Divorce: Whimsical divorce

Q174 :May I put to you the case of a husband who was sitting on his desk with pen and paper, writing all sorts of nonsense. Following a sudden whim, he wrote on a piece of paper, "I divorce so and so (writing the name of his wife) three times." He went away, leaving the paper on the table. His wife entered the room and read the paper and immediately started crying. She informed her parents who immediately came and took her away with them. The matter still remains unsettled. Scholars in the local area give contradictory views. It should be added here that the husband had no intention whatsoever of divorcing his wife. I will be grateful for your comments.

A174 : I have often said that Islam views marriage very very seriously. In fact, the seriousness with which Islam views this matter cannot be over exaggerated. Abu Hurairah quotes the Prophet as saying: "Three matters are taken seriously whether they are said in earnest or in jest: marriage, divorce and revoking a divorce." (related by Ahmad, Abu Dawood, Ibn Majeh, Al-Tirmithi and Al-Hakim) The point is that these matters cannot be trifled with. It is not possible for a person to go through a marriage contract, then to claim afterward the he is joking. That is totally unacceptable. Similarly, if he divorces his wife, he cannot protest that he has meant that in jest. Again if he has divorced his wife and she is still in her waiting period and he tells her that he has revoked the divorce, as he is entitled to do without a fresh marriage contract, then he cannot go back and say that he had said it in jest. These are matters that entail rights and duties. Therefore, they cannot be taken lightly. For this reason, the overwhelming majority of scholars agree that a divorce said in jest is valid and takes affect. The same applies to marriage and to revoking a divorce. Effecting a divorce in writing is permissible, provided that the writer intends divorce. If he writes that without intending divorce then the divorce does not take effect because what is written does not necessarily mean what is intended. A person may write something on a piece of paper which may have no relevance to what is in his mind. He may be writing only to try a new pen or to improve his handwriting, or he may write the word of divorce in order to upset his wife, or for any other reason. If a man writes the word of divorce intending something totally different, such as improving handwriting, then divorce does not take place. If his intention is to upset his wife, then, according to Imam Ahmad, the divorce takes effect. If we consider the particular case cited by our reader, it is clear that the man has acted on a sudden whim. Most probably, that whim was to upset his wife. We accept as correct his statement that he had no intention whatsoever of actually divorcing her. Nevertheless, his action indicates that he wanted her to see the paper, realizing that she would be upset, as indeed has happened. That is the only explanation for his writing these words, leaving the paper on the desk and going out. Let me say to this man that his joke or his whim is highly objectionable. It is done in bad taste. As a Muslim, he should know better than that. He knows what effect the thought of divorce has on a woman. Why should he give his life's partner an impression that their partnership is over. If the matter is only a whim and there is nothing to make his wife expect that he may divorce her, then the poor woman must have had the shock of her life when she read that piece of paper. He obviously did not consider all the possibilities when he played his joke. He is an obvious case of a divorce made in jest. I can only give his the verdict of Imam Ahmad who says that this divorce takes effect. It is true that a few scholars have a different view, but we are here applying the Hadith which we have already quoted that divorce made in jest actually takes effect. Perhaps it is useful to mention here that the Prophet was once told by one of his companions that he had divorced his wife a hundred times. The Prophet went up on the pulpit and spoke to his companions. He was very angry. He said to them: "Do you take Allah's book jokingly when I am still alive among you?" That comment by the Prophet certainly applies to every case of divorce made in jest. If the man has written on piece of paper "I divorce - three times" as our reader has quoted, then this counts as a single divorce. Many scholars count it as a three-time divorce. However, the weightier opinion is that it still counts as a single divorce. I have explained on numerous occasions that a single divorce is revocable within the waiting period, without the need for either a fresh marriage contract or a new dower. If the waiting period has lapsed, then a marriage between the divorcees is possible with a new marriage contract and a new dower. Perhaps the man whose case has been explained to us wishes to go back on his divorce and to tell her that he wants her as his wife again. If she agrees, he may marry her again, giving her a new dower. She may wish to exact something more from him, for giving her such pain, by asking larger dower. If he agrees to that, it is payable to her and he has no authority to claim back any part of it, unless she gives it to him willingly. A Muslim woman has complete authority and sole discretion over what to do with her dower. [Added: Allah in His wisdom has directed in the Qur'an that the wife should remain in her (husband's) house during the waiting period. Had her parents not taken her back hastily, the situation as described above may not have arisen at all and a reconciliation/retraction of the situation would have been much simpler. Indeed, Allah is Wise and Knows all.]

Our Dialogue ( Source : Arab News - Jeddah )