Fatwa ID: 07522

 

 

Answered by Maulana Sarfraz Mohammad

 

Question

 

I have a family issue to resolve – it’s about my brother-in-law (my wife’s maternal cousin). A serious incident has occurred where he allegedly cited talaq 3 times according to his wife. However, my brother-in-law insists it was said 2 times.

 

Myself and my wife are stuck in the middle to analyse whether he said talaq with intent or in the heat of the moment. My sister-in-law does not want him back after enduring 18 years of abuse from him.

 

There are 2 sides to the story and I cannot force her to change her mind to move to mediation and be certain if he cited talaq twice or three times. My brother-in-law does not cover himself in glory due to his underlying mental health issues and poor decision-making ability as he panders to his siblings back home and goes in favour of his siblings’ decisions and not his wife and children. I

 

It’s so messy. We want to avoid a full-blown divorce. How can you help from a fatwa point of view to retain the couple and seek tawba from my brother-in-law’s side?

 

 

 

In the name of Allah, the Most Gracious, the Most Merciful

 

Answer 

 

In this difficult situation, it is important to carefully analyse the issue from both an Islamic legal (Shariah) and practical perspective, especially in the Hanafi school.

 

According to the Hanafi madhhab, if a man issues three talaqs (divorces) at once, or even over time, they are counted as three separate and final talaqs. This would make the marriage irrevocably over (talaq-e-mughallazah), and the couple cannot remarry unless the woman marries another man in a legitimate marriage then after having relations in that marriage, she receives a divorce from that husband (known as halala).

 

In case of a disagreement with regards to the number of talaqs, both (husband and wife) are required to go to a qualified religious scholar or mufti and appoint them as a judge/arbitrator of this issue. Then the wife should present her claim before him and the arbitrator and she should call two witnesses for her claim. If she presents two witnesses then a decision of three talaqs will take place. If she cannot present two witnesses, the husband will take an oath in this way; “I swear that I did not give three talaqs to so-and-so daughter of so-and-so,” then only two talaqs will take place. 

 

While divorce is allowed in Islam, it is often considered a last resort after all efforts at reconciliation have been exhausted. Mediation, preferably with the help of an imam or family counsellor, may help in determining whether the couple can reconcile or if separation is truly the best option.

 

 

 

Only Allah knows best.

Answered by Maulana Sarfraz Mohammad

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

 

 

 

 

“وإذا طلق الرجل إمرأته تطليقةً رجعيةً او تطليقتين فله أن يراجعها في عدتها رضيت بذلك أو لم ترض، كذا في الهداية”.

“و إن كان الطلاق ثلاثًا في الحرة وثنتين في الأمة لم تحل له حتى تنكح زوجًا غيره نكاحًا صحيحًا و يدخل بها ثم يطلقها أو يموت عنها، كذا في الهداية

(الفتاوى الهندية (1/ 470): الباب السادس في الرجعة، ١/ ٤٧٠،

 

 

اعلاء السنن:

“البینة علی المدعي و الیمین علی من أنکر  …. هذا الحدیث قاعدۃ کبیرۃ من قواعد الشرع.”

 

ويصح التحكيم فيما يملكان فعل ذلك بأنفسهما وهو حقوق العباد و لايصح فيما لايملكان فعل ذلك بأنفسهما، وهو حقوق الله تعالى حتى يجوز التحكيم في الأموال والطلاق والعتاق والنكاح والقصاص وتضمين السرقة.”

(الفتاوى الهندية الباب الرابع والعشرون فی التحکیم، ط)