Fatwa ID: 06896
Answered by: Mufti Mohammed Dilwar Hussain
Question:
I am a dentist and a dental academic from Pakistan. I would first like to say that I want to reunite with the woman to whom I divorced last year, while I was on high doses of TRAMADOL (an opiate painkiller, dose = 400 mg) as well as ALPRAZOLAM (a benzodiazepine tranquillizer, dose = about 2 mg). The exact date of the divorce was the 15th of March 2021. The drugs and their doses are pertinent to mention because both drugs have a profound effect on decision-making ability, cognitive ability, and the ability to communicate clearly while exercising emotional control.
Also, I must proclaim that all people, including my wife/ex-wife whom I will refer to in this question, were psychologically and mentally sound at that time as well as before that time and were not addicted to any substance of abuse including alcohol/cannabis/cocaine/heroine/methamphetamines. It was only me who was unfortunately taking the aforementioned prescription tablets in high doses every day for at least a year. I would now like to pen the events leading to divorce as precisely and accurately as I can.
On the 15th of March 2021, when my wife did not return from her maternal home after a maternal visit as usual, I became worried and tried to communicate with her only to find that I had been blocked from all communication channels by her.
Preceding her maternal visit were stressful family circumstances. It was I who recommended that she go to her maternal home for 3-4 days for a break and she left happily with the usual goodbye. The main problem was that my father not talking to her at all as she (Zoha Sheikh) did not deliberately attend the funeral proceedings of my maternal grandfather who passed away on 8th February, 46 days before 15th March 2021. So, you can ascertain that on account of her absence, my father was angry and was not even responding to her everyday greetings for 46 days which offended my wife and created tension between us. It should also be mentioned that my mother whose father passed away, pardoned Zoha Sheikh for not attending the funeral proceedings.
Now coming back to the date of 15th March when I was not able to contact my wife via any platform available, I called her father. My father-in-law promptly responded to my call, and I questioned why she had not returned to my place and whether everything was ok. He gave me a very shocking reply that his daughter was not going to come and on top of that, he very firmly dictated that my marital relationship with his daughter cannot continue. I became a bit aggressive on this and asked him to give a valid reason for such a big decision. He simply said that his daughter has been meant to be your wife and not a servant of your house and that your father would stop talking to her and would never talk to her. I replied that regardless of the issue between my parents and my wife, our marital relations were going well and that we were together in this stressful combined family scenario. I further asked the reason Zoha Sheikh did not attend the funeral to which he did not care to reply. Nevertheless, he stated that my own issues were also present and that he was unable to precisely specify when asked. So, in anger, I asked him whether he was still stubbornly firm on his decision despite my reassurance or if would he reconsider. He said that he is firm in his words that this relationship cannot continue. I then became shocked as well as angry and I concluded the call by pronouncing “I give Talaaq to my wife 03 times and let us start working towards the divorce documentation”. He sounded HAPPY and CONTENT as per his voice after my response. I want to say that this call was being RECORDED by me on my laptop with the phone on loudspeaker and he was not aware of this. The call record is still present with me today and I am keeping it as evidence for the sake of the matter only and not for any other use. I was drugged at that time and took another momentous decision to send Zoha Sheikh an email confirming the divorce. In the email that I rather quickly composed, I mentioned about 07 accusations about her behaviour towards me and my family while forgetting to mention/acknowledge that my father was not talking to her. It was undoubtedly an angry email composed under the influence of drugs and the emotional shock that I felt after that call. I concluded that email by writing a statement, “On the grounds of the afore-mentioned accusations I hereby pronounce Talaaq to you 03 times”.
The problem does not end here. Within hours of drafting the email to her correct Gmail address, I drove myself to a city about 250 miles away where my brother was living. During my 4-day stay in Lahore, Pakistan, I received a call from her father who tried to convince me of a mutual divorce agreement in front of a lawyer. I, still on those two drugs, refused his suggestion after asking the same from my father. I wonder why I called my father for a suggestion. When I returned to my home city Islamabad after 4 days my father decided that we must go for “Talaaq-e-Ahsan” as what I did on 15th March was a biddah and a sin. So, we got a declaration of facts (a legal affidavit on judicial stamp paper worth PKR 100) on which we declared a one-time divorce or 01 Talaaq (in Urdu) and sent the original letter to the home address of my wife. We made sure that they had received the letter, on which alongside me, both my parents signed as witnesses, by using tracked mail delivery. The problem is that on the affidavit, it was mentioned that the giver of divorce is “free of narcotics” as of the date when I was still on the same high doses of both Tramadol and Alprazolam, both drugs coming under the narcotic category. According to Pakistani law, such legal letters have been pre-typed in Urdu/English and follow a legally acceptable template therefore the point about narcotics cannot be removed. However, in real terms, the letter is false as the principal signatory (me) was taking narcotics at the time of signing it. The family of my ex-wife took that letter to the court and filed khula (khula) proceedings against me. My lawyer appeared in the family court, and I was instructed not to appear at the hearing by my lawyer. The court granted her a legal dissolution in my physical absence.
