Husband divorcing an adulterous wife

Fatwa ID: 01657

Answered by Mufti Mohammed Tosir Miah

Question:

This woman committed adultery and her husband caught her in the act. He wrote on a piece of paper that he is giving her a divorce. Can he take her back since she committed adultery and her punishment is getting stoned to death. To continue to give Talaq does he have to write it in the paper again?

 Answer:

Bismillah

In Islam a verbal declaration of divorce is not necessary in determining the validity of a divorce.

Imam Kasani raḥimahullāh (may Allāh have mercy upon him) has said:

“Similarly issuing a divorce verbally is not a condition. Hence divorce will be effected with clear and unambiguous writing.” (Badai-al-Sanai P.100 v.3)

Therefore, from the aforementioned scenario we can deduce that if the husband gave his wife one divorce on a piece of paper then one divorce will occur.

Regarding the second part of your question, technically or in other words it is permissible for the husband to revoke the divorce and take his wife back, even though she has been caught committing adultery. However, it is preferable that the husband does not revoke the divorce and take his wife back.

Saaiduna Ibn Abbas raḍyAllāhu 'anhu (may Allāh be pleased with him) narrates that a man came to the Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) and said that his wife “does not move anyone’s hand from her” (indicating to that whenever someone wants to commit adultery with her she commits it). The Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) replied, “Divorce her.” Then the man said, “I love her”, upon which the Prophet of Allah Sallallahu Alahi Wasalam said, “Then keep her”. (Mishkatul Masabeeh p.287 v.2)

The scholars of hadith have said that it is preferable to divorce an adulterous woman. However, if the husband loves her and she has repented from her actions and is willing to change then it is permissible to keep her. (Mazahirul Haq p.179 v.4)

Finally, if the husband wants to give a second or even a third divorce to his wife, he can give it to her in writing or verbally.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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