A divorce that takes place upon a condition being broken, is that divorce a raji or bain?
Bismillaahir Rahmaanir Raheem.
Alhamdulillaahi was salaatu was salaamu `alaa Rasoolillaahi wa `alaa aalihi wa sahbihi wa man waalaahu, wa ba`d:
Conditions actually have no effect on the type of divorce at all, it is the words used that causes it to be Raj`i (revocable) or Baa’in (irrevocable).
A Talaaq which is Mu`allaq (attached) to a condition being broken such as: “If you enter that house then you are divorced” etc is considered to be a Raj`i (revocable) divorce because it is Sareeh (explicit), thus it will not be necessary to renew the Nikaah with her if he wishes to take back his wife, as long as she is still in her `Iddah (waiting period following divorce).
Likewise if such ambiguous (Kinaayah) words are used with the intention of divorce, such as: “If you leave this house without me again then I’m sending you back to your mother”, then one Baa’in (irrevocable) Talaaq will take place upon her breaking that condition, and if he wants to take her back as his wife then he will have to renew his Nikaah.
Imaam Al-Kaasaani Rahimahullaah mentions in Badaa’i`us Sanaa`i: “And there is no difference of opinion that divorce does not take place with any of these ambiguous wordings except with an intention, so if he intended divorce then it will take place between him and Allaah Ta`aalaa, but if he did not intend anything then between him and Allaah Ta`aalaa nothing (no divorce) will take place, and if he mentions any of these (ambiguous wordings) and then (falsely) says: “I did not intend divorce.” He will be liable for that by Allaah Ta`aalaa, because Allaah Ta`aalaa knows his secrets and what he conceals.” [i]
And Allaah knows best.
Ubaidullah Ibn Adam Aal-Ebrahim.
Checked and Approved by:
Mufti Rashid Ahmed Moosagie.
Wednesday 16th Muharram 1435 – 20th November 2013.