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Talaak

Printed From: IslamiCity.com
Category: Culture & Community
Forum Name: Groups – Women (Sisters)
Forum Discription: Groups – Women (Sisters)
URL: http://www.IslamiCity.com/forum/forum_posts.asp?TID=8262
Printed Date: 23 October 2014 at 4:53am


Topic: Talaak
Posted By: ysimjee
Subject: Talaak
Date Posted: 16 January 2007 at 10:37pm
Slm
I urgently need some help from a learned Muslim brother or sister.

If a husband n a wife have n argument, and he gives her one Talaak.
After n hour someone sits with them, talk the situation out and then they reconcile.  
What happens then, is the talaak still valid, does it fall away?
Please advise

Jazakallah



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Y Simjee



Replies:
Posted By: Sky21006
Date Posted: 16 January 2007 at 11:28pm

 

 

Post your query to the following website Islam (Question and Answer)

http://islam-qa.com/index.php?ln=eng - http://islam-qa.com/index.php?ln=eng

 

Thanks

 

 

 

 

 



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We Get What We Deserv NOT What We Desire


Posted By: Sky21006
Date Posted: 17 January 2007 at 1:56am

I have taken below from Islam QA webpage:

Question:
I have three urgent and, I believe,very imporatant questions about Divorce (Talaq).
1. Is what is known in the west as SEPARATION permitted in Islam? A muslim husband and wife with children living in the west are seriously considering divorce. Somebody suggested trying Separation first. The husband would move out to a place nearby but since they are still married there would be no problem comming in the house at any time. He would still continue to support the family in every respect.
2. For consummated marriage and with first Talaq, when does Eddah end? Is it the end of the third period (bleeding) or the beginning of the fourth one?
3. What is permitted during Eddah that would not constitute end of Talaq? I know that sexual intercourse is not, but is kissing, touching and hugging ok?

Answer:
Praise be to Allaah.  

With regard to the first question, the answer depends on the circumstances. If what is intended by this action is to reduce the level of tension in the relationship, then they will come back together, or as a trial separation to see what effect that will have on them and their children so that it will help them to take a decision, and they both agree to this temporary separation, then there is nothing wrong with that. 

If this is a decision that they have both taken, and have agreed to separate from one another without divorcing, then it should be said that if the woman foregoes the rights that she will lose through this separation, and he also foregoes his rights over her, and they think that this is in their best interests and those of their children, and the place where the woman and her children will stay is a safe place where they will not suffer neglect, then that is permissible, subject to these conditions. But if she wants intimacy and he does not want to do that, or there is the fear that she may do something wrong whilst she is still married to him, and the like, then he should divorce her, but still continue to spend on his children. And Allaah knows best. 

With regard to the second question: the ‘iddah of a divorced woman who has periods, with whom the marriage has been consummated and who is not pregnant, is a matter concerning which classical and contemporary scholars have differed. The view which is regarded as most correct by the majority of contemporary scholars, such as Shaykh Ibn Baaz and Ibn ‘Uthaymeen, and others, is that the ‘iddah ends when three menstrual periods have passed, and as soon as the third period ends, the ‘iddah ends. This is the view of many of the major Sahaabah such as ‘Umar ibn al-Khattaab, ‘Ali ibn Abi Taalib and Ibn Mas’ood, and it was narrated by Ibn al-Qayyim from Abu Bakr, Abu Moosa and others (may Allaah be pleased with them all). (See Fataawa Islamiyyah, 3/310; Fataawa al-Talaaq by Shaykh Ibn Baaz, 193; Jaami’ Ahkaam al-Nisa’, 4/243).
With regard to the third question: “The women whose divorce is revocable (i.e., first or second talaaq) may uncover in front of her husband and adorn herself and wear make-up and perfume. She may speak to him and he may speak to her; she may sit with him and do anything with him apart from intercourse and the things that lead to it; that may only happen when he takes her back. (Shaykh Ibn ‘Uthaymeen, Fataawa Islamiyyah, 3/310) 

If he kisses and embraces his wife with the intention of taking her back, then that taking back is valid, with no difference of opinion among the scholars. But if he does not intend to take her back, then some scholars say that it is permissible on the grounds that she is his wife, but that it does not mean that he has taken her back; other scholars say that embracing and kissing etc. are precursors to intercourse, so the one who does them is sinning if he does not intend to take her back. To be on the safe side, he should not do that until after he has clearly stated that he is taking her back, such as saying to his wife, “I am taking you back,” and two Muslim witnesses bear witness to his taking her back by him saying in front of them, “I ask you to bear witness that I am taking my wife So and so back,” and the like. Then he may do whatever he likes of permissible things. And Allaah knows best. 

(See Subul al-Salaam, 2/267).



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We Get What We Deserv NOT What We Desire


Posted By: ysimjee
Date Posted: 17 January 2007 at 2:12am

Jazakallah for the info.

Regarding to my question, is the talaak valid or does it fall away?

 



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Y Simjee


Posted By: amah
Date Posted: 17 January 2007 at 2:22am

Assalaamualaikum,

Allah knows best. And may He guide this couple. Here is an extract below, from the site :

http://islam-qa.com/index.php?ref=70342&ln=eng&txt=talaaq - http://islam-qa.com/index.php?ref=70342&ln=eng&txt=t alaaq

With regard to anger, it depends on the situation. 

If it is mild anger and does not affect his will or choice, then the divorce takes effect and is valid. 

If the anger is so intense that he does not know or realize what he is saying, then this divorce does not count, because he is like one who is insane, who is not to be taken to task for what he says. 

In these two cases, there is no dispute among the scholars. There remains a third type of anger, which is intense anger that affects a man’s will, so he speaks and it is as if he is pushed to say what he says, but he quickly regrets it as soon as his anger dissipates, but he did not reach a point where he did not know what he was saying or doing. There is a difference of scholarly opinion with regard to this kind of anger. We have discussed that in the answer to question no. http://islam-qa.com/index.php?ln=eng&QR=22034 - 22034 . 

Wassalaam



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Allah is Sufficient as a Walee (Protector) and Allah is Sufficient as a Naseer (Helper).
(Surah An-Nisa, Chapter #4, Verse #45)


Posted By: Sky21006
Date Posted: 17 January 2007 at 3:16am

As per my information which I got from a scholar, if a husband say the word of talaq one time and then reconcile then  talaak falls away, but again it depend on the situation; for safe side you better renew your nekkah its an easy practice.

 

Hope it helps,

 



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We Get What We Deserv NOT What We Desire


Posted By: rami
Date Posted: 17 January 2007 at 4:41am
Bi ismillahir rahmanir raheem

assalamu alaikum

Sister an internet forum is the last place you should seek advice about something as important as divorce, you should go see your local imam for advice.

What if the husband pronounces one divorce after another?
Answered by Shaykh Muhammad ibn Adam al-Kawthari

A man said to his wife "I am separating you from me" and then said the word "divorce" to her. His exact words were: "I am separating you from me, Talaq" What is the Islamic ruling? Has divorce occurred or not. If it has then how many and whether is it revocable or irrevocable? Please clarify


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

Primarily, there are two situations here and depending on which situation we have, the ruling of divorce will differ. The husband's statement can be perceived in two ways. It can be considered as one sentence, in that the husband did not intend two separate pronouncements; rather, he was merely emphasising (ta'keed) the divorce. The second situation is where the husband intended a second pronouncement of divorce with the word "Talaq" and he was not merely confirming the divorce. In other words, he was not merely emphasising the divorce, but was actually thinking that this is a second statement of divorce that he is directing to his wife.

1) In the first situation, where the husband did not intend two separate pronouncements, one irrevocable divorce (talaq ba'in) has come into effect. The husband's statement "I am separating you from me" is an allusive (kinaya) statement that normally results in an irrevocable divorce if the husband has an intention to divorce. Here, the husband did have the intention to divorce his wife, as he clearly said "Talaq" directly after it. Even if the husband did not intend divorce with this (first) statement, the second statement "Talaq" is a clear statement of divorce which normally results in a revocable divorce with or without an intention. However, if this clear statement of divorce is joined with other words of emphasis, then it will result in an irrevocable divorce. Thus the statement "Talaq" has been emphasised with the statement "I am separating you from me" hence it will result in one irrevocable divorce and not a revocable one. (See: Radd al-Muhtar, 3/250)

As such, one irrevocable divorce has been effected and the wife must observe the waiting period (idda) immediately. If the couple wish to reconcile, they may do so by having a new Nikah contracted within the waiting period or after it. The husband, however, must remember that in future he will only possess two more divorces. If he was to ever divorce his wife two more times, the marriage will be completely over.

2) The second situation is where the Husband meant to pronounce two separate statements of divorce. In this case, two irrevocable (ba'in) divorces will be effected, with the husband only possessing one more divorce in the future (if the couple were to reconcile). Here, the statement "I am separating you from me" is an allusive statement of divorce which results in an irrevocable divorce. Thereafter, the husband pronounced a clear word of divorce, which normally results in a revocable divorce.

The renowned Hanafi jurist, Imam Haskafi (Allah have mercy on him) mentions four possible scenarios with regards to following up a divorce with another divorce. He states:

"A clear (sarih) divorce follows a clear (sarih) divorce and an irrevocable (ba'in) divorce, with the condition of (this being in) the waiting period. And an irrevocable divorce (ba'in) follows a clear (sarih) divorce....... And an irrevocable (ba'in) divorce cannot follow another irrevocable (ba'in) divorce." (See: Radd al-Muhtar ala al-Dur al-Mukhtar, 3/306-308)

The meaning of the above text is that there are four scenarios with regards to following up a divorce with another divorce:

a) sarih + sarih
b) ba'in + sarih
c) sarih + ba'in
d) ba'in + ba'in

(Sarih means divorce in clear terms which normally results in a revocable/raj'i divorce, and ba'in means an irrevocable divorce).

a) Following up a clear (sarih) divorce with another clear (sarih) divorce (as-sarih yalhaq as-sarih):

A clear divorce is where the husband pronounces divorce in clear terms. This type of divorce normally results in a revocable (raj'i) divorce and is effected even without the intention of divorce. As such, if a husband said to his wife: "I divorce you, I divorce you" then two revocable divorces will come into effect. The husband may take his wife back (raj'a) provided he does so within the waiting period (idda) of the woman. If the waiting period is over, they may still get back together but now a new marriage contract will be needed.

The meaning of "with the condition of (this being in) the waiting period" in the above text is that in order for the second divorce to be valid, it must be pronounced within the waiting period. As such, if a man said to his wife: "I divorce you" and then when her waiting period was over, he again made the same statement, then obviously it will be of no consequence, as she is no longer his wife. It is as though he is pronouncing divorce to a complete stranger.

b) Following up an irrevocable (ba'in) divorce with a clear (sarih) divorce (as-sarih yalhaq al-ba'in):

Irrevocable divorce (talaq ba'in) is effected when the husband clearly stipulates that he is issuing his wife an irrevocable divorce, or when he divorces his wife using allusive words with an intention to divorce her. As such, if a husband divorced his wife irrevocably and then followed it up with a clear divorce, for example he said: "I divorce you irrevocably, I divorce you" or he said: "I am leaving you, I divorce you" then in this case both divorces will come into effect.

It should be noted here that the first divorce is irrevocable, hence the marriage is considered to be somewhat over (unlike a revocable divorce). Despite this, when the second divorce is pronounced in clear terms, it will come into effect even if it was pronounced after an irrevocable divorce.

