Divorce in Anger

http://islamqa.org/hanafi/daruliftaa/7804

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 Should I rely on the Istikhara or how do I convince myself that the divorce has been revoked or not?

ANSWER

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 forms 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 you’re second waiting period, because of explicit texts of the Qur’an and Sunnah.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

http://islamqa.org/hanafi/daruliftaa-birmingham/20004

If TALAQ HAPPEN’S IN ANGERNESS AND IF HUSBAND SAYS I SAID TALAQ BUT MY INSIDE WAS NOT MEANING OF TALAQ.

In the name of Allah, the most Beneficent, the most Merciful.

Answer

The jurists have categorised anger into three stages:

1. The initial stage of anger where ones mind is sound and fully in control of what one is saying. In such a case talaq will occur without any doubt.
2. Extreme anger to the point of insanity, where one is unaware where he is or what he is saying. In such a case talaq will not occur.
3. Finally that stage which is between the above two stages in that one was extremely angry but not to the point of insanity, and was aware of what one was saying. In this case also, talaq will also occur. (Raddul Muhtar p.452 v. 4)

Normally it can be said that the anger does not reach the level of insanity as mentioned above therefore divorce is valid and will take place.

However in circumstances where it is claimed that the anger was such that a person lost his sanity, then in those occasion it is necessary that the person has previous medical history of insanity or has been diagnosed by the doctor of being of unstable mind, or has two male witness or one male and two female witnesses testifying that in fact on that occasion the person had in deed lost his sanity, then the divorce will not take effect. (Ibid)

The conclusion to your question is that if your husband gave you one talaq in anger then one talaq will occur irrespective of whether the husband meant to give her talaq or not. However, the husband can take her back if he revokes the divorce before the ending of the three menstrual periods (if she still menstruates) or three months. The choice of taking the wife back lasts only during the iddah period. At the expiry of this time, the rujuu also expires. (Bahrur Raaiq p.50 v.4) However, if the iddah expired without the husband taking his wife back the marriage will break and they will have to remarry without the need for a Halalah.

The jurists have listed two ways of effecting rujuu, one by speech and the other by action. It is more praiseworthy to make rujuu by speech rather than action. (Raddul Muhtar p.24 V.5)

To effect a rujuu by speech the husband can say, “I have taken you back”, or “I have retained you”. Rujuu will be effected whether the wife is in front of him or not, however where the wife is not present it is best to have two. (Raddul Muhtar p.25 V.5)

The jurists have placed the condition of there being lust and desire on the part of either the husband or wife if rujuu is initiated by action. If there is no desire then rujuu is not affected. Therefore, to touch the wife, have intercourse with her, to kiss her including her face, forehead and lips and also to touch her with or without an intervening cloth where the heat of the body is felt with desire, will effect rujuu. (Ibid)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham