Is the act of a man who divorced his wife with a final divorce without her knowledge and then had intercourse with her afterward considered zina, or is it a revocable intercourse?

The questioner : ... There is a story that happened where a man divorced his wife with a final divorce at the court, but he did not inform his wife of it. So the divorce paper was sent to her father at her father's house. When he came out of the court, he went and took his wife and children outside the house so that her father would not take her, or so that her father would not learn of the divorce. Then he brought her back in the late night, meaning after midnight, and had intercourse with her that night without informing her. The wife did not know until the day when her father came to inform her of it. So when she was forced to ask her husband, he did not answer her, neither denying nor affirming. After that, this woman became insane. May Allah protect us and you.

The Shaykh: Amen.

The questioner : So her people asked me whether this intercourse is considered zina or not, or whether it is considered a taking back of her, knowing that it was a final divorce. And if they inform her people and the authorities, is her statement considered valid, or is it required to have eyewitnesses as is prescribed in the Sunnah?

The Shaykh : Her statement meaning that he had intercourse with her, or something else?

The questioner : Yes, meaning that he had intercourse with her that night, even though he had divorced her with a final divorce during the day?

The Shaykh : Before answering the question, it is necessary to clarify: what is meant by your saying that he divorced her with a final divorce?

The questioner : Meaning that he divorced her three times at the court by saying: "She is divorced, she is divorced, she is divorced," a divorce from which there is no return.

The Shaykh : This is not considered a final divorce; this is considered one divorce. If we return to the Sunnah, as for if we return to some madhhab-bound judges, then as I said, they consider this a final divorce, meaning they apply to this divorce the saying of Allah the Exalted: , but our Lord, Mighty and Majestic, clarified in the noble verse that this divorce in one phrase and in one session is not the prescribed divorce, because He said: , meaning two divorces, and in each divorce, either retention in kindness or release with kindness. This is what aggregates the three divorces. It nullifies the text of the Noble Qur'an, which is His saying: . Therefore, our Lord followed up with His saying: , meaning in the third, he divorced her the first divorce, then he retained her and took her back, then he divorced her the second, then he retained her and took her back, then he divorced her the third, . And so divorce was practiced in the time of the Prophet (peace and blessings be upon him) and in the time of Abu Bakr for two and a half years of his caliphate, and in the beginning of the caliphate of 'Umar ibn al-Khattab as well. Then 'Umar saw, as a legal policy, to enforce this divorce on whoever divorced with it, three times, as a punishment and discipline for him. But people, unfortunately, all people except those whom Allah protects, and they are few, followed this ruling that was issued by 'Umar as discipline. But the scholars must always and forever return to the Sunnah, as Ibn Mas'ud (may Allah be pleased with him) said: "Follow and do not innovate, for you have been sufficed. Stick to the old matter, stick to the old matter." So of the old matter, what relates to this issue is that whoever divorces his wife with three grouped divorces is like one who says to his companion, "I have three dinars for you, take them," while in reality he did not hand him but one dinar. So the consideration is the reality, not the phrase. The phrase has no value, especially after this explanation we have presented . So the intercourse of this man with his wife, if there are no other divorces, we do not know? But the fatwa, as they say, is according to the text. So if the meaning of the final divorce is that he divorced her three times, then his intercourse with her is considered intercourse with his wife, and it is considered a taking back of her by him. But he must testify to that, just as he testified to the marriage. He must testify to the divorce, and this happened in the court. And he must testify to the return. We say this, but there remains here a jurisprudential, terminological issue, which is that this man, as long as he raised the matter to the Shari'ah court, which you have there, and the Shari'ah court ruled against him with the major finality, and then nothing else happened there, and he did not consult any of the scholars who issue fatwas according to the Sunnah, yet he turned away from the ruling of the Shari'ah judge there and had intercourse with his wife, then this is considered zina by him with her, and she is not considered a fornicator, due to her ignorance that you mentioned. Is the story and the incident clear?

The questioner : Is that clear?

The Shaykh : Welcome and greetings, here .

The questioner : ... .

The Shaykh : How... did he get a cloak? Why didn't it cool down?

The questioner : ... .

The Shaykh : Yes.

The questioner : Regarding the question... if they went to the court and complained about that man, are they required to have witnesses, or are they believed, or what is the ruling in that from the perspective of the Shari'ah?

The Shaykh : Witnesses in this case cannot be imagined...

The questioner: His EminenceThe Shaykh : Regarding the testimony of the divorce, not after the 'iddah ends, within the 'iddah...

The Shaykh : No, at the time of the divorce or near it, not after.

The questioner : When he wants to divorce her.

The Shaykh : How?

The questioner : When he wants to divorce her.

The Shaykh : Not releasing her just because he divorced her.

The questioner : ... I noticed in the Qur'an that it is after he releases her.

The Shaykh : Where in the Qur'an is it after he releases her? You... if Allah wills.

The questioner : Three months is the 'iddah of the divorced woman.

The Shaykh : Where, where after he releases her is not in the Qur'an, you... if Allah wills.

The questioner : Ah

The Shaykh : Praise be to Allah?

The questioner : Praise be to Allah in all circumstances.

The Shaykh : Are you finished, my brother?

The questioner : ... .

The Shaykh : Yes.

The questioner : Regarding our Shaykh, do they have to, if they complained...

The Shaykh : Do they have to what?

The questioner : Do they have to, for example, ask the judge for witnesses. What is the ruling in this case?

The Shaykh : The judge remains to question the man and investigate with him, and in any case, this is a matter that returns to the judiciary, because there are no witnesses here, yes.

The questioner : Tomorrow, if Allah wills, we are traveling to Sham by the permission of Allah.

The Shaykh : And when are you traveling?

The questioner : I am coming from Sham.

The Shaykh : And they are coming from Sham, but this is not an answer.

The questioner : ... I swear by Allah, I understood you, so with this philosophy, he came out with matters, meaning, in my opinion and knowledge, and Allah knows best, that they are outside the creed of the people of the Salaf and outside the Qur'an and the Sunnah.

The Shaykh : Yes.

The questioner : And it affected much of the family in Sham, of course I reside here and not in Sham, and there were several questions... including simple cases.

The Shaykh : Not the one who was in Russia?

The questioner : Yes, the one who was in Russia.

The Shaykh : I know him.

The questioner : I am the one who helps me in the matter, Mu'azzah... from my childhood to my grandfather, may Allah make our ending good, a person does not know when he will die.

The Shaykh: Amen.

The questioner : We fear that Allah, Glorified and Exalted is He, God forbid... that He writes for him the ending on a creed... and in that is the great plague, and the loss in this world and the Hereafter.

The Shaykh : You have done well.

The questioner : Yes, and my grandfather does not leave Syria at all, he did not leave except to meet you this day.

The Shaykh : Welcome.

The questioner : So this matter is important, if there are questions related to jurisprudential matters, they can be postponed, but questions that relate to a person's destiny cannot.

The Shaykh : Okay, something else, the session is for you.

The questioner : Yes.

The Shaykh : Do you have an objection that they are present to listen?

The questioner : To listen.

The Shaykh : You do not have an objection.

The questioner : No, I do not have an objection.

The Shaykh : So we say what we told you, whoever wants to listen attends, but there are no questions, the questions are between Maghrib and 'Isha', and you know this thing.

The questioner: His EminenceThe Shaykh : Regarding the verse of the divorce of the testimony, here in Surat al-Talaq .

The Shaykh : Testify when?

The questioner : Here it came in terms of sequence. After.

The Shaykh : Did you read the tafsir of the verse? Or are you just talking from...?

The questioner : I read Ibn Taymiyyah and others...

The Shaykh : No problem, you.

The questioner : No one issued a fatwa...

The Shaykh : Did you answer me now about my question?

The questioner: Yes.

The Shaykh : You say yes, but I say no, I am asking you, did you answer me about my question?

The questioner : That...?

The Shaykh : That he read the tafsir of the verse that the meaning is that this is after...

The questioner : Ah, I read the tafsir of the verse by Ibn Taymiyyah himself in the refutation of the Shi'ah in Minhaj al-Sunnah.

The Shaykh : I do not want the details, my brother, what does Ibn Taymiyyah say?

The questioner : He says that no one issued a fatwa that the testimony is at the beginning of the divorce except only the Rafidah Shi'ah.

The Shaykh : And after the divorce, who said?

The questioner : No, not after the divorce, after the end of the 'iddah.

The Shaykh : Who said?

The questioner : Three months.

The Shaykh : Who said?

The Shaykh : The people of the Sunnah and the community, this is the saying of Ibn Taymiyyah in Minhaj al-Sunnah.

The Shaykh : No, no, this is not correct, in which book did Ibn Taymiyyah say this?

The questioner : In *Minhaj al-Sunnah al-Nabawiyyah*.

The Shaykh : All right, if Allah wills, in a session we will bring you *Minhaj*... which part? My brother, it is established in the Sunnah that when one divorces, he should have witnesses, and when he marries, he should have witnesses. It is not after the divorce has taken place and the waiting period has ended. You are greatly mistaken, and the greatest of your mistakes is that you attribute to Ibn Taymiyyah what he did not know. It is possible to say that only the Shi'ah do not say that divorce requires witnesses, but to say that Ibn Taymiyyah and all Muslims say that witnessing takes place afterwards—"may his eyesight be ruined by 'afterwards'"—there is no benefit left in witnessing. What is the purpose of witnessing?

The questioner : When He says: , so at the time of release...

The Shaykh : At the time of release, does the term begin or does it end?

The questioner : It ends...

The Shaykh : Strange.

The questioner : This is after the waiting period has ended.

The Shaykh : May Allah guide you. What does "release" mean? It means divorce, meaning setting her free.

The questioner : All right, what is intended by ?

The Shaykh : My brother, one thing at a time. May Allah guide you.

The questioner : All right, one thing at a time.

The Shaykh : Do not be in the East and then move to the West. , "retention in kindness." What does that mean?

The questioner : It means he keeps his wife.

The Shaykh : It means taking her back.

The questioner : Yes.

The Shaykh : All right, does he have witnesses for the taking back or not?

The questioner : I do not know?

The Shaykh : This same verse contains the taking back, and then . When does the release take place? When he does not retain her in kindness, right? Or not?

The questioner : When there is no retention?

The Shaykh : That is it. So when he releases her, he does not wait three months. As soon as he releases her, so that no dispute arises later, like "I divorced you" or "I did not divorce you" as happens today. He brings two witnesses, just as he had witnesses for the marriage, he has witnesses for the divorce. This is the intended meaning of the statement...

The questioner : Witnessing his retention of his wife or...

The Shaykh : Do not discuss a second issue before you finish the first. Now we are dealing with the verse, , and you are linking divorce with release. We are showing you that the release intended here is divorce, because it is the opposite of retention. So when we finish this, you can go back and ask a second and third question if we have time. As for the verse you brought up, that is your personal understanding, and no one says this. You have time to review the exegeses of the scholars of knowledge. All right, go, you who have prayer upon you, pray. Be patient a little.

The questioner : I do not think they will make it in time.

The Shaykh : They will make it in time, if Allah wills.