Chapter 1

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Divorce

36580: He pronounced divorce three times but the qaadi wrote it down as one divorce. The `iddah has now ended and he wants to take her back

Question:

I divorced my wife about eight years ago. When I asked the qaadi to record the divorce I said: "I divorce my wife So and so the daughter of So and so three times." When I did that I knew what he had written down because I am an educated man, but when the scribe wrote it down in the records, he wrote it as one divorce. This gave my wife the hope that I would take her back and she has not remarried until now… Now I want to take her back, and her family also wants that.

Should I go against my intention and proceed on the basis of what is written in the records or not?.

Answer:

Praise be to Allaah.

The scholars differed concerning the ruling on one who divorces his wife by saying "I divorce you thrice". The majority of scholars are of the view that this means that divorce has taken place three times; others are of the view that divorce takes place only once.

Shaykh `Abd al-`Azeez ibn Baaz (may Allaah have mercy on him) was asked:

A man divorced his wife by saying "I divorce you thrice"; what is the ruling on that?

He replied:

If a man divorces his wife three times with one word, such as saying, "You are thrice divorced", the majority of scholars are of the view that the woman is indeed thrice divorced and becomes forbidden for her husband until she has been married to another man in a serious marriage in which the new husband has intercourse with her and they only separate as a result of death or divorce, not a tahleel marriage (i.e., a marriage of convenience aimed at making it permissible for her to remarry her former husband).

They quoted as evidence for that the fact that `Umar ibn al-Khattaab (may Allaah be pleased with him) counted such a divorce as being three and judged among people accordingly.

Other scholars were of the view that this is to be regarded as a single divorce, and the husband may take her back so long as the `iddah has not yet ended. If the `iddah has ended then she may marry him with a new marriage contract. They quoted as evidence for that the report narrated in Saheeh Muslim from Ibn `Abbaas (may Allaah be pleased with him) who said: "At the time of the Messenger of Allaah (peace and blessings of Allaah be upon him), the time of Abu Bakr (may Allaah be pleased with him) and the first two years of the caliphate of `Umar (may Allaah be pleased with him), a threefold divorce was counted as one. `Umar said: "People are being hasty with regard to a matter in which they should not rush. Let us count it as three and judge between people accordingly ." According to another report narrated by Muslim: Abu'l-Sahba' said to Ibn `Abbaas (may Allaah be pleased with them): "Was not three counted as one at the time of the Messenger of Allaah (peace and blessings of Allaah be upon him) and the time of Abu Bakr (may Allaah be pleased with him) and the first three years of the time of `Umar (may Allaah be pleased with him)?" He said: "Yes,"

They also quote as evidence the report narrated by Imam Ahmad in al-Musnad with a jayyid isnaad from Ibn `Abbaas (may Allaah be pleased with him), that Abu Rakaanah divorced his wife by saying "I divorce you thrice", then he regretted it, so the Prophet (peace and blessings of Allaah be upon him) returned her to him with one word and said, "This is only one (divorce)." This hadeeth and the one before it are to be understood as referring to divorcing by saying "I divorce you thrice", in order to reconcile these two hadeeths and the verse in which Allaah says (interpretation of the meaning):

"The divorce is twice"

[al-Baqarah 2:229]

"And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allaah. These are the limits of Allaah, which He makes plain for the people who have knowledge"

[al-Baqarah 2:230]

This was the view of Ibn `Abbaas (may Allaah be pleased with him) according to a saheeh report narrated from him; according to the other report narrated from him he shared the view of the majority. The view that they should be regarded as one divorce was narrated from `Ali, `Abd al-Rahmaan ibn `Awf and al-Zubayr ibn al-`Awwaam (may Allaah be pleased with them).

This was also the view of a number of the Taabi'een, Muhammad ibn Ishaaq the author of al-Seerah, and a number of the earlier and later scholars. It was also the view favoured by Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allaah have mercy on them). This is also my view, because that is following all of the texts, and because it is also more merciful and kind to the Muslims.

Fataawa Islamiyyah, 3/281, 282.

It seems that the qaadi was also of this view, which is that the threefold divorce counts as one divorce. Based on this there is nothing wrong with taking her back.

But after the `iddah is over you cannot take her back, rather you have to make a new marriage contract with her.

With regard to taking her back after the `iddah is over _ i.e., after three menstrual cycles _ this is not valid, because once a woman's `iddah is completed she becomes a "stranger" for her husband and she is not permissible for him except with a new marriage contract.

Fataawa Islamiyyah, 3/293. And Allaah knows best. Islam Q&A (www.islam-qa.com)

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47335: Her husband drinks alcohol; should she stay with him?

Question:

My sister is married to a man who drinks alcohol and is virtually addicted to it. He also stays up at night a great deal. She got tired of advising him and asking him to give it up, and he refused to do so. Is it permissible for her to live with him knowing that she has two children from him. She is in another Arab country and is suffering from loneliness. What do you advise her to do, may Allaah reward you?.

Answer:

Praise be to Allaah. Firstly: we ask Allaah to help your sister to deal with this calamity and to bring her relief, and to guide her husband to give up this major sin in which he is persisting.

With regard to the ruling on her staying with him, it is permissible for her to do so if she is certain that she and her children will be safe.

Shaykh Ibn `Uthaymeen (may Allaah have mercy on him) said: I think that if she has advised him and he has not responded, then she has the right to ask for an annulment of the marriage. But there may be reasons why she cannot annul the marriage, because she has children and annulment may cause further problems. If his sin does not reach the level of kufr, then there is no sin on her if she stays with him for fear of evil consequences. But if his sin reaches the level of kufr, such as if he does not pray, then she should not stay with him a second longer.

Al-Liqa' al-Maftooh, Q. 518.

Secondly: Our advice to her is that she should weigh up what is in her best interests, and consult her family and relatives, who know her situation best. Then she should ask Allaah's guidance (by praying istikhaarah), for Allaah will never let her down. As the report says: No one loses by praying istikhaarah and no one regrets consulting others. Whether she chooses to annul the marriage or to stay, let her accept what Allaah has decreed for her and be patient and seek reward. Allaah says (interpretation of the meaning):

"but give glad tidings to As Saabiroon (the patient)" [al-Baqarah 2:155]

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49719: Their father is senile and divorced their mother _ did divorce really take place? And should they put him in a home for the elderly?

Question:

My father is bedridden and very sick; sometimes he does not know what he is saying, and at other times we find that he is very focused and can calculate money. He often insults religion and has weak eyesight and cannot hear at all. Often he urinates in the bed then throws his urine on the floor, then when we come and ask him, sometimes he denies it and sometimes he does it to annoy us and force us to wipe it up. One time my mother did wudoo' then he called her, so she went to him, and he threw urine at her. She told him off and he said: "I am going to divorce you." A little while later he said, "You are divorced." What about this divorce? How should we deal with this father who is now in a very bad state and we cannot bear it. Can we put him in a home for the elderly?.

Answer:

Praise be to Allaah.

It seems from what your father is doing that he has reached the stage of senility, at which the obligations of sharee'ah are waived, so he is not expected to pray or fast, and any vows, oaths or words of divorce spoken by him are invalid.

If you can be patient and put up with the things he does, then you should do that. If you cannot bear it, then there is nothing wrong with you taking him to a home that takes care of the elderly, on condition that you carry on honouring him and visiting him, and meeting his physical and emotional needs as much as you can.

You should note that Allaah has enjoined honouring parents, especially when they reach old age, because of their great need at that time. Allaah has forbidden mistreating parents in word or deed, even by saying "Uff" (a mild expression of displeasure).

Allaah says (interpretation of the meaning):

"And your Lord has decreed that you worship none but Him. And that you be dutiful to your parents. If one of them or both of them attain old age in your life, say not to them a word of disrespect, nor shout at them but address them in terms of honour

And lower unto them the wing of submission and humility through mercy, and say: `My Lord! Bestow on them Your Mercy as they did bring me up when I was young.'"

[al-Isra' 17:23]

Shaykh `Abd al-Rahmaan al-Sa'di said:

Then after mentioning His rights, Allaah mentions the rights of parents and says, "And that you be dutiful to your parents" i.e., you should treat them kindly in all ways, in word and deed, because they are the reason why a person exists and because they love their child and treat him kindly, which confirms that the child in turn is obliged to treat them kindly.

"If one of them or both of them attain old age in your life" means, if they reach the age at which they grow weak and need kindness and good treatment, "say not to them a word of disrespect": the word "uff" is the least kind of offensive speech, and what is meant is do not mistreat them in the slightest.

"Nor shout at them" means, do not rebuke them or speak to them in a disrespectful manner. "But address them in terms of honour" means, in a polite, gentle and kind manner, which will soften their hearts and give them peace of mind. That varies according to circumstances, customs and times.

"And lower unto them the wing of submission and humility through mercy" means, be humble towards them and compassionate, seeking reward thereby, not because you are afraid of them or hope for what they have and other motives for which a person will not be rewarded.

"And say: `My Lord! Bestow on them Your Mercy" means: pray for Allaah's mercy for them during their lifetime and after they have died, in return for their having brought you up when you were young.

From this it may be understood that the more time spent in looking after their child, the greater their rights. Also, whoever takes care of raising a person and teaching him properly about his religious and worldly affairs instead of his parents has similar rights over the one whom he raised.

Tafseer al-Sa'di, p. 407, 408

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47040: Man divorcing his wife on his parents' orders

Question:

What is the shar'i ruling on a man divorcing his wife when his parents tell him to, on the grounds that this wife used to work for them as a servant in the past? Is this regarded as disobeying one's parents? Please note that this wife currently lives an honourable life.

Answer:

Praise be to Allaah.

Undoubtedly the parents are those who are most deserving of respect, obedience and kind treatment. Allaah mentions the command to treat parents well alongside the command to worship Him as He says (interpretation of the meaning):

"And your Lord has decreed that you worship none but Him. And that you be dutiful to your parents"

[al-Isra' 17:23]

Obedience to parents is obligatory on the child with regard to that which will benefit them and will not harm the child. With regard to that which does not bring them any benefits or which will cause harm to the child, he does not have to obey them in that case.

Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said in al-Ikhtiyaaraat (p. 114): A person is obliged to obey his parents with regard to that which is not sinful, even if they are immoral evildoers… This has to do with that which is beneficial for them and not harmful to him. End quote.

Divorce with no acceptable reason is something that is hated by Allaah, because it destroys the blessings of marriage and exposes the family to destruction and the children to loss. It may also involve injustice towards the woman. The fact that the wife had been a servant in the past is not a legitimate reason for divorce, especially if she is religiously-committed and has a good attitude.

Based on this, he does not have to obey his parents and divorce his wife, and that is not regarded as being disobedient towards them. But the son should express his refusal to divorce her in a kind and gentle manner, because Allaah says (interpretation of the meaning):

"say not to them a word of disrespect, nor shout at them but address them in terms of honour

[al-Isra' 17:23]

Shaykh Muhammad ibn Saalih ibn `Uthaymeen (may Allaah have mercy on him) was asked about the ruling on a man divorcing his wife if his father tells him to do that. He said:

If the father tells his son to divorce his wife, one of the following two scenarios must apply:

1 _ Where the father gives a legitimate reason why he should divorce her and separate from her, such as saying, Divorce your wife because her behaviour is suspicious, such as she flirts with men or goes out to gatherings that are not decent and so on. In this case the son should agree and divorce her, because he is not telling her to divorce her on the basis of a whim, rather that is to protect his son's honour from being besmirched, so he should divorce her.

2 _ Where the father tells his son to divorce his wife because the son loves her, but the father feels jealous of his son's love for her and the mother is more jealous, because many mothers, when they see that their son loves his wife, feel very jealous, as if the son's wife is a co-wife and rival. We ask Allaah to keep us safe and sound. In this case the son does not have to divorce his wife if his father or mother tells her to divorce her. Rather he should be tactful with them and keep his wife, and he should try to convince them with kind words until they are persuaded that she should stay with him, especially if the wife is religiously committed and has a good attitude.

Imam Ahmad (may Allaah have mercy on him) was asked about this very issue. A man came and said: "My father is telling me to divorce my wife." Imam Ahmad said to him: "Do not divorce her." He said: "Didn't the Prophet (peace and blessings of Allaah be upon him) tell Ibn `Umar to divorce his wife when `Umar told him to do that?" He said: "Is your father like `Umar?"

If the father quotes evidence to his son and says, "O my son, the Prophet (peace and blessings of Allaah be upon him) told `Abd-Allaah ibn `Umar to divorce his wife when his father `Umar told him to do that," the response to that is: "Are you like `Umar?" But you should speak kindly and gently, and say that `Umar saw something which indicated that it was in his son's interests to divorce his wife. This is the answer to this question which comes up frequently.

Al-Fataawa al-Jaami'ah li'l-Mar'ah al-Muslimah, 2/671.

The Standing Committee for Issuing Fatwas was asked about a mother telling her son to divorce his wife for no reason or fault in her religious commitment, rather it was because of the mother's personal reasons. They replied as follows:

If the situation is as described, that his wife is righteous and he loves her, and she is dear to him, and she does not behave badly towards his mother, and his mother only dislikes her for personal reasons, then he should keep his wife and stay married to her. He does not have to divorce her in obedience to his mother, because it was proven that the Prophet (peace and blessings of Allaah be upon him) said: "Obedience is only with regard to that which is right and proper." Based on this, he should honour his mother and uphold ties of kinship with her by visiting her and spending on her, and paying attention to her needs and making her happy and pleasing her in whatever ways he can, apart from divorcing his wife.

Fataawa al-Lajnah al-Daa'imah, 2/29.

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36761: Ruling on divorce via e-mail

Question:

First divorce communicated through email to te wife ,father,and uncle whether valid or a signed document necessary? whether the other two remaining divorces can be obtained immediately?.

Answer:

Praise be to Allaah.

Firstly:

It is well known in sharee'ah that divorce takes place when the words are uttered, written or indicated by a gesture that takes the place of speaking. See question No. 20660. This is something that is between the husband and his Lord if no one hears him say that. With the regard to divorce via e-mail there is no problem regarding the fact that it is valid: if the husband writes that he is divorcing his wife then the divorce takes place by virtue of that writing. But the issue here is whether this divorce can be proven and authenticated (in court).

It seems that the husband's divorce of his wife via e-mail is effective if it is proven definitively that the one who sent the e-mail containing the words of divorce is the husband or someone whom the husband appointed to issue the divorce, and he acknowledges that and does not deny it.

But if that cannot be proven and the husband does not acknowledge it, then this e-mail message is not valid and divorce does not take place in this case, because it is well known to those who work in this field that it is possible to hack into e-mail accounts and send messages. So we cannot be absolutely certain that the one who sent it is the husband.

So proof and confirmation must be sought from the husband, and the the divorce should not be regarded as having taken place until after it has been confirmed by the husband. If he confirms it then the `iddah begins from the time when he uttered or wrote the words of divorce.

Secondly:

The two remaining divorces (talaaq) cannot take place immediately, for divorce takes place one at a time. Allaah says (interpretation of the meaning):

"The divorce is twice"

[al-Baqarah 2:229]

This refers to the revocable divorce (i.e., first or second talaaq). Allaah did not say "two divorces" _ which indicates that it can only happen one at a time, followed by the `iddah in each case. If the first divorce is valid as is counted as such, then we have to wait out the `iddah. If he takes you back during the `iddah, then this divorce counts as one of the three divorces, and he has to bring witnesses to attest to that. If he does not take you back during the `iddah, then you are divorced as soon as the `iddah is over, and it is not permissible for him to take you back without a new marriage contract and a new mahr, and he is regarded as a stranger to you like any other man who may propose marriage, and the marriage can only be done with your approval and the agreement of your guardian.

The applies in the case of a second divorce; if he takes you back during (the `iddah) then you are his wife. In the event of a third divorce, you become haraam for him until you have married another husband in a legitimate shar'i marriage which is not done solely with the intention of enabling you to remarry your first husband, and which is consummated in the proper manner. If it so happens that you get divorced from your second husband then it becomes permissible for you to remarry your first husband after the `iddah ends.

And Allaah knows best.

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13253: Married to a Christian woman _ what should he do next?

Question:

I'm muslem by birth. Except fasting during Ramadan, I haven't been practicing much else of Islam til about 3 years ago. I married a christian (non practicing) american women about 5 years ago but I've known her for 5 more years before that. I've been hoping that she'll see the light and convert to islam but it didn't happen. We talked about it and she said that converting to islam is out of the question. She's a very nice person from a very nice family and she helped me a lot since I moved to the USA. She wants to have kids soon (so do I), but it will kill me to see my kids grow up other then muslems. Even though she agrees that the children will grow up as muslems. She said she will teach them Islam and would not confuse them by teaching them any other religion. She doesn't know much about islam and she said she'll start learning as soon as she gets pregnant. I'm very scared and depressed about this. I tried ending up the marriage 3 times but every time she cried til my heart softened and agreed to give it one more try. I'm running out of time and I don't think I can go on with having children with her. She'll resent it if we never have children and we'll probably end up separated sooner ar later.
Please advise me as to what to do. What are my responsibilities towards her if we should divorce?.

Answer:

Praise be to Allaah.

Firstly:

We advise you to adhere to Islam and adhere to its obligatory duties such as prayer, zakaah and fasting, and to be an example to your wife so that perhaps Allaah will guide her at your hands and you will achieve much good thereby.

Secondly:

Your anxieties and fears about your children growing up as non-Muslims _ if they are born from this woman _ reflects a commendable concern on your part for your religion and the religion of your children. Undoubtedly this good attitude is a good thing. In order to find peace of mind you need to make a great deal of du'aa' and ask Allaah to protect your religious commitment and that of your children. You have to pray istikhaarah as prescribed in Islam, and ask Allaah to guide you and help you to make the right decision as far as your religious commitment is concerned, and choose whether to stay with her and have children with her, or to leave her and marry a committed Muslim woman with whom you will feel confident _ by Allaah's leave _ about your children. Be certain that whoever gives up something for the sake of Allaah, Allaah will compensate him with something better than it, as is proven in the hadeeth of the Prophet (peace and blessings of Allaah be upon him). You can make the most of your wife's being so attached to you to explain to her that if there is a conflict between your love for her and the soundness of your religious commitment, then the soundness of your religious commitment has to take priority. Perhaps this will motivate her to enter the true religion of Allaah _ Islam.

You should note that you cannot force her to enter Islam without conviction, because entering the religion of Islam by force will not benefit her, as Ibn Katheer mentioned (1/211).

See also The effects of marriage to kitaabi women (i.e., Jewish and Christian women), question no. 20227.

Thirdly:

If your circumstances are conducive to your raising your children as Muslims and protecting them from religious and moral deviation, and your wife and her family will not be able to influence them in those areas, then there is nothing wrong with trying to have children with your wife, even if she remains a Christian, because having children is also the wife's right, and that may help her to learn about Islam and look into it as she has promised to do.

Fourthly:

You should try to move to a Muslim country where you will be able to give your children a sound upbringing, whether you stay with this wife or marry someone else, because staying in the kaafir lands is not permissible except in cases of necessity or where it serves the interests of the Muslims _ such as staying there to call people to Allaah, or to study and acquire knowledge that the Muslims need but is not available in their countries _ so long as one is able to practise Islam openly and call others to Islam, because the Prophet (peace and blessings of Allaah be upon him) said: "I disavow any Muslim who stays among the mushrikeen." Narrated by Abu Dawood, 2645; classed as saheeh by al-Albaani in Saheeh Abi Dawood.

For more information on this issue please see question no. 13363.

Fifthly:

In the event of a divorce, then the wife is entitled to the delayed mahr (dowry), if applicable. With regard to accommodation and maintenance, that depends on the type of divorce:

If a man has given his wife one revocable talaaq (divorce), then she is entitled to accommodation and maintenance during the `iddah; she may also inherit from him and he from her (if either of them dies) during this period, because they are still married. The evidence that a woman divorced by a revocable talaaq is entitled to accommodation is the verse in which Allaah says (interpretation of the meaning):

"O Prophet! When you divorce women, divorce them at their `Iddah (prescribed periods) and count (accurately) their `Iddah (periods). And fear Allaah your Lord (O Muslims). And turn them not out of their (husband's) homes nor shall they (themselves) leave, except in case they are guilty of some open illegal sexual intercourse. And those are the set limits of Allaah. And whosoever transgresses the set limits of Allaah, then indeed he has wronged himself. You (the one who divorces his wife) know not it may be that Allaah will afterward bring some new thing to pass (i.e. to return her back to you if that was the first or second divorce)"

[al-Talaaq 65:1]

If she does not go back to him until after the `iddah has ended, then she can only go back to him with a new marriage contract.

If a man divorces his wife with an irrevocable talaaq, then she is not entitled to accommodation and maintenance during the `iddah, unless she is pregnant.

Irrevocable divorce is of two types:

(i) The "lesser" type, which is divorce before the marriage has been consummated, and the divorce in return for some compensation or payment.

(ii) The "greater" type, which is the third of three talaaqs.

The evidence that a woman who has been divorced by an irrevocable talaaq is not entitled to maintenance or accommodation is the report narrated by Muslim (1480) from al-Sha'bi who said: I entered upon Faatimah bint Qays and asked her about the ruling of the Messenger of Allaah (peace and blessings of Allaah be upon him). She said that her husband divorced her irrevocably and she referred the matter to the Messenger of Allaah (peace and blessings of Allaah be upon him) to judge with regard to accommodation and maintenance. She said: He did not grant me accommodation or maintenance, and he told me to observe my `iddah in the house of Ibn Umm Maktoom.

According to another report also narrated by Muslim she said: I mentioned that to the Messenger of Allaah (peace and blessings of Allaah be upon him) and he said: "You are not entitled to any maintenance or accommodation." According to a version narrated by Abu Dawood: "You are not entitled to any maintenance unless you are pregnant."

And Allaah knows best.

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44923: His mother wants him to divorce his second wife so that no one else will follow his example and marry more than one wife

Question:

I am a lady who has been married for a short time because I am the second wife of a married man. His mother has asked him to divorce me, not because of any bad conduct on my part, but merely so that his sisters' husbands will not follow his example. She says that she does not care if there is any sin on her because of this demand, what matters is not to go against custom by entering into a plural marriage. What is the Islamic point of view on this matter? Does my husband have to obey her in that, knowing that I live with him according to the way of Allaah?.

Answer:

Praise be to Allaah.

The mother has no right to tell her son to divorce his wife just because he is going against his family's or tribe's custom by taking a second wife, or because she fears that her daughter's husbands may follow his example, because plural marriage is something that has been permitted by Allaah and by His Messenger (peace and blessings of Allaah be upon him).

The son does not have to obey his father or mother with regard to divorcing his wife, especially if that is for a reason that is contrary to the aims of sharee'ah, namely to have many children and keep Muslim women chaste and reduce immorality.

It says in Mutaalib Oola'l-Nuha (5/320): A son is not obliged to obey his parents, even if they are of good character, with regard to divorcing his wife, because this is not part of honouring one's parents.

Shaykh al-Islam Ibn Taymiyah was asked about a married man who has children, but his mother dislikes his wife and tells him to divorce her. Is it permissible for him to divorce her? The answer was: It is not permissible for him to divorce her because of what his mother says, rather he should honour his mother, but divorcing his wife is not part of honouring his mother. And Allaah knows best.

Al-Fataawa al-Kubra, 3/331

Your husband has to honour his mother and treat her kindly, whilst keeping you as his wife, because it is not part of honouring his mother to divorce his wife.

This mother should be advised and reminded that it is essential to follow the laws of Islam, and to beware of drawing nigh to sin. She should realize that whether her daughters will get divorced or not, or their husbands will take second wives or not, are matters of the unseen which no one knows except Allaah. Whatever He wills will happen, so there is no point in committing haraam actions and splitting up families.

Our advise to you is to strive your hardest to treat your husband's mother kindly and to win her love, so that your kind treatment of her will erase from her mind the idea of telling her son to divorce you.

And Allaah knows best.

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36548: What is the relationship of a woman to the man who has divorced her?

Question:

Is it permissible for me to go out with my ex-husband in the company of our children on occasion, so that they can be together with both parents like other children. That is done is public places. Also, he does not pray _ is the money that he spends on them haraam?.

Answer:

Praise be to Allaah.

If a man has issued the last of three talaaqs (divorces), or he has divorced her once or twice and her `iddah has ended, then she becomes a stranger (non-mahram) to him, and it is not permissible for her to be alone with him or to touch her or to look at her.

The relationship of an ex-husband with his ex-wife is like his relationship with any other non-mahram woman. The fact that they have children does not justify his looking at her, being alone with her or travelling with her. He can go out with his children without her being there, or she can be present with one of her mahrams, without doing any of the haraam things that we have mentioned.

Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said:

A thrice-divorced woman is a stranger (non-mahram) to the man like any other non-mahram woman, so the man does not have the right to be alone with her, just as he does not have the right to be alone with any non-mahram woman. And he cannot see of her what he cannot see of any non-mahram woman, and there are no special rulings concerning the relationship between them (other than the rulings governing all interactions between non-mahrams).

Al-Fataawa al-Kubra, 3/349.

With regard to accepting what the divorced husband spends on his children, there is no reason not to do so, even if he does not pray. She should remind her children of the importance of advising their father to pray, and may Allaah guide him through this advice.

If the mother fears that her children may be adversely affected by their kaafir father or that he may lead them to do something that Allaah has forbidden, it is not permissible for her to allow them to go out with him, because their going out with him is causing them harm.

And Allaah knows best.

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23269: Does touching with desire count as taking back a divorced wife?

Question:

For about 2 years now my husband and I have been having extreme marry difficulties, the problems have gotten soo bad that it has ended up in 2 divorces, the first divorce he took me back (having intercourse with me), the second divorce he just touched me (without having intercourse),but the touch was in a romatic way. He claims that I am still divorced, because he says that he has to have actual intercourse with me, I have passed one period, so he says that I have 2 more left and my iddah is over, is he right? or did he take me back even though he did not have intercourse with me he just touched me?.

Answer:

Praise be to Allaah.

Firstly:

Taking back the wife during the `iddah period is a right which sharee'ah gives to the husband. If he wants, he may take her back and if he wants, he may leave his wife until the `iddah period is over. Allaah says (interpretation of the meaning):

"And their husbands have the better right to take them back in that period, if they wish for reconciliation"

[al-Baqarah 2:228]

So Allaah has given the husbands of divorced women the right to take them back during this period [i.e., the `iddah] if they intend reconciliation thereby.

This taking back may be achieved in two ways: by word or by deed.

Taking the wife back by word means saying, for example, "I take back my wife" or "I am keeping my wife," etc., or saying to her: "I take you back," or "I am keeping you," etc.

Taking back is achieved by means of these phrases, according to the consensus of the fuqaha'.

Writing may take the place of speaking, and a gesture may take its place on the part of one who is unable to speak these words, such as one who is mute.

Taking the wife back by deed means intercourse, so long as that is with the intention of reconciliation.

Shaykh `Abd al-Rahmaan al-Sa'di said:

If the husband had divorced her with a revocable talaaq, then if the `iddah is over she is not permissible for him unless a new marriage contract is done, fulfilling all necessary conditions. If the `iddah is not yet over, and if the intention behind intercourse is reconciliation, then this is taking her back and intercourse is permissible. If there is no intention of reconciliation then according to the madhhab this means that he has taken her back, but according to the correct view this does not mean that he has taken her back, therefore intercourse is haraam.

Al-Irshaad ila Ma'rifat al-Ahkaam.

Based on this, then your husband's merely touching you is not regarded as him taking you back.

See also the answer to question no. 11798.

This is the view of the majority of scholars (including Imam Maalik, al-Shaafa'i and Ahmad), that taking back the wife is not achieved by merely touching with desire. But Imam Maalik said: Taking back is achieved by touching with desire if the intention is to take the wife back. So long as your husband says that he that he did not intend to take you back, then he did not take you back by doing that.

See al-Mughni, 7/404; al-Mawsoo'ah al-Fiqhiyyah, 13/187.

Secondly:

With regard to the `iddah of a woman divorced by a revocable talaaq, it is three menstrual cycles for women who menstruate, so there are two cycles left for you as your husband said, then your `iddah will be over. If he took you back during this time then this divorce is counted as one of the three talaaqs, and he has to bring people to witness that he is taking you back. So he has one talaaq left, and if he does not take you back during the `iddah period then you are divorced from him, and it is not permissible for him to go back to you except with a new marriage contract and a new `iddah, and the marriage cannot be completed except with your consent and the agreement of your wali (guardian).

And Allaah knows best.

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34579: She wants a divorce but he does not want to divorce her

Question:

I have a sister who is married, but her husband has not consummated the marriage with her yet. Everything was fine until my sister suddenly said that she does not want to live with her husband because she no longer loves him. They have not lived together in their house as husband and wife. When her husband heard her say this he got very angry and refused to divorce her. My sister is insisting that she does not want to live with him and he is insisting that he will not divorce her. We have told her that she cannot get divorced without a legitimate shar'i reason and proof, but she says that he gets angry quickly, and discloses secrets. It should be noted that she has not yet lived with him in the same house. Her husband admits that and says that he will change. What is the shar'i solution to this difficult problem?.

Answer:

Praise be to Allaah.

If the husband is giving his wife her rights as prescribed in sharee'ah, then it is haraam for her to ask him for a divorce, because the Prophet (peace and blessings of Allaah be upon him) said: "Any woman who asked for a divorce for no reason, the fragrance of Paradise is forbidden to her." Narrated by al-Tirmidhi, 1187; Abu Dawood, 2226; Ibn Maajah, 2055; classed as saheeh by al-Albaani in Saheeh Abi Dawood).

What is meant by the words "for no reason" is without any urgent situation which makes it hard for the marriage to continue.

If the wife is being harmed and the situation is too difficult for her because of the husband's falling short in giving her her rights, or his withholding her rights from her, or because of his bad treatment and other similar reasons, then she has the right to ask for divorce, and she may refer to the qaadi and tell him what is happening, and he in turn can ask the husband to give her her rights or to divorce her.

If she has found out that he has some bad characteristics, he should not hasten to ask for a divorce, rather she has to be kind to him and advise him in the way that is best, and help him to change his character for the better. He acknowledges the way he is and has promised to change. This is a positive step on the husband's part and it is the first step in dealing with the problem. The wife should help her husband to do good. If every wife wanted a divorce when he was quick to get angry or transmitted some words that were spoken between him and his wife, or other mistakes, there would be no household that was not broken up and its members scattered.

For more information see the answers to questions no 3758 and 12496.

And Allaah knows best.

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31778: It is not a condition of divorce that the wife should know or that she should be divorced face-to-face

Question:

I have been divorced for three years now. the proceedings were done through a solicitor. my ex husband did not contest therefore it was done through agreement between us. what i would like to know he has never verbally said `talaq' to me. i have asked a few people, they tell me that under the islamic law i am divorced, and some people tell me that he has to say it verbally. please clarify this for me, as it is affecting me. i initiated the divorce on grounds of violent behaviour.

Answer:

Praise be to Allaah.

It is not a condition of divorce that the husband should speak the word in front of his wife or that she should know of it. When the man speaks the words of divorce, or writes them down, this is regarded as a valid divorce that takes effect, even if the wife does not know of it.

If your husband has completed divorce proceedings with a lawyer then this divorce is valid and effective. Please see questions 9593 and 20660.

Shaykh Ibn `Uthaymeen (may Allaah have mercy on him) was asked:

A man has been away from his wife for a long time, and he had divorced her to himself, even though he did not inform her of that. Has divorce taken place?

He replied:

The divorce has taken place, even if he did not convey that to his wife. If a man utters the words of divorce and says, "I divorce my wife", the wife is divorced whether she knows it or not. Hence if we assume that the wife does not come to know of this divorce until after she has had three menstrual cycles, then her `iddah is complete even if she did not know. Similarly if a man dies and his wife does not come to know of his death until after the end of the `iddah period, then she does not have to observe `iddah because in this case it is already over.

Fataawa Ibn `Uthaymeen, 2/804.

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11435: He divorced his fourth wife and wants to marry another; should he wait until her `iddah ends?

Question:

If a man divorces his fourth wife and wants to marry another woman, does he have to wait until the `iddah of the divorced woman ends?.

Answer:

Praise be to Allaah.

It is haraam for the man who has divorced his fourth wife to marry another until the `iddah of the divorced woman has ended.

And Allaah is the Source of strength.

Fataawa al-Lajnah al-Da'imah, 18/11 (www.islam-qa.com)

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22850: He said to his wife, "I don't want a woman who is like this." Is this regarded as a divorce (talaaq)?

Question:

A man was arguing with his wife and blaming her for her attitude, and said that she was acting like a man in her dealings with him. He said to her, "If you carry on being like this it is difficult to live together. I do not want a girl who is like this." We asked him about his intention when he said these words and he said that he did not know what his intention was at that moment.

Answer:

Praise be to Allaah.

The scholars regard these words as words that are hinting at divorce. The ruling is that divorce does not take place unless that was his intention. If he did not intend to divorce her or he does not know what his intention was at the time when he spoke these words, then divorce does not take place.

Shaykh Ibn Baaz (may Allaah have mercy on him) was asked about a man who said to his wife, "I don't want you" a number of times. He said: These words do not constitute divorce if that was not his intention. This is a hint but is not divorce. His wife is still his wife, and he does not have to do anything.

Fataawa al-Talaaq by Shaykh Ibn Baaz, p. 68.

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