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Wednesday, June 29, 2011

Islam Question and Answer - He took his wife back during her ‘iddah on the basis of a fatwa but she obtained a different fatwa and married someone else

He took his wife back during her ‘iddah on the basis of a fatwa but she obtained a different fatwa and married someone else
I was married to a woman and had a son from her, then there were some differences between me and her and I divorced her. During the ‘iddah, there was an argument between me and her brother, and I swore an oath and said: “If So and so does not come back to my house before Fajr, then she is thrice-divorced.” But her brother did not let her, so she did not come back. At that time I had not taken her back (formally, as a wife). After a short while I sought a fatwa and was told that it was permissible for me to take her back but I did not ask whether the second talaaq had taken place or not. Two years later there were major problems in which her family played a major role, and I divorced her, but during the ‘iddah I met her and there happened between us that which happens between husband and wife. I asked one of the scholars working in the court in my city and he gave me a fatwa in writing stating that the divorce that I did not ask about did not count as such, because a divorce issued to an already-divorced woman does not count, and my taking her back by means of intercourse was valid, and I also asked two friends to testify that I had taken her back and told my wife about that, but I did not tell her family because of the severity of the discord in the family. My family got angry with me when they found out that I had taken her back. But I asked her to bear that with patience and to let the taking back continue in secret until I was able to become independent of my family. After one year, during which I used to meet with her in secret and we would sometimes do what husbands and wives do, Allaah blessed me with the opportunity to travel abroad to complete my studies. I got in touch with her ten days before I was due to travel and told her that Allaah had given us a solution to our problem. I asked her to wait for one or two months, and I would tell her how Allaah had granted me a way out, then I left and did not tell her. One week after I left, my family suddenly told me that my ex-wife (or so they thought) had got married! I became very distressed and I did not know what to do, as I was abroad and I did not believe it. I tried to contact my wife and she told me that she thought that I was deceiving her all that time and that I had betrayed her, because she knew that the period of travel would not be less than five years, and she claimed that she had consulted a scholar on the radio as to whether intercourse with the wife without the intention of taking her back was regarded as taking her back or not, and he told her that the intention was essential. 


I asked for advice and was told that I had the right to refer the matter to court to seek a separation, or to divorce her, so long as I told her so that she could observe the iddah following divorce. Please note that they married her to someone else without taking the divorce papers from me, and that is what Ii intended to tell them when they asked me about the divorce papers.

 

Praise be to Allaah.

The most beloved deed of the troops of Iblees to him is
causing separation between man and wife. The devils keep competing in that
so as to attain the honour of being close to Iblees and gaining high status
before him. 

It was narrated that Jaabir (may Allaah be pleased with him)
said: The Messenger of Allaah (peace and blessings of Allaah be upon
him) said: “Iblees places his throne over the water, then he sends out his
troops, and the one who is closest in status to him is the one who causes
the greatest amount of fitnah (tribulation or temptation). One of them comes
and says, I have done such and such, and he says: You have not done
anything. Then one of them comes and says: I did not leave him until I
separated him and his wife. Then he draws him close to him and says: How
good you are.” Narrated by Muslim (2813). 

What we see, hear and read of the actions of husbands and
wives points to the success of the devils in achieving their aims. The
divorce rate in Muslim countries is frightening. And if you look for the
reasons you will see that it rarely has to do with religion. Most of it has
to do with insignificant worldly matters, so the husband acts in haste, gets
angry and divorces his wife, then the family is divided and scattered, and
the children are lost. 

Perhaps the one who reads this will think carefully before
divorcing, and he will strive to do that which will make his family happy
and avoid divorce, so that he will not bring misery upon himself and his
family. 

Secondly: 

In general terms, there are differences of opinion among the
scholars concerning many cases of divorce. Whatever the husband knows of the
rulings before he utters the words of divorce, he should adhere to what he
knows, and whatever he does not know about, if he asks someone whose
religious commitment and knowledge he trusts, then he has to follow the
fatwa he issues, and it is not permissible for him to move from one scholar
to another in order to find another fatwa. He should not have any doubts,
for he has done that which Allaah has enjoined of asking the people of
knowledge, and it is obligatory for him to follow the ruling, especially if
there is a ruling issued by an Islamic judge, because the ruling of the
judges is decisive in cases of differences of opinion, and the questioner
must accept the answer of a trustworthy scholar. 

Thirdly: 

What the scholars said about a divorce issued to an
already-divorced woman not counting as such is a view that was favoured by a
number of scholars, including Shaykh al-Islam Ibn Taymiyah, and by Shaykh
Ibn ‘Uthaymeen among contemporary scholars. 

Fourthly: 

What the scholars said to you that your having intercourse
with your wife is regarded as taking her back is the view of the Hanafis and
Hanbalis, and there is nothing wrong with you following this opinion,
because you did what you were enjoined to do, namely asking the people of
knowledge, and asking about a matter that is subject to ijtihaad in which
the scholars have differed. 

Ibn Qudaamah (may Allaah have mercy on him) said:  

The apparent meaning of the words of al-Khuraqi is that
taking back is only achieved verbally. This is the view of al-Shaafa’i and
is one of the two views narrated from Ahmad. 

The second view is that taking back is achieved by means of
intercourse, whether or not he intended to take her back. This view was
favoured by Ibn Haamid and al-Qaadi. This is the view of Sa’eed ibn
al-Musayyab, al-Hasan, Ibn Sireen, ‘Ata’, Tawoos, al-Zuhri, al-Thawri,
al-Awzaa’i, Ibn Abi Layla and ashaab al-ra’i. End quote. 

Al-Mughni (8/482). 

We think that your telling your wife of the fatwa and taking
her back, and bringing two witnesses to the taking back, may have been
another way to confirm that you were taking her back, in addition to having
intercourse. Your telling her and the two witnesses is a clear statement
that you took her back. 

Whatever the case, you asked for advice and were told that
she had been taken back, and you told her and bought witnesses to confirm
the taking back. 

Based on this, the fact that your wife says that she
consulted one of the scholars who gave her a fatwa saying that your taking
her back did not count as such because you had intercourse without the
intention of taking her back is of no significance, because you consulted
someone and told her of the fatwa and brought witnesses to that, thus the
taking back was done in the proper manner, and there is no way for your wife
to disagree with that. 

Fifthly: 

Telling your family and your wife’s family is not a condition
of taking her back, and in fact it is not a condition that the wife tell
them herself. A husband may take back his revocably-divorced wife (first or
second talaaq) even if she is far away from him, and it is not a condition
that she be told or even agree to it. 

Allaah says (interpretation of the meaning): “And their
husbands have the better right to take them back in that period, if they
wish for reconciliation” [al-Baqarah 2:228].  

Al-Qurtubi (may Allaah have mercy on him) said: 

The scholars are unanimously agreed that if a free man
divorces his free wife, and he had consummated the marriage with her, and it
is a first or second talaaq, then he has more right to take her back so long
as the ‘iddah has not ended, even if the wife disagrees. 

Tafseer al-Qurtubi (3/120). 

But it would have been better to tell her family that you had
taken back your wife back. The fact that you did not tell her may have
caused them to do this terrible evil, which is marrying her to someone else,
thinking that your divorce and your absence meant that their daughter was
divorced fully and was able to remarry. 

Allaah has enjoined bringing witnesses to taking back a wife
in the verse (interpretation of the meaning): “And take as witness two
just persons from among you (Muslims)” [al-Talaaq 65:2], so as to put an
end to disputes, inform people and alert the heedless to the number of
divorces. 

The fuqaha’ indicated that if there are no witnesses to the
taking-back, that may result in disputes and arguments as to whether the
wife has been taken back or not, and the woman may end up marrying another
man, thinking that she has not been taken back (by the first husband). 

In al-Mawsoo’ah al-Fiqhiyyah (22/114) it says: 

The majority of fuqaha’ are of the view that it is mustahabb
to tell the wife that she has been taken back, because that will put an end
to the disputes that may arise between man and wife. 

Al-‘Ayni said:  It is mustahabb to tell her (i.e., to tell
the wife that she has been taken back), because otherwise she might get
married on the basis of her belief that her husband has not taken her back
and her ‘iddah has ended, and she may have intercourse with the new husband,
thus she will be sinning for not asking her husband, and he will be sinning
for not telling her. But even if he does not tell her, the taking-back is
still valid, because it is the continuation of an existing marriage and is
not the initiation of a new one and the husband is exercising his rights,
and for a man to exercise his right he does not need to inform others. End
quote. 

Now what you must do is refer the matter to the sharee’ah
court, and present the written fatwa from this scholar, and bring the two
witnesses, to prove that you had in fact taken your wife back. 

If you can inform everyone of the matter without going to the
sharee’ah court, that is fine. 

We should point out that if you do not want to take her back,
it is not permissible for you to keep quiet about the matter. After setting
things straight, you can divorce her if you wish, but you should understand
that if you keep quiet, her second marriage will remain invalid, and this is
a serious evil. 

We ask Allaah to help you to do that which pleases Him and to
make good easy for you. 

And Allaah knows best.

Islam Q&A



 

Islam Question and Answer - Raising the hands in the first tashahhud – before or after standing?

Raising the hands in the first tashahhud – before or after standing?
Raising the hands in the first tashahhud – should it be whilst one is sitting before standing up, or when standing up after the tashahhud?.

 

Praise be to Allaah.

Firstly: 

It is proven in the saheeh Sunnah of the Prophet (peace
and blessings of Allaah be upon him) that the hands should be raised when
saying takbeer in four places: the opening takbeer (takbeerat al-ihraam),
before bowing, after rising from bowing, and after standing up following the
middle tashahhud in a three- or four-rak’ah prayer. This is different from
the view of the Hanafis, who say that the hands should be raised only with
the opening takbeer, and unlike the majority of Hanbalis who say that the
hands should not be raised in the fourth place. 

See the answers to questions no.
3267 and
21439. 

Secondly: 

With regard to raising the hands after the middle tashahhud
and standing up for the third rak’ah, the scholars differed as to the point
at which the hands should be raised. Some of them said: before standing up,
when one is still sitting. This is the view of the Shaafa’is and of the
scholars of the Standing Committee, and of Shaykh al-Albaani. Others said
that it is after standing up. This is the view of Abu Hurayrah, Ibn ‘Umar,
Imam Maalik and others; it was also stated by Shaykh al-‘Uthaymeen in his
fatwas. 

There are proven ahaadeeth about this raising of the hands,
including the following: 

1-

It was narrated from Naafi’ that when Ibn ‘Umar began to pray
he would say takbeer and raise his hands, and when he bowed he would raise
his hands, and when he said ‘Sami’a Allaahu liman hamidah (Allaah hears the
one who praises him)’ he would raise his hands, and when he stood up
after two rak’ahs he would raise his hands.  

And Ibn ‘Umar attributed that to the Prophet (peace and
blessings of Allaah be upon him). 

This was narrated by al-Bukhaari, who included it in a
chapter entitled: “Chapter on raising the hands when standing up after two
rak’ahs”. 

We shall see clearly below that Ibn ‘Umar (may Allaah be
pleased with him) would say takbeer and raise his hands after he had stood
up straight. 

2-

It was narrated from Abu Hurayrah that he would say takbeer
in every prayer, obligatory or otherwise, in Ramadaan and at other times. He
would say takbeer when he stood up, then he would say takbeer when he bowed,
then he would say ‘Sami’a Allaahu lima hamidah (Allaah hears the one who
praises him)’, then he would say, ‘Rabbana wa laka’l-hamd (Our Lord, to You
be praise)’ before he prostrated; then he would say Allaahu akbar when he
went down in prostration, then he would say takbeer when he raised his head
from prostration, then he would say takbeer when he prostrated, then he
would say takbeer when he lifted his head from prostration, then he would
say takbeer when he stood up after sitting following the two rak’ahs,
and he would do that in every rak’ah until he had finished the prayer. Then
he would say when he finished: By the One in Whose hand is my soul, I am the
one among you whose prayer most closely resembles that of the Messenger of
Allaah (peace and blessings of Allaah be upon him). That is how he used
to pray until he departed this world. 

Narrated by al-Bukhaari (770) and Muslim (392). 

We shall see below that Abu Hurayrah (may Allaah be pleased
with him) would say takbeer after he had stood up straight. 

3-

It was narrated from ‘Ali ibn Abi Taalib (may Allaah be
pleased with him) that when the Messenger of Allaah (peace and
blessings of Allaah be upon him) stood up to offer an obligatory prayer, he
would say takbeer and raise his hands up to his shoulders, and he would do
that when he had finished his recitation and wanted to bow, and he would do
it when he rose from bowing, but he did not raise his hands at any point
during his prayer when he was sitting, but when he stood up after two
prostrations he would raise his hands likewise and say takbeer. 

Narrated by al-Tirmidhi (3423); he said it is hasan saheeh.
Also narrated by Abu Dawood (744) and classed as saheeh by Ibn Khuzaymah
(584), Ibn Taymiyah in al-Fataawa (22/453) and al-Albaani in
Saheeh al-Tirmidhi. 

What is meant by the phrase “when he stood up after two
prostrations” is when he stood up after two rak’ahs. This is stated clearly
in one of the two reports of al-Bukhaari in the section on “Raising the
hands” where it says: When he stood up after two rak’ahs he would do
likewise. 

4-

It was narrated from Muhammad ibn ‘Amr ibn ‘Ata’ that Abu
Humayd al-Saa’idi said: I heard him when he was among ten of the companions
of the Messenger of Allaah (peace and blessings of Allaah be upon him),
one of whom was Abu Qataadah ibn Rib’i, saying, I am the most knowledgeable
of you about the prayer of the Messenger of Allaah (S). They said: You are
not among the senior of us in terms of companionship and you are not among
those who met him often. He said: Yes I was. They said: Then tell us. He
said: When the Messenger of Allaah (peace and blessings of Allaah be
upon him) stood up to pray, he stood up straight and raised his hands until
they were in line with his shoulders. When he wanted to bow in rukoo’, he
raised his hands until they were in line with his shoulders, then he said
“Allaahu akbar” and bowed, and he made his backbone straight, neither
raising his head nor lowering it, and he put his hands on his knees. Then he
said “Sami’a Allaahu liman hamidah (Allaah hears those who praise
Him),” and raised his hands and stood up straight until every bone went back
to its place. Then he went down in prostration, then he said “Allaahu akbar”
and held his upper arms away from his body and spread out his toes. Then he
would tuck his foot under his body and sit on it. Then he sat upright until
every bone has returned to its place. Then he went down in prostration. Then
he said Allaahu akbar and tucked his foot under his body and sat on it. Then
he sat upright until every bone has returned to its place. Then he got up,
then he did likewise in the second rak’ah , and when he stood up after
two rak’ahs, he said takbeer and raised his hands until they were in line
with his shoulders, as he did when he started the prayer, then he did
likewise until, in the rak’ah with which he ended his prayer, he pushed back
his right foot and sat on his left buttock mutawarrikan
(with the left upper thigh on the ground and both
feet protruding from one (i.e., the right) side), then he said the
salaam. 

Narrated by al-Tirmidhi (304), Abu Dawood (730), al-Nasaa’i
(1181) and Ibn Majaah (862). Classed as saheeh by al-Tirmidhi, al-Nawawi in
al-Majmoo’ (3/447) and al-Albaani in Saheeh al-Tirmidhi. 

Ibn al-Qayyim (may Allaah have mercy on him) said: 

This hadeeth of Abu Humayd is a saheeh hadeeth that accepted
(by the scholars) and has no faults. Some people regarded it as having
faults but Allaah and the scholars of hadeeth showed it to be free of such
faults. We will mention the faults they ascribed to it, then we will explain
what is wrong with their thinking …  

Haashiyat Ibn al-Qayyim ‘ala Tahdheeb Sunan Abi Dawood
(2/295). 

Al-Nawawi (may Allaah have mercy on him) said: 

What is meant by the two prostrations is undoubtedly two
rak’ahs, as it says in the reports of the others. This was stated by the
scholars, both muhadditheen and fuqaha’, except for al-Khattaabi, who
thought that what was meant was the two well known prostrations, then he was
confused about the hadeeth and said: I do not know of any of the fuqaha’ who
said that. It is as if he did not study its isnaads; if he had studied them,
he would have understood it as referring to two rak’ahs as the imams did. 

Al-Majmoo’ (3/447). 

Thirdly: 

The opinions of the scholars, and the reason for the
difference of opinion: 

1-

The first opinion: 

Those scholars who said that the worshipper should raise his
hands whilst he is still sitting, before he stands up for the third rak’ah,
only said that because of the apparent meaning of some of the texts that we
have quoted, which say that the Prophet (peace and blessings of Allaah
be upon him) raised his hands before standing. What is meant by “when he
stood up” in their view is when he wanted to stand up. 

Because of that, raising the hands was mentioned in
conjunction with the takbeer. There are texts which clearly state that that
the Prophet (peace and blessings of Allaah be upon him) said the
takbeer for the third rak’ah when he was still sitting, so these scholars
said that the takbeer should be accompanied by the raising of the hands.  

Abu Ya’la (10/419) narrated that Abu Hurayrah (may Allaah be
pleased with him) said: When the Prophet (peace and blessings of Allaah
be upon him) wanted to prostrate he would say takbeer then prostrate, and
when he stood up after sitting he said takbeer then stand up. 

Shaykh al-Albaani (may Allaah have mercy on him) said: 

This hadeeth clearly shows that the Sunnah is to say takbeer
and then prostrate, and to say takbeer whilst sitting, then get up. 

Al-Silsilah al-Saheehah (2/157),
hadeeth no. 604.  

It should be noted that some of those who study hadeeth
refuted the Shaykh (may Allaah have mercy on him) and explained that this
report of Abu Ya’la is shaadhdh (odd). We say: Even if it is saheeh, it does
not mention raising the hands. 

Those imams did not think that the words of the narrator
“when he stood up he said takbeer” mean that he said takbeer after standing;
rather it was when he wanted to stand up. This is like the verse in which
Allaah says (interpretation of the meaning): “So when you want to recite
the Qur’aan, seek refuge with Allaah from Shaytaan (Satan), the outcast (the
cursed one)” [al-Nahl 16:98]; the original text literally says “when you
recite” but what is meant is: when you want to recite, then seek refuge with
Allaah. 

Imam Ibn Khuzaymah (may Allaah have mercy on him) said:  

The Prophet (peace and blessings of Allaah be upon him)
would raise his hands when he said takbeer to pray, and when he bowed, and
when he raised his head from bowing. This indicates that the Prophet
(peace and blessings of Allaah be upon him) enjoined raising the hands when
the worshipper wants to bow, and when he raises his head from bowing. Every
phrase that has been narrated concerning this shows that the Prophet
(peace and blessings of Allaah be upon him) raised his hands when he bowed.
This is like the verse in which Allaah says (interpretation of the meaning):
“O you who believe! When you intend
[lit. get up] to offer As-Salaah (the prayer), wash your faces …”
[al-Maa'idah 5:6]. Allaah enjoined washing the parts of the body that
are washed in wudoo’ when a person intends to pray, not after he starts to
do it. What is meant by the phrase “When
you intend [lit. get up] to offer As-Salaah” is when you intend
to do it. The same is meant by the phrase “he would raise his hands when he
bowed” i.e., when he wanted to bow, as in the report of ‘Ali ibn Abi Taalib
and Ibn ‘Umar, who said: “When he wanted to bow.” 

Saheeh Ibn Khuzaymah (1/296). 

The scholars of the Standing Committee were asked: 

What is the ruling on raising the hands after standing up for
the third rak’ah, i.e., when one has finished the first two rak’ahs then
gets up to do the third rak’ah – is it permissible to raise your hands when
standing or not? Please quote the evidence. 

They replied: 

It is Sunnah to raise the hands when getting up for the third
rak’ah in a three- or four-rak’ah prayer, after reciting the tashahhud in
the second rak’ah, because of the report narrated by al-Bukhaari and others,
that when Ibn ‘Umar (may Allaah be pleased with him) started to pray he
would say takbeer and raise his hands, and when he bowed he would raise his
hands, and when he said ‘Sami’a Allaahu liman hamidah (Allaah hears the one
who praises Him) he would raise his hands, and when he stood up after the
two rak’ahs he would raise his hands, and Ibn ‘Umar (may Allaah be pleased
with him) attributed that to the Prophet (peace and blessings of Allaah
be upon him). 

Shaykh ‘Abd al-‘Azeez ibn Baaz, Shaykh ‘Abd al-Razzaaq
‘Afeefi, Shaykh ‘Abd-Allaah ibn Ghadyaan, Shaykh ‘Abd-Allaah ibn Qa’ood. 

Fataawa al-Lajnah al-Daa’imah
(6/346). 

They were also asked: 

How should the takbeer when standing up after the first
tashahhud and raising the hands be done? Should (the worshipper) raise his
hands when he is still sitting, then say takbeer and get up? Or should he
not raise his hands until after he has stood up? Which is the more correct
view? 

They replied: 

It is prescribed to raise the hands in prayer when getting up
after the first tashahhud, and say takbeer after one has started to move
from sitting to standing. 

Shaykh ‘Abd al-‘Azeez ibn Baaz, Shaykh ‘Abd al-Razzaaq
‘Afeefi, Shaykh ‘Abd-Allaah ibn Ghadyaan 

Fataawa al-Lajnah al-Daa’imah
(6/347). 

2-

The second opinion: 

The scholars said that the hands should be raised after
standing up, and that it is not necessary to raise the hands at the same
time as saying takbeer; the takbeer may come before raising the hands, or
raising the hands may come before the takbeer, or they may be done at the
same time. All of these are proven in the Sunnah about the places where one
is to say takbeer and raise the hands. Some of these imams do not think one
should say takbeer when sitting, even if it is without raising the hands,
rather they think it should be said when standing. They said: The text
should be understood in accordance with its apparent meaning, and the texts
prove that he used to raise his hands “when he stood up” which means when he
had finished standing. 

Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allaah have
mercy on him) said: 

Based on this, the places where the hands are to be raised
are four: 

When saying the opening takbeer, when bowing, when rising
from bowing, and when standing up after the first tashahhud, which should be
done after one has stood up, because the wording of the hadeeth of Ibn ‘Umar
is: “When he stood up after two rak’ahs, he raised his hands,” and that can
only mean when he had finished standing. Based on this, (the worshipper)
should not raise his hands when he is sitting and then get up, as some
people imagine. It is known that the phrase “when he stood up” does not mean
when he was getting up, rather there is a difference between the two. 

There is no raising of the hands apart from that.  

Al-Sharh al-Mumti’ (3/214). 

This is with regard to raising the hands. As for saying
takbeer, the Shaykh – may Allaah have mercy on him – said that it should
come between the two positions, not with either one of them. With regard to
the issue under discussion here, he should say takbeer whilst moving to
stand up, and raise his hands when he had stood up fully. 

Shaykh al-‘Uthaymeen (may Allaah have mercy on him) said:  

The takbeer for moving from one posture of the prayer to
another should be said between the two posture. So when he wants to
prostrate, he should say takbeer between standing and prostrating, and when
he wants to stand up after prostrating, he should say takbeer between
prostrating and standing. This is what is best. 

If he starts to say takbeer before he goes down to prostrate,
and completes it as he is going down, there is nothing wrong with that.
Similarly if he starts it whilst he is going down and does not complete it
until he is prostrating, there is nothing wrong with it. 

Majmoo’ Fataawa al-Shaykh al-‘Uthaymeen
(13/question no. 511). 

What makes it more likely that this view is correct is what
it says in the third hadeeth – the hadeeth of ‘Ali (may Allaah be pleased
with him) – in which he says “he did not raise his hands at any point during
his prayer when he was sitting”. 

It seems that this view is the one that was regarded as more
correct by Shaykh al-Islam Ibn Taymiyah. 

He (may Allaah have mercy on him) was asked about raising
the hands after standing up following the sitting after the first two
rak’ahs: is it recommended? Did the Prophet (peace and blessings of
Allaah be upon him) or any of the Sahaabah do it? 

He replied: Yes, it is recommended according to the scholars
who are well versed in the Sunnah of the Messenger of Allaah (peace and
blessings of Allaah be upon him), and it is one of the two views narrated
from Ahmad, and the view of a number of his companions, and the companions
of al-Shaafa’i, and others. That was proven from the Prophet (peace and
blessings of Allaah be upon him) in the books of al-Saheeh and
al-Sunan. 

Majmoo’ al-Fataawa (22/452). 

Imam Maalik (may Allaah have mercy on him) was of the view
that the worshipper should not say takbeer when standing up for the third
rak’ah until after he has stood up straight. He narrated that in
al-Muwatta’ from some of the Sahaabah. 

Al-Haafiz Ibn Hajar (may Allaah have mercy on him) said: 

He differed from Maalik with regard to standing up for the
third rak’ah following the first tashahhud. He narrated in al-Muwatta’
from Abu Hurayrah, Ibn ‘Umar and others that they used to say takbeer as
they were standing up, and Ibn Wahb narrated from him that saying takbeer
after standing up straight is better. In al-Mudawwanah it says that
one should not say takbeer until one is standing up straight. 

Fath al-Baari (2/304). 

Ibn Daqeeq al-Eid (may Allaah have mercy on him) said: 

They differed concerning the time of this takbeer. Some of
them favoured the view that it should be when starting to get up, which is
the view of al-Shaafa’i. Others were of the view that it should be when one
has stood up straight. This is the view of Maalik. 

Ahkaam al-Ihkaam (p. 244). 

The action of Abu Hurayrah: 

‘Abd al-Razzaaq narrated that Ibn Jurayj said: ‘Ata’ told me:
I prayed behind Abu Hurayrah and I heard him saying takbeer when he started
to pray, and when he bowed, and when he went down to prostrate, then when he
raised his head, then when he lowered his head for the second prostration,
then when he raised his head, then when he stood up straight after two
(rak’ahs).  

He said to me: That is how the takbeer should be in every
prayer. 

Musannaf ‘Abd al-Razzaaq (2492).
Its isnaad is saheeh. 

The action of ‘Abd-Allaah ibn ‘Umar: 

‘Abd al-Razzaaq narrated that Ibn Jurayj said: Naafi’ told me
that Ibn ‘Umar used to say takbeer with his hands when he started to pray,
and when he bowed, and when he said ‘Sami’a Allaahu liman hamidah
(Allaah hears the one who praises Him) and when he raised his head from
bowing, and when he stood up straight after two (rak’ahs). He said:
And he did not say takbeer with his hands when he raised his head after the
two prostrations. 

Narrated by ‘Abd al-Razzaaq in al-Musannaf (2520) and
by al-Bukhaari in Juz’ Rafa’ al-Yadayn (38). Its isnaad is saheeh. 

If these Sahaabah – along with Imam Maalik – say that the
takbeer should come when one has stood up straight, then it is more likely
that the hands should be raised when standing. The report of Ibn ‘Umar
clearly shows that he said takbeer and raised his hands when he had stood up
straight. 

But we do not accept that it is not allowed to say takbeer
when sitting, before standing up, or whilst getting up – as Imam Maalik
disallowed it – because there is evidence which indicates that one may say
takbeer whilst sitting and we cannot reject that. This is the view of the
majority of scholars. But as for raising the hands, we think that it should
be done whilst standing. 

Al-Bukhaari said, in a chapter entitled: Saying takbeer
whilst getting up after doing two rak’ahs and Ibn al-Zubayr used to say
takbeer whilst getting up.  He narrated two hadeeth concerning that. 

1-

It was narrated that Sa’eed ibn al-Haarith said: Abu Sa’eed
led us in prayer and he said the takbeer out loud when he raised his head
from prostration, and when he prostrated, and when he stood up following
the two rak’ahs. He said: This is what I saw the Prophet (peace and
blessings of Allaah be upon him) do. 

2-

It was narrated that Mutarrif said: ‘Imraan ibn Husayn and I
prayed behind ‘Ali ibn Abi Taalib (may Allaah be pleased with him). When he
prostrated he said takbeer, and when he raised his head he said takbeer, and
when he got up after two rak’ahs he said takbeer. When he said the salaam,
‘Imraan took me by the hand and said: This man has led us in a prayer like
that of Muhammad (peace and blessings of Allaah be upon him), or:  This
man reminded me of the prayer of Muhammad (peace and blessings of
Allaah be upon him). 

Narrated by al-Bukhaari (753) and Muslim (393). 

Ibn Rajab (may Allaah have mercy on him) said: 

The evidence in these two ahaadeeth which al-Bukhaari quoted
in this chapter shows that in the hadeeth of Abu Sa’eed the takbeer comes
when rising from prostration, which is apparent in starting to say takbeer
when starting to rise.  

As for the hadeeth of ‘Imraan, it says: “When he rose, he
said takbeer” which may also be understood as meaning that he said takbeer
when he started to rise. 

The hadeeth of Abu Hurayrah to which we referred is clearer
than all of that; it says: “He used to say takbeer when he raised his head
from the first and second prostration.” There is no dispute concerning
this. 

In the hadeeth of Abu Sa’eed the takbeer comes “When he stood
up following the two rak’ahs.” In the hadeeth of ‘Imraan is says: “When he
got up following the two rak’ahs he said takbeer.” 

There was a difference of opinion concerning the
interpretation of this. The majority interpreted it as meaning that he said
takbeer when he began to stand up and get up. 

In the hadeeth of Abu Hurayrah referred to at the beginning
of the chapter, it says: “He said takbeer when he stood up from sitting in
the two (rak’ahs).” 

This is the view of Abu Haneefah, al-Thawri, al-Shaafa’i and
Ahmad. 

Maalik said – according to the better known of the two
reports narrated from him: He should not say takbeer when he stands up after
the two rak’ahs until he is standing up straight, because in some versions
of the hadeeth of Abu Humayd and his companions it says: “when he stood up
following the two rak’ahs he said takbeer.” 

This was narrated by al-Tirmidhi, al-Nasaa’i, Ibn Majaah and
Ibn Hibbaan. 

A similar report was narrated from Abu Hurayrah, Anas and
others. 

These ahaadeeth may be understood as meaning that he said
takbeer when he wanted to stand up following the first tashahhud.  

Fath al-Baari by al-Haafiz Ibn
Rajab (6/64). 

Al-Haafiz Ibn Hajar (may Allaah have mercy on him) said: 

His saying: “Chapter: he should say takbeer as he is getting
up after the two prostrations” – the majority of scholars are of the view
that the worshipper should start to say takbeer and so on when he starts to
go down or get up, but there was a difference of opinion from Maalik with
regard to standing up for this third rak’ah after the first tashahhud. 

Fath al-Baari (2/304). 

To sum up: 

1.    
It is proven that one should
say takbeer when moving up or down in all movements of the prayer.

2.    
It is proven that the hands
should be raised in four places: when saying the opening takbeer, when
bowing, when rising from bowing, and when standing up for the third rak’ah.

3.    
The Hanafis say that the hands
should only be raised for the opening takbeer, and the Hanbalis say that the
hands should be raised in the first three places but not the fourth.

4.    
The majority of scholars say
that the takbeer for standing up for the third rak’ah should be said whilst
sitting before standing up, or when getting up, unlike Imam Maalik who said
that the takbeer should come after one has stood up straight. From all
the reports that we have quoted in this answer, it is clear to us that
the takbeer may come before standing up, whilst standing up and after
standing up. 

5.    
What is proven from the
apparent meaning of many of the ahaadeeth, and from the actions of some of
the Sahaabah, is that the raising the hands in these places comes after one
has finished standing up, especially as it
says that there is no raising the hands when sitting, as we quoted in the
third hadeeth, from ‘Ali (may Allaah be pleased with him), which says: “he
did not raise his hands at any point during his prayer when he was sitting”.
Even though that may be interpreted as referring to  not raising the hands
when prostrating and when rising from prostration.

6.    
This issue is one of the issues
in which different views are acceptable, and it is Sunnah, not an obligatory
part of prayer, so it is not permissible to denounce harshly the one who
does something different, let alone hate him or cut off ties with him. 

Note:

If a person joins the prayer late and has missed a rak’ah –
for example – there is a difference concerning the ruling. Should he raise
his hands after reciting the first tashahhud – which is the first rak’ah for
him – or after the third rak’ah of the imam, which is the second for him?
Al-Haafiz Ibn Rajab al-Hanbali regarded it is more likely that raising the
hands is connected to the tashahhud not to it being the third rak’ah, and
this is an acceptable argument. Some of the scholars regarded that as more
likely for a different reason, which is following the imam, if the imam
raises his hands at this point. 

Mardaawi al-Hanbali (may Allaah have mercy on him) said: 

As for raising the hands when standing up following the first
tashahhud – if we regard it as mustahabb – it may be understood that he
should raise them when he stands up for the rak’ah that is judged to be the
third, whether he stands up following the tashahhud or otherwise, and it may
be understood that he should raise his hands when he stands up following his
first tashahhud, whether that is immediately after the second rak’ah or not.
He said: This is more likely to be correct. End quote. 

Al-Insaaf (2/227). 

And Allaah knows best.

Islam Q&A

Islam Question and Answer - His wife reviles him and insults him. What should he do?

His wife reviles him and insults him. What should he do?
There is a very ill mannered wife who slanders and insults her husband. He has warned her more than once, but she insists on insulting him. He cannot tolerate this but he has a daughter, and he fears for his daughter if he divorces his wife. What should he do?.

 

Praise be to Allaah.

If the wife insults and reviles her husband, then he must
advise her and warn her, and explain to her that her bad talk incurs sin,
especially since the husband is the most deserving of people of her respect
and good treatment, as the Prophet (peace and blessings of Allaah be
upon him) said: “If I were to command anyone to prostrate to anyone, I would
have told women to prostrate to their husbands, because of the rights that
Allaah has given them over them.” Narrated by Abu Dawood (2140) and
al-Tirmidhi (1159); classed as saheeh by al-Albaani in Saheeh Abi Dawood. 

You should follow with her the method that Allaah has
mentioned in His Book, of admonishing, forsaking in bed and hitting in a way
that does not cause injury. If none of that is successful, then you should
seek help in advising her from a righteous person in her family, so as to
preserve the family and take care of the rights of the children, if there
are any. 

Allaah says (interpretation of the meaning): 

“Men are the protectors and maintainers of women, because
Allaah has made one of them to excel the other, and because they spend (to
support them) from their means. Therefore the righteous women are devoutly
obedient (to Allaah and to their husbands), and guard in the husband’s
absence what Allaah orders them to guard (e.g. their chastity and their
husband’s property). As to those women on whose part you see ill‑conduct,
admonish them (first), (next) refuse to share their beds, (and last) beat
them (lightly, if it is useful); but if they return to obedience, seek not
against them means (of annoyance). Surely, Allaah is Ever Most High, Most
Great”

[al-Nisa’ 4:34] 

Among the admonishment that you may use with her is telling
her of the sin that she is committing by disobeying her husband, and the
great reward that she will attain if she obeys him. 

You should also explain to her the harm that will be suffered
by her, her husband and her daughter in the event of a divorce or if she
continues to behave in this manner. 

If the wife responds and is affected by this admonition, and
she gives up this bad behaviour, then this is what is wanted. If she
persists in her evil ways and foolishness, then there is no blame on the
husband if he divorces her. 

The scholars have stated that divorce may be permissible if
it is needed because of the wife’s bad attitude and bad conduct, and if he
is harmed by that and the purpose of marriage is not being achieved.  

Al-Mughni (10/324). 

What you have mentioned about being afraid for your daughter
if you separate is something that should be taken into account. If you are
afraid that you will not be able to bring her up, or that the girl will be
harmed because of this divorce, then you should weigh up the two evils, that
of staying with a woman whose attitude is bad and who is mistreating you,
and that of what might happen to your daughter after a divorce. One of the
basic principles of sharee’ah is doing the lesser of two evils in order to
ward off the greater. 

You should pray istikhaarah, asking Allaah for guidance,
before making your decision, and you should strive for reconciliation if
possible. If that is not possible then strive to protect your daughter and
get custody of her, and do not leave her for this woman to raise her with
her attitude. 

We advise you to pray to Allaah and always fear Him, for
Allaah has promised provision and a way out to the pious who always fear
Him. Allaah says (interpretation of the meaning): 

“And whosoever fears Allaah and keeps his duty to Him, He
will make a way for him to get out (from every difficulty).

3. And He will provide him from (sources) he never could
imagine. And whosoever puts his trust in Allaah, then He will suffice him.
Verily, Allaah will accomplish his purpose. Indeed Allaah has set a measure
for all things”

[al-Talaaq 65:2-3] 

We also advise you to repent to Allaah from all sins, for the
wife’s bad attitude may be a punishment for sins that one has committed, as
it was narrated that al-Fudayl ibn ‘Iyaad (may Allaah have mercy on him)
said: I disobey Allaah then I see that in the attitude of my mount or my
wife.  

We ask Allaah to set our affairs and the affairs of the
Muslims straight. 

And Allaah knows best.

Islam Q&A



 

Islam Question and Answer - Threefold divorce counts as one according to the correct scholarly opinion

Threefold divorce counts as one according to the correct scholarly opinion
My friend give divorce to wife in anger.he give three at one time.i read on internt at once three count only single divorec.can u tell me its true?and also i read that anger is three kind it true is well?.

 

Praise be to Allaah.

Firstly: 

The fuqaha’ differed
concerning the threefold divorce (talaaq). The correct view is that it
counts as one divorce, whether it is uttered in a single phrase, such as
saying “You are thrice divorced” or in repeated words such as saying, “You
are divorced, you are divorced, you are divorced.” This is the view favoured
by Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) and was the
view regarded as most correct by Shaykh al-Sa’di (may Allaah have mercy on
him) and Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him). 

They quoted as evidence the
hadeeth narrated by Muslim (1472) from Ibn ‘Abbaas (may Allaah be pleased
with him) who said: At the time of the Messenger of Allaah (peace and
blessings of Allaah be upon him), Abu Bakr and the first two years of
‘Umar’s caliphate, a threefold divorce was counted as one. Then ‘Umar ibn
al-Khattaab said: People have become hasty in a matter in which they should
take their time. I am thinking of holding them to it. So he made it binding
upon them. 

Secondly: 

If a man divorces his wife
in anger, one of three scenarios must apply: 

1-   
His anger was mild and did not
affect his will and choice, so his divorce is valid and counts as such.

2-   
His anger was so intense that
he did not know or realize what he was saying. This divorce does not count
as such because in this case he was like an insane person who is not to be
brought to account for what he says. 

With regard to these two
scenarios of anger, there is no difference of opinion among the scholars on
the ruling. There remains the third scenario which is: 

3-   
Intense anger which affects a
person’s will and makes him speak words as if he is compelled to do so, but
he soon regrets it as soon as his anger dissipates; but the anger does not
reach the stage where he does not feel or realize what he is saying and
cannot control his words or actions. The scholars differed concerning the
ruling on this type of anger. The more correct view – as Shaykh Ibn Baaz
(may Allaah have mercy on him) said – is that it does not count as such
either, because the Prophet (peace and blessings of Allaah be upon him)
said: “There is no divorce and no manumission at the time of coercion.”
Narrated by Ibn Majaah (2047); classed as saheeh by al-Albaani in
al-Irwa’ (2047). Coercion here was interpreted by the scholars as
referring to compulsion and intense anger. 

This view was favoured by
Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) and his student
Ibn al-Qayyim who wrote a well known essay concerning that entitled
Ighaathat al-Lahfaan fi Hukm Talaaq al-Ghadbaan. 

See the answer to question
no. 45174. 

Based on this opinion, if
your friend spoke the word of divorce at a moment of intense anger, then no
divorce has taken place; if he was slightly angry, then it counts as one
divorce. 

And Allaah knows best.

Islam Q&A



 

Islam Question and Answer - A man’s saying to his wife “I will divorce you” does not count as a divorce

A man’s saying to his wife “I will divorce you” does not count as a divorce
If a man says to his wife, “In sha Allaah I will divorce you and get rid of you,” but he does not say anything other than that, does that count as a divorce? His intention was not to divorce her, rather it was meant only as a threat, and he is certain about that.

 

Praise be to Allaah.

A man’s saying to his wife “In sha Allaah I will divorce you
and get rid of you,” does not  count as a divorce, rather it is a threat of
divorce in the future, so no divorce has taken place, unless he instigates
it after that. 

And Allaah knows best.

Islam Q&A



 

Islam Question and Answer - He swore to divorce her three times in a moment of anger

He swore to divorce her three times in a moment of anger
My wife is studying. We had a problem once and I swore by talaaq three times that if she goes to school she will be considered taaliq (divorced). I was serious and I really had the intention of talaaq, as I was very angry. Few days later I changed my mind, she also did not go to school until now. Please tell me, if she went to school would the talaaq be valid? Is there any expiation for this or not? Now I want her to go to school to complete her education.

 

Praise be to Allaah.

Firstly: 

For a man to use the word
of divorce (talaaq) lightly is a grave mistake, which may lead to the
disintegration of his family when he does not want that. Allaah has not
prescribed divorce to be something that is taken lightly or spoken
carelessly, or to play with women’s feelings, rather He has prescribed it
for the man to use it when he wants to end a marriage if there is a reason
to do so. 

What the man must do is
guard his tongue and restrain himself from using the word of divorce in
matters where divorce is not warranted, so that he will not regret it when
it is too late for regret. 

Secondly: 

Divorce at times of anger
may or may not count as such. This has been discussed in the answer to
question no. 45174. 

To sum up, in the event of
anger in which a person is out of his right mind, divorce does not count as
such, as is also the case with anger in which a man is not in control of
himself because an argument or fight has gone on too long.  

The man is the one who can
recognize the degree of anger that he reached, and can decide whether
divorce counts as such or not. 

Thirdly: 

Issuing a threefold divorce
in one go, such as saying “You are thrice divorced” or “I will divorce you
three times” counts as a single divorce according to the view favoured by a
number of scholars. 

If your anger did not reach
the degree that your divorce did not count, then you have issued one divorce
in this case – if your wife went to school – and you may take her back so
long as her ‘iddah has not yet ended. 

See the answer to question
no. 36580 for more
information. 

And Allaah knows best.

Islam Q&A

Islam Question and Answer - If he says: “If I marry So and so then she is divorced”

If he says: “If I marry So and so then she is divorced”
I needed your help please. A statement of divorce (such as "if i marry xyz then she is divorced") made BEFORE marriage while a man is still single then will this cause automatic divorce in his future marriage as soon as the person gets married? I believe Hanafis and Malikis count this as divorce while others like Shafaee and Hanbalis do not. Can you please tell me which opinion is more correct and which opinion is followed by the majority? Do Hanafis and Malikis have evidence to support their opinion that a divorce statement made before marriage will cause automatic divorce in future marriage? And finally is there any difference on the legal ruling if the statement was made in general form (without mentioning a specific woman) as compared to a specific form (where a woman was mentioned in the statement)?.

 

Praise be to Allaah.

The fuqaha’ differed concerning the case where a man says,
“If I marry So and so – and mentions a specific woman by name – then she is
divorced.” 

The Shaafa’is and Hanbalis are of the view that if he marries
her, the divorce does not take place. The Hanafis and Maalikis are of the
view that she is divorced. 

But if he says, “Any woman whom I marry is divorced,” and he
does not mention a specific woman, then this does not count as a divorce,
except according to the Hanafis. 

The Maalikis disagreed with them, so in their view the
divorce does not count as such unless he mentioned a specific woman, or a
specific time or place, such as saying, “Every woman whom I marry in the
next ten years is divorced.” 

The view of the Shaafa’is and Hanbalis is the more correct
view, as indicated by the saheeh evidence. Al-Tirmidhi (1181) narrated from
‘Amr ibn Shu’ayb from his father that his grandfather said: The Messenger of
Allaah SAWS (peace and blessings of Allaah be upon him) said: “The son of
Adam cannot make any vow concerning that which is not his, he cannot free
(any slave) who is not his, and he cannot divorce any wife who is not his.”
Classed as saheeh by al-Albaani in Saheeh al-Tirmidhi. 

And Abu Dawood narrated from ‘Amr ibn Shu’ayb, from his
father from his grandfather that the Prophet SAWS (peace and blessings of
Allaah be upon him) said: “You cannot divorce (any wife) who is not yours,
you cannot free (any slave) who is not yours and you cannot sell (any goods)
that are not yours.” Classed as hasan by al-Albaani in Saheeh Abi Dawood.

Al-Bayhaqi (may Allaah have mercy on him) stated that the
majority of the Sahaabah and Taabi’een understood from these texts that if a
man says, “If I marry So and so then she is divorced,” then he marries her,
no divorce takes place, because he issued a conditional divorce and said it
at a time when she was not his wife. This was narrated from him by al-Haafiz
in Fath al-Baari. 

Ibn ‘Abbaas (may Allaah be pleased with him) was asked about
a man who said: “Every woman whom I marry will be divorced.” He said: It is
of no significance, because Allaah says (interpretation of the meaning):
“O you who believe! When you marry believing women, and then divorce them …”
[al-Ahzaab 33:49]. 

Ibn Khuzaymah also narrated that he [Ibn ‘Abbaas] was asked
about a man who said: “If I marry So and so then she will be divorced.” He
said: It is of no significance, because only the one who is married to a
woman can divorce her. They said: Ibn Mas’ood said: If he specifies a time
then it is as he said (i.e., that the divorce counts as such). He said: May
Allaah have mercy on Abu ‘Abd al-Rahmaan; if it was as he said, then Allaah
would have said: “When you divorce believing women and then marry them.” 

Ibn Qudaamah (may Allaah have mercy on him) said in
al-Mughni (9/416): If he said: If I marry So and so, then she is
divorced, she is not divorced if he marries her. Then he quoted Imam Ahmad
(may Allaah have mercy on him) as saying that, then he said: This was also
narrated from Ibn ‘Abbaas, and it was the view of Sa’eed ibn al-Musayyab,
‘Ata’, al-Hasan, ‘Urwah, al-Shaafa’i, Abu Thawr and Ibn al-Mundhir. It was
narrated by al-Tirmidhi from ‘Ali, Jaabir ibn ‘Abd-Allaah, Sa’eed ibn
Jubayr, ‘Ali ibn al-Husayn, Shurayh and others among the fuqaha’ of the
Taabi’een. He said: It is the view of most of the scholars. End quote. 

Imam al-Bukhaari (may Allaah have mercy on him) favoured the
view of the majority, which is that no divorce takes place. He narrated this
view from ‘Ali and Ibn ‘Abbaas (may Allaah be pleased with them both) and a
number of the Taabi’een. He (may Allaah have mercy on him) said: Chapter:
There is no divorce before marriage, and the verse in which Allaah says
(interpretation of the meaning): “O you who believe! When you marry
believing women, and then divorce them before you have sexual intercourse
with them, no ‘Iddah [divorce prescribed period] have you to count in
respect of them. So give them a present, and set them free (i.e. divorce) in
a handsome manner” [al-Ahzaab 33:49]. Ibn ‘Abbaas said: Allaah has
decreed that divorce be after marriage. It was narrated concerning that from
‘Ali, Sa’eed ibn al-Musayyab, ‘Urwah ibn al-Zubayr, Abu Bakr ibn ‘Abd
al-Rahmaan, ‘Ubayd-Allaah ibn ‘Abd-Allaah ibn ‘Utbah, Abaan ibn ‘Uthmaan,
‘Ali ibn Husayn, Shurayh, Sa’eed ibn Jubayr, al-Qaasim, Saalim, Tawoos,
al-Hasan, ‘Ikrimah, ‘Ata’, ‘Aamir ibn Sa’d, Jaabir ibn Zayd, Naafi’ ibn
Jubayr, Muhammad ibn Ka’b, Sulaymaan ibn Yasaar, Mujaahid, al-Qaasim ibn
‘Abd al-Rahmaan, ‘Amr ibn Harim and al-Sha’bi that she is not divorced. End
quote. 

See: Fath al-Qadeer (3/114); al-Muntaqa by
al-Baaji (4/117); Sharh al-Kharashi ‘ala Khaleel (4/38). 

And Allaah knows best.

Islam Q&A

 

 

Islam Question and Answer - He said to his wife, “It’s over” and he does not know whether he intended then to divorce her or not

He said to his wife, “It’s over” and he does not know whether he intended then to divorce her or not
A problem happened between my wife and I. I said to her: “get out of the car and you will receive your divorce paper soon”. I am hesitant since this time, I say to myself that I will divorce her, then I say no I will not divorce her, I will give her another chance. At that time my wife was pregnant.  


Before she gave birth I went to the fatwa association in my country and told them what happened. They said that the divorce is not valid because I did not send her the paper of divorce. I decided then to let her stay in her family’s home until she gives birth as a punishment for her. I said to myself that I will bring her home and go again to the mufti. I told him about my problem again but added one more point this time , because I forgot it the first time I went, or maybe I just ignored it thinking it is unimportant due to my ignorance of the fiqh of divorce, that I said to my wife “ you will receive your divorce paper soon, and it is over” . 


The mufti said to me that it returns to my intention when I said this and that there are other matters I must make sure of. This confused me a lot. I do not know my intention. Was it just threatening, or I was angry and I meant something else? She has given birth now and I do not know what to do.

 

Praise be to Allaah.

Your saying to your wife, “Get out of the car and I will send
you your papers, and it’s over” may be regarded as a metaphor for divorce,
and it depends on your intention. If you meant to threaten her with divorce,
then divorce has not taken place until it happens, but if you intended to
divorce her by these words, then one divorce has taken place, and you have
the right to take her back during the ‘iddah. It is well known that the
‘iddah of a pregnant woman lasts until she gives birth. If the ‘iddah ended
without you taking her back, then she cannot come back to you except with a
new marriage contract and a new mahr. 

Some scholars are of the view that a metaphor for divorce
counts as a divorce regardless of intention, if he said those words during
an argument or at a moment of anger. 

Ibn Qudaamah (may Allaah have mercy on him) said in
al-Mughni (7/306): As for that which is not clear, divorce does not take
place unless he intended it, or the circumstances indicate that. See:
Sharh Muntaha al-Iraadaat (3/87). 

It says in Zaad al-Mustaqni’: Divorce does not take
place if a metaphor is used, unless he intended it, except in the case of an
argument or anger, or in answer to her question. End quote. 

Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said in
his commentary: In these three cases, what is meant is that divorce by
metaphor counts as such regardless of intention:

 an argument, i.e., with his wife, in which he says “go to
your family.” Divorce takes place even if he did not intend it, because we
have a situation which indicates that he wanted to leave her. 

Or anger: i.e., in a moment of anger even if there was no
argument, such as if he told her to do something and she did not do it, so
he got angry and said “Go to your family.” Divorce takes place even if he
did not intend it. 

Or in answer to her question, i.e., she said “Divorce me” and
he said, “Go to your family.” Divorce takes place…  

But the correct view is that in the case of a metaphor,
divorce does not take place unless that is what he intended, even in these
cases, because a man may say “Get out” and the
like out of anger, with no intention of divorce at all. End quote from
al-Sharh al-Mumti’ (13/75). 

Based on what the Shaykh (may Allaah have mercy on him)
regards as most likely to be correct, we say: If you did not intend divorce
by the words you said, then divorce did not take place. If you do not know
what your intention was, then the basic principle is that there was no
intention of divorce, so divorce did not take place in that case. 

And Allaah knows best.

Islam Q&A



 

Islam Question and Answer - He spoke the words of divorce because his wife yells at her daughter

He spoke the words of divorce because his wife yells at her daughter
 I woke up scared one day when my wife was shouting at my daughter because she made her school uniform dirty. 
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I became angry with my wife’s loud voice in this early time of the day and said to her: “you will be divorced if you scream or say any other word to the girl” she disobeyed me and said some things to my daughter after this. What is the ruling on this? Did this divorce take place? If yes, is it considered one or final divorce? What should I do now?.

 

Praise be to Allaah.

Firstly: 

The husband should be cautious and careful, especially when
speaking the words of divorce, so that he will not regret it at the time
when regret will be to no avail. It is unwise for a man to divorce his wife
because she yelled at her daughter or raised her voice. 

Secondly: 

The scholars call this a conditional divorce, and the correct
view concerning the ruling thereon is that if the husband indeed intended
that divorce should take place, then it takes place when the wife goes
against his wishes, and it counts as one talaaq only. 

In this case you should take her back (if this was a first or
second talaaq) by saying: “I take you back” It is mustahabb that you should
have your divorcing and taking back witnessed. 

But if your intention was only to stop her yelling, and you
do not intend to divorce her, then this comes under the same ruling as an
oath, and you have to offer the expiation for breaking an oath, and this
does not count as talaaq. See the answer to question no.
82400. 

For detailed information on the expiation for breaking an
oath, please see the answer to question no.
45676.

Islam Q&A

 

 

Islam Question and Answer - He divorced her three times when he was away from her and the news reached her when she was menstruating

He divorced her three times when he was away from her and the news reached her when she was menstruating
I write to you today asking for your opininion in regards to my divorce.My husband and I seperated and after two month of seperation he said talaaq: I am giving you divorce as God is my witnes. I had been mensturating,so I told him it doesnt count so he said God saved you this time but be careful next time. After 3 months seperation he sent me this email: I have divorced you in presence of witnesses. We are no longer married I had not been mensturating at this time. Then I started mensturating 2 days later and he sent me this in an email: As of now, Islamically you are a divorcee. As for idaat, I think you have already been in one for past 3 months. One more month to go and you can go and find someone for yourself. So then I was mensturating and I called him a day later begging him to come back and he said to me I already divorced you and I did it three times! and then I told him later I was mensturating and he said okay then next week I will give you three divorces again to make sure the marriage is over. Now it has been 2 weeks and he hasnt given me three divorces again. How many times does this count as me being divorced?.

 

Praise be to Allaah.

Firstly: 

The fuqaha’ differed
concerning the divorce of a woman who is menstruating: does it count as such
or not? The majority are of the view that it does count as such, but a
number of them were of the view that it does not count as such. This is the
view of many contemporary scholars such as Shaykh Ibn Baaz and Shaykh Ibn
‘Uthaymeen (may Allaah have mercy on him). See also the answer to question
no. 72417. 

Based on this, the first
divorce does not count as such. 

Secondly: 

If your husband divorced
you when he was away from you, and sent you a message informing you of that,
you should look at the time when he uttered the divorce. If you were pure
(i.e., not menstruating) at that time, then the divorce counts as such,
whether the message reached you when you were pure or were menstruating. 

What we understand from
your question is that the first message reached you when you were not
menstruating, and the second message reached you when you were menstruating.
The time when the message arrived does not affect the ruling; what counts is
the time when he uttered the word of divorce. 

Having the divorce
witnessed is not essential. If he utters the word of divorce then divorce
takes place, even if it is in your absence or no one else is present. 

Thirdly: 

The 'iddah begins as soon
as the word of divorce is uttered. The 'iddah of a woman who menstruates is
three menstrual cycles. 

If he divorced you when you
were not menstruating, then you menstruated three times, and the third
period ended and you did ghusl, then your ‘iddah is over. 

Fourthly: 

Your husband says that he
divorced you three times. The fuqaha’ differed concerning the threefold
divorce. The most correct view is that it counts as one divorce, whether he
uttered in one phrase such as saying “You are thrice divorced”, or he
uttered it in separate phrases, such as saying “You are divorced, you are
divorced, you are divorced.” This was the view favoured by Shaykh al-Islam
Ibn Taymiyah (may Allaah have mercy on him) and was regarded as more correct
by Shaykh al-Sa’di and Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on
them). 

Based on this, it seems
from what you say that you have been divorced once. 

However, we say that with
regard to divorce, every case must be examined in detail. Hence you should
refer your case to an Islamic centre in your country, to make sure of what
has happened. 

And Allaah knows best.

Islam Q&A



 

Islam Question and Answer - She raised a knife against him and threatened him so he would divorce her. Does the divorce count as such?

She raised a knife against him and threatened him so he would divorce her. Does the divorce count as such?
During an argument with my wife, she raised a knife against me and threatened me so that I would divorce her and I said to her: You are divorced, so as to put a stop to the matter, but I did not really intend to divorce her. Does this divorce count as such?.

 

Praise be to Allaah.

If you were afraid that
your wife would carry out her threat to attack you with the knife that she
had with her, then this comes under the heading of being forced, and the
divorce does not count as such. Ibn al-Qayyim (may Allaah have mercy on him)
said: The Sahaabah issued fatwas saying that a divorce issued under
compulsion does not count as such. It is narrated in a saheeh report from
‘Umar that a man suspended himself from a mountain by a rope to collect
honey and his wife came and said: Either I cut the rope or your divorce me.
He adjured her by Allaah and she insisted so he divorced her. He came to
‘Umar and told him about that, and he said to him: Go back to your wife, for
this is not a divorce. The ruling that it does not count as a divorce was
also narrated from ‘Ali, Ibn ‘Umar and Ibn al-Zubayr (may Allaah be pleased
with them). End quote from Zaad al-Ma’aad (5/208). 

And he (may Allaah have
mercy on him) said: Imam Ahmad said in the report of Abu’l-Haarith: If a man
who is forced issues a divorce, the divorce is not binding; if what was done
to Thaabit ibn al-Ahnaf is done to him, then he is forced, because they
squeezed Thaabit’s foot until he divorced his wife, then he went to Ibn
‘Umar and Ibn al-Zubayr, and they did not think it counted as anything, as
Allaah says (interpretation of the meaning): “except him who is forced
thereto and whose heart is at rest with Faith” [al-Nahl 16:106]. Imam
al-Shaafa’i (may Allaah have mercy on him) quoted this verse as evidence
that the divorce issued by one who is forced does not count as such. 

In Sunan Ibn Majaah
it is narrated from Ibn ‘Abbaas (may Allaah be pleased with him) that the
Prophet (peace and blessings of Allaah be upon him) said: “Allaah has
pardoned my ummah for mistakes, what they forget and what they are forced to
do.” End quote from I’laam al-Muwaqqi’een (4/51). 

In al-Ikhtiyaaraat
by Shaykh al-Islam it says: The divorce issued by one who is forced does not
count. Force or compulsion happens by means of an explicit threat or when he
thinks it most likely that he or his property will be harmed even if there
is no explicit threat. He said elsewhere: The idea that the threat should be
thought mot likely to be carried out is not correct, rather the correct view
is that the likelihood of the threat being carried out or not should be
equal; then it is a case of compulsion. End quote from al-Fataawa
al-Kubra (5/568). 

But if you knew that your
wife would never harm you, or you could put a stop to her threat without
causing harm, then you were not forced in that case, and your divorce counts
as such. 

What we have mentioned here
is the ruling and guidelines on this issue. As for the ruling in your case,
the details must be examined further, hence we say that you have to refer to
the shar’i court or to a trustworthy scholar in your own land, so that he
can hear from both of you and determine whether this was a case of force or
not. 

And Allaah knows best.

Islam Q&A



 

Islam Question and Answer - Her husband divorced her twice and she has got to know a young man via the internet who wants to marry her

Her husband divorced her twice and she has got to know a young man via the internet who wants to marry her
I am 19 years old girl. I got married 4/8/2006. My husband divorced me twice two months ago, slandered my mother and hit me in front of my brothers. Now he is regretful and wants me back, knowing that I am still his wife in the law point of view.

 
I knew a man through the internet. He is a believing Muslim. We talk only about Islamic issues. After I told him my story he felt for me, one week later he asked if it is possible to propose to me in accordance with Islamic Sharia. What should I do, knowing that this man is really decent; he never said anything that disturbed me morally. Is what I am doing haram? I seek your help as I cannot tell this to anyone. Please help me because I am just 19 years old, I live in France and very few who can help me here. Thank you!.

 

Praise be to Allaah.

Firstly: 

If the husband says to his wife: You are divorced twice, then
one divorce (talaaq) takes place. 

Secondly: 

If this is the first divorce, and only two months have
passed, and your ‘iddah has not ended, then you still come under the heading
of a wife, and it is his right to take you back, and it is not permissible
for you to refuse that, rather your acceptance is not essential to his
taking you back. 

But if the ‘iddah has ended, then he cannot take you back
unless you agree and there is a new marriage contract with a new mahr. 

The ‘iddah of a woman who menstruates is three menstrual
cycles. When she becomes pure after the third cycle and does ghusl, then her
‘iddah is over. 

The ‘iddah of a woman who does not menstruate because she is
very young or has passed menopause is three months. 

Allaah says (interpretation of the meaning): 

“And divorced women shall wait (as regards their marriage)
for three menstrual periods, and it is not lawful for them to conceal what
Allaah has created in their wombs, if they believe in Allaah and the Last
Day. And their husbands have the better right to take them back in that
period, if they wish for reconciliation. And they (women) have rights (over
their husbands as regards living expenses) similar (to those of their
husbands) over them (as regards obedience and respect) to what is
reasonable, but men have a degree (of responsibility) over them. And Allaah
is All-Mighty, All-Wise”

[al-Baqarah 2:228] 

“And those of your women as have passed the age of monthly
courses, for them the ‘Iddah (prescribed period), if you have doubt (about
their periods), is three months; and for those who have no courses [(i.e.
they are still immature) their ‘Iddah (prescribed period) is three months
likewise, except in case of death]”

[al-Talaaq 65:4] 

Thirdly: 

During the ‘iddah of a revocable divorce, it is not
permissible for anyone to propose marriage, whether directly or indirectly,
because she is still regarded as a wife. When her ‘iddah ends, it becomes
permissible to propose marriage to her, directly. 

Based on that, if your ‘iddah has not ended, then this
request from the person whom you have come to know via the internet is
haraam. 

Fourthly: 

Talking to men on the internet via private programs or
conversations, has bad effects and obvious negative consequences, and it is
usually accompanied by various types of haraam things. If the conversation
is about marriage and related matters, then it is even worse. It rarely
leads to successful marriages. 

Hence we advise you to end the relationship with this young
man, and repent to Allaah from talking to him about marriage, if that was
during your ‘iddah. 

You have to go back to your husband, if he asks you do so
during the 'iddah. If you have a problem after that because of living with
him, then you can ask for a divorce in order to remove that harm. 

Fear Allaah and remember that He is always watching and there
is nothing that is hidden from Him. Do not wrong yourself and do not spoil
your husband’s reputation or his honour by carelessly forming relationships
with other men. You will never get anything from that but more worry and
distress, and that will put you off your husband and make you feel attached
to some other man, and it deprive you of happiness, security and peace of
mind, because there is no happiness, security or peace of mind except in
obeying Allaah. 

The fact that you asked us about this indicates that there is
goodness in you, and keenness to obey Allaah and fear of disobeying Him.
Hence we reiterate our advice and remind you of your husband’s rights, and
we ask Allaah to set your affairs straight, and relieve your distress, and
make good easy for you wherever it may be. 

And Allaah knows best.

Islam Q&A

 

 

Islam Question and Answer - Seeking divorce due to harm

Seeking divorce due to harm
My cousin asked to marry me when his circumstances improve, after my first husband divorced me. He said to me he will not let anyone take me from him. He said much more things expressing his love to me and how much he suffers with his wife who is 30 years older than him. He persisted in this proposing to me for 12 years.

 
12 years later we got married and dealt that he must be fair with both of us and not neglect his first wife for Allah’s sake. I sacrificed some of my rights so that he does not regret marrying me.
He used to always make du’a for me because I do not make him suffer like any man married to more than one wife.

 
I became pregnant during the first month of our marriage. Three months later, he deserted my bed and left me. As I live with my family. He says he cannot look at my face and does not desire me at all, he also says that he avoids visiting us fearing that something bigger may happen like to divorce me while I am pregnant. He says he feels bad whenever he remembers me.


He promised me to seek treatment by Quraan with a sheikh. Now I do not see him more than five minutes every two or three months, or may be a phone call. I stayed patient and did not press on him. 3 years now and it is the same. Nothing changed. I do not receive but hatred, suffering, ungratefulness and humiliation from him. What shall I do? Shall I ask for divorce, or wait hoping he will be changed with years? .

 

Praise be to Allaah.

The Prophet (peace and
blessings of Allaah be upon him) said: “Any woman who asks her husband for a
divorce when there is nothing wrong, the fragrance of Paradise will be
forbidden to her.” Narrated by al-Tirmidhi and classed as saheeh by
al-Albaani in Saheeh al-Tirmidhi. 

What is meant by something
wrong is hardship which compels her to seek a separation. 

Asking for divorce when
there is no problem that would compel a woman to do that is haraam, and some
scholars regarded it as a major sin, such as Ibn Hajar al-Haytami in
al-Zawaajir. 

From the hadeeth quoted
above it may be understood that it is permissible for a woman to ask for a
divorce if there is some hardship or harm that will be caused if the
marriage continues. 

Based on this, there is
nothing wrong with you seeking divorce if the matter is as you describe,
that your husband left you three years ago. 

But it is better for you to
be patient and ask your husband to try to remedy the problem that has
befallen him; perhaps Allaah will heal him and set things straight. But if
you feel that there is no improvement at all in the situation and you hope
that if you divorce him you will be able to marry someone else, then divorce
is better in that case, because Allaah says (interpretation of the
meaning): 

“But
if they separate (by divorce), Allaah will provide abundance for everyone of
them from His Bounty. And Allaah is Ever All‑Sufficient for His creatures’
needs, All‑Wise”

[al-Nisa’ 4:130] 

What you mention about him
being put off and feeling stressed whenever he remembers you may be due to
him having been affected by sihr (witchcraft). Hence he should use ruqyahs
that are prescribed in sharee’ah, or he should go to a righteous person who
adheres to the Sunnah, to perform ruqyah for him. 

See the answers to
questions no. 11290 and
12918. 

And Allaah knows best.

Islam Q&A



 

Islam Question and Answer - She has been divorced a second time and her ‘iddah has ended

She has been divorced a second time and her ‘iddah has ended
We got married 17 years ago. My wife became depressed for some time and asked for divorce many times during this depression stage. I tried many times to treat her. Once she was about to commit suicide by taking a large dose of tablets. I said to her that time that she is divorced. But then I returned her to me after 17 days. The next day she again asked for divorce but I did not divorce her. Then she traveled to Egypt for her doctorate exam. She tried to get my mobile number from my family and sent me a text message on my mobile saying that she will kill herself if I do not send her the paper of divorce. So I sent her a text message lying, knowing that I did not have the intention to divorce her; I just feared she kills herself as she said. When she returned to Saudi I felt that she really insists on divorce, so I said to her: “you are divorced” three times. But I know very well that it is my second time to divorce her, as I also know that saying the word of divorce three times at the same time is considered only one divorce, as known to me and all.


Now, after 85 days from this incident, by Allah’s grace, and some friends interceding, I want her back to me. She told me that she had three menstruating periods already. We work in the same place and she is a professional colleague of mine. I want to protect my home; especially that we have teenage children.

 

Praise be to Allaah.

Firstly: 

Divorce in writing does not
count as such unless the husband intends it as such. If he writes a divorce
to his wife but he did not intend to divorce her, then divorce does not take
place according to the majority of scholars, and this was the view favoured
by Shaykh Muhammad ibn Ibraaheem and Shaykh ‘Abd al-‘Azeez ibn Baaz (may
Allaah have mercy on them). 

This has been explained in
the answer to question no. 72291.
Based on this, the text message that you sent via mobile phone does not
count as a divorce because you did not intend it as such. 

Secondly: 

If a man says to his wife,
“You are divorced, you are divorced, you are divorced,” intending thereby
one talaaq and only repeating the phrase for emphasis or to make sure his
wife understands the words, this only counts as one talaaq, according to the
four imams (may Allaah have mercy on them). 

See: al-Mawsoo’ah
al-Fiqhiyyah (1/221). 

Based on this, when you
said to your wife “You are divorced, you are divorced, you are divorced,”
intending thereby only one talaaq, it counted as one talaaq, and this was
the second talaaq. 

As her ‘iddah has ended,
you cannot take her back, but there is nothing wrong with doing a new
marriage contract with her, subject to the usual conditions of marriage: the
woman’s consent, and the presence of two witnesses and her wali (guardian),
etc. 

She can come back to you on
the basis of this marriage contract, with the outstanding number of
divorces, i.e., there is only one talaaq left with her. 

You should help your wife
to get rid of this depression by finding out its causes and dealing with
them, and by pursuing the means that will help to bring her relief and peace
of mind. 

And Allaah knows best.

Islam Q&A