Religion & Belief (Alor Pothay) > Islam

Divorce

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Badshah Mamun:
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.

Badshah Mamun:
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. 

Badshah Mamun:
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).

Badshah Mamun:
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.

Badshah Mamun:
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.

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