Divorce

Author Topic: Divorce  (Read 4749 times)

Offline Badshah Mamun

  • Global Moderator
  • Hero Member
  • *****
  • Posts: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #15 on: January 14, 2013, 10:14:09 AM »
DIVORCE : WHEN DAUGHTER OR SISTER RAPED

Question :

If a man commits zina with his daughter or wife�s sister. Does this nullify the marriage automatically? If not -how can the mother nullify this marriage?

Answer : Praise be to Allah. 

Firstly:

The Muslims should be careful with regard to marriage, and should be caution and be careful about letting female relatives of the wife be alone with people who are weak in faith, even if they are small.

Secondly:

It is well known that it is not permissible for a man to marry two sisters at the same time, and it is nor permissible for him to marry his wife�s mother � after doing the marriage contract with her � or her daughter � after consummating the marriage with the mother. So if the husband commits zina with the wife�s sister, mother or daughter, does his wife become haraam for him and must he divorce her? And if he was not married to her, is it permissible for him to marry her? These are issues concerning which the scholars differed, and there are three opinions:

1. The view of the majority is that his wife does not become haraam for him. This is the view of Ibn �Abbaas (may Allah be pleased with him), �Urwah, Sa�eed ibn al-Musayyab and al-Zuhri, and it is the view of the majority of scholars. Some of them narrated that Ibn �Abbaas said that his wife becomes haraam for him, but this is da�eef (weak); the correct view is that which we have mentioned above.

     Their evidence is that marriage in sharee�ah applies only to the woman with whom the marriage contract is done, not just to intercourse. Moreover, there is no dowry, �iddah or inheritance in the case of zina. Ibn �Abd al-Barr said: The scholars of different regions who issue fatwas are unanimously agreed that it is not haraam for the zaani to marry the woman with whom he committed zina, so it is more permissible for him to marry her mother or daughter.

2.  Ibraaheem al-Nakha�i, al-Sha�bi, Abu Haneefah and his companions, Ahmad and Ishaaq said, and it was also narrated from Maalik, that if he commits zina with a woman, her mother and daughter become haraam for him.

3. The view of the Hanafis � which is also the view of al-Shaafa�i � is that touching with desire for a permissible reason comes under the same ruling as intercourse, because it is intimacy. But if it is done for a haraam reason, it has no effect, like zina. They said: His wife become haraam for him if he merely touches her mother or looks at her private part.

  Ibraaheem al-Nakha�i said: They used to say: If a man looks at a woman and at that which is not permissible for him, or touches her with desire, then they both become haraam to him. 

  Al-Musannaf (3/303).

The most correct view is the view of the majority, that his doing haraam actions with his wife�s mother, daughter or sister does not make his wife haraam for him, whether he is married or after the marriage has ended. Hence it is known that if a husband molests his wife�s daughter and even it is proven that he raped her, this reprehensible act does not mean that his wife becomes haraam for him.

Al-Bukhaari (may Allah have mercy on him) narrated (5/1963) that Ibn �Abbaas (may Allah be pleased with him) said: If a man commits zina with his wife�s sister, his wife does not become haraam for him.

Al-Bayhaqi narrated � in a report classed as saheeh by al-Haafiz Ibn Hajar (7/168) � that Ibn �Abbaas said concerning a man who committed zina with his wife�s mother: He has transgressed two sacred limits, but the wife does not become haraam for him.

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

Question: If a man commits zina with a woman, do his ascendants and descendents become haraam for her, and do her ascendants and descendents become haraam for him?

Answer: They do not become haraam, because that is not included in the verse (interpretation of the meaning): �Forbidden to you (for marriage) are: � your wives� mothers, your stepdaughters under your guardianship, born of your wives to whom you have gone in � but there is no sin on you if you have not gone in them (to marry their daughters), � the wives of your sons �.�    (An-Nisa� 4:23).

The zaaniyah (woman who commits zina) is not included in this, so if a person commits zina with a woman, we do not say that this woman is one of his wives, and we do not say that this woman with whom he committed zina is one of �your wives� mothers� and thus it remains permissible (to marry her), because she is included in the verse (interpretation of the meaning): �All others are lawful��    (An-Nisa� 4:24).

Al-Sharh al-Mumti� (5/179).

Thirdly:

Wife can ask for the marriage to be annulled by the sharee�ah judge (qaadi) for two legitimate reasons, the first of which is his evildoing and immorality by committing this revolting crime � if it is proven; the second is his being away from the home. Both of these reasons make it permissible for woman to seek an annulment of the marriage from the sharee�ah judge and to demand erh rights in full. This is called al-talaaq li�l-darar (divorce on the grounds of harm).

Imam Maalik and Imam Ahmad (may Allah have mercy on them) said concerning it: The harm which justifies seeking a separation of the couple includes everything that harms the wife or involves mistreatment of her, physically, mentally or psychologically. That varies from one woman to another, and according to circumstances and customs. Examples of harm for which a wife may ask for divorce include hitting her for no legitimate reason, forcing her to do something haraam or not to do something obligatory, and evil deeds, immorality and misconduct on his part.

And Allah knows best.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #16 on: January 14, 2013, 10:15:23 AM »
DIVORCE : WHEN HUSBAND IS ADDICTED TO DRUGS

Question :

Is it permissible for a woman to ask for divorce from her husband who is addicted to taking drugs?

Answer:  Praise be to Allah. 

The basic principle is that it is not permissible for a woman to ask for divorce unless there is a reason for that. The Messenger of Allah (peace and blessings of Allah be upon him) said: �Any woman who asks her husband for a divorce with no reason, the fragrance of Paradise will be forbidden to her.� Narrated by Ahmad (21874), Abu Dawood (2226) and al-Tirmidhi (1187); classed as saheeh by al-Albaani in Irwa� al-Ghaleel (2035).

And the words �with no reason� mean without there being any hardship that compels her to ask for a divorce.

Al-Haafiz Ibn Hajar (may Allah have mercy on him) said in Fath al-Baari:

The reports which warn women against asking for divorce from their husbands are to be understood as applying to cases where there is no reason for that, because of the hadeeth of Thawbaan, then he mentioned the hadeeth quoted above. End quote.

Undoubtedly addiction to drugs is a serious shortcoming, which harms a woman in both religious and worldly terms, because there is no guarantee that her husband will not enter upon her when he is intoxicated and beat her or revile her, or ask her to do something at that time which it is not permissible for her to do.

Such a thing is regarded as an excuse which makes it permissible for a woman to ask for divorce, but what the woman should do is be patient with her husband, and try to set him straight as much as she can. If she is not able to do that, and she finds that staying with him will cause her harm, then there is nothing wrong with asking for divorce in that case.

Shaykh Muhammad ibn �Uthaymeen (may Allah have mercy on him) was asked:

What is the ruling on a woman seeking divorce from her husband who uses drugs? What is the ruling on her staying with him? Please note that there is no one who will provide for her and her children except him.

He replied:

It is permissible for a woman to ask for a divorce from her husband who is addicted to drugs, because her husband�s condition is not acceptable. In this case, if she asks for a divorce from him, then the children should stay with her, if they are younger than seven years, and the father must spend on them. If she can stay with him to set him straight by advising him, then that is better. End quote.

Fataawa al-Mar�ah al-Muslimah (2/745, 746).

Our advice to her is that she should weigh up what is in her best interests, and consult her family and relatives, who know her situation best. Then she should ask Allah �s guidance (by praying Istikhaarah), for Allah will never let her down. As the report says: No one loses by praying Istikhaarah and no one regrets consulting others. Whether she chooses to annul the marriage or to stay, let her accept what Allah has decreed for her and be patient and seek reward. Allah says (interpretation of the meaning):

�And certainly, We shall test you with something of fear, hunger, loss of wealth, lives and fruits, but give glad tidings to As-S�birin (the patient ones, etc.)�    (Al-Baqarah 2:155)

And Allah knows best.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #17 on: January 14, 2013, 10:16:47 AM »
DIVORCE FROM A HUSBAND WHO IS ADDICTED TO SMOKING

Question :

My husband is addicted to smoking and he suffers from asthma. There have been many problems between us concerning his giving up smoking. Five months ago my husband prayed two rak�ahs to Allah and swore that he would never smoke again, but he started smoking again one week after making that vow, and the problems between us started again. I asked him for a divorce but he promised me that he would not start smoking again and that he would give it up forever, but I am not confident that he will be able to keep his word. What is your opinion, what is the expiation for his broken vow and what do you advise me to do?

Answer:  Praise be to Allah. 

Smoking is one of the evil things that are forbidden, and it causes a great deal of harm. Allah says in His Holy Book, in Soorat al-Maa�idah (interpretation of the meaning):

�They ask you (O Muhammad) what is lawful for them (as food ). Say: �Lawful unto you are At‑Tayyibaat [all kinds of Halaal (lawful‑good) foods which Allah has made lawful (meat of slaughtered eatable animals, milk products, fats, vegetables and fruits)]�.��  (Al-Maa'idah 5:4)

And He says in Soorat al-A�raaf, describing the Prophet Muhammad (peace and blessings of Allah be upon him):

��.. he allows them as lawful At‑Tayyibaat (i.e. all good and lawful as regards things, deeds, beliefs, persons and foods), and prohibits them as unlawful Al‑Khabaa�ith (i.e. all evil and unlawful as regards things, deeds, beliefs, persons and foods)�.�  (Al-A�raaf 7:157)

Undoubtedly smoking is an evil and unlawful thing, so your husband must give it up and keep away from it, in obedience to Allah and His Messenger (peace and blessings of Allah be upon him) and so as to avoid that which incurs the wrath of Allah, and to protect his religious commitment and health, and to maintain good relations with you.  As expiation for his broken oath he must offer kafaarat yameen, as well as repenting to Allah for starting to smoke again. This expiation means feeding or clothing ten poor persons, or freeing a believing slave; it is sufficient to give them dinner or lunch, or to give each of them half a saa� of the staple food of the country which is equivalent to a kilo and a half.

We advise you not to ask him for a divorce if he prays and he is a man of good conduct, and if he gives up smoking. But if he persists in this sin there is nothing to prevent you from asking him for a divorce.

Shaykh Ibn Baaz, al-Fataawa al-Jaami�ah li�l-Mar�ah al-Muslimah, part 2, p
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #18 on: January 14, 2013, 10:17:40 AM »
IDDAH : STAYING DUE TO SYMPATHY

Question :

Can a man live with his divorced wife in one house in order to look after the children?

Answer : Praise be to Allah. 

If a man has given his wife the last of three divorces (talaaq), or he has divorced her once or twice and her �iddah has ended, then she becomes a �stranger� to him (non-mahram) and it is not permissible for him to be alone with her or to touch her or look at her.

