Question Summary: Saying “I am leaving you” with the intention of divorce and subsequently issuing three divorces Question Detail:
I said to my second wife in anger while abroad in our first few weeks of marriage “I am leaving you” after an argument resulted in her breaking dishes uncontrollably ( we did not fully consumate yet-we tried and we were alone) . I did not witness this reaction before in my life(as I had experience of a relatively peaceful relationship with my still married to first wife) so therefore my intention at the time was divorce in my mind when I left her. There was a discussion about divorce in the previous night. I left the apartment with the words "I am leaving you" in anger (my anger allows me to remain relativley calm-but I was shaking a bit because of her extreme anger) and I packed all my belongings in my small suitcase and with my passport, left. I proceeded to a hotel with the intention of going to the airport the following morning; however before I got to the hotel I was called back by the wife (after 30-45minutes). Due to ignorance in divorce matters I returned not realising that a divorce may have been inadvertantly issued by me. I thought that divorce could only be issued with the actual words "divorce" uttered, not intended. I am almost certain my intention at that time was divorce and this is further substantiated by the fact that I alerted my 1st wife to the fact immediately that ‘it’(the 2ndmarriage) had finished(ended) and I was coming home . However since it has been 2 years since the event I am concerned about inaccuarcy so I only have my actions at that time to go by i.e packing, leaving with passport(even though my flight was already leaving the following day). Does the scenario qualify as an irrevocable divorce because I am not sure what the jurists define "intention of divorce" and is leaving in the state I did qualify as evidence of my divorce intention ? I continued normal life after this and she joined me in the UK after 3months but unfortunately issued 3 revocable divorces with the clear words “I divorce you” at various times over the next two years (the first revocable divorce being issued after about 5 months from April 2011 and the 3rd being issued in the past 2weeks). After the 3rd I assumed we were completely divorced until examing the Hanafi fiqh after my 3rd revocable issuance I realised that the initial "leaving" may have indeed been an irrevocable divorce so are the revocable divorces that followed invalid allowing me to re-marry with a new nikah ? And because all this hinges on the "intention" at that time 2 years ago. I am not sure how to proceed. We (wife and I) would like to continue our marriage life having realised this could be a legitimate answer in a strange sort of way.
Answer :
In the Name of Allah, the Most Gracious, the Most Merciful As-salāmu ʿalaykum wa-raḥmatullāhi wa-barakātuh When you said, “I am leaving you,” intending a divorce, one Ṭalāq Bāin (irrevocable divorce) occurred.[1] A Ṭalāq Bāin is such a divorce after which a new Nikāḥ is necessary if the man and woman wish to reunite. Therefore, due to a Ṭalāq Bāin taking place, it was necessary for your second wife to observe iddat and for you to avoid all types of relationship with her as she was now completely out of your Nikāḥ. Subsequent to this divorce, the three divorces that you issued did not occur due to her not being in your Nikāḥ. You may therefore marry her if you wish without the need for Ḥalālah (i.e. her marrying another man, consummating the marriage and then that marriage terminating). If you do marry her, you will have the power of only two divorces towards her at your disposal. Nevertheless, after analysing the events that occurred in a period of only two years as you have detailed, we advise you to reconsider your intention to immediately reunite with her. Note: The above-mentioned applies only in the case where the period of her iddat (three menstrual cycles) for the first divorce (i.e. the Ṭalāq Bāin which occurred in early April 2011) had already expired by the time you issued the first of the three revocable divorces (which you mention you had issued after about five months from April 2011).[2] If she was still in the iddat of the Ṭalāq Bāin by this time, then for a relevant verdict to be issued, it is necessary that you submit a detailed account of when the three clear, revocable divorces were issued in relation to the iddat of the first divorce. And Allah Taʿālā Knows Best Mahmood Patel Student, Darul Iftaa Azaadville, South Africa Checked and Approved by Mufti Ebrahim Desai
[1] وَأَلْحَقَ أَبُو يُوسُفَ - رَحِمَهُ اللَّهُ تَعَالَى - بِخَلِيَّةٍ وَبَرِيَّةٍ وَبَتَّةٍ وَبَائِنٍ وَحَرَامٍ أَرْبَعَةً أُخْرَى ذَكَرَهَا السَّرَخْسِيُّ فِي الْمَبْسُوطِ وَقَاضِي خَانْ فِي الْجَامِعِ الصَّغِيرِ وَآخَرُونَ وَهِيَ لَا سَبِيلَ لِي عَلَيْك لَا مِلْكَ لِي عَلَيْك خَلَّيْت سَبِيلَك فَارَقْتُك (الفتاوى الهندية (1/ 375))
(قَوْلُهُ سَرَّحْتُكِ) مِنْ السَّرَاحِ بِفَتْحِ السِّينِ: وَهُوَ الْإِرْسَالُ أَيْ أَرْسَلْتُك لِأَنِّي طَلَّقْتُكِ أَوْ لِحَاجَةٍ لِي، وَكَذَا فَارَقْتُك لِأَنِّي طَلَّقْتُك أَوْ فِي هَذَا الْمَنْزِلِ نَهْرٌ. (الدر المختار وحاشية ابن عابدين (3/ 300))
(قَوْلُهُ فَلَوْ السُّؤَالُ بِهَلْ يَقَعُ) يَعْنِي إذَا قَالَ السَّائِلُ: قُلْتُ كَذَا هَلْ يَقَعُ عَلَيَّ الطَّلَاقُ: يَقُولُ الْمُفْتِي نَعَمْ إنْ نَوَيْتَ ح (قَوْلُهُ وَلَوْ بِكَمْ يَقَعُ) يَعْنِي لَوْ قَالَ السَّائِلُ: قُلْتُ كَذَا كَمْ يَقَعُ عَلَيَّ يَقُولُ لَهُ الْمُفْتِي يَقَعُ وَاحِدَةً وَلَا يَتَعَرَّضُ لِاشْتِرَاطِ النِّيَّةِ؛ يَعْنِي لَا يَقُولُ لَهُ الْمُفْتِي تَقَعُ وَاحِدَةٌ إنْ نَوَيْتَ ح. (الدر المختار وحاشية ابن عابدين (3/ 302))
[2] وَإِنْ كَانَتْ مُعْتَدَّةً مِنْ طَلَاقٍ بَائِنٍ أَوْ خُلْعٍ وَهِيَ الْمُبَانَةُ أَوْ الْمُخْتَلِعَةُ فَيَلْحَقُهَا صَرِيحُ الطَّلَاقِ عِنْدَ أَصْحَابِنَا. (بدائع الصنائع في ترتيب الشرائع (3/ 134))
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