Appointing Witnesses and Informing the Wife when Revoking a Divorce

Appointing Witnesses and Informing the Wife when Revoking a Divorce

Question:

Is it necessary for the husband to appoint witnesses when revoking his divorce that he issued to his wife? What if he just revokes it by himself in the absence of his wife, and his wife has no knowledge of it?

Answer:

In the name of Allah, Most Compassionate, Most Merciful,

When a husband pronounces one or two divorces to his wife in clear and express (sarih) terms such as saying “I divorce you” or “You are divorced”, then it results in revocable divorce (talaq raj’i). This means that he has a unilateral right of revoking the divorce and taking his wife back (raj’a) before the expiry of the waiting period (iddat).

Allah Most High says:

“So, when they [the divorced women] have [almost] reached their term [of iddat], then either retain them with fairness, or part with them with fairness. And make two just men from among you witnesses [of your either decision]. And [O witnesses], keep your testimony upright for the sake of Allah.” (Surat al-Talaq, V: 2)

And:

“Divorced women shall keep themselves waiting for three periods, and it is not permissible for them to conceal what Allah has created in their wombs – if they believe in Allah and in the Last Day. Their husbands are best entitled to take them back in the meantime, if they want a settlement…” (Surat al-Baqarah, V: 228)

This revocation can take effect in two ways:

1) Verbally – The husband may verbally revoke his divorce by saying to his wife, “I revoke the divorce” or “I take you back” and the like; or, in the absence of his wife, saying to someone else, “I take my wife back” or something similar. This (i.e. verbal revocation) is the preferred and recommended (mustahab) method.

b) Physically – The husband may also revoke his divorce by being intimate with his wife such as having sexual relations with her, or kissing, fondling, touching and looking at the internal part of her vagina with sexual desire (shahwa). This method is mildly disliked (makruh tanzih).

If the husband fails to revoke his divorce – verbally or physically – within the waiting period, then it becomes irrevocable. As such, she is free to move on with her life and remarry another person. She also has a choice of remarrying her ex husband (meaning a new Nikah, with all its integrals, will have to be performed), provided all three divorces were not issued. (See for details: Radd al-Muhtar ala ‘l-Durr al-Mukhtar and other fiqh references)

Appointing Witnesses

It is not necessary per se for the husband to appoint witnesses when revoking the divorce and, as such, the revocation is valid even without witnesses. However, it is recommended to appoint two formal witnesses to avoid potential disputes, and somewhat disliked not to do so; due to Allah Most High’s statement in the verse quoted above, “And make two just men from among you witnesses [of your either decision]….” (Surat al-Talaq, V: 2)

The imperative command (amr) in the above verse indicates recommendation and not obligation, according to the vast majority of scholars (jumhur) – including the four Sunni Schools of Islamic law. As such, it is recommended for the husband to appoint two witnesses, whether he revokes the divorce in the presence or absence of his wife, and whether he revokes the divorce verbally or physically. (See: Radd al-Muhtar, Al-Fatawa al-Hindiyya 1/468, Al-Sharh al-Mumti’ ala Zad al-Mustanqi’ and Al-Mawsu’a al-Kuwaytiyya)

Informing the Wife of the Revocation

Similarly, it is recommended for the husband to notify his wife of the revocation; but if he does not do so, the revocation will still be valid.

Imam Haskafi states in his Al-Durr al-Mukhtar, “It is recommended to notify her [the wife] of the revocation, so that she does not marry someone else after the expiry of the waiting period.” (Al-Durr al-Mukhtar 3/401)

It is likewise stated in Al-Fatawa al-Hindiyya (which nicely sums up the various issues), “The Sunna method is to revoke the divorce verbally, appoint two witnesses, and inform her of the revocation. As such, if he revokes the divorce verbally by saying something like “I have taken you back” or “I have taken my wife back”, but does not appoint any witnesses; or he [also] appoints witnesses but fails to inform her of the revocation, then it will be blameworthy and contrary to the Sunna, although the revocation will be valid. (Al-Fatawa al-Hindiyya 1/468)

What if there is a Difference of Opinion?

If upon the expiry of the waiting period, the husband says he had revoked the divorce, and the wife acknowledges and accepts his claim, then the revocation will stand as valid.

However, if she denies that he verbally or physically revoked the divorce, then he will need to present two witnesses who can testify that he revoked the divorce within the waiting period in their presence. If he is unable to present witnesses, his wife’s claim will be accepted, and hence revocation will not be established. (Fatawa Mahmudiyya 13/361 and Radd al-Muhtar 3/401-402)

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Question #: 7000
Published: 25/04/2013