Divorce

Author Topic: Divorce  (Read 4260 times)

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Divorce
« on: January 14, 2013, 09:46:56 AM »
Divorce, ISLAMIC PERSPECTIVE

Question :                                                                                                            

What are the reasons that a man can justify to divorce? Is it ok for him to divorce a woman identifying her mistakes?

Does the wife have the right to try to reconcile even if the husband does not want to, is there anything in Islam that requires that the husband must try to reconcile, or is everything completely up to him?

Answer :   
                                                                                                             
 
Divorce is the most hated permissible thing in the sight of Allah. It dissolves families and deprives children the family atmosphere. The Prophet (peace and blessings be upon him) said: "The most hateful permissible thing (al-Halal) in the sight of Allah is divorce." (Abu Dawud, Hadith 1863, Ibn Majah, Hadith 2008).

The spouses should avoid divorce as much as possible. If they have difficulties and problems, they should be patient and forbearing. They have to try to work out their differences and seek help from their relatives, friends or professional counselors.

Due to the sacredness of the marriage contract, Islam asks both the husband and the wife to keep and respect this bond. Thus, each partner in this sacred relationship must treat the other kindly and properly. A man must not divorce his wife to bring harm upon her, as this constitutes an act that demolishes this noble establishment, breaks the woman�s heart, and possibly separates the woman from her children without any reason. Thus, the separation between a man and his wife (without just reasons) was considered one of the major and grave sins, and one of the most beloved actions of Satan, as was narrated in a number of hadiths. This is, of course, a form of oppression which is totally forbidden in Islam.

In this regard, we recall the Prophet�s hadith that reads: "Iblis (Satan) places his throne upon water, then sends his groups. The closest to him are those who (tempt people to) commit the most grievous of sins (fitnah). One of them would approach him and say: I did such-and-such. Iblis would reply: You have done nothing. Another would approach and say: I did not leave him (a man) until I caused him to leave his wife and for them to be separated. Iblis would bring him close to his throne and would say: How good you are!�

And since the husband must never divorce his wife in order to bring harm upon her without reason, it is also forbidden for a woman to ask for a divorce without a sensible reason. The Prophet (peace and blessings be upon him) said: �Any woman who asks her husband to divorce her without an acceptable reason will never smell the scent of Paradise.�

Given the above, it becomes crystal clear that neither the husband nor the wife has the right to resort to divorce without justification. Divorce should be the last resort after all attempts of reconciliation fail. The Prophet (peace and blessings be upon him) said: �Let a believing man not dislike a believing woman. If something in her is displeasing to him, another trait may be pleasing.�

And Allah Almighty says, ".� And consort with them in kindness, for if you dislike them, it may be that you dislike something in which Allah has placed much good." (An-Nisa'4:19)

A husband should accept reconciliation, particularly when his wife shows her wish for reform and obedience. Allah says:

"... And as for those women on whose part you fear stubbornness, (first) admonish them; then refuse to share their beds; and (finally) beat them (lightly). Then if they return to obedience, seek not against them Means (of annoyance); indeed, Allah is Most High, Great (34) And if you fear breach between the two of them, appoint an arbiter from his family and an arbiter from her family. If they desire to set things aright, Allah will bring about reconciliation between them; indeed, Allah is Knowing, Aware." (An-Nisa' 4: 34-35)

It is to be remembered that each divorce has multiple effects on their ownself (later not getting a good spouse easily, and for woman, not even remarriage at all) but also on children (who get hanged between father and mother). It may be very long or permanent division between two attached families, specially if they have multiple family bindings.

Source: http://www.islamicislamic.com/divorce.htm#1._Divorce,_ISLAMIC_PERSPECTIVE_
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #1 on: January 14, 2013, 09:48:16 AM »
Divorce: CHRISTIANITY PERSPECTIVE

Christianity stands alone among the religions, in distinction even to Judaism, in prohibiting both divorce and marriage to divorced men and women.

Jesus (peace be on him) is reported to have said, "It was also said, 'Whoever divorces his wife must give her a certificate of divorcement. But I tell you, whoever divorces his wife, except on the grounds of adultery, causes her to commit adultery; and whoever marries a woman who has been divorced commits adultery. (AI-Islam Din 'Am Khalid by Farid Wajdi, p. 172.) " (Matt. 5:31-32) "And he said to them, 'Whoever divorces his wife and marries another, commits adultery against her; and if a woman divorces her husband and marries another, she commits adultery.' " (Mark 10:11-12)

The reason for this is given in the Gospels in the words, "What therefore God has joined together, let no man put asunder.'' (Matt. 19:6, Mark 10:9.) This statement is correct in the sense that, since the husband and wife are married by God's permission and legislation, one may say that God has joined them together, although it is the man who enters into the marriage contract. In similar fashion, since God has permitted and legislated divorce in relation to certain reasons and circumstances, one may say that God has separated them, even though the man implements the divorce. It thus becomes clear that no man puts asunder what God has joined together, for joining together and putting asunder is in the hands of Almighty God, and is it not God Himself Who puts them asunder due to the reason of sexual immorality?
Differences Among Christian Denominations Regarding Divorce

The New Testament Gospels do make an exception with regard to the prohibition of divorce in the case of sexual immorality. Some Catholics, however, try to explain away even this exception by saying, "The meaning here is not that adultery is an exception in the case of which divorce is permitted, because in Christian law there is no divorce. The phrase, 'Except for unchastity,' means that the marriage itself is annulled, since its legality and correctness have been violated; thus, while it is seemingly a marriage, in actuality it is adultery. Consequently, in such a case it is permissible for the husband, or rather incumbent upon him, to leave the woman." (In a commentary on the Gospel According to Matthew, Institute of Coptic Catholic Research.)

The Protestant denominations permit divorce on the grounds of adultery, betrayal of the husband, and some other specified reasons, in addition to those mentioned in the text of the Gospels. However, some of these denominations prohibit the remarriage of a divorced man or woman.

The councils of the Orthodox Church in Egypt permit its followers the right of divorce on the grounds of adultery, as provided by the Gospels, and for some other reasons such as sterility extending over a period of three years, chronic illness, and prolonged dissension which appears to be irresolvable.

