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talak

Last updated: 1st July 2006
Question ID: #2040
Short URL: http://qa.muftisays.com/?2040
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pervez
1st July 2006

 
hi can a talak given without intention and been forced be valid



Answer
Ulamaa
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Answer last updated on:
12th August 2006
Answered by:
Ulamaa ID 03
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Location: UK
In the Name of Allah, the Inspirer of Truth.
Assalamu Alaikum Warahmatullahi Wabarakatuh

We agree with the detailed explanation of Shaykh Mufti Muhammad Al-Kawthari in this regard:
In the name of Allah, Most Compassionate, Most Merciful,



According to the Hanafi School of Islamic law, a verbal divorce issued by the husband, even when he is forced, is considered to be valid and effective.


Imam al-Mawsili (Allah have mercy on him) states:


“The divorce issued by a person who is forced (mukrah) is effective….because he intended the divorce but did not want it to occur, thus he is similar to the one who pronounced the divorce in jest.” (al-Ikhtiyar li ta’lil al-Mukhtar, 2/154)


The great Hanafi jurist, Imam al-Haskafi (Allah have mercy on him) states:


“Divorce will occur when it is pronounced by a husband who has reached puberty (baligh) and is sane (aqil)…even if he is a slave or is forced, for divorce pronounced by a forced person is valid, but not his admittance to issuing a divorce (m: meaning, if one was forced to admit that he had divorced, then that will not be a valid admittance).” (See: Radd al-Muhtar, 3/235)


This ruling is based on the famous Hadith narrated by Sayyiduna Abu Hurayra (Allah be pleased with him) that the Messenger of Allah (Allah bless him & give him peace) said: “There are three things which, whether taken seriously or in jest, are treated as serious (and the effect of them occur in all circumstances): Marriage, divorce and taking one’s wife back (raj’a).” (Sunan Abu Dawud, no. 2188, Sunan Tirmidhi, no. 1184 & Sunan Ibn Majah, no. 2039)


Shaykh Zafar Ahmad al-Usmani (Allah have mercy on him) states in his exceptional work, I’la al-Sunan:


“In this (the above) Hadith, there is signification that the divorced pronounced by an individual in jest is valid, thus it implies that divorce will occur in every situation where the one pronouncing the divorce has a free will in speech (m: as opposed to someone who was overcome by sleep, insanity, etc where he has no will and no choice in his action), even though if he does not intend the outcome. Hence, an individual forced to pronounce a divorce is like the above, in that he utters the divorce with his free will but does not intend the outcome, as the one divorcing in jest does the same.” (I’la al-Sunan, 11/176-177)


Thus, a divorce pronounced by the husband when he is forced and compelled by his parents, friends or any other person will stand, regardless of the nature of force used.


Having said that, it is worth remembering that if one was forced into writing a divorce (and one did not utter divorce verbally), it will not be valid.


Allama Ibn Abidin (Allah have mercy on him) explains:


“In al-Bahr (m: name of a book) it is stated that the ruling (m: of divorce being effective) is when one is forced to pronounce the divorce verbally. Thus, if one was forced to write a decree of divorce to one’s wife and he did so, divorce will not occur…” (Radd al-