Confused whether her divorce was Talaaq or Khul'
28-3-2013 | IslamWeb
Question:
asalam-o-alaikum my husband was very short temperd and harsh and not used to fulfil his responsibilities as a husband and was also used to do verbal, physical and mental torture inspite of my every effort to keep him happy.even he didnt spend a peny on me, rather used my ATM & credit cards. ultimately my family came to knew this all. evry one tried to make him realize his duties and faults but he didnt changed. ultimately my family asked him to leave me if he cant treat me like humans. then my husband said "if she leaves her mehar then i wl leave, otherwise i wl be like this and i wl not change and i wl also not leave her". my family agreed for leaving mehar and on a paper they wrote from my side "i m forgiving mehar & there wl be no give and take". in response at the same time (even knowing that i m pregnanat) my husband wrote on a paper "according to elder's decision & because of lack of understanding, i m giving ~talaq-e-salasa(talaq, talaq, talaq)~ to my wife and there wl be no relation". i want to know that this is khula or talaq? if talaq, then it wl be considered as 1 or 3 when i was pregnant and my husband was having matital relations with me few days before? and if it is khula, then like talaq, are there 2 more chances of "rujoo'(going back to husband)?in my case, is there any chance of re-union between me and my husband without halala?and if at all it is a 3 valid talaq, then the mehar i forgave, my husband has to pay me as what little i know is that in khula wife forgive her mehar but if husband give talaq, then he has to give his wife her mehar. please dont mind but lastly i want to know that why few scholars consider 3 talaq at once as 3(quote authentic refrences) while others with other authentic refrences consider 3 at once talaq as 1? to whom we, muslims with little knowledge should believe? kindly reply in detail, i wl be thankful and Allah wl give you ajar-e-azeem.
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, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
A husband’s mistreatment of his wife and neglecting to spend on her is a kind of not having good relations with her and failure to fulfill some of her rights. It is even worse if he took her money without her permission or pleasure. Kindly, refer to Fatwa 88304 regarding the right a wife has that her husband keeps good relations with her. Also see Fatwa 85012 about the fact that spending on the wife is an obligation upon the husband.
Writing out the divorce is a metaphor of divorce by which divorce takes place as long as the husband truly intended it. This is clarified in Fatwa 89894.
The thrice divorce, said at once, as in your husband's writing “I give the decree of divorce three times” does count as three declarations of divorce according to the majority of scholars. Some scholars have said this only counts as a single divorce. For more benefit, please refer to Fatwa 94110.
According to the majority, and that is the opinion we adopt here in Islamweb, it is not permissible for your husband to take you back until you have married another man (and subsequently he divorces you or dies); while according to the other opinion, he may take you back. Please refer to Fataawa 82541and 90243 regarding the different kinds of divorce and return.
There are four issues to consider:
First: The Khul', if it occurred using the word “Talaaq”, is divorce and it has nothing to do with the disagreement between the Four Schools of jurisprudence about whether Khul' is an annulment of marriage or a divorce. Al-Mawsoo‘ah Al-Fiqhiyyah (The Fiqh Encyclopedia) reads: “There is no disagreement between the jurists regarding that the Khul', if it occurred with using word “Talaaq” or if he (the husband) intended Talaaq thereby, then it is divorce...”
Second: Difference of opinion between the jurists occurs in certain issues for certain reasons mentioned by the scholars. These reasons could include the evidence not reaching a scholar, or it reached him in a way that he considered not to be authentic, or it was authentic but he understood it differently, and so forth. Those students of knowledge who are able to understand the words of the scholars, to look into their evidences, and to recognize the ways they applied evidence (in their deduction), then they should follow what they regard as most correct. As for the layman, he should seek Fatwa from someone whose knowledge he trusts and then follow that Fatwa.
Third: If Khul‘ took place, then the husband deserves the agreed-upon compensation. However, if the husband was the source of the problem and the Khul' happened because of him, then he is not allowed to take compensation.
Fourth: The divorce of a pregnant woman is a Sunnah valid divorce and it takes place. We clarified this in Fatwa 116285.
Allaah Knows best.