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Thread: Divorce and the hanafi school

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    Default Divorce and the hanafi school



    The hanafi school holds that divorce becomes effective even when a man divorces his wife under the influence of a drug, or under dire and immediate threat of his life or even as a mere joke. Even if you threaten you wife with a divorice, its still a divorce...(Many people call it an inflexible stance)

    Now is it true that other schools allow the husband to be questioned after the pronouncement of divorce whether he had really intented to divorce his wife or not?

    And arent there any conflicting opinions about the pronouncement of divorce? Like 'you can do whatever you want', or "Go away", "you can go home if you want" are not considered divorces if there wasnt any talking about divorce. But if the wife says "oke i'll see i.e. i'll do it", will it count as a divorce? And is it also true that if someone utters the divorce in vague terms, it also counts as a talaqul ba'in, wich means the wife is not halal for the husband anymore, except if she marries another man...Kind of complicated...

    Also, if someone says to his fiance that if i'll marry you, i'll divorce you...the divorce will take place if he marries the girl?

    What if couples didnt knew nothing about the danger of uttering these words (but did not really intended divorce)...and after some years they found this out...are they still halal for eachother?

    (Looked at sunnipath and ask-imam and didnt find an explaining answer..)


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    Default Divorce in Anger

    Assalamu 'Alaikum!
    www.sunnipath.com

    Divorce in anger and subsequent doubts

    Answered by Mufti Muhammad ibn Adam, Darul Iftaa (Leicester, UK)

    Last weekend (Thursday night) around 10 pm my husband divorced me in a fit of anger amid arguments. He says he was not pre-planned but it just got spelled out due to anger. The problem is we are not sure how many times he pronounced it. What I remember is, he said: "I am divorcing you, I have divorced you, I have divorced you."

    My question is that the above words should be treated as two divorces or three divorces?

    Though later that night he apologized and expressed that the words spoken were in anger and he hasn't divorced me. Until this time we were under the impression that divorce in one sitting is always counted as one no matter pronounced as many times.

    But later on I came to know that these will be counted as many times as they are pronounced. For this reason I recited the Istikhara dua before going to bed so that Allah may guide as to what course should be taken. And I got the dream somewhat related to divorce.

    Now what should I do. Should I rely on the Istikhara or how do I convince myself that the divorce has been revoked or not?

    In the name of Allah, Most Compassionate, Most Merciful,

    It is a well-known fact that divorce is normally pronounced and issued in the state of anger. Rarely does one issue a divorce in a state other than anger. One would not say to his wife: “You are a very nice girl, go I am divorcing you!”

    The jurists (fuqaha) have categorized anger into three stages:

    1) Initial stages of anger in a way that one’s mind is mentally sound, and fully conceiving and comprehending what one is saying. In such a case, divorce will be effected without doubt.

    2) Extreme anger to the point of sanity (junun), in that one is unaware where one is, what one is saying, what are the implications of these words, etc. In such a case, divorce will not come into effect.

    3) In between the above two stages, in that one was extremely angry but not to the point of insanity (junun), and was aware of what one was saying. In this case also, divorce will be effected. (See: Ibn Abidin, Radd al-Muhtar, 3/244 & other fiqh references).

    In normal and majority of the cases, the anger does not reach the level of insanity as outlined in category number two, thus divorce is valid and effected. However, in particular circumstances, when the anger does reach the level of insanity, and one can not distinguish between black and white, then indeed divorce will not count. One must keep in mind accountability to Allah Almighty and then decide for him/herself.

    Therefore, you mentioned that your husband divorced you in anger and that he regretted it later. In light of the abovementioned explanation, the divorce will count and the legal ruling will not be lifted due to normal anger.

    As far as the three pronouncements of divorce are concerned, they stand as three divorces, as mentioned in detail in an earlier post. The words “I am divorcing you, I have divorced you, I have divorced you” count as three divorces, for explicit words used for divorce in the present and past- tense form are considered valid in the issuing of divorce even if pronounced altogether at once. (See: Radd al-Muhtar)

    Regarding having doubts as to how many times the pronouncement of divorce took place, Imam al-Haskafi (Allah have mercy on him) states in his Durr al-Mukhtar:

    “If one has a doubt in pronouncing one divorce or more, he should base his verdict on the minimum.”

    Allama Ibn Abidin (Allah have mercy on him) explains the above:

    “(al-Haskafi’s statement: “base the verdict on the minimum”) is similar to what al-Istijabi mentioned, unless one is certain or regards the opposite to have most probably occurred. It is related from Imam that, if one is uncertain whether he pronounced three divorces or less, then he should exercise his judgment (taharri). And if he can not come to a decision (m, in that both sides are equal), he should take the more strict outcome upon him. This has been related in al-Ashbah from al-Bazzaziyya. Al-Tahtawi stated that, this was the position of Qadikhan, and may be due to the aspect of him being precautions (m, in matters related to the lawful and unlawful) especially in marriage and divorce. I (m, Ibn Abidin) say: It is possible to consider the first position legally binding (qadha’an) and the second religiously obligatory (diya’natan). (Radd al-Muhtar ala al-Durr, 3/283)

    It is stated in Khulasat al-Fatawa:

    “An individual took an oath of divorce but was in doubt as to whether he pronounced one or three divorces, it will be regarded as one, unless he becomes certain or regards the opposite to have most probably occurred.” (2/120 from Imdad al-Ahkam, 2/387)

    The upshot of all of the above is that, there are few scenarios in the case of having a doubt:

    1) There is certainty on pronouncing a specific number. In such a case (obviously) that which one is certain of will come into effect.

    2) There is inclination towards one side, in that one regards a specific number of divorces to have most likely been pronounced. In such a case also, that which one is inclined towards will be effected.

    3) Both sides are equal, in a way that one cannot prefer one over the other. In such a case, although there is scope in taking the minimum (i.e. one had a doubt between pronouncing two or three divorces, then one may regard it as two), for the minimum is certain to have occurred whereas there is doubt in the opposite, it is religiously more precautious to take the strict option (that is take three in the above example), for it is a question of lawful marriage and unlawful fornication. Ibn Abidin (Allah have mercy on him) considered the strict verdict in this case to be religiously binding, as understood from his text.

    Finally, it should be noted that, if a woman heard her husband pronounce three divorces and has no doubt in this, but her husband is doubtful, then it will not be permissible for her to treat him as her husband. It will be necessary for her to consider the marriage to be over, thus not let her husband have a husband-wife relationship with her, as the Fuqaha mention that a woman is like a judge (al-mar’atu kal qadhi), meaning that she will be considered a judge with regards to her own situation. (See: Radd al-Muhtar, 2/432). Yes, if she is also doubtful, then she will act according to the procedure outlined above.

    In conclusion, you mention that you remember your husband pronouncing divorce three times, thus three divorces have into effect, thus the marriage will be considered to be over. You will not be allowed to return together until after your waiting period (iddat) is over, and until you marry another man and consummate the marriage, get divorce, and complete your second waiting period, because of explicit texts of the Qur’an and Sunnah.

    And Allah knows best

    Muhammad ibn Adam al-Kawthari
    Darul Iftaa, Leicester, UK


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    salaams

    the fatwa cited of Mufti Muhammad, as well as other scholars on the same topic, is quite explicit. However, I would also like to know about the case of ignorance - if the couple do not know the basic ahkam of divorce, let alone whether three equals one and such like. I too have had cases of brothers uttering the T word with no idea of the implications and not in any way intending divorce. Any one with any idea as to the situation in this regard?


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    Assalamu-alaikum, but we have to be careful here regarding Mufti Muhammad's article on uncertainty about how many times a person may have pronounced divorce. I asked him myself and he told me that you use that methodology(shown above in the post by brother Aqdas) regarding doubts if he has pronounced one divorce or more. But, when it comes to a time if he's looking back at an individual situation, and trying to remember if he even said words that effect divorce at all, the methodology used to figure that out could be different. He didn't have time to look it up at the time, and he's out of town(or going to be very soon), I'm working on asking another mufti about this situation insh'Allah.


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    assalamu alaikum wr wb

    why not email sunnipath insha'Allah and get it settled...


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    Salamu alaikum, supposing, one is looking back at an individual
    situation, and doesn\'t remember for sure, if he said words that effect
    divorce or not, how sure would he have to be in order for the divorce
    to
    take place?

    Respected Brother-in-Islam

    Assalaamu alaykum wa rahmatullaahi wa barakatuh

    The general principle is, 'Certainty is not eliminated by doubt.'
    (al-Ashbaah)

    There was uncertainty about the Nikah. That will not be eliminated by a
    mere doubt.

    and Allah Ta'ala Knows Best

    Mufti Ebrahim Desai
    FATWA DEPT.


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    Keep in mind the mufti meant to say there was certainty about the nikah


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    Default Re: Divorce and the hanafi school

    Hi I was also looking for an aswer to this sort of question.
    Somebody that I know is going through the same problem.
    So I was wondering if you could answer my question.

    In hanafi law, if the husband in the past has repeatedly threatened to divorce the wife does that count as divorce. Also now in the present he has given the three talak (said he wants a divorce three times) but it has now been sighted that he said this upon anger, although know immediate regret or denial. I was just wondering does this count as a divorce in the hanafi law?


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