Written divorce

CategoriesDivorce [521]

Fatwa ID: 01280

Answered by Mufti Mohammed Tosir Miah

Question:

A husband issued three talaqs to his wife in writting whilst the wife was present before him and then gave her the paper, without actually uttering the words of talaaq. The husband's sister-in-law was also present. The husband claims he was emotionally and mentally pressurised to do so by his sister-in-law who told him his wife was not fit for him and that he was not in a sound state of mind at the time . All the while, the husband was crying and whenever he hesitated in writing, the sister-in-law forced him to write. He also claims she was reading some kind of invocation upon him to make him do as she ordered. Please clarify whether in this situation the divorce has taken place or not.

Answer:

Bismillah

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

There are two types of force:

  1. Muljee: Muljee is a situation where someone threatens a man to divorce his wife or otherwise he will kill him etc…
  2. Ghair Muljee: Ghair Muljee is a situation where someone threatens a man to divorce his wife or otherwise he will beat him up etc…

(Raddul Muhtar p.177 v.9)

(The difference is that in ghair muljee he is not threatened with his life.)

Furthermore, the jurists have added that if the individual who is being forced to divorce his wife is from a respectable background, then ghair muljee will be considered a sufficient enough force. If however, the individual is from a rough or aggressive background then muljee will be considered as a sufficient enough force.

(Raddul Muhtar p.178 v.9)

From the above information the Islamic ruling is that if someone is forced to divorce his wife in the aforementioned situations, then the divorce will be effective on the condition that he said it verbally.

The author of Durre Mukhtar, states: “The Talaq of every husband is effected, be he a slave or under duress.”

(Raddul Muhtar p.438 v.4)

However, if a man is forced to divorce his wife and he writes out a Talaq on paper and he even signs it or signs on a paper which has Talaq written on it from before, Talaq will not be effected.

(Raddul Muhtar p.440 v.4)

It should be borne in mind that situations such as being “emotionally forced” or being forced by someone without threat to ones life or the threat of being injured is not considered as being forced.

Know in regards to your question the pressure put on to your husband by your sister in law will not be considered as “force” according to the principles of the Hanafi Fiqh. However, as your husband had signed the divorce paper in your presence, divorce will not take place.

Allahmah Ibn Abedeen Shami [rahinahu], a famous Hanafi scholar has written in his book Raddul Muhtar that if a person is forced to divorce his wife and he divorces her with written words then the divorce will not occur as the written word is equivalent to verbal divorce where there is a need and there is no need here. (p.440 v.4)

Therefore, we can conclude that the divorce given to you by your husband by means of written words would not execute a valid divorce.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.

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