Fatwa ID: 07978

 

Answered by Maulana Nuski Cassim

 

Question:

A relative has requested guidance and advice regarding her situation stated below. Apologies in advance as it is quite a long message.

The following is a statement of her current situation.

Nikkah done on September 3rd, we both wanted to make the relationship halal and at the time, my parents were not happy with the choice as he was black.

Began to stay with the man soon as nikkah was done and found at the end of October that we were expecting a child. Since expecting, the man became very territorial and controlling. Using Islam to say I couldn’t wear makeup, but then failed to practice Islam properly himself (he is a revert) He kept trying to learn and relied too much on other people to teach him but I kept telling him he needed to seek out help himself but he would say things like “I’m trying, it’s not going to change overnight”
He did reduce a lot of bad habits such as going out and drinking but then would very easily fall back into it, again using the excuse “I’m trying but it’s not a change that’ll happen overnight”

In December, we started to face a lot of issues, arguing a lot, and because he felt disrespected and emasculated, he began to seek out attention from other women, started going out again and falling back into bad habits.

At this point, just before new year, we agreed to fix our relationship and make it work for the sake of the child and he did improve (there was no other women, didn’t go out, wasn’t drinking) until; in January, He found out that I had messaged someone from my past a few months back to let them know that I had moved on and they should not try to contact me anymore.

As I hid this from him, his pride and ego was hurt and so he continued speaking to other women. One night he decided to go out with his friends to watch a UFC match, where he ended up at a rave somehow, and got into a fight. His jaw was broken and ended up in hospital.

I went to be by his side, he was kept in overnight due to be operated the next morning. While he was in his operation, I had to take care of his phone, where I found multiple women messaging him and one was a woman who he had met the night he got into a fight. I called this woman to ask what was going on and she confirmed that they had known each other from previous and happened to bump into each other while he was out and she was there when he got his jaw broken. She said nothing had happened between them and that he was honest about his marriage to me and told her he was expecting a child and spoke respectfully about me.

I was very hurt and betrayed that they were still in contact despite me spending all day by his side while he was in hospital from the day before. When I got the call that he was out of surgery, I went back to the ward where he was transferred back and waited a few minutes to get him settled before the confrontation. He was angry that I had messaged all these women and went through his phone while he was in operation and we began to argue.

I said that it was good that I had been through it otherwise I would not have known that he was messaging these women and telling them that he would see them once he’s better and recovered. He again blamed me for messaging the other person a few months ago and used that as an excuse for his behaviour saying that his ego was hurt and he felt like I didn’t deserve his loyalty.

I told him I was done with the marriage and that he should divorce me as loyalty is not something I am willing to compromise in a marriage and in general, his actions of going out, partying and fighting were not Islamic and was not something I wanted in a spouse. He responded with saying that he couldn’t and didn’t want to divorce me because I am carrying his child.

I told him I will abort the child because I don’t want the child as a constant reminder of this marriage or of him and it will just hurt me to remember everything I’ve seen on his phone. I told him I wanted nothing to do with him and begged him to say he is divorcing me three times. He said “I divorce you, I divorce you, I divorce you…Are you happy now, I’ve said it!”

I left the hospital right away.

 

 

 

I have not terminated the pregnancy but he doesn’t know that.

_
1. Is she under obligation to inform her ex husband that she is keeping the baby.
2. Is the divorce valid as she asked for divorce under the premise that she was terminating the pregnancy (but she hasn’t)
3. Can she return to her husband as she was pregnant when he issued divorce verbally 3 times and he wasn’t exactly sure as to what was happening. He also gave divorce reluctantly and under the insistence of his wife.

Jazak Allahu khayran wa ahsanal jazaa

 

 

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

 

Answer:

1. She is not necessarily under obligation to inform her ex-husband. Whether this is a good idea or not is something one should reflect deeply over—what are the pros and cons of not informing him, and what consequences will [delivery of] this child bear?[1]
2. The divorce is valid as this premise carries no bearing.[2]
3. She is unable to return to her ex-husband as he is haram for her. The sister would need to re-marry someone else, and if she becomes divorced again, only then can she marry her initial ex-husband.[3]

 

 

 

Only Allah knows best.

Written by Maulana Nuski Cassim

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

 

 

 

 

1.

وقالوا يباح إسقاط الولد قبل أربعة أشهر ولو بلا إذن الروج.

 

قال في النهر: بقي هل يباح الاسقاط بعد الحمل؟ نعم يباح ما لم يتخلق منه شيء ولن يكون ذلك إلا بعد مائة وعشرين يوما. وهذا يقتضي أنهم أرادوا بالتخليق نفخَ الرّوح، وإلا فهو غلط لانّ التخليق يتحقق بالمشاهدة قبل هذه المدة كذا في الفتح، وإطلاقهم يفيد عمد توقف جواز اسقاطها قبل المدة المذكورة على إذن الروج.

 

[رد المحتار، باب نكاح الرقيق، ج. ٤، صفحة ٣٣٥، مكتبة رشيدية]

 

وهل يباح الاسقاط بعد الحبل؟ يباح ما لم يتخلق شيء منه ثم في غير موضع، قالو: ولا يكون ذلك إلا بعد مائة وعشرين يوما، وهذا يقتضي أنهم أرادوا بالتخليق نفخ الروح وإلا فهو غلط.

 

[الهداية شرح بداية المبتدي مع فتح القدير، كتاب النكاح، باب نكاح الرقيق، ج. ٢، صفحة ٨٣٥، مكتبة البشرى]

 

وفي الفتح القدير وهل يباح الاسقاط بعد الحبل؟ يباح ما لم يتخلق شيء منه ثم في غير موضع ولا يكون ذلك إلا بعد مائة وعشرين يوما، وهذا يقتضي أنهم أرادوا بالتخليق نفخ الروح، وإلا فهو غلط لان التخليق يتحقق بالمشاهدة قبل هذه المدة.

 

[البحر الرائق، كتاب النكاح، باب نكاح الرقيق، ج. ٣، صفحة ٣٤٩، مكتبة رشيدية]

 

2.

‏ثَلاَثٌ جِدُّهُنَّ جِدٌّ وَهَزْلُهُنَّ جِدٌّ النِّكَاحُ وَالطَّلاَقُ وَالرَّجْعَةُ

 

[سنن أبي داود، رقم الحديث: ٢١٩٤]

 

ويقع طلاق كل روج بالغ عاقل؛ ولو تقديرا بدائع، ليدخل السكران ولو عبدا أو مُكْرها فإن طلاقه صحيح لا إقراره بالطلاق

 

قوله فإن طلاقه صحيح؛ أي طلاق المكره، وشمل ما إذا أكره على التوكيل بالطلاق فوكّل فطلّق الوكيل فانه يقع.

 

[رد المحتار، كتاب الطلاق، ج. ٤، صفحة ٤٢٧، مكتبة رشيدية]

 

وعلى هذا طلاق الهازل وطلاق الخاطئ واقع وهو أن يريد الرجل غير الطلاق فسبق على لسانه الطلاق والعتاق

 

[تحفة الفقهاء، كتاب الطلاق، ج.٣، صفحة ٢٦٩، دار الكتب العلمية]

 

3.

فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُۥ مِنۢ بَعۡدُ حَتَّىٰ تَنكِحَ زَوۡجًا غَيۡرَهُۥۗ فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيۡهِمَآ أَن يَتَرَاجَعَآ إِن ظَنَّآ أَن يُقِيمَا حُدُودَ ٱللَّهِۗ وَتِلۡكَ حُدُودُ ٱللَّهِ يُبَيِّنُهَا لِقَوۡمٖ يَعۡلَمُونَ

 

[سورة البقرة، رقم الآية: ٢٣٠]

 

مسألة: حكم طلاق الثلاث في كلمة واحدة. قال أبو جعفر: ومن طلّق امرأته ثلاثا في كلمة واحدة، وقد دخل بها، أو لم يدخل: طلقت ثلاثا، ولا يحل له إلا بعد روج يدخل بها

 

قال أبو بكر: أما وقوع الثلاث معا على المدخول بها، فهو إجماع السلف من الصدر الاول، ومن بعدهم من التابعين، وفقهاء الامصار

 

[شرح مختصر الطحاوي للجصّاص، كتاب الطلاق، باب صريح الطلاق، ج. ٥، صفحة ٦١، دار السلام]