered only as a single divorce. They base themselves on the evidence that it was treated by the Prophet (peace and blessings be upon him) as single divorce. It is further supported by other clear evidences from the Qur’an and the Sunnah.”

Excepted, with modifications, from: www.muslims.ca

Shedding more light on the issue, we’d like to cite the words of Sheikh Sayyed Sabiq in his well-known book, Fiqh As-Sunnah. He writes:

“Muslim scholars maintain that the one who divorces his wife three times in one occasion has committed a sin. It is reported that the Prophet (peace and blessings be upon him) became very angry when he was informed that a man had divorced his wife by pronouncing it three times on one occasion.

However, jurists differ as to whether the divorce pronounced three times in succession is to be counted as one divorce pronouncement or three separate divorces. The majority of scholars state that if the husband pronounces the divorce of his wife three times on one occasion, it will be counted as three divorces. This is the opinion of many of the Prophet’s Companions, the majority of the successors, and the imams of the four schools of fiqh.

Other scholars including Ibn Taymiyyah, Ibn al-Qayyim are of the opinion that it should be counted as only one pronouncement of divorce. This is also reported by Ibn al-Munzir from `Ata’, Tawus, Ibn Dinar. Ibn Mughith also reported this opinion of `Ali ibn Abi Talib, Ibn Mas`ud, `Abdur-Rahman ibn `Awf, Az-Zubayr from among the Companions of the Prophet (peace and blessings be upon him).

They quote the following hadith in support of their view: “Ibn `Abbas (may Allah be pleased with him) reports that the (pronouncement) of three divorces during the lifetime of Allah’s Messenger (peace and blessings be upon him) and that of Abu Bakr (may Allah be pleased with him) and two years of the caliphate of `Umar ibn Al-Khattab (may Allah be pleased with him) was treated as once. But `Umar ibn Al-Khattab (may Allah be pleased with him) said: “Verily the people have begun to hasten in the matter in which they are required to observe respite. So if we had imposed this upon them (i.e. regard the divorce pronounced three times in succession as irrevocable divorce, it would have deterred them from doing so)!” So he regarded it as such. This latter view is believed to be the most correct.”

– IslamOnline.net

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She had a secret ‘urfi marriage, and now her family wants to marry her to someone else

Even if a secret marriage is invalid, it must still be dissolved through divorce.

Even if a secret marriage is invalid, it must still be dissolved through divorce or annulment.

Reprinted from Islam-qa.com

Question:

What should a girl do who was a virgin and married herself off in an ‘urfi marriage to a man who is already married, at the hands of a sheikh and with two witnesses and the family of the sheikh in his house, with a simple mahr that she accepted but without any papers (it was only verbal)?

Her father is dead and she is grown up and does not have any adult brothers.

The man consummated the marriage with her and had intercourse with her, and they lived together for a while in secret like a married couple, without the knowledge of either family. After that she decided that this marriage could not continue for fear that her family would always object to the idea. Now her family are determined to marry her off to another man of whom they approve and they are determined to ahead with this marriage without knowing of her secret.

What should the girl do with regard to the first marriage? Is the marriage valid and does she have to get divorced from him? How should the divorce be done? Is it by speaking in front of the same witnesses or what? When she gets married to another man, does she have to tell him that she was married before, even though she is going to have an operation to repair the hymen so as to avoid any shame, whether she marries him or not?

Answer:

Praise be to Allaah.

Firstly:

According to the majority of fuqaha’, in order for a marriage to be valid it is essential for the woman’s wali (guardian) to be present. The wali is her father, then her son – if she has a son, then her brothers, then her brother’s son, then her paternal uncles, then the sons of her paternal uncles, and so on in order of closeness among the male relatives on her father’s side. If there is no one, then the ruler or the qaadi (judge) is her guardian, because the Prophet (peace and blessings of Allaah be upon him) said: “There is no marriage without a guardian.” Narrated by Abu Dawood (2085), al-Tirmidhi(1101) and Ibn Maajah (1881) from the hadeeth of Abu Moosa al-Ash’ari; classed as saheeh by al-Albaani in Saheeh al-Tirmidhi.

And the Prophet (peace and blessings of Allaah be upon him) said: “Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid, and if there is a dispute, then the ruler is the guardian of the one who has no guardian.” Narrated by Ahmad (24417), Abu Dawood (2083) and al-Tirmidhi (1102); classed as saheeh by al-Albaani in Saheeh al-Jaami’ (2709).

Based on this, this girl’s marriage that was done in this manner is not valid, because it was done without the presence or consent of her guardian. The basic principle is that they should be separated, and there is no need for a divorce because the marriage was not valid in the first place. But as some scholars regard marriage without a wali as valid (even though this is a weak view), then divorce should be done. It is sufficient for the husband to speak the words of divorce, and it is not necessary to bring the witnesses who witnessed the marriage.

Ibn Qudaamah (may Allaah have mercy on him) said: If a woman gets married in an invalid manner, it is not permissible for someone else to marry her until she is divorced or the marriage is annulled. End quote from al-Mughni (7/9).

If he divorces her and her ‘iddah has ended, then it is permissible for her to marry someone else.

Secondly:

This girl has to tell the future husband of her first marriage. It is not permissible for her to have an operation to repair her hymen because that is deceiving the husband. The Prophet (peace and blessings of Allaah be upon him) said: “Whoever deceives is not one of us.” Narrated by Muslim (101).

This is even more important if it says in the marriage contract that the bride is a virgin, as is the case in the country of the woman who is asking this question.

It does not matter how much embarrassment this will cause for her. She is the one who has brought it on herself and entered into this haraam marriage which is shameful in the view of others, so she has to bear the consequences.

But if she repents to Allaah and turns to Him, Allaah will grant her a way out.

We ask Allaah to help us all to obey Him and please Him.

And Allaah knows best.

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