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Conditional divorce

 

Question:

 

A divorce that takes place upon a condition being broken, is that divorce a raji or bain?

 

Answer:

 

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.

 

Answered by:

Ubaidullah Ibn Adam Aal-Ebrahim.

 

Checked and Approved by:

Mufti Rashid Ahmed Moosagie.

 

Wednesday 16th Muharram 1435 – 20th November 2013.

 


 [i]وَلَا خِلَافَ أَنَّهُ لَا يَقَعُ الطَّلَاقُ بِشَيْءٍ مِنْ أَلْفَاظِ الْكِنَايَةِ إلَّا بِالنِّيَّةِ فَإِنْ كَانَ قَدْ نَوَى الطَّلَاقَ يَقَعُ فِيمَا بَيْنَهُ وَبَيْنَ اللَّهِ تَعَالَى، وَإِنْ كَانَ لَمْ يَنْوِ لَا يَقَعُ فِيمَا بَيْنَهُ وَبَيْنَ اللَّهِ تَعَالَى، وَإِنْ ذَكَرَ شَيْئًا مِنْ ذَلِكَ ثُمَّ قَالَ: مَا أَرَدْتُ بِهِ الطَّلَاقَ يُدَيَّنُ فِيمَا بَيْنَهُ وَبَيْنَ اللَّهِ تَعَالَى؛ لِأَنَّ اللَّهَ تَعَالَى يَعْلَمُ سِرَّهُ وَنَجَوَاهُ.  قاله الإمام الكاساني رحمه الله في كتابه بدائع الصنائع.

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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.

 

 [v](قَوْلُهُ: وَنُدِبَ الْإِشْهَادُ) احْتِرَازًا عَنْ التَّجَاحُدِ وَعَنْ الْوُقُوعِ فِي مَوَاقِعِ التُّهَمِ لِأَنَّ النَّاسَ عَرَفُوهُ مُطَلِّقًا فَيُتَّهَمُ بِالْقُعُودِ مَعَهَا، وَإِنْ لَمْ يُشْهِدْ صَحَّ. – قاله الإمام ابن عابدين رحمه الله في كتابه رد المحتار.

 

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Was this a divorce?

 

Question:

 

A husband, whilst fighting with his wife on their wedding day uttered the words “let’s just pack this whole thing up”, Referring to their nika. Was this a divorce issued from the husband?

 

Answer:

 

Bismillaahir Rahmaanir Raheem.

 

Alhamdulillaahi was salaatu was salaamu `alaa Rasoolillaahi wa `alaa aalihi wa sahbihi wa man waalaahu, wa ba`d:

 

Divorce is of two types: Sareeh (explicit) and Kinaayah (ambiguous).

 

Explicit divorce is for example: “Anti Taaliqun” (you are divorced).

 

While all ambiguous wordings which may mean divorce or may mean something else will be judged based on the intention of the husband at the time when he made the statement. If he intended divorce by it then a single Talaaq Baa’in (irrevocable divorce) will take place, and he will have to renew his Nikaah if he wants to continue staying with that woman.

 

However if he did not intend divorce then no divorce will take place. Even if he lies and says he did not intend divorce when in reality he did intend divorce, then too we are forced to give the ruling that no divorce has taken place, because we cannot tell what the hearts conceal. Allaah will take him to task in the hereafter for his lie, but in this world they shall be treated as husband and wife.

 

Imaam Al-Kaasaani Rahimahullaah defines what Kinaayah is in Badaa’i`us Sanaa’i` and says: “It is all those words which are used for divorce and used for other than it as well, like for example: “You are free” or “You are forbidden upon me” etc.” [i]

 

He then says: “Now when these statements have the possibility of referring to divorce or to something other than divorce, its real meaning is hidden to the listener, therefore it requires an intention in order to specify its meaning.” [ii]

 

And he further states: “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.” [iii]

 

Now in the case in question, this is a prime example of Kinaayah, therefore the man will have to be asked concerning his intention, if he says he intended divorce, well then the marriage is broken, but if he says he just said so out of frustration and had no intention of divorce, then their marriage is intact.

 

 

And Allaah knows best.

 

Answered by:

Ubaidullah Ibn Adam Aal-Ebrahim.

 

Checked and Approved by:

Mufti Rashid Ahmed Moosagie.

