Fatwa ID: 02603

Answered by: Maulana Mujahid Hussain

Question

My husband is 45yrs of age, we both are doctors and have 2 kids. He is a
patient of high blood pressure and also has a psychiatric problem (panic disorder) diagnosed by doctors for last few years. Under the effect of his medical conditions, he can't control himself at the time of some tension. Whenever he becomes angry he shows extremely aggressive attitude & loses control over himself, he also has a very unstable mental condition which is a symptom of his medical condition. I am now used to his attitude considering his medical problem.

Once he was upset with some matter at home and he started blaming and cursing me for that. Usually, I used to keep quiet. But on that day, I also became angry replied him rudely. This triggered his anger more & he then started abusing me, I reacted to his behaviour so he started beating me out of intense anger. Due to which I taunted him impudently. He felt too much insult.

This situation took him to height of his anger he became almost mad with anger and told me " you are divorced". I became extremely upset listening to these words as I was not expecting it in our relation. We are not an ideal couple but are strongly committed to be in marital relation. So I left the house.

Later on when his anger settled down he became very embarrassed & upset. He felt sorry and deep grief for what has happened. He apologise to me and told me that his intention was not to divorce me.

I want to ask does this divorce valid.
I was also having menses at that time.

Answer

Assalamualaykum

Before I answer your question, I would like to point out that most divorces are issued at the time of anger. We get a lot of questions about the husband giving divorce whilst he was angry and it's very rare to hear of a couple divorcing when they are calm, relaxed and in their own element.

The ruling of divorce at the time of anger is as follows:

As long as a person remains conscious of his decisions and his anger has not reached a point where he has lost control of his speech and action, then the divorce will occur. For clarification of this statement let me mention a few scenarios;

• If a person is angry, yet he is aware of his words and actions, he has the ability to control what he says and does, yet anger gets the better of him, then such a person’s utterance of divorce will lead to one occurring.
• If his anger is such that he loses control of his ability to make the conscious decision, most of his speech is slurred, anger takes over as the driver and his conscious is a far distanced second to such an extent he loses self-control of his words and actions, then a divorce will not occur.

Likewise, If his anger is such that he cannot tell what he is saying, doing or where he is, then likewise a divorce will not occur.[1]

As Allah (s.w.t) knows situations similar to your may arise, he has been merciful to us and given us three chances till a divorce becomes irrevocable.

Normally If the husband was to divorce once then he has a right to take his wife back without a second marriage. He may simply, addressing his wife, say I take you back. Likewise the same may be done if he issued a second divorce. However after the third divorce, he cannot take her back unless she marries another person than for some reason, without prior planning, that marriage ends in divorce.

Allah (s.w.t.) Says

الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ

The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. ( Surah Al-Baqarah verse 229)

As far as the ruling of issuing divorce whilst the wife is in her menses goes then the divorce still occurs even though the issuing of divorce during menses is Haram. Also, the husband is required to take the wife back and after the menses of the following month is over he may decide to issue another divorce if he so wishes.

عَنِ ابْنِ عُمَرَ، أَنَّهُ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ فِي عَهْدِ رَسُولِ اللَّهِ صلى الله عليه وسلم فَسَأَلَ عُمَرُ بْنُ الْخَطَّابِ رَسُولَ اللَّهِ صلى الله عليه وسلم عَنْ ذَلِكَ فَقَالَ لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ 

Ibn 'Umar (Allah be pleased with them) reported that he divorced his wife while she was menstruating during the lifetime of Allah's Messenger. Umar b. Khattab asked Allah's Messenger about it, whereupon Allah's Messenger (ﷺ) said  Command him ('Abdullah b. 'Umar) to take her back (and keep her) and pronounce divorce when she is purified and she again enters the period of menstruation and she is again purified (after passing the period of menses), and then if he so desires he may keep her and if he desires to divorce her (finally) before touching her (without having an intercourse with her), for that is the period of waiting ('ldda) which God, the Exalted and Glorious, has commanded for the divorce of women.[2]

Some evidence from Hadees include:

 خولة بنت ثعلبة -امرأة أوس بن الصامت- قالت: والله فيَّ وفي أوس بن صامت أنزل الله -عز وجل- صدر سورة المجادلة. قالت: كنت عنده وكان شيخاً كبيراً، قد ساء خلقه وضجِر. قالت: فدخل علي يوماً، فراجعته بشيء، فغضب، فقال: أنت علي كظهر أمي. وفيه أمره صلى الله عليه وسلم: «بعتق رقبة، ثم بصيام شهرين متتابعين، ثم بإطعام ستين مسكيناً» 

Khawla Bint Thalabah – wife of Aws ibn silent – she said: God, regarding me andAws ibn Saamit, send down the beginning of Surah Mujadalah. She said: I was with him and he was a great old man, his character was bad and he was unstable and discontent. She said: One day he entered upon me and I answered him back so he became angry, he said: You are on the back of my mother. The Prophet (peace and blessings of Allaah be upon him) ordered him to free a slave. If he could not then to fast for two consecutive months if he could not do that either then to feed sixty poor people.[3]

Only Allah Knows best.

Written by Maulana Mujahid Hussain

Checked and approved by Mufti Tosir Miah 

Darul Ifta Birmingham