Fatwa ID: 08580
Written by Alimah Humairah Badshah
Question:
I am married to my wife for 12 years Alhamdullilah. On or about 02 December 2024, we returned to South Africa from Dubai for holiday (during which time she left me and claimed that we were haraam for each other and sprung the idea that she is leaving me). None of this was communicated to me before we arrived. Be that as it may, she and the kids went to her parents home and claimed that her mahrams got a ruling not a fatwa, from a local maulana or Aalim (nothing was proved or shown) claiming that her brother had a right to remove her and that she should begin her iddat.
The biggest aspect or issue regarding that was her claiming that I mentioned the words “divorce divorce” on the 22nd of October and as such she is adamant that i divorced her and I said it, though I deny it all together. On or about the 5th of Nov we came to South Africa for holiday also. During that time we visited her parents and stayed in South Africa for 2 weeks. Nothing was mentioned to me or in the presence of her father regarding the divorce that she claimed to hear on 22nd October 2024.
We returned back to Dubai around 15 Nov and during or close to this period we were intimate and had intercourse. Fast forward to 02 December 2024 when we came to South Africa again, she went into iddat unilaterally from 04 December to about the 17 December (the day of our anniversary). On or about the 17th of December, I was asked to submit my statement regarding the matter which i have attached and she as well submitted an email with her statement which I have also attached – these submissions were done to Daruliftaa Jamiat KZN after we called them telephonically.
During the teleconference with a Moulana Amod from the divorce department, he advised us the following:
- He had read and presented our submission to the mufti who had already closed and gone on holiday, but he had marked it as urgent.
- From the three instances of divorce that she claimed he advised us that a divorce using the words “will” which she corroborated on the phone telephonically – does not amount to Divorce as their can’t be a divorce in the future.
- With the issue of her having heard the words “talaq talaq” the maulana advised that we should exercise caution but bearing in mind that we did consumate the nikkah in November after the words were mentioned in October – we have reconciled. (Whether I did or didn’t say the words, the fact that we reconciled is enough)
From 17 December (she went out of iddat) until 27 December we slept in the same bad and not been sexual but intimate. On 27 December we booked flights to come to Dubai. She wanted peace and space and said we must try and live separate for a while so that we can have the kids find normality without fights.
From 27 Dec we have been staying apart and I do visit the kids and her daily. I believe that her brother and father advised her that “if a man threatens you for 12 years and using threats of divorce to control you, you should not be with him”. I explained to her that from what I read in your forum and several other places is that a promise to talaq or threat to talaq is not talaq. In all our arguments and in the fights today, she keeps saying that I said “if you are not happy, take your talaq and go”. I genuinely believed and told her that, if she was ever unhappy I would never force her to stay. I had never ever intended to divorce her at any time though.
Fast forward to today, she says now I must not touch her hands and she wants to wear scarf when I’m around because she feels that despite there being no actual grounds of a talaaq from her claims (as jamiat made no actual ruling), she says that by me treating her as i did, makes her haraam for me. I told her that a threat or promise is not a talaq and I even apologised and said i will never do it. I told her that I genuinely found inner peace since 02 December and found closeness and am working on being a better me.
She is in a different place. I humbly would like a fatwa based on the submissions of our statements as attached and also on the aspect of me threatening her with the words ” if you are not happy, take your talaq and go”.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Words of divorce are of two types: clear/explicit (Ṣariḥ) and ambiguous (Kināyah). It goes without saying that the words “talaq” and “divorce” are clear, unambiguous statements of divorce and therefore your intention would not be taken into account. The statement “if you are not happy, take your talaq and go” is also a clear pronouncement of divorce which delegates the decision of divorce to your wife.
According to the account which you say was given by your wife, of the two instances of divorce mentioned in this email, the divorce on 22nd October was clear (sarih) and would be equal to two pronouncements of divorce. As for the statement “if you are not happy, take your talaq and go”, this would depend on your wife’s response each time it occurred. If she had affirmed that she wanted the talaq during that sitting, it would be counted as a divorce.[1]
It is correct for your wife to keep her distance from you whilst waiting upon the ruling from the court regarding your marriage, as she believes that you have given three declarations of divorce. In the situation where a wife believes that 3 talaqs have taken place, she should separate from her husband and seek a ruling from the Islamic courts. The courts will then make the husband swear an oath regarding the matter if there is no evidence. If he is not telling the truth, the sin for continuing the marriage will be upon the husband.[2]
I would like to add that whilst a promise or threat to divorce is not a talaq, it would certainly not lead to a healthy relationship. It is a technical matter and not a place whereby a person can take advantage of another. Islam teaches us to treat all people with respect and dignity regardless of who they are to us, and that those who cause any form of harm to others, whether physical, emotional or otherwise, will have to answer for these transgressions in the Hereafter. Allah (swt) says in the Qur’an:
“And when you divorce women and they have reached their term, then either retain them in a good manner or release them in a good manner, and do not keep them intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things” Surah Al-Baqarah (2:231) [3]
Since there appear to be other factors and pronouncements of divorce that have not been mentioned in this email, I advise that you wait upon the ruling issued to you by Jamiat South Africa, as they have a more detailed account of your situation and have spoken to both parties directly.
References:
[1]
مِنْ أَنَّ الصَّرِيحَ مَا لَا يَحْتَاجُ إلَى نِيَّةٍ بَائِنًا كَانَ الْوَاقِعُ بِهِ أَوْ رَجْعِيًّا خَاصٌّ بِالصَّرِيحِ فِي الْجُمْلَةِ الْأُولَى: أَعْنِي قَوْلَهُمْ الصَّرِيحُ يَلْحَقُ الصَّرِيحَ وَالْبَائِنَ
Raddul Muhtār (Vol.3, pg.308, Dār Al-Fiqr)
وَيَدْخُلُ نَحْوُ طَلَاغٍ وَتَلَاغٍ وَطَلَاكٍ وَتَلَاكٍ أَوْ ” طَ لَ قَ ” أَوْ ” طَلَاقٍ بَاشٍ ” بِلَا فَرْقٍ بَيْنَ عَالِمٍ وَجَاهِلٍ، وَإِنْ قَالَ تَعَمَّدْته تَخْوِيفًا لَمْ يُصَدَّقْ قَضَاءً إلَّا إذَا أَشْهَدَ عَلَيْهِ قَبْلَهُ وَبِهِ يُفْتَى؛
Raddul Muhtār (Vol.3, pg.249, Dār Al-Fiqr)
رَجُلٌ قَالَ لِامْرَأَتِهِ: خُذِي طَلَاقَكِ فَقَالَتْ أَخَذْتُ يَقَعُ الطَّلَاقُ…
رَجُلٌ قَالَ لِامْرَأَتِهِ وَهَبْتُ لَكِ تَطْلِيقَك يَكُونُ تَفْوِيضًا إنْ طَلَّقَتْ نَفْسَهَا فِي الْمَجْلِسِ يَقَعُ وَإِلَّا فَلَا
Al-Fatāwa al-Hindiyyah (Vol.1, pg.359, Dār Al-Fiqr)
… وَلَوْ قَالَ لَهَا أَنْتِ طَالِقٌ طَالِقٌ أَوْ أَنْتِ طَالِقٌ أَنْتِ طَالِقٌ أَوْ قَالَ قَدْ طَلَّقْتُك قَدْ طَلَّقْتُك أَوْ قَالَ أَنْتِ طَالِقٌ وَقَدْ طَلَّقْتُك تَقَعُ ثِنْتَانِ إذَا كَانَتْ الْمَرْأَةُ مَدْخُولًا بِهَا وَلَوْ قَالَ عَنَيْت بِالثَّانِي الْإِخْبَارَ عَنْ الْأَوَّلِ لَمْ يُصَدَّقْ فِي الْقَضَاءِ وَيُصَدَّقُ فِيمَا بَيْنَهُ وَبَيْنَ اللَّهِ تَعَالَى…
Al-Fatāwa al-Hindiyyah (Vol.1, pg.355, Dār Al-Fiqr)
وَهُوَ بِمَنْزِلَةِ قَوْلِهِ: إنْ كُنْتِ تُحِبِّينِي أَوْ تَبْغَضِينِي وَإِنْ قَالَ لَهَا: إنْ كُنْتِ تُحِبِّينِي بِقَلْبِكِ فَأَنْت طَالِقٌ فَقَالَتْ: أُحِبُّكِ وَهِيَ كَاذِبَةٌ طَلَقَتْ قَضَاءً وَدِيَانَةً عِنْدَ أَبِي حَنِيفَةَ وَأَبِي يُوسُفَ – رَحِمَهُمَا اللَّهُ تَعَالَى… ثُمَّ اعْلَمْ أَنَّ التَّعْلِيقَ بِالْمَحَبَّةِ كَالتَّعْلِيقِ بِالْحَيْضِ لَا يَفْتَرِقَانِ إلَّا فِي شَيْئَيْنِ: أَحَدُهُمَا أَنَّ التَّعْلِيقَ بِالْمَحَبَّةِ يَقْتَصِرُ عَلَى الْمَجْلِسِ لِكَوْنِهِ تَخْيِيرًا حَتَّى لَوْ قَامَتْ وَقَالَتْ: أُحِبُّكَ لَا تَطْلُقُ وَالتَّعْلِيقُ بِالْحَيْضِ لَا يَبْطُلُ بِالْقِيَامِ كَسَائِرِ التَّعْلِيقَاتِ، وَثَانِيهِمَا أَنَّهَا إذَا كَانَتْ كَاذِبَةً فِي الْإِخْبَارِ تَطْلُقُ فِي التَّعْلِيقِ بِالْمَحَبَّةِ وَفِي التَّعْلِيقِ بِالْحَيْضِ لَا تَطْلُقُ فِيمَا بَيْنَهُ وَبَيْنَ اللَّهِ – تَعَالَى – كَذَا فِي التَّبْيِينِ.
Al-Fatāwa al-Hindiyyah (Vol.1, pg.423-4, Dār Al-Fiqr)
[2]
وَالْمَرْأَةُ كَالْقَاضِي إذَا سَمِعَتْهُ أَوْ أَخْبَرَهَا عَدْلٌ لَا يَحِلُّ لَهَا تَمْكِينُهُ هَكَذَا اقْتَصَرَ الشَّارِحُونَ وَذَكَرَ فِي الْبَزَّازِيَّةِ وَذَكَرَ الْأُوزْجَنْدِيُّ أَنَّهَا تَرْفَعُ الْأَمْرَ إلَى الْقَاضِي فَإِنْ لَمْ يَكُنْ لَهَا بَيِّنَةٌ يُحَلِّفُهُ فَإِنْ حَلَفَ فَالْإِثْمُ عَلَيْهِ اهـ. وَلَا فَرْقَ فِي الْبَائِنِ بَيْنَ الْوَاحِدَةِ، وَالثَّلَاثِ
Al-Bahr Al-Rāiq (Vol.3, pg.277, Dār Al-Kitab Al-Islami)
[3]
﴿ وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ ۚ وَلَا تُمْسِكُوهُنَّ ضِرَارًا لِّتَعْتَدُوا ۚ وَمَن يَفْعَلْ ذَٰلِكَ فَقَدْ ظَلَمَ نَفْسَهُ ۚ وَلَا تَتَّخِذُوا آيَاتِ اللَّهِ هُزُوًا ۚ وَاذْكُرُوا نِعْمَتَ اللَّهِ عَلَيْكُمْ وَمَا أَنزَلَ عَلَيْكُم مِّنَ الْكِتَابِ وَالْحِكْمَةِ يَعِظُكُم بِهِ ۚ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِكُلِّ شَيْءٍ عَلِيمٌ ﴾
Qur’an (2:231)
Only Allah (عز و جل) knows best.
Written by Alimah Maryam Badshah
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
