Fatwa ID: 01658

Answered by Mufti Mohammed Tosir Miah

Question:

As I spoken to you on the phone, in brief my brother divorced his wife but still wanted to be with her, but her wife was fed up with all the behaviour of his and his actions, she then ask me to nikah with her which I did.
When he found out, he got people to chase me, left messages to kill me and use to get drunk and call to find out about me and kill me. The police also got involved, I then moved to next town, but he still drink and threat his wife and then took overdose of drugs, after that all my family put pressure on me and my other brother threat to do something as well if something happen to my brother who took drug overdose,

My wife then ask me to leave her as she was also threaten by all family and scared that he took over dose and I then got panicked and in fear of the threats and consequence and then I sent her text I give you talaq taalq talaq.

I didn’t wanted to give her this, but this was all due to all the fear, problems and threats of life and other threats being made which could have resulted in someone’s or my murder.

I didn’t write it neither I said from my mouth it was just text and nothing else. I was really scared and got panicked and texted after knowing he took over dose and if something happen my other brother or family member would harm me, and if not my brother himself would harm me if he find me, I got many messages and calls as well from other family members.
As you said this is not talaq, could you please confirm in written email, and issue a fatwa jazak allah.

 Answer:

There are two types of force:

1. Muljee: Muljee is a situation where someone threatens a man to divorce his wife or otherwise he will kill him etc…

2. Ghair Muljee: Ghair Muljee is a situation where someone threatens a man to divorce his wife or otherwise he will beat him up etc…

(Raddul Muhtar p.177 v.9)

(The difference is that in ghair muljee he is not threatened with his life.)

Furthermore, the jurists have added that if the individual who is being forced to divorce his wife is from a respectable background, then ghair muljee will be considered a sufficient enough force. If however, the individual is from a rough or aggressive background then muljee will be considered as a sufficient enough force. (Raddul Muhtar p.178 v.9)

From the above information the Islamic ruling is that if someone is forced to divorce his wife in the aforementioned situations, then the divorce will be effective on the condition that he said it verbally.

The author of Durre Mukhtar, states: “The Talaq of every husband is effected, be he a slave or under duress.” (Raddul Muhtar p.438 v.4)

However, if a man is forced to divorce his wife and he writes out a Talaq on paper and he even signs it or signs on a paper which has Talaq written on it from before, Talaq will not be effected. (Raddul Muhtar p.440 v.4)

In regards to your question the pressure put on to you by your mother would amount to Muljee, hence, the three talaqs you texted to your wife will not be valid, irrespective of whether you sent the text to her or not.

In the Hanafi Fiqh there are two types of written divorce:

1.    Marsumah

2.    Ghair Marsumah

Marsuma is where the letter is addressed to his wife and Ghair Marsumah is where the letter is not written to his wife. Then Marsuma and Ghair Marsumah have two types: clear and understandable writing and unclear and unreadable writing. Example of the first one will be writing that is written on a piece of paper, wall or ground in a way which is understandable and examples of unclear writing will be writing in the air, on water or on something in a way that is not understandable or readable.

In a situation where the writing is unclear, divorce will not occur irrespective whether it is Marsumah or Ghair Marsumah or whether he made an intention or not.

In a situation where the writing is clear but it is not directed or written to his wife for example he typed the word ‘divorce’ or ‘Talaq’ then talaq will occur if he made an intention.

In a situation where the writing is clear and it is directed or referred to his wife for example he says ‘O Zainab! I have given you divorce,’ then talaq and divorce will occur irrespective of whether he makes an intention or not. (Fatawa Hindiyyah p.378 v.1)

With regards to your question, when a husband writes on the email, “Talaq” and sends it to the wife, then this becomes a formal letter, thus divorce will occur. (Raddul Muhtar p.456 v.4)

As soon as the husband emailed the message the letter became Marsumah, i.e. addressed to the wife thus talaq will occur without an intention of talaq or not. If he had not sent it but just typed ‘Talaq’ thrice, then it will depend on the intention of the husband.

Finally, divorces written on a text message has the same effect of typing it on an email. Therefore, if the husband texted divorce or talaq on his mobile phone and sends it to his wife the message has become Marsumah, i.e. addressed to the wife thus talaq will occur without an intention of talaq or not. If he had not sent it but just texted ‘Talaq’, then it will depend on the intention of the husband.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham