Divorce and Separation Fatwas

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Relevant Material

Rules Pertaining to Divorce and Separation
(Shaykh Ashraf Ali Thanwi)

The Issue of Three Talaqs in One Sitting
(Maulana A S Desai)

Questions on Iddat
(Maulana A S Desai)

Miscellaneous Fatwas Related to Marriage
(Maulana A S Desai)

FATWAS

Q. After the termination of a divorced woman’s iddat, whose duty is it to maintain her?

A. It is the duty of her adult sons. Those responsible for her maintenance are as follows by order of priority: Sons, grandsons (son’s sons), father, brothers, nephews (brother’s sons), paternal uncles, paternal uncle’s sons. If there are no such relatives or if they fail in their obligation, the duty devolves on the male relatives on the mother’s sides. If they too refuse to fulfil their obligation, the duty devolves to the neighbours. And, if they too fail, then it devolves as a Fardh-e-Kifaayah obligation on the whole community. In this era, there is gross abandonment of this obligation at every level of Muslim society. We have become like the kuffaar whose relationship with their parents and adult children is like the relationship of dogs – animals in general who do not distinguish between mother and son, etc. Hence, even affluent Muslims shove their aged parents into miserable institutions known as old-age homes.

 

Q. A divorced woman claims that according to Islam her ex-husband has to maintain her for the rest of her life. Please comment.
A. Her claim is the product of kufr mentality. According to the Shariah, the ex-husband is responsible for her maintenance only for the iddat period. Thereafter if he wishes to continue with the maintenance it will be his goodwill and favour. But after expiry of the iddat, she will have absolutely no Shar’i right to demand anything from him. She will then be a strange woman to him just like the multitudes of other women.

 

Q. I have accepted maintenance money from my ex-husband, which the court has ordered him to pay. After several years I have learnt that it is not permissible for the ex-wife to claim maintenance for herself from her ex-husband beyond the iddat. What is the Shariah’s ruling on the monies which I had accepted?
A. The money which the court had ordered for you is haraam. You had acquired the money by extortion and zulm. If you had minor children of your husband, then you were allowed to accept only maintenance for them, and this too has to be fair and in accordance with the Shariah, not what the kuffaar court fixes. You have to either gain forgiveness from your ex-husband for the money which you had unlawfully acquired from him or you have to pay him back. Even if he forgives you, you still have to repent for the sin of zulm and extortion.

 

Q. A couple had a heated argument. The wife in anger left home and went to her parents. The husband demands that she returns, but she refuses. After a few months, she demands maintenance from him, but still refuses to go back to her husband. Her parents are also insisting that the husband pays maintenance. What does the Shariah say?
A. The Shariah says that this woman is maloonah, i.e. she is constantly under the la’nat (curse) of Allah and the Malaaikah. As long as she does not return to her husband, she remains under the curse of Allah Ta’ala. She is not entitled to any maintenance.

 

Q. My wife left home without my consent to live with her parents. After an argument she walked out. Her parents are demanding maintenance from me. Do I have to maintain her whilst she is living with her parents and refusing to return?
A. When a woman leaves the marital home without the consent of her husband, she is not entitled to maintenance until she returns to the marital home.

 

Q. Is it appropriate for the man to demand the return of all the gifts he had given to his wife, when the marriage has ended?
A. “And if you decide to change one wife for another wife (i.e. divorce a wife to marry another woman), and you had already given one of them abundant wealth (by way of gifts), then do not take back from her anything. What! Do you repossess it by way of usurpation and flagrant transgression? And how indeed can you take it back after having mutually met (i.e. after having consummated the marriage), and after they (women) have obtained from you a sacred pledge (of Nikah)?” (Surah Nisaa’)

A very common reaction of spiteful men of low moral calibre and defective intelligence, when the marriage ends, is to demand that his ex-wife returns all the expensive gifts which he had given her at a time of mutual enjoyment and pleasure. The Qur’aan Majeed describes such repossession of gifts as usurpation. It is unjust, despicable and totally unbecoming of a honourable man to degenerate to the low ebb of reclaiming gifts from a woman who was his lawful wife and with whom he had enjoyed conjugal relations. Rasulullah (sallallahu alayhi wasallam) said that a person who repossesses a gift is like a dog which laps up its own vomit. In many cases when the marriage collapses, the husband goaded on by his parents or bristling with malice, demands that his ex-wife returns all the expensive gifts he had given her in happier times.

This attitude is abominable and totally at variance with Muslim moral character. Besides the morality of the issue, reclaiming gifts from a wife is not permissible nor valid. If by pressure, the man manages to take possession of the gifts, he does not become the owner. The gifts remain in the ownership of the woman who was once upon a time his wife. The excuse that the jewellery, etc. were given to the wife on loan is not valid after the marriage ends in divorce unless the man can prove with acceptable evidence that he had made such a declaration to the woman at the time when he gave her the assets.

The husband’s or his parents’ custody of the items do not make him the owner thereof. It is normal for the wife to leave her expensive jewellery in her husband’s custody for safe-keeping. He holds it as an amaanat for her. As long as she had taken possession of the gifts, she remains the owner. When the heart-breaking event of divorce takes place, the husband should acquit himself honourably by softening the blow. He should not compound the tragedy for the sake of finding gratification for his spiteful and malicious attitude. The assets should be given to her without any problem or hassling. Many Sahaabah lauded their wives with substantial gifts on the occasion of divorce. Acrimony and malice did not feature in the dissolution of their marriages. Divorce at times becomes necessary. When the tragedy occurs, Allah Ta’ala should not be obliterated from the mind.
Close Answer

 

Q. My ex-husband refuses to give my Mehr and jewellery. The Mehr, a gold coin, and gold jewellery had been given to him for safe-keeping. After the Talaaq, he refuses to give my property. Is he entitled to keep my Mehr and the jewellery which had been given to me as gifts?

A. The ex-husband has absolutely no right to hold on to the Mehr, jewellery and other belongings of his ex-wife. Her property is haraam for him. It is Waajib for him to hand over whatever belongs to her. Rasulullah (sallallahu alayhi wasallam) said that a person who repossesses gifts is like a dog which licks up its own vomit.

 

Q. A man gave his wife Talaaq. Thereafter he demanded the return of the Mehr. Does the woman have to return the Mehr?
A. After issuing Talaaq, the man has no right to demand the return of the Mehr nor is the woman under obligation to return the Mehr.

 

Q. My wife simply refuses to perform Salaat and to observe purdah. All my admonition goes to waste. Is it permissible for me to divorce her?
A. It is Makrooh and repugnant to live with a woman who does not perform Salaat and refuses to observe purdah. If she persists in her evil and haraam, then she should be divorced. A Muslim cannot live with a wife who refuses to perform Salaat. Her condition is akin to kufr.

 

Q. I am married for the last 20 years. My husband had embraced Islam before our marriage. He says that he does not want to practice Islam and that he had converted merely to marry me. Can I go on living with him?
A. His statements have rendered him a murtad (renegade). He is no longer a Muslim. You are no longer his wife. The Nikah has ended. If he sincerely repents and again embraces Islam, then a new Nikah will have to be performed before you can be his wife again.

 

Q. A husband has become a murtad. What should his Muslim wife do?

A. The nikah terminates immediately with the man’s irtidaad. After a period of three haidhs (menses), she will be free to marry someone else.

 

Q. My husband promised to accept Islam after our marriage. A short while after the marriage, he accepted Islam. However, soon thereafter he began attending church and said that he was not a Muslim. What is the state of our marriage?

A. There never was a valid marriage. You never were his wife according to the Shariah. If he had had not accepted Islam before the marriage, then the Nikah was not valid. In that case you were living in adultery with him. He is not your husband. It is absolutely necessary that you move out of his house. You have to separate yourself from him. Ill-luck and misfortune will overhang you as long as you are living with the kaafir man.

 

Q. After the husband gave his wife three Talaaqs, she became a murtad. Some months later she embraced Islam. Can she get married to her ex-husband?

A. If the divorced woman became murtad after the husband had given her three Talaaqs, then again embraced Islam, she will still not be able to marry her ex-husband. As long as she has not married another man who happens to divorce her after consummation of the marriage, marriage with her ex-husband will not be valid.

 

Q. A Muslim woman renounced Islam. She became a Christian. After some months, she regretted and re-entered the fold of Islam. What is the state of her marriage with her husband? Is she allowed to marry another man?
A. This woman, although having renounced Islam and becoming a murtaddah (renegade), cannot marry another man after her re-entry into Islam. She has to compulsorily marry her husband. A new Nikah has to be performed between them.

