Fatwa ID: 08221

 

Answered by: Mawlana Abdurrahman Mohammad

Question:

Salaam,

I recently got my Nikāh done 2 months ago, and it was a secret marriage. No one knew about the marriage apart from the 2 witnesses. I’m a Muslim girl, and my family did not allow me to get married due to my studies. I’ve found out that a marriage without a Wali is invalid.

However, due to an argument, my husband divorced me through a text message, saying Talāq 3 times in a row, and I was on my period. I’ve talked to him about it, and he said the Talāq still occurred, but I don’t think that’s true because I’ve found out that you are not allowed to divorce a woman during her periods or after having intercourse. Apart from that, if the Nikāh was not valid, was all of this nothing? Was the Talāq also invalid?

بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم

In the name of Allah, the Most Gracious, the Most Merciful

Answer:

Marriage Without a Wali in The Quran and Hadith
Allah (SWT) says in the Quran:

“When you divorce women and they have reached the end of their waiting period, do not ˹let the guardians˺ prevent them from re-marrying their ex-husbands if they come to an honourable agreement.” (Quran, Surah Al-Baqarah, Ayah 231)

The Prophet (ﷺ) had said:

“A woman who has been previously married (Thayyib) has more right to her person than her guardian. And a virgin should also be consulted, and her silence implies her consent.” (Sahih al-Bukhari)

This Hadith indicates that a woman has significant authority over her marriage, especially when previously married. While the Quran emphasizes the guardians’ roles in protecting their women, it does not mandate their absolute control in all cases, particularly when it comes to marriage.

In the Quran, the verb Nikāh is conjugated with a plural female pronoun, attributing the action of marriage to women. If Allah (SWT) had intended to attribute the act of marriage solely to guardians (Walis), He would have used the term Inkāh (to marry off) instead. This linguistic choice implies that women have the authority to initiate marriage themselves, not exclusively through their Wali. Additionally, the Hadith stating that a woman has more right over herself in marriage reinforces the understanding that she can enter into a Nikāh without requiring the consent of her guardian.

Marriage Without a Wali in The Hanafi Madhab
According to the Hanafi Madhhab, it is valid for a free, mature, and sane woman to marry herself off without a Wali if the necessary conditions of Nikāh are met, such as the offer and acceptance (Ījāb and Qabōl) and the presence of two witnesses. While quoting Imam Haskafi’s Ad-Durr Al-Mukhtār, Ibn Abideen mentions in Ar-Radd Al-Muhtar:

“The marriage of a free, adult woman is valid without the consent of a guardian.” (Al-Durr al-Mukhtar)

Based on this ruling, your Nikāh was valid, and all the rulings of marriage, including divorce and inheritance, apply to your relationship.

“By execution, he meant the validity and the arrangement of rulings, such as divorce, inheritance, and others.”

Validity of Talāq Over Text
Since your marriage was valid, the rulings of Talāq also applied. Divorce given in writing, including via text message, is effective. Scholars agree that when a divorce is written and the intent is clear, it takes effect immediately, whether verbal or written.

“And if it [the writing of Talāq] is marked/written, the divorce takes place whether he intended it or not… and she is obligated to observe the Iddah [waiting period] from the time of writing.”

Innovative Divorce (Talāq Bid‘ah): Three Divorces at Once or Divorce in Menstruation
The manner in which the divorce occurred (i.e., three Talāqs issued consecutively in one sitting and during menstruation) was against the Sunnah and is termed Talāq Bid‘ah (innovative divorce). This type of divorce is extremely disliked in Islam and is necessary to revoke if possible. Despite its improper method, it is valid and causes Talāq to occur.

“[Innovative divorce] (As for the innovative [divorce]), it is of two types: an innovative one with a cause related to the number and an innovative one with a cause related to the time. (The one) that relates to the number is to divorce her three times during one period of purity or with separate words … (And the innovative [divorce]) in terms of time is that he divorces the woman with whom he has consummated the marriage while she is menstruating or during a period of purity in which he had intercourse with her, and the divorce was valid. It is recommended for him to take her back, and the most correct opinion is that taking her back is necessary [Wājib].”

If a husband divorces his wife during her menstruation cycle, the divorce takes effect immediately. However, it is necessary (Wājib) for him to revoke it, wait until she becomes clean, allow her to start another menstrual cycle, and then wait for her to become clean again before issuing another divorce if he still wishes to do so. Despite the improper timing, the divorce given during menstruation is valid and counts towards the total number of divorces. This particular scenario was found during the life of the Prophet (ﷺ).

“Ibn `Umar bin Al-Khattab divorced his wife during her menses. Allah’s Messenger (ﷺ) ordered him to take her back till she became clean, and when she got another period while she was with him, she should wait till she became clean again and only then, if he wanted to divorce her, he could do so before having sexual relations with her.” (Sahih Muslim)

The Implications of Three Talāq
Allah (SWT) says in the Quran:

“Divorce may be retracted twice, then the husband must retain ˹his wife˺ with honour or separate ˹from her˺ with grace … So if a husband divorces his wife ˹three times˺, then it is not lawful for him to remarry her until after she has married another man and then is divorced.” (Quran, Surah Al-Baqarah, Ayah 229)

If a wife is divorced with a revocable Talāq, the husband can take her back at any time before her ‘Iddah period is completed. If the ‘Iddah ends and fewer than three divorces have been issued in the marriage, the couple may remarry through Tajdīd An-Nikāh (renewal of the marriage contract) without the need for Halālah (the wife marrying another man). However, if three divorces have been issued, as in your case, it becomes impermissible for the couple to reconcile unless the wife marries another man, consummates that marriage, and is subsequently divorced.

“And the permissibility of re-marriage is removed when three [Talāq] have completed.” (Quran, Surah Al-Baqarah, Ayah 230)

Hope this answers the question.

Only Allah (عز و جل) knows best.

Written by Mawlana Abdurrahman Mohammad
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham

 

References:

 

[1] وَإِذَا طَلَّقْتُمُ ٱلنِّسَآءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَن يَنكِحْنَ أَزْوَٰجَهُنَّ إِذَا تَرَٰضَوْا۟ بَيْنَهُم بِٱلْمَعْرُوفِ

(Surah Al-Baqarah, 2:232)

[2] الأَيِّمُ أَحَقُّ بِنَفْسِهَا مِنْ وَلِيِّهَا

(Sahih Muslim 1421b, Book 16, Hadith 79)

[3] (وهو) أي الولي (شرط) صحة (نكاح صغير ومجنون ورقيق) لا مكلفة (فنفذ نكاح حرة مكلفة بلا) رضا (ولي)

(Durr Al-Mukhtār, pg. 182, Dār Al-Kutub Al-’Ilmiyyah)

 

[4] (وَهُوَ) أَيْ الْوَلِيُّ (شَرْطُ) صِحَّةِ (نِكَاحِ صَغِيرٍ وَمَجْنُونٍ وَرَقِيقٍ) لَا مُكَلَّفَةٍ (فَنَفَذَ نِكَاحُ حُرَّةٍ مُكَلَّفَةٍ … بِلَا) رِضَا (وَلِيٍّ)

(Radd Al-Muhtār, vol. 3, pg. 55-56, Darul Fikr Beirut)

[5] (قَوْلُهُ فَنَفَذَ إلَخْ) أَرَادَ بِالنَّفَاذِ الصِّحَّةَ وَتَرَتُّبَ الْأَحْكَامِ مِنْ طَلَاقٍ وَتَوَارُثٍ وَغَيْرِهِمَا

(Radd Al-Muhtār, vol. 3, pg. 55, Darul Fikr Beirut)

[6] وَإِنْ كَانَتْ مَرْسُومَةً يَقَعُ الطَّلَاقُ نَوَى أَوْ لَمْ يَنْوِ ثُمَّ الْمَرْسُومَةُ لَا تَخْلُو أَمَّا إنْ أَرْسَلَ الطَّلَاقَ بِأَنْ كَتَبَ أَمَّا بَعْدُ فَأَنْت طَالِقٌ فَكُلَّمَا كَتَبَ هَذَا يَقَعُ الطَّلَاقُ وَتَلْزَمُهَا الْعِدَّةُ مِنْ وَقْتِ الْكِتَابَةِ.

