Divorce over phone
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:
aslamo alaikum
brother
my husband gave me a divorce over the phone.no witnesses. hes
exact words were `i free u,i
divorce u i give u talaq 3
times` is this a valid talaq? 3 talaqs
were given so is there a time limit we can reconcile or is that it now? if within a certain time we were to have sexual relationship
does that cancel th divorce? pls advice me.i have read
jazak Allah
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Answer:
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 no one (no idol, no
person, no grave, no prophet, no imam,
no dai,
nobody!) worthy of worship but Allah Alone, and we bear witness that
Muhammad(saws) is His slave-servant and the seal of His Messengers.
Q-1:
is this a valid talaq?
If you
are convinced that the voice at the other end of the phone was indeed that of
your husband, and if he indeed uttered the words like “i
free u, i divorce u, i give
u talaq 3 times”, then indeed it would constitute a
legal and irrevocable divorce in Islam.
Having witnesses is not a condition for divorce, thus a divorce given
without any witness whatsoever will be deemed as a legal divorce in the sight
of Shariah.
Q-2: 3
talaqs were given so is there a time limit we can
reconcile or is that it now?
Allah says in the Holy Quran Chapter 2 Surah Baqarah verse 229: A
divorce is only permissible twice: after that the parties should either hold
together on equitable terms or separate with kindness.
The
correct way to pronounce divorce in Islam, as taught in the Holy Quran, is that a
person gives one-divorce to his wife and they ‘stay-away’ from each other for
three menses periods. If before the
three menses periods are over, the husband and the wife decide to live together
and have sexual intercourse,
then the divorce is cancelled and they remain as a married
couple.
But if
the three menses period duration passes, and the couple do not come together, then the husband
and wife are divorced. If they want to
re-marry after this period, a new ‘nikaah’ needs to be done for them to be husband and wife
again; but the husband has used up one
of his three divorce rights, and has
only two more divorce rights left in this marriage.
The
divorce and re-marriage can only be done twice; and the third time the husband
pronounces the divorce, then it will be
considered a final and irrevocable divorce and the couple cannot remarry; unless the woman marries someone else, and
that husband divorces her or dies.
Thus, in Islam, one need not use all the three divorce
pronunciations to divorce his wife.
Only one divorce pronunciation is enough to obtain divorce and it also leaves
the option of the couple being re-married again in the future, if they change
their minds.
Al-Muwatta Hadith
29.4
Yahya related from Malik
from Ibn Shihab that Marwan ibn al-Hakam
decided that if someone made three pronouncements of divorce, he had divorced
his wife irrevocably.
Al-Muwatta Hadith
29.1 The
'Irrevocable' Divorce.
Yahya related to me from Malik
that he had heard that a man said to Abdullah ibn Abbas (r.a.),
"I have divorced my wife by saying ‘I divorce you’ a hundred times. What
do you think my situation is?" Ibn Abbas (r.a.) said to him, "She was divorced from you by
three pronouncements, and by the ninety-seven, you have mocked the ayat of Allah."
But if a
person declares all the three divorce pronunciations in one sitting, the opinion of
almost all the scholars and the Shariah Courts in
almost all the Islamic countries worldwide,
is that it will be counted as a final and irrevocable divorce. Thereafter, the couple cannot remarry, unless the woman marries someone else and
that husband dies, or if by his own free will, divorces her.
Q-3:
if within a certain time we were to have sexual relationship does that cancel th divorce?
If the
husband has pronounced the first or the second divorce in a marriage,
and if within the waiting period of three menses periods the husband wishes to
take the wife back, or has sexual intercourse with her; then the divorce is
nullified and they may remain as husband and wife.
But if
the first or second divorce is pronounced, and the waiting period of three
monthly periods elapses without the husband taking the wife back, or without
having sexual intercourse with her; then the husband and wife will be legally
divorced. If they wish to re-marry after
the waiting period is over, a new ‘nikaah’ will have
to be performed.
But if
one announces divorce for the third time, or if one announces all three
divorces in one sitting, it will be considered absolutely final and
irrevocable, and there is absolutely no way the husband and wife can cancel the
divorce or re-marry; unless the woman marries another man, and the man dies or
of his own free will, divorces her.
Basically
a man can pronounce two divorces in his marriage, and has the option to nullify
them by taking his wife back during the waiting periods; or if the waiting period of three menses periods have elapsed, he may still
take her back after performing a brand new ‘nikaah’
contract. But, if he announces a third
divorce, then that will be considered absolutely final and irrevocable.
Whatever
written of Truth and benefit is only due to Allah’s Assistance and Guidance,
and whatever of error is of me. Allah
Alone Knows Best and He is the Only Source of Strength.
Your Brother in Islam,
Burhan
Wister