 

Q. My husband who was a convert to islam, has renounced Islam. He is no longer a Muslim. I am no longer living with him. What is the state of my Nikah?
A. Since your ‘husband’ has renounced Islam, he has become a murtad. The marriage has terminated. You are no longer his wife. You have to be in Iddat which is a period of three haidhs (menses). Thereafter you will be free to marry anyone else.

 

Q. A husband has not paid his wife’s mehr. She therefore refuses him conjugal relations. She is now using this as a pretext to gain an annulment of her Nikah. The husband agrees to pay the mehr, but now she refuses to accept it and insists on getting an annulment. Can the Nikah be annuled ?
A. The Nikah cannot be annulled. Although the woman had the right to refuse conjugal relations in view of non-payment of her mehr, she cannot refuse now to accept the mehr which her husband wants to give to her. Her Nikah cannot be annulled. A woman who refuses the conjugal rights of her husband is a mal-oonah (cursed) according to Rasulullah (sallallahu alayhi wasallam).

 

Q. How does Talaaq work? My husband has already given me two Talaaq. We have reconciled. What is the position of the two Talaaqs? If my husband issues one more Talaaq, what will be the consequences?

A. If your husband has given you two Talaaqs, then there remains just one more to finally and irrevocably terminate the Nikah. Regardless of any reconciliation, the two Talaaqs remain suspended and will come into immediate effect if your husband issues Talaaq once more. It is essential that he understands this very serious issue.

 

Q. A man of unstable mind was pressurized and coerced by family members to divorce his wife. Is the woman divorced?
A. As long as the man is not insane, the divorce is valid. Instability of mind is not insanity. Surely he must be going about his daily life like a sane person. If he had issued three Talaaqs, the divorce is final and irrevocable.

 

Q. Is Talaaq said in anger valid? Some scholars say that it is not valid.

A. Ignore what the morons blurt out. Whether the husband utters Talaaq in anger or love or in joke, it is valid. Those who deny this fact are juhala (ignoramuses). If one in anger shoots and kills a person, he will not be able to argue that he had committed the deed in anger. The deed is valid regardless of the attitude. No one issues Talaaq in the state of love. Invariably, Talaaq is administered in the state of anger. Those who do not accept the validity of Talaaq simply because it was uttered in anger, will pass their life in the state of adultery with the ex -wife and the resultant children will be illegitimate.

 

Q. My husband has pronounced three Talaaqs. When he pronounced the last Talaaq he was intoxicated. He does remember his actions, but regrets much. Should I be in my iddat?
A. All three Talaaqs are valid notwithstanding his intoxication. Your iddat commenced immediately after the third Talaaq was issued.

 

Q. Zaid is affected with sihr (magic) and jinn. This has been confirmed by a reliable aamil. In a fit of rage, he uttered Talaaq to his wife. Is the divorce valid?
A. Only insanity and sleep absolve a man from the effect of his utterances. As long as his aql (mind/intelligence) is intact, he is responsible and liable for his statements, regardless of the cause of the rage. Rage does alter a man’s mental equilibrium, hence he blurts out in anger words which he later regrets. But the Shariah does not absolve him from liability. Even if sihr has been diagnosed, the man, we are sure, goes about his everyday business and household affairs as a normal person. Many people fly into fits of rage without being under the influence of sihr, and utter words which they later regret. Similar will be the effect of his utterance in rage due to sihr. He remains liable. The Talaaq has taken effect. If he issued one Talaaq, it will be one Talaaq Raj’i which he can revoke and take back his wife. If he uttered three Talaaqs, the marriage is finally and irrevocably terminated.

 

Q. Is jadoo made on a woman grounds for faskh of the Nikah?

A. There is no way in which it can be proved that jadoo (sihr/magic) was made. It is not a valid ground for Faskh (annulment).

 

Q. A woman was divorced almost immediately after she arrived at her husband’s home. When they were alone an argument developed and the man gave her Talaaq. Is iddat necessary since the marriage was not consummated?
A. In the Shariah, a marriage is consummated with privacy regardless if sexual relations did not take place. Iddat is therefore Waajib.

 

Q. A man divorced his wife with one Talaaq. Ten years have lapsed. He never revoked the Talaaq. After some years he married another woman. Before marrying the other woman, he issued another two Talaaqs to his first wife. The two Talaaqs were issued several years after the first Talaaq. Now, ten years hence, they want to reconcile. Will Nikah be valid?
A. After issuing one Talaaq to his wife ten years ago, the husband never revoked it. Years later he married someone else. Her Iddat had long ago expired, hence she has been out of his Nikah for many years. In short she is not his wife. The two Talaaqs which he issued to his ex-wife are futile and have no effect. He may therefore reconcile with her and enter into Nikah with her.

 

Q. A husband due to impotency is unable to consummate his marriage. Should he divorce his wife?
A. He should not unilaterally divorce his wife on account of his inability to consummate the marriage. The two of them should take a joint decision. If the wife wants to be divorced, then he should divorce her.

 

Q. What is the effect of Talaaq Raj’i? After reconciling with the wife, does this Talaaq fall away?
A. If a husband gives his wife one Sareeh Talaaq (i.e. a Talaaq in which the word Talaaq/Divorce is used), then he may take her back without Nikah. However this one Talaaq will remain suspended for all time. It does not fall away. The husband will have the right to issue two more Talaaqs. Should he issue two Talaaqs in future in any way whatsoever, either together or separately, then the two together with the one already given will irrevocably and finally terminate the Nikah. If he does not take her back before expiry of her Iddat (a period of three haidhs), then if they wish to reconcile, a fresh Nikah has to be performed. She will also be free to marry anyone else after expiry of the iddat.

 

Q. A lady receives one Talaaq during her menses. Thereafter another one during her iddat. A third talaaq was written and given to her after her iddat. Is the third talaaq valid?
A. It is not permissible to issue Talaaq during haidh of the Iddat period. Although Talaaq issued during haidh is also valid, it is not permissible. The best method of Talaaq, is to issue only ONE Talaaq. There is no need to issue a second and a third Talaaq even during the Tuhr periods of the Iddat. Even if it is the man’s intention to finally terminate the marriage, the one Talaaq achieves that aim. After expiry of the iddat (of three haidhs), the Talaaq is irrevocable and the woman is free to marry someone else. There is, therefore, no need to issue more than one Talaaq.

 

Q. Does a Talaaq administered during pregnancy take effect?
A. It is not permissible to give or utter talaaq to one’s wife during pregnancy. But, if the Talaaq was given in the state of pregnancy it (the Talaaq) will take effect and the husband will be guilty of committing a sin.

 

Q. A man issued three Talaaqs to his wife during her state of haidh. He is still living with her claiming that the Talaaqs are not valid due to her haidh. Is he correct?

A. Despite it not being permissible to issue Talaaq during the state of haidh, the Talaaq is valid. Since he had issued three Talaaqs, the issue of reconciliation does not develop. They can no longer reconcile. The marriage has finally and irrevocably ended.

 

Q. My husband gave me one Talaaq Baa-in while I was in the state of nifaas. Is the Talaaq valid?
A. The one Talaaq Baa-in although executed in a haraam manner, is nevertheless valid. It is haraam to give Talaaq when the wife is in the state of nifaas or haidh.

 

Q. Is it permissible to issue Talaaq during the wife’s state of haidh?
A. Whilst it is not permissible to issue Talaaq during the wife’s haidh period, the Talaaq will nevertheless, be valid.

 

Q. Could you explain what it means for something to be Haraam yet its consequences are valid?
A. Some acts whilst having legal validity in the Shariah remain reprehensible and not permissible. For example, issuing Talaaq during the state of haidh and nifaas or issuing three Talaaqs in one session. Whilst the Talaaqs will be valid and take immediate effect, administering Talaaq in this manner is not permissible Similarly, repossessing a gift from someone who is not a close relative such as children, wives, brothers, sisters, while legally valid is reprehensible. One who reposes a gift is like a dog licking up its vomit according to the Hadith. When arranging Khulah, the husband should not demand from his wife an amount more than the mehr he had paid. It is sinful to demand a higher sum. Nevertheless, if he had taken a higher amount, the Khulah will be valid despite the haraam oppression he has committed. A Nikah performed without the consent of the girl’s Wali (father, brother, uncle, etc.) whilst valid, is sinful. This validity is according to the Hanafi Math-hab.

According to the Shaafi’ Math-hab the Nikah performed without a contracting male is not even valid. A woman may not contract her own marriage according to the Shaafi’ Math-hab. There are many issues which in the kutub of Fiqh are described Saheeh (correct), ya-jooz (permissible) and halaal (lawful) which mean only valid. Also, the term Mustahab is sometimes used in the kutub of Fiqh for even Sunnatul Muakkadah acts. Even Molvis are confused by this usage of the Fuqaha, hence they form erroneous conclusions on the basis of misunderstanding the correct meaning of these terms in the context they are used. For example, it is mentioned in the kutub of Fiqh that it is Mustahab to face the animal towards the Qiblah when slaughtering it. The term Mustahab in this context signifies Sunnatul Muakkadah.

 

Q. My brother has been very unjust to his wife. She is a good woman who takes care of our mother who is very difficult. Although my brother is a Haafiz, he is not a faithful husband. He does not respect his wife. He gave her Talaaq. He said that he made Istikhaarah before issuing Talaaq. Is it proper to make Istikhaarah for Talaaq?
A. While Istikhaarah is valid for deciding whether to issue Talaaq or not, it does not mitigate your brother’s unfaithfulness and not fulfilling the rights of his wife. He will be held responsible for his injustice and oppression by Allah Ta’ala.

 

Q. A man tells his friends that he and his second wife are officially divorced. What effect does his statement have on his marriage with his first wife?
A. If a man tells his friends that he and his second wife are ‘officially’ divorced, then it will be one Talaaq which he can still revoke and take her back before ending of the wife’s iddat which is a period of three haidh. What he said about his second wife does not affect the Nikah of the first wife whatsoever.

 

Q. My husband divorced me due to pressure of his mother who insisted on the Talaaq. I was given Talaaq Baain whilst I was in the state of nifaas, two weeks after the birth of my baby. After the Talaaq my husband made contact with me. Both of us wanted to reconcile. However, my mother-in-law was opposed to the reconciliation. At a recent meeting which was attended by me, my exhusband, his lawyer and my lawyer, I was told that there was no scope for reconciliation because my former mother-in-law was averse to it. My ex-husband agreed to the divorce only to satisfy his mother. I wanted to get a Maulana involved to assist with a reconciliation, but I was told that they would not allow a Maulana to enter into this matter. When I asked their lawyer who is an ardent campaigner for the Muslim Marriages Bill, why I am not allowed to have the assistance of the Ulama, he said that he was merely taking instructions from his client who happens to be his nephew. He said that he was not playing ‘dirty’. It was his client. I said to him that as one who claims to have much Islamic knowledge, he should explain to his nephew and should have advised them of their error and endeavour to effect a reconciliation. This is the type of ‘islamic’ law this lawyer practices. It is a ‘law’ in which the wishes of his client have to be fulfilled and in which the pursuit of money are placed above the laws of Allah Ta’ala. I do not mind if my identity is revealed and publicized. I have been greatly wronged by the other party and their lawyer who speaks much about ‘islamic’ law, but practises nothing of it. A year has passed and I find myself in a difficult position. Half the medical bills and all the consumable bills have not been paid. They have started to pay a monthly maintenance of R1,500. This is not enough to cover the child’s needs. They say I should seek employment. I have also not been compensated for my Iddat expenses nor for the period after my husband left me on 17 May 2010 until the day of Talaaq in August 2010. I have been breast-feeding my child for the past 19 months and shall continue doing so until she is two years, Insha’Allah. What are my rights according to the Shariah? What advice do you have for me?
A. Since there are elements of dispute involved in this matter, we shall restrict our response to the clear-cut Shar’i issues. We are not aware of the reason for your ex-mother-in-law’s animosity towards you, and which constrained her to force her son to divorce you, and to adopt such an uncompromising stance regarding a reconciliation which both parties wanted. We therefore cannot comment on the validity or invalidity of your ex-mother-in-law’s attitude. If a parent has valid reasons, he/she is Islamically allowed to advise his/her son to divorce his wife. However, you should examine your exmother- in-law’s attitude and resultant stance in the cold light of intelligence, devoid of emotion in an attempt to fathom the causes for her animosity towards you.

From your explanation, it appears that the reason for the other party and their lawyer refusing intervention of the Ulama is simply the fact that such intervention would have been futile in view of the stance of your ex-mother-inlaw. It seems that she had the power of veto and her son for whatever reason would have abided by only her command. Furthermore, you could have enlisted the assistance of the Ulama yourself without requiring the consent of the other party. You should have contacted the office of the Jamiatul Ulama KZN. You are in the city of Durban. This would have been no difficulty for you. Whilst reconciliation is an Islamic exhortation, we are unable to comment on your mother-in-law’s opposition because we are unaware of her reasons. However, your ex-husband is guilty of some major sins which also involves violation of your Shar’i rights. The Shar’i position is as follows:

• Issuing Talaaq during your state of nifaas was haraam. • Maintenance for you was Waajib for the Iddat period on condition that you had not left the marital home of your own free will. Refusing to pay the maintenance is a major sin. • Maintenance for you was Waajib from the day your husband deserted you on 17 May 2010 until the date of the Talaaq in August 2010. However, the condition for incumbency of maintenance is that you had not left the marital home without valid reason. Unjustified refusal is a major sin. • Their suggestion that you should seek employment is haraam. It is haraam for you to leave home to seek employment especially now that you have to care for the infant. You have to remain at home, take care of the baby, and the baby’s father has to pay all the expenses for the care of his child, including remuneration for you for looking after the infant, and this includes rent for the apartment. • The father has to maintain the child until adulthood. However, he is not responsible for paying for the secular education of the child. In fact it will be haraam to send the girl to secular school. He is liable for only the Islamic education. • Custody of the girl will be your right until she attains the age of ten years. From that age, custody will be the right of the father. • If you marry a man who is not a very close relative of the child, you lose the right of custody. In that case, if your mother (the child’s maternal grandmother) is islamically capable of caring for the child, custody will be her right. If she is Islamically disqualified, then it will be the right of the paternal grandmother.

• The father remains the guardian at all times of the child. Hence, you may not make unilateral decisions on any matter of importance regarding the child. It is the father’s right, in fact obligation, to monitor the Deeni ta’leem and tarbiyat of his child. Divorced wives are in absolute abnegation of this Shar’i right of their children’s fathers. • The father has the right of access to his child at all times, not only at times stipulated by a kaafir court. However, the father may not visit your apartment to have access to the child. A neutral venue for access has to be arranged. As far as the amount of maintenance is concerned, we advise that you get in touch with the office of Jamiatul Ulama KZN of whom you must be aware. The Jamiat will, Insha’Allah, appraise the situation and be in a better position than us to advise on this issue.
Close Answer

 

Q. I divorced my wife by uttering the word Talaaq twice in anger. Her Iddat has not expired yet. Can I take her back without renewal of Nikah?
A. You may take her back before expiry of her Iddat. You must also now remember that in future if you utter the word Talaaq once more the divorce will become final and irrevocable. The one Talaaq will be added to the two already given, making the Talaaq “mughallazah” (emphatic, irrevocable and final). When this occurs you will not be able to regain your wife. Nikah between you then will not be valid.

 

Q. A married woman filed for divorce in a non-Muslim court. After she gained the divorce, she married another man. Is this nikah valid? The husband did not issue talaaq.
A. The nikah is not valid. The `divorce’ decreed by the non-Muslim court has no effect on the nikah. This woman is still in the nikah of her husband. She lives in the state of adultery with the other man. If he too is aware of the situation then he is also guilty of adultery.

 

Q. A muslim couple has been married for a year and a half. During this year and a half of marriage the wife’s mother kept interfering in their marriage. The mother finally got her way and the daughter left her husband. After six months of separation the wife comes back to the husband claiming that she wants him back and wants to work on their marriage. But during this six months of separation the husband as moved on and met someone else and fell in love with this person. My question is: Is this marriage still valid or has it been over the moment the wife moved out? And if it is still valid then that means the husband is being unfaithful to his wife?
A. For the six months that the wife had left home, she was constantly under the curse of Allah and His Angels. Now after six months when she returns she finds her husband making preparations for marrying another woman. She has absolutely no right to complain. The husband is fully justified getting married to the other woman. In so doing, he is not unfaithful to his wife. On the contrary, she has been unfaithful to him for having absconded from the marital home. However, if the husband has had any pre-marital relationship with the other woman, then obviously he was unfaithful to Allah Ta’ala, not to his wife who had run off like a lewd woman. Nevertheless, this man is fully entitled to get married to the other woman. At the same time the marriage with his wife is still valid. The six month separation period did not invalidate the Nikah. The husband may either retain his wife in Nikah and marry the other woman as his second wife or he may divorce his wife. This is entirely his choice.

