Religion & Belief (Alor Pothay) > Islam

Divorce

<< < (3/6) > >>

Badshah Mamun:
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.

Badshah Mamun:
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.�

Badshah Mamun:
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.

Badshah Mamun:
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.�

Badshah Mamun:
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.

Navigation

[0] Message Index

[#] Next page

[*] Previous page