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Fatwa CenterHer husband forgets that he divorced her over the phone
Question
Assalam o alikum, I am sending my question again. In the previous question I mistakenly wrote the statement of my husband wrong. I am correcting my husband's statement in this message. I am sorry i am not disclosing my name. Please answer my question according to Hanafi school of thought. I want to ask an issue regarding Talaaq. I am female and married. I had an argument with my husband on a telephone call. We were discussing about the issue of giving talaaq in past between us. He said in anger "pehle nahy di the na...to le lo ab". He said in Urdu language and it is translated as "I didn't give you before right?... then take now". After one day passed I asked my husband about his intention behind saying this sentence. He didn't remember that he said such sentence. He sad I don't remember that i said such sentence. I am confused about what was his intention at that time while saying this sentence. I am in doubt that probably he intended to give talaaq at that exact moment or "now" refers to the time of that whole day or any period of call. Or probably he may be asking as an option of giving talaaq. I somehow remember his sentence but I don't remember his intention. I am very sure about what he said but I also have 2% doubt about recalling his exact statement. There may be slight difference of the arrangement of word's in the statement of my husband. Or he may have said exactly what I wrote. I am still confused about his intention. We are confused whether one talaaq happened or not? Please answer my question regarding Hanafi school of thought.
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad 
is His slave and messenger.
The jurists of the Hanafi School of jurisprudence stated that if a husband says to his wife “Take your divorce”, it is considered an explicit formula of divorce according to the correct opinion of their school of jurisprudence. Al-Bahr Ar-Raa’iq authored by Ibn Nujaym from the Hanafi School reads: “According to Fat-h Al-Qadeer (A book on Hanafi Fiqh), if a husband says to his wife: “Take your divorce,” and she says “I take it”, then there is a difference of opinion about whether or not the intention is a condition for considering this divorce effective, and the correct opinion is that divorce takes effect without the condition of intention.” This apparently indicates that divorce does not take effect until the wife says, 'I take it,' and it is thus a form of authorization of the wife to effectuate the divorce on behalf of the husband. However, the apparent indication of what we have earlier quoted from Al-Khaaniyyah (title of a book) is contrary to this meaning. It is also stated in Al-Bazzaaziyyah, when referring to the Fataawa or Sadr Al-Islaam and Al-Qaadhi, that it does not require her statement “I take it.” [End of quote]
According to the view that your husband's statement is an explicit formula of divorce, then it does not require intention, and according to the second view, the divorce is not effective except with the intention. Some of the scholars condition that the wife should say: ‘I take it’, as we have already mentioned above.
Now, we have to look at your report that your husband denies uttering the words of divorce in the first place, and most likely this is not due to forgetfulness because of the proximity of time. It is also most probable that anger prevented him from being conscious of uttering it. If this is the case, then the divorce did not take effect. For more information on the validity of divorce when the husband is angry, please refer to Fataawa 121374 and 83467.
If the husband denies having uttered divorce in the past and there is no evidence for it, then, in principle, the bond of marriage is still ongoing and divorce was not effected as long as the husband denies it.
However, if you are sure that your husband has divorced you, then it is not permissible for you to allow him to have sexual intercourse with you until he takes you back according to the manner prescribed by the Sharee'ah. For more information on how a husband re-marries his wife after divorce, please refer to Fatwa 89845, and for the types of divorce, please refer to Fatwa 82541.
Finally, it should be noted that there are some unclear points in your question, so it is appropriate for you to resort to an Islamic court. Also, you and your husband may consult a trustworthy scholar regarding your case.
Allaah Knows best.
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