Issuing Divorce in the State of Intoxication
Question:
My husband is in Pakistan and gets fatwas every day that he is still my husband. I am so fed up with all of this. I am on the verge of committing suicide. Last year in November he wrote three times that he is divorcing me and left. Later he denied that he divorced me. Then he said he was drunk then many other things. Now he emails me. Here are some of his fatwas:
1- If a man gives divorce once (he wrote 1, 2, 3, 10 or 1000 times or whatsoever) that will be considered one time divorce, that’s called first divorce.
2-If between IDDAH , they will be not effected.
3-If they did not ruju and after 4 months 10 days he gives another divorce, that’s called 2nd divorce.
4-After 2nd divorce again both can do ruju, if they did ruju, they can live together.
5-After 2nd divorce 4 months 10 days if men give 3rd divorce than it should be final and after 3rd divorce both cant Ruju and divorce is final.
Now our position is clear we are not divorced, if I give you on paper 3 times or 10 times that’s considered once. If you are interested I can get your Mom and DAD and we can go together to get fatwaa in our case then what they say I will have to accept.
I don’t want to get back with him if my family pushes me I will kill myself… this man not only drinks but beats me up and I had enough of it and if they again push me either death or I will file for khula. Do you think it’s not divorce?? After one yr I should go back with him? Its not adultery now? Because he was once my husband he can use that card all my life even after divorcing me? Does Islam tell us to do that? I need your help.
Answer:
If a man issues his wife three divorces, separately or at once, then this (according to the four Sunni schools of Islamic law) will be considered three divorces, as mentioned in detail in an earlier post.
Allah Most High says:
“Divorce is twice, thereafter either retaining her honourably or releasing her kindly……. If he divorces her (the third time), she is unlawful for him unless she marries another husband (and he also divorces her).”(Surah al-Baqarah, V: 229/230)
Sayyida A’isha (Allah be pleased with her) reports that: A man pronounced three divorces to his wife. She (after her Iddah) married another man. The Messenger of Allah (Allah bless him & give him peace) was asked if it was lawful for her to return to the first husband. He said: “Not until they have sexual intercourse.” (Recorded by Imam al-Bukhari in his Sahih)
Also, divorce is effected whether it is verbal or in written form. Imam al-Kasani (Allah have mercy on him) states:
“Similarly, issuing a divorce verbally is not a condition. Hence, divorce will be effected with clear and unambiguous writing, or with the understood gesture of a dumb person, for the clear written word is in place of verbal utterance.” (Bada’i al-Sana’i, 3/100)
You mention that your husband was drunk at the time of issuing the divorce, thus let it be known that a divorce pronounced in a state of intoxication is also valid according to Shariah, unless in certain situations, such as: one consumed an intoxicating substance by force, without knowing that it is an intoxicating substance or was dying out of hunger/thirst.
Imam al-Mawsili (Allah have mercy on him) states:
“And the divorce issued by an intoxicated person is valid.” (al-Ikhtiyar, 2/155)
Therefore, if you are certain that your husband issued you three divorces verbally or in writing, then according to Shariah you will be considered divorced. Three divorces are considered to be irrevocable (Talaq al-Mugallazah), thus you can not return to him unless after your waiting period you marry another man and he too divorces you, and then you once again observe the waiting period.
If you are certain that your husband pronounced or wrote three divorces but your husband denies it, then it will not be permissible for you to treat him as your husband. It will be necessary for you to consider your marriage to be over, thus not let him have a husband-wife relationship with you, as the Fuqaha mention that a woman is like a judge (al-mar’atu kal qadhi), meaning that a woman is considered to be a judge with regards to her own situation. (See: Radd al-Muhtar, 2/432)
Therefore, if you are sure of him divorcing you, then you will be free to remarry after observing the waiting period (iddah). You need not to worry anymore of him physically abusing you. If you are not so sure or he did not divorce you thrice, then too you may be able to dissolve your marriage through the intervention of a Shariah council on grounds of beating and physical abuse.
And Allah knows best
[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK