Part 22

absolution of the dower.

Revocable divorce of a deceived husband

Q: A man divorced his wife a revocable divorce. When the witnesses came to testify the divorce, one of them said to

the husband: "Say: I divorce her in return for a dirham," when the husband said that, they said to him, "Now she is free. -You cannot return to her except after her consent." If he really cannot return to her, can this absolve him of her rights due to his being deceived by the witnesses?

A: If the husband divorced the wife a revocable divorce, then he was prompted by the witnesses to claim that he divorced her in return for a dirham, and he said that, knowing that it was only a confirmation of the first divorce, not making a second divorce, only the first divorce will be countable and will be revocable. If it was claimed that he intended a second divorce, and it was likely that he knew not that a divorce in return for a compensation is irrevocable, his claim is to take precedence, supported by his oath, especially when the context accords to his claim. The normal case is that the witnesses attend after divorce to testify it.

A RULE IN KHUL'

Is a Khul' counted in the three divorce pronouncements?

Q: Is Khul' counted in the three pronouncements of divorce? Is it necessary that it be pronounced with terms’

and intention other than those of divorce?

A: There is a famous disagreement among scholars on this question. The first opinion, which is attributed to Imam Ahmad and his followers, is that Khul' is an irrevocable separation and an annulment of marriage, not one of the three possible pronouncements of divorce. If the husband makes Khul' for ten times, he can return to her each time with no need for her to marry another man first. This is one of the two opinions of Imam Al-Shafi'i given is this question, which is chosen by a group of his followers. This is also the opinion of the majority of Hadith scholars.

The second opinion: Khul' is an irrevocable divorce which is counted from the three possible pronouncements of divorce. This is the opinion of many earlier scholars.

The opinion of Imam Ibn Taimyyiah:

Ibn Taimyyiah preferred the opinion of Ibn ‘Abbas who decided in a case in which a man divorced his wife twice and made Khul' once. He judged that the woman may return to her husband without marrying another man first. Ibrahim bin Sa'd bin Abi Waqqas, when appointed a governor in Yemen, asked Ibn ‘Abbas about this question saying that most of the cases of divorce in Yemen are made in return for a compensation given to the husband. Ibn ‘Abbas replied that such act was not a divorce, though it was termed divorce by people by mistake.

The condition of wording and intention in Khul'

Khul' and divorce are valid when made in a language other than Arabic, according to the opinion of the majority of scholars. As there is no language other than Arabic that

has the terms for both divorce and Khul’, the distinction between the two will be in the compensation given in the case of Khul', not the wording.

The divorce mentioned in the Quran is the instance when a man divorces his wife without receiving a compensation from her, in which case divorce will be revocable. As for divorce made in return for a compensation, it is irrevocable. It is not considered as the known divorce, rather it is more like a ransom with which a wife frees herself from her husband. It is not counted in the three pronouncements of divorce, no matter in which terms it is uttered.

What is the meaning of a husband’s saying to his wife: “You are just like my mother or sister”?

Q: What about a husband who said to his wife: “You are just like my mother or sister”?

A: If he means that she is honored and dignified just like his mother or sister, it is permissible to say so. If he intends that she is like his mother or sister as far as marriage is concerned, this is considered as Zhihar. If he continued to live with her as man and wife, he should not have intercourse with her until he performs the due Kaffarah for Zhihar.

Is divorce effected if a husband demanded to consummate marriage with his wife on a certain day but she was not ready on it?

Q: A man concluded a marriage contract and he wanted to consummate his marriage ona certain day, otherwise his wife will be just like his mother or sister. Yet, the wife was not ready on that night. Is this considered as divorce?

A: No divorce is effected in this case according to the four juristic schools. Yet, this act is considered as Zhihar. If he

wanted to consummate marriage, he should first make the Kaffarah mentioned in surah Al-Mujadila. He is entitled to emancipate a Muslim slave. If he has not any, he should fast for two consecutive months. If he can not, he should feed sixty poor Muslims.

Is it permissible for a man to reconcile with his wife even after he said to her: You are just like my mother as far as marriage is concerned?

Q: A man got angry with his wife and he said to her: You are just like my mother as far as marriage is concerned. Is it permissible for him to reconcile with her?

A: If he reconciled with her, he should perform the Kaffarah of Zhihar. He is entitled to emancipate a Muslim slave. If he has not any, he should fast for two consecutive months. If he can not, he should feed sixty poor Muslims. He should not live with her as man and wife unless he performed Kaffarah.

When a man says that his wife is just like his mother during her absence, is she prohibited for him as a wife?

Q: A man said to his friend: Dear brother, it is not desirable to perform such acts before your wife. The other replied: she is just like my mother. His friend said: Why do you say so? I know that she became prohibited for you as a wife once you said so. The man repeated: I swear she is just like my mother. Does she become prohibited for him?

A: All praise be to Allah, the Lord of the Worlds. It all depends on his intention. If he means that she is just like his mother to the extent that she does not blame him for his bad acts or reveals such acts before others, she is not prohibited for him as a wife. Yet he should be punished somehow.

When ~Umar bin Al-Khattab (may Allah be pleased with him) heard a man calling his wife: “O sister!”, ~ Umar blamed him for that and punished him somehow. If the man does not know this to be prohibited in Islam, he does not deserve to be punished, although he had performed an ugly deed. A man should not call his wife as his mother.

If he intends that she is just like his mother as far as marriage is concerned i.e. to have intercourse with her and perform such acts only allowed with one’s wife, this is considered as Zhihar according to the Juristic schools of Abu Hanifah, Shafi> 1 and Ahmed.

According to Malik, there is disagreement whether this is considered as a thrice divorce. He should not have intercourse with her unless he performed Kaffarah. He is entitled to emancipate a Muslim slave. If he has not any,

he should fast for two consecutive months. If he can not, he should feed sixty poor Muslims. If he performed either, she is no longer prohibited for him.

In conclusion, it is not divorce at all. Yet a man should not have intercourse with his wife in this case unless he performed Kaffarah according to the unanimous agreement of Muslim Imams. Allah knows best.

When a man says to his divorced wife: If I resumed marriage with you, you will be just like my mother, what should he do?

Q: What about a man who said to his divorced wife: If I resumed marriage with you, you will be just like my mother or sister? Is it allowed to resume marriage with her? What should he do?

A: All praise be to Allah, the Lord of the Worlds. According to some scholars, he should perform Kaffarah of Zhihar act. According to others, he is not entitled to perform it. It is safer for a person to adopt the first view.

Is a drunkard’s divorce effected?

Q: When a drunkard who lost consciousness divorces his wife, is it effected?

A: All praise be to Allah, the Lord of the Worlds. There are two points of view in this case according to scholars. The soundest of which is that a drunkard’s divorce is not effected. This is the opinion held by the Emir of the Believers ~Uthman bin ~Affan and no different opinion was held by any other companion as far as I know.

This opinion was also adopted by many ancient and modern scholars such as “Umar bin ~ Abdul ~ Aziz, Imam Ahmed and some of his followers, Imam Shafi*! in an old narration and some of his followers, and some of Abu Hanifah’s followers such as Al-Tahawi as well as many others.

I believe that this is the soundest opinion. When Ma‘ iz bin Malik came to the Prophet (peace be upon him) and confessed that he had committed adultery, the Prophet commanded his companions to smell his mouth in order to check whether he is drunkard or not. If he had been drunkard, his confession would have been considered invalid. It is well known that a drunkard is a sinner because he drank prohibited beverages, but he does not know what he really said during drunkenness.

Deeds are judged according to one’s intention while a drunkard never has a straightforward intention. It is the

claims that he had been coerced to do so, his claim is accepted. Asking him to swear is a controversial point among scholars.

If a man is coerced to divorce his wife and he did, but after divorce she got married to another man, is this marriage valid?

Q: A man was imprisoned, beaten and coerced to divorce his wife for the first time. She was pregnant and she married another man. What about this marriage?

A: All praise be to Allah. This divorce is not valid. Her marriage to another man while she is pregnant is invalid according to the unanimous agreement of Muslims. Such marriage is invalid even if she had been divorced. How comes that this happened while she is pregnant and even divorce is not effected? The people who coerced the man and those who conclude the second marriage contract should be punished somehow. The second husband nmust divorce the woman until her ~Iddah (waiting period) trom her first husband comes to an end.