A follow up question on connecting the talaq with marriage

CategoriesMarriage [604]

When I called you on your cell, you gave an example that if a person says “Talaaq” then Talaaq will occur to his wife even if he didn’t specify her name.
How about if person has two wives namely ABC & XYZ. He fought very badly with ABC & came out of house & was thinking about her & incidents that took place between him & ABC & then utters “Talaaq” . Now you know & I am sure you will comply with me that in Shariah Talaaq will  only occur to ABC due to circumstances & he intended ABC not XYZ.

You told me on phone that circumstance & intention do not play any role. How about above example, don’t you think it resembles my case too?

Your kind response is awaited deliberately.

Thanks & Best Regards

In the name of Allah, the most Beneficent, the most Merciful.

Answer

After consultation with my respected teachers of Darul Uloom, Bury (May Allah (SWA) preserve them and grant them barakah in their knowledge) they said that the initial fatwa I gave with regards to Talaq occurring as soon as you marry any woman whether it is your ex wife or someone else applies qada’an (legally binding) and not diyanatan (religiously obligatory).

Qada’an is any ruling issued by a Qadhi (judge), non-compliance of which would lead to legal repercussions. Diyanatan is that ruling of the Shariah which, even if no judge has ruled as such, a person would be held responsible for implementing/refraining from on the Day of Judgment by Allah (SWA).

Furthermore, the principle I mentioned with the reference from Mullah Jeewans (RA) Nurul Anwar (p.280) that when you are connecting the Talaq with the performance of marriage (Taleeq) then as soon as you get married talaq will occur, irrespective of whether your marry your ex wife or another woman also applies qada’an (legally binding) and not diyanatan (religiously obligatory).

From the aforementioned discussion we can derive that if such a case comes to a scholar or Mufti, he will be compelled to give the fatwa on the apparent facts of the case and on the apparent meaning of words without looking at the intention of the individual. It is like a person gives talaq to his wife and then says I did not mean to say that. The scholar or Mufti judging on the apparent facts will declare that talaq has occurred without looking athe individual’s intention.

With regards to your question, that from the statement you intended issuing talaq only to you’re ex wife and not to any one else, will only apply diyanatan i.e. between yourself and Allah (SWA) and not Qada’an.

The conclusion of this fatwa is that if you intended to give talaq to your ex wife only then when you marry another woman talaq would not occur.  However, as soon as this case is brought to the attention of a scholar or Mufti he will judge on the facts of the case and will declare that talaq has occurred.

Finally, if you did marry another woman then after one talaq is effected you can do rujuu of the talaq and take her back without the need of redoing the marriage or halalah.

The jurists have listed two ways of effecting rujuu, one by speech and the other by action. It is more praiseworthy to make rujuu by speech rather than action. (Raddul Muhtar p.24 v.5)

To effect a rujuu by speech the husband can say, “I have taken you back”, or “I have retained you”. Rujuu will be effected whether the wife is in front of him or not, however where the wife is not present it is best to have two. (Raddul Muhtar p.25 v.5)

The jurists have placed the condition of there being lust and desire on the part of either the husband or wife if rujuu is initiated by action. If there is no desire then rujuu is not affected. Therefore, to touch the wife, have intercourse with her, to kiss her including her face, forehead and lips and also to touch her with or without an intervening cloth where the heat of the body is felt with desire, will effect rujuu. (Ibid)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.

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