Divorce petition

Discussion in 'Hanafi Fiqh' started by AbdalQadir, Jul 28, 2011.

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  1. Umar99

    Umar99 Veteran

    I suppose you are talking about divorce. In the case of divorce, the waiting period is 3 menstrual cycles.

    If she is beyond menopause such that she no longer experiences menstruation then it is 3 months and likewise if she has not get begun menstruation due to young age.

    A pregnant woman waits until she gives birth.

    This is only with condition that the marriage was consummated or khalwah sahihah occurred, which means they were alone with no impediments to consummation.

    If these did not occur then there is no waiting period after divorce.
     
  2. Surati

    Surati Active Member

    is Iddah also according to the lunar calendar (4 months 10 days) if the husband has not passed away?
     
  3. AbdalQadir

    AbdalQadir time to move along! will check pm's.

    if he does not do ruju3, then it is a new marriage with a new mahr and new contract - not 'rest of the marriage' - although he still owns only 2 more pronouncements of divorce.

    -------

    question to those who know.

    man M1 marries woman W

    he pronounces one talaq - she goes through 3iddah - no ruju3

    woman leaves his marriage - she marries man M2, consummates marriage

    M2 dies/divorces - woman W completes 3iddah of M2

    W marries M1 again

    how many pronouncements does M1 have a right to now?

    a) 2 - because he only utilized one pronouncement during his first marriage with W

    OR

    b) 3 - since she had married M2 and consummated and gone through his 3iddah of death/divorce (thereby making it look like a halala situation)?

    --------------

    i ask because my post 17 is in the context of brother Aqdas' question that a man does not do ruju3 after one pronouncement, and the time period lapses, and he remarries with a new contract without the woman having married anyone else.
     
  4. AbdalQadir

    AbdalQadir time to move along! will check pm's.

    yes

    a man "owns" only 3 divorces with any one woman.

    if he divorces her once and there is no ruju3 and after 10 years he marries her again, he still will only own 2 divorces.

    once he uses up his 3 divorces, he can never marry the woman again unless there is tahleel/halala.

    this is my understanding. Allahu a3lam
     
  5. ma sha' Allah, shukran for this ya aba Hasan! jazakum Allah khayran
     
  6. abu Hasan

    abu Hasan Administrator

    another suggestion is: temporarily irrevocable and permanently irrevocable.

    ---
    because with a permanently irrevocable, the woman is forbidden, unless she remarries (consummates the marriage) and gets divorced or widowed and completes the waiting period.

    Allah ta'ala knows best.
     
  7. Aqdas

    Aqdas Staff Member

    so, let me see if i have got this right:

    are we calling it irrevocable, even if it's one pronouncement, because if the waiting period passes without ruju', then if the man was to remarry her with a new nikah, that earlier one pronouncement still stands can never be wiped clean, i.e. he now only has two pronouncements left for the rest of their marriage?
     
  8. abu Hasan

    abu Hasan Administrator

    i don't know, but can baynunah sughra and baynunah kubra be termed as: flexibly irrevocable and rigidly irrevocable?

    following the other description: khafifah and ghaliZah?

    wAllahu ta'ala a'alam.
     
  9. abu Hasan

    abu Hasan Administrator

    a written divorce is a valid divorce and is effected from the time of writing (unless it is with a rider, like: when this writing reaches you, or when you read this and so forth)

    ---
    as for the original question of intending ONE divorce and written divorce, if he says it is irrevocable, according to imam shafiyi, it is raj'yi even if he qualifies it as bayin [durr al-mukhtar]

    but according to hanafis, it is ONE baayin. [radd al-muhtar] even some implicit words will make it baayin, which are indicative of baayin.

    for example, an implied divorce: 'you are in control of your own self' is considered baayin because, she cannot be in control of her self [with regards to divorce] except when she is out of his marriage. and when she is out of his wedlock, she is baayin.

    Allah ta'ala knows best.
     
  10. abu Hasan

    abu Hasan Administrator

    the brother, i assume, is translating 'baayin' [from baynunah=separation] as 'irrevocable' as opposed to raj'yi [both fat'H as in raj'yi, and kasr as in rij'yi are acceptable, but fat'H is more profound] which is revocable.

    irrevocable can be either minor or major, mentioned by fuqaha as baynunah sughra and baynunah kubra.

