Talaq to a pregnant woman

CategoriesDivorce [560]

Fatwa ID: 01251

Answered by Mufti Mohammed Tosir Miah

Question:

10 days back my sister came home (mother house) crying and says my husband divorced her. she is pregnet 1 month. she said my husband divorced me and says he dont need child also go and finish it. earlier he was beating her also and says he will give her divorce and she said that day he was very much angry he said me 3 times divorce/Talaq and then says if you need more take more then he said 2 times more. but when we call her husand he said she is wrong I dint give her Talaq and I want to take her back Please tell us what we should do now…

Answer:

Bismillah

 

 

In the name of Allah, the most Beneficent, the most Merciful.

Three talaqs issued to a pregnant woman is valid in Islam. This is the view of all the Schools of Fiqh.

In the eyes of Allah subḥānahu wa ta'āla (glorified and exalted be He), talaq is the most detestable of all the lawful acts.

It is reported from Ibn-Umar [rahinrahu] that the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) said: “In the sight of Allah subḥānahu wa ta'āla (glorified and exalted be He), the worst of all halal (lawful) acts is talaq.” (Sunan Ibn Majah p146 v.1)

There are three types of talaq and the most severe is the issuing of three talaqs. This irrevocably severs the marriage, whether such talaq was issued over a period of time, in one sitting or in one breath.

There are numerous Ahadeeth where the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) in spite of showing anger against the giving of three talaqs, enforced the three talaqs.

  1. Imam Nasaai raḥimahullāh (may Allāh have mercy upon him) reports on the authority of Mahmud Ibn-Labid that “the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) was told about a man who had divorced his wife by pronouncing three talaqs simultaneously. Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) rose in anger and said: “What is this game being played with Allah’s book while I am present amongst you?” In the meantime a man stood up and said “Ya RassulAllah (Prophet of Allah) should I not kill him? (Nasaai P98v2)

Even though the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) expressed extreme anger on the giving of three talaqs at one sitting, it is not reported anywhere that he ruled the mans talaq to be revocable (i.e. to let the man have his wife back).  

2.   Imam Bukhari raḥimahullāh (may Allāh have mercy upon him) reports on the authority of Aaisha [rahinaha] that “a man pronounced three talaqs to his wife. When the woman married elsewhere, the other husband also divorced her. The Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) was asked, “Is this women lawful?” He said, “Not unless the other husband has had intimacy with her as was done by the first husband.” (Bukhari)

The words of this Hadith indicate that three talaqs were given at the same time.  

3.    Imam Bukhari raḥimahullāh (may Allāh have mercy upon him) reports of Uwaymir raḥimahullāh (may Allāh have mercy upon him) who did lian (sworn allegation of adultery) against his wife in the presence of the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him).Following that he said: “I shall be telling a lie if I retained her”. Then he gave her three talaqs before the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) could give his verdict. (Bukhari P8 v2)

4.   Hasan ibn Ali raḥimahullāh (may Allāh have mercy upon him) said (in a long Hadith, after divorcing his wife): “Had I not heard my father (Ali) narrating from my grandfather the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) say: “when a man pronounces three divorces, then his wife will no longer remain lawful for him, unless she marries another man”, I would have taken my wife back.” (Sunan al-Bayhaqi)

To sum up despite the fact that three talaqs invited the anger of the Prophet ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) there consequences in any event was that all three talaqs were ruled effective. (Extracted from Maariful-Qur’an p583-586 v1)

The question which you have posed is a scenario where there is a difference of opinions on how many talaqs were said. The husband is saying that he has issued no talaqs where as the wife is adamant that she heard her husband say talaq to her.

There is a principle in fiqh called “The woman is in the place of the Qadhi (judge)”.  This does not mean that the woman can make decisions and rulings like a Qadhi, it means that if the husband ever gives his wife a Talaq Baain (irrevocable divorce) or three talaqs and then wishes to keep her without halalah or a new Nikah then the Shariah has allowed her the right to become like a Qadhi. 

This is because besides the two of them there are no other witnesses and the wife has no proof that she heard him clearly give three divorces/talaqs.  If she is certain that he did in fact give her three talaqs or a Talaq Baain and in order to save herself from sinning by remaining to live with him as a wife, it will be obligatory for her to keep away from him.  (Bahrur Raaiq p.257 v.2)

If the wife is 100% certain that her husband gave her three divorces then the marriage with him is broken and she will be free to do what she wants.  An annulment of the marriage is not needed.  (Fatawa Rahimiyah p.318 v.8)

However, if the wife is not sure how many times he has said talaq or she is sure he said it only once or twice then if he revokes (rujuu) the talaq or divorce then the wife can return back to her husband. However, if the husband does not want her back or if the wife does not want to go back because of her husband being abusive to her then she should contact the local Mufti or scholar who will arrange to have her marriage annulled with the husband. (Fatawa Darul Uloom Deoband p.42 v.9)

Finally, the jurists have listed two ways of effecting a Rujuu, one by speech and the other by action.  It is more praiseworthy to make Rujuu by speech rather than action. (Raddul Muhtar p.24 v.5)

To effect a Rujuu by speech, the husband can say ‘I have made Rujuu’ or ‘I have retained you’.  The jurists have placed the condition of their being lust and desire on the part of either the husband or wife if Rujuu is initiated by action.  Rujuu will be effected whether the wife is in front of him or not however, where the wife is not present it is best to have two witnesses present.  (Raddul Muhtar p.25 v.5)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.

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