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Tuesday, May 19, 2009

Important Rules on Talaaq (Divorce)

This article contains some important information regarding talaaq or divorce. There is much ignorance nowadays among both men and women regarding the Shar’ee Laws on divorce. It is, therefore, imperative that we take note of and understand the laws mentioned herein. All husbands should acquaint themselves with these rules, so as to avoid unnecessary strife and embarrassment among spouses.

Talaaq uttered in anger is valid. Our husbands and wives wrongly believe that if the husband issues talaaq in anger then it does not fall. This is totally wrong.
Some husbands believe that if the wife angers them, they can issue a talaaq to ‘frighten’ or ‘scare’ her. This belief too, is wholly incorrect. Such a talaaq is valid.

Three talaaq issued in one sentence is valid and breaks the nikah irrevocably. Here we encounter serious problems in our marriages. Husbands, out of anger or spite, or both blurt out three talaaq at one time. This is called a mugallazha talaaq and breaks the nikah in such a manner that the spouses cannot marry each other again. We urgently appeal to all husbands to exercise extreme caution.

It must be remembered that to utter three talaaq in one sentence is sinful and contrary to sunnah, but the nikah will definitely break. The Scholars of all four math-habs are unanimous on this. There is no difference of opinion on this matter. Some husbands utter three talaaq in one go, without thinking, then run to the Ulema for help. By then it’s too late. Then crying over spilt milk will be of no avail. The damage is done and the wife is forever haraam upon the husband. After having committed this colossal blunder, the foolish husband goes from the frying pan into the fire: he goes back to the wife and resumes living with her as if nothing has happened. Sometimes he might contrive to obtain a ruling from some obscure Moulana or Imam saying that only one talaaq has fallen and not three. The implications of this are very serious. On the basis of this obscure fatwa the man begins to live in zina, and children born from such a relationship are illegitimate.

Another bad scenario is the contriving of halaala by couples who are divorced in the above manner, where the wife is married off to another man, who sleeps with her, then divorces her (with prior arrangement) and after her iddat she comes back to her previous husband. Remember that such a halaala is sinful and haraam. If halaala goes through a natural process there is no sin. However in which ever way halaala took place, the husband will be allowed to re-marry the woman he had divorced thrice.
Talaaq via mobile text messages is becoming common. The law on this is that if a wife receives an sms of talaaq from her husband, she has to verify from him that a) did he type the message himself or did he dictate it to someone, and b) did he have an intention to divorce. If the answer to both these questions is ‘yes’ then indeed the talaaq is valid and binding. If the husband had written three talaaq then three talaaq will fall. So again, husbands should not wildly send off emails of talaaq to scare the wife. The talaaq will be effective.

Today many of our sisters are divorced but they do not sit out the iddat. Some of them are working so they continue going to work in spite of it being haraam for them to leave home during the iddat. Working is no excuse. In the first instance a woman should not even be at work. Secondly, the husband has to provide all her expenses during the iddat, so there should be no reason for her to work.

SOME AHADEETH OF RASOOLULLAH (sallallahu alaihi wasallam) ON TALAAQ “The most detested of halaal things by Allah is divorce.” (Hakim, Abu Dawood)
“Marry, but do not divorce (without a real need), for Allah does not love such men and women who taste a lot (i.e. they marry and divorce often).” (Tibraani)
“Women should not be divorced except for lewdness.” (Tibraani)
“Marry, but do not divorce, for the Throne of Allah shudders over talaaq.” (Ibni Adee)
“Those women who contrive to get talaaq, or force their husbands (by disobedience) to divorce them, are hypocrites (munafiqs).” (Nasaa-ee)
“If a woman seeks talaaq from her husband without a pressing need then the fragrance of Jannat becomes haraam upon her. (Ahmad, Haakim)
Another hadith has it that the most beloved to Iblees from among his army of devils are those who create enmity and division between husband and wife. (Muslim, Ahmad)

Divorce in the Shariah is only there to fulfill a need, and that need is to terminate the nikah when it (the marriage) has irretrievably broken down and there is no means of conciliation, and this after all efforts to bring the parties together again have failed.

The husband has been made the owner of three talaaq. But this does not mean that he must issue three and only then will the nikah end. Only one talaaq is enough to do the job. Since the purpose of talaaq is to fulfill a need as a last resort, the husband only has to pronounce talaaq once, and the nikah will be over. It is a totally false belief that only when three talaaq are issued does the nikah break.
If the husband has issued one or two talaaq, he has the right to take the wife back without making a new nikah while she is still in the iddat, irrespective of whether she wants to come back or not. In this particular case the wife has no say at all.
For a divorce to be effective it is not necessary that it must be in writing. A verbal talaaq, be it one, two, or three is effective and enough to sever the bond of nikah. It is wrong to believe that only a written talaaq is valid.

Similarly, the husband does not need to have the Imam who made his nikah in his presence when divorcing his wife.

There is no need for witnesses when issuing talaaq. When the husband utters a divorce, even if no witnesses are present, such a divorce is valid and effective according to Shariah.

If man lives away from his wife for a number of years, this does not automatically bring about talaaq. Talaaq only occurs when the husband issues it. Regardless of how long the husband stays away from the wife, no talaaq will fall. However, it is a major sin for a man to leave his wife and stay out of the home for long periods without supporting her or releasing her from nikah.

The husband may take her back in the iddat by saying verbally: “I have taken my wife back” or by a sexual advance such as kissing or sexual intercourse, etc. It is preferable, not compulsory to say he is taking her back in front of two witnesses. But after the expiry of the iddat, (when 1 or 2 talaaq were given) the husband and wife can only get back together again by making a new nikah with a new dowry. And this is if the wife agrees to come back. If the woman does not agree to come back after the iddat, no one can force her.

NOTE: In the Shaafi math-hab raj’at or revoking the talaaq only takes place verbally, not through sexual intercourse.

Fasakh means annulment. This can only be done on the basis of valid Shar’ee grounds. Our sisters must note that a wife cannot apply for an annulment just because she is unhappy with the husband or because she is tired of staying in the marriage. The grounds for seeking an annulment or fasakh are: Refusal by the husband to support the wife when he is by the means; continuous physical abuse; continuous mental and verbal abuse that has placed unbearable strain on the nikah; desertion by the husband who is then not traceable or refuses to respond to communication.
There is a lengthy process for fasakh, so wives should not think they can obtain a fasakh overnight. Organisations who grant fasakh at the drop of a hat are doing our couples a great disservice.