Bismillahir Rahmanir Rahim
Wa’laykum as-Salaam, wa Rahmatullahi wa Barakaatuhu,
Giving or not giving the divorce paper to his wife is not the issue of concern. The intention that he made when he filed the divorce papers, were in fact a genuine intention of divorce, and if they were, then this is what the matter of concern is. To sign a piece of paper, which clearly states his name and the name of that person to whom the divorce is made, three times and in front of five people is sufficient enough to constitute a divorce.
The law regarding a divorce made in a non-Arab language, eg. Persian (in this case English), then the ruling relating to that is, that if there is a word in the English language, which is solely used for the purpose of ‘talaaq’, i.e. divorce, then that word is a cleart (sarih) word. When it’s connection (idhaafat), is made towards a woman, then it comes into force even without the intention (niyyah).
Therefore, those words in which a ‘divorce’ comes into force in Shariy’ah, are of two kinds; Sarih (clear), and Kinaayah (allusion). Sarih words, are those words which are used in order to open up the plot, or prohibition of marriage, and those words are divorce talaaq’ or to divorce ‘tatliq’ known as divorcement. For example, if a husband says to his wife ‘anti taaliqunn’ (you are a divorcee), or ‘antit-talaaqi’ (you are a divorce), or ‘tallaqtu ka’ (I have given you a divorce), or ‘anti mutallaqatunn’ (you are divorced), then the reason why such words are known as ‘sarih’ (clear) words, is because the word ‘sarih’ literally means words that are clear and understandable by the listener. In addition to this, there is not even need for the intention to make a divorce for these type of words, in order for the divorce to take effect, because the action of the intention, is to align, or affix, what is absurd or ambiguous, yet these words do not carry any meaning of ambiguity or absurdity.
Allah the Almighty has stated in the Qur’an:
‘fa talliqu hunna li iddati hinna’ (Qur’an, at-Talaaq, verse 1)
‘then give them a divorce at thier prescribed periods’ (kanz-ul-Imaan).
In this verse, the Almighty has made ‘divorce’ forceable, without the need of an intention. Thus the Almighty has also stated:
‘fa in tallaqaha falaa tahillu lahu mim ba’du hattaa tankiha zawjann ghayrah’ (Qur’an, al-Baqarah, verse 230)
‘then if somebody does give his wife the divorce, then that woman will no longer remain permissible for him, until she does not wed another man.
In this verse of the Noble Qur’an, Allah the Almighty has, without the condition (shart) of intention, has ordered the decline (zawaal) of the lawfulness (hillat) of the marriage, as a whole (mutlaqq). Thus in the famous hadith of Hadrat ‘Abdullah ibn-e-Umar (may Allah be pleased with Him), that when he had given divorce to his wife, in the menstruation period, the Messenger of Allah (peace be upon Him) had ordered him to make a recourse or return to his original position, (ruju’), and did not ask whether he had made the intention to make a divorce or not. If such was the case, then the Messenger of Allah would undoubtedly have asked of the intention, and secondly, to make a recourse or to return to the original position can only occur once the divorce (talaaq) is made, therefore we now understand that a divorce (talaaq), can be made without the need of intention.
We shall consider some of the rulings regarding divorce from a few sources of the books of fiqh.
The Noble Qur’an states:
‘at talaaqu marrataani fa imsaakum bi ma’rufinn aw tasrihumm bi ihsan’ (al-Qur’an, surah Baqarah, verse 229)
‘this divorce is for two times only, then it is to retain with good, or to release with kindness’. (kanz-ul-Imaan)
Without the difference of pregnancy or non pregnancy, the law has legalized three different (mutafarriq) divorce. Although the verse only specifies two of these three divorces, nevertheless, the third divorce is proven from the words:
‘aw tasrihumm bi ihsaan’- meaning ‘to release with kindness’ or from the verse:
‘fa inn tallaqaha falaa tuhillu lahu mim ba’du hatta tankiha zawjann ghayrah’ (al-Qur’an, surah Baqarah, verse 230)
‘then if she is divorced for the third time, then now that woman will not be lawful to him, until she lives with another husband.’ (kanz-ul-Iman)
The divorce can be given verbally or in writing. The following conditions however must be fulfilled in order for a divorce to be enforceable in Islam.
The husband must be of sound mind. It does not matter whether he was intoxicated with drink or drugs, or any other substances. Also the saying of the Noble Prophet (peace be upon Him), that ‘all forms of divorce are permissible, except the divorce from a child or a mentally ill person’.
The husband must not be mentally ill, or be a lunatic. He must have reached the age of puberty. It is not a condition that the husband had agreed to a divorce. But according to Imam Shafi’I, the divorce will not be enforceable. It is not a condition that the husband is solemn. Because in the hadith of the Messenger of Allah the Almighty (peace be upon Him) who stated that
“There are three things whose solemnity is solemnity, and whose amusement is also solemnity (meaning that their intention is that intention, as its non intention is also an intention), and they are marriage, divorce, and freedom of a slave.” It has also been said in al-Qur’an:
‘wa laa tattakhidhu aayaatillahi huzuwa’ (al-Qur’an, Baqarah, 231)
‘and do not make jest of the signs of Allah.’
This verse was revealed when in the days of ignorance a husband used to divorce his wife, and then would repent saying that he was only joking, similarly, a person would free a slave and then after saying this, he would repent and say that he was only joking. This is the reason why this verse was revealed. The Messenger of Allah (peace be upon Him) stated that:
“ who ever makes a divorce, or freed a slave, or got married, afterwhich he said that I was only joking, then the marriage, divorce and freedom of a slave will be in force.”
· It is not necessary to express the word divorce by mouth. However divorce can be in force when one expressly states this in writing, because the writing has the same legal position as that of what is verbally said.
· Being a Muslim and also of good health is not a condition
· In a divorce, the intent is not a condition. - (bada’i-us-sanaa’i, kitab-ut-talaq, ‘allamah kaasaani, Dayaal Singh Trust Library, Lahore).
My dear seeker of the truth, the only advise which I can give you in the light of all the evidence that I have given you is to stay away from your former partner. It is not allowed in Islam that you now share the same room, talk to each other or even see one another, and to have sex is totally out of the question. However, if you do, then what you will be doing is committing a grave sin (kabirah), which only you will have to answer for on the day of judgement. You may not see her, as you are no longer married, and that it is unlawful for a woman or man to see what is known as a ‘ghayr mahram’ man or woman, and that the same applies if you speak with them.
One of the worst forms of giving divorce that constitutes a divorce, is the type that your husband has given her, i.e. three divorces at once, on a piece of paper, in front of five witnesses. This is not what is known as the tallaq-e-Sunnah, but rather a more harsher form of divorce, which did not even consider the implications of recourse (ruju’), hence the three divorces, at once. Nor did it give her the opportunity to discuss this with your husband, as to whether she were free from your menstruation period or not, so that your husband could have returned to his original position (ruju’), as it was stated, in the Qur’an, and the Hadith of Syedina ibn-e-Umar (may Allah be pleased with Him).
It seems as though your husband wanted to have the best of both worlds, yet was not aware of the consequences of giving her a divorce on paper. Divorce is such that even if he did not make the intention, it still constitutes as divorce because the wording of what is on paper are of that effect. Although Islam allows a man marriage upto the limit of four, nevertheless it does not mean that he may give and take when and as he wishes, as the worst thing out of all permissible things in the eyes of Allah is to give a divorce. This is the reason why we have so many upset families, breakage of relationships and envies as people start treating marriage, as a means for their own personal desires, which is totally unacceptable in Islam.
However, the divorce is legitimate, and he is no longer to see his former wife in any manner whatsoever.
And Allah is the Knower of what is in the chests, He is the knower of the All. M. Waseem Ashrafi