Fatwa ID: 01723
Answered by Mufti Mohammed Tosir Miah
Question:
A person said to his wife if you call the police you are divorced or I will divorce you, if the wife calls the police will Talaq (divorce) take place?
If the husband divorces the wife, what does the husband have to give to the wife; does he have to give the following back to the wife?
1-Mahar (dowry) 2- The furniture (Sofas etc) which was given at the time of wedding, what else? What the wife would give to the husband when they separate?
Answer:
Taleeq is an Arabic word meaning ‘having connection of one thing with another’, in a sense, if one thing is said to have a connection with another thing then dependence of one must be a basis for the existence of another. For example, if a husband said to his wife ‘If you enter the house, you are divorced’. In this example the husband is making the existence of divorce dependant on her entering the house. (Hidayah p.385 v.2)
According to Imam Abu Hanifah (RA), all types of taleeq are valid and if the condition is found the divorce will occur. (Dars Tirmizi p.491 v.3)
Regarding your situation, if your wife phoned the police more or less straightaway after you warned her of a divorce then one divorce will occur. If you however, warned her of giving her a divorce in the future, i.e. “I will give you a divorce” then divorce will not occur. The Islamic ruling regarding divorce being uttered in the future tense is that divorce does not occur. They are merely a promise or a warning and promises and warnings do not effect divorce. (Badaaius Sanaai p.210 v.2)
In the situation where the divorce did take place, as it was a revocable divorce you can still get back together again by revoking the divorce before the ending of the three menstrual periods (if your wife menstruates) or three months. (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)
If you do not want to revoke the divorce, then if you have not paid the dowry yet, you will be obliged to pay it at the time of the divorce. (Mukhtasar Quduuri p.136)
Regarding which gifts or household items which should be returned back at the time of divorce, it should firstly be understood that to ask for a gift back is impermissible in the following seven situations;
1. From relatives.
2. Husband and wife relationship.
3. To take or accept a reward after accepting the gift.
4. The gift has left the ownership of the person whom the gift was given to.
5. If the giver or the person the gift was given to passed away.
6. If the gift has perished.
7. If the gift has increased in nature, such as a piece of cloth and the person has dyed it. (Al Ikhtiyar p.51 v.3)
However, if the giver and person whom the gift was given to are happy to return it back then it will be permissible. Similarly, if the Qadhi (Islamic judge) was to pass a judgement for the gift to be returned then it will be permissible to return the gift back to the giver. (Hidayah p.290 v.3)
With regards to your question, the aforementioned situation depends on urf (custom) and on what the husband intended. If a gift was given by the husband to the wife with the intention of making her the owner (tamleek) then it not necessary for the wife to return the gift at the time of divorce. If the jewellery was given with a clear statement that it must be returned back to the husband then that jewellery would have to be returned by the wife to the husband. As mentioned above if she wants to return the gift back out of her own accord then it is permissible. (Fatawa Rahimiyah p.236 v.8)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham
