Q. I need some clarification from a qualified mufti such as yourself on the status of a nikah after some divorce pronouncements were made.
The wife went out to spend time with some out of town friends. The husband was not at home at the time and the wife did not inform her husband that she was going to be out with friends. The husband came home after his wife had left and assumed that his wife was at home sleeping in the bedroom. After spending some time in the home, the husband went to the bedroom and realized that his wife was not at home.
The husband contacted the wife on her cell phone and she informed him that she was out with some friends. The husband became upset and said to the wife: "talaq, talaq, talaq" on the phone. The phone call then ended. Both husband and wife acknowledge that these three "talaq" pronouncements were made on the phone. Since then the wife has moved back to her parents' home.
Please advise in the light of Islam the status of this nikah. How many divorce pronouncements have occurred? Is the divorce revocable? Can a new nikah be contracted? Or is this nikah permanently broken where they can not remarry without halaalah (i.e., the wife has to marry someone else and then divorce him before she can remarry her husband)?
A. There are two ways one can look at this, and it depends upon the couple. The most someone can do in this case is work within the parameters of fiqh, applying its moral and ethical principles -- which may differ to the letter of the law as understood by some jurists. Fortunately, there is no enshrined, etched-in-stone ruling, and so this allows us some leeway. In the Sunna, there is a hadith that basically says, "My community is exempted from error, forgetfulness, and what they have been coerced into." Since we see the marriage tie as among the strongest of bonds, per the Qur'an and Sunna, we try to ensure that there must be no doubt regarding the gravity of a divorce, and that a divorce comes only under the clearest evidence of intent. You said the husband got angry, so this means that since actions in Islam are by intention, then his actions were motivated by anger and error, rather than by contemplation. There are some jurists who say that his anger is irrelevant and that he should suffer for his alacritous action. We feel that this is illogical and contrary to Islam, and if the consequences were limited to the husband only, then one may agree. In this case, however, there are obvious repercussions for more than just the husband. This is also not the spirit in which divorce pronouncements are made. If the couple both regret their actions, then one may say that there is nothing to it, he acted impetuously, and they may resume their marriage and seek Allah's and each other's forgiveness.
If, however, there is trouble in the marriage, they have been contemplating divorce for some time now, and both of them want to use this as a way out, then according to the letter of the law, he uttered three divorces. This may be the opinion among some, but it is NOT one to which I subscribe. I mention it, however, as an opinion. Incidentally, divorce is not supposed to be pronounced for issues like the one you mentioned, both parties ought to be more respectful of each other. The Qur'an says that God has put "mawadda" and "rahma" between spouses, and we all ought to contemplate this carefully in our interaction. May God guide us to patience, righteousness, and being good partners to our spouses.
Posted March 18, 2018