Question:
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یہ صفحہ اردو میں بھی موجود ہے۔ زبان کی تبدیلی کے لیے نیچے بٹن دبائیں۔
According to Hanafi jurisprudence, my issue is this:
- After the marriage, before intercourse/consummation, I gave my wife two explicit divorces on two separate occasions using the clear word “divorce” (طلاق). Both these divorces occurred before any discussion or demand for khula, and intercourse did not take place; however, we had been in such privacy where kissing and intimacy occurred that intercourse was possible there, but we have not had intercourse until now.
- Later, during an argument, I wrote in a message “I accept everything you say now” while at that time the wife had not demanded khula, and my intention was also not to end the marriage or accept khula/divorce but rather reconciliation was intended; then after that, the wife demanded khula and offered to return the ring and gold in exchange, although the dower had not been given to her until now, and after the demand for khula, I neither gave a divorce nor explicitly said “I accept khula”.
Now I want to ask:
- Will my previous statement be considered acceptance of khula and if yes, will it be considered as a third divorce, in which case will our marriage remain or will it be terminated?
- Also, since we were sometimes in privacy and kissing/touching etc. occurred but intercourse did not occur, will this establish valid seclusion /ruling of consummation and will the waiting period be obligatory or not?
- And if separation has occurred, is reconciliation possible or will a new marriage be necessary and what will be the ruling regarding the waiting period?
- Also, after only valid seclusion, without intercourse, is the given divorce in Hanafi jurisprudence revocableor irrevocable and does the ruling of further divorce occurring during the waiting period apply or not?
جزاکم اللہ خیراً
Answer:
بِسْمِ اللّٰهِ الرَّحْمٰنِ الرَّحِيْم
1) “I accept everything you say now” Is saying this before the demand for khula considered acceptance of khula?
Khula is a “compensatory contract”, for its validity, clear offer and acceptance from both husband and wife with mutual consent is necessary; therefore, if at that time the demand/offer for khula was not even present and the husband also did not explicitly accept khula later, the general statement “I accept everything you say” is not considered as “acceptance” of khula in customary/Shariah terms, consequently, neither will khula occur from it nor will it be called a third divorce. (Banuri University)
Important point: “Acceptance” in khula holds meaning only when it is in response to the offer of khula (i.e., the husband has clearly accepted on the same matter); merely a general, unrelated or previously said statement (when khula was not even discussed) does not become a pillar of khula. (Darulifta Deoband)
2) If (hypothetically) khula is accepted, does the relationship remain or is it terminated?
The fundamental principle is that khula does not occur without the husband’s acceptance; therefore, in your described situation (where you did not explicitly accept even after the khula demand), the marriage will not be considered terminated due to khula. (Banuri University)
And if in any case khula is correctly established (with clear offer and acceptance), then as a result of khula, one irrevocable divorce occurs and the marriage is terminated (the ruling of minor/major separation proceeds according to previous divorces). (Banuri University)
3) Ruling regarding valid seclusion /ruling of consummation and waiting period (intercourse did not occur, but privacy and kissing/intimacy occurred)
After marriage, if such privacy occurs where intercourse is possible (there is no Shariah/physical obstacle), then this is called valid seclusion, and then if divorce is given, generally:
- The divorce does occur,
- And the waiting period also becomes obligatory (if valid seclusion is proven). (Banuri University)
From your description (“such privacy with kissing and intimacy that intercourse was possible but did not occur”) generally constitutes valid seclusion, however, in practical fatwa, sometimes the details of “obstacle/impediment” make a difference, therefore, the application of this point is finalized by the Mufti after hearing your complete situation. (Darulifta Deoband)
4) If separation (irrevocable divorce or khula) has occurred, will reconciliation occur or a new marriage? What will be the waiting period?
After irrevocable divorce (طلاقِ بائن) (and khula is also in the ruling of irrevocable), reconciliation (رجوع) does not occur; the only way for return is that with mutual consent of both, a new marriage and new dower take place. (Banuri University)
Regarding the waiting period:
- If valid seclusion is proven, then in the case of divorce/khula, the waiting period becomes obligatory. (Banuri University)
5) Divorce after valid seclusion without intercourse: Revocable or irrevocable? And the effect of further divorce during the waiting period?
“After marriage, before consummation/intercourse, but after valid seclusion” divorce has been declared as irrevocable divorce; therefore, instead of reconciliation, renewal of marriage is required, and the waiting period also becomes obligatory. (Banuri University)
In the same chapter, clarifications/preferences regarding “further divorce occurring during the waiting period of valid seclusion” are also found, meaning if an explicit divorce is given during the waiting period, it also occurs. (Farooqia University)
The result of “these very principles” on your specific situation (according to your description)
- Your statement “I accept everything you say…”—since it was before the demand for khula and explicit acceptance in response to khula is not found, therefore in the light of Shariah teachings and Hanafi jurisprudence, it does not become acceptance of khula, hence a third divorce also does not become necessary. (Banuri University)
- The actual count is of your two explicit divorces; and when valid seclusion is proven (as you mentioned kissing and intimacy in privacy), then as soon as you gave the first divorce, an irrevocable divorce (in which reconciliation is not possible and only a new marriage with new dower and witnesses is required) has occurred and the second divorce given in explicit words during the waiting period of that divorce has also occurred. Therefore now: (Banuri University)
- Now you have only one divorce left.
- She is not currently in your marriage and you both are non-mahram (strangers) for each other in the eyes of Shariah.
- After completing the waiting period, she can marry wherever she wishes. It is not obligatory for her to marry you. Nor does she need your permission.
- If you both are willing to live together again and hope that you will observe the limits of Shariah in the future, then you can perform a new marriage from the beginning with a new dower under the conditions of marriage. However, it is not necessary to set a heavy dower like before in the new marriage, but the minimum amount of dower is fixed, and that is 2 tola and 7.5 masha (approximately 30.618 grams). Therefore, by setting approximately 31 grams of silver or its value as dower and performing offer and acceptance in front of witnesses, you both will become husband and wife again.
- In case of a new marriage, you will have the authority of only the third and final divorce, if it is ever given, then there is no way for return specified in Shariah by which you can marry again after formally settling it. Therefore, it is necessary to be very cautious.
اَلْجَوَابُ بِعَوْنِ الْمَلِکِ الْوَھَّابِ، اَللّٰھُمَّ ھِدَایَۃَ الْحَقِّ وَالصَّوَابِ
