Fatwa ID: 07032
Answered by: Maulana Ubaidur Rahman
Question:
I had a fight with my wife on call. After a few days I went to a lawyer and told him to make a divorce paper he said come tomorrow and give me the details of your wife I told him everything.
I meet him the next day and he he written. You are free to marry where ever you want to marry you don’t belong to me any more.
And on the next page He had written:
I divorce you
I divorce you
I divorce you
He told me sign and I signed it. I had no clue about 3 divorce. Even I didn’t tell him to write 3 divorce I swear by Allah swt I didn’t even had the intention to divorce my wife I was pressured by my in laws and my family. I didn’t even had the intention to divorce my wife.
Does this divorce count?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
When issuing a divorce, the same ruling and effect applies when writing something down as speaking. The wife needs to be aware of the words being uttered and the meaning and effect having transpired to her. It needs to be understood by both husband and wife for the effect to take place.
After the issue of the three divorces, the wife will not be permissible upon the husband unless he marries another and then returns to her in the state that they are both content.
The statement is like writing because the same meaning is carried across and the affect is the result of the meaning.
Talaaq baain lasting divorce comes into effect when three statements of divorce are issued.
قلت: هذا الاحتمال مرجوح، فلا يعتبر نفي الاستعمال في الطلاق والنية في تعيين المبهم والإبهام فيه م: (وكذا) ش: أي وكذا يكون معقبًا للرجعة م: (إذا نوى الإبانة) ش: بلفظ الصريح م: (لأنه قصد تنجيز ما علقه الشرع بانقضاء العدة فيرد عليه) ش: كالوارث إذا قتل مورثه يحرم الميراث، لأنه قصد تعجيل ما أخره الشرع[1]
ولو قال: أنت الطلاق، أو أنت طالق الطلاق، أو أنت طالق طلاقا، فإن لم تكن له نية أو نوى واحدة أو ثنتين فهي واحدة رجعية، وإن نوى ثلاثا فثلاث. ووقوع الطلاق باللفظة الثانية والثالثة ظاهر، لأنه لو ذكر النعت وحده يقع به الطلاق، فإذا ذكره وذكر المصدر معه وأنه يزيده وكادة أولى وأما وقوعه باللفظة الأولى فلأن المصدر قد يذكر ويراد به الاسم، يقال: رجل عدل: أي عادل، فصار بمنزلة قوله: أنت طالق، وعلى هذا لو قال: أنت طلاق يقع الطلاق به أيضا،[2]
If the talaaq was said with one intention and written thrice, it is seen as one statement taking effect from the first utterance and the following utterances of divorce are for emohaissi on the occurrence.
فلا يقع إلا واحدة، وكذا في أنت طالق الطلاق
The clearness of talaaq occurring due to the clear words expressed in writing makes the effect of talaaq occur. The possibility of the words having a different meaning other than those written down is very minimal and unlikely, hence they have the effect as received by the reader I.e. talaaq does occur each time. As the words are clear , ‘I divorce you’ each time the effect takes place.
However if with the third statement of divorce which was written comes, and it is not intended to be a irrevocable divorce, then the first two divorces stand as revocable divorce and the third divorce is not of any effect and a revocable divorce form the first two words stands.
There are two possible scenarios for when the third divorce is issued. If the third is uttered without the effect of irrevocable divorce intended, then the first two divorces issued becomes more established. the principle of revocation on the basis of them being the first two divorces issued does not remain. However, it is according to the intentions present at the time of issuing the divorces’ which has the impact of the type of divorce issued[3]. If they were issued with the intention of revocation being active and present then the revocation principle will be present. If not, then they wont be.
As your intentions were not irrevocable divorce, irrevocable divorce will not occur. You have a revocable divorce and you are still able to revoke the divorce on the basis that it is done within the time period of the divorce occurrence, before the next menstruation period occurs.
Only Allah (عز و جل) knows best.
Written by Maulana Ubaidur Rahman
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