 

Q. After a man gave his wife three talaaqs she married another man who also divorced this woman. Although they had sexual relations, he had practised azal (withdrawal). Is this consummation valid? Can the first husband again marry his ex-wife?
A. The consummation is valid. He can marry his former wife again.

 

Q. Is a talaaq issued over the telephone valid?
A. It is valid.

 

Q. A dispute has developed between the husband and wife regarding the Talaaq which the husband issued. According to the wife, the husband said: “If you report to your parents what I have said, then it is not one Talaaq. It is three.” Subsequently the wife did report to her parents what he had said. However, the husband denies having issued three Talaaq. He says that he had said: “I will give you three Talaaq.” What is the Shariah’s ruling regarding this dispute? Have three Talaaqs come into effect?
A. In a dispute between husband and wife regarding Talaaq, the Shariah decrees that ‘the wife is like the Qaadhi’ to decide the issue for herself. If the wife is certain that her husband had said what she claims, viz. “It is three”., then all three Talaaq have come into effect. As long as the wife is certain, she should ignore what the man says. She should consider him a liar when she is sure that he had administered three Talaaq to her. She is in her iddat. After expiry of her iddat which is a period of three haidh cycles, she will be free to marry someone else.

 

Q. My husband gave me three Talaaqs, but now denies it although I am absolutely certain about this. He went to a Mufti who said that if I do not have witnesses, then the Nikah is still valid, and the word of the husband will be taken. Now what must I do when I know for a certainty that my husband gave me three Talaaqs. He has no Deeni scruples, therefore he denies the Talaaqs. He does not care if he will be living in the state of adultery. What should I do?

A. The issue for you is quite simple. You do what the Shariah tells you to do, not what the errant mufti advised the man who is no longer your husband. The Mufti is not a Qaadhi. The issue of witnesses is therefore superfluous. According to the Shariah, in Talaaq issues of this nature, the word of the wife is final. The principle underlying this is: The woman is like a Qaadhi. That is, in so far as she herself is concerned, she should decree that the three Talaaqs have been issued and separate herself and sit in Iddat, regardless of the tantrums of the man (the ex-husband). Regardless of what any Mufti rules, the woman should remember that it is her Shar’i right , in fact obligation, to make the decision when the husband denies having issued Talaaq and she is absolutely certain that he did give Talaaq. She should reject his false claim and understand that he is a liar lacking in fear for Allah Ta’ala, hence his satanic denial. No amount of fatwas can negate this right which wives have, and no Mufti has the power, either coercive or moral and spiritual to compel her to remain with a man who has given her three Talaaqs or even one Talaaq Baa-in which terminates the Nikah.

 

Q. Two years after a khula' took place between my husband and myself, he denies it. He is now fabricating all sorts of stories and spreading false rumours. Please advise me what to do.

A. Sister, you know the truth. It is between you and Allah Ta’ala, and even your ex-husband knows the reality. As long as you had given the true picture and correct information, you need not worry. Your Khula is valid on the basis of what you have explained to us in your letter at the time when we had ratified the validity of the Khula’. Now when you are sure that you had said only the truth, then you need not worry because your Nikah has ended with the Khula’. As such you are free to marry any other person.

 

Q. The wife claims that her husband gave her three Talaaqs. The husband denies. What is the status of their nikah?

A. If she is genuine that he had issued Talaaqs, then the Nikah has ended. The matter is between herself and Allah Ta’ala. If she is genuinely convinced that he did issue three Talaaqs, then she should separate herself from him and consider herself divorced regardless of his denial. But, if he did not issue three Talaaqs, then she should understand that the Nikah is valid and no fatwa will release her from the bond of the Nikah.

 

Q. The husband says that he regrets having married his wife and that he does not want her back; she should stay by her parents. Are these statements Talaaq?
A. These statements will be Talaaq only if the husband had the intention of Talaaq at the time when uttering them.

 

Q. A woman in anger told her husband telephonically: ‘I want a divorce’. He, the husband replied: ‘You can have it.’ What are the implications in terms of the Shariah? Is the Nikah still valid?
A. The Nikah remains valid. Talaaq did not take place. The husband did not say that he had given or gave or gives Talaaq. He said : ‘You can have it.” But there is no way in which she can ‘have it’ without him issuing it. His statement is therefore meaningless.

 

Q. A husband in anger says to his wife: “I am tired of your nonsense. Pack up and go to your mother’s house.” The wife packed up and went. But her parents brought her back. Did Talaaq take place?
A. He did not make this statement in response to her request for divorce. His statement is therefore ambiguous. If he says that his intention was Talaaq, then this statement in this context will be One Talaaq Baa-in which terminates the Nikah. If he says that he did not have intention of Talaaq, then divorce has not taken place.

 

Q. A man in anger wrote a letter of divorce to his wife. A day after having written the Talaaq, he decided not to send it to his wife. He tore up the letter. Did the talaaq come into effect?
A. Yes, the Talaaq is valid regardless of him having torn up the letter and regardless of his wife not knowing of the written Talaaq. The number of Talaaqs he wrote takes effect, whether one, two or three.

 

Q. My husband gave me 3 talaqs by text message like this… “I (his name) give you (my name) 3 talaqs”. He says his intention was that it will not be binding as he said it in the past tense, i.e. “give” and not “given”. We have been having problems early on in our marriage and there is sihr done on us. My second question is if talaaq has been given, my husband says halalah can be done. I have read negative things about halalah and that it is not valid if commissioned by someone to do it. My husband says even if its commissioned, it is a bad thing but still valid and the second husband just has to be in privacy with me in order for the marriage to be consumated. Is this correct? I do not want to do anything haraam, i do not want a life of haraam relations with any man. I have kept myself clean and chaste from an early age. But at the same time if this can be done in a way that is both halal and where i do not have to sleep with another man then i would as i regret what has happened. We have 3 young children and a lot of love between us. Considering we have had sihr on us for 10 years we have stayed together as there is a huge amount of love between us. Please help and advice as soon as you can and please also make dua for us.
A. (1) All three Talaaqs issued by your husband by ‘text message’ are valid. His interpretation for negating the validity of the three Talaaqs is baseless. You are no longer in his Nikah. You have to remain in Iddat. After expiry of the Iddat period you will be free to marry anyone you wish. (2) It is not permissible to arrange a halaalah. It is a grave sin to arrange a halaalah. If you ordinarily marry someone else and your husband divorces you after consummation of the marriage, then it will be permissible for you to marry your former husband. Consummation in this context is not restricted to mere privacy. Consummation for this purpose will be valid only if sexual relations take place. May Allah Ta’ala have mercy on you and your children.

 

Q. In a quarrel with my wife I told her that if she will not be coming with me for the weekend, I shall give her three Talaaqs. When weekend came, she did not accompany me. I did not follow up on my threat but an Imaam says that the talaaqs are valid. Please advise if this is so.
A. The talaaqs did not come into effect. You had threatened to issue three talaaqs. You did not issue the talaaqs when she refused to accompany you at the weekend. Your Nikah therefore remains valid.

 

Q. A husband said to his wife: “If you ever speak about this subject, it will mean you are divorced.” After some time, the husband wants to retract his statement and allow her to speak on the subject. Will this be permissible? What should he say to retract?

A. A retraction will not be valid. If the wife speaks on the subject, one Talaaq Raj’i will come into effect. Before expiry of her iddat, the husband may reconcile with her without the need to renew the Nikah. However, one Talaaq will always remain. If at any time in future he issues two Talaaqs, then together with this one Talaaq, it will be three which finally and irrevocably terminates the marriage.

 

Q. Over 15 years ago a man gave his wife two talaaqs, each one on a different occasion. He is now living happily with his wife. Are the two talaaqs still valid or have they fallen away?
A. The two talaaqs will remain valid forever. Never will they fall away. The moment he utters one more talaaq, his marriage will end forever. Therefore, he should forget that there ever is a word like ‘talaaq’. Whatever he does in future in anger, he should never utter ‘talaaq’. He will regret when it is too late to regret.

 

Q. A husband constantly abuses his wife. In an argument the wife said to him: ‘Get out and leave me alone.’ Is the Nikah still valid?
A. The nikah is valid. The statements of a wife have no effect on the Nikah.

 

Q. A man pronounced Talaaq to his wife over the phone. Is the Talaaq valid?
A. The Talaaq is valid. Even if he intentionally pronounces Talaaq while he is alone where no one heard him, not even the wife, Talaaq is valid.