(Al-Fatāwā Al-Hindiyya, vol. 1, pg. 378, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)

[7] (وَأَمَّا الْبِدْعِيُّ) فَنَوْعَانِ بِدْعِيٌّ لِمَعْنًى يَعُودُ إلَى الْعَدَدِ وَبِدْعِيٌّ لِمَعْنًى يَعُودُ إلَى الْوَقْتِ (فَاَلَّذِي) يَعُودُ إلَى الْعَدَدِ أَنْ يُطَلِّقَهَا ثَلَاثًا فِي طُهْرٍ وَاحِدٍ أَوْ بِكَلِمَاتٍ مُتَفَرِّقَةٍ أَوْ يَجْمَعُ بَيْنَ التَّطْلِيقَتَيْنِ فِي طُهْرٍ وَاحِدٍ بِكَلِمَةٍ وَاحِدَةٍ أَوْ بِكَلِمَتَيْنِ مُتَفَرِّقَتَيْنِ فَإِذَا فَعَلَ ذَلِكَ وَقَعَ الطَّلَاقُ وَكَانَ عَاصِيًا. (وَالْبِدْعِيُّ) مِنْ حَيْثُ الْوَقْتُ أَنْ يُطَلِّقَ الْمَدْخُولَ بِهَا وَهِيَ مِنْ ذَوَاتِ الْأَقْرَاءِ فِي حَالَةِ الْحَيْضِ أَوْ فِي طُهْرٍ جَامَعَهَا فِيهِ وَكَانَ الطَّلَاقُ وَاقِعًا وَيُسْتَحَبُّ لَهُ أَنْ يُرَاجِعَهَا وَالْأَصَحُّ أَنَّ الرَّجْعَةَ وَاجِبَةٌ هَكَذَا فِي الْكَافِي

(Al-Fatāwā Al-Hindiyya, vol. 1, pg. 349, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)

[8] أَنَّ ابْنَ عُمَرَ بْنِ الْخَطَّابِ ـ رضى الله عنهما ـ طَلَّقَ امْرَأَةً لَهُ وَهْىَ حَائِضٌ تَطْلِيقَةً وَاحِدَةً، فَأَمَرَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم أَنْ يُرَاجِعَهَا، ثُمَّ يُمْسِكَهَا حَتَّى تَطْهُرَ، ثُمَّ تَحِيضَ عِنْدَهُ حَيْضَةً أُخْرَى، ثُمَّ يُمْهِلَهَا حَتَّى تَطْهُرَ مِنْ حَيْضِهَا، فَإِنْ أَرَادَ أَنْ يُطَلِّقَهَا فَلْيُطَلِّقْهَا حِينَ تَطْهُرُ مِنْ قَبْلِ أَنْ يُجَامِعَهَا، فَتِلْكَ الْعِدَّةُ الَّتِي أَمَرَ اللَّهُ أَنْ تُطَلَّقَ لَهَا النِّسَاءُ‏.

(Sahih al-Bukhari 5332, Book 68, Hadith 77)

[9] ٱلطَّلَـٰقُ مَرَّتَانِ ۖ فَإِمْسَاكٌۢ بِمَعْرُوفٍ أَوْ تَسْرِيحٌۢ بِإِحْسَـٰنٍۢ … فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُۥ مِنۢ بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُۥ

(Surah Al-Baqarah, 2:228-229)

[10] وَزَوَالُ حِلِّ الْمُنَاكَحَةِ مَتَى تَمَّ ثَلَاثًا

(Al-Fatāwā Al-Hindiyya, vol. 1, pg. 348, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)

 

Only Allah (عز و جل) knows best.

Written by Mawlana Abdurrahman Mohammad

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham