Oath of the Divorcing Husband When Witnesses Disagree
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Question: From 'Abd al-'Aziz ibn 'Abd Allah ibn Baz, to the honorable brother, the virtuous Judge of al-Asiyah, may Allah guide him to all good, amen.
Peace be upon you, and Allah's mercy and blessings. After that:
O Beloved: Your noble letter, number 358, dated 12/11/1390 AH, which is a response to my letter, number 1941, dated 8/10/1390 AH, has reached you, may Allah guide you. I have reviewed the attached sheet, which contains your confirmation of the nature of the divorce pronounced by the husband, M. 'A., upon his wife.
The summary of its contents is that the husband and the father of the aforementioned wife appeared before you. The father claimed that the husband spoke words that would be spread about him, so his father's brother said to him: "If that is what you want, let her go." The husband replied, saying: "I see her as three [divorces], then I see her as three [divorces]." He then swore an oath that she would not enter a house from which she had exited. Then, a day after this, the husband came to her father and said to him: "Write the divorce of your daughter whenever you wish." This was one day before 'Id al-Fitr. No divorce preceded or followed this, it was not for compensation, and it was not in anger.
And that her father's brother testified before you that the repetition of the divorce, the oath, and the absence of anger were as his brother described. Also, Dr. M. testified before you that he heard the husband say, while standing: "I see her as three [divorces]," once, and that he swore she would not enter a house from which she had exited. After that, a day later, the husband came to them, and the wife's father said to him: "Go to your son to write the divorce of my daughter." He said: "I will write her divorce for you." Since the aforementioned husband has admitted to me—as recorded in my attached letter—that he did not divorce her three times except once, and did not divorce her otherwise.
Answer: Given the discrepancy between the testimony of her father's brother and Dr. M., and the fact that the father's claim is not accepted without fair evidence, and since the general rule in such cases is that the statement of the defendant is accepted with his oath, based on all of the above, I request that the aforementioned husband be made to swear that he did not divorce his aforementioned wife three times except once. If he swears, I have issued him a fatwa that one divorce has taken effect upon her due to the divorce mentioned, and he may take her back as long as she is in the waiting period. If she has exited the waiting period, she is not lawful for him except through a new marriage, with its conditions considered valid by the Shari'ah.
If he refuses to take the oath, then two divorces have taken effect upon his aforementioned wife; one divorce for each phrase, and he has one divorce remaining. He may take her back as previously mentioned. It is well known that there is a sound report from the Prophet (peace and blessings be upon him) indicating the aforementioned fatwa.
He must repent from that, because divorcing three times at once is an abomination, as your virtue knows. He must also pay the expiation for an oath regarding his swearing that she would not return to his house—if she returns. I request that you complete the necessary procedures and inform everyone of the aforementioned fatwa. May Allah reward you, and thank you for your efforts.
And peace be upon you and the mercy of Allah and His blessings.
Peace be upon you, and Allah's mercy and blessings. After that:
O Beloved: Your noble letter, number 358, dated 12/11/1390 AH, which is a response to my letter, number 1941, dated 8/10/1390 AH, has reached you, may Allah guide you. I have reviewed the attached sheet, which contains your confirmation of the nature of the divorce pronounced by the husband, M. 'A., upon his wife.
The summary of its contents is that the husband and the father of the aforementioned wife appeared before you. The father claimed that the husband spoke words that would be spread about him, so his father's brother said to him: "If that is what you want, let her go." The husband replied, saying: "I see her as three [divorces], then I see her as three [divorces]." He then swore an oath that she would not enter a house from which she had exited. Then, a day after this, the husband came to her father and said to him: "Write the divorce of your daughter whenever you wish." This was one day before 'Id al-Fitr. No divorce preceded or followed this, it was not for compensation, and it was not in anger.
And that her father's brother testified before you that the repetition of the divorce, the oath, and the absence of anger were as his brother described. Also, Dr. M. testified before you that he heard the husband say, while standing: "I see her as three [divorces]," once, and that he swore she would not enter a house from which she had exited. After that, a day later, the husband came to them, and the wife's father said to him: "Go to your son to write the divorce of my daughter." He said: "I will write her divorce for you." Since the aforementioned husband has admitted to me—as recorded in my attached letter—that he did not divorce her three times except once, and did not divorce her otherwise.
Answer: Given the discrepancy between the testimony of her father's brother and Dr. M., and the fact that the father's claim is not accepted without fair evidence, and since the general rule in such cases is that the statement of the defendant is accepted with his oath, based on all of the above, I request that the aforementioned husband be made to swear that he did not divorce his aforementioned wife three times except once. If he swears, I have issued him a fatwa that one divorce has taken effect upon her due to the divorce mentioned, and he may take her back as long as she is in the waiting period. If she has exited the waiting period, she is not lawful for him except through a new marriage, with its conditions considered valid by the Shari'ah.
If he refuses to take the oath, then two divorces have taken effect upon his aforementioned wife; one divorce for each phrase, and he has one divorce remaining. He may take her back as previously mentioned. It is well known that there is a sound report from the Prophet (peace and blessings be upon him) indicating the aforementioned fatwa.
He must repent from that, because divorcing three times at once is an abomination, as your virtue knows. He must also pay the expiation for an oath regarding his swearing that she would not return to his house—if she returns. I request that you complete the necessary procedures and inform everyone of the aforementioned fatwa. May Allah reward you, and thank you for your efforts.
And peace be upon you and the mercy of Allah and His blessings.
Source
binbaz.org.sa
The Arabic text is copied verbatim from the original source, without any edits.