Is it obligatory to have witnesses at the time of pronouncing divorce?
Question:
Is it obligatory to have witnesses at the time of pronouncing divorce?
Answer:
Bismillaahir Rahmaanir Raheem.
Alhamdulillaahi was salaatu was salaamu `alaa Rasoolillaahi wa `alaa aalihi wa sahbihi wa man waalaahu, wa ba`d:
Allaah says in Surah At-Talaaq, Aayah 2:
“And when they have (almost) fulfilled their term (i.e. `Iddah), then either keep them with kindness or part with them with kindness. And make witness two just men from among you and establish the testimony for Allaah…” [i]
Commenting on this Aayah, Imaam Al-Qayrawaani Rahimahullaah says in Al-Hidaayah Ilaa Bulooghin Nihaayah:
“This witnessing is recommended (not obligatory) according to most of the Fuqahaa…” [ii]
Imaam Al-Kaasaani Rahimahullaah says in Badaa’i`us Sanaa’i`:
“And it is known that having witnesses at the time of separation is not obligatory but rather it is recommended.” [iii]
This witnessing is Mustahabb for both divorcing, and taking back of one’s wife.
Imaam Al-Margheenaani Rahimahullaah says in Al-Hidaayah:
“It is recommended that two people witness his return to his wife after divorce, but if there are no witnesses then it (his taking her back) will be valid.” [iv]
So in short, it is recommended but not obligatory to have witnesses, but having witnesses is always best to prevent arguments arising in the future as to whether divorce was given or not, and to prevent people from gossiping, as Imaam Ibn `Aabideen Rahimahullaah says in Raddul Muhtaar:
“And it is recommended to have witnesses (when divorcing and also when coming back together) to avoid denial (i.e. to avoid him denying the divorce), and to avoid falling into places of slander, because (without witnesses) the people know him to be divorced, so he will be accused (of indecency) if he sits with her, but if there are no witnesses then (too) it (the divorce and taking her back) will (still) be valid.” [v]
And Allaah knows best.
Answered by:
Ubaidullah Ibn Adam Aal-Ebrahim.
Checked and Approved by:
Mufti Rashid Ahmed Moosagie.
Tuesday 18th Dhul Qa`dah 1434 – 24th September 2013.
[i]فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِنْكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ… – سورة الطلاق، آية ٢.
[ii]والإشهاد عند [أكثر] الفقهاء على الندب. – قاله الإمام القيرواني رحمه الله في كتابه الهداية إلى بلوغ النهاية.
[iii]وَمَعْلُومٌ أَنَّ الْإِشْهَادَ عَلَى الْفُرْقَةِ لَيْسَ بِوَاجِبٍ بَلْ هُوَ مُسْتَحَبٌّ. – قاله الإمام الكاساني رحمه الله في كتابه بدائع الصنائع.
[iv]ويستحب أن يشهد على الرجعة شاهدين فإن لم يشهد صحت الرجعة. – قاله الإمام المرغيناني رحمه الله في كتابه الهداية.