    ---
    in our madh'hab [and i suppose in also other madhahib], there are conditions when a divorce can be baayin, that requires remarriage, but does not require a halalah. this is baynunah sughra.

    that which requires halalah is baynunah kubra which is after three pronouncements.

    ---
    for example, when a woman is divorced (one pronouncement) prior to the marriage being consummated, the woman goes out of the nikah - this is Talaq bayin. and the usul is: because, raj'yi is possible within a waiting period - and since this marriage was not consummated, there is no waiting period.* and since the talaq pronounced was only one - the woman can be remarried with a new contract and dower (upon her agreement, and she has the right to refuse).

    or in the case of khula' (where a woman demands/requests a divorce in lieu of payment) which is considered as ONE bayin talaq. (even if the husband has not pronounced it, but agrees to khula') obviously, because without baynunah, she cannot marry another man.

    or in the case of a judge causing separation if a man is impotent or missing or in life-imprisonment and so forth.

    or in some cases of implicit divorce (kinayah)

    ----
    these notes above are very brief ones and please refer to fiqh/fatawa books for detailed explanations and illustrations.

    Allah ta'ala knows best.



    *even if there has been the meeting of spouses in seclusion (khalwah), as long as there is no consummation, this talaq does not require halalah (as long as it is not 3 pronouncements). if you say, that there is iddah/waiting period even when proper khalwah is proven; the answer is: this iddah is only to establish nasab - that is, to avoid any insinuations in the future; and is not valid for raj'ah.
     
    Last edited by a moderator: Jul 28, 2011
  11. How is 1 divorce 'irrevocable'?
     
  12. Junayd

    Junayd New Member

    With 1 irrevocable divorce, it is possible for husband and wife to unite again with a new contract.

    With 3 divorces this is impossible unless the wife performs shari halala i.e. marries an other man, has intercourse, divorces and after her waiting period she can marry her previous husband.
     
  13. abu Hasan

    abu Hasan Administrator

    so how is it different? or what are you trying to say?
     
  14. Abu Aleshba

    Abu Aleshba Active Member

    I apologise. It was unfair of me to ask this on a public forum. I had read a Q&A on Sunnipath but I dont trust them (their aqeedah) so I thought Id ask here. Local mufti it is then. Consider this the end of the matter.

    Salam
     
  15. Abu Aleshba

    Abu Aleshba Active Member

    JazakAllah Khair.
     
  16. Junayd

    Junayd New Member

    Brother, irrevocable means talaq al-ba'in, which means the marriage contract is broken immediately. Husband and wife are haraam for each other and can only be together if a new marriage contract is made.

    It does NOT mean 3 divorces are given.

    Please be careful with such stuff.
     
  17. abu Hasan

    abu Hasan Administrator

    such a grave issue should be given due consideration; instead of asking on a public forum, one should seek an answer from a qualified mufti in his/her locality. if you don't have a mufti around, i am sure, you can write to someone dependable somewhere around the world.
     
  18. Abu Aleshba

    Abu Aleshba Active Member

    Assalam Alaikum

    JazkAllah Khair.

    I just need to make this clear. It is the same divorce petition stating 'irrevocable'. Making the intention of 'one pronouncement' means 'one pronouncement' regardless of the term 'irrevocable' present.

    Would one have to inform the petitioner (the spouse) of this intention before signing?

    Thank you for your time.

    Assalam
     
  19. Aqdas

    Aqdas Staff Member

    a divorce in writing is a divorce. irrevocable means three pronouncements so the wife would not be halal until she does halala.

    one pronouncement.
     
  20. Abu Aleshba

    Abu Aleshba Active Member

    Salam

    I would appreciate if an Ulema could help me here.



    If one recieves a divorce petition asking if the respondant agrees that the marriage has broken down irrevocably. If the respondant signs the divorce petition does that constitute a full divorce Islamically?

    What if the respondant signs the divorce petition stating or intending it to be the first ( of 3) divorce pronouncements. Sharia wise would it be regarded as 1 pronouncement of divorce or a full divorce?

    JazakAllah in advance.

    Salam
     

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