Q159 :Having tried hard to discipline his wife,
without much success, a man writes down what he wants her to do. He
gives her that paper after he has written clearly at the bottom of it:
“Disobedience of these instructions would be tantamount to divorce.”
She nevertheless disobeys his instructions and he immediately stops his
marital relationship with her. Is she actually divorced? Do they
require a remarriage, if they wish to resume their marital
relationship?
A159 : Islam views marriage and divorce very
seriously. The Prophet says that there are three matters which must be
taken seriously, whether they are said in earnest or jest. These are:
“marriage, divorce and freeing of a slave.” If we reflect for a moment
on this wisdom of making all talk on the freeing of slaves serious, we
understand how much Islam cares for the feelings of those who are in a
position which makes them vulnerable to abuse by other people. Let us
imagine for a moment a slave whose master tells him that he would be
free after three days or when he has netpleted a particular assignment,
etc. Then three days later, or on the netpletion of the assignment, the
master tells the slave that he was only joking and that he did not
expect him to take his words seriously. The slave would be
broken-hearted and he could easily harbor ill feelings toward his
master. Now that slavery has disappeared, thanks to Allah, such a
cruelty does not take place. We can appreciate, however, how Islam
cares for the feelings of those who are vulnerable. As we all know,
Islam has allowed divorce because it is needed as a solution for social
problems. However, a husband who wishes to divorce his wife must abide
by the rules which Allah has laid down, and the Prophet has explained
and elaborated, for the divorce to be proper and valid. For example, a
husband must make sure that the time is appropriate for him to divorce
his wife. It is forbidden for a man to divorce his wife when she is in
her menstruation period or after they had sexual intercourse during a
period of cleanliness from menstruation. It is also forbidden to
divorce her three times on the same occasion. But hardly any divorcing
husband pauses to consider whether the time is right for him to
divorce. The majority of people tend to think that unless they
pronounce the word of divorce three times, the divorce is not valid.
They thus hasten to utter something which Allah has forbidden. They
earn his displeasure and land themselves in trouble. When the Prophet
was told that a man divorced his wife three times together, he was very
angry. He said to his netpanions: “Is Allah’s book to be taken lightly
when I am still alive among you?” (Related by An-Nassaie). Abdullah ibn
Abbas reports that Rukana ibn Abd Yazeed divorced his wife three times
on the same occasion, and he was very sad for having done so. The
Prophet asked him: “How have you divorced her?” He answered: I have
divorced her thrice. The Prophet asked: “On the same occasion?” When
the man answered in the affirmative, the Prophet said: “That is a
single divorce. You may remarry her if you wish.” The Islamic system
does not allow for conditional divorce. Thus, if someone says to his
wife, “you are divorced in three months time, or at the end of the
year, or when I have arrived at my office, etc.” she continues to be
his wife at the end of the period he has specified or on his arrival at
his office. This is simply unacceptable as a way of divorce. Many
prominent scholars are of the view that a conditional divorce is not
valid. The family law of Egypt which has been based on the Islamic law,
does not recognize such a divorce. I am more inclined to the ruling
given by Imam ibn Taimiyah, that a conditional divorce is considered on
the basis of the circumstances of each case. When a man tells his wife
that she is divorced if she does something he specifies, then he will
have to answer a simple question: would he prefer to see his marriage
terminated rather than see his wife do what he told her not to do? Or
was he simply using the threat of divorce in order to frighten her into
obeying his instructions? If he says that his statement was only meant
as a warning, then no divorce takes place as a result of her
disobedience. On the other hand, if he insists that he meant his
statement as divorce, because he would rather divorce her than see her
doing what she did, then that is a divorce. In this latter case, the
man has clearly meant his words to be a divorce. Hence, the divorce
takes place. This means that each case is treated on its merits and
according to the intention of the husband. [If we apply this rule to
the case in question, the husband should judge his intentions at the
time he wrote the note and nete to his own conclusion.]
Our Dialogue ( Source : Arab News – Jeddah )