Fatwa ID: 05257
Answered by: Alimah Mahdiyah Siddique
Assalamu Alaikum Mufti Sahib,
We got married in an Urfi marriage, despite us there were only two witnesses in front of whom the Ijab and Qabool were done. Nikah Nama was also written but it was never registered.
After a year my husband gave me the first Talaq but he took me back after two days and since after that he used to say that now he doesn’t have the right to give me Talaq instead I am the one who has the right to give Talaq. Some months ago we had a serious fight and I asked for a divorce from him on which he said he’s not the one who has the right to give Talaq but I am, after which I said ok I have the right so I am giving you Talaq but week after we again took back each other as husband and wife.
We were still having fights going on, and on-call; my husband said that go I’m giving you divorce now you can go. But some hours later realizing I’m not really talking to him he called and explained to me that he does not have the right to give Talaq so we are still a couple upon which I said no you gave me Talaq he insisted on that he doesn’t have the right even if he says it hundred times it won’t affect.
We argued and unknowingly whether it would be effective or not I said I have no right to give it but for you, I’m giving you Talaq too because according to me the third Talaq had already taken place when he said it and I had no intention of giving him Talaq but just making him realize that I’m not the one who has the right.
We both are confused now about this. We’ve been married for 2.5 years; any advice from you would be helpful.
In the name of Allah, the Most Gracious, the Most Merciful
In response to your question;
This case will be split into two sections,
Firstly, the matter of Urfi marriage is such that it comes with several issues, one of which is the factor of whether or not the Wali (guardian) of the female was present at the time of marriage, this is an important aspect as other than the Hanafi Fiqh (which allows for the female to get married without the consent of her Wali [conditions will apply]) other schools of thought state the agreement of the Wali to be a requirement for the marriage to even be considered as valid.
The matter of publicizing the marriage is another factor here, one that is deemed be of great significance, in relation this the narration of Mohammad bin Hatib al-Jumahi states, the Messenger of Allah (sallahu alaihi wa sallam) said; “The difference between what is halal and what is haram is beating the daff (drum) and raising the voice ([announcing] at weddings).” (Sunan Tirmidhi, Hadith no. 1088 [see also 1089], p1756, Al-Kutub Al-Sitta: Darus Salam)
What can be derived from here is that the marriage should be announced openly (registered) as to distinguish between an unlawful relationship (the nature of which is hidden) and a marriage (which is apparent to everyone), this can also be seen as a condition according to some jurists (Ibn al-Qayyim in I’laam al-Muwaqqi’een, 3/113), as this protects the female from being deprived of her rights and upholds her dignity amongst the people.
Secondly, in regards to the validity of the Nikah, the husband can delegate the right of divorce over to his wife (this is known as tafwidh), however, this will not diminish his right to divorce. Moreover, when the husband delegates the right of divorce to his wife, she will only have the right to divorce herself during that sitting or for the period of time that he specifies, this could also be permanent; which will become effective even if the wife does not accept this right upon herself. In addition, the wife can only divorce herself according to the specified number (of divorces) mentioned/intended by the husband, so this could be once, twice or even thrice. (Mukhtasar al-Qudoori, p.507-508, Maktaba Bushra, Karachi Pakistan)
The issue of tafwidh (delegating the right of divorce to wife) can also be seen in the life of the Prophet Muhammad (sallahu alaihi wa sallam) when he presented his wives with the option to remain married to him or be divorced. (Surah al-Ahzab: Verse 28)
In conclusion, you will be considered to be irrevocably divorced and no longer have the option to reconcile, unless you marry another thereby making Halalah (Please see Fatwa ID: 01452 for more details on Halalah and against it being pre-planned).
Only Allah Knows Best
Written by Alimah Mahdiyah Siddique
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham