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:

Assalamualaikum !!

Dear Brother, I love my wife very much, but there was a little quarrel between us over the phone, So, I decided not to make a call for one week so she can feel that I am angry with her. But I was unable to live without calling my wife, so I said to myself " If I call her before one week, there will be divorce to her" and I said nothing to my wifef or the incident. But that couldn`t stop me from calling her. And I called her after 3 days. Within one month of this instance I went to home and we had intercourse. May Allah forgive me for the above instance, and I want to know the effect of the incident on validity of our nikah. 

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Answer:

Hanging divorce

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’.

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.

Your Question: …..I love my wife very much, but there was a little quarrel between us over the phone, So, I decided not to make a call for one week so she can feel that I am angry with her. But I was unable to live without calling my wife, so I said to myself " If I call her before one week, there will be divorce to her" and I said nothing to my wifef or the incident. But that couldn`t stop me from calling her. And I called her after 3 days.

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).’

Respected brother in Islam, regardless of whether you love your wife or not, regardless of whether you uttered the words in seriousness or in jest……if you laid a condition that if such and thing were to happen she is divorced….a ‘talaq mutallaq’ or ‘hanging divorce’ would be deemed established. If the condition which you laid is indeed fulfilled, then one divorce would be deemed established in the marriage in the Sight of Shariah Law and in the Sight of Allah Subhanah.

Your Question: ….Within one month of this instance I went to home and we had intercourse. May Allah forgive me for the above instance,and I want to know the effect of the incident on validity of our nikah. 

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verse 229:

229 A divorce is only permissible twice: after that the parties should either hold together on equitable terms or separate with kindness.

Respected brother in Islam, because the first two declarations of divorce in a marriage are revocable in Shariah, if before the expiration of the waiting period or ‘iddah’ (which is three menstruation periods of the woman) you revoked the divorce, or had sexual intercourse with your wife……the divorce is deemed as revoked and it is absolutely lawful for you to live with your wife as a married couple thereafter; but one of your two revocable divorce rights will be deemed to have been utilized in your marriage.

If Allah forbid, you were to divorce your wife again, it will constitute a second divorce in the Sight of Shariah Law…..and that second divorce is also revocable in Shariah.

But if Allah forbid, if you were to divorce your wife after that again, it would constitute a third and irrevocable divorce in Shariah….and the two of you could never ever remarry again until your wife happens to marry another husband, and her new husband of his own free will happens to divorce her, or he dies.

In your particular case brother, because the condition you laid in your declaration of ‘talaq mutallaq’ or ‘hanging divorce’ was fulfilled, one divorce has been established in your marriage in the Sight of Shariah Law and in the Sight of Allah Subhanah.

Secondly, as you have stated that within a month of the establishment of the divorce, you had sexual intercourse with your marriage….that first divorce was immediately and automatically revoked, and it is absolutely lawful for you to live with your wife as a married couple….but you would have deemed to have used up one of your two revocable divorce rights in your marriage.

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