Ruling on the one who says to his wife: You are divorced and forbidden to me
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Question:
This is a letter from the sister (A. S.), an Egyptian residing in Makkah al-Mukarramah. She says: She married a man several years ago who drinks intoxicants, after her family convinced her that he would repent. After her marriage, she tried to persuade him to abstain from that forbidden drink many times, but he was not convinced. After she bore him four children, he came one day and drank in front of her; so she took the vessel he had drunk from and broke it. At that point, he became angry with her and said to her: You are divorced and forbidden to me, like my mother and my sister.
So what is the legal ruling on this statement of his? And does she remain with him in this state, or does she separate from him?
Answer:
If he was of sound mind when he said this, then the divorce takes effect, and it takes effect as one revocable divorce, and the woman becomes forbidden to him by the prohibition of zihar until he expiates. If his mind was with him, one divorce takes effect, and he has the right to take her back as long as she is in the waiting period, provided he had not divorced her twice before this. And upon him is the expiation for zihar: which is freeing a believing slave.
If he is unable to do so, he fasts two consecutive months. If he cannot do that, he feeds sixty poor people, each poor person receiving half a sa' (a dry measure of about 3 kg) of the local staple food: dates, rice, or otherwise, before he has intercourse with her, before he approaches her.
As for if he was intoxicated by the drink when he said this, if the intoxication had taken his mind, so that he no longer understood what he was saying, then his divorce does not take effect according to the more correct of the two opinions of the scholars, as 'Uthman ibn 'Affan, the Rightly Guided Caliph (may Allah be pleased with him) issued a ruling to that effect, and a group of scholars adopted his opinion, and that is the correct one.
Likewise, his prohibition does not take effect and has no impact, because it came from one who is not of sound mind, and rulings are contingent upon intellect. So if the questioner knows from him that at that time he was not in his right mind, then this divorce and this prohibition are not relied upon, and she is his wife, remaining in his protection.
As for if he was of sound mind and not altered by the drink, then the divorce takes effect—as mentioned before—as one revocable divorce, and he has the right to take her back as long as he had not divorced her twice before this, and upon him is the expiation for zihar as mentioned before. Except if the time of pronouncing the divorce was in a period of purity in which he had intercourse with her, or during post-natal bleeding, or during menstruation; in that case, it does not take effect according to the correct opinion, and this is what a group of scholars said.
And it is established from Ibn 'Umar (may Allah be pleased with him) what indicates this; due to the authentic hadith of Ibn 'Umar in the two Sahihs that the Prophet (peace and blessings be upon him), when it was reported to him that Ibn 'Umar had divorced his wife while she was menstruating, became angry and disapproved of it, and ordered him to take her back. So if she becomes pure from the menstruation following the one in which he divorced her, then after that, if he wishes, he divorces her, and if he wishes, he keeps her, before he touches her. If he wishes, he divorces her before he touches her, and if he wishes, he keeps her. In a wording, he said to him: meaning: after her purity from the menstruation in which he divorced her, then after her purity from the other menstruation. And this is the opinion supported by a group of scholars, among them Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) and the scholar Ibn al-Qayyim (may Allah have mercy on him). And it is indicated by his statement (peace and blessings be upon him): Sahih Muslim 1718b And this is an action for which there is no command from the Prophet (peace and blessings be upon him), rather it is contrary to the Shari'ah. For the Sunnah is that the husband divorces his wife while she is pure, without intercourse. As for divorcing her during menstruation, or during post-natal bleeding, or in a period of purity in which he had intercourse with her, and she is not pregnant; then it is a divorce by innovation, which does not take effect according to the correct opinion of a group of scholars, as previously indicated. Yes.
The presenter: But is it better for her to live with this husband who is addicted to this drink, or to separate from him?
The Shaykh: This is a matter for consideration. If she sees that the benefit requires her to remain with him and advise him, because she is in dire necessity of him to protect her children and provide for her, and she hopes that Allah will benefit him through her words and advice, then this may be more appropriate, so that she is not left without protection if she is in a country where there is no one to protect her or take care of her. And if she sees that separating from him is better, because she has someone to protect her, treat her well, and her children, and she does not hope for his return from this falsehood, then separating from him is better. She raises the matter to the court, or asks him for a divorce so that he may divorce her, or the Shari'ah court looks into it, or she seeks the mediation of the righteous and prominent people to mediate between them so that he divorces her, or he repents to Allah from his bad deeds. Yes.
The presenter: May Allah bless you.
This is a letter from the sister (A. S.), an Egyptian residing in Makkah al-Mukarramah. She says: She married a man several years ago who drinks intoxicants, after her family convinced her that he would repent. After her marriage, she tried to persuade him to abstain from that forbidden drink many times, but he was not convinced. After she bore him four children, he came one day and drank in front of her; so she took the vessel he had drunk from and broke it. At that point, he became angry with her and said to her: You are divorced and forbidden to me, like my mother and my sister.
So what is the legal ruling on this statement of his? And does she remain with him in this state, or does she separate from him?
Answer:
If he was of sound mind when he said this, then the divorce takes effect, and it takes effect as one revocable divorce, and the woman becomes forbidden to him by the prohibition of zihar until he expiates. If his mind was with him, one divorce takes effect, and he has the right to take her back as long as she is in the waiting period, provided he had not divorced her twice before this. And upon him is the expiation for zihar: which is freeing a believing slave.
If he is unable to do so, he fasts two consecutive months. If he cannot do that, he feeds sixty poor people, each poor person receiving half a sa' (a dry measure of about 3 kg) of the local staple food: dates, rice, or otherwise, before he has intercourse with her, before he approaches her.
As for if he was intoxicated by the drink when he said this, if the intoxication had taken his mind, so that he no longer understood what he was saying, then his divorce does not take effect according to the more correct of the two opinions of the scholars, as 'Uthman ibn 'Affan, the Rightly Guided Caliph (may Allah be pleased with him) issued a ruling to that effect, and a group of scholars adopted his opinion, and that is the correct one.
Likewise, his prohibition does not take effect and has no impact, because it came from one who is not of sound mind, and rulings are contingent upon intellect. So if the questioner knows from him that at that time he was not in his right mind, then this divorce and this prohibition are not relied upon, and she is his wife, remaining in his protection.
As for if he was of sound mind and not altered by the drink, then the divorce takes effect—as mentioned before—as one revocable divorce, and he has the right to take her back as long as he had not divorced her twice before this, and upon him is the expiation for zihar as mentioned before. Except if the time of pronouncing the divorce was in a period of purity in which he had intercourse with her, or during post-natal bleeding, or during menstruation; in that case, it does not take effect according to the correct opinion, and this is what a group of scholars said.
And it is established from Ibn 'Umar (may Allah be pleased with him) what indicates this; due to the authentic hadith of Ibn 'Umar in the two Sahihs that the Prophet (peace and blessings be upon him), when it was reported to him that Ibn 'Umar had divorced his wife while she was menstruating, became angry and disapproved of it, and ordered him to take her back. So if she becomes pure from the menstruation following the one in which he divorced her, then after that, if he wishes, he divorces her, and if he wishes, he keeps her, before he touches her. If he wishes, he divorces her before he touches her, and if he wishes, he keeps her. In a wording, he said to him:
Let him divorce her while she is pure or pregnant
فليطلقها طاهرًا أو حاملًاHe who did any act for which there is no sanction from our behalf, that is to be rejected.
من عمل عملًا ليس عليه أمرنا فهو ردThe presenter: But is it better for her to live with this husband who is addicted to this drink, or to separate from him?
The Shaykh: This is a matter for consideration. If she sees that the benefit requires her to remain with him and advise him, because she is in dire necessity of him to protect her children and provide for her, and she hopes that Allah will benefit him through her words and advice, then this may be more appropriate, so that she is not left without protection if she is in a country where there is no one to protect her or take care of her. And if she sees that separating from him is better, because she has someone to protect her, treat her well, and her children, and she does not hope for his return from this falsehood, then separating from him is better. She raises the matter to the court, or asks him for a divorce so that he may divorce her, or the Shari'ah court looks into it, or she seeks the mediation of the righteous and prominent people to mediate between them so that he divorces her, or he repents to Allah from his bad deeds. Yes.
The presenter: May Allah bless you.
Source
binbaz.org.sa
The Arabic text is copied verbatim from the original source, without any edits.