Imam Ibn Abidin (Allah have mercy on him) mentions another point of interest here. He states that if a divorce in clear terms (which normally results in a revocable divorce) is pronounced after an irrevocable divorce, the second clear divorce will also be considered irrevocable. The reason being is that the second divorce in clear terms has been preceded by an irrevocable divorce and that first irrevocable divorce will prevent the second clear divorce from being revocable. As such, two divorces will come into effect and both will be considered irrevocable. If the couple wish to reconcile, a new marriage contract will be necessary within or after the waiting period. (Radd al-Muhtar, 3/306)

c) Following up a clear (sarih) divorce with an irrevocable (ba'in) divorce (al-ba'in yalhaq as-sarih):

The third scenario is where one first pronounces clear (revocable) divorce and then the irrevocable divorce. For example, the husband says: "I divorce you, I divorce you irrevocably" or "I divorce you, I am leaving you". In this case, a revocable divorce took effect with the first pronouncement, and thereafter an irrevocable divorce. Hence, now two divorces have come into effect, with the second divorce being an irrevocable one, thus making a new marriage contract necessary if the couple desired to remain together.

d) Following up an irrevocable (ba'in) divorce with another irrevocable (ba'in) divorce (al-ba'in la yalhaq al-ba'in):

For example the husband says to his wife: "I am leaving you, I am leaving you" (intending divorce with both statements) or he said: "I divorce you irrevocably, I divorce you irrevocably". In this case, only the first divorce will count and the second will be considered futile. Regardless of how many irrevocable divorces a man pronounces, only the first divorce is effected. The reason being is that the first divorce is irrevocable; hence, the marriage bond between the husband and wife has ended. As such, the second irrevocable divorce will not be able to attach itself on a relationship that has already come to an end. (Culled from Ibn Abidin's Radd al-Muhtar, 3/306-309)

In light of this explanation on the four possible scenarios, two irrevocable divorces have come into effect. You state that the husband said: "I am separating you from me, Talaq" which is from the second scenario, in that he followed up an irrevocable (ba'in) divorce with a clear (sarih) divorce. And as mentioned, in such cases two divorces come into effect and both of them are considered irrevocable. Therefore, if the couple wish to reconcile, a new marriage will have to be contracted and the husband will only have one more divorce in his possession for the future.

To sum up, primarily, there are two situations here. If the husband intended his statement "I am separating you from me, Talaq" to be one statement of divorce, then one irrevocable (ba'in) divorce will come into effect. In this case, a new Nikah will have to be contracted if the couple wish to reconcile. If the husband intended two separate statements of divorce, then two irrevocable divorces will be effected, with only one more divorce remaining in the future, if the couple were to reconcile.

And Allah knows best

Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK
www.daruliftaa.com




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Rasul Allah (sallah llahu alaihi wa sallam) said: "Whoever knows himself, knows his Lord" and whoever knows his Lord has been given His gnosis and nearness.


Posted By: USA-NIQAABI
Date Posted: 17 January 2007 at 6:51am

Assalamu'Alaikum,

I would have to agree with rami's posting to the extent that this is no place for definite answers it can be a good place to seek out resources for general information but you should go to your local masjid and speak with an Imaam or Scholar on this issue.

As far as child rearing if you're in the west than you would probably be forced to follow western standards for a divorce. But if you are living in an Islamic country under Shariah based law than the age of the children comes into play in determining who will continue to raise the children. Here is an exerpt from a defintion found at the MSA site.

Sin at-tamyiz


This is the age of distinguishing. This age is used in Fiqh to decide the age before which the mother has the right to keep the child after divorce. It varies from one person to another. The age is reached when the child can take care of himself or herself and no longer needs an adult to help him eat, get dressed, and clean himself or herself. In the school of thought of Abu Hanifah, it is seven years for the boy and nine years for the girl. The girl is given longer time so that she can learn more of the habits of women.

But please go seek out the advice of an Imam or Scholar fit to answer these questions for you.




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