Fatwa ID: 02390
Answered by: Maulana Jamal Ahmed
Question:
Salam, I have been asking my husband for divorce for the last 3 years. We argue a lot, he gave me one talaq last year saying "you are divorced" but took me back before the iddah had passed.
Whenever I ask for divorce ( I asked more than 50 times), my husband gave me those answers: "go and apply for it", "go to the judge and tell them you want to be divorced", "go and apply for Khula", "inshallah I will divorce you once you are financially stable"( is it conditional divorce)?, and recently:
Me: "divorce me"
Husband:" I will not divorce you, but if you want to get divorce,go and
apply for it"
Me: ok, I divorce myself and it counts as one talaq.
Husband: " it doesn't count cos it has to go with my intention, and my
intention is to keep this marriage".
3 minutes later…
Me: "I want a divorce, I don't want to be your wife anymore"
Husband: " I told you go and divorce yourself cos I won't be responsible
of destroying family"
Me: "I divorce myself from you, I divorce myself". "You have to know my iddah started right now".
Husband:" no there was no divorce, you can ask an imam".
Please help me. 2 months passed since the last conversation and we are
together, but I cannot take it anymore.
Answer
بسم الله الرحمن الرحيم
Firstly, I would like to draw your attention to the fact that Talaq is not desirable in Islam. Thauban, May Allah be pleased with him says “The messenger of Allah, may the peace and blessings of Allah be upon him, said whichever woman asks her husband for a divorce without experiencing much difficulties, then the fragrance of Jannah will be prohibited for her.” Narrated by Ahmed, tirmizi, Abu dawud and ibn Majah. As quoted by Mishkat Hadith no. 3279, pg.601, vol.1, darul kutub al ilmiyah.
Mullah Ali Qari says that the phrase ‘much difficulties’ in the hadith means that she does not find herself in extreme difficulties which compels her to separate. This hadith is also found in Ibn hibban and Hakim. (Mirqat, pg. 2136, vol. 5)
Ibn Umar, may Allah be pleased with him, says that the prophet, may the peace and blessings of Allah be upon him, has said “The most hateful permissible thing in the sight of Allah is divorce." Narrated by Abu dawud as quoted by Mishkat, hadith no. 3280, pg.601, vol.1, darul kutub al ilmiyah.
The spouses should avoid divorce as much as possible. If they have difficulties and problems, they should be patient and forbearing. They have to try to work out their differences and seek help from their relatives, friends or professional counsellors
The factors which lead to talaq are ego, selfishness, stubbornness, over-protectiveness, getting one’s parents, brothers and sisters etc. involved in every little matter which happens between the spouses, and preferring them over one’s own spouse. We must get rid of all these traits and try to resolve the problems between the spouses.
If the spouses keep the following things in mind it will help them to reconcile and live in harmony. According to the instructionsof Quran and Sunnah the man is the head of the house who must provide food, clothes and shelter to his family and the wife must obey the husband in all permissible matters. The husband must treat his wife kindly and fairly. The spouses are like garments to each other, they protect and care for each other, they overlook each other’s mistakes and forgive them, and they conceal each other’s faults. They must respect each other’s in-laws. We should realize that everyone has faults therefore we should be patient and should not make rash decisions.
Now coming to your question, you asked if it is a conditional divorce when your husband said, “inshallah Iwill divorce you once you are financially stable", the answer is no it is not, it is a promise that he will do after you are financially stable. A conditional divorce is when the condition is found the talaq takes place automatically. For example if he said “if you enter the house you are divorced” then once you enter the house you will be divorced immediately.
However, when you asked him for a divorce and he replied: "I told you go and divorce yourself” then this is regarded as giving you the choice and authority to exercise divorce. Therefore if you replied by saying “I divorce myself” then whether you repeated the words more than once, this will count as one revocable talaq, unless the husband has made intention of more than one. Revocable talaq means that the husband can take the wife back without renewing the marriage contract if he does so before the iddah period passes.
In your case two talaq has taken place, once when he said “you are divorced” and once when he gave you the choice and you replied by saying “I divorce myself”.
٣٢٧٩ – ﻋﻦ ﺛﻮﺑﺎﻥ ﻗﺎﻝ: ﻗﺎﻝ ﺭﺳﻮﻝ ﺍﻟﻠﻪ – ﺻﻠﻰ ﺍﻟﻠﻪ ﻋﻠﻴﻪ ﻭﺳﻠﻢ -: «ﺃﻳﻤﺎ ﺍﻣﺮﺃﺓ ﺳﺄﻟﺖ ﺯﻭﺟﻬﺎ ﻃﻠﺎﻗﺎ ﻓﻲ ﻏﻴﺮ ﻣﺎ ﺑﺄﺱ ﻓﺤﺮﺍﻡ ﻋﻠﻴﻬﺎ ﺭﺍﺋﺤﺔ ﺍﻟﺠﻨﺔ» . ﺭﻭﺍﻩ ﺃﺣﻤﺪ ﻭﺍﻟﺘﺮﻣﺬﻱ ﻭﺃﺑﻮ ﺩﺍﻭﺩ ﻭﺍﺑﻦ ﻣﺎﺟﻪ ﻭﺍﻟﺪﺍﺭﻣﻲ.
٣٢٨٠ – ﻭﻋﻦ ﺍﺑﻦ ﻋﻤﺮ ﺃﻥ ﺍﻟﻨﺒﻲ – ﺻﻠﻰ ﺍﻟﻠﻪ ﻋﻠﻴﻪ ﻭﺳﻠﻢ – ﻗﺎﻝ: «ﺃﺑﻐﺾ ﺍﻟﺤﻠﺎﻝ ﺇﻟﻰ ﺍﻟﻠﻪ ﺍﻟﻄﻠﺎﻕ» . ﺭﻭﺍﻩ ﺃﺑﻮ ﺩﺍﻭﺩ.
Miskat, hadith no. 3279-3280, pg. 601, vol. 1, darulkutub Al ilmiyah
(ﻭﺇﺫﺍ ﺃﺿﺎﻓﻪ) ﺃﻱ ﺍﻟﻄﻠﺎﻕ (ﺇﻟﻰ) ﻭﺟﻮﺩ (ﺷﺮﻁ ﻭﻗﻊ ﻋﻘﻴﺐ) ﻭﺟﻮﺩ (ﺍﻟﺸﺮﻁ) ﻭﺫﻟﻚ (ﻣﺜﻞ ﺃﻥ ﻳﻘﻮﻝ ﻟﺎﻣﺮﺃﺗﻪ: ﺇﻥ ﺩﺧﻠﺖ ﺍﻟﺪﺍﺭ ﻓﺄﻧﺖ ﻃﺎﻟﻖ)
Al lubab fi sharhilkitab, pg. 46, vol. 3, Al maktabah Al ilmitah
ﻭﻛﺬﺍ ﻟﻮ ﻗﺎﻟﺖ: ﻃﻠﻘﻨﻲ ﺑﻜﺬﺍ ﻓﻘﺎﻝ: ﻧﻌﻢ ﻓﻠﻴﺲ ﺑﺸﻲﺀ ﻟﺄﻧﻪ ﻭﻋﺪ ﺑﺨﻠﺎﻑ ﻗﻮﻟﻬﺎ ﺃﻧﺎ ﻃﺎﻟﻖ ﺑﺄﻟﻒ ﻓﻘﺎﻝ: ﻧﻌﻢ ﻳﻘﻊ ﻛﺄﻧﻪ ﻗﺎﻝ: ﻧﻌﻢ ﺃﻧﺖ ﻃﺎﻟﻖ ﺑﺄﻟﻒ ﻛﺬﺍ ﻓﻲ ﻏﺎﻳﺔ ﺍﻟﺴﺮﻭﺟﻲ.
Fatawa Hindiyah, pg. 488, vol. 1, darulfikr
Only Allah knows best.
Written by Maulana Jamal Ahmed
Checked and Approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