Undoubtedly if they stay in the same house, it will be difficult for him to adhere to these shar�i guidelines such as not being alone with her and her having to observe hijab before him as with all other non-mahram men, unless the house is large and it is possible to section off a part of it for him, with separate facilities and a separate entrance for him. But if they are both in one house, with the same entrance and the same facilities, then it will be very difficult to avoid the haraam things mentioned above.

Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) said: The woman who has been thrice divorced is a stranger to the man like all other non-mahram women, so the man cannot be alone with her, just as he cannot be alone with any other non-mahram woman, and he cannot look at her, just as he cannot look at any other non-mahram woman. End quote from al-Fataawa al-Kubra (3/349)

The Standing Committee for Issuing Fatwas was asked: My father got sick and went into hospital. After he came out, he got sick again and had his lower leg amputated. Praise be to Allah for the decree of Allah. Then he became paralyzed and cannot sit up. He is with me in my house � he asked my mother who is married to him, he said: You are divorced. Then he said: Forgive me and I will forgive you. My mother is still in the house and she cleans him because he is unable to go to the toilet, and she feeds him, because we are all at school and at work.

They replied:

If this divorce was a third divorce, then it is not permissible for your mother to stay with him and uncover him and touch him, because she is a stranger (non-mahram) to him. But if the divorce mentioned was a first or second divorce, then your mother is regarded as recoverably divorced, and he may take her back so long as her �iddah has not ended, and she has the same rights as any other wife. She may serve your father and touch him. But if her �iddah has ended and he did not take her back by saying words to that effect or having intercourse with her during the �iddah period, then she is a stranger to him, and it is not permissible for her to stay with him and for him to be alone with her, unless a new marriage contract is done. End quote.

Fataawa al-Lajnah al-Daa�imah (20/226)

And Allah knows best.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #19 on: January 14, 2013, 10:19:08 AM »
IDDAH: DIVORCED WOMEN DAYS PASSING

Question

1-  A woman who has been divorced three times has sons and daughters. Where should she spent her 'iddah? In her family's house or in the marital home with her sons and daughters? Please note that she wants to spend her 'iddah with her sons and daughters.

2-  There was a wife who was divorced three times, and during her 'iddah she became sad, and when she met her husband (during the �iddah), she embraced him and things happened, but no kissing or intercourse took place.

      What is the way to expiate for this sin by both parties? Please note that no kissing or intercourse took place.

Answer:  Praise be to Allah.

Firstly:

If a man has divorced his wife irrevocably, she is not entitled to any maintenance or accommodation during the �iddah, unless she is pregnant. Irrevocable divorce is of two types: 

1. Minor irrevocable divorce, which is when the woman is divorced before consummation of the marriage, and divorce in return for compensation (meaning: in return for money taken by the husband).

2. Major irrevocable divorce, which means completion of three divorces (talaqaat).

Ibn Qudaamah (may Allah have mercy on him) said: If a man divorces his wife in such a way that has no right to take her back, then she is not entitled to accommodation or maintenance, unless she is pregnant.

In general, if a man divorces his wife irrevocably, either by a third divorce (talaaq), or khula�, or an annulment, and she is pregnant, then she is entitled to maintenance and accommodation, according to scholarly consensus, because Allah says (interpretation of the meaning):

�Lodge them (the divorced women) where you dwell, according to your means, and do not harm them so as to straiten them (that they be obliged to leave your house). And if they are pregnant, then spend on them till they lay down their burden �.�  (At-Talaaq 65:6)

According to some reports of Faatimah bint Qays, �You are not entitled to any maintenance unless you are pregnant.� and because the pregnancy is his child, so he is obliged to spend on it, and he cannot spend on him (the fetus) except by spending on her, so it is obligatory, just as it is obligatory to pay for the costs of breastfeeding.

But if she is not pregnant, then there is no maintenance for her.

With regard to accommodation, there are two reports, one of which is that she is entitled to that. This is the view of �Umar and his son, and Ibn Mas�ood, 'Aa'ishah, the seven fuqaha� of Madeenah, Maalik and al-Shaafa�i, because of the verse quoted above.

The second report says that she is not entitled to accommodation or maintenance, and this is the prevalent view of the madhhab, and it is the view of �Ali, Ibn �Abbaas, Jaabir, �Ata�, Tawoos, al-Hasan, Ikrimah, Maymoon ibn Mahraan, Ishaaq, Abu Thawr and Dawood.

Most of the Iraqi fuqaha� said that she has the right to accommodation and maintenance. This is the view of Ibn Shubrumah, Ibn Abi Layla, al-Thawri, al-Hasan ibn Saalih, Abu Haneefah and his companions, al-Batti and al-�Anbari. End quote from al-Mughni (8/185).

The evidence that the irrevocably divorced woman is not entitled to maintenance or accommodation is the report narrated by Muslim (1480) from al-Sha�bi who said: I entered upon Faatimah bint Qays and asked her about the judgment that the Messenger of Allah (blessings and peace of Allah be upon him) passed concerning her, and she said that her husband divorced her irrevocably, and she said: I referred my dispute with him concerning accommodation and maintenance to the Messenger of Allah (blessings and peace of Allah be upon him), and he did not give me any accommodation or maintenance, and he told me to observe my 'iddah in the house of Ibn Umm Maktoom.

According to another report also narrated by Muslim, she said: I mentioned that to the Messenger of Allah (blessings and peace of Allah be upon him) and he said: �There is no maintenance or accommodation for you.�

According to a report narrated by Abu Dawood, �There is no maintenance for you unless you are pregnant.�

Ibn �Abd al-Barr (may Allah have mercy on him) said: But with regard to evidence and what is binding thereof, the view of Ahmad bin Hanbal and those who followed him is more sound and more correct, because if it were obligatory for her to stay in her husband�s house and was something ordained by Allah, then Messenger of Allah (blessings and peace of Allah be upon him) would have obliged her to do that and would not have made her leave her husband's house to go to the house of Umm Shareek, or to the house of Ibn Umm Maktoom. As it is proven that the Prophet (blessings and peace of Allah be upon him) said to Faatimah bint Qays, who had been irrevocably divorced: �There is no accommodation or maintenance for you; rather accommodation and maintenance are for the one who may be taken back,� then what can contradict that? Can it be contradicted except by a similar report from the Prophet (blessings and peace of Allah be upon him), who was the one who explained what Allah meant in His Book? And nothing of that nature has been reported from him (blessings and peace of Allah be upon him). It is well known that he knew better than anyone else about the interpretation of the words of Allah (interpretation of the meaning): �Lodge them (the divorced women) where you dwell ��. End quote from al-Tamheed (19/151).

If the husband allows her to stay in his house during the �iddah, then there is nothing wrong with her staying there, on condition that she observe hijab before him, because by virtue of the irrevocable divorce he has become a stranger to her. But it is better for her to observe the �iddah in her family's house, so as to close the door to fitnah, as mentioned in the question, because the shaytaan may make her appear attractive to him, and make him appear attractive to her, until they do a haraam action, when before that the shaytaan strove hard to make them unattractive to one another until the  threefold divorce took place: ��Then take admonition, O you with eyes (to see)� (Al-Hashr 59:2).

Secondly:

For an irrevocably divorced woman to embrace her former husband is a haraam action, as was what happened after that of touching him and so on. What they must do is repent to Allah and regret this evil action. It is no secret that with the third divorce, they became strangers (non-mahrams) to one another, so it is not permissible to look or touch, let alone the embracing and what you mentioned. It is not permissible for him to go back to her until she has married another husband, in a genuine marriage, and not a marriage of convenience aimed at making her permissible for the first husband, then he (the second husband) dies or leaves her.

And Allah knows best.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #20 on: January 14, 2013, 10:20:47 AM »
IDDAH AFTER DIVORCE

Question :

Is the term `Iddah applicable to the widow and the divorcee? What is the need of `Iddah and for how long should this "waiting period" be? If a wife asks her husband for a khula and he accepts, how long is the waiting period? Can she remarry with same person? Where to spend Iddah period?

Answer:

Name of Counsellor : A Group of Islamic Researchers
 

Iddah or a woman's post marital waiting period, is the period in which a woman waits before she may remarry to verify that she is not pregnant, or out of mourning for her deceased husband. (See: Ahmad ibn Naqeeb Al-Misri, The Reliance of the Traveler)

Wisdom of Its Legitimacy:


1- To discern whether the woman is pregnant or not.

2- Shari`ah has ordained the period of `Iddah to avoid any confusion of lineage which may result from the woman's pressing need of marriage.

3- The period a woman spends in `Iddah whether short or otherwise sheds light on the seriousness of marriage and how far it is a sacred bond.

4- It allows the man and the woman to think twice before breaking up the family tie, especially in cases where divorce is revocable. (Source: The Kuwaiti Encyclopedia of Fiqh)

Rulings Pertaining To `Iddah:


As for the widowed woman whom husband dies while leaving her pregnant, her waiting period ends with the delivery of her baby. Allah Almighty says, "...And for those with child, their period shall be till they bring forth their burden�" (At-Talaq 65:4)

However, if the widowed woman is not pregnant, her waiting period ends after completing four months and ten days. Allah Almighty says, " Such of you as die and leave behind them wives, they (the wives) shall wait, keeping themselves apart, four months and ten days�" (Al-Baqarah 2: 234)

As for a divorced woman, her waiting period ends when three intervals between menstruations have finished, if she is not pregnant. Allah Almighty says: "Women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah hath created in their wombs if they are believers in Allah and the Last Day. And their husbands would do better to take them back in that case if they desire reconciliation. And they (women) have rights similar to those (of men) over them in kindness, and men are a degree above them. Allah is Mighty, Wise." (Al-Baqarah 2:228)

Excerpted, with slight modifications, from: www.islamonline.net

Khula `Iddah:

If the woman who has been divorced by khula, is pregnant then her �iddah lasts until she gives birth, according to scholarly consensus. Al-Mughni, 11/227.

 But if she is not pregnant, the scholars differed concerning her �iddah. Most of the scholars said that she should wait for three menstrual cycles, because of the general meaning of the aayah (interpretation of the meaning):

 �And divorced women shall wait (as regards their marriage) for three menstrual periods �.�  (Al-Baqarah 2:228)

But the correct view is that it is sufficient for a woman divorced by khula� to wait for one menstrual cycle, because the Prophet SAWS (peace and blessings of Allah be upon him) told the wife of Thaabit ibn Qays, when she divorced him by khula�, to wait out the �iddah for one menstrual cycle. (Narrated by al-Tirmidhi, 1185; classed as saheeh by al-Albaani in Saheeh al-Tirmidhi, 946). This hadeeth refers specifically to khula� divorce whereas the aayah quoted above speaks of divorce in general. But if she waits out an �iddah of three menstrual cycles that will be more complete and will be on the safe side, and will avoid an area of scholarly dispute, as some scholars say that she should wait for three menstrual cycles, based on the aayah quoted.  (Fataawa al-Talaaq by Shaykh Ibn Baaz, 1/286).

Excerpted, with slight modifications, from: http://islamqa.com/

Remarrying With Same Person

Marriage to the same person is only possible when the woman gets married with other person and then either that person dies or divorces her without any force and agreement. (Sexual relations must have been conducted with that woman before any divorce)

�So if a husband divorces his wife (irrevocably), He cannot, after that, re-marry her until after she has married another husband and He has divorced her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah, which He makes plain to those who understand� (Al-Baqarah 2:230)

Spending Iddah Period

If the divorce is revocable, i.e. if it is the first or the second divorce, then the wife must spend the whole `Iddah in her husband's house and she is not allowed to leave it save for a dire necessity.

However, if the divorce is irrevocable, i.e. if it is the final divorce, then she may spend the waiting period in her husband's house or in any other house, because it is a controversial issue among scholars. (Based on a fatwa given by Sheikh `Atiyyah Saqr, former head of Al-Azhar Fatwa Committee.)
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #21 on: January 14, 2013, 10:22:37 AM »
IDDAH AFTER DIVORCE

Question :

Is the term `Iddah applicable to the widow and the divorcee? What is the need of `Iddah and for how long should this "waiting period" be? If a wife asks her husband for a khula and he accepts, how long is the waiting period? Can she remarry with same person? Where to spend Iddah period?

Answer:

Name of Counsellor : A Group of Islamic Researchers
 

Iddah or a woman's post marital waiting period, is the period in which a woman waits before she may remarry to verify that she is not pregnant, or out of mourning for her deceased husband. (See: Ahmad ibn Naqeeb Al-Misri, The Reliance of the Traveler)

Wisdom of Its Legitimacy:

1- To discern whether the woman is pregnant or not.

2- Shari`ah has ordained the period of `Iddah to avoid any confusion of lineage which may result from the woman's pressing need of marriage.

3- The period a woman spends in `Iddah whether short or otherwise sheds light on the seriousness of marriage and how far it is a sacred bond.

4- It allows the man and the woman to think twice before breaking up the family tie, especially in cases where divorce is revocable. (Source: The Kuwaiti Encyclopedia of Fiqh)

Rulings Pertaining To `Iddah:

As for the widowed woman whom husband dies while leaving her pregnant, her waiting period ends with the delivery of her baby. Allah Almighty says, "...And for those with child, their period shall be till they bring forth their burden�" (At-Talaq 65:4)

However, if the widowed woman is not pregnant, her waiting period ends after completing four months and ten days. Allah Almighty says, " Such of you as die and leave behind them wives, they (the wives) shall wait, keeping themselves apart, four months and ten days�" (Al-Baqarah 2: 234)

As for a divorced woman, her waiting period ends when three intervals between menstruations have finished, if she is not pregnant. Allah Almighty says: "Women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah hath created in their wombs if they are believers in Allah and the Last Day. And their husbands would do better to take them back in that case if they desire reconciliation. And they (women) have rights similar to those (of men) over them in kindness, and men are a degree above them. Allah is Mighty, Wise." (Al-Baqarah 2:228)

Excerpted, with slight modifications, from: www.islamonline.net

Khula `Iddah:

If the woman who has been divorced by khula, is pregnant then her �iddah lasts until she gives birth, according to scholarly consensus. Al-Mughni, 11/227.

 But if she is not pregnant, the scholars differed concerning her �iddah. Most of the scholars said that she should wait for three menstrual cycles, because of the general meaning of the aayah (interpretation of the meaning):

 �And divorced women shall wait (as regards their marriage) for three menstrual periods �.�  (Al-Baqarah 2:228)

But the correct view is that it is sufficient for a woman divorced by khula� to wait for one menstrual cycle, because the Prophet SAWS (peace and blessings of Allah be upon him) told the wife of Thaabit ibn Qays, when she divorced him by khula�, to wait out the �iddah for one menstrual cycle. (Narrated by al-Tirmidhi, 1185; classed as saheeh by al-Albaani in Saheeh al-Tirmidhi, 946). This hadeeth refers specifically to khula� divorce whereas the aayah quoted above speaks of divorce in general. But if she waits out an �iddah of three menstrual cycles that will be more complete and will be on the safe side, and will avoid an area of scholarly dispute, as some scholars say that she should wait for three menstrual cycles, based on the aayah quoted.  (Fataawa al-Talaaq by Shaykh Ibn Baaz, 1/286).


Remarrying With Same Person

Marriage to the same person is only possible when the woman gets married with other person and then either that person dies or divorces her without any force and agreement. (Sexual relations must have been conducted with that woman before any divorce)

�So if a husband divorces his wife (irrevocably), He cannot, after that, re-marry her until after she has married another husband and He has divorced her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah, which He makes plain to those who understand� (Al-Baqarah 2:230)

Spending Iddah Period

If the divorce is revocable, i.e. if it is the first or the second divorce, then the wife must spend the whole `Iddah in her husband's house and she is not allowed to leave it save for a dire necessity.

However, if the divorce is irrevocable, i.e. if it is the final divorce, then she may spend the waiting period in her husband's house or in any other house, because it is a controversial issue among scholars. (Based on a fatwa given by Sheikh `Atiyyah Saqr, former head of Al-Azhar Fatwa Committee.)
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #22 on: January 14, 2013, 10:23:42 AM »
IDDAH FOLLOWING THE DEATH OF HUSBAND

Question

Is it permissible for the woman who is in �iddah to go out to the marketplace in case of need?

Answer:  Praise be to Allah.

It is permissible for the woman who is in �iddah to go out to the marketplace in case of need, and to go to the hospital for treatment. Similarly, it is permissible to her to go out to teach and seek knowledge, because that is one of the most important needs. But she should avoid adornment, perfume, jewellery of gold, silver and diamonds, and the like. The woman in �iddah must pay attention to five things:

1.    She should stay in the house in which her husband died and in which she lives, if possible.

2.    She should avoid beautiful clothes.

3.    She should avoid perfume, unless she has her menses, in which case she may use bukhoor (incense) when purifying herself following her menses.

4.    She should not wear jewellery of gold, silver, diamonds and the like.

5.    She should not use kohl or henna, because there is proof from the Prophet (blessings and peace of Allah be upon him) which points to what we have mentioned.

And Allah is the source of strength. End quote.

Majmoo� Fataawa Ibn Baaz, 22/200
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #23 on: January 14, 2013, 10:24:50 AM »
 
COUNTING IDDAH PERIOD

Question

My mother is in �iddah and it so happens that the three months following my father's death contained only 29 days and the fourth month was complete, i.e., thirty days. Should she add 10 days only, so that it will be four months and 10 days, or should she add 13 days, including three days to make up the shorter months?.

Answer:  Praise be to Allah.

The �iddah for a woman whose husband has died is four months and 10 days, because Allah says (interpretation of the meaning):

�And those of you who die and leave wives behind them, they (the wives) shall wait (as regards their marriage) for four months and ten days, then when they have fulfilled their term�  (Al-Baqarah 2:234)

This period begins when the husband dies and ends when that period ends.

Ibn Qudaamah (may Allah have mercy on him) said in al-Mughni (8/93):

The scholars are unanimously agreed that the �iddah of a free Muslim women who is not pregnant lasts for four months and 10 days from the death of her husband, regardless of whether the marriage was consummated with her or not, whether she was an adult or a minor, because Allah says (interpretation of the meaning):

�And those of you who die and leave wives behind them, they (the wives) shall wait (as regards their marriage) for four months and ten days, then when they have fulfilled their term�  (Al-Baqarah 2:234)

And the Prophet (blessings and peace of Allah be upon him) said: �It is not permissible for a woman who believes in Allah and the Last Day to mourn for anyone who dies for more than three days, except for a husband, four months and 10 days.� Agreed upon.

She should count the Arabic, lunar months and not the days, according to the opinion of the majority of fuqaha�, whether the month is complete or not. When she has completed four months, she should add 10 days of the fifth month, and thus she will have completed her �iddah.

This applies if the death occurs on the first of the month. If he dies during the month, then she should count the rest of the first month and three months with their new moons -- whether the months are complete or not -- and 10 days. With regard to what she missed of the first month, she may count it in two ways according to the scholars:

1.    She may regard the month as 30 days, whether it turned out to be complete (30 days) or incomplete (29 days);

2.    She may count as �iddah the same amount of time in the fifth month as she missed in the first month. If the first month turned out to be complete, then she should count the number of days to complete 30 days, and if it turns out to be incomplete, then she should count the number of days to complete 29 days.

See: al-Mughni, 8/85; Kashshaaf al-Qinaa�, 5/418; al-Mawsoo�ah al-Fiqhiyyah, 29/315

The second view was favoured by Shaykh al-Islam Ibn Taymiyah, and was regarded as more correct by our contemporary scholar Shaykh Ibn �Uthaymeen (may Allah have mercy on him).

An example of that in the case of death: if a man dies on the 12th of Muharram, his wife should observe �iddah until the 12th of Jumaada al-Aakhirah. This is four months, regardless of whether they are complete or not. Then she should add 10 days, so her �iddah ends on the 22nd of Jumaada al-Aakhirah at the time when her husband died.

Based on that, all your mother has to do is add 10 days only, and she does not have to complete the incomplete months to make them 30 days.

And Allah knows best.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #24 on: January 14, 2013, 10:26:03 AM »
THINKING OF DIVORCE : SHATAN  WASWASAH

Question:

Because I am suffering from waswasah (whispers from the Shaytaan), sometimes I do not answer my wife when she tries to speak to me, because of this waswasah or because I believe she is the cause of this waswasah. Does the fact that I do not answer her count as a talaaq (divorce)? If I speak to her angrily does that count as a talaaq?

Answer: Praise be to Allah. 

Not answering your wife does not count as a talaaq, neither does speaking to her angrily.

No matter how much you may think of divorce, or intend and resolve to do it, talaaq (divorce) does not take place until and unless you utter the words of talaaq. That is because the Prophet (peace and blessings of Allah be upon him) said: �Allah has forgiven for my ummah that which is whispered to them and which crosses their minds, so long as they do not act upon it or speak of it.� (Narrated by al-Bukhaari, 6664; Muslim, 127)

Based on this, according to the scholars if a man thinks of talaaq, that does not mean anything unless he speaks of it.

Indeed, according to some scholars, if a person is suffering from waswaas his talaaq does not count even if he utters it, so long as he did not have the intention of talaaq. Shaykh Ibn �Uthaymeen (may Allah have mercy on him) said: 

�The talaaq of a person who is suffering from waswaas does not count even if he utters the words, if that was not done deliberately, because this utterance happened because of waswaas, not because of his will or intention. Rather it was forced upon him because of the strength of the waswaas and his lack of self-control. The Prophet (peace and blessings of Allah be upon him) said, �There is no divorce under compulsion.� So this divorce does not count, because he did not really want to do that. This was something that was forced upon him with no intention or choice on his part to do that, so this does not mean that talaaq has occurred.�

(Fataawa Islamiyyah, compiled by Shaykh Muhammad ibn �Abd al-�Azeez al-Musnad, 3/277)

We advise you not to pay any attention to these whispers, and to ignore them, and to do the opposite of what they are calling you to do. For these whispers (waswaas) come from the Shaytaan to cause grief to those who believe. The best way to deal with them is to remember Allah a great deal (dhikr), to seek refuge with Allah from the accursed Shaytaan, to keep away from sins and wrong actions which are the means by which Iblees gains control over the sons of Adam. Allah says (interpretation of the meaning):

�Verily, he [the Shaytaan] has no power over those who believe and put their trust only in their Lord (Allah)� [An-Nahl 16:99]

It is worth quoting here what Ibn Hajar al-Haythami (may Allah have mercy on him) said about dealing with waswasah in his book al-Fataawa al-Fiqhiyyah al-Kubra, 1/149. This is what he said:

�He was asked about the problem of waswasah (insinuating whispers from the Shaytaan), and whether there is a remedy for it.

He replied by saying that there is an effective remedy for it, which is to ignore them completely, no matter how frequently they may come to mind. When these whispers are ignored, they do not become established, rather they go away after a short time, as many people have experienced. But for those who pay attention to them and act upon them, they increase until they make him like one who is insane or even worse, as we see among many of those who have suffered from them and paid attention to them and to the devil whose task it is to insinuate these whispers, whom the Prophet (peace and blessings of Allah be upon him) warned us against when he said, �Beware the whispers with regard to water (i.e., wudoo�) which is caused by a devil called al-Walhaan� � because that causes a person to go to extremes with regard to doing wudoo�, as was explained in Sharh Mishkaat al-Anwaar.

In al-Saheehayn there is a report which supports what has been mentioned above, which is that whoever suffers from waswaas should seek refuge with Allah and turn away from the waswaas. So think about this effective remedy which was taught by the one who does not speak of his own whims and desires to his ummah, and understand that whoever is deprived of this is deprived of all goodness, because waswasah comes from the Shaytaan, according to scholarly consensus, and the accursed one (the Shaytaan) has no other desire than to make the believers go astray, make them confused, make their life a misery, cause them distress to the extent that they leave Islam without realizing it.

�....Surely, Shaytaan (Satan) is an enemy to you, so take (treat) him as an enemy....�  [Faatir 35:6 � interpretation of the meaning]

According to another hadeeth, the one who suffers from waswasah should say, �Aamantu Billaahi wa bi rusulihi (I believe in Allah and in His Messengers).� Undoubtedly, whoever thinks of the paths of the Messengers of Allah, especially our Prophet (peace and blessings of Allah be upon him) will find that his path and his law is easy and clear, with no hardship in it. 

��and has not laid upon you in religion any hardship....� [Al-Hajj 22:78]

Whoever ponders this and believes in it sincerely, the problem of waswasah and listening to the Shaytaan will go away. In the book of Ibn al-Sunni it is narrated via �Aa�ishah (may Allah be pleased with her), �Whoever suffers from this waswaas, let him say �Aamantu Billaahi wa bi rusulihi (I believe in Allah and in His Messengers)�, three times, and it will go away from him.�

Al-�Izz ibn �Abd al-Salaam and others mentioned something similar to the above. They said: the treatment for waswasah is to believe that this is an idea from the Shaytaan and that Iblees is the one who is bringing these thoughts to his mind, and he should strive to fight him. Then he will have the reward of the mujaahid, because he is fighting the enemy of Allah. If he does that, then the Shaytaan will flee from him. This is what mankind has been tested with from the beginning of time, and Allah has given him (Iblees) some power over man as a test for him, so that Allah may show the truth to be true and falsehood to be false, even though the disbelievers may hate that.

In Muslim, hadeeth no. 2203, it is narrated that �Uthmaan ibn Abi�l-�Aas said: �The Shaytaan was interfering with my prayer and recitation of Qur�aan. He [the Prophet (peace and blessings of Allah be upon him)] said: �That is a devil called Khanzab, so seek refuge with Allah from him and spit dryly to your left three times.� I did that, and Allah took him away from me.�

This hadeeth proves the point we are making, which is that waswasah can only overpower the one who is ignorant and confused and does not know what�s what. But the one who has knowledge and understanding will the Sunnah and keep away from bid�ah. The worst of the innovators are those who follow waswaas, hence Maalik (may Allah have mercy on him) narrated that his shaykh al-Rabee� � who was the imam of the people of his time � was the fastest of the people in relieving himself and doing wudoo�.

Ibn Hurmuz used to be slow in relieving himself and in doing wudoo�, and he used to say �I have a problem, do not follow my example.� 

Al-Nawawi (may Allah have mercy on him) said that one of the scholars thought it was mustahabb for the one who was affected by waswasah with regard to his wudoo or prayer to say Laa ilaaha ill-Allah, for when the Shaytaan hears dhikr (remembrance of Allah) he slinks away, and Laa ilaaha ill-Allah is the best of dhikr, and the most effective remedy for warding off waswasah is to remember Allah a great deal.

We ask Allah to take away the waswasah that you are suffering and to increase us and you in faith, righteousness and piety.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #25 on: January 14, 2013, 10:27:53 AM »
WHY DIVORCE IS IN MAN�S HANDS

Question :

What is the reason why divorce is in the husband�s hands? What the ruling on one who divorces his wife for no reason?

Answer: Praise be to Allah.

The reason why divorce is in the man�s hand is justice, because the husband is the one in whose hand is the marriage contract, so he is the one is whose hand is dissolution of this contract.

And because the husband is in charge of the woman, as Allah  says (interpretation of the meaning):

�Men are the protectors and maintainers of women, because Allah  has made one of them to excel the other �.�  (An-Nisa� 4:34).

As he is in charge, then the matter is in his hands. This is what is implied by common sense. 

And because the man is more perfect in reason than the woman, and more far-sighted, so you do not see him choosing to divorce unless he sees that there is no alternative. But if it were in the wife�s hand, the wife is lacking in reason and is less far-sighted, and she is quick to become emotional. She may be impressed by some man and hasten to divorce her husband, because she has seen someone who is more attractive to her, so she prefers him to her husband. There are other reasons, but these three reasons that I have mentioned are among the most important reasons why divorce is in the husband�s hands.

With regard to the ruling on one who divorces his wife for no reason, the scholars say that the five rulings apply to divorce, i.e., it may be obligatory, or it may be haraam, or it may be mustahabb, or it may be makrooh, or it may be permissible.

The basic principle is that divorce is not desirable, because it is dissolving the bonds of marriage which Islam encourages and promotes, and because a great deal of harm may result from it, such as if the woman has children from the husband � this divorce will result in splitting up of the family and the problems that result from that. If there is a need for it because it is not possible for the spouses to live together happily, then in that case it is permissible, and it is a blessing from Allah, I mean its being permissible in that case, because if the couple were to remain in a life of misery and suffering, this world would be unbearable for them. But by the blessing of Allah, if there is a need for it, then it is permissible. End quote.

Shaykh Muhammad ibn �Uthaymeen (may Allah  have mercy on him).
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #26 on: January 14, 2013, 10:29:25 AM »
DIVORCE : WITH CONDITION

Question

My husband asked me not to contact a friend of mine, saying 'if you contact her you are divorced'. I contacted her and was presumably divorced. My husband took me back. However he now wants to take his words back and is allowing me to talk with that friend. However he does not know how to take back his words. Does he do this verbally? ie. if you contact her you are not divorced?.

Answer:  Praise be to Allah.

If the husband says to his wife: If you contact so-and-so, then you are divorced, and he intends divorce, then this is a divorce that depends on the condition. If the wife gets in touch with that person then one revocable divorce has taken place, and the husband may take his wife back so long as she is still in �iddah.

Does he have the right to cancel that condition and allow his wife to get in touch with that person in the future?

The answer is yes, because the divorce became effective with the first contact, and the fuqaha� differentiate between the husband saying �if you get in touch you are divorced�, and his saying �every time you get in touch you are divorced.� The first form cannot be taken as having repeated effect, unlike the second.

Shaykh Ibn �Uthaymeen (may Allah have mercy on him) said in al-Sharh al-Mumti� (13/133): The phrase �every time� is the only one that implies repetition. So if he says to his wife, �every time you get up you are divorced,� then she gets up, she is divorced, and if she gets up a second time, she is divorced (again), and if she gets up a third time, she is divorced (again). This is unlike the word �if� for example, which does not imply repetition. So if he says to her, �if you get up, you are divorced,� then she gets up, she is divorced. But if she gets up a second time, she is not divorced (a second time).

Based on that, if your husband said �if you contact so-and-so, then you are divorced,� and you got in touch with her and divorce took place, then the matter is finished with, and divorce does not result from your getting in touch with her a second time. This does not need your husband to say that he has retracted these words, because his words �if you contact� do not imply repetition, as explained above.

And Allah knows best.
Md. Abdullah-Al-Mamun (Badshah)
Assistant Director, Daffodil International University
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: 1822
    • View Profile
    • Daffodil International University
Re: Divorce
« Reply #27 on: January 14, 2013, 10:30:26 AM »
DIVORCE: IF HUSBAND LIES OR NOT INTENDED

Question

If the husband says �I divorced my wife� but he is lying or does not intend divorce

Answer:  Praise be to Allah.

If the husband says of his wife: �I have divorced her�, then divorce takes place, whether he intended divorce or not, and whether he was telling the truth or lying, because this phrase is clear and divorce takes place thereby even if he did not intend it.

Ibn Qudaamah (may Allah have mercy on him) said in al-Mughni (7/306): If it is said to him, Do you have a wife? and he says no, intending thereby to lie, then he does not have to divorce his wife. But if he says, �I have divorced her�, intending thereby to lie, then the divorce is binding. Rather [the first scenario] is not binding if he intended to lie, because he is saying �I do not have a wife� which is a metaphor that cannot refer to divorce at all. And if he is telling lies with no intention of divorce, then it does not count as such.   

But if he said, �I have divorced her�, intending to lie, then she is divorced, because the word divorce (talaaq) is clear and divorce takes place thereby even if it was not intended. End quote.

The divorce that takes place in this case is a revocable divorce; a husband may take his wife back during the �iddah if it is the first or second divorce.

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

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