Fatwa ID: 01943

Answered by Mufti Mohammed Tosir Miah

Question:

I really need advice and fatwa about divorce. I got married 4 years ago from a brother from here we got married in a Muslim country I’m originally not from here and my husband is a revert to Islam after we got married he brought me here I was pregnant with my first daughter we used to argue a lot I was pregnant and home sick and he was ill and working hard to get me to here. After 1 year of marriage he said to me 2 divorces while we are arguing and I was quite shocked especially when he said the second one but he took me back afterward. I started to feel low in my Iman and more depressed and homesick and my attitude changed because I didn’t trust my husband and I felt he can divorce me anytime and we still didn’t even finish second year of marriage. After a few months he regretted and we got over it then he wanted a second child and me too .but I was worried if he leave me with 2 kids. I made a condition before I have my second child that my husband promises me that he will not say to me you are divorced next time we argue and I told him if he ever wanted to divorce the third one we will have to do it written at the court and not by mouth like he always easily say it because I knew he will say it again I was trying to prevent him he agreed and promised me he will do this if he ever thought of divorce again. Then I got pregnant with my second child and after I had her we had more problems and we argued even more. He started to pack his bag and leave home every time we argue. Every month from the last year he left us and went his family home. I got angry from this and this made my attitude towards him worse and i never trusted him but I always was trying to fix and beg him to back home and we should try harder for the sake of the kids. We kept in arguing and he kept on leaving the house and this made
a lot of distance between us. He left the house 2 months ago now. It said to him that I don't want divorce and I will try to fix and compromise I said to him maybe we should go to a sheikh or marriage councillor. He refused and he said he will divorce soon. One day we argued because I always get angry from the fact that he left me with 2 young children one is 3 and the other is 1 year old in a country where I don't have family or friends and also he hardly help me with the kids. So we argued and he said to me you are divorced. My question is would this divorce count even though he made a promise before I have my second child that he won't divorce me by only saying it and he promise that we will do it written in court ? And I agreed to have my second daughter only because he promised this. Also when he said it I was in the last day of menses. Is this divorce count ?  Please I need help in this issue because if it doesn't count I may try to fix between us again for the sake of my children

Answer:

It is mentioned in Durrul Mukhtar:

 “The main part (rukn) of divorce is the specific statement.” (Raddul Muhtar p.426 v.4)

In other words divorce can be given verbally and also in writing as well. However, in whichever it is given the divorce will occur.

Regarding your situation, even though your husband promised that he will give the third divorce in writing, but when he gave it verbally the third divorce will occur. You will now become unlawful for your husband.

Your husband would be sinful for breaking his promise, but nonetheless the divorce will occur.

Sayyiduna Abu Hurayra narrates that the Prophet of Allah has said: “The signs of a hypocrite are three: When he speaks he lies, when he makes a promise he breaks it, and when he is given a trust he breaches it.”  (Sahih Bukhari p.10 v.1)

Finally, with regards to divorce in the state of menses, the same way three talaqs in one sitting is unlawful and sinful but if uttered, the talaq is valid and comes into effect, the same can be said regarding talaq in the state of haidh or nifas. (Fatawa Hindiyyah p.349 v.1)

Saaiduna Ibn Umar relates that in the time of the Prophet of Allah , he (Ibn Umar) divorced his wife while she was menstruating. Saaiduna Umar Ibn Khattab asked the Prophet of Allah about it. The Prophet of Allah said: “Command him to take her back. Then he should keep her until she becomes pure and then menstruates and becomes pure. Then, if he wishes, he can keep her, and if he wishes, he can divorce her before having intercourse with her. That is the prescribed period which Allah has fixed for the women to be divorced.” (Sahih Bukhari)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham