Conversion to Islam

http://islamqa.org/hanafi/daruliftaa/8506

I am considering converting to Islam from Catholicism. What I want to know is, is circumcision absolutely compulsory before one can convert to Islam? I have some people here who say it is a must before I can accept Islam.

ANSWER

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

When one becomes convinced and has strong belief that Islam is the true religion ordained by Allah Almighty for all human beings, then he should go ahead and accept Islam without any delay.

The basic beliefs one is required to accept while entering the fold of Islam are as following:

1) God is one. He has neither a partner, nor a son or daughter. He is One in the true sense of the word that has no room for the concept of trinity, or for any other form of camouflage monotheism (tawhid) or a disguised polytheism (shirk).

2) The Holy Prophet Muhammad (Allah bless him & give him peace) is the last Messenger of Allah after whom no Messenger or Prophet of Allah (in any sense of the word) will come.

3) The Holy Qur’an is the last of the divine books revealed upon the blessed Messenger of Allah (Allah bless him & give him peace), and all its contents are true.

4) The life in the Hereafter (after death) is eternal, where one will face the fate of his good and evil deeds.

5) All the teachings of the Qur’an and the Messenger of Allah (Allah bless him & give him peace) in absolute and unambiguous terms are true and acceptable.

When an individual accepts these fundamental beliefs of Islam from the depth of his heart, and rejects those beliefs of his former faith that contradict Islamic beliefs, then he will be considered a Muslim.

As far as the verbal acceptance is concerned, the majority (jumhur) of the scholars of Islamic creed (aqidah) are of the view that verbal confession is a condition in order for one to be called a Muslim in this world, and on which judgments are passed, such as: Marrying, inheriting, being buried in a Muslim graveyard, etc…

Since having a belief in the heart is a hidden thing that must have a sign, therefore whosoever believes with his heart (tasdiq bil qalb) and does not confess with his tongue (iqrar bil lisan) is considered a believer with Allah Almighty, but not according to the judgments of this world (See: Sa’d al-Din al-Taftazani on the creed of Najm al-Din al-Nasafi, P. 190, Dar al-Bayruti, Damascus).

Therefore, if you are convinced of the basic and essential beliefs of Islam, then you are already considered a believer according to Allah Almighty. However, for you to be considered a believer in this world, you must confess and express your beliefs by saying the Shahadah.

Conversion to Islam is very simple and has no particular procedure, like baptism, etc. It is not necessary that one seeks the mediation of a saint or priest, nor is it a pre-requisite to go to a mosque or to an institution for accepting Islam. One can accept Islam on his own. However, it is advisable to go to a learned Muslim (preferably a scholar) who can inform you about the basic beliefs of Islam and can teach you the concise and comprehensive words to express the acceptance of those beliefs.

Normally the following sentences are used for that purpose:

“I bear witness that there is no God but Allah, and I bear witness that Muhammad, (Allah bless him & give peace), is His servant and Messenger.”

“I have believed in Allah and His angels and His book (as they were originally revealed on His prophets) and in His messengers and in the Last Day and in the fact that all the good and bad destinies come from Allah and in being raised alive after death.”

Therefore, you must hasten towards verbally accepting Islam. There are no conditions or pre-requisites for accepting Islam. This is the religion (deen) chosen by the Almighty, and is the only religion which will save one from eternal punishment in the Hereafter. Therefore, go ahead and convert to Islam at once, without any delay, hesitation or thoughts about the practical side of Islam.

Allah Most High says:

“The Religion by Allah is Islam” (Qur’an 3:19).

In another verse of the Holy Qur’an, Allah states:

“If anyone desires a religion other than Islam, never will it be accepted of him; and in the Hereafter he will be in the ranks of those who have lost” (Qur’an 3:85).

Circumcision:

As far as circumcision for males is concerned, it is a highly emphasised way of the Messenger of Allah (Sunnah al-Mu’akkadah), and one of the salient features of Islam (sha’a’ir).

The Messenger of Allah (Allah bless him & give peace) said: “The practices related to Fitrah (natural human ways) are five: Circumcision, shaving the pubic hair, trimming the moustache, cutting the nails and removing the hair of the underarm” (Sahih al-Bukhari, n0. 5550)

He (Allah bless him & give him peace) also said: “Circumcision is Sunnah for men and a source of pleasure (in sexual intercourse) by performing it on women.” (Recorded by Imam Ahmad in his Musnad and Imam al-Bayhaqi in his Sunan with a weak chain of narrators, from Radd al-Muhtar).

In light of the above, newborn males should be circumcised before the child has attained puberty. Failing to do so will amount in leaving out a salient feature of Islam.

Regarding a male who accepts Islam and is above the age of puberty, or a child who was not circumcised for some reason until he reached puberty, there are three possibilities:

1) If the male is able to tolerate the act of circumcision and there is no fear of harm being afflicted on him, and also it is done by oneself as not to expose the nakedness (awra) in front of another person, then circumcision should be carried out.

2) If one is able to bear circumcision without the fear of harm, but at the same time it will mean exposing one’s Awra in front of another person, then there is a difference of opinion between the scholars on whether circumcision should be carried out.

On one hand, we have the order of not exposing your Awra in front of other people except in dire situations, but on the other hand, we have this great salient feature of Islam. Some of the contemporary scholars have said that in this situation circumcision should be carried out for two reasons:

a) Circumcision is a form of treatment, and the Fuqaha have given a dispensation in exposing the Awra for treatment and medication.

b) The Messenger of Allah (Allah bless him & give him peace) is reported to have said: “Whoever accepts Islam should have his circumcision performed” (Talkhis al-Habir). In light of the above narration, the scholars have said that if there is no fear of harm and the adult male is able to bear circumcision, then it should be carried out.

3) The third situation is where the grown up male is not in a position to tolerate or bear the pain of circumcision, or there is fear of harm being inflicted on him. In this case, circumcision can be (and should be) avoided.

Islam is a religion of mercy and orders only that which is within the capacity and capability of an individual. It never commands that which is beyond ones capacity.

Allah Most High says:

“On no soul does Allah place a burden greater than it can bear” (Qur’an, 2:286).

The great Hanafi jurist, Imam al-Haskafi (may Allah have mercy on him) states:

“If an old person entered Islam, and (medical) experts were of the view that he won’t be able to bear circumcision, then it should not be carried out” (Durr al-Mukhtar).

One of the great Hadith experts (hafidh), Ibn Hajr al-Asqalani (Allah have mercy on him) states:

“If the child attained puberty, and he is weak to an extent that if circumcision was carried out on him, he will perish, then the necessity of circumcision will no longer remain” (Fath al-Bari, 10/289).

Another Hadith expert and Hanafi scholar, Imam al-Kashmiri (Allah have mercy on him) states in his commentary of Sahih al-Bukhari:

“I don’t recommend circumcision for those that have reached puberty, as it is very painful and could lead to death”. (Faydh al-Bari, 4/413).

However, it should be remembered here, that he who opts not to be circumcised should regularly clean the area underneath the foreskin of his sex organ because, in Islam cleanliness of the body is obligatory for performing prayers.

In conclusion, you must not delay accepting Islam any longer. Explain to the people in your area that in the light of some of the above evidences, it is not required for a grown up person to be circumcised when it is painful for him. Enter this great religion of Allah and you will never be disappointed. May Allah guide to the straight path and keep us all steadfast on it (Ameen).

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Halala after divorce

http://www.askimam.org/public/question_detail/19174

I would like to ask a question pertaining to talaq. My husband gave me three talaqs two years ago and we have not resided together since that time.

He would now like to reconcile but the only option is for me to make nikah with another man and be intimate. What I would like to know is that if I do agree to do this, I would knowingly be entering into a nikah with another person just for the purpose of him giving me a talaq after we have been intimate for that night. Is this acceptable according to Islam? Because a part of me feels that Allah knows everything and that He will know that my intention for making the nikah is only to reconcile with my first husband. Is it acceptable according to the Shariah for me to reconcile with my first husband?

Answer

In the Name of Allāh, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

When a man gives three talaqs to his wife, she becomes totally forbidden for him. Thereafter, she can only become permissible for him after the following things take place:

1)     She goes through the iddat (waiting period) of the talaaq that she just received.

2)     She then marries another man with a valid nikah.

3)     She consummates the marriage with her new husband.

4)     Thereafter, the second husband divorces her or he dies.

5)     She then goes through the iddat of talaaq or of her husband’s death.

This process is called ‘halaala’. After halaala, she may get married to her first husband.

When the woman gets married to her second husband, they should get married with the intention of a normal, permanent marriage. Thereafter, if the husband coincidentally divorces her or he dies, she may marry her first husband.

However, if the marriage takes place in such a way that the man and/or woman intends to get divorced after consummating the marriage so that the woman may marry her first husband, then there are a few scenarios in this. They are mentioned below:

1) If at the time of marriage, the condition of halaala is mentioned (for example, the man says to the woman that I marry you with the condition of halaala or he says that I marry you with the condition that I will divorce you after consummating the marriage so that you become halaal for the first husband or the woman says to the man that I marry you with the condition that you will divorce me after consummation of the marriage so that I become halaal for my former husband), then the ruling is that such an act is impermissible. In the hadith, it is mentioned that Allah Ta’ala curses the man who marries a woman so that she can become halaal for her former husband, the husband who arranges such a marriage so that his former wife can become halaal for him and the woman who does such a marriage. Although doing this type of marriage (i.e. wherein the condition of halaala is mentioned) is impermissible, if someone does it, the marriage will be valid and she will become halaal for her first husband when her second husband divorces her.  The condition of divorce or halaala mentioned in the nikah is not valid, and she will not be divorced until the second husband chooses to actually issue a divorce. In other words, although the people doing and arranging such a marriage will be sinful and cursed by Allah, the marriage itself will be valid and the woman will become halaal for the first husband once the second husband divorces her.

2) If, on the other hand, a man sees that the woman and her former husband really want to get back together, therefore with the intention of helping them out, he marries her then divorces her after consummating the marriage, then this will be permissible with the condition that no one knows of his intention.

3) Similarly, if the woman gets married to a man with the intention that after the marriage and its consummation, she will ask for divorce and thereafter get married to her first husband, it will be permissible with the condition that no one knows of her intention.

4) If both the man and the woman marrying each other know of each others intention (i.e. that they are getting married for halaala), but at the time of marriage, the condition of halaala is not mentioned, then in this case some ulama (scholars) say that it is not permissible (although, just like in the first scenario, if someone does it, the marriage itself will be valid and the woman will become halaal for her first husband). Other ulama say that such a marriage is permissible. It is therefore better to avoid this.

To conclude, you should see which scenario applies in your case and act accordingly. If you really want to go back to your first husband, you may act upon the third scenario mentioned above provided that the condition mentioned therein is fulfilled i.e. that no one knows of your intention. In such a case, you will not be sinful, as the scholars have explicitly mentioned.

(Ahsanul Fataawa: 5/154, Saeed)

(Fataawa Usmani: 2/278, Maktaba Ma’ariful Quran)

(Qaamoosul Fiqh: 2/426, Zamzam Publishers)

(Raddul Muhtaar: 5/51, Darul Ma’rifa)

And Allāh knows best.

Ml. Faizal Riza
Melbourne, Australia

Concurred by:

Muftī Abrar Mirza
Chicago, IL (USA)

Under the Supervision of Muftī Ebrahim Desai (South Africa)

Divorce, Waiting Period (idda) & Marrying another Man (halala) 

Question #: 5707 

Date Posted: 29-03-2004 

<QUESTION>

My husband gave me three divorces. He himself did not know so well that saying 'divorce' (verbally) takes such serious effect. He thought of it as a way to put pressure on me. He said it thrice as is seen in movie. Is this enough to decide about our marital status? 

I told him about possible nullification of our marriage. At this point, I reiterated that I cannot live with him as Haram woman. He had the impression that i am still his wife.

Then again I told him that we have to redo the process if I know that we have to. He was taken aback and was speechless. We are sleeping apart. 

Can you please also tell me about Iddah. I am not pregnant. Do I still have to observe it, and also do I have to get married to another man?

<ANSWER>

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

Your question will be answered in three parts. The first deals with divorce, the second with the waiting period (Iddah) and the third looks at the issue of marrying another man (Halala).

1) As far as the divorce is concerned, you mention that your husband pronounced the word “divorce” three times and therefore three divorces have come into effect. Whether your husband had the intention of divorcing you or otherwise and whether he took it seriously or otherwise and whether he said it to only put pressure on you, three divorces have been affected.

When three divorces are given then, this is known as an irrevocable divorce (Talaq al-Mugallazah) and you can not return to him unless after marrying another man (as it will be mentioned in detail in the third part).

Allah Most High says:

“Divorce is twice, thereafter either retaining her honourably or releasing her kindly....... If he divorces her third time, she is unlawful for him unless she marries another husband (and he also divorces her).” (Surah al-Baqarah, V: 229/230)

Therefore, in your case, three divorces have come into effect and you can not live as husband and wife.

2) As far as the waiting period (Iddah) is concerned, it is obligatory upon the woman to fully observe it. The time limit for this period differs from one woman to another. If the woman is pregnant then, she will have to wait until she gives birth. If she is not pregnant, then the period for a woman whose husband passes away is, four months ten days and for a divorcee, the period is three complete menstrual cycles.

There are many wisdoms and reasons for the Iddah being obligatory. For instance, to ensure that the sperm of two men do not gather and get mixed up in the womb of one woman. Also, another reason is to express grief over a sad incident, etc.

Therefore, in your case, you must observe the waiting period, which is three complete menstrual cycles, even if you are not pregnant. If the divorce was given whilst you were in your menstruation, then this period of menstruation will not be counted. Your calculation will commence from the next menstrual period.

The waiting period should be observed in the house you were living in at the time of divorce. Therefore, you may observe the Iddah in your former husband’s house. However, you must ensure that you observe Hijab from him.

3) When a woman is divorced three times, this divorce is non-revocable, which means that the husband can not take her back unless after she marries another man.

Many people with regards to this are mistaken. The general misconception is that marrying another man (Halala) is a solution provided by Shariah in order for the husband and wife to get back together.

This is, however, not the case. The meaning of Halala is that, if the woman after being divorced and after observing her waiting period wished to marry another man, she can do so. This second husband by total coincidence and on his own accord also divorced her after having sexual intercourse with her, then after observing the full waiting period, she can remarry her first husband.

It should be remembered that, this is not a solution provided by Shariah. Once three divorces are pronounced, the marriage is over and there is no getting together again. But if by coincidence, she married another man and he to by coincidence (after having sexual intercourse with her) divorced her, then she, after the Iddah is over, can remarry her first husband.

If Nikah was performed on the condition of Halala or by fixing a fee to be paid to the second man, then this is a grave sin and unlawful. The Prophet (Allah bless him and give him peace) said:

“Allah’s curse is on the one who makes a contract or agreement for Halala (Both the one who carries out Halala and the one who it is done for.” (Sunan al Darami / Mishkat al Masabih)

However, if there is only an intention of Halala in the heart and no verbal agreement was made, then according to the majority of Fuqaha, this is permissible and valid (Radd al-Muhtar)

I hope I have been able to answer all your queries.

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Placing conditions in the contract of Marriage

http://islamqa.org/hanafi/daruliftaa/7871

I would like to find out whether a woman can stipulate in her marriage contract that She would like to study (deen) at a certain place for a minimum number of years (say 6) and if that is not fulfilled, she would opt to divorce!

Also, that during such period she would not want to have any kids. How would you advise such a woman, who holds her studies above everything else and is considering marriage? The brother in question is also interested in studying for a long time (although not bent on six years being the least and also not placing a maximum amount of years on the time he would be willing to study). pls your advise is needed.

ANSWER

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

Conditions stipulated in the marriage contract are at times attached to the right of divorce for the wife, and at other times, only the conditions are mentioned. I will attempt to (Insha Allah) shed some light on both of these situations, and what implications they have on the marriage.

1) Conditions without the right of divorce:

Conditions set in the contract of marriage (without the mention of divorce) are mainly of three types:

a) Conditions that highlight and give emphasis to those rights of the spouses which are obligatory due to the contract of Nikah, e.g. the condition that the wife shall receive financial support, clothing and shelter. The condition that the husband will look after the wife in a proper manner (ma’ruf). Similarly, the condition that the wife will be obedient to the husband in everything permissible that is related to their marriage, etc…

The ruling for such conditions (with the consensus of the scholars) is that, it is necessary for both spouses to fulfil them, even if they were not stipulated in the contract of marriage. If the husband fails to act in accordance with such conditions, the wife has a right to demand for a legal divorce in an Islamic court. (See: Fath al-Bari, 9/217, Umdat al-Qari, 14/106 & Radd al-Muhtar, 2/45).

Uqba ibn A’mir (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said:

“The conditions (stipulated) most rightful to be fulfilled are those with which you are given the right to enjoy the woman’s private parts (meaning conditions stipulated in the contract of marriage).” (Sahih al-Bukhari, no.4856)

b) Those, which are contrary to the concept of marriage according to Shariah. In other words, they oppose the conditions mentioned in (a). E.g. the condition that the wife will not receive her dowry, financial support, or the condition that the husband will not have the right to have sexual intercourse with the wife, or that he will divorce his first wife, etc…

The ruling (hukm shar’i) for such conditions is that they will be void and the marriage will be valid. They will have no effect on the validity of the marriage; neither will any of the spouses be obliged to fulfil them.

Imam al-Bukhari (Allah have mercy on him) formed a separate chapter in his famous ‘Sahih’ on the impermissibility of such conditions under the title: “Chapter regarding conditions that are unlawful in the contract of marriage”. Thereafter he produced the following Hadith:

Sayyiduna Abu Huraira (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give peace) said:

“It is unlawful for a woman to ask the divorce of her sister (would-be co- wife) in order to have everything for herself, for she will only receive what is predetermined for her.” (Sahih al-Bukhari, no: 4857)

He also quoted the following statement of Sayyiduna Ibn Mas’ud (Allah be pleased with him):

“A woman should not make a condition (at the time of marriage) of her (Muslim) sister being divorced.” (ibid)

c) The third category of conditions is those that are neither of the two, in that they don’t confirm the established rights of the spouses, neither do they contradict them. However, there is some benefit in them (usually) for the wife, such as: the condition of not marrying again, or that the husband will not force her to leave her home town, etc…

Regarding the fulfilment of these conditions, there is a difference of opinion between the jurists (fuqaha). The view of Imam Ahmad ibn Hanbal (Allah have mercy on him) is that it is necessary to fulfil these conditions, and if the husband is negligent in any way, the wife will have the right to demand nullification of the marriage. (Ibn Qudama, al-Mugni, 7/71).

However, according to the other three schools of thought (i.e., Hanafi, Maliki & Shafi’i), it is a religious duty of the husband to fulfil these conditions, but it is not binding on him legally in so far as it is not something that can be enforced through the courts, and the wife can not demand to nullify the marriage. (See: for the Hanafi Madhhab: Radd al-Muhtar, 3/203, the Shafi’i Madhhab: al-Majmu’ & Maliki Madhhab: Bidayat al-Mujtahid: 2/59).

Some of the evidences in support of this view:

1) The Messenger of Allah (Allah bless him & give him peace) said:

“Every condition that is not in the book of Allah is invalid.” (Sahih al-Bukhari)

2) The Messenger of Allah (Allah bless him & give him peace) also said: “All the conditions agreed upon by Muslims are maintained, except a condition which permits what is prohibited or prohibits what is permitted.” (Sunan Tirmidhi)

They (the three Madhhabs) say that marrying a second wife, etc… is lawful for the husband, and to stipulate a condition that prevents him from exercising this permissible right will not permissible.

However, it is the moral responsibility of the husband to fulfil his promise, as Allah Most High says:

“And fulfil (every) engagement (promise), for every engagement will be enquired into (on the day of Reckoning).” (Surah al-Isra, 34).

The Messenger of Allah (Allah bless him & give him peace) regarded not fulfilling of promises as “the sign of a hypocrite”, thus a person will be sinful for not fulfilling these conditions, but it will not have an effect on the marriage.

(2) Conditions attached with the right of divorce for the wife: 

Many times certain conditions are stipulated in a way that if the husband fails to fulfil them, the wife will have the right to divorce herself. This (giving the wife the right to divorce herself), is known as Tafweed in the Fiqh terminology

There are three situations here:

a) If the Tafweed took place after the spouses had entered into wedlock, then this, without doubt, can be done. However, the husband here will be free to accept such conditions, as he is already in the marriage.

When the husband gives this right of divorce to the wife, she will only have this right in the session (majlis) that she is in. If she did not exercise her right, then this right will go in vain.

However, if the husband granted this right for a specific period (e.g. 5 years) or permanently, then she will have this right accordingly.

b) The second situation is when Tafweed takes place at the time of contracting the marriage, meaning the wife stipulates the conditions, and demands the right to divorce herself in the case of non-fulfilment.

This is also permissible and valid, provided one condition is met, which is that the offer of marriage is initiated by the woman coupled with the demand for Tafweed, and the man accepts this. If the opposite takes place, it will be void. (See: Ibn Abidin, Radd al-Muhatr, 2/285 & al-Bahr al-Ra’iq, 3/318).

In the above case, if the woman initiated the marriage agreement and asked for the right to divorce herself if certain conditions were not fulfilled, then she will be entitled to this right, and whenever she divorces herself (if the conditions are not fulfilled by the husband) it will be valid.

c) The third situation of Tafweed is when it takes place before the actual contract of marriage has taken place. In other words, the woman stipulates certain conditions to be fulfilled if they are to get married, and if the conditions are not fulfilled, she has the right to divorce herself.

This is also permissible, but subject to one condition that the husband attributes the Tafweed to the marriage. Meaning he says: “If I marry you, and fail to fulfil such and such condition, then you have the right to issue one irrevocable divorce upon yourself.” (Radd al-Muhtar, 2/681, Bab al-Ta’liq)

In this case, if they do enter into wedlock, and the husband fails to fulfil the conditions, the wife will have the right to divorce herself.

It should be remarked here that although the power to give a divorce belongs primarily to the husband, he may delegate this power to his wife, with or without the conditions. Once this power is delegated, it can not be revoked, unless the wife hands it back to him.

In the light of the above explanation, the following is the answer to your question:

If you delegate the right of divorce to your wife in a way that you refer it to your marriage, then she will have this right, with or without conditions. If you tie this right with certain conditions, she will have this right when these conditions are not fulfilled.

However, if you do not give her the right to divorce herself, rather only the conditions are stipulated, then the condition of not having children will be classed from the first category, and it will be invalid.

The reason behind this is that, it is the established right of the husband to have sexual intercourse with his wife without using any contraceptive methods. Therefore, you will not be obliged to fulfil this condition.

As far as the condition of studying is concerned, the husband’s established right is that the wife stays with him and not emerges from the house without his permission. If she stipulates the condition that you travel with him in order for her to study, then this will be classed from (and Allah knows best) the second category, thus according to the Hanafi school, it will a moral responsibility that you fulfil it.

One must always keep in mind that to keep a marriage free from conditions is the best form of action. The best way to work things out is through mutual understanding by exercising the character, manner and Akhlaq of the best of creation, who is an example for the whole of humanity.

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Delegating the Right of Divorce to the Wife (tafwidh) 

Question #: 5591 

Date Posted: 29-03-2004 

<QUESTION>

Is it valid for a woman to put as a stipulation in a written Islamic contract that she will have the open right to divorce, as opposed to her naming the specific conditions under which this right will be carried out?

Also the woman’s father is representing the bride at the nikah ceremony, she will not actually be present during the nikah; how will this contract be signed and presented in her absence?

<ANSWER>

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

According to Shariah, the right to divorce belongs primarily to the husband and not the wife. There are many reasons and wisdoms behind this ruling, which have been explained in detail in an earlier post.

However, although the power to issue a divorce belongs in principle to the husband, he may delegate this power to his wife or a third party, with or without stipulating conditions. Once this power is delegated, it can not be revoked or withdrawn. This is known in the Fiqh terminology as “Tafwid”.

This is based upon the incident where the Messenger of Allah (Allah bless him & give him peace) gave his wives the option to remain in his marriage or be divorced. Allah Most High said to the Messenger of Allah (Allah bless him & give him peace):

“O Prophet! Say to your wives: “If it be that you desire the life of this world, and its glitter, then come! I will provide for your enjoyment and set you free in a handsome manner. But if you seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward.” (Surah al-Ahzab, 28)

The Messenger of Allah (Allah bless him & give him peace) deserted his wives for a period of around one month, after which the above verse was revealed. 

Sayyida A’isha (Allah be pleased with her) narrates: “When the Messenger of Allah (Allah bless him & give him peace) was commanded to give an option (of divorce) to his wives, he started with me saying: “I am going to mention to you a matter in which you should not (decide) hastily until you have consulted your parents.” She (A’isha) said that he already knew that my parents would never instruct me to seek separation from him. She said: “Then he said: Allah, the Exalted and Glorious, said: “O Prophet, say to your wives: If it be that you desire the life of this World, and its glitter, then come! I will provide for your enjoyment and set you free in a handsome manner. But if you seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward.” Sayyida A’isha (Allah be pleased with her) says that I said to the Messenger of Allah (Allah bless him & give him peace): “About this should I consult my parents, for I desire Allah and His Messenger and the abode of the Hereafter?” She (A’isha) said: “Then all the wives of the Messenger of Allah (Allah bless him & give him peace) did as I had done.” (Sahih Muslim, no. 1475)

Sayyida A’isha (Allah be pleased with her) also narrates that the Messenger of Allah (Allah bless him & give him peace) gave us the option (m: to remain with him or to be divorced), so we chose (and preferred) Allah and His Messenger. Giving us that option was not regarded as a divorce.” (Sahih al-Bukhari, no. 4962)

Imam al-Sarakhsi (Allah have mercy on him) states:

“If a man delegates the right to divorce to his wife, then this is similar to giving an option (khiyar) in trade, except that this is completely valid and logical, for the husband is the owner of issuing the divorce, thus he is in a position of delegating something that he owns. Hence, it will be binding, in that the husband will not have the right to revoke this delegation.” (al-Mabsut, 7/221)

The Companions (Sahaba, Allah be pleased with them all) also unanimously agreed upon the validity of delegating the right to divorce to the wife. (See: al-Mawsili, al-Ikhtiyar li ta’lil al-Mukhtar, 2/166 & Zaylai’i, Nab al-Raya, 3/229)

Rules concerning the delegation of the right to divorce (tafwid)

There are certain rules and regulations with regards to this delegation that need to be understood properly:

1) When the husband delegates the right to divorce to the wife, she will only have this right in the session (majlis) that she is in. If she did not exercise her right, then this right will go in vain. However, if the husband delegates this right for a specific period (e.g. 5 years) or permanently, then she will have this right accordingly. (Radd al-Muhtar & al-Ikhtiyar)

2) The wife will only have a right to divorce herself according to what was delegated to her. If the husband delegated to her the right to divorce herself once (and not two or three times), or he delegated the right to divorce herself irrevocably, then she will have this right accordingly. She will only be allowed to utilize this right in a manner it was delegated to her. (Radd al-Muhtar)

3) If the husband gave his wife the right to divorce herself a specific number of divorces, then she will not have a right to divorce herself more than the number of divorces that were delegated to her.

4) Once the husband delegates this right to his wife, he can not overturn or revoke it. (Durr al-Mukhtar)

5) If the right to divorce was delegated for a specific period of time and the wife did not utilize this right in that period, then upon the termination of this period, the right will also no longer remain. (al-Ikhtiyar)

6) By delegating the right to divorce, the husband still has a right to divorce his wife. Delegation of this right does not imply that the husband no longer has a right to issue a divorce. (al-Ikhtiyar)

7) If the wife rejects accepting this right of divorcing herself, then if the delegation was permanent, her rejection will be of no consequence, in that she will still have this right permanently despite rejecting the offer. However, if this delegation was not permanent, then by rejection, the right to divorce will terminate. (al-Ikhtiyar)

Different stages of delegation

There are different stages and times when the man delegates the right to divorce to the woman. In summary, there are three situations here:

a) If the delegation (tafwid) took place after the spouses had entered into wedlock, then this, without doubt, can be done. However, the husband here will be free to accept this, as he is already in the marriage. 

b) The second situation is when this delegation (tafwid) takes place at the time of contracting the marriage.

This is also permissible and valid, provided one condition is met, which is that the offer of marriage is initiated by the woman coupled with the demand for Tafwid, and the man accepts this. If the opposite takes place, it will be void.

Imam al-Haskafi (Allah have mercy on him) states:

“If the man married her on condition that she will have the right to divorce herself, then this will be valid.”

Allama Ibn Abidin (Allah have mercy no him) commentates on this by saying:

“(Imam al-Haskafi’s statement “this will be valid”), this is subject to the condition that the woman initiates the contract of marriage with her offer by saying: “I marry myself to you on the condition that I will have the right to divorce myself whenever I wish” and the husband says: “I accept this”. However, if the husband initiated the contract of marriage, she will not have a right to divorce herself, as mentioned in al-Bahr.” (Radd al-Muhtar ala al-Durr, 3/329)

Thus, if the woman (or her representative) initiated the marriage contract by the offer (ijab) and asked for the right to divorce, then she will be entitled to this right, and whenever she divorces herself, it will be valid.

c) The third stage of Tafwid is when it takes place before the actual contract of marriage. In other words, the woman demands the right to divorce herself if they are to get married.

This is also permissible and valid, but also subject to one condition, that the husband attributes the Tafwid to the marriage. Meaning he says: “If I marry you, then you have the right to issue one irrevocable divorce upon yourself.” However, if the man did not attribute this to the marriage, it will be void.

It is stated in Durr al-Mukhtar:

“The condition of its validity is having ownership (m: by actual marriage) or referring it to the marriage…such as he says: “If I marry you, then you are divorced (m: or you have the right to divorce yourself).” (See: Radd al-Muhtar ala al-Durr al-Mukhtar, 3/344 & al-Ikhtiyar, 2/ 170)

As far as your second question is concerned, the woman can appoint her father as her representative (wakil) to contract the marriage on her behalf. It is not necessary for the woman to be present in the session of the marriage contract. Her representative will have the same authority as she herself has.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Divorce by email

http://islamqa.org/hanafi/daruliftaa/7845

Is a divorce by text message valid in Hanafi Fiqh provided that the message was really sent by the partner and not by a third person using the partners phone?

ANSWER

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

According to Shariah, verbal utterance is not a necessary condition for the validity of a divorce (talaq). Rather, divorce is also effected by means of the written word.

The great Hanafi jurist, Imam al-Kasani (Allah have mercy on him) states:

“Similarly, issuing a divorce verbally is not a condition. Hence, divorce will be effected with clear and unambiguous writing, or with the understood gesture (isharah) of a dumb person, because the clear written word is in place of verbal utterance”. (Bada’i al-Sana’i, 3/100)

It is stated in al-Fatawa al-Hindiyya:

“Writing (m: a divorce) is of two types: A formally written letter and informal writing. A formally written letter is that which has a heading and title like that which is written to a non-present person, and non-informal writing is that which does not have a heading. Then, non-formal writing is of two types: Clear and understandable writing and unclear writing. Clear writing is that which is written on a piece of paper, wall or ground in a way that it is understandable and readable, and unclear writing is that which is written in the air, on water or on something in a way that it is not understandable or readable.

In the case of unclear and unreadable writing (m: like on water or in the air), divorce will not come into effect even if one intends it. And if the writing is clear but not as a formally written letter, divorce will be effected if the person intends it otherwise it will not count. As far as a formally written letter is concerned, divorce will count regardless of whether one intends it or not.” (al-Fatawa al-Hindiyya: 1/378)

In light of the above text, if one was to write divorce on water, in the air or in a way that it was unclear and unreadable, and divorce was merely scribbled, then divorce will not come into effect, even if one had the intention of divorce.

The second scenario is when the husband writes a formal letter divorcing his wife. This will count as a divorce whether he intends it or not.

The third situation is where the husband does not write a formal letter with a heading etc, but the writing is nevertheless clear and understandable, such as writing on a piece of paper or on a wall, etc. In such a case, divorce will count if he had the intention to divorce otherwise it will not count.

Now, it is imperative that we understand the definition of “formal” and “informal” writing and distinguish between them, because in the case of formal writing, divorce is effected even without having a intention, whereas in the case of informal writing, intention of issuing a divorce is necessary.

Imam al-Haskafi (may Allah have mercy on him) states:

“The husband issued a divorce in writing; if the writing was clear and was written on something like a slab, then divorce will be effected if he had the intention……and if he wrote it as a letter and formal address (khitab), such as he wrote: “O such and such! (m: he mentioned his wife’s name) when this letter reaches you, you are divorced” then in such a case she will be divorced with the reaching of the letter.” (See: Radd al-Muhtar ala al-Durr al-Mukhtar, 3/246, matlab fi al-talaq bi al-kitabah)

Imam al-Mawsili (Allah have mercy on him) states in his al-Ikhtiyar:

“If one wrote divorce in a book, on a slab/board, on a wall or on the ground, divorce will not be effected unless one has the intention….If this writing was not in a addressed form, for example he wrote: “wife is divorced” then this (also) will depend on his intention (m: meaning if he had the intention of divorce it will count otherwise not)…and if he wrote it in the form of a formal address and as a letter, for example he wrote: “O such woman (m: his wife) you are divorced, or when this letter reaches you, you are divorced, then divorce will come into effect even without having a intention.” (al-Ikhtiyar li ta’lil al-Mukhtar, 3/171-172)

In light of the above texts, it can be deduced that “informal” writing is that which one merely writes on a wall, board, slab, skate, small piece of paper, etc without addressing it to the wife or referring the divorce to her, and without sending it to her or intending to do so. For example, one wrote on a wall “divorce” or “I divorce” etc. Obviously one cannot send this wall to one’s wife. Hence in this case, divorce will only count if one intends it.

On the other hand “formal” writing is that which one writes on a proper document similar to what one uses when writing a letter, or addresses it to the wife or refers the divorce to her, with the intention of sending the written document to her. Hence, divorce in this case will count even if one did not intend it.

Based on the above explanation, we find that there can be few situations with regards to issuing a divorce by text massage over the phone or by email:

a) If one merely typed the word “divorce” or Talaq” or “I divorce” etc on the phone as a text message or on a computer as email, without actually referring the divorce to one’s wife or taking her name, and also without sending her the message or mail, then in such a case divorce will only count if one intends it. The reason being is that this would be considered “informal” writing for which an intention is needed. It is similar to writing these words on a wall or piece of paper without actually addressing the divorce to one’s wife.

b) If one typed the word “divorce” or “talaq” etc as text massage or email and then sent it to the wife’s phone or email, then divorce will come into effect even without having an intention. The reason being is that, by sending the message or email to one’s wife, it becomes a formal writing of divorce in which having an intention is not necessary.

c) If one did not send the text message or email to the wife, but referred the divorce to his wife or took her name, then in such a case also, divorce will come into effect even without having an intention. It is similar to one issuing a divorce as formal writing without actually sending it to the wife. Referring the divorce to one’s wife and taking her name in it self becomes “formal” writing, hence divorce comes into effect even without intending it.

It would be worthy to note three additional points in regards to our discussion:

Firstly, when one writes the divorce formally, it comes into effect even without sending it to one’s wife. Merely completing the writing will effect a divorce. However, if one wrote to one’s wife that “when this letter reaches you, you are divorced” then divorce will occur when the letter or mail reaches her.

Allama Ibn Abidin (Allah have mercy on him) states:

“In formal writing, if one issued the divorce by stating: “Now then (amma ba’du) you are divorced” divorce will be effected as he writes these words, hence the wife will be obliged to observe her waiting period (iddah) from the time of writing. However, if one connected divorce to the receiving of the letter such as he wrote: “When this letter reaches you, your are divorced” then divorce will come into effect as soon as the letter reaches her, with or without her reading the letter (m: hence her waiting period will commence from the time the letter reached her).” (Radd al-Muhtar, 3/246)

Secondly, for written divorce to come into effect, the husband must have either written it himself or ordered another person to do so on his behalf.

Allama Ibn Abidin (Allah have mercy on him) states:

“Every letter that which the husband did not write himself, neither did he dictate it himself, divorce will not come into effect until he does not admit that it is his writing.” (Radd al-Muhtar, 3/247)

Therefore, the husband himself or the one who he ordered must have written the divorce in order for it to count. Hence, the text message, email, etc must be typed and sent by the husband himself or someone (whom he ordered) on his behalf. If someone else used the husband’s phone or email address and sent the message to the wife, divorce will not count.

If the husband’s email address or phone was used, or the wife received a letter of divorce, but the husband denied emailing it, sending the text message or sending the letter to her, then in such cases, the husband’s word will be taken unless it is proven otherwise. In order for the divorce to come into effect, the husband must admit that it is his letter, email, or message; or it is proven by witnesses that he did actually write the letter or sent the message. (Radd al-Muhtar 3/247)

Finally, issuing a divorce in writing when under force does not count, provided one did not utter anything verbally. This was explained in detail in an earlier post under the title “forced to divorce” hence one may refer to it for more details.

The above was some necessary fiqh with regards to issuing a divorce in writing. I hope it has been beneficial, Insha Allah.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK