Question # 8: There is a girl who has been separated from her husband since last two years. Her husband has uttered the word “talaaq” quite a few times when there would be any dispute between them, once on such occasion she went back to her parents’ house. Her parents called boy’s family to reconcile between them but the boy’s family came with the divorce papers saying that the girl wants the divorce and they also accused her of taking away jewelry and stuff. Thus the matter went to the court as the girl had not taken anything with her. The case in the court got prolonged because of various family issues. Now finally the couple has signed the divorce papers and is waiting for the court final paper. So in this case, will this girl have to observe any iddah period now, or it is already over for her as she has already been staying with her parents since last two years. Can you please let me know?
bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Before attempting to answer this particular question of yours, I would like to reiterate that we, as students of knowledge, do not claim to be scholars (or qualified to issue fataawa). All the answers to the questions on this page are provided based on the authentic sources – the Qur’an and the Sunnah and the opinions of the scholars of Ahl us-Sunnah wal-Jama’ah. Consequently, we will endeavor to answer your question in light of the opinion of scholars while seeking the help of Allah (سبحانه و تعالى) in this regard.
First of all, from your question, it is extremely difficult to determine the point of actual divorce during the woman’s stay with her ex-husband. You said “…her husband has uttered the word ‘talaaq’ quite a few times…” on several different occasions “…when there would be any dispute between them…” In the absence of clear information on the status of woman (wife) during those pronouncements and the actual number of utterances, the following discussion is imperative:
Divorce as prescribed in shari‘ah is when the man divorces his wife when she is pregnant or during a period of purity during which he has not had intercourse with her (Talaq al-Sunnah). As for divorce during menses or during a period of purity in which he has had intercourse with her, this is an innovated divorce (Talaq al-Bidah), but the question is – does it count as a divorce or not. The majority of scholars are of the view that it does count as such, just as the majority of them are of the view that divorce during the ‘iddah also counts as such. Thus, if a man gives his wife one divorce and she begins the ‘iddah, then he comes back and divorces her second time, then divorce has taken place a second time. If he comes back and divorces her a third time, then she is irrevocably divorced from him. (Shaykh Muhammad Saalih al-Munajjid)
To elaborate, the scholars who hold the view that divorce during menses is valid, and therefore, the woman is considered to have been divorced once accordingly. This is the opinion of the majority of the scholars, including the four Imams, Imam Ahmad, Ash-Shafi’i, Malik and Abu Hanifah. (Fatawa Islamiyah, Shaykh Muhammad bin Salih Ibn ‘Uthaimin) The evidence for this, is the Hadith of ‘Abdullah Ibn ‘Umar (رضي الله عنه) who divorced his wife during her menstrual period. The Prophet (صلى الله عليه و سلم) was informed of it and he became very angry with him and said: “Order him to take her back, then leave her until she is purified, then she has a menstrual period, then becomes purified. Then if he wishes, he may keep her after that, and if he wishes, he may divorce her” (Al-Bukhari and Muslim). The scholars use the words “Take her back” as evidence because returning does not exist except when there has been a divorce. Also, Al-Tayalisi records with an authentic chain that Ibn Umar considered that one divorce. (‘Fiqh of Family, Marriage and Divorce’ by Jamal Zarabozo).
On the other hand, there are scholars, who are of the view that divorce during a period of purity in which the husband had intercourse with the wife does not count as such. This is the view favored by Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) and his student Ibn al-Qayyim. This is because it contradicts the Command of Allah and His Messenger. The Prophet (صلى الله عليه و سلم) said: “Whoever performs a deed which is not from this matter of ours will have it rejected” (Sahih Muslim) (Fatawa Islamiyah, Shaykh Muhammad bin Salih Ibn ‘Uthaimin)
In Fataawa al-Lajnah al-Daa’imah, it says: There are different kinds of innovated divorce, such as the husband divorcing his wife during her menses or nifaas, or during a period of purity in which he has had intercourse with her. The correct view concerning this is that it does not count as such.
Shaykh Ibn Baaz (may Allah have mercy on him) said: Allah has prescribed that women should (only) be divorced at times of purity when they are free of nifaas and menses, when the husband has not had intercourse with her during that period of purity. This is the proper, shar‘i divorce. If he divorces her during her menses or nifaas, or during a period of purity in which he had intercourse with her, then this divorce is bid‘ah, and does not count as such according to the correct scholarly opinion, because Allah says: “O Prophet! When you divorce women, divorce them at their ‘Iddah (prescribed periods)” (Soorah at-Talaaq, 65:1). What is meant here is that when they are pure and the husband has not had intercourse with them during that period of purity. This is the view of the scholars concerning the meaning of the phrase ‘divorce them at their ‘Iddah (prescribed periods)’. They should be pure, with no intercourse having taken place during the period of purity, or pregnant. This is divorce at the prescribed periods. (Fataawa al-Talaaq)
Hence, the following two situations need examination in the given case:
- Assuming that Talaq al-Sunnah was followed and if the husband explicitly divorced his wife three times on separate occasions (period of purity), according to the scholars, in a situation like this, the divorce is final. (Shaykh Muhammad Saalih al-Munajjid) And, hence the ‘iddah would have started on the first pronouncement and concluded on the completion of the three menstrual cycles.
- If Talaq al-Bidah was followed, then based on the opinions of the scholars (mentioned in the above discussion) it is to be determined that whether the pronouncement should be counted or not. Hence, in the given case, the woman should work out the number of divorces issued during her stay with the ex-husband to determine the point of actual divorce following one of the two opinions.
Other relevant points in need of consideration:
- The basic principle is that the divorced woman should observe ‘iddah in her husband’s house. But if she is afraid that by observing ‘iddah in her husband’s house she will definitely be subjected to harm, it is permissible for her to observe ‘iddah in her family’s home. However, her iddah period cannot be considered as complete even if she was staying with her parents for the last two years (if it was determined from the above discussion that she was not divorced until the signing of the divorce papers). Shaykh Ibn Baaz was asked a similar question about a man who stayed away from his wife and was travelling for twenty years, after which he sent word to her of divorce. This woman wants to get married – does she have to observe the ‘iddah? Because her husband has been away from her for twenty years and has not touched her… He replied: If the matter is as described, there is no doubt that she must observe the ‘iddah, because the ‘iddah can only begin after a divorce has taken place, even if the husband has been away from the woman who is now divorced.
- If a man divorces his wife and she begins the ‘iddah, then he divorces her again before taking her back, the second divorce does not count according to the more correct opinion, because divorce can only be valid after doing the marriage contract or after taking the wife back. Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said: The more correct view concerning this entire issue is that there is no threefold divorce at all, unless he issues a divorce then takes her back, or makes a new marriage contract otherwise the threefold divorce does not count as such. This is the view favored by Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him), and it is the correct view. (ash-Sharh al-Mumti)
Last but not least, I would mention the Qa’idah (legal maxim) derived from Shari’ah which states that “Al-yaqin la yazul be ash-shakk” (Certainty is not overruled by doubt).
I understand that the answer is long and non-conclusive, but given the limited information, this is best I could come with.
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.