QUESTION:
What do the scholars of the Dīn and muftīs of the Sacred Law state regarding the following issue: A husband – Zayd – said to his wife – Begum – that if you go to Pakistan, then you are done from my end; having said this with the intention of divorce. The husband even acknowledged & admitted this, and so Begum went to Pakistan. This was all said in the airport, and the husband phoned later on saying not to come to me because he had let her go. Then Begum says that other than this occurrence, her husband actually called a relative during ‘Iddah and said that he has given three divorces to his wife. However, Begum does not have any witnesses to this; the husband is only admitting & acknowledging that he said that he is done, and this is the same thing he mentioned over the phone – that he has let her go. The husband is picking an oath claiming that he only gave one divorce, in the sense that he has let her go i.e. he did not give three divorces. This occurred seven months ago, and the ‘Iddah has passed by. What is the ruling at this current moment in time for such said case?
Questioner: Haider from UK
ANSWER:
بسم اللہ الرحمن الرحیم
الجواب بعون الملک الوھاب اللھم ھدایۃ الحق والصواب
In the above-mentioned case, one irrevocable divorce will have definitely occurred, and the Nikāh [marriage] has finished, because the husband used an indirect sentence i.e. you are done from my end – with the intention of divorce, and it is clear from the signs that here the word “done” has been used for divorce. Therefore, one irrevocable divorce has occurred, and the ‘Iddah is also complete, from which the woman is out of marriage from the husband. However, the wife is claiming a further two divorces, and the husband is denying such. In such case, it is essential that the wife – Begum – presents witnesses to the claim, and the husband – Zayd – needs to pick an oath. Just as it has been mentioned in Hadīth, wherein the Noble Prophet ﷺ stated that,
“البَيِّنَةُ عَلَى المُدَّعِي، وَاليَمِينُ عَلَى المُدَّعَى عَلَيْهِ”
“It is mandatory that the claimant provides witnesses and the respondent pick an oath.”
[Sunan al-Tirmidhī, vol 3, pg 617, Hadīth no 1341]
If the husband has picked an oath – just as has been mentioned in the question – then the husband is to be believed in what he is saying. Until the woman cannot provide witnesses according to Sharī’ah regarding the three divorces, and if she does not have any witnesses at all – just as it has been mentioned in the question – then the saying of the husband will be accepted, and only one irrevocable divorce will come about for his wife.
Just as the greatly respected Muftī Jalāl al-Dīn Amjadī, upon whom be mercy, writes in the answer to a question mentioned in Fatāwā Fayd al-Rasūl, that had Zayd (the husband) written [divorce], had it written or heard the subject [of divorce] and then had it written, the ruling of divorce will thereby not be issued regarding Khadījah (the wife) over Bakr[1] picking an oath, until witnesses as per Sharī’ah are established.
[Fatāwā Fayd al-Rasūl, vol 2, pg 109]
Furthermore, it is the saying of the husband which is accepted in the matter of divorce, just as it is stated in Bahār-e-Sharī’at that if the husband said that you are divorced when you give birth, and then the wife mentions that she has given birth, however the husband denies [that he has given her divorce], the divorce will be thereby established by two male witnesses or two females & one male.
[1] This would be referring to the relative whom Begum spoke with regarding the three divorces over the phone in the original scenario.
واللہ تعالی اعلم ورسولہ اعلم صلی اللہ علیہ وآلہ وسلم
کتبہ ابو الحسن محمد قاسم ضیاء قادری
Answered by Mufti Qasim Zia al-Qadri
Translated by Ustadh Ibrar Shafi
Read the original Urdu answer here: [Q-ID0825] My Husband told people he has divorced me but is now denying he said it, am I still his wife?
![[Q-ID0189] My Husband said ‘I divorce you’ three times, on different occasions. Has divorced occurred?](https://www.seekerspath.co.uk/wp-content/themes/hueman-pro/assets/front/img/thumb-medium-empty.png)