Later on I was unable to quit those medicines and had to be forcefully admitted to a rehabilitation centre by my father after a severe domestic argument. I lost my job as well.
This brings me to the end of the question. I leave the matter to you to decide the integrity of such a divorce. I am thankful for your time and at the same time, sorry to let you know how dissolutions take place in Pakistan, the so-called Hanafi-dominant society.
In the name of Allāh, the Most Gracious, the Most Merciful
Answer:
Pakistani Legal Proceedings
First of all, it should be stated the proceedings of the state appear to be in line with that of Shariah which is expected of such a Muslim-dominant country whose constitution is based on the Shariah.
Medications
I have looked into the two medications which you have mentioned above and their side effects. [1] [2]
Neither of these seems to have the ability to affect one’s state of mind such that one becomes incoherent. That is not to say it is impossible but extremely unlikely.
Verbal Talaq
Uttering the words of Talaq (divorce) falls under two categories; Sareeh (clear wording) and Kinaya (vague wording).
If clear wording is used, such as “I divorce you” “You are divorced” or “I give you Talaq” whether they be said in person or not, via message, with witnesses present or not, etc. then this will cause talaq (divorce) to occur immediately. The wife will then need to enter into iddah. The inference of such wording would mean Talaq Raj’i will occur which would subsequently allow for reconciliation to take place within the iddah period without the need of renewing the nikah. Verbally uttering words or gesturing to her to return would be sufficient for the marriage to renew. Even looking at her with desire and lust would also have the same effect. [Al-Hidayah: vol. 2, pg. 380] [3]
However, the use of vague wording where ambiguity remains (i.e., using such wording which would not normally infer divorce) will require an intention of divorce to be present at the time of using such wording. If an intention of divorce is not made at the time of using such wordings, then talaq will not take place. Examples of such wordings would be, as you have said “I free you,” “I release you,” “get out of here,” “I don’t want to see you again” etc. [Al-Hidāyah: vol. 2, pg. 391-392] [4]
Simply uttering the words of Talaq alone is not sufficient for Talaq to take place. They need to be directed towards somebody, either by saying it directly to them or by mentioning the wife’s name.
Your three Talaq were issued using clear wordings.
Legal/Written Talaq
There is a Fiqhi principle which determines that whatever is written will also stand in the place of verbal speech. It has two conditions; firstly, that what is written is apparent and admissible and; secondly, that it is written in an acceptable way which is common and amongst the norm of the time. The sender and recipient must also be noted clearly. [Al-Qawā’id ul-Fiqhiyah; page 52] [5]
Your email is a further reiteration of the three Talaq’s occurring.
Number of Talaq
Furthermore, Allāh Ta’ālā says in Surah Baqarah [2:229], that Talaq (divorce) after which reconciliation can occur is twice. Uttering the words of divorce beyond this amount would render a marriage broken such that reconciliation can no longer occur. [6]
All three verbal Talaq’s occurred. Thus, no reconciliation can be done.
Talaq in Anger
The stages of anger have been broken down into 3 parts; a level of anger where one is in total control of what he is saying and doing. Secondly, a state of severe anger and distress but not to the extent of insanity where one still has some awareness of what is being said. Talaq will occur in both of these states. Thirdly, is to the extent of madness, where one blacks out and loses all sense of what is being said or done at that time. In this state, Talaq does not occur.
[Radd ul-Muhtār: vol. 4, pg. 452] [7]
Your medical situation would not place you in the third category.
Khula’
The wife has the right to ask her husband for divorce. She may offer to seek to do Khula’ in lieu of a monetary payment. If the husband is at fault, then it is not proper for the husband to accept any payment for the Khula’ as he has taken benefit from her. However, if she is at fault, then she may seek a divorce from her husband in exchange for a maximum of what she received as her Mahr. It is not appropriate for the husband to seek a payment greater than that which he has paid in Mahr. The husband still needs to accept this offer after which Talaq (divorce) will occur. [Radd ul-Muhtār: vol. 5, pg. 83-85] [8]
It seems perhaps the court has issued a Khula’ judgement without knowing that all three Talaq have already been issued.
Summary
Based on the information you have provided it can be determined that you verbally gave Talaq three times in one sitting. Then you reiterated this by giving Talaq again via email (i.e., in written form). Your mental state would be considered as sound as it does not meet the criteria mentioned above for Talaq not to count. Because of this the initial three Talaq’s which you gave will stand.
The affidavit which you purchased would not stand as a new single Talaq nor will it replace the three verbal Talaq’s which you already gave before this point.
As Talaq has already occurred, the Khula’ will have no additional effect.
As all three Talaq’s have been used, there is no opportunity for reconciliation.
Only Allāh Ta’ālā knows best.
Written by Mufti Mohammed Dilwar Hussain
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
[1] https://www.nhs.uk/medicines/tramadol/side-effects-of-tramadol/
[2] https://medlineplus.gov/druginfo/meds/a684001.html#side-effects
[3]الطلاق على ضربين: صريح وكناية. فالصريح: قوله أنت طالق، ومطلقة، وطلقتك، فهذا يقع به الطلاق الرجعي لان هذا الألفاظ تستعمل في الطلاق، ولا تستعمل في غيره، فكان صريح
[4]وبقية الكنايات، وهذا مثل قوله: أنت بائن، وبتة، وبتلة… لأنه تحتمل الطلاق وغيره، فلا بد من النية
[5]الكتاب كالخظاب.
مستبينة: أي مكتوبة على شيء تظهر وتثبت عليه.
مرسومة: أي مكتوبة بالطريقة المعتادة بين الناس بأن تكون مصدّرة باسم المرسَل والمرسِل إليه.
[6]ٱلطَّلَٰقُ مَرَّتَانِۖ فَإِمۡسَاكُۢ بِمَعۡرُوفٍ أَوۡ تَسۡرِيحُۢ بِإِحۡسَٰن وَلَا يَحِلُّ لَكُمۡ أَن تَأۡخُذُواْ مِمَّآ ءَاتَيۡتُمُوهُنَّ شَيۡـًٔا إِلَّآ أَن يَخَافَآ أَلَّا يُقِيمَا حُدُودَ ٱللَّهِۖ فَإِنۡ خِفۡتُمۡ أَلَّا يُقِيمَا حُدُودَ ٱللَّهِ فَلَا جُنَاحَ عَلَيۡهِمَا فِيمَا ٱفۡتَدَتۡ بِهِۦۗ تِلۡكَ حُدُودُ ٱللَّهِ فَلَا تَعۡتَدُوهَاۚ وَمَن يَتَعَدَّ حُدُودَ ٱللَّهِ فَأُوْلَٰٓئِكَ هُمُ ٱلظَّٰلِمُونَ {
[7] إنه على ثلاثة أقسام: أحدها أن يحصل له مبادي الغضب بحيث لا يتغير عقله ويعلم ما يقول ويقصده، وهذا لا إشكال فيه. الثاني أن يبلغ النهاية فلا يعلم ما يقول ولا يريده، فهذا لا ريب أنه لا ينفذ شيء من أقواله. الثالث من توسط بين المرتبتين بحيث لم يصر كالمجنون فهذا محل النظر، والأدلة تدل على عدم نفوذ أقواله
[8]باب الخلع أخره عن الايلاء، لأن الإيلاء إلى تجرده عن المال كان أقرب إلى الطلاق بخلاف الخلع فإن فيه معنى المعاوضة من جانب المرأة، ولأن مبنى الإيلاء نشوز من قبله والخلع نشوز من قبلها غالبا، فقدم ما بالرجل على ما بالمراة
قوله: إزالة ملك النكاح شمل ما لو خالع المطلقة رجعيا بمال فإنه يصح ويجب المال. قوله: فإنه لغو. لإن النكاح الفاسد لا يفيد ملك المتعة وبالبينونة والردة حصلت الإزالة قبله، فلم يكن في الخلع إزالة. قال في البحر: فلا يسقط المهر ويبقى له بعد الخلع ولاية الجبر على النكاح في الردة كما في البزازية
قوله: وظاهر إطلاقه أنه لا يسقط المهر في النكاح الفاسد ولو بعد الوطء، لكن في جامع الفصولين نكحها فاسدا فوطئها فاختلعت بالمهر قيل يسقط، إذا الخلع يجعل كناية عن الإبراء لأن الخلع وضع لهذا، وقيل لا يسقط لأن الخلع لغا لأنه إنما يصح في النكاح القائم