Consequences of the Christian Stand on Divorce


As a result of this uncompromising stand of Christianity with regard to divorce, people in Western countries were obliged to resort to civil legislation in order to legalize it. Unfortunately, many of them, the Americans, for example, went to an extreme of permissiveness in the matter of divorce so that it is granted for quite trivial reasons. Some Western philosophers warn that this ease in divorce will dilute the sanctity of the marital bond and erode the very foundations of family life. A well-known judge declared that the time is not too far off when, in Western countries, marriage will be replaced by a loose and tenuous relationship between men and women, similar to a commercial transaction, which can be broken for the most trivial reasons. Since there will be no bond of religion or love between such a pair, they will be united only by their lusts and the desire to experience a variety of pleasures, a type of relationship which is against the teachings of every religion:

This phenomenon of regulating personal affairs through civil law is against the teachings of every religion and is not to be found anywhere in the world except among the peoples of the Christian West; even Hindus, Buddhists, and Zoroastrians observe religious injunctions in the ordering of their personal affairs. Although we may find among them those who have made innovations in the teachings of their religions in matters of public concern, such innovations are not undertaken in personal affairs, that is to say, in marriage, divorce, and what pertains to family life. (As quoted in Huquq al-insan fil-lslam (Human Rights in Islam), by 'Abd al-Wahid Wafi, p. 88.)
The Christian Stand on Divorce: A Temporary Injunction, Not a Permanent Law

A serious student of the Gospels cannot escape the conclusion that what Jesus (peace be on him) taught was intended to correct excesses introduced into the divine law by the Jews. His teachings, including his statements concerning divorce, were never intended to be taken as permanent law for the whole of mankind.

In the Gospel according to Matthew we find the following dialogue between Jesus and the Pharisees: And the Pharisees came to him and put him to the test by asking, 'Is it lato dismiss one's wife for any cause?' He replied, 'Have you never read that "He Who made them the beginning made them male and female, and said, 'For this reason a man shall leave his father and mother and shall be joined inseparably to his wife, and the two shall become one flesh? ' " (Gen. 1:27, 2:24)

So they are no longer two but one flesh. What therefore God has joined together, let not man put asunder.' They said to him, 'Why then did Moses command (us) to give a certificate of divorce, and thus to dismiss a wife?' (Deut. 24:1-4). He said to them, 'Because of the hardness of your hearts Moses permitted you to dismiss your wives; but from the beginning it has not been so (ordained). I say to you: whoever dismisses his wife, except for unchastity, and marries another, commits adultery, and he who marries a divorced woman commits adultery.' The disciples said to him, 'If the case of a man with his wife is like that, it is neither profitable nor advisable to merry.' (Matt. 19:3-10)

From this dialogue it is clear that by restricting the permissibility of divorce to the case of unchastity alone, Jesus intended to correct the excesses of the Jews in the indiscriminate application of divorce, which was permitted under Mosaic Law. This was obviously a temporary remedy, abrogated by the permanent and universal law of Islam brought by Prophet Muhammad (peace be on him).

To suppose that Jesus (peace be on him) intended to make this an eternal law for all mankind does not appeal to reason. We see that his disciples, the most sincere of his followers, were aghast at such a harsh decree, saying, "If the case of a man with his wife is like that, it is neither profitable nor advisable to marry," that is, the moment a man marries a woman he puts a yoke around his neck which it is impossible to remove, regardless of how miserable their life together may become because of mutual hatred and incompatibility of temperaments. As a wise man has aptly said, "The greatest torment in life is a companion who neither agrees with you nor leaves you alone."
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #2 on: January 14, 2013, 09:49:19 AM »
DIVORCE � CORRECT ISLAMIC PROCEDURE

Question :

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?

Answer :                                                                                                                 

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 women 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."
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #3 on: January 14, 2013, 09:50:39 AM »
Divorce, DIFFERENT OPINION

Question :

After being married for eighteen months, my nephew had an argument with his wife which resulted in her departure to her parents home. Twenty-five days later, he called her by telephone to ask her to come back. However, on the phone they argued again and, in a sate of extreme anger, my nephew pronounced the words " I divorce you " four times. Regretting what had happened, my nephew consulted several scholars and he came out with two different rulings.

1.    The first, according to fiqh, says that as he divorced his wife more than twice, he cannot be reunited with her without an intervening marriage of his divorcee to another man.

The other ruling, according to Qur'an and Hadith, says that all four pronouncements count as one divorce, and as such, the divorcee can be reunited in marriage. Their families are at a loss and do not know what to do in the face of these two conflicting rulings. Could you please clarify the situation? May I say that my nephew is a follower of Qur'an and Hadith.

2.   I read many questions and answers regarding divorce in your paper, but unfortunately the exact process is not yet clear to me. Could you please let me know how a man can divorce his wife and what instructions he should follow, and when the process is complete, what are the duties of an ex-husband towards his divorced wife?

Answer :

Let me first of all say very clearly that there is no such thing as fiqh which can be taken as something separate from, or put in opposition to Qur'an or Hadith. Fiqh is a branch of Islamic scholarship which explains the details of Islamic legislation on the basis of commandments and instructions stated in the Qur'an and the Hadith. Different scholars may arrive at different conclusions on a particular subject, because they may not have the same statements in Hadith available to them. The Qur'an is available to all, but some of its statements may be given in general terms with Hadith explaining or qualifying them.

The two rulings your nephew received from scholars in his home town are both given by scholars of fiqh on the basis of the Qur'an and Hadith. Wherever a person goes in the Muslim world, he is bound to be given the same two rulings by scholars. Not only so, the same scholar may explain to him both rulings. How is this possible?

The answer is the supporting evidence for each ruling. There is no doubt that both have very valid evidence. We cannot dismiss either ruling out of hand, nor can we ignore its basis. Scholars of highest repute in our history subscribed to either one or the other. How can then a layman manage his own situation and which ruling he should follow?

The simple advice is that he should go to a broad minded scholar and explain his case. He should make sure that the scholar does not strictly follow a particular school of thought but rather is one who gives a judgement on each case according to its merit, and as he deems most suitable to the people concerned, using any judgement given by different schools of thought as long as it has sufficient supporting evidence to keep the enquirer within the boundaries of what is acceptable from the Islamic point of view. I do not think that much purpose can be served by a detailed discussion in a newspaper like ours of the different factors relevant to each of the two rulings.

However, I can say very briefly that the one which makes a divorce pronounced three times on the same occasion count as three divorces came into operation during the time of Umar without disagreement by any of the learned companions of the Prophet. It was more in punishment for a degree of abuse of the Islamic process of divorce. There is no disagreement among scholars that to divorce one's wife three times or more on the same occasion is forbidden from the Islamic point of view because it is an abuse of a legitimate procedure. When the Prophet was told by one of his companions that he divorced his wife one hundred times on the same occasion, the Prophet was very angry.

