Fatwa ID: 05407
Answered by: Mufti Mujahid Hussain
Question
Salaams. I am re-questioning an incident that happens a few years ago that led to my Islamic divorce but I am still married to the ex-wife in the English system. I then remarried Islamically with the girlfriend who also reverted back to Islam. At the time I wrote a letter to Mufti Sabbir Blackburn and he advised that whether intension or no intension what I said at the time ended my marriage. At the time of this incident what happened was that I had a huge argument with my wife and to keep the girlfriend happy I went and told her that I have divorced my wife 3 times. I wasn’t aware that by telling someone else a divorce takes place. I follow imam Abu Hanifa and Deoband so I’ve been told that this is the correct answer but after reading certain things on here it made me think and I am re-questioning my incident. I told my girlfriend at the time who is now my wife Islamically that I’ve divorced my wife 3 times but it wasn’t intensionally plus if one doesn’t know that divorce can take place after saying this then how can I be divorced. The answer I was given is that before I do Nikha I should know the rules of marriage. If one doesn’t know that alcohol is haram and he drinks it then he can ask for forgiveness etc but the rules of talaq are different and I can’t say I didn’t know. I told my girlfriend at the time of pressure that I have divorced my wife 3 times does this count?
In the name of Allah the most Beneficent, the Most Merciful
Answer
To understand the answer properly we need to explain two separation scenarios.
One is that you said to your then-girlfriend “ I divorce my wife 3 times”. i.e. you initiated divorce to please your girlfriend. In this case, the divorce clearly occurs and there are no differences of opinion at all amongst scholars.
The second scenario is that you said “ I have divorced my wife 3 times”i.e. you lied to your girlfriend about divorcing your wife yet you had not divorced her. In this situation, your divorce will not occur. For example, a person lied to their parents that he had prayed yet in reality he had not prayed. The fact that he lied does not mean that it’s counted as he actually had prayed. Or a person lied to his parents about the fact he had married his girlfriend before having sexual intercourse whilst he had not. The fact he had lied about a marriage occurring does not mean it actually occurs.
Likewise, the fact you lied to your girlfriend about divorcing your wife does not mean that divorce occurs. It does not.
I will quote a few texts from reliable Hanafi books to clarify this point.
The following is mentioned in Barur Raaiq (البحر الرائق)
قيدنا بالإنشاء لأنه لو أكره على أن يقر بالطلاق فأقر لا يقع كما لو أقر بالطلاق هازلا أو كاذبا كذا في
الخانية ومراده بعدم الوقوع في المشبه به عدمه ديانة لما في فتح القدير ولو أقر بالطلاق وهو كاذب وقع في القضاء ا هـ .
وصرح في البزازية بأن له في الديانة إمساكها إذا قال أردت به الخبر عن الماضي كذب
“ If a person was to falsely confess of divorcing his wife then his divorce would occur if the matter was taken to court ( As the judge can only go by the apparent and tangible evidence of his utterance and not based on what is in his heart ) However the divorce will not occur in reality and between him and Allah (s.w.t.). As a private matter, the divorce has not occurred. This is mentioned in the Hanafi Fatwa book Al-Khaniya. Likewise, another Hanafi Fatwa book al-Bazzaziya says he has the right to keep her in marriage as a personal matter if he was lying about the divorce happening in the past” [1]
Likewise, Radul-Muhtar ( رد المختار) says the same thing
أما ما في إكراه الخانية : لو أكره على أن يقر بالطلاق فأقر لا يقع ، كما لو أقر بالطلاق هازلا أو كاذبا فقال في البحر ، وإن مراده لعدم الوقوع في المشبه به عدمه ديانة ، ثم نقل عن البزازية والقنية لو أراد به الخبر عن الماضي كذبا لا يقع ديانة ، وإن أشهد قبل ذلك لا يقع قضاء أيضا . ا هـ .
“If a person was to falsely confess of divorcing his wife the divorce will not occur in reality and between him and Allah (s.w.t.). As a private matter, the divorce has not occurred.“[2]
In fact, this is the opinion of three out of the four famous schools of thought Hanafi, Maliki and Shafiee.
The Shafee Mazhaab has the same opinion. Here is a quotation from the famous Shafiee book
تحفة المحتاج وشرح المنهاج
ولو قيل له استخباراً أطلقتها،أي زوجتك،فقال نعم…فإن كذب فهي زوجته باطناً
“ if he was asked have you divorce your wife and he replied yes. If he was lying then his wife is not divorced as a private matter ( without going to court) “[3]
Likewise, Badrud deen Zarkashee Shafiee said the same thing[4]
Also here is what the great Maliki Scholar Qadi-Ulaish mentioned in his famous bookفتح العلي المالك
وعبارة المجموع:وإن أقرَّ بمحلوف عليه،ثم رجع صدق في الفتوى،ومنه رجوعه عن الإقرار بالطلاق،أو الحلف
“ If he was to confess about marriage or an oath then he retracted and said he was lying he will be believed “[5]
It is only the Hanbali Mazhab that hold the view of the divorce occurring. Ibn Qudama mentions in al-Mugni المغني
قال- الخرقي-:ولو قيل له ألك امرأة ؟فقال لا وأراد به الكذب لم يلزمه شيء ولو قال قد طلقتها وأراد به الكذب لزمه الطلاق
“ If he was to lie about divorcing his wife then divorce would become necessary “[6]
So based upon everything we have mentioned above it becomes clear if you lied to your then-girlfriend about divorcing your wife then divorce has not occurred. However if to please your then-girlfriend, you actually divorced your wife then divorce has occurred.
Only Allah Knows best.
Written by Mufti Mujahid Hussain
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
[1] Barur Raaiq Page 428 volume 3 Darul-Kutub-Ilmiyyah print.
[2] Radul-Muktar page 443 volume 4 Darul-Kutub-Ilmiyyah print
[3] Tuhfatul Muhtaaj Page 134 volume 8
[4]المختار إذا أقرَّ بالطلاق كاذباً لم تطلقباطنا) المنثور في القواعد الفقهية 1/133
[5] Fatul Alliyil Malik page 294 volume 3
[6] Al Mugni page 306 volume 7 print Darul Ihyaah Turaas alarabi
