Fatwa ID: 01715
Answered by Mufti Mohammed Tosir Miah
3 years ago I remember I was on the phone to my wife. We not living together for a month or so. I was heavily intoxicated on cocaine and was paranoid, angry etc.
she made me believe someone was with her etc and did not give me straight forward answers.
I asked her if she wanted me to divorce her and she said yes. I thought she is angry and I replied saying "okay I'll divorce you" (meaning future tense) and after I end up saying divorce you divorce you.
I had no intention to give three talaqs as the first thing i said was "I'll divorce you" meaning later some time some day but not that i wanted to ever. but soon after i end up saying divorce you divorce you. is it counted?
I did not know what i was saying when i said divorce u divorce u and I wasn't with it but clearly remember saying I'LL DIVORCE U AND NOT I DIVORCE U…..WITH no intention.
There are two points, which we need to look at with regards to the aforementioned scenario.
The first point is when you said, “Ok I'll divorce you”. The key word here is “I'll”. This denotes future tense. The Islamic ruling regarding talaq being uttered in the future tense is that talaq does not occur. They are merely a promise or a warning and promises and warnings do not effect talaq. (Badaaius Sanaai p.210 v.2)
If you had said “I divorce you” then one talaq would occur the next time she spoke to this man. (Hidayah p.385 v.2)
With regards to the second point, you thereafter gave your wife two clear (sareeh) talaqs. Your wife does not become unlawful for you and you can take her back if you revokes the divorce before the ending of the three menstrual periods (if she still menstruates) or three months. The choice of taking the wife back lasts only during the iddah period. At the expiry of this time, the rujuu also expires. (Bahrur Raaiq p.50 v.4)
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)
The conclusion we can come to is that your nikah with your wife is not permanently broken and you can still revoke the talaaq.
Finally, being in the state of intoxication does not alter ruling in terms of the Talaaq being done according to the Hanafi Fiqh.
Ibn Abideen Shami has said, “The ruling is that if a person is intoxicated by using unlawful means, then he is not absolved of responsibility, and the rulings will apply to him.”
In another place he says, “If his sanity is affected by a headache or with any lawful thing, then talaq in that state will not be effected.” (Raddul Muhtar p.444 v.4)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham.