Fatwa ID: 01959
Answered by Molana Ishaaq Hussain
Question:
I am a Hanafi. My father has passed away 13 years ago, and I have one elder sister (married), and five elder brothers. I got Nikah done without consent of my family six months ago (many efforts were made to get the consent of the family). No rukhsati was done, nor did me or my husband met in privacy after Nikah. We thought that my family will agree once they would know about the nikah, but my family did not agree.
As live in another country, I left after nikah. Me and my husband were in contact on phone and internet. We used to have arguments often, as he did not want me to stay abroad. During one of the arguments he said to me, if you go for the purpose of job to XX city I give you first divorce.” I went to that city and hence we both thought that first divorce has taken place. Because of our ignorance and illiteracy we did not know the proper method of ruju, and thought that if the husband says “I take you back,” it will be a considered as ruju.
As I did nikah without inclusion of my family, they were opposing it and asking me to get Khula. My brothers and my husband got involved in extreme verbal swearing and fights and all of this caused severe mental agony. In the mean time me and that person (husband) remained in contact, and then my husband said “don’t go to your brother’s house, if you go you will get second divorce.” I went to my brother’s house as they were asking me to come again and again, and I did not want to tell them about the condition that my husband had placed.
After all this, I left my home with intention to live with my husband in a foreign country (he had applied to student visa, as we both were thinking that we cannot live in our home country). We lived together for almost 12-15 days and I came back. We both thought that we should do a proper close up of our jobs and then meet again. As I returned, my brothers came to pick me from my apartment and they forced me to stay with them. I was not allowed to talk to anyone.
Before I went with my brothers me and my husband had arguments again. My tried to contact me while I was at my brothers place but could not do so. He emailed me stating “if you are seeing this email and if you can reply, but you are not doing this voluntarily and if you don’t do so in next 24 hours, it will be a divorce after 24 hours.”
I did not check my emails and did not reply. After that my husband emailed my brothers, and me as well that “we are divorced.” I was not aware of any of these emails.
When I got access to internet, I emailed him that I wasn’t able to contact him, to which he replied, “don’t worry this is not divorce.” I asked him to consult a Mufti to get proper answer of this complicated Fiqh issue.
On the other hand my family consulted a Mufti and got fatwa that I am divorced three times.
The man in the marriage, also consulted a Mufti, who told him that your wife had Bai’na divorce when you divorced her for the first time. And hence there was not second and third divorce. In which case,if both parties agree they can remarry. I am confused with the whole situation. Please provide the Fiqhai view on it.
Answer:
There are two things to look at here.
1. The ruling of Ruju
2. The ruling of a conditional divorce.
The choice of taking the wife back lasts only during the iddah period. At the expiry of this time, the rujuu also expires. (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)
The jurists have placed the condition of there being lust and desire on the part of either the husband or wife if rujuu is initiated by action. If there is no desire then rujuu is not affected. Therefore, to touch the wife, have intercourse with her, to kiss her including her face, forehead and lips and also to touch her with or without an intervening cloth where the heat of the body is felt with desire, will effect rujuu. (Ibid)
A Talaq issued with any adjoining condition be it written or verbal, will be effected at the occurrence or completion of the said condition. For example if a man says to his wife, “if your child is born in your mother’s house then you have one talaq.” And then she gives birth in her mother’s house, in such a case one Talaq e Raji is effected. (The complete system of Talaq p 204, also see Fatawah Alamgeeri p 440 v 1)
Keeping the aforementioned in mind, when your husband made the first condition i.e. of entering the city, and you entered the city, then ONE divorce was effected. However, when your husband said ”I take you back” Ruju has been established. You are now lawful for each other and you may return to him.
When your husband said the second condition that if you go to your brother’s house, you will get second divorce, the moment you entered your brother’s house, a second divorce came into effect.
The third condition that your husband made “ if you are seeing this email and if you can reply, but you are not doing this voluntarily and if you don’t do so in next 24 hours, it will be a divorce after 24hours.”…. this will not count as a divorce. The condition in the above quoted is “if you are seeing”, whereas it is clear from your question that, at that time you were not seeing, therefore due to that condition not being found, talaq will not occur.
However, there are two possibilities with the last comment (we are divorced)your husband emailed to yourself and to your brothers.
That is to say that if your Husband said “we are divorced” and he was referring back to the third condition he had made, then this will not constitute a Talaq, however if he was not referring back to the third condition, then this will count as a Third Talaq, which means that altogether Three Talaqs have occurred. It will not be permissible for you to remain with him, until you marry elsewhere.
Only Allah Knows Best
Written by Molana Ishaaq Hussain
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
