Confusion on whether Talaq has occurred or not

Fatwa ID: 02139

Answered by Mufti Abdullah al-Ma’mun

Question:

Asalam-u-Alaikum, I found your website online. I follow Hanafi-ahle-sunnat barelwi. Kindly ask someone knowledgeable about our fiqh in regards to the following situation and let me know if talaq (and how many talaq) has taken place and what we can do if we want to resume marital relationship. Please let me know as soon as you can.

  1. Our marriage took place in 2004 in Pakistan.
  2. We have one son about year old.
  3. We’ve been having small arguments or misunderstandings for the past 4 years. Both of us live in Canada now.
  4. Three years ago during some argument at London airport (she was insisting on visiting a store at the airport) I said to my wife \"if  you kept on insisting like this now you will be divorced"\ I believed at that time she kept quiet and did not argue further and we forgot about this incident. Both of us recall that incident now after recent talaq confusion between us.
  5. For the last two or three years we have often discussed between two of us that \"maybe we should separate since we often fight and it’s not a good thing\"
  6. Three weeks ago we were fighting verbally and I told her \"by the way today I have used that word finally so in our marriage one chance is has been used\". In Urdu this is what I said \" aaj mein nay whu lafz istimal kar diya hei lehaza humari shadi say eik chance istamal ho chuka hei\" I told her next day that I was lying as I never used/said that word to myself about you.
  7. In the same week during another argument I said \"I will finish this marriage right now and I grabbed my phone and I was thinking of typing SMS and send it to her even though she was sitting with me\" but I never typed anything or sent any text message to her.
  8. Three days ago we had another argument and I said we should finish this marriage forever as it’s not going anywhere so I said to her I will find out what’s the legal requirement and we will do it through local law of Canada instead of sharia way. I believe both of us agreed to find out legal information and pursue it further, both of us wanted to finish/settle this quickly and we heard doing through lawyers will
     take lot of money and be a lengthy process. From the internet we learnt that if we make a separation agreement dated one year old we can file for divorce in court quickly (as Canadian law requires one year separation) so we drafted separation agreement signed it 2 days ago and went to court and \"Filed a petition for divorce\". Separation agreement was signed by both of us but petition of divorce was only signed by me (when I was signing petition of divorce my wife said to me that you are aware this means divorce and I said to her it’s not true because I am asking the court to grant the divorce) Court people said it will take 6-8 weeks and then judge will either call me (husband) for a hearing or I can provide written answer as why I wanted divorce and if judge is satisfied he will grant a divorce. When we went to court they said I must give copy \"Notice/petition of divorce\" to my wife and she has the opportunity to file an answer or chose not to respond. But earliest it will take about three months to receive divorce judgement.
  9. Next day which was yesterday we both got really worried and went to court and said we do not want to pursue our case further so court office return me my marriage certificate from Pakistan. I was the one who filed for divorce my wife was \"respondent\" in the application/petition of divorce.

Now after reading on the Internet it appears that if we used the word divorce in joke or as lie for our wife divorce will take place, in one recent scenario as per point 6. When we were signing the separation agreement my intention was to get the divorce from court. My wife signed the separation agreement because I told her this way after divorce she will have sole custody (100%) of child under Canadian law, she wanted guarantee that me or my family members will not take away our son from her. In separation agreement all two of us are saying that we cannot live together so we are separating in eyes of law even though under Canadian law after signing separation agreement we are still married but living separately. But after signing the separation agreement I went to court asking for divorce based on the separation agreement.

I have not said that word myself yet but I have asked Canadian court to grant me the divorce. But next day when I went back to court I said I don't want divorce now so please discontinue my case and they accepted and dismissed case and returned me my marriage certificate. But once again when I went to court first time it was my clear intention that I want divorce through court. After consulting with some muftis we were told that only one divorce has taken place as I filled for the divorce in court.

After living 7 months together me and wife were fighting on something then I said to her that "I divorce you" I said this word only once but after talking to my wife I told her that it already happened twice and today I said this word again so this relationship is over and there is nothing left.  However, I was advised before that only one divorce took place because I never said this word and just filled the application for divorce to the court. After a day I and my wife said sorry to each other and we wish to continue this relationship.

I told her that only two divorces have taken place between us. Once clearly yesterday and once before when I signed the divorce application so now we just need a new nikah after her three months period of iddah and there is no need for halala. Please advise whether we still have one chance left as me and my wife are unsure whether the talaq has happened all three times as we do not want to commit any sin and we fear ALLAH. Also once we were looking at our nikah nama 2 years ago where the right given to wife for divorce was cancelled out my wife argued that she should have been given this right at the time of our marriage so I told her that I give her this right as of now and she accepted it. She told me that not in my presence after she had a fight with me she said not knowing at the time that she has been given this right she said in no one presence in anger that if I had the right to divorce I would divorce you, divorce you more than three times and now we are unsure if by her saying the word talaq towards me ends our marriage.

I and my wife have not developed any hatred for each other, its small misunderstanding or emotional immaturity. We know we can live together just need to develop more respect and tolerance for each other. But at the same time we don’t want to live life of sin. We heard about halala but apparently it does not sound nice thing. We feel it’s more like cheating Allah’s system. But please guide us, the two of us sincerely want to live together. We realize or fault. But at the same time please give your opinion justly not because we want to hear from you that maybe there is still a chance for us right now without a second marriage of her.

Answer:

Bismillah

Please note the following points:

  1. According to point number six in the above-mentioned question, if it is true that you did not use 'the word' then divorce was not initiated.
  2. Divorce does not occur if the husband and wife both sign a 'separation agreement'.
  3. Shari'ah has only allowed the husband to exercise the right of divorcing his wife. If he chooses to hand over this right to a third person, whether Muslim or non-Muslim, male or female and they go ahead and divorce the wife, this divorce is valid in Shari'ah. In your situation, based on your words “I am asking the court to grant the divorce” you chose to hand over this right to the court who said it will take six to eight weeks for the completion of the divorce process. However, as you intervened before the end of this time period and the court accepted and dismissed your case, no Talaq was initiated.
  4. Simply filing for a divorce to the court did not initiate Talaq. The court will have to go ahead with the proceedings and issue the Talaq which in your case, did not happen as it was dismissed.

(see Guidance on intricate contemporary matters v2 p22-23)

  1. Your wife’s statement “if I had the right to divorce I would divorce you, divorce you more than three times” does not initiate Talaq.

Hereunder note the points very carefully:

  1. Based on your statement “After living 7 months together me and wife were fighting on something then I said to her that "I divorce you" I said this word only once” one Talaq-e-Raj'ee (Revocable divorce) was initiated.

(see al-Ikhtiyaar li-Ta'leel al-Mukhtar v3 p165)

  1. Thereafter you state “I said this word only once but after talking to my wife I told her that it already happened twice and today I said this word again”. It is not clear to me which other two Talaqs you are referring to. After reading through your complete question it is apparent as I’ve pointed out that no other Talaqs were initiated prior to the one Talaq-e-Raj'ee mentioned in point six (of this answer) above.

Conclusion

After considering all the facts you have stated I can conclude that one Talaq-e-Raj'ee (Revocable divorce) was initiated. Hence, your wife’s Iddah period will be calculated from that very moment on that particular date. It will last for a time span of three menstrual periods. If this Talaq had occurred during her menses then the duration of her Iddah will still be three menstrual periods excluding the one in which she was divorced. You are free to resume your marriage without a need of a new nikah within this period. However if this period has ended you must renew the nikah in order to get back with your wife.

(see al-Ikhtiyaar li-Ta'leel al-Mukhtar v3 p181)

Only Allah Knows Best

Written by Mufti Abdullah al-Ma’mun

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham.

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