Fatwa ID: 01328

Answered by Mufti Mohammed Tosir Miah

Question:

Approx 3 months back due to circumstances, I said one talaq to my wife. Thereafter, I followed the rujuu process and lived as husband and wife. Recently on a day of unfortunate circumstances I said to my wife that "I am giving you my first Talaq". Thereafter on the next I said "Now I am giving you my second Talaq". Now my wife insists that we are divorced as 3 talaqs have been pronounced. 

I want your opinion/decison in thsi reagrd with following points in consideration: 

1. There was no intention on my part to giver her three talaqs and finally divorce and terminate the marriage. 2. I was absolutely not aware that the talaq given several months back, after which I did rujuu, will still be counted as is evident from my subsequent statement. I never imagined in my life that it will be interpreted as having given three Talaqs.   Please advise in view of the act that I never had such intention.

Answer:

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

Nikah (marriage) is an instinctive need of a man and woman, and a means for the preservation of mankind. Moreover, nikah is a desired act and its lifelong fulfilment and safekeeping have been stressed upon.

The purpose of marriage in Islam is that a man and woman build a home, live together in love, kindness and happiness. (Marriage- A form of Ibaadah p.19)

Unfortunately, in some cases, after a nikah takes place a person is deprived of the comforts and benefits of it. Instead, of the marriage being one of love and affection, hatred and animosity appear. Due to this strained and difficult relationship a desperate need is created for separation between the spouses. Islam has permitted the concept of talaq for such delicate and trying occasions so that each of the spouses may go their own ways and pass their lives in peace elsewhere. (The complete system of divorce-p27)

In the eyes of Allah , talaq is the most detestable of all the lawful acts.

It is reported from Ibn-Umar that the Prophet said: “In the sight of Allah , the worst of all halal (lawful) acts is talaq.” (Sunan Ibn Majah p146 v.1)

The permissibility of issuing the talaq has been granted only in very extreme and severe cases because it causes separation and break up between two families. Furthermore, for future generations it often leaves a bitter taste for all to bear. (The complete system of Divorce-p31)

There are three types of talaq and the most severe is the issuing of three talaqs. This irrevocably severs the marriage, whether such talaq was issued over a period of time, in one sitting or in one breath.

Giving three talaqs in one sitting is unlawful, however, it is effective. Please carefully understand this distinction. The nature of an act in being both a crime and a sin does not stop it from taking effect.

As an example, killing unjustly is both a crime and a sin in character. Therefore, a person who is shot with a bullet gets killed immediately. His consequential death does not wait to discover if the bullet was fired legally or illegally.

Similarly, all sins and crimes are hemmed in by the same situation that their being a sin and crime does not stop them from taking effect.

In accordance with this principle, if a person gives his wife three talaqs, no doubt, he becomes the cause of anger for the Prophet (the Hadith I’ll mention later), but, inspite of all this, it should bring forth the same effects as that of a permissible talaq, that is, three talaqs become effective. (Maariful Quran p.583 v.1)

There are numerous Ahadeeth where the Prophet in spite of showing anger against the giving of three talaqs, enforced the three talaqs.

1. Imam Nasaai reports on the authority of Mahmud Ibn-Labid that “the Prophet was told about a man who had divorced his wife by pronouncing three talaqs simultaneously. Prophet rose in anger and said: “What is this game being played with Allah’s book while I am present amongst you?” In the meantime a man stood up and said “Ya RassulAllah (Prophet of Allah) should I not kill him? (Nasaai P98v2)

Even though the Prophet expressed extreme anger on the giving of three talaqs at one sitting, it is not reported anywhere that he ruled the mans talaq to be revocable (i.e. to let the man have his wife back).

2.      Imam Bukhari reports on the authority of Aaisha that “a man pronounced three talaqs to his wife. When the woman married elsewhere, the other husband also divorced her. The Prophet was asked, “Is this women lawful?” He said, “Not unless the other husband has had intimacy with her as was done by the first husband.” (Bukhari P8 v2)

The words of this Hadith indicate that three talaqs were given at the same time.Furthermore commentaries on Hadiths such as Fathul-Bari, Ummatul Qari, Al-Qastalani, confirm this interpretation of the Hadith i.e. that three talaqs were given at the same time and unless there occurs marital intimacy with the second husband, she will not become lawful for the first husband.

 3.      Imam Bukhari reports of Uwaymir who did lian (sworn allegation of adultery) against his wife in the presence of the Prophet .Following that he said: “I shall be telling a lie if I retained her”. Then he gave her three talaqs before the Prophet could give his verdict. (Bukhari P8 v2)

Abu Dharr on the authority of Sahl-Ibn –Sa’ad reports the incident with the following words: “then The Prophet enforced it and that which happened in the presence of the Prophet became established as sunnah.”

It is proven through full clarity that the Prophet enforced the three simultaneously pronounced talaqs of Uwaymir . Furthermore it is not reported anywhere that the Prophet ruled it to be one talaq, and, therefore, allowed the husband to retain his wife.

4.      Hasan ibn Ali said (in a long Hadith, after divorcing his wife): “Had I not heard my father (Ali) narrating from my grandfather the Prophet 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 al-Bayhaqi)

To sum up despite the fact that three talaqs invited the anger of the Prophet there consequences in any event was that all three talaqs were ruled effective. (Extracted from Maariful-Qur’an p583-586 v1)

Regarding your question, when a divorce is given and then later revoked, it is still considered as one divorce being used from the set of three divorces a husband has over the wife. Furthermore, when the word divorce or talaq is said to the wife, having an intention is not a condition for it to be effected. The reason for this that the words “divorce” and “talaq” are clear words of divorce which is not dependant upon intention. (Bahrur Raaiq p.257 v.3)  

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.