Religion & Belief (Alor Pothay) > Islam

Divorce

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Badshah Mamun:
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).

Badshah Mamun:
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.

Badshah Mamun:
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.

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