 

Q. While travelling in a car, during an argument with my wife, I lost my temper and uttered: “Talaaq, Talaaq, Talaaq, and again Talaaq, Talaaq, Talaaq.” What is our marital status? A sheikh from an Islamic institute says that Talaaq did not take place.
A. The sheikh is a deviate. Only deviates issue such corrupt ‘fatwas’. Your marriage had ended the moment you had uttered the Talaaqs. Three Talaaqs finally and irrevocably terminate the Nikah.

 

Q. A man says in his mind: ‘I divorce my wife’, without saying it verbally. Is his wife divorced?

A. As long as the man has not stated the words with his tongue and lips, it will not be Talaaq. Talaaq is valid only if verbally expressed.

 

Q. I said in my mind that I have divorced my wife. I did not utter Talaaq nor mentioned the words with my lips. Is this a Talaaq?

A. As long as you did not verbally mention the words, Talaaq did not come into effect.

 

Q. In anger I told my wife: “If you go to your mother’s house, three talaaqs will fall on you.” My intention was that if she went to her mother’s house at that time when we had the argument, the three talaaqs will come into effect. If she should now go to her mother’s house with my consent, will three talaaqs come into effect?
A. Since your intention was that she should not go to her mother’s house on that particular occasion, the three talaaqs will not come into effect if she goes now to her mother’s house. If at the time when you issued the conditional talaaq, the intention was to prohibit her from going to her mother’s house forever, then whenever she goes there, three talaaqs will take place.

 

Q. A man gave his wife one Talaaq before consummating the marriage. What is the ruling?
A. Talaaq given in any form before consummation is one Talaaq Baa-in even if the explicit term ‘Talaaq’ has been used. There is no Iddat for this woman. She is permitted to marry anyone else immediately.

 

Q. A man said to his wife: ‘I am tempted to commit zina with your sister.’ The wife claims that an Aalim had issued a fatwa claiming that this statement is kufr, hence the nikah was rendered invalid. She now regards herself out of her husband’s nikah. Was the Aalim correct in his fatwa?
A. While the statement is exceptionally vile and unexpected of a Muslim, it is not kufr. Even the act of committing adultery with the sister-in-law is not kufr. It is vile, immoral and evil in the extreme, but not kufr. The Aalim Saheb had erred if he had issued any such fatwa. The nikah remains intact and valid. The woman remains the man’s wife.

 

Q. A husband says to his wife: ‘I want to divorce you.’ Is this a valid Talaaq?

A. If a man says verbally: ‘I want to divorce you’, Talaaq does not come into effect because he said ‘I want to…’. But if he says verbally even if he is alone: ‘I divorce my wife’, then one Talaaq Raj’i comes into effect. Before expiry of her iddat he can take her back without the need to perform Nikah.

 

Q. A woman was telephonically informed by a relative that her husband who at the time was in another country had given her three Talaaqs. Does she have to sit in iddat?
A. It is necessary to gain confirmation of the Talaaq from the husband. If this is not possible for some reason and the relative is a reliable, honest, trustworthy and responsible man, then she may accept the information as correct, and begin her iddat.

 

Q. A man wrote a letter of Talaaq in the following manner: 'I issue Talaaq to you through the Will of Allah.' Is this Talaaq valid?
A. Yes, the Talaaq is valid. This statement is one Talaaq Raj’i.

 

Q. A woman wanted to cut her hair. Her husband said: ‘If you cut your hair, you are divorced.’ What if she, herself, does not cut her hair, but asks someone else to cut it? Will Talaaq come into effect?
A. Yes, one Talaaq-e-Raj’i comes into effect even if she asks someone else to cut her hair.

 

Q. During an argument, a man shouted at his wife: “Go! Go! I don’t want you here anymore.” During the argument, when the wife had demanded Talaaq, the husband blurted out this statement. The husband now says that although he had meant that she should leave with her Talaaq, he had said so in anger. What is the state of their Nikah?
A. The statement which he had made during the argument in response to his wife’s demand for Talaaq, constitutes one Talaaq Baain regardless of his intention and anger. The Nikah has ended. However, should they wish to reconcile, they may do so. They only have to perform Nikah again.

 

Q. A man said to his wife: “If you cut your hair, you are divorced.” If the wife does not cut her hair herself but asks someone else to cut it, will the ruling differ?
A. Even if someone else cuts her hair, Talaaq will come into effect.

 

Q. A husband said to his wife in anger: “We are already half divorced.” Is this a valid Talaaq?
A. One Talaaq Raj’i (Revocable Divorce) came into effect by this statement.

 

Q. A man wrote three Talaaqs to his wife. After his anger subsided, he tore up the paper He did not inform his wife. What is the ruling?
A. The three Talaaqs are effective. The Nikah has irrevocably ended. She is no longer in his Nikah. Tearing the paper does not cancel the validity of the Talaaqs. Once a husband writes out Talaaq for his wife, it comes into effect whether he hands the written Talaaq to her or not.

 

Q. A man said to his wife: “If I marry another woman without your consent, she is divorced.” After some time, he married without his wife’s consent. Is the second wife divorced?
A. Yes, the divorce came into effect immediately the Nikah was concluded. However, the suspended Talaaq which the man had issued applies only once. This has now been executed. If he again performs Nikah with the woman without his wife’s consent, Talaaq will not come into effect.

 

Q. While issuing divorce to me, my husband said ‘talaat’, not talaaq. Is the divorce valid?

A. The Talaaq is valid.

 

Q. My husband has already given me two talaaqs. He said: ‘If you ever use my phone without my permission, then you are divorced.” What should I do in an emergency? Will the third Talaaq come into force if I use his phone in an emergency?

A. Yes, the third Talaaq will come into force if you use the phone even in an emergency. Since your husband had hinged the Talaaq on using the phone without his permission, the Talaaq will not come into effect if you use it with his permission. Hence, he should now say: ‘I give you permission to use my phone in an emergency.” Or, he should buy you a phone.

 

Q. In our town there is a woman who is a ‘home made’ ‘aalimah’. She treats her husband with arrogance and has branded him a kaafir . The husband is a good person. The elders of the town advised him to give her Talaaq to end her tyranny . Now after he has issued Talaaq, she issues her own fatwa that the marriage is still valid. Is she allowed to stay with him?

A. It seems that this home made jaahilah is somewhat insane. Now that the man has issued Talaaq, she has no right of imposing herself and proclaiming the marriage valid. And, even if she shouts a thousand times that the marriage is valid, her stupid outpouring will not alter the reality of the Talaaq issued by the husband.

 

Q. A woman has been separated from her husband for 18 years. She does not know if she is divorced from him or not. Her parents say that the nikah has ended because he had told her many times to go to her parents. They say that she can get married to somebody else. Is this correct?
A. Even a lifetime of separation does not end the Nikah. As long as the husband has not issued Talaaq, the Nikah remains valid. His statement : “Go to your parents”, will be Talaaq only if accompanied by the intention of Talaaq. He should be asked about his intention. If he says that his intention at the time of making the statement was Talaaq, then it will be Talaaq otherwise not. As long as the matter has not been clarified, she cannot get married. Nikah with another man will simply not be valid.

 

Q. I have been separated from my husband for 3 years without talaaq. We have now reconciled. Is it necessary to perform a new Nikah?

A. Since Talaaq was not issued, it is not necessary to renew the Nikah. Nikah will be necessary only if one or two Talaaqs had been given.

 

Q. A husband wrote out a Talaaq Baa-in for his wife. Before handing her the letter, he destroyed it. What is the position of the Talaaq?
A. One Talaaq Baa-in came into force. Destruction of the letter does not cancel the Talaaq. The Nikah ended the moment he wrote the Talaaq. He can live with his ex-wife only after renewing the Nikah.

 

Q. A husband said to his wife: “Tonight is Talaaq night! Call the Maulanas. Tonight I’m giving Talaaq.” Are these statements Talaaq? Is the Nikah still valid?
A. The statements: “Tonight is talaaq night”, “Call the Maulanas”, and “Tonight I’m giving talaaq”., are not Talaaq. These statements convey his intention of giving Talaaq. However, they are not Talaaq. Only when he actually gives the Talaaq, will it become valid.

 

Q. A man gave his wife one Talaaq, then took her back. After some time he gave her another Talaaq. Then before expiry of her iddat he took her back. A Mufti said that he should have waited for her iddat to end. Thereafter perform Nikah. He would then again have the right of three Talaaqs. Is this correct?
A. The respected Mufti Sahib has made a grievous error in understanding the mas’alah. Even if Nikah was again performed after expiry of the iddat, the first two Talaaqs remain suspended. The expiry of the iddat and the nikah do not nullify the first two Talaaqs. Marriage to another man nullifies existing Talaaqs. The husband will have the right of only one Talaaq regardless of expiry of iddat and performance of nikah.

 

Q. A woman asked her husband for Talaaq. He said: “You are not a good woman”. She then said: “So then if I am not good let me go”. In response the husband said: “OK then pack yourself and go.” The husband takes an oath that he had no intention of Talaaq.
A. If he had no intention of Talaaq, then this statement will not be Talaaq. If his intention was Talaaq, it will be one Talaaq Baain which terminates the Nikah.

 

Q. My husband issued three Talaaqs by text message. Are the Talaaqs valid?
A. All three Talaaqs issued by your husband by ‘text message’ are valid. You are no longer in his Nikah. You have to remain in Iddat. After expiry of the Iddat period you will be free to marry anyone you wish.

 

Q. My husband telephonically said that he has given me three Talaaqs, and a letter stating this would follow. Are these Talaaqs valid? I want to fight to save my marriage. What should I do? What if I reject the three Talaaqs?
A. The statement made by your husband to you telephonically is Talaaq Mughallazah. Three Talaaqs have come into effect. It matters not if he issues a letter or not. His statement that he has given you three Talaaq finally and irrevocably terminated the Nikah bond. Although it is sinful to issue three Talaaqs in a single statement, nevertheless, it is valid and the Nikah has ended. You are therefore to observe Iddat. The validity of the Talaaq is not dependent on your acceptance or rejection. Sister, it is pointless to ‘fight’ for your marriage when the man does not want you. It is like flogging a dead horse. The marriage has already ended. No amount of fighting can bring about reconciliation in view of the administration of three Talaaqs.

 

Q. A husband writes in a letter to his wife: “If this letter reaches you, then you are divorced.” He then destroys the letter. Is the Talaaq valid?
A. Talaaq will become effective only after the wife receives the letter. If he destroys the letter before she receives it, Talaaq will not take place.

 

Q. A man says in anger to his wife: 'Search for another husband'. Is this statement Talaaq? He says that he had no intention of Talaaq.
A. If he had no intention of Talaaq, then no Talaaq came into effect.

 

Q. A woman said to her married sister: 'It is better be married to another man.' The husband in anger said to his wife: 'In that case find another husband for yourself.' Is this statement Talaaq? If yes, what type of Talaaq? The husband says that he had no intention of Talaaq. He made this statement in anger to rebuff the drivel and shameless remark of his sister-in-law. A Mufti says that it is one Talaaq BaaBaain, and the marriage has ended regardless of the husband's intention.
A. The Mufti has erred. In an ambiguous statement, niyyat (intention) is the determinant. If the husband says that he had no intention of Talaaq, then Talaaq did not come into effect. The Nikah remains valid and intact. The sister-in-law acted with extreme immodesty and ignorance.

 

Q. Some scholars say that Talaaq without witnesses is not valid. I am in a dilemma on this issue.

A. Only a deviated moron will contend that witnesses are a requisite for the validity of Talaaq. The fellows are not scholars. They are juhhaal (morons). The validity of Talaaq is not reliant on witnesses. Witnesses are necessary for Nikah, not for Talaaq. Talaaq is valid without witnesses.

 

Q. Please explain the procedure of Tafweedh (delegation) with regards to divorce.
A. Tafweedhut Talaaq means the delegation of the right to issue Talaaq. The husband delegates the right of Talaaq to another person who may, at any time in future, issue the Talaaq. Once this right has been delegated, it cannot be revoked or cancelled. The adoption of the libertine western culture has drastically disturbed the Islamic system of marriage. Even in the Muslim community, the sanctity of the marriage bond has been eliminated. Marriage- breakdown are daily and common occurrences. A serious consequence of many marital breakdowns is the malicious attitude of recalcitrant husbands who refuse to maintain their wives while at the same time refusing to set the woman free by issuing Talaaq.

The Qur’aan commands: “(Either) retain (them) with goodness (according to the law of the Shariah), or set (them) free with kindness.” However, when a marriage breaks down, the reigning factors are malice and spite. The process of annulment is tedious and difficult. In view of these problems, it is wise that before marriage it be stipulated that the man should sign a Tafweedhut Talaaq form in which the right of Talaaq could be delegated to a senior male member of her family. In the event the marriage collapses, there will be no problem for the wife if she decides to opt out. When a foreigner is involved, then it is almost Waajib nowadays to insist that he signs a Tafweedhut Talaaq form. Many women have been deserted by their foreign husbands who are not traceable. This makes the annulment process extremely difficult. Tafweedhut Talaaq forms are available from The Majlis.

 

Q. A woman who has embraced Islam has no Muslim male guardian. Before marrying, she wants the man to sign a Tafweedhut Talaaq form. Who should represent her in this matter?

A. A woman may have the right of Talaaq delegated to herself. If there is no Muslim male available, then she should write her own name in the Tafweedhut Talaaq document. When the occasion occurs, then she can opt out of the Nikah by pronouncing: “I pronounce one Talaaq Baa-in on myself.” The only reason why a male is advised is because women lack patience and react quickly in an emotional state. Afterwards they regret and cry to no avail. In Talaaq matters, one should be extremely cautious.

 

Q. If a husband delegates the right of issuing to his wife to someone else, does he still retain the right to issue Talaaq?
A. Whilst it is permissible for a husband to delegate the right of Talaaq to another person, such delegation does not cancel his right of Talaaq. At any time he issues Talaaq it will be valid.

 

Q. If a man delegates authority to someone to issue Talaaq to his wife at any time in the future on the demand of the wife, can the husband cancel this right?

A. When the right of issuing Talaaq is given by tafweedh (delegating authority), it cannot be cancelled. The person will enjoy the right to issue Talaaq for as long as he/she has not issued Talaaq. On the other hand, the husband can cancel taukeel (appointing an agent to issue Talaaq) at any time. He can terminate the wikaalat (agency).

 

Q. Ten years ago when I was married, the Mahr-e-Faatimi was arranged. No amount was fixed. Only Mahr-e-Faatimi was mentioned. My husband did not pay the Mahr cash. Now that we are divorced he wants to pay the value of Mahr-e-Faatimi of ten years ago. What is the ruling of the Shariah?
A. Mahr-e-Faatimi is 1.75 kg silver or its price. He has to give you 1.75 kg of silver or its equivalent in cash which is the price of silver today, not the price ten years ago. Currently Mahr-e-Faatimi is approximately R16,000.

 

Q. Is it permissible for a non-Muslim judge to adjudicate on Muslim personal law issues such as Talaaq, Faskh, maintenance, etc.?
A. According to the Shariah (i.e. Qur’aan and Sunnah) a non-Muslim judge/court has no wilaayat (jurisdiction) over a Muslim. The decrees issued by a non-Muslim judge or by even a Muslim judge in a secular court have no Shar’i validity. Decrees on Talaaq, Faskh, maintenance and other issues issued by a non-Muslim judge are not valid.

 

Q. A Mufti says that a divorce decreed by a non-Muslim secular court is a valid Talaaq if the husband had made the application for dissolution of the marriage. Is this view in conformity with the Shariah?

A. The Mufti Sahib is in glaring error. The divorce decree of a non- Muslim court is directed at the civil contract, not at the Nikah. In fact, any court judge will confirm that his verdict has no relationship with the Nikah. It concerns solely the termination of the secular civil contract. Furthermore, the judicial decrees of a non-Muslim judge or a secular Muslim judge have no validity in the Shariah. The non-Muslim court has no wilaayat (jurisdiction) over a Muslim. The erroneous rationale of the Mufti Sahib is that the husband appoints the judge to be his wakeel (agent) to administer Talaaq on his behalf in terms of his instructions. This is palpably fallacious. A court judge is not the wakeel (agent) of any of the parties whose case he has to adjudicate. There is no legal system which accepts the ludicrous idea of a court judge being the agent of any of the disputants in front of him. The Mufti Sahib has not applied his mind in this matter.

 

Q. In Pakistan the High Court has ruled that the husband does not have the absolute right and power of issuing divorce to his wife. The judge said that if the husband does not issue Talaaq during a tuhr (clean period) in which sexual relations did not take place, and if the Talaaq is not issued in the presence of two witnesses, then it is not valid. Please comment.

A. The judge who issued the haraam and baatil decree is a moron. He is a zindeeq. His baatil decree renders him a murtad. The jaahil does not know whether he is coming or going. It is indeed surprising that a chap who is unable to distinguish right from left is a high court judge. His stupid decree is ludicrous and laughable – laughable because every ignoramus in the street understands the gross stupidity of the secular judge who is a confirmed jaahil in terms of the Shariah. The ludicrous degree emanating from a court of kufr has absolutely no impact on the Shariahs ruling. The Talaaq remains valid. The stupid decree issued by the moron cannever abrogate the fourteen century Law of the Shariah. Regardless of the Shar’i violation which a husband may commit in his procedure of administering Talaaq, the Talaaq will be valid and effective although the husband will be sinful for having adopted the incorrect method for administration of Talaaq. The validity of Talaaq does not require witnesses as Nikah does. The judge is plain stupid hence his disgorgement of dr ivel . Al though Talaaq should be issued during a Tuhr in which sexual relations does not take place, it is not a condition for the validity of Talaaq. Any misguided Muslim who follows the haraam and baatil ruling of the moron, zindeeq, murtad judge will be in flagrant violation of the Shariah of Allah Ta’ala.

 

Q. Is there a basis in the Shariah to make it compulsory for a man to get consent from a Cabinet Minister of a non-Muslim government, or a non-Muslim court and from the husband’s first wife to marry a second wife?
A. There is absolutely no basis in the Shariah for a man to acquire the consent of any one of these entities if he wishes to marry a second or a third or a fourth wife. It is a man’s inherent Islamic right to marry a second wife. In terms of the Shariah he does not require the consent of even any Muslim authority in a Muslim country governed by the Shariah. The stipulation of any such consent will be an unlawful accretion and interference with the Law of the Shariah.

 

Q. Is there a basis in the Shariah for a husband who pronounces Talaaq Baain to obtain the approval of a non-Muslim court declaring the Talaaq to be valid?
A. There is absolutely no basis for this. The Talaaq Baa-in comes into effect immediately the husband pronounces it. The Nikah is immediately and irrevocably terminated with the utterance of one Talaaq Baa-in. Neither is the approval of a non-Muslim Court or of a Muslim Court necessary for the validity of the Talaaq, nor can the disapproval of any court invalidate the Talaaq issued by the husband.

 

Q. 20 years ago a man divorced his wife in court, but never gave her Talaaq. Only the civil marriage was cancelled. They lived separately since the past 20 years. The man has now died. What is the ruling of the Shariah?
A. The court divorce was not a valid Talaaq. The Nikah therefore remained intact. The wife has to be in Iddat for a period of four months and ten days. She will inherit in the estate of her husband despite the separation of 20 years.

 

Q. Islamically my husband has divorced me. My iddat has expired. However, the court ‘divorce’ has not yet been finalized. I want to get married immediately, but someone says that the Nikah will not be valid as long as the court divorce is not finalized. Is this correct?
A. The court ‘marriage’ has no validity in the Shariah. Thus even if the court papers are not finalized, you may marry. The person has misinformed you in this regard. The only thing that you will not be able to do before the court ‘divorce’ is to register your new marriage legally. But as far as the Shariah is concerned you can get married regardless of the court ‘divorce’ not being finalized.

 

Q. Please let me know what is the process when the wife wants divorce and the husband refuses?
A. If the wife has no valid Islamic (Shariah) grounds for divorce, then it is haraam for her to ask her husband to divorce her. Such a woman will be deprived of even the fragrance of Jannat. However, if she has a valid reason, then she may ask her husband to divorce her. If he refuses, she may tempt him with a sum of money to divorce her. This is called Khula’ which is a mutual agreement between the husband and wife. It cannot be unilaterally imposed on any of the parties. If he still refuses, then she should apply to the local Ulama in her town for annulment of the Nikah. The Ulama will or should then investigate her case. After following the due procedure of the Shariah, if they find valid grounds, they will annul the marriage. But, if the wife has no valid Shar’i grounds, the marriage cannot be annulled.

 

Q. Please explain briefly Fasaaq and khulla.
A. The word is Faskh which means annulment. The other word is Khulah, not khulla. (1) Faskh of a marriage can be granted if the husband fails to fulfil the rights of the Nikah such as providing support, separate home and conjugal rights to his wife. When a wife wants her marriage to be annulled, she has to submit an application to the Ulama body stating the reasons. The Ulama will then fix a date for the hearing. Both parties have to attend. If the husband does not attend , the marriage will be annulled in his absence. If he attends and if it transpires that he is guilty but he promises to reform himself and fulfil his wife’s rights, then the marriage will not, and cannot be annulled. But, if he refuses to conform, the marriage will be annulled. A marriage cannot be annulled without a hearing attended by both parties. (2) Khulah is a mutual agreement by the husband and wife to dissolve the marriage in consideration of a payment which the wife will make to the husband. If there is no compatibility between husband and wife, and she wants a divorce but the husband refuses, then she could induce him to issue Talaaq in lieu of a monetary payment. A Khulah is valid only if the husband agrees. (3) The above is the ruling of the Shariah. However, nowadays there are many frauds – such sheikhs and maulanas who sell the Deen for money or they fall into the snare of a cunning woman who cries on their shoulders pouring out lies about her husband.. Without following the procedures of the Shariah they summarily issue the woman with a letter of annulment without even having heard the side of the husband. Such ‘annulments’ are not valid. The Nikah remains intact. Nevertheless, the woman regards her Nikah as terminated and gets ‘married’ to another man. In this way she spends her life in an adulterous relationship, and begets illegitimate offspring while labouring under the false impression that she is validly married.

 

Q. A husband went missing for a number of years. A year after his marriage was annulled, he appeared. Meanwhile his wife had married another man. What is the position in this scenario?
A. If the first husband who had gone missing returns, then the marriage to the second ‘husband’ will automatically terminate. The second man will not remain her husband since her true husband has arrived. She will remain the wife of her first husband. However, the first husband may not have conjugal relations with her until the expiry of Iddat. Since she had relations with the second husband, she has to observe Iddat.

 

Q: Please could you explain how Khula’ works?
A: Khula’ is a mutual contract between husband and wife, which secures for the wife a divorce in lieu of a monetary payment. Regarding Khula’, there exists a great deal of misunderstanding due to ignorance. Modernists, having acquired a smattering of defective knowledge which leaves them with the understanding that they are ‘experts’ on ‘Islamic law’, peddle the idea that the wife has a right to impose Khula’ on her husband. This conception of Khula’ is utterly baseless. Khula’ cannot be imposed on any of the spouses. It is a purely voluntary contract.

In Khula’ the wife offers the husband a sum of money to gain her freedom by way of Talaaq. Spiteful husbands who maltreat their wives, generally refuse to issue Talaaq. Such husbands could be induced by wives to set them free in lieu of a monetary payment. Since the husband in such a case is devoid of honour and piety, he may accept the offer and issue Talaaq. However, if he refuses, Khula’ cannot be imposed on him. An imposition by a tribunal or council of theologians or by any committee of ulama is not Khula’. Such an imposition on the man is not annulment of the marriage.

When the husband agrees to the wife’s proposal of Khula’, the contract has to be finalised in that very same session. If any of the spouses remains silent or walks out, then returns with his/her agreement, it will not be binding on the other spouse. The contract will have to be renewed with proposal and acceptance. On finalisation of the agreement, it is incumbent on the wife to pay the amount agreed on. The husband will be obliged to issue Talaaq only if the wife makes payment.

When payment has been made, one Talaaq Baa-in comes into effect. The Nikah is terminated and the woman is free to marry another man after expiry of the Talaaq Iddat which is a period of three haidhs (menses). Despite finalisation of Khula’ and separation, the couple can still reconcile and have a fresh Nikah performed. It is not necessary for the woman to first marry another man and be divorced after consummation of the Nikah. This rule applies only in the event of three Talaaqs having been issued.

Although the Shariah has instituted the provision of Khula’, from the Islamic moral perspective it is honourable and expected of the husband to acquit himself with dignity, kindness and understanding. Instead of Khula’, he should agree to issue Talaaq if the marriage has irretrievably broken down. If all hope of living correctly like Muslim husband and wife has evaporated, the husband should act in accordance with the Qur’aanic instruction: “Keep (wives) honourably (and kindly) or set (them) free with kindness.” It is dishonourable and far below the dignity of a Muslim husband to demand monetary benefit in exchange for Talaaq from a woman whose body and service he had made lawful for his desires in the Name of Allah Azza Wa Jal. End the sad chapter of life honourably, amicably and with justice.
Close Answer

 

Q. What is the procedure if there is a just cause for the wife to end the marriage but the husband refuses to let the wife go?
A. Muta-annit is a recalcitrant husband. He maliciously denies the marital rights of his wife. He neither supports her financially no fulfils her conjugal rights. Despite his deliberate denial of the rights of his wife, he spitefully refuses to issue Talaaq, his intention being only to ‘punish’ her— to make her suffer. Such recalcitrant husbands labour under the misconception of them having the right and power of causing unjustified takleef (hardship) to their wives by withholding Talaaq. The Shariah dispels this fallacious notion. It provides for the suffering woman a way out of the imposed malicious hardship.

When a wife finds herself in such a situation, and she has resolved to have the Nikah terminated, the first step is for her to endeavour to settle the issue by way of Khula’. Khula’ is a mutual agreement between husband and wife by which she pays him a sum of money in exchange for Talaaq. If the man accepts her Khula’ proposal, it is the best and swiftest option in the circumstances. However, if the husband refuses the Khula’ proposal, it cannot be imposed on him. But, the wife has the option of proceeding with the attempt to gain her release from the Nikah. She is required to submit an application for annulment of her Nikah to the Shar’i Committee (Panchaayat), stating the grounds for her application.

The Shar’i Committee has to incumbently institute thorough investigations. Testimony of the husband will be heard. He will be summoned to appear at the hearing on a fixed date. If he refuses to respond to the summons or fails to make an appearance for no valid reason or he reacts indifferently, the task of the Shar’i Committee is rendered easier. A husband who believes that refusal to co-operate with the Shar’i Committee will block the application dwells in a misunderstanding which will prejudice only himself. The Committee will proceed with its deliberations and if satisfied with the claim of the woman, the Nikah will be forthwith annulled in the absence of the recalcitrant man. It is, therefore, in the interests of the husband to fully co-operate with the Shar’i Committee.

If he appears at the hearing and the truth of the woman’s claim is confirmed by investigation and Shar’i evidence, the husband will be ordered to either honour and fulfil the rights of his wife or issue Talaaq. If he refuses, the Shar’i Committee will annul the marriage. After observing Iddat of Talaaq, she will be free to marry another man.
Close Answer

 

Q. If there are no Ulama in a place, how can an oppressed wife be freed from the Nikah of a tyrant who has abandoned and deserted her? The woman has no one to support her and she is also in need of a husband. What relief does she have in such a situation?
Three senior members of the community should form a committee to look into the matter. The woman should lodge with the committee an application for dissolution of her Nikah. The committee of layman should communicate with an experienced Aalim of uprighteous character. He will advise the committee of the Shar’i procedure to adopt. After following the correct procedure, the committee can annul the marriage. There is no incumbent need for the committee members to be Ulama. In fact, every city/town should institute such committees which will act with the guidance of an Aalim who need not be a member of the committee. Hitherto people have the impression that only the Ulama can annul marriages. This is incorrect. Uprighteous and experienced laymen who strictly follow the Shar’i procedure of their Math-hab, are also empowered to dissolve marriages. Establishment of such committees will ease the problem for the Ulama as well as for the people involved.

 

Q. My husband refused to give me Talaaq, so I sent my uncle with my jewellery to arrange khulah with him. My uncle informed him that since he refuses to issue Talaaq, the jewellery is offered to him for khulah. He accepted the jewellery which was handed over to him. Now after some months he claims that I am still in his Nikah because he did not understand the meaning of khulah. What is the Shariah’s ruling?
A. He ‘did not understand the meaning of khulah’ but understood taking the jewellery. His lie and stunt should be rejected. Your uncle had mentioned to your ex-husband that the jewellery is given in lieu of the Khulah. He then accepted the jewellery. The Khulah thus is valid and final. If your ex-husband now claims that he did not understand the meaning of khulah, then it matters not. The Khulah is final. The only way that a reconciliation can take place is if you agree to enter into a fresh Nikah with him.

 

Q. Can a wife demand khula’? Is khula’ a right which a wife can unilaterally invoke?
A. Khula’ is not a unilateral right, neither of the wife nor of the husband. It is a mutual contract whereby the wife pays a sum of money to secure her release from her marriage. When the husband refuses to issue Talaaq to a wife who does not want to live with him, she may induce him to give her talaaq in lieu of a sum of money. If he accepts, the contract will be binding. She will have to pay the agreed amount and he will have to issue Talaaq. The idea that khula’ is a right which vests in the wife is absolutely baseless.

 

Q. A husband refuses to fulfil the rights of his wife. He refuses to provide a separate home for her. She is compelled to live with her in-laws who mentally and emotionally abuse her. She has absolutely no privacy. After suffering much abuse, she left for her parents home. The husband refuses to issue Talaaq and she seeks annulment of the nikah. Does she have valid grounds for annulment?
A. Provision of a separate home is Waajib. The husband has to make arrangements for a separate home for her. As long as he refuses to make this arrangement she will be entitled to live with her parents. In this case the Shariah does not regard her as naashizah (disobedient). She is also entitled to maintenance inspite of being at her parents home. Her presence at her parents home is with justification, hence the husband has to maintain her financially. If he refuses to fulfil her huqooq, she can apply for annulment. She has valid grounds. The husband’s refusal to issue Talaaq cannot prevent the process of Faskh (annulment) taking place.

Husbands should take note that acting spitefully will not assist them in any way nor solve problems. Some husbands labour under the misconception that they have the final say in these matters. They deny the wife’s huqooq and at the same time refuse to issue Talaaq. Some do so by deliberate design to punish the woman and make her languish in misery. This zulm (injustice) can be quickly rectified by an Ulama council or by any committee of responsible community elders acting under the direction of an Aalim.

 

Q. A wife has estranged herself from her husband. She went to stay with her parents. The husband wants her to return and is willing to support her and uphold her Islamic rights, but she is demanding Talaaq. If she goes to the Jamiat for a khulah, will it be valid for them to grant her a khulah? How does this process work?

A. As long as the husband supports his wife and has made available to her a home in which she has her privacy, the Jamiat will not be able to annul the marriage. Khulah cannot be issued or granted by the Jamiat or by anyone else. Khulah is a mutual agreement between husband and wife to terminate the Nikah in lieu of a sum of money which the wife will pay to the husband. The amount is the Mehr which the husband had given her. If the wife wants to end the marriage and the husband refuses, but she offers him monetary inducement, and he accepts, then the marriage will come to an end. But, if he rejects her khulah proposal, the issue then closes and she remains in his Nikah.

Furthermore, if the wife goes to the Jamiat seeking Faskh (an annulment), the Jamiat is under obligation to inform the husband and summon him to a hearing where both he and his wife will be present. At the hearing if the wife’s grounds for her application of annulment are found to be valid, the Jamiat will ask the husband to pledge that he will in future fulfil her rights and support her, etc. If the husband agrees and promises to fulfil her rights, the matter ends there and no annulment can be granted. However, if the husband refuses to make the requisite pledge, the Jamiat will then ask him to issue one Talaaq Baain. If he refuses, then only will the Jamiat annul the Nikah. Also remember, that if the Jamiat summonss the husband to attend the hearing and he refuses, the Jamiat will have the power to annul the Nikah in his absence. Therefore, it is vital that the husband attends the hearing. He will not be able to impede or thwart the annulment process by absenting himself.

 

Q. I have a problem. About seven years ago my husband disappeared. Only Allah knows if he is alive or dead. There has been no sign of him or any clue as to what has happened to him. According to western law he is now declared dead. According to Islam can I sit in iddat and remarry? I have small children and I want to make a home for them.
A. Your problem can be solved. You should refer your matter to your local Ulama council. They will investigate your case and will declare your husband dead after following the necessary procedure of the Shariah. You will then be able to get married again.

 

Q. Does the Shariah stipulate any particular sum to be paid to the husband when Khula’ takes place?
A. The Shariah does not stipulate any amount. However, it is Makrooh for the husband to demand more than the Mehr amount which he had paid to his wife. (Khula’ is a contract between husband and wife whereby she purchases her divorce from her husband who otherwise refuses to issue Talaaq. It is a voluntary agreement which cannot be imposed on any of the spouses.)

 

Q. What is the position of the wife of a totally insane man. He became insane and inspite of medical treatment remains insane. What is the Shariah’s procedure for this wife?
A. If the husband is truly insane and the wife desires to have the marriage annulled, she should approach the Ulama committee in her town and apply for annulment. After proper investigation, and following the Shariah’s procedure, the marriage will be annulled. After annulment, she has to wait for expiry of the iddat before she can marry another man.

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