Unintentional talaq in the past?

[kayra]

Once again asking our resident scholars and wise forum "elders" on behalf of some less-than-knowledgeable troubled friends. JazakAllah khair for your patience.

A sister has been married for about 3 years. During the first 3 months or so following the nikah, her new husband frequently told her he was going to divorce her (imminently, ASAP, etc.). She cannot remember the precise wording, but she believes his intention was more than merely uspetting her, as he told at least one other person that he couldn'T stand her and wanted her to leave. He never retracted his "threats" each time, but resumed relations after each argument with a hug or smile or similar non-verbal gesture. Their child was conceived after about 3-4 months.

One time he instructed her to make wudhu, after which he stated "I (name) divorce you (name)." Later he laughed and said this was not valid, as the "exact words" of talaq needed to be repeated 3 times.

Throughout the first year (at least), she says he made many statements in anger like "get your stuff together and LEAVE," following up with offers of help to pack her belongings, giving her a lift to the bus station, etc.

Each time, she says she sincerely believed that he meant it.

AFter the first year, such threats and statements became more oblique, the word "divorce" never used openly, but implied unambiguously, for example "I just need to find myself another flat to move into before we make this final, otherwise it will be haram for us to remain under the same roof after it happens, please give me until Monday, I hope you find a better husband, let me call your parents and tell them to come and fetch you" etc. He never followed up on these statements, and once or twice admitting that he was "bluffing". Most of the time, however, she believed him, and went so far as to consult a lawyer about child custody.

Some of the ambiguous statements were made in anger ("I need to find another woman, I'm not happy with you"), some in apparent sadness ("I can't keep you in this position, you deserve to find a better husband, have a better life").

***

Recently the not-very-wise sister heard something about "exact wording not important so long as the intention is clear."

She is currently worried that not only she has been committing haram for the past few years, but that their child is also born of a haram union. Her primary concern is, has irrevocable talaq occurred, and if so, is she accountable for the sin of having continued to live together? Secondly, what is the child's status IF talaq has occurred? Thirdly, how can she explain the situation to her husband, who will adamantly deny having made such statements (or at least deny the intention behind them)?

As I know absolutely zip about this stuff, and Islamic nikah is not binding in this country, so there are no ruling bodies to deal with it,
there is no authority to whom I can send the sister. Even if she asks an imam, the imams here are state-employed, and bound by state law (so verbal talaq doesn't exist). They are also married by civil law, by the way.

[xs11ax]

if the sister does find out she is in fact divorced from such a man and leaves him then i would see that as a blessing!

if anyone treated my sister like that i would smash both his knee caps........

on a regular basis!

[kayra]

if the sister does find out she is in fact divorced from such a man and leaves him then i would see that as a blessing!

if anyone treated my sister like that i would smash both his knee caps........

on a regular basis!

May Allah grant you a pious brother-in-law with regularly intact kneecaps, brother

I've heard much worse, and I'm sure you have too, so let's just try to help this sister work out if she's married or not first, ok? I'll recommend you as top rent-a-thug if it turns out she's been living with him unlawfully...

[eTeacher]

1) Talaq occurs when words of the past or present tense are used. Future tense words don't bring about Talaq.

2) At least one divorce has occurred in this case because he explicitly mentioned, "I (name) divorce you (name)." If the exact words of Talaq are repeated three times, then three divorces occur.

3) As far as other sentences like, "get your stuff together and LEAVE", if he meant by leave that because he has divorced her, then she has to leave, then a Talaq will occur because of such words.

I would sincerely advise the sister to write down everything she remembers and then she should email that to some scholar. Also, she should at least call her local scholar and talk to him about it.

What country does she live in?

If Talaq occurred and he did not take her back, then they both would be living in sin and zina if there was conjugal relationships after the expiry of the period of the time frame of divorce.

She needs to talk to someone as soon as possible.

Brother xs11ax,

The problem with us males today is that if someone did that to our sister, we would get really angry but the weird thing is that we go around and do the same thing to our wife. That's totally wrong. The way we would like someone to treat our daughter or our sister, that is how we should treat our wives.

[kayra]

JazakAllah Khair.

She is in Turkey.

It's the "get your stuff together and leave", and "make your arrangements, call your mother," and "you're free, now get out of my sight" statements that bother her, she says. Ludicrously, she also can't remember the tense used when the word "divorce" popped up almost every day for the first few months - was it "let's divorce" or "we should divorce" or "I want to divorce"? She remembers numerous times when he ordered her to "perform wudhu so he could divorce her" - exact words she thinks went something like "go take wudhu, woman, then come and sit on the floor opposite me so I can end this stupid marriage", but she always refused to comply (hey, she loved him!) apart from that one explicit time.

But she has no doubt that HE MEANT FOR HER TO UNDERSTAND HIS WISH TO DIVORCE. However, only Allah knows whether he himself genuinely wanted a divorce himself or not, deep down. Being an imaginative kind of brother, she says, he now adamantly denies ever having said an (unprovoked) unkind word at all (or orders her not to bring up the past), so she would foresee a lot of problems if she were to pursue this matter, but can't sleep for worrying about zeena.

From what I understand, apart from that one explicit time, the brother has used the concept of divorce to terrorize her =) He has watched her pack her bags, told her not to come crying back, etc., so I assume he also realized that she believed his words, and didn't retract them (she is sure about this, unless a hug or "let's forget this happened, eh?" counts as retracting the intention).

To clarify: if the husband intends for the wife to understand his sincere wish to divorce (whether he is in fact sincere or not, deep down) - is this talaq?

[eTeacher]

I just came back last week from a week long trip to Turkey. What an amazing place and the Masjids there are wonderful. I also met scholars there and I'm sure she can contact someone there to take care of her issue.

In words like "I divorce you", irrespective of if the person had any intention to divorce or not, one divorce will occur. He can take her back by words like "I take you back" or "Let's forget this happened" as long as the duration of three menstrual periods have not finished for her. He can also take her back by hugging her if it was done out of intimate desire for her or she had similar desire for him when he hugged her.

In words which are not explicitly used for Talaq, if he had the intention of divorcing her, then divorce will occur. In this case, the only way he can take her back is by remarrying her.

If his intention was to threaten her and to bluff things, then divorce will not occur when he used implicit Talaq words.

I still feel that she should talk to someone over the phone at least to really clarify this issue. It's hard to answer things over the internet when many questions need to be asked.

People should not mess around with words of Talaq and the divorce issue in general considering how limited knowledge we have about this issue.

The fault is ours because we didn't take the time out of lives to learn in detail about this issue then later on, we go on making excuses and at times, lying even just to keep the marriage intact.

It's better for a person live a life separated from the husband then to live a life of perpetual sin if they both are not supposed to be living together Islamically.

[umar_italy]

I just came back last week from a week long trip to Turkey. What an amazing place and the Masjids there are wonderful. I also met scholars there and I'm sure she can contact someone there to take care of her issue.

Maulana Sahab.

Completely OT, but could you take some time to give us an account of your experience with Turkish ^Ulama' - maybe in an apposite thread?

[kayra]

May Allah reward you for replying again, even though the sister is still confused after being relayed both your replies. SHe's like, "I have explained everything I remember; now, am I lawfully his wife or not?! How can I be sure? How will I know what his intention was 2 years ago?!" Etcetera.

The period thing confused her as she was pregnant when the divorce word was bandied about most frequently.

She is horrified to think that she could be living in sin with no sure way of finding out. She says that if she calls somebody local, she will be told that nikah and talaq are not valid in this country and not to worry about it.

Yeah, Turkey is gorgeous, isn't it? MashaAllah! I agree with Br. Umar - a separate thread on the topic would be fascinating.

[KeepTheGazeDown]

[QUOTE=eTeacher;459737]

3) As far as other sentences like, "get your stuff together and LEAVE", if he meant by leave that because he has divorced her, then she has to leave, then a Talaq will occur because of such words.
QUOTE]



Jazaka-Allah Khaira for your post Maulana. I wanted a clarification on the above. Does she have to leave the house for the talaq to occur or is it simply dependent on the situation plus the intention?

[eTeacher]

May Allah reward you for replying again, even though the sister is still confused after being relayed both your replies. SHe's like, "I have explained everything I remember; now, am I lawfully his wife or not?! How can I be sure? How will I know what his intention was 2 years ago?!" Etcetera.

The period thing confused her as she was pregnant when the divorce word was bandied about most frequently.

She is horrified to think that she could be living in sin with no sure way of finding out. She says that if she calls somebody local, she will be told that nikah and talaq are not valid in this country and not to worry about it.

Yeah, Turkey is gorgeous, isn't it? MashaAllah! I agree with Br. Umar - a separate thread on the topic would be fascinating.

She should discuss the issue of Talaq with her husband in a nice way and try to bring up the previous discussions and try to ask him what his intentions were.

If a person was given divorce in her pregnancy, then her waiting period is till the delivery of the baby. Till then she will remain in his marriage and he can take her back through words or actions.

About her case, I'm sure that at least one Talaq has occurred because of using explicit words of divorce. If he took her back prior to delivery, she would have remained as his wife. If not, then no and the only way she can get back with him is by remarrying again.

As far as those other words, it all depends on his intention. If he had intention to divorce her, then she would have been divorced. By using implicit words, the only way the both can get back with each other is by remarrying. They have to perform the whole Nikah again. In this scenario, she can not get back with him by him merely taking her back through words or actions.

If the wife says that my husband has divorced me and the husband rejects that, then his word will be taken. But at the same time, if she is certain that he has divorced her and he did not take her back or that they should have performed the Nikah again, and they haven't, then she should try to get out of her marriage in whatever way possible. At a minimum, she should request the husband to have the marriage performed again even if only a few people know about it.

I don't get that part of, "She says that if she calls somebody local, she will be told that nikah and talaq are not valid in this country and not to worry about it." Nikah and Talaq are not valid in this country? What does that mean?