He addressed his companions in such terms, "Is Allah's Book to be trifled with when I am still alive among you?" However, the overwhelming majority of people who divorce their wives three times on the same occasion nowadays do so out of ignorance. They think that unless they pronounce the word of divorce three times, the divorce is not valid. Hence an explanation of the divorce process in Islam needs to be given time and again until people get to know how to approach divorce, which is disliked by Allah, should they ever need to resort to it. Perhaps I should add that divorce in Islam is a very simple process but well entrenched misconceptions tend to obscure it. Here it is in simple terms :

Essentially marriage is a verbal contract and its dissolution is normally made verbally. When a man intends to divorce his wife, he should make sure that she is not in her menstruation period and that the two of them have not had sexual intercourse during her current period of cleanliness from menstruation. If either case is there, i.e. if the woman is in the period or if sexual intercourse has taken place, then to effect a divorce at that particular time is forbidden. They should wait until the woman has finished her period or until she has had her next period. The divorce process is started with a simple utterance of the words "I divorce you," or "I divorce ---------------- "(naming one's wife). This should be done ONCE ONLY.

This can also be done in writing and sent by post. From that moment, a woman starts her waiting period which lasts until she has completed three menstruation periods or three periods of cleanliness from menstruation. If she does not have the period either because she is too old or too young, then her waiting term lasts three months. If she is pregnant, the waiting term continues until she has given birth. During this time, she stays in her home, i.e. her family home where she has been living with her husband. He is not allowed to turn her out. He is required to maintain her through this period but may not share the same bedroom.

She is not required to do any housework. The waiting period provides both divorcees with time to reconsider their situation. If they wish to be reunited in marriage, they may do so within the waiting period without any need to have a fresh marriage contract or to pay a fresh dower. If they do not resume their marriage until the waiting period is over, then the divorce process is complete and the woman returns to her parents' home and is entitled to get any deferred portion of her dower.

She is not entitled to any maintenance for herself from her ex-husband. If, however, she has the custody of any young children, they are entitled to be supported by their father. Both are also entitled to maintain their normal relationship with their children. On the other hand, if the divorcees want to be reunited in marriage after the waiting period is over, they may do so provided they have a new marriage contract and the woman receives a new dower.

This whole process may be done twice. If a man and wife go through the divorce process for a third time, whether they were reunited each time during the waiting period or after it, their divorce this time is final, in the sense that they cannot be reunited again in marriage without an intervening marriage by the woman who must be married to another man in the normal course of events. This means that to all intents and purposes the divorce is final.

If the woman receives a proposal from someone else and accepts it and marries him, her marriage must be intended for life. If, however, she gets divorced after a period of time, may be a year or may be ten years, or longer or shorter, she may return after the end of her new waiting period, to her first husband if both of them think that this time their marriage may be successful. I must emphasize here that this intervening marriage must not be arranged for this purpose, as many people unfortunately do. If it is specifically arranged for this period, and the man hired for the purpose agrees to go through it for one night or a week or whatever, everyone involved is committing a serious sin.

Moreover, such an arrangement has no effect whatsoever. In other words, the woman cannot return to her first husband on the basis of such an 'arranged' intervening marriage. Having explained the process of divorce, I should say to my first reader that his nephew may consider his divorce to be a single divorce. He can be reunited with his former wife after having a new marriage contract, since her waiting period is over.

He should tell his nephew that to divorce his wife three times on the same occasion is forbidden. Perhaps I should add that the family law of several Muslim states adopts this ruling as the standard one. By doing so, the scholars who have codified the family have given due consideration to what serves the interests of the Muslim community and the fact that many people pronounce three divorces at the same time out of total ignorance. His nephew should not be confused by the two rulings and let him not think that to follow fiqh is different from following the Qur'an and the sunnah.

Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #4 on: January 14, 2013, 09:54:50 AM »
Divorce: When a three-time divorce is binding

Question :

Many of us felt a great relief when we read your reply, explaining that a divorce pronounced three or more times in one session is counted as one revocable divorce.

1. The relief comes from the fact that it is common practice in our part of the world to pronounce divorce three times together, which has resulted in many a broken homes. However, it is mentioned by scholars that all four schools of thought are unanimous in considering a divorce pronounced three times as three divorces, which renders the break of the marriage irreparable. Please comment in detail.

2. It is common practice that a man casts his wife by pronouncing the word of divorce three times. It is often true that this irrevocable break up of the marriage has no reason other than the husband's desire for another woman or some such silly thing. In this way, he uses the law of divorce to satisfy his whims. Could you please explain what sort of protection is given to the woman to guard against such abuse of the law?

Answer :

Any law or regulation can be subject to abuse. Unless you appoint someone to watch over every person to ensure that he abides by the letter and spirit of the law, you cannot achieve a proper adherence to the law. But Islamic laws and regulations are given the support of the very real feeling which Islam implants in the mind of every one of its followers that Allah watches over him or her. When we realize that Allah knows our intentions and the real reasons behind our actions, we feel that we must always watch out. We must never abuse Allah's law or be guilty of any wrongdoing. As people who believe in the Oneness of Allah and in the message of the Prophet Muhammad (peace be upon him) we know that we have to face a detailed reckoning on the Day of Judgment, when we have to answer for every action that we may make in this life. It is the total sum of what we have done in life and the net result of our good actions set against our bad ones that determines our destiny in the life to come.

As believers we know that heaven and hell are a reality and that we must do our best to ensure our admission into heaven. Therefore, we must always guard against doing injustice to anyone, particularly those whom we are required to look after and to whom we are supposed to bring happiness, i.e. our wives and close relatives. The other safeguard is the fact that in a Muslim community, women are properly looked after either by their husbands or by male members of their families, such as their fathers, brothers or uncles.

In addition, if we are good believers and know that following the teachings of the Prophet Muhammad (peace be upon him) brings us the greatest reward of all, namely, that Allah is pleased with us, we should work hard to implement the Prophet's teachings in our lives. The Prophet has repeatedly emphasized that we must take good care of our women. To take good care of one's wife cannot be accomplished by abusing the law of divorce in order to get rid of her, or "cast her away" as you say.

In order to understand the difference, you should know that there are two types of divorce in Islam, one is called sunni, which means it is done according to what has been stipulated in the Sunnah; the other kind is called bid'i, which means it has been done in a different way contrary to the Sunnah of the Prophet (peace and blessings be upon him). A sunni divorce means that a husband divorces his wife once at a time she is not menstruating or in a period of purity that no sexual intercourse were held. A bid'i divorce means the husband divorces his wife in a situation opposite to what has been stated in the sunni divorce, such as during menstruation.

Divorcing a wife thrice in one sitting is considered a bid'i divorce. That is why Muslim scholars have held different views on whether such divorce counts or not, and if it does count, does it count as revocable or irrevocable divorce. The majority of scholars said that a triple divorce counts as once, because it is reported that a man came to the Prophet (peace and blessings be upon him) and told him that he had divorced his wife three times. The Prophet (peace and blessings be upon him) told him that one of them had been considered and the rest been disregarded.

May I now turn to the other point of divorcing one's wife three times in the same session. I have explained several times that this is forbidden. When the Prophet heard that one of his companions did this, he expressed extreme anger and addressed the Muslim community, saying: "Will Allah's book be trifled with when I am still alive among you?" He described a divorce pronounced three times in the same session as "trifling with Allah's Book." There can be no greater emphasis that such an action is absolutely forbidden. Yet people do it all the time.

I am afraid that many are under the false impression that unless they pronounce the word of divorce three times together, the divorce does not take effect. Therefore, this comes as a result of ignorance. The question is whether what people do, pronouncing the word of divorce three times in quick succession, or in one session, or on the same day, counts three divorces as the four schools of thought say, or counts as one divorce, as I have explained on more than one occasion.

Before answering this question let me point out three very important facts:

First, a verdict may be accepted by a large number of highly prominent scholars, including, the founders of the four schools of thought, yet it may be supported by less weighty evidence than an opposite verdict which may be advocated by a smaller number of scholars. If we find that evidence supporting the view of the minority weightier, then we do not hesitate to accept that opinion, because no one, a scholar or others, of even the highest eminence, is immune from making a mistake or giving a judgment which relies on a misunderstanding, etc.

All our scholars agree that no opinion of any person is to be taken in preference to an authentic Hadith. Even the founders of the four schools of thought have expressed this view very clearly. Imam Al-Shaf'ie says: "If I say something and you find an authentic Hadith saying something different, then take the Hadith and leave my opinion aside."

The second point is that when there is more than one verdict in relation to a particular question, a person in my position, having to answer people's queries and explain what people should do in order to earn Allah's pleasure, should not leave his readers in a position of confusion. He must tell them the view that he believes to be the correct one, as supported by the weightier evidence. If any reader decides that he wants to take the other view, he is free to do so, but he should make his decision based on a proper understanding of the evidence relevant to the question on hand.

Thirdly, if the leader of a Muslim community chooses a verdict which is supported by good and weighty evidence and decides that this is the one to be implemented by the courts of law, he must be obeyed provided that he is only acting in the best interests of the community.

Those who consider that a divorce pronounced three times in succession, or in one session, or written down on the same piece of paper counts as three divorces rely on a ruling by Umar ibn Al-Khattab who, as a ruler of the Islamic state, enforced that piece of regulation. He justified it by saying: "People have precipitated something in which they have been given relief, it may be appropriate to enforce what they have precipitated."

So he enforced it. It is clear from this statement that Umar meant this as a punishment befitting the misbehavior of people who precipitate the irrevocability of divorce by divorcing their wives three times in succession. In other words, he was saying that "People want that irrevocability to take place immediately, then let them have it."

The companions of the Prophet who were alive at that time accepted Umar's view, because they felt that the punishment was appropriate. Later scholars have taken this as a unanimous verdict by the companions of the Prophet and include it in their books as the appropriate ruling. The fact that it was merely a punishment is the acknowledgment implied in Umar's own statement that people have already been granted a relief, but they still precipitate the ultimate result.

It is only appropriate to ask what that relief is. The answer is contained in the authentic Hadith included in this report by Abdullah ibn Abbas: Rukanah ibn Abdyazid divorced his wife three times in the same place, and then he was full of grief of having done so. Allah's Messenger (peace be upon him) asked him: "How did you divorce her?" Rukanah said: "I have divorced her thrice." The Prophet asked him: "In one session?" He answered: "Yes." The Prophet said: "That is one divorce, and you may return to her if you wish." He revoked the divorce and remarried her."

This Hadith tells us that the Prophet himself gave the ruling that a divorce pronounced three times in a succession, or in one place counts only as one divorce. It is well known that a remarriage between a divorced couple can take place if the divorce is taking effect for the first or second time. Indeed, this was the ruling enforced by the Prophet throughout his life, and also enforced throughout the reign of Abu-Bakr and the early period of the reign of Umar. All companions of the Prophet who were alive in that period were unanimous in their acceptance of such a divorce as a single divorce.

This ruling, as I have mentioned earlier, is one adopted by a number of renowned scholars, including Imam Ibn Taimiyah and Imam Ibn Al Qayyum. Earlier in this century, when the family law in several countries was enacted, scholars who were entrusted with the task of formulating the Islamic teachings in a well coded family law chose this ruling as the correct one and incorporated in that family law. It was then endorsed by the ruler. As such, it takes a much stronger effect.

From a totally different point of view, it is well known that in Islam, when a person says to his wife that she is divorced, intending a termination of his marriage to her, she begins the procedure of divorce [and her waiting period] immediately. She is, technically speaking, a divorcee, but she is observing a waiting period.

When he says the same thing to her a second time, whether immediately or a short while afterwards, his statement is no more than an idle talk because she is no longer his wife. How is it possible to divorce a woman who is not one's wife? That is certainly impossible and, therefore, the second and any subsequent utterances of the word of divorce have no significance whatsoever.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #5 on: January 14, 2013, 09:56:26 AM »
Divorce: The woman's right to demand divorce

Question :

What are the woman's right to demand divorce?

Answer :

The woman who cannot bear to live with her husband has the right to free herself from the marriage bond by returning to her husband the mahr (required marriage gift) and gifts he has given her, or more or less than that according to their mutual agreement. It is, however, preferable that he should not ask for more than he has given her. Allah Ta'ala says:  ...And if you fear that the two may not be able to keep to the limits ordained by Allah, there is no blame on either of them if she redeems herself ...(Al-Baqarah 2:229)

The wife of Thabit bin Qais came to the Prophet and said, "O Messenger of Allah, I do not approach Thabit bin Qais in respect of character and religion, but I do not want to be guilty of showing anger to him." The Prophet asked her about what she had received from him. She replied, "A garden". He asked, "Will you give him back his garden?" "Yes", she said. The Prophet then told Thabit, "Accept the garden and make one declaration of divorce."

It is not permissible for a woman to seek divorce from her husband unless she has borne ill-treatment from him or unless she has an acceptable reason which requires their separation. Said the Prophet, "If any woman asks her husband for a divorce without some strong reason, the fragrance of the Garden will be forbidden to her."

However, there are several cases whereby a woman is allowed to ask for a divorce, these include:

1-   If she had a quarrel (major fight, not necessarily physical) and resulted in separation with her husband by going to any other place.

2-    If her husband mistreats her and causes her harm.

3-    If her husband is not able to support her financially

4-    If her husband is absent for a long time, if he disappears, or if he is put in jail.

5-    If he has physical problems which prevent him to make sexual relation such as not being able to get an erection or lacking a penis, etc.

There may be other cases which can be decided by the woman with consultation of parents and family members. However it should be kept in mind by both husband and wife that �Divorce� is the only allowable, authorized by Allah, but He hate it also.

Types of Talaqs

A woman cannot give �Talaq� - because �Talaq� is a Arabic word used for divorce, when a man gives to a woman or husband gives to a wife.

There are 5 types of divorce, in Islam �

The first type is by unilateral

It is by unilateral agreement, between the husband and wife - Both may say� �Okay, we are not compatible� let us part�.

The second type, is by the unilateral will of the husband

This is called a �Talaq�, in which, he has to forgo his �Meher�. If he has not paid it, he has to pay it to her, including the gifts, he has given to her.

Third type, is by the unilateral will of the wife

If she got mentioned it in her marriage contract,  Nikah-Nama that she has the right to give unilateral divorce.  It is called as �Isma�. So if in Nikah Nama, in detiled conditions, this is written, then she has right to give talaq as husband has given this right in writing.

Fourth category

If the husband ill-treats her, or not give her equal rights, she has the right to go to a Kazi, and nullify the marriage - It is called as �Nikah-e-Fask�. In this, according to the Kazi, he may ask the husband to give the full �Meher�, or part of the �Meher�, depending upon the Kazi.

Fifth category


It is caled �Kulah�,  that even though the husband may be a very good husband, the wife has got no complaints against the husband, but for personal reasons, she does not like the husband. She can request the husband, to divorce her - and that is called as �Kulah�.

But very few people talk about women giving divorce, to the men. Some of the Ulemas have categorized these 5 types of divorce, into 2 or 3 different categories, but broadly there are 5 types of divorce, in Islam.

Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #6 on: January 14, 2013, 09:58:07 AM »
Divorce in anger

Question :

On discovering that his wife has visited her parents against his express instructions, a husband was very angry. During their subsequent quarrel he said to her "I divorce you. I divorce you. I divorce you." Later on, he repented and started asking about ways and means to reinstate his marriage. Please comment.

Answer :

I invite you to reflect on the Hadith which states: "It is not a mark of strength to be able to overcome an opponent in a physical fight. The mark of strength is to control one's anger." This man has proved himself to be too weak according to the standard set by the Prophet, which is the best and most accurate standard. He certainly should have known better. Why should he has allowed himself to divorce his wife in a flight of anger? Why could he not deal with the matter in a cool, deliberate way, as Islam recommends?

Besides, marriage is not something to trifle with so that divorce could be brought about in the extreme circumstances of anger. That is not the way Muslims should deal with one another, let alone a Muslim man with his wife. Besides, if this man is so furious as to divorce his wife during an angry quarrel, simply because she visited her parents, then he should re-examine his whole attitude. Unless there are very valid and compelling reasons for his attitude toward his parents-in-law, a man must not adopt the unhealthy attitude of arbitrarily ordering his wife not to visit her parents. 

Indeed, a Muslim is always kind to his relatives. A Muslim man should be the one who encourages his wife to maintain a good relationship with her family and facilitate her in showing her dutifulness to her parents. If he, instead, orders her to boycott them, then he is wrong and he does his wife an injustice. Scholars mention that divorce in anger does not take effect. But that means that the divorcing man should be in a state of blind anger which does not enable him to realize what he is actually saying.

To judge whether this ruling applies to any particular case, the man should be asked after he has divorced his wife. If he says no, then the divorce does not take effect. If he was aware of it, then the divorce is valid. The fact that he has mentioned the word of divorce three times on this occasion is immaterial. This is a single-time divorce which is revocable. The divorced wife should observe a waiting period which is normally around three months. During that time she stays in her husband's home and they can reinstate their marriage by mutual agreement and having witnesses. If the waiting period is over, they can remarry again with a new marriage contract and a fresh dower to be paid by the husband to his wife.

Shaykh Ibn Baaz (may Allah have mercy on him) was asked about a man whose wife treats him badly and insults him, so he divorced her at a moment of anger. He replied:

If you uttered the words of divorce at a moment of intense anger and without realizing it, and you could not control yourself, because of her bad words and insults etc., and you did that at a moment of intense anger and without realizing it, and she acknowledges that, or you have a witness of good character, then divorce has not taken place, because the shar�i evidence indicates that divorce does not take place if the words are spoken at a moment of intense anger � and if it is accompanied by not realizing what is happening then the ruling applies even more so.

For example, Ahmad, Abu Dawood and Ibn Maajah narrated from �Aa�ishah (may Allah be pleased with her) that the Prophet (peace and blessings of Allah be upon him) said: �There is no divorce and no manumission in the event of ighlaaq.� The majority of scholars said that ighlaaq means compulsion or anger, i.e., intense anger. For his anger made him unaware of what he was saying, so he is like one who is unconscious, insane or drunk, because of the intensity of his anger. So divorce does not take place in this instance. If he does not realize what he is doing and cannot control his words or actions because of the intensity of his anger, then divorce does not take place.

Anger may be of three types:


1 � When a person is angry and is no longer aware of what he is doing. This is likened to the insane, so divorce does not take place according to all scholars.

2 � Where a person is very angry but is still aware of what is going on, but his anger is so intense that it makes him say the words of divorce. In this case too, divorce does not take place according to the correct scholarly opinion.

3 � The ordinary type of anger which is not very intense. In this case, divorce takes place, according to all the scholars.

From Fataawa al-Talaaq, pp. 19-21, compiled by Dr. �Abd-Allah al-Tayyaar and Muhammad al-Moosa.

We ask Allah to bless us all with understanding of His religion and help us to venerate His laws. 
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #7 on: January 14, 2013, 09:59:14 AM »
DIVORCE IN PREGNANCY

Question :

If a man has a notion that divorced cannot be finalized while the wife is pregnant and he divorces his wife while she is pregnant by saying her I give you divorce second and third time. Is the divorce finalized or the person can take her wife back?

Answer:                                                                                                                     

The correct Talaq is that done having intention and it is decided in a time on the wife finished her period and he makes Talaq before having sexual intercourse with her. He cannot make more than one Talaq during the Iddah. He will live with her after Talaq for three menstruations; he has the right to reconcile during that period. If the Iddah is over before he reconciles then the Talaq is valid. And they cannot get back to each other without a new marriage contract.

If the wife is pregnant the Talaq is valid and the Iddah will take the time of pregnancy, he can reconcile during that period. If he does not reconcile before delivering the baby then the Talaq is valid and he cannot have her back without a new marriage contract. No second or third divorce can be counted in the same Iddah. This method of Talaq is what is called the Sunni Talaq. It is complying with the Quran and strong Hadiths. Any other Talaq is called bidii (innovated).
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #8 on: January 14, 2013, 10:00:23 AM »
DIVORCING A MENSTRUATING WOMAN

Question :

A mother of two children was divorced by her husband but at the time of the divorce she was not in a state of purity. However, she did not tell her husband that until the time that they went to the judge. She hid that information from him but not from her mother. The mother told her not to tell the judge for, if she did, the judge would not pronounce the divorce. Afterwards, she stayed with her family and then she wanted to be reunited with her husband out of fear that her children would grow up lost and un-cared for [since their father would not be present]. What is the ruling concerning that divorce that took place while she was menstruating?

Answer :

Divorce that takes place while the woman is menstruating is disputed among the scholars. Indeed, the discussion over it is quite lengthy. The question is whether it was a divorce that took place or a divorce with no meaning to it whatsoever. The majority of the scholars say that it is a divorce that takes place and has legal effect. That is, it is considered a divorce but, at the same time, the person is ordered to take her back and to not touch her until she becomes pure from the menses and then gets her menses a second time. Then when she becomes pure after that second period, he may either keep her or he may divorce her. This is the approach of the majority of the scholars, including the four Imams, Imams Ahmad, al Shafi'i, Malik and Abu Hanifah. However, the strongest opinion, we feel, is the conclusion of Shaikh al-Islam ibn Taimiya. This is that the divorce said during the menses does not take place and has no legal effect. This is because it goes against what Allah and His Messenger (peace be upon him) have ordered. The Prophet (peace be upon him) has stated,

"Whoever does a deed that is not in accord with our affair shall have it rejected."

The evidence for the particular case of the menstruating woman is the hadith of Abdullah ibn Umar. He had divorced his wife when she was menstruating. The Prophet (peace be upon him) was informed of that and he became angry. He said,

"Order him to return to her and then leave her until she becomes pure and then has her menses again and then becomes pure again. At that time, he may keep her or he may divorce her."

The Prophet (peace be upon him) said,

"That is the period during which Allah has ordered the women to be divorced."

So the period in which Allah has ordered women to be divorced is for her to be divorced while she is pure and not having had sexual intercourse with her husband. If he divorces her while she is menstruating, he did not divorce her according to the command of Allah. Therefore, the act is rejected. The divorce that occurred to the woman in this question, in our opinion, is a divorce that did not exist. The woman is still under the marriage contract of her husband. It is regardless of whether he knew that he divorced her while she was pure or not pure. His knowledge is not taken into consideration. However, if he knew that she was menstruating, he would be sinful and the divorce would not take effect. If he was unaware of that fact, the divorce would not have taken effect but there would be no sin upon the husband.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #9 on: January 14, 2013, 10:01:39 AM »
SWEARING FOR DIVORCE

Question :

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?

Answer :  Praise be to Allah.

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 Allah, because the Messenger of Allah (peace and blessings of Allah be upon him) regarded the one who divorced his wife three times in one go as toying with the Book of Allah. 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 Allah (peace and blessings of Allah 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 Allah be toyed with when I am still among you?�  A man stood up and said: �O Messenger of Allah, 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 Allah 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 Allah be upon him) who said: �Whoever wants to swear an oath, let him swear by Allah or else remain silent.� Narrated by al-Bukhaari (2679). If the believer wants to swear an oath, let him swear by Allah, may He be glorified and exalted. It is also not right to swear a great deal, because Allah 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 Allah 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 Allah 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 Allah have mercy on him) and his student Ibn al-Qayyim, and it is the correct view in sha Allah.

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 Allah 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 Allah.

And Allah knows best.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #10 on: January 14, 2013, 10:02:59 AM »
CONDITIONAL DIVORCE

Question :

I used to prepare my luggage to leave after my husband dismisses me due to an argument I have with him. But he used to stop me and say: �you will be divorced if you leave� so I was just staying. This happened three times. The last argument same thing happened, so I carried my luggage and said: �I am leaving� he said: �I will send you to your family but you will be divorced if I take you back� he meant to say that he does not want me to return. That time I left.

My question is: What is the ruling on what he said? He wants me and our children back, but I fear he has to expiate first. Shall I find someone else to return me back to my home, as his intention was to divorce me if he returns me to his home; because he was very angry?

Answer :  Praise be to Allah.

Firstly:

What is prescribed for the Muslim is to avoid using divorce in arguments between him and his wife, because of the grave consequences that result from divorce. Many men take the matter of divorce lightly, so every time there is an argument between a man and his wife he swears that he will divorce her, and every time he disagrees with his friends he swears that he will divorce his wife, and so on. This is a kind of toying with the Book of Allah. If the Prophet (peace and blessings of Allah be upon him) regarded the one who divorced his wife three times in one go as toying with the Book of Allah, then how about the one who takes divorce as a 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 (3401) narrated that Mahmoud ibn Labeed said: The Messenger of Allah (peace and blessings of Allah be upon him) was told about a man who had divorced his wife three times in one sitting. He stood up angrily and said, �Is he playing with the Book of Allah whilst I am still among you?� Then a man stood up and said, �O Messenger of Allah, shall I not kill him?� Al-Haafiz said: the men of its isnaad are trustworthy. This was classed as saheeh by al-Albaani in Ghaayat al-Maraam, 261.

Shaykh Ibn �Uthaymeen (may Allah have mercy on him) said:

Those foolish men who utter words of divorce for every matter, minor or major, are going against the teaching of the Prophet (peace and blessings of Allah be upon him) who said: �Whoever swears (an oath), let him swear by Allah or else remain silent.� Narrated by al-Bukhaari, 2679. So if a believer wants to swear an oath, let him swear by Allah.

Moreover we should not make a lot of oaths, because Allah says (interpretation of the meaning):

��. And protect your oaths (i.e. do not swear much)�.� (Al-Maa'idah 5:89)

The commentaries on this verse may be summed up as saying that what it means is: do not swear a great deal by Allah.

But swearing to divorce one�s wife, such as saying, �My wife is divorced if she does such and such,� or �My wife is divorced if she does not do such and such,� or �if I do such and such then my wife is divorced,� or �If you do not do such and such then my wife is divorced,� and so on, is contrary to the teachings of the Prophet (peace and blessings of Allah be upon him).

Fataawa al-Mar�ah al-Muslimah, 2/753.

Secondly:

Your husband�s saying �If you go out you are divorced� or �I will send you to your family and if I take you back you are divorced� are examples of a divorce that is conditional upon something, and reference should be made to the husband�s intention. If his intention was to divorce you, then divorce takes place if you go out, but if he did not intend to divorce you and he intended only to stop you from going out, then it comes under the ruling on oaths, and if you go out or he takes you back, then he has to offer kafaarat yameen (expiation for breaking an oath), and no divorce takes place as a result.

Shaykh Ibn �Uthaymeen said:

The most correct view is that if divorce is used as a vow, in the sense that the intention behind it is to urge someone to do something, or to stop them from doing something, or to prove that someone is telling the truth or lying, or to confirm something, then it comes under the rulings on vows, because Allah says (interpretation of the meaning):

�O Prophet! Why do you forbid (for yourself) that which Allah has allowed to you, seeking to please your wives? And Allah is Oft‑Forgiving, Most Merciful. (1)Allah has already ordained for you (O men) the absolution from your oaths�..�  (At-Tahreem 66:1-2)

So Allah has made forbidding something to oneself a vow or oath.

And the Prophet (peace and blessings of Allah be upon him) said: �Actions are but by intentions, and every man will have but that which he intended.�   (Al-Bukhaari) 

This man did not intend to divorce, rather he intended to swear an oath, or something of that nature. So if he breaks his vow, then it is sufficient for him to offer kafaarat yameen. This is the more correct view.

Fataawa al-Mar�ah al-Muslimah, 2/754

The Standing Committee was asked about a man who said to his wife, �You will be divorced if you do not come with me,� and she did not go with him. Does this mean that they are divorced?

They replied:

If you did not intend that divorce should take place, rather you meant to urge her to go with you, then divorce has not taken place. But you have to offer kafaarat yameen, according to the more sound of the two scholarly opinions. If you did intend that divorce should take place and she did not do as you said, then she has been divorced once.

Fataawa al-Lajnah al-Daa�imah, 20/86.

Thirdly:

If your husband�s intention was to divorce you, as you say, then you should look at what he meant when he said �If I bring you back.� If what he meant was �if I bring you back myself�, but there was no reason why someone else should not bring you back or you should not  come back by yourself, then in that case you should go back with someone else, and no divorce takes place.

But if what he meant was that divorce would take place in all cases, whether he brought you back or someone else brought you back, then if you go back, a revocable divorce takes place � if this is the first or second talaaq � and he may take you back during the �iddah.

And Allah knows best.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #11 on: January 14, 2013, 10:08:16 AM »
DIVORCE FOR GREEN CARD

Question :                                                                                                 

I am from the Subcontinent and I have a question about marriage and divorce. I came to the United States to set up a business and to become financially well-off. However, I have run into a problem that I cannot get a green card.

 
My question is that would it be permissible for me to divorce my wife from the Subcontinent on paper only so that I can marry an American woman for some time to get the green card? My intention is to divorce the American woman after I have the green card and remarry my wife from the Subcontinent. Is this permissible in Islam?

Answer :

In the very beginning, we would like to stress the fact that Islam aims at creating a stable atmosphere wherein every true believer establishes a stable and good Muslim family. Marriage is meant to be the strong bond of Allah and the lawful means of setting the corner stone of a society.

Brother, you have to keep in mind the fact that marriage contract, in Islam, is so solemn that Shari`ah lays down rules and regulations that guarantee its stability and continuity. Thus, Islam renounces all forms of temporary marriage.

Answering the question in point, the prominent Muslim scholar Dr. Taha Jabir Al-`Alwani, president of the Graduate School of Islamic and Social Sciences and president of the Fiqh Council of North America, states the following:

Allah Almighty declares cheating as prohibited. This applies to any form of cheating, whether to individuals or government. Upon entering the States, you applied for visa. This application is a contract between you and the U.S. government. Being here in the States, you should respect the law and the constitution of the country.

To marry a woman just on papers without having a real intention to establish a family is really an evil deed. Such an act involves telling lies and cheat which are both Haram. Marriage, being a sacred institution, is to be shown due respect and never played with.

At the same time, making paper divorce without having the intention to do so, thinking that this will render the divorce invalid is a total miscalculation, for the divorce is still valid according to the majority of scholars. In the Hadith, the Prophet, peace and blessings be upon him, is reported as having said: �Three things are considered valid whether done seriously or jokingly; divorce, marriage and manumitting slaves.�

Even if you find an American lady who accepts such a fake marriage, both of you will be conspiring against the law of the country. You will have only yourself to blame.

I would like to urge all Muslims in the West to be a good examples and representatives of their religion. Muslims are commanded always to be pure and straight forward. In the life of a Muslim, there is no lies, forms of deceit or cheating.�
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #12 on: January 14, 2013, 10:10:01 AM »
DIVORCE, WHEN HUSBAND NOT INTERESTED IN WOMEN

Question :         

I would be grateful if you could give me some clarification of whether the nikah of a woman is still valid in a situation where:

1. The wife left the house of her husband after a dispute.

2. The husband said several times to the wife that there is nothing left between them and that everything is over.

3. They remained separated without any communication whatever so for one whole year.

4. The wife maintains that she will not return to her husband anymore but the husband is not doing anything although the wife asked him several times.

5. The local Muslim family council member said the nikah is over but only verbally and the wife do not have any paper whatsoever to prove that the nikah is over as the Mufti said he cannot sign any paper stating this.

Can the woman consider herself out of the bond of marriage in such a situation?

Aaliya    - South Africa

Answer :         

Dear sister aaliya, first of all, it should be clear that marriage in Islam is a solemn contract for which the Shari`ah lays down rules and arrangements to guarantee its stability.

The spouses should avoid fighting or divorce as much as possible. It is not right for husband and wife to break their relations for such a long time. If there are differences, then they should try to reconcile as soon as possible.

Separation between spouses cannot be taken as an automatic divorce in Islam. For divorce to be valid, it must pronounced either verbally or concluded in writing, in accordance with the conditions stipulated in the Shari'ah; the other alternative is to get the marriage dissolved by applying to a legitimate authority, again, in conformity with the conditions stated in the Shari'ah.

So if such a woman doesn�t wish to remain married with her husband, then she has a right to ask for divorce; if he refuses, she can simply approach the court for a divorce. While asking for a legal divorce, she should ask her lawyer to request her husband to issue an Islamic divorce in writing along with the court divorce; a judge can order him to issue the same. If, however, her husband refuses to issue an Islamic divorce, then she can approach a recognized Imam in the community to endorse the court divorce as a valid Islamic divorce.

Having said the above, the wife cannot consider herself out of the bond of marriage until she gets an Islamic divorce as mentioned above. As for the statement of her husband, we cannot consider it as divorce because there are many factors that affect the validity of divorce such as the state of the woman in terms of menstruation, purity, intimate relations, etc. Therefore, we advise them, to contact the nearby Islamic center or Imam � who is known for his profound knowledge of fiqh (Islamic Jurisprudence) - and present all information regarding the statement of the husband so as to enable the Mufti to give them a right Fatwa and to act accordingly.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #13 on: January 14, 2013, 10:11:33 AM »
DIVORCE, WHEN HUSBAND IS LONG ABSENT.

Question :   

I have heard that if a husband and wife don't see each other and don't have any contact with each other for a period of two years then their marriage is automatically annulled. Is this true?

Answer :             

First of all, you should know that marriage never ends automatically, rather there are three ways of nullifying marriage;

1)    By the husband�s actual uttering of the words of divorce,

2)    By divorcing a wife in absentia or

3)    By resorting to the judge who can declare the marriage contract annulled.

Thus, in a husband�s absence, a wife is not allowed to marry another until she has resorted to a judge to take the due procedure either to notify him to come (if he is available) or to issue a judgment declaring him to be absent.

Shedding more light on this issue, we�d like to cite for you the statement of Sheikh Sayyed Sabiq, may Allah have mercy on him, which goes as follows:

�Nullifying the marriage due to the absence of the husband is the view adopted by Malik and Ahmad so as to remove the harm inflicted on the wife. Hence, a wife is allowed to seek divorce due to her husband's absence even if he has left for her sufficient provision. However this is governed by the following conditions:

1 - If the husband has been away for no valid reason;

2 - If the absence causes the wife great harm;

3 - If the husband lives in another country;

4 - If the husband has been absent for a whole year.

In the light of what is mentioned above, if there is a valid excuse for a husband to be away, such as seeking knowledge, trading or working abroad, then the wife is not allowed to seek divorce. The same is true in case he lives in another place inside the same country.

In order to be able to seek divorce due to harm inflicted upon her for her husband�s absence, a whole year must have elapsed, during which she has experienced harm, loneliness and fear of sedition.

Lapse of a whole year is the view held by Malik while others opt for three years. Ahmad, however, holds the view that the shortest period that allow seeking divorce is six months, being the utmost limit for woman�s endurance for her husband�s absence as declared by `Umar and Hafsah, may Allah be pleased with them both.�
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1816
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #14 on: January 14, 2013, 10:12:45 AM »
Divorce: WHEN HUSBAND DENIES IT

Question :

I divorced my wife once then I took her back. The problem is that my wife claims that I have divorced her once before this, while I do not at all remember that I did. She says she remembers and that she did not tell anyone about it. I even asked my mother to make sure but my mother does not remember if I did. What shall I do?

Answer : Praise be to Allah. 

If the wife claims that the husband divorced her, and he denies it, then his word should be accepted, unless she brings proof that divorce took place. This is as far as judgments and rulings are concerned, but the matter rests with Allah Who can see what is in his heart. A judgement may be passed stating that a man can keep his wife, when in fact she is not permissible for him before Allah, if he did in fact divorce her and this was the third divorce (talaaq).

Ibn Qudaamah (may Allah have mercy on him) said in al-Mughni (7/387): If a woman claims that her husband divorced her and he denies it, then his word should be accepted, because the basic principle is that the marriage remains in effect and there is no divorce, unless she has proof of what she claimed, and her proof will not be accepted unless it is supported by two witnesses of sound character.

If there is no proof, should he be asked to swear an oath? There are two reports concerning that. Abu�l-Khattaab narrated that he should be asked to swear an oath, and this is the correct view, because the Prophet (peace and blessings of Allah be upon him) said: �But the oath is to be sworn by the one against whom the claim is made� and �The oath is to be sworn by the one who denied it.�

If he divorced her three times and she heard it, but he denied it and she has proof from two witnesses of sound character, then it is not permissible for her to let him be intimate with her, and she has to avoid him as much as she can, and refuse to let him be intimate if he wants that, and she should give up something to make him let her go if she can. Ahmad said: She cannot stay with him. He also said: She should give up something to make him let her go if she can, but if she is forced to stay with him, she should not adorn herself for him or come near him, and she should avoid him as much as she can. If two witnesses of good character testify to that then she should not stay with him. This is the view of most of the scholars. End quote.

Based on that, so long as you do not remember this divorce, then it cannot be counted against you; before the judge and before people, you have only divorced your wife once.

But if your wife is certain that this divorce took place, then she should act on that basis, and if another divorce takes place, then before the judge this is a second divorce, but for your wife this is the third, so she has to give up something so that you will let her go if she can and it is haraam for her to stay with you, as stated above in the words of Imam Ahmad (may Allah have mercy on him).

And Allah knows best.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University &
​Operation Manager, Skill Jobs
01811-458850
badshah@daffodilvarsity.edu.bd
www.daffodilvarsity.edu.bd

www.fb.com/badshahmamun.ju
www.linkedin.com/in/badshahmamun
www.twitter.com/badshahmamun