Talaq to a woman in her menses

CategoriesDivorce [521]

Fatwa ID: 01252

Answered by Mufti Mohammed Tosir Miah

Question:

I am a Sunni Muslim (Hanfi) i live in sweden for studies and my wife lives in Pakistan with my 2 children. on sunday 30th May, i had a fight with my wife on telephone and she abused me and i came in extreme anger and said talaq for 2 times (in one phone call, i knew what i was saying as i did not loose my sences completely but very much angry). i have given her one talaq 2 years before in the same siuation (in extreme anger). moreover she is having menses these days (i confirmed this from my sister in law that my wife is in mensturation cycle these days). now please tell me has talaq occured while she was in menses?

Answer:

Bismillah

 

 

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

If a person pronounced three divorces at once in any way then three divorces will occur. This can be proven through the following Hadeeths:

Sayyida A’isha raḍyAllāhu 'anha (may Allāh be pleased with her) reports that: A man pronounced three divorces to his wife. She (after her iddah) married another man. The Messenger of Allah was asked whether it was lawful for her to return to the first husband. He said: “Not until they have sexual intercourse.” (Sahih Bukhari)

Sayyiduna Hasan ibn Ali raḍyAllāhu 'anhu (may Allāh be pleased with him) said (in a long Hadith, after divorcing his wife): “Had I not heard my father (Ali) narrating from my grandfather The Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) say: “when a man pronounces three divorces, then his wife will no longer remain lawful for him, unless she marries another man”, I would have taken my wife back.” (Sunan Baihaqi)

The jurists have categorised anger into three stages:

1. The initial stage of anger where ones mind is sound and fully in control of what one is saying. In such a case talaq will occur without any doubt.
2. Extreme anger to the point of insanity, where one is unaware where he is or what he is saying. In such a case talaq will not occur.
3. Finally that stage which is between the above two stages in that one was extremely angry but not to the point of insanity, and was aware of what one was saying. In this case also, talaq will also occur. (Raddul Muhtar p.452 v. 4)

Normally it can be said that the anger does not reach the level of insanity as mentioned above therefore divorce is valid and will take place.

However in circumstances where it is claimed that the anger was such that a person lost his sanity, then in those occasion it is necessary that the person has previous medical history of insanity or has been diagnosed by the doctor of being of unstable mind, or has two male witness or one male and two female witnesses testifying that in fact on that occasion the person had in deed lost his sanity, then the divorce will not take effect. (Ibid)

Finally, with regards to divorce in the state of haidh or nifas, the same way three talaqs in one sitting is unlawful and sinful but if he does so, the talaq is valid and comes into effect, the same can be said regarding talaq in the state of haidh or nifas. (Fatawa Hindiyyah p.349 v.1)

Anas ibn Sirin raḥimahā Allāh (may Allāh have mercy upon her) she was menstruating. Saaiduna Umar Radiallahu Anhu mentioned it to the Prophet of Allah Sallallahu Alahi Wasalam and he said: “Take her back.” Anas asked, “Is the divorce counted?” Ibn Umar said, “Yes, of course.” (Sahih al-Bukhari)

In conclusion if your does not have a previous medical condition or havs not been certified by a medical practitioner as someone when losing his anger does not know what he is saying or doing then three talaqs will take place and he has know become unlawful for you. (Fatawa Hindiyyah p.526 v.1)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.

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