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DIVORCE.

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1)           Divorce, Islamic PERSPECTIVE

2)           Divorce: CHRISTIANITY PERSPECTIVE

3)           Divorce, CORRECT ISLAMIC PROCEDURE

4)           Divorce, DIFFERENT OPINION

5)           Divorce: When a three-time divorce is binding

6)           Divorce: The woman's right to demand divorce

7)           Divorce in anger

8)           DIVORCE IN PREGNANCY

9)           DIVORCING A MENSTRUATING WOMAN

10)        SWEARING FOR DIVORCE

11)        CONDITIONAL DIVORCE

12)        Divorce FOR GREEN CARD

13)        Divorce WHEN HUSBAND NOT INTERESTED IN WOMEN

14)        MARRIAGE/DIVORCE ON PAPER FOR HAVING RESIDENCY IN KAAFIR COUNTRY

15)       DIVORCE, WHEN HUSBAND IS LONG ABSENT

16)       DIVORCE: WHEN HUSBAND DENIES IT

17)       DIVORCE: WHEN DAUGHTER OR SISTER RAPED

18)       DIVORCE: WHEN HUSBAND IS ADDICTED TO DRUGS

19)       DIVORCE FROM A HUSBAND WHO IS ADDICTED TO SMOKING

20)       IDDAH: STAYING DUE TO SYMPATHY

21)       IDDAH: DIVORCED WOMEN DAYS PASSING

22)       IDDAH AFTER DIVORCE

23)       IDDAH FOLLOWING THE DEATH OF HUSBAND

24)       COUNTING IDDAH PERIOD

25)       THINKING OF DIVORCE : SHATAN  WASWASAH

26)       WHY DIVORCE IS IN MAN'S HANDS

27)       DIVORCE : WITH CONDITION

28)       DIVORCE : IF HUSBAND LIES OR NOT INTENDED

 

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1. Divorce, ISLAMIC PERSPECTIVE

Question :                                                                                                               

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

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

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

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

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

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

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

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

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

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

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

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

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

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2. Divorce: CHRISTIANITY PERSPECTIVE

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

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

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

Differences Among Christian Denominations Regarding Divorce

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

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

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

Consequences of the Christian Stand on Divorce

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

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

The Christian Stand on Divorce: A Temporary Injunction, Not a Permanent Law

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

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

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

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

To suppose that Jesus (peace be on him) intended to make this an eternal law for all mankind does not appeal to reason. We see that his disciples, the most sincere of his followers, were aghast at such a harsh decree, saying, "If the case of a man with his wife is like that, it is neither profitable nor advisable to marry," that is, the moment a man marries a woman he puts a yoke around his neck which it is impossible to remove, regardless of how miserable their life together may become because of mutual hatred and incompatibility of temperaments. As a wise man has aptly said, "The greatest torment in life is a companion who neither agrees with you nor leaves you alone."

Excerpted, with slight modifications, from:

http://www.witness-pioneer.org/vil/Books/Q_LP/

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3. DIVORCE – CORRECT ISLAMIC PROCEDURE

Question :

Please explain what the proper Islamic procedure of divorce is. If a person divorces his wife in anger three times, is it counted one divorce or three divorces? In case he feels sorry about his words and wants to keep the marriage relationship, what is the proper procedure to annul the divorce?

Answer :                                                                                                                  

In his answer to the question in point, Dr. Muzammil H. Siddiqi, former President of the Islamic Society of North America, states:

"Divorce is the most hateful thing to Allah, but it is allowed (halal) only in the case of absolute necessity. If a couple tried their best to reconcile their differences, but they still could not agree and they found impossible to live with each other, then only in that case they should separate in a proper and decent manner. Divorce can be initiated by the husband or by the wife. The husband has the right to pronounce the words of divorce (talaq) to his wife. He can also give her a statement of divorce in writing. The wife can seek divorce from her husband through khul`, but if he refuses to grant her request then she can seek the dissolution of marriage through the court of law. The Shari`ah has not given the right to a woman to divorce her husband, because only the husband has all the financial obligations of the family. After divorce he will be responsible to provide her maintenance during her `iddah and if there are any children in the family then he will be responsible for their expenses. Thus to grant her that right equally with the husband while she has no financial obligation is unfair and unjust. The wife can, however, divorce her husband if her husband gave her that right either at the time of marriage or afterwards.

A husband who wants to divorce his wife should use the words of divorce with full awareness after much thinking and consideration. Using the words of divorce in haste or anger is not right. The proper procedure is to give divorce when a woman is not pregnant and is not going through her monthly menstrual cycle. Divorce can take place by saying one time "I have divorced you" (talluqtuki) or "You are divorced" (anti taliq). After this the women should spend the time of her `iddah. During the period of `iddah the husband can cancel his divorce and can resume the matrimonial relationship, but if it does not happen then the divorce takes effect and at the end of the `iddah period their marriage ends. There is no need to repeat the words of divorce more than once. Even one divorce is sufficient to terminate the relationship.

The provision of the second and third divorce is given for a husband who divorces his wife one time and then cancels his divorce, but then after sometime changes his mind and divorces her again second time. Then he changes his mind and resumes the relationship and then again after that he divorces her. The Shari`ah says that now this relationship should end. Marriage is a serious matter. One cannot keep divorcing one's wife and returning her back. After the third divorce he cannot take her back. The third divorce is called the "irrevocable divorce" (talaq mughallaz). The wife now becomes forbidden to her husband completely. She cannot go back to this husband who has divorced her three times, unless she marries another person who out of his own free will divorces her and then after the `iddah she and her previous husband want to remarry. This is called halalah in the language of the Shari`ah. This rule is given by the Shari'ah to reduce the occurrence of three divorces and to protect the honor of the woman.

Some people misuse this procedure out of ignorance or willingly. There are some people who think that the divorce (talaq) would not happen unless one makes the statement three times. There are others who repeat the words of divorce for emphasis and have no idea that this could be very serious. The jurists (fuqaha') have discussed this issue for the last fourteen hundred years. There were some jurists who took the strict position that three divorces whether uttered at once or separately would be considered as three divorces. According to them, whether a person misused this right knowingly or unknowingly the affect would be the same. If some one uttered the words of divorce three times, then this would be talaq mughallaz and his wife would become totally forbidden for him and they could not reconcile without a halalah. There are, however, some other jurists who emphasize the role of will in marriage and divorce. They say that if the husband used three divorces intentionally as three, then they will be counted as three, but if he repeated the words in anger or to emphasize his point then this is one divorce and he will have the right to resume the relationship with his wife. I feel that the second position is closer to the spirit of the Shari`ah. I am pleased to see that there are now some Hanafi jurists also who are inclined to this position. There were fatwas issued to this effect by the `Ulama' of Deoband and Nadwa in India as well the `Ulama in Saudi Arabia.

The issue of a divorce given in anger is also important. The basic rule is that divorce must be uttered with full consciousness and without any coercion. If a person pronounced the words of divorce to his wife, in a fit of anger, while he lost all control over himself or due to the influence of intoxicants which he sinfully consumed, or he was forced by someone else to do so, then in all these cases his words of divorce are null and void and have no effect. In conclusion, let me say that Muslims must protect their family life and must avoid divorce as much as possible. If it becomes necessary to have divorce then use the Islamic methods and procedures. Obviously we cannot give all the details here. Those who need more information they should consult special books on this subject or speak to those who are knowledgeable."

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

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4. Divorce, DIFFERENT OPINION

Question :

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

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

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

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

Answer :

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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5. Divorce: When a three-time divorce is binding

Question :

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

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

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

Answer :

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When he says the same thing to her a second time, whether immediately or a short while afterwards, his statement is no more than an idle talk because she is no longer his wife. How is it possible to divorce a woman who is not one's wife? That is certainly impossible and, therefore, the second and any subsequent utterances of the word of divorce have no significance whatsoever.


Our Dialogue ( Source : Arab News - Jeddah )

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6. 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.

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7. 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.  

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

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8. 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).

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

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9. 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.

Shaikh ibn Uthaimin

Excerpted, with slight modifications, from: http://www.islamtomorrow.com/

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10. 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.

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

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10. 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.

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

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12. 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.”

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

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13. marriage/divorce on paper for having residency in kaafir country

Question:

What is your opinion about a person who falsely divorces his wife, i.e. formally having the divorce contract, without saying the word of “Talaaq” actually to her? This enables him to marry a European woman in order to get a residency. Then he will divorce the European woman and return his first wife to him afterwards. What is the ruling on this matter?

Answer : Praise be to Allah.

Firstly:

Marriage is a serious covenant and it is one of the most important rulings of sharee’ah, by means of which intimacy becomes permissible and rights such as the mahr (dowry) and inheritance are proven, and children are attributed to their father, and other rulings.

By means of divorce, a woman becomes haraam for her husband and is deprived of inheritance, and she becomes permissible for other men to marry, subject to well known conditions. Our aim in explaining all this is to alert the Muslims to the necessity of not using these two contracts in ways other than that which has been prescribed by Allah, and not using them as tricks.

We have seen – unfortunately – men who will marry a woman not so that the intimacy with her which was forbidden becomes permissible, and not so as to form a family with her – as is the aim of the shar’i contract – but so as to attain some worldly purpose, such as registering land, or getting a license to open a business, or to get residency, or to enable the woman to travel outside her country.

In none of this cases is the man a husband or the woman a wife in the real sense, rather he is a husband on paper only! It is not more than ink on paper. This is a kind of toying with the rulings of sharee’ah. It is not permissible to do it or to take part in it, and it is essential to try to stop it when the aim is to achieve some haraam purpose, such as the one who does that in order to get residency in a non-Muslim country.

The same may be said with regard to divorce. It is a shar’i ruling and it is not permissible for anyone to take it lightly or to toy with its rulings. They call that a divorce on paper.

These people should all realize that they are sinning by doing this. Allah has not prescribed marriage and divorce so that the wife might be a name on the contract with no rulings and rights. They should realize that the rulings come into effect merely by virtue of the contract being done, if the conditions and essential parts of it are fulfilled, and that if any of these are missing it is invalid, and that divorce from the husband takes place if the words are merely uttered.

There is no such thing in sharee’ah as marriage on paper and divorce on paper. The sin is further compounded if it is done in order to do something that is haraam in the first place, such as one who uses it to avoid giving people their rights or paying debts to them, or if a woman uses it to get help given to divorcees by a state or institution, or so that she can live in a non-Muslim state where it is not permissible for her to reside, and other invalid, haraam aims.

Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) said:

The Lawgiver forbids treating the Verses (Laws) of Allah as a jest (al-Baqarah 2:231) and forbids a man to speak of the Verses of Allah which are binding contracts except in a serious manner as they are meant to be. Hence it is forbidden to take them lightly and or to marry a divorced woman in order to divorce her so that it will be permissible for her to go back to her first husband. This is indicated by the verse in which He says (interpretation of the meaning): “… And treat not the Verses (Laws) of Allah as a jest …” (Al-Baqarah 2:231)  and by the words of the Prophet (peace and blessings of Allah be upon him): “What is the matter with people who toy with the sacred limits of Allah and make a mockery of His verses (laws), (and say), I divorce you, I take you back, I divorce you, I take you back?” It should be understood that toying with them is haraam. End quote.

Al-Fataawa al-Kubra (6/65).

Based on this:

If a man marries a woman who is permissible for him, and it is done in accordance with the conditions prescribed in sharee’ah, with the essential parts being fulfilled and in the absence of any impediments, then it is a valid marriage with all that that implies.

If a man divorces his wife verbally or in writing, it counts as a divorce, even if he does not intend it as such.

Secondly:

Marrying that European woman for the purpose of obtaining residency and then divorcing her is a haraam action.

If he marries her without fulfilling the conditions of marriage, such as if he marries her without a guardian, or if there is any impediment to the validity of the marriage, such as if she is a zaaniyah who has not repented, or she is not one of the people of the Book (i.e., Jewish or Christian), in which case marriage to her is haraam and is invalid.

If he marries her in a marriage that fulfils all the necessary parts and conditions, and is free of any impediments, then his marriage is valid with all that that implies, but his intention is forbidden.

Thirdly:

These reprehensible actions of obtaining a divorce paper for the first wife and marrying another woman for the purpose of obtaining residency, then divorcing her, include two other things that are haraam:

1 – Trickery, lying and giving false witness, because it is deceiving the state and tricking it in order to obtain nationality, which is haraam.

2 – He wants to do the divorce and marriage on paper in order to get residency in a kaafir country, but in our religion it is forbidden to settle among the kuffaar unnecessarily, because of the great danger that this poses to one’s religious commitment and morals, and to the individual and the family.

It was narrated from Jareer ibn ‘Abd-Allah (may Allah be pleased with him) that the Prophet (peace and blessings of Allah be upon him) said: “I disavow any Muslim who settles among the mushrikeen.” Narrated by Abu Dawood (2645) and classed as saheeh by al-Albaani in Saheeh Abi Dawood.

What we advise our brothers to do is to fear Allah, may He be exalted, with regard to shar’i contracts and not to use them as means to worldly ends, and to refrain altogether if the purposes are haraam. They should fear Allah with regard to their wives and children, and think about the great hardship that their actions may lead to, or the deprivation of rights and other negative consequences that may result from doing these contracts in this corrupt manner.

And Allah knows best.

Excerpted, with slight modifications, from: www.islamq&a

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13. 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.

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

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14. 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.”

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

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15. 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.

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16. 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.

Excerpted, with some modifications, from: http://islamqa.com/en/

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17. 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-Sâbirin (the patient ones, etc.)”    (Al-Baqarah 2:155)

And Allah knows best.

Excerpted, with some modifications, from: http://islamqa.com/en/

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18. 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

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19. 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.

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20. 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.

Excerpted, with some modifications, from: http://islamqa.com/en/

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21. 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.)

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22. 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

Excerpted, with some modifications, from: http://islamqa.com/en/

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23. 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.

Excerpted, with some modifications, from: http://islamqa.com/en/

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24. 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.

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25. 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).

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

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26. 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.

Excerpted, with some modifications, from: http://islamqa.com/en/

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27. 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.

Excerpted, with some modifications, from: http://islamqa.com/en/

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