Fatwa ID: 08825

 

 

Written by Maulana Mohammed Aabu Saeed Miah

 

Question:

 

Please can you help me and my wife. On behalf of my wife the question is, I myself wrote “I (ex husbands name) divorce you (my name)” three separate times on a paper. My ex husband signed it, accepted it, left and made no reconciliation within the appropriate time. Now I am married to someone else my ex husband and my family are claiming that the divorce and my new marriage is not valid.

 

Their reasons are:

 

1. There were no witnesses
2. I wrote it and he merely signed it
3. I forced him
4. He was angry and did not intend it

 

My defence is:

 

1. Witnesses are not compulsory for divorce
2. He signed it with his own free will and full consciousness
3. I did not force him and neither was he so angry that he wasn’t aware of what he was doing
4. He even confirmed several times in later conversations that we are divorced
5. He did not attempt any reconciliation which would of made his intentions clear, and left the home, and only returned 7 months later when he found out I was about to marry my new husband.

 

 

Please can you clarify this for me. My family are not supporting me and my new husband but rather supporting my ex husband. I have already taken an oath that the divorce took place in this manner and recieved a divorce certificate from a fatwa council but my family and ex husband claim it is “fake”. They are not letting me move on with my new husband whom I have been married to for almost a year now. I think they need convincing in person and clear proof from someone learned because they are very much stuck in their ways.

 

 

 

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

 

Answer:

 

Talaq through writing is valid and equivalent to that which is expressed verbally. A rule in the Sharia is that writing is equivalent to verbal expression. As your previous husband signed that he divorced you three times, from the point of signature you were no longer in the marriage contract. Your iddah period began from the point of signature also. For the divorce to take place it is not necessary to have witnesses. Regarding the claim that he was forced, this conflicts with the argument he was angry. Claiming to be influenced by one’s anger would suggest he was not being forced.

 

We can clearly confirm that written divorce took place, and you are no longer in the previous marriage contract.

 

 

 

 

References:

 

(الْفَصْلُ السَّادِسُ فِي الطَّلَاقِ بِالْكِتَابَةِ) الْكِتَابَةُ عَلَى نَوْعَيْنِ مَرْسُومَةٌ وَغَيْرُ مَرْسُومَةٍ وَنَعْنِي بِالْمَرْسُومَةِ أَنْ يَكُونَ مُصَدَّرًا وَمُعَنْوَنًا مِثْلُ مَا يُكْتَبُ إلَى الْغَائِبِ وَغَيْرُ مَوْسُومَةٍ أَنْ لَا يَكُونَ مُصَدَّرًا وَمُعَنْوَنًا وَهُوَ عَلَى وَجْهَيْنِ مُسْتَبِينَةٌ وَغَيْرُ مُسْتَبِينَةٍ فَالْمُسْتَبِينَةُ مَا يُكْتَبُ عَلَى الصَّحِيفَةِ وَالْحَائِطِ وَالْأَرْضِ عَلَى وَجْهٍ يُمْكِنُ فَهْمُهُ وَقِرَاءَتُهُ وَغَيْرُ الْمُسْتَبِينَةِ مَا يُكْتَبُ عَلَى الْهَوَاءِ وَالْمَاءِ وَشَيْءٍ لَا يُمْكِنُ فَهْمُهُ وَقِرَاءَتُهُ فَفِي غَيْرِ الْمُسْتَبِينَةِ لَا يَقَعُ الطَّلَاقُ وَإِنْ نَوَى وَإِنْ كَانَتْ مُسْتَبِينَةً لَكِنَّهَا غَيْرُ مَرْسُومَةٍ إنْ نَوَى الطَّلَاقَ يَقَعُ وَإِلَّا فَلَا وَإِنْ كَانَتْ مَرْسُومَةً يَقَعُ الطَّلَاقُ نَوَى أَوْ لَمْ يَنْوِ ثُمَّ الْمَرْسُومَةُ لَا تَخْلُو أَمَّا إنْ أَرْسَلَ الطَّلَاقَ بِأَنْ كَتَبَ أَمَّا بَعْدُ فَأَنْت طَالِقٌ فَكُلَّمَا كَتَبَ هَذَا يَقَعُ الطَّلَاقُ وَتَلْزَمُهَا الْعِدَّةُ مِنْ وَقْتِ الْكِتَابَةِ.

 

ص378 – كتاب الفتاوى العالمكيرية الفتاوى الهندية – الفصل السادس في الطلاق بالكتابة – المكتبة الشاملة

 

 

 

Only Allah knows best.

Written by Maulana Mohammed Aabu Saeed Miah

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham