ambiguous divorce

Category: 

Marriage & Divorce

According to Madhhab: 

Hanafi

Reference: 

1440-063

Question:

My husband and I had issues. My husband said something to this effect... "You can go and look for another husband"... these words were said to me on two separate occasions. On both occasions we patched up in a few days.

I want to know if talaaq fell?

Answer:

The statements made by your husband in the enquired case are what is regarded as “Kinaayah” in the terminology of the Jurists. “Kinayah” words are ambiguous words that have the potential of implying Talaaq. In words of this nature, the basic principle is that if the husband utters such words with the intention of Talaaq, then Talaaq takes place , otherwise not. In the enquired case, If your husband said “You can go and look for another husband”, and he intended Talaaq by this statement then one Talaaq-e-Baa’in (irrevocable divorce) has taken place. However, If your husband did not intend Talaaq then no Talaaq has taken place. . He should thus be asked as to what his intention was at the time of uttering these statements.

If a husband gives his wife a Talaaq-e-Baa’in then from the time the statement is uttered it would be necessary for the wife to sit in Iddat. The iddat will constitute a period of three menstrual periods, and in the case of being pregnant the iddat will be upto childbirth. In the event that the husband wishes to reconcile then , it will be necessary to perform a fresh Nikaah. The Nikah can be performed either within the Iddat-period or after that. Without a new Nikaah, she cannot return to him as his wife.

If during the first incident your husband intended Talaaq then you will not be regarded to be in his wedlock (even though you reconciled) as one Talaaq-e-Baa’in (irrevocable divorce) has taken place and if you are still within the Iddat period you would be considered to be in Iddat. In order to continue living with your husband a new Nikaah will have to be performed. In such a case, the statements of the second argument will not be considered.

If your husband did not intend Talaaq by his statement during the first incident but intented it during the second incident then too, one Talaaq-e-Baa’in (irrevocable divorce) has taken place. if you are still within the Iddat period you will be considered to be in Iddat. A new Nikaah will be needed to continue living with him.

In the event that he intended Talaaq on both occasions, then too only one Talaaq-e-Baa’in (irrevocable divorce) will be deemed to have taken place, because after one such Talaaq-e-Baa’in takes place (with the first ambiguous statement), the second statement is rendered ineffective. In this case too, a new Nikaah will be needed to continue living with him.

AND ALLAH TAÁALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST

ANSWERED BY: Ebrahim Patel
CHECKED AND APPROVED BY: Mufti Muhammed Saeed Motara Saheb D.B.
Islamic Date:2 Muharram 1440
English Date: 12 September 2018

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