Divorce in the absence of wife

I would be grateful for your learned opinion and answer to this question. Several years ago a there was an argument between me and my wife. It resulted in her leaving the house without my permission and going to her parents' house. I became extremely angry at this and afterwards while I was alone by myself I think I uttered the words out loudly to myself, "$$%**$$ **&&%** Ami tore talaq dilam!", which means "$$%**$$ **&&%** I divorce you!" or "$$%**$$ *&&%**I have divorced you!" in Bengali.   My intention at that time was not to divorce her but to vent my anger. At that time I was under the impression that if she was not present in front of me and there were no witnesses present either then there would be no divorce. However, sometime ago I read in askimam.com that it was not necessary for the wife to be present for the divorce to be effective.   I am therefore really concerned whether a valid divorce has taken place. I would also like to let you know that in all honesty I cannot remember clearly whether I uttered those words loudly or just simply thought about uttering those words in my mind. I have thought hard about this and I think that there is a 50% possibility that I may have uttered those words loudly. Another important point is that I cannot remember how many times I had uttered those words (if indeed I had uttered them): it may have been once, twice, three times or even more.   A few days after this incident my wife returned to my house and we continued living together as man and wife, and I completely forgot about this incident until I read a fatwa in askimam.com which has made me worried that because of what had happened I may have divorced my wife. Please advise me about where I stand regarding this important issue.

In the name of Allah, Most Compassionate, Most Merciful.

 

The sentence “Ami tore talaq dilam” is clear and plain words in regards to divorce. These types of word effect divorce whether one intends divorce by them or not. (Hidayah, V2, P359, Raddul Muhtaar, V2, P465)

 

In regards to witnesses, Mutarrif ibn Abdullah reports: Imran ibn Husayn was asked about a person who divorces his wife, and then has intercourse with her, but he does not call any witness to her divorce nor to her restoration. He said: You divorced against the sunnah and took her back against the sunnah. Call someone to bear witness to her divorce, and to her return in marriage, and do not repeat it. (Abu Dawood: 896)

 

From the above it is clear that although it is recommended to appoint witnesses, as this will help resolve any disputes etc, it is not necessary for witnesses to be present for divorce to come into effect. Therefore in your situation if the above words were uttered then divorce would have taken place.

In regards to the doubt you have whether such words were in fact uttered, the juristic principle in this matter is that when: “one has doubt that if a certain act was done or not then in that situation it will be regarded as not done” (Ashbah wan Nadhair, P29)

It can be deduced from this principle that the doubt and uncertainty of issuing a divorce will not invalidate the marriage. “When one doubts whether one issued a divorce or not. In such a case, divorce will not come into effect. (Ashbah wan Nadhair, P30)

Therefore, if you were doubtful in issuing a divorce, then divorce will not have taken place and whether it was one, two or three will not be considered. However if it was established that in fact you did utter and pronounce these words and the doubt is as to how many times you pronounced it then the amount should be based on the minimum. It is stated in  Durrul Mukhtar that: “If one has a doubt in pronouncing one divorce or more, he should base his verdict on the minimum.” (Vol 2, P492)

 

However if both sides are equal and one cannot come to a conclusive decision then in such a case, although it is permissible in taking the minimum number, it is religiously more precautious to take the more strict option (of taking the higher number), for it is a question of lawful marriage and unlawful fornication. (Raddul Muhtar, Vol 2, P492)

 

And Allah knows best

Sayeedur Rahman

 

Darul Ifta, Birmingham

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