 

Tuesday 16th Sha`baan 1434 – 25th June 2013.

 


 

[i]فَهُوَ كُلُّ لَفْظٍ يُسْتَعْمَلُ فِي الطَّلَاقِ وَيُسْتَعْمَلُ فِي غَيْرِهِ نَحْوُ قَوْلِهِ: أَنْتِ بَائِنٌ، أَنْتِ عَلَيَّ حَرَامٌ. – قاله الإمام الكاساني رحمه الله في كتابه بدائع الصنائع.

 [ii]وَإِذَا احْتَمَلَتْ هَذِهِ الْأَلْفَاظُ الطَّلَاقَ وَغَيْرَ الطَّلَاقِ فَقَدْ اسْتَتَرَ الْمُرَادُ مِنْهَا عِنْدَ السَّامِعِ، فَافْتَقَرَتْ إلَى النِّيَّةِ لِتَعْيِينِ الْمُرَادِ. –  قاله الإمام الكاساني رحمه الله في كتابه بدائع الصنائع.

 [iii]وَلَا خِلَافَ أَنَّهُ لَا يَقَعُ الطَّلَاقُ بِشَيْءٍ مِنْ أَلْفَاظِ الْكِنَايَةِ إلَّا بِالنِّيَّةِ فَإِنْ كَانَ قَدْ نَوَى الطَّلَاقَ يَقَعُ فِيمَا بَيْنَهُ وَبَيْنَ اللَّهِ تَعَالَى، وَإِنْ كَانَ لَمْ يَنْوِ لَا يَقَعُ فِيمَا بَيْنَهُ وَبَيْنَ اللَّهِ تَعَالَى، وَإِنْ ذَكَرَ شَيْئًا مِنْ ذَلِكَ ثُمَّ قَالَ: مَا أَرَدْتُ بِهِ الطَّلَاقَ يُدَيَّنُ فِيمَا بَيْنَهُ وَبَيْنَ اللَّهِ تَعَالَى؛ لِأَنَّ اللَّهَ تَعَالَى يَعْلَمُ سِرَّهُ وَنَجَوَاهُ.  قاله الإمام الكاساني رحمه الله في كتابه بدائع الصنائع.

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My husband refuses to support me financially and is demanding the car back that he gave as mehr.

Question:

Wslm. My question is as follows. I remarried 18 months ago to a man older than me seeing it as a marriage that will work. My husband told me he had been widowed from he’s 2nd wife of 10 yrs and there were no kids in the marriage. He mentioned that there was a 1st wife and he was still in the nikah but that they merely lived under one roof but that she had lost her mind 28 yrs ago and that she was in her room, he was in he’s and she did not remember him. My husband and I are now estranged due to the constant interference of he’s daughters in our marital home where they used to visit and constantly I had to sit through hours of them talking bout Mummy Mummy Mummy. Strange but on all there wedding dvds, as they are all now divorced with no kids, there mother was also left at home like a dirty secret. Yet these very kids saw fit to torment me with her. Be that as it may this man thought he’s money is everything and he’s kids are queens. It was a disaster waiting to happen. When I told him after 18mths of constant nursing and running to hospital with him and listening to he’s kids snide remarks and keeping down a fulltime job then he paid 3 months deposit and rental for and apartment, where he had found me for me again. He started moving he’s clothes back to he’s old house he shared with he’s kids and estranged wife and I realised he was glad I was leaving. I really possibly thought he would have stood for our marriage but I think when I told him he can get R10000 per month for the house he was living in with me that he was glad I was moving out. Besides he always said that house too is for he’s children if he die. Now I live alone 4 months and he opted to come round and spend weekends. However there was one floor. He wasn’t prepared to spend more than R200pw on nafaka in total in this new phase of our life. He ceased all support. Refused to assist with any financing and since I work I felt no need for him to stay. I asked him once again to not come here.

I haven’t heard from him except that he is demanding the car he gave me as dowry back as well as a bed freezer. Few odds and ends

I have refused as I am quantifying my worth in that hard 18 months.

What recourse do I have.

Is this husband right in justifying that I am he’s other wife and not entitled to any nafaka as all he’s money has to go into a tryst for he’s first, majnoon, wife and kids. Yet I was taking care of him.

He has formed a trust with all he’s assets. Says he did not include me.

He hasn’t supported me in 4 months. Refuses.

What recourse do I have except to tey the civil courts when he comes as he bought the care on the company name saying he needed to claim the vat back

I have it stated as mehr on my marriage certificate. I have that same car as a birthday present. I have that same car as an anniversary present. I have that same care as a valentyns day gift and I have that same car from him at R1000 pm plus insurance in a signed agreement by both of us.

I asked him which agreement he wants to honour and he said unless I am not prepared to reconsile on R200 PW he will dishonour all agreements including mehr

This by a 5 time a day namazi

I am left only with the civil route as who can help me since we are only islamically married and he is a shrewd 70 yt old memon invalid. Shukran.

 

Answer:

 

Bismillaahir Rahmaanir Raheem.

 

Alhamdulillaahi was salaatu was salaamu `alaa Rasoolillaahi wa `alaa aalihi wa sahbihi wa man waalaahu, wa ba`d:

 

From an Islaamic perspective, it is not permitted for a man to take back his Mahr, Allaah says in Surah An-Nisaa, Aayah 20:

 

“And if you intend to replace one wife with another and you have given one of them a large amount (in dowry and gifts) then do not take anything from it. Would you take it in injustice and clear sin?” [i]

 

Even gifts in general besides Mahr is forbidden to take back, Hadhrat `Abdullaah ibn `Abbaas Radhiallaahu `Anhu narrates that Rasoolullaah Sallallaahu `Alayhi Wa Sallam said: “The example of a person who gives a gift and then takes back his gift, is like a dog that vomits, then licks up its own vomit.”Saheeh Muslim. [ii]

 

Unfortunately we do not live in an Islaamic state where the Islaamic court would see to cases like this.

 

So in your case, if after you have tried every possible measure, and yet he refuses, you may then take it to the kuffaar court. According to your statement above, you have a certificate which mentions the car as Mahr (dowry), you can take that certificate to a family court and get a court order stating the car is yours, which will prevent him from being able to forcibly take it from you.

 

As for his claim that you are not entitled to Nafaqah (maintenance), then that has no basis, because it is one of the most basic rights a woman has in a marriage, Allaah says in Surah an-Nisaa, Aayah 34: “Men are the guardians of women due to the virtue Allaah has given one of them (males) over the other (females), and due to the wealth that they spend.” [iii]

 

If a man cannot divide his time and wealth equally between two wives then such a person may not keep a second wife, Hadhrat Abu Hurayrah Radhiallaahu `Anhu narrates that Rasoolullaah Sallallaahu `Alayhi Wa sallam said: “If a man has two wives and he does not do justice between them, he will come on the day of resurrection with his one side hanging down.” – Sunan At-Tirmidhi. [iv]

 

When a marriage has degenerated to such a level, and there seems like no way to mutual reconciliation, then it is best if such a marriage is dissolved, as Allaah says in Surah Baqarah, Aayah 229: “So either keep (her) with goodness, or let (her) go with kindness.” [v]

 

And Allaah knows best.

 

Answered by:

Ubaidullah Ibn Adam Aal-Ebrahim.

 

Checked and Approved by:

Mufti Rashid Ahmad Moosagie.

 


[i] وَإِنْ أَرَدْتُمُ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنْطَارًا فَلا تَأْخُذُوا مِنْهُ شَيْئًا أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُبِينًا

[ii] إِنَّمَا مَثَلُ الَّذِي يَتَصَدَّقُ بِصَدَقَةٍ، ثُمَّ يَعُودُ فِي صَدَقَتِهِ، كَمَثَلِ الْكَلْبِ يَقِيءُ، ثُمَّ يَأْكُلُ قَيْئَهُ

[iii] الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاءِ بِمَا فَضَّلَ اللَّهُ بَعْضَهُمْ عَلَى بَعْضٍ وَبِمَا أَنْفَقُوا مِنْ أَمْوَالِهِمْ

[iv] إِذَا كَانَ عِنْدَ الرَّجُلِ امْرَأَتَانِ فَلَمْ يَعْدِلْ بَيْنَهُمَا جَاءَ يَوْمَ القِيَامَةِ وَشِقُّهُ سَاقِطٌ

[v]فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ

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