Q. I
need some clarification from a qualified mufti
such as yourself on the status of a nikah
after some divorce pronouncements were made.
The wife went out to spend
time with some out of town friends. The husband was not at home at the time and
the wife did not inform her husband that she was going to be out with friends.
The husband came home after his wife had left and assumed that his wife was at
home sleeping in the bedroom. After spending some time in the home, the husband
went to the bedroom and realized that his wife was not at home.
The husband contacted the wife
on her cell phone and she informed him that she was out with some friends. The
husband became upset and said to the wife: "talaq,
talaq, talaq" on the phone. The phone call then ended. Both husband
and wife acknowledge that these three "talaq"
pronouncements were made on the phone. Since then the wife has moved back to
her parents' home.
Please advise in the light of
Islam the status of this nikah. How
many divorce pronouncements have occurred? Is the divorce revocable? Can a new nikah be contracted? Or is this nikah permanently broken where they can
not remarry without halaalah (i.e.,
the wife has to marry someone else and then divorce him before she can remarry
her husband)?
A. There
are two ways one can look at this, and it depends upon the couple. The most
someone can do in this case is work within the parameters of fiqh, applying its
moral and ethical principles -- which may differ to the letter of the law as
understood by some jurists. Fortunately, there is no enshrined, etched-in-stone
ruling, and so this allows us some leeway. In the Sunna, there is a hadith
that basically says, "My community is exempted from error, forgetfulness,
and what they have been coerced into." Since we see the marriage tie as
among the strongest of bonds, per the Qur'an and Sunna, we try to ensure that there must be no doubt regarding the
gravity of a divorce, and that a divorce comes only under the clearest evidence
of intent. You said the husband got angry, so this means that since actions in
Islam are by intention, then his actions were motivated by anger and error,
rather than by contemplation. There are some jurists who say that his anger is
irrelevant and that he should suffer for his alacritous action. We feel that
this is illogical and contrary to Islam, and if the consequences were limited
to the husband only, then one may agree. In this case, however, there are
obvious repercussions for more than just the husband. This is also not the
spirit in which divorce pronouncements are made. If the couple both regret
their actions, then one may say that there is nothing to it, he acted
impetuously, and they may resume their marriage and seek Allah's and each
other's forgiveness.
If, however, there is trouble
in the marriage, they have been contemplating divorce for some time now, and
both of them want to use this as a way out, then according to the letter of the
law, he uttered three divorces. This may be the opinion among some, but it is
NOT one to which I subscribe. I mention it, however, as an opinion.
Incidentally, divorce is not supposed to be pronounced for issues like the one
you mentioned, both parties ought to be more respectful of each other. The
Qur'an says that God has put "mawadda"
and "rahma" between spouses,
and we all ought to contemplate this carefully in our interaction. May God
guide us to patience, righteousness, and being good partners to our spouses.
Posted
March 18, 2018