Fatwa ID: 04923

Answered by: Mufti Mohammed Tosir Miah

Question

If a wife initiates divorce through the court and the husband counter signs when sent the papers by the court, does this constitute an Islamic divorce?

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

Answer

1. If it is the case, where the man files a petition for divorce in the county court and demands separation, then in this, as the man has the right to divorce, he can use it or make someone else his representative.  So, it is as if he has made the judge his representative to divorce his wife.  It is not necessary that the representative be a Muslim, as is the case in the court of this country.  The divorce will take place issued by the judge and the woman can marry someone else after completing the waiting period (Iddah).  She does not need to take an Islamic divorce from her husband.
2. If it is the case where the woman files a petition for divorce and when the court case begins proceedings, the man gives permission to the judge to proceed in clear terms, then in this case also the divorce will take place.
3. The third issue is if the man goes to his solicitors after having received the divorce petition to give a reply.  Generally, the solicitor advises clients of no benefit in defending the case except delay with financial implications, with the court issuing the divorce in any case.  Because of this, the solicitor writes that both husband and wife will separate, or the husband signs and sends the divorce petition to the county court, willingly.  Therefore, in this case, also the divorce will take place because of the willingness of the husband. 
4. The fourth issue is if the woman files for a divorce and the judge sends the divorce petition to the husband, but the husband defends his case and is not willing to divorce her, but despite this, the judge issues a divorce.
5. The fifth issue is, the husband acknowledges and accepts his mistake and is willing to fulfill her rights, but the judge issues a divorce.
6. The sixth issue is, the man receives the divorce petition but does not proceed with the case nor does he do anything to show his willingness to divorce her, but the judge issues a divorce.
7. The seventh issue is if the woman files for divorce and the judge sends the divorce petition to the husband, but he refuses to defend his case and is not willing to divorce her, despite this the judge issues a divorce.

In the above four cases, according to Islamic law, the husband and wife are still considered married. The woman cannot marry another man. If she does, the marriage will be void and both will be considered living in sin. (Extracted from Asr Hadhir Ke Pechida Masaail p.25 – p.31 v.2)

Based on the above information, if the husband signed the divorce papers which were sent to him after his wife initiated the divorce process, the divorce will occur. 

Now the question is what type of divorce will occur?

The words which affect divorce are of two types:

1) Clear and plain words (sareeh)

2) Ambiguous and allusive words (kinaya)

Sareeh means expressly pronouncing the word divorce or words derived from it, such as: “I divorce you” or “you are divorced” etc… Clear and plain words affect divorce whether one intends divorce by them or not. (Hidayah  p.359 v.2 & Fatawa Hindiyyah p.354 v.1)

Kinaya means using words that are not exclusively prescribed for issuing divorce, but alludes and hints to it. Kinaya words do not affect divorce unless one intends divorce by them or it is determined by the circumstance one is in. (Hidayah p.373 v.2 & Fatawa Hindiyyah p.374 v.1)

The kinaya words affect a talaq bain (irrevocable divorce) when one intends divorce by them. (Hidayah p.374 v.2)

The answer to the earlier question depends on what kind of words the judge uses to dissolve the marriage. If he uses words such as “I have thereby granted a divorce etc…” then one talaq rajee will occur. Thus, along with the earlier talaq rajee which you gave her in 2006 you would have given your wife two clear and revocable divorces. The marriage in this situation will be considered to be intact until your wife’s iddat (three menstruation cycles) finishes. Thereafter, the marriage will break and you can get back together again by redoing the marriage in the presence of two male witnesses or one male and two female witnesses. Also, a new dowry will have to be set.  

If the judge uses the words “separation” or “dissolve” etc…. then a talaq bain will occur straightaway and the nikah will break. You can redo the marriage within her iddat or afterward in the presence of two male witnesses or one male and two female witnesses. Also, a new dowry will have to be set.  (Fatawa Hindiyyah p.472 v.1)

Only Allah Knows Best

Written by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham