Maliki Fiqh QA

Islamic Questions & Answers according to the Maliki School

Is It Valid to Divorce Someone While Angry or During Menstruation?

Answered by Shaykh Rami Nsour

Question: Assalamu aleykum,
I am writing as my husband has issued a 3rd talaq while I was on my menses. The second talaq was given 2 years ago also during a time of impurity. The first one was fine and during a time of purity. From what I have read on the Answers service I am irrevocably divorced. However, my husband has approached a local Sheikh who is contacting Darul Iftah in Saudi to get a fatwa issued to see if I am truly divorced based on the following points, is it really valid to do this?

The points the Sheikh will be considering are:

a) Husband was angry at the time. His speech appeared fluent and “normal” and his voice was not raised. He says the words “then I divorce you” just came out of his mouth and that it was not his intention at all, that he was not thinking about divorce at that time and that yes he was upset with me but that he had not intended divorce and he was shocked the words came out of his mouth. He says it was similar the last time, also he was angry and the words just came out, with no intention and they sounded read out, not like something one would say in a conversation.

b) issue of me being on my menses

c) extreme hardship that could be incurred as we have 4 young children and I am the primary caregiver.

d) desire of both spouses to be together.

Is it really valid to do this? I have fear of living in zina if the talaq is valid but the Sheikh says we are still married. Also this Sheikh we are told is qualified to do ijtihad.

Answer:

May Allah alleviate the pain and hardship that you are experiencing. To answer the questions you put forth:

a) According to the vast majority of scholars of the four schools of thought, the divorce of an angry person is binding. There are some that say that if a person’s anger caused them to lose sense of reality, then it would not be binding. This is because they have become like an insane person.

The opinion that is being quoted to you is that of Ibn Al-Qayyim Al-Jawziyya and his teacher Ibn Taymiyya. This opinion, that the divorce of an angry person is not counted, goes against what the four schools of thought teach, including the Hanbali school. The opinion of Ibn Taymiyya and Ibn Al-Qayyim is specific to them, and only a few other people, and thus is not considered to be a valid opinion.

The Shafi’is say divorce in anger is binding, as is mentioned by Ibn Hajar in Fathul Bari in the discussion of the Hadith, “There is no divorce under compulsion (ighlaq).” The Malikis also say that the divorce of an angry person is binding, even if the anger is extreme [Hashiyatul Dusuqi in the Section of Divorce]. Some of the Hanafis have given a breakdown of what type of anger would prevent divorce from occurring. Please review this answer for more on that: The Ruling on Divorcing While Angry and Pronouncing Three Divorces

The majority opinion of scholars through history is that the divorce of an angry person is binding, unless the anger caused the man to lose his intellect. This loss of intellect due to anger would have to be ascertained by a professional. If the husband remembers the interaction, that is a proof that he did not lose his intellect.

When analyzing what opinion you as a couple will take, you as a wife may end up taking a different opinion. This is not a situation where a wife must obey her husband’s decision. If your husband decided to take the opinion of Ibn Taymiyya, you may choose to take the majority and safer opinion and thus you would leave him.

I cannot imagine the hardship you are facing. On the one hand you have children and a divorce would make your and their lives very difficult financially and emotionally. On the other hand, you fear living in a state of impermissible intercourse.

The Messenger of Allah said, “There will be people from my nation who will make permissible adultery, silk, alcohol and instruments” [Bukhari]. Imam al-Bukhari placed this Hadith in a chapter he titled, “Those who will use alcohol and call it by other names.” If a woman is truly divorced from her husband, then their relations are not permissible, no matters how many fatwas are issued that say their relationship is a marriage and not prohibited.

b) According to the four schools of thought of the people of Sunna and Jama’ah, divorce during a woman’s menses is binding. It is not permissible to enact a divorce during that time, but it is nonetheless binding.

c) You are correct in that you will experience extreme hardship, and may Allah may things easy. But hardship in this case does not affect the outcome of the ruling. We have to look at whether or not the conditions of divorce were present. If they were, then you are unfortunately divorced. If the conditions were not there, then you are still married.

d) As in answer “c”, this factor is not taken into consideration in the ruling of divorce. To illustrate this, it is mentioned that if a husband was joking around with his wife and said he divorced her, then a divorce would have been enacted. Abu Hurayra (may Allah be pleased with him) reports that the Messenger of Allah (peace and blessings be upon him) said, “Three matters done in seriousness are serious and their being done jokingly are serious; marriage, divorce and freeing a slave.” [Tirmidhi, Abu Dawud and Ibn Majah]

Note: Your husband (or ex-husband) must seek anger management counseling. His carelessness in pronouncing the words of divorce has put the whole family in a severe predicament. That is extremely selfish of him and he must take all precautions to never do this again. He must also follow the Shariah in setting his marriage to you right. If that means that he cannot marry you until you re-marry, then that is must what happen.

Although a person usually does not divorce unless they are angry, the pronunciation of the words of divorce should be only done when a person is calm, collected and has asked the scholars the directions on how to implement a sunna divorce. This will prevent a person from doing something they will later forget.

Most people will not take an exam unless they studied and are calm or file taxes unless they sought counsel, so why would someone pronounce divorce while ignorant of the rulings, repercussions and while in a state of anger?

Please contact us for any and all clarifications that you need.

source: http://seekershub.org/ans-blog/2013/11/27/is-it-valid-to-divorce-someone-while-angry-or-during-menstruation/

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