Talaq in the future tense

CategoriesDivorce [525]

Me and a guy got a secret nikkah done.  After that, he went to England for madressa to study and I stayed back in Canada. Over time we spoke online and phone. Before nikkah, I used to have a friend (male) but we stopped speaking after, but he would still try to contact me once in awhile.  In January/February he told me that if I ever spoke to that male friend again, he would end this marriage (divorce me). His exact words were “I will divorce you if you speak to him”. I told him to take his kasam back and he did because he took the kasam in anger and realized after he cooled out that it was unwise to say that.  Then a few months after that, around April/may or June 2009 that male friend contacted me but it was related to some work. We spoke and my husband got really mad and accused me of things which were not true. We fought a lot for one week and I asked for a divorce and he called from England and as he began to say (I divorce you), I threw the phone away. I didn’t hear it but he said it two times. After that, we stayed as husband and wife, he came home and we had intercourse and told our parents about the nikkah. They came to terms with it, and since then we have been staying as husband and wife. He is back in England now, and it has been almost a year since the incident happened. Obviously we realize how stupid and lightly we took this matter. Today after so long, he called me and said that he believes we are divorced. And now for us to be together, I have to get nikkah done with someone else and have sexual intercourse and divorce. I want to know, if we are married or not. Pleas get back to me as soon as possible. Jazakallah 

 

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

Answer

 

There are two points, which we need to look at with regards to the aforementioned scenario.

 

The first point is that your husband said, “If you talk to him again I will divorce you”. The key word here is “I will”. This denotes future tense. Hence, the meaning of the sentence is that if you were to speak to this person again I will divorce you in the future. 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 the husband had said “If you talk to him again 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, if the husband gave his wife two clear (sareeh) talaqs, the wife does not become unlawful for the husband.  The husband can take her back if he 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)

 

If the husband gave his wife two kinaayah or ambiguous talaqs then the only way they can get back together again is by remarrying.

 

The conclusion we can come to is that the wife’s nikah with her husband is not permanently broken. If he gave her two clear talaqs he can take her back by doing rujuu.  If he gave her two ambiguous talaqs then they can get back together again by redoing the nikah.

 

Only Allah Knows Best

 

Mohammed Tosir Miah

Darul Ifta Birmingham.

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