Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh.  (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

dear brother Burhan. i want to ask you a question regarding conditional divorce. i want to put the question hypothetically so that exact situation can be painted. suppose, a man tells his wife that if you leave the house against my will you are divorced from my side. they fight and the woman threatens to leave. her brother comes to take her and the husband asks if he has come to take his sister and the brother of the woman replies, yes. the husband says, ok, take her and get her lugguage collected within a few days. the husband does not want to divorce her while she is leaving and does not pronounce divorce but postpones it for a few days for consultation with his parents. however he did talk about the conditional divorce with his wife couple of months prior to this occassion. The wife leaves with her brother against the will of the husband and comes back after 50 min with her brother. please reply in the light of Quran and Sunnah whether the divorce has taken effect conditionally or not. confidentiality will be appreciated. thanking you in anticipation.

(There may be some grammatical and spelling errors in the above statement. The forum does not change anything from questions, comments and statements received from our readers for circulation in confidentiality.)

Answer:

Conditional divorce hanging

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is none worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

A conditional or hanging divorce is what is known in Islamic Jurispurdence as ‘talaq mutallaq’.

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verses 229-230:

229 A divorce is only permissible twice: after that the parties should either hold together on equitable terms or separate with kindness. It is not lawful for you (men) to take back any of your gifts (from your wives) except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them. If any do transgress the limits ordained by Allah such persons wrong (themselves as well as others).

230 So if a husband divorces his wife (irrevocably or 3^rd divorce) he cannot after that remarry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they reunite provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah which He makes plain to those who understand.

Islam has laid the ties of a marriage under the care and guardianship of the husband, and to protect the rights of the woman and to not make a mockery of the institution of marriage and divorce, Islam has ordained that in any one marriage the husband has the right to pronounce only two revocable divorces. If for any reason the husband announces divorce for a third time, it will be considered absolutely irrevocable and final, and the same couple can never ever remarry each other again, unless and until the wife happens to marry another person, and that person of his own free will divorces her, or dies.

A ‘talaq mutallaq’, or hanging, or conditional divorce is when a husband puts a condition to the divorce that if the wife does such and such, or if such and such happens, she is divorced. As long as the condition is not fulfilled, the divorce pronouncement will remain ‘hanging’….and as soon as the condition is fulfilled, a divorce will be established, and one of the three divorce pronouncements of the marriage will be deemed utilized.

For example: if a husband says to his wife that if you meet such and such a person, you are divorced. As long as the wife abstains from meeting that particular person, the divorce will remain in a ‘hanging’ mode; and as soon as she meets that person, the divorce will be established.

Or if the husband says if you cook fish in the house, you are divorced; or if you go to London you are divorced, etc…..basically any condition laid down by the husband whereby he clearly declares that if the wife were to do such and such a thing, she is divorced….such a divorce will remain ‘hanging’ or ‘conditional’ until the condition is fulfilled.

Your Question: please reply in the light of Quran and Sunnah whether the divorce has taken effect conditionally or not.

Beloved brother in Islam, if you had clearly told your wife that if she leaves the house without your permission, she is divorced from your side….such a statement would constitute a ‘talaq mutallaq’ or ‘hanging’ divorce in Islamic Law; and if the wife did leave without your will, a divorce between the two of you would be established…and neither you, nor your wife, nor any in creation can change or alter or redeem what your mouth had uttered. Even if you laid that condition in jest or a joke, a divorce would be established in the Sight of Shariah Law!

Sunan of Abu-Dawood Hadith 2189 Narrated by Abu Hurayrah

The Prophet (saws) said: ‘There are three things which, whether undertaken seriously or in jest, are treated as serious: Marriage, divorce and taking back a wife (after a divorce which is not final).’

Now to your specific case: if when the brother came to take your wife, your wife asked your permission to leave and you granted her your permission to leave the house, then obviously the condition of your ‘hanging’ divorce was not violated….and thus no divorce is established in your marriage.

But if when the brother came to take your wife, and your wife left without your permission and will, then indeed the condition of your ‘hanging’ divorce given prior to the situation would take effect, and one-divorce between you and your wife will be established in the Sight of Shariah Law.

Regardless of whether your wife left the house for 1-minute or 50-minutes against your will, the time is absolutely immaterial and inconsequential….according to the condition you laid down when you pronounced the ‘hanging’ divorce, if she left the house without your will, a divorce would be established between the two of you. Thus if the wife left your house with her brother for 50-mins, provided it was against your will and permission, the condition of your ‘hanging’ divorce will be violated….and thus 1-divorce would be established between you and your wife in marriage.

Thus brother, the situation now would be that you have used up one of the three rights of divorce that you have in your marriage. Allah forbid that you should pronounce another divorce, but you should be aware that you have in your balance only one more right to divorce and take back your wife; if after that you divorce her again for the third time, that divorce will be absolutely irrevocable.

As your humble brothers and well-wishers in faith, we implore you to fear Allah and be extremely careful when using the divorce term with your wife; for this term once said cannot be taken back or annulled or cancelled or deleted.

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only Source of Strength.

Your brother and well wisher in Islam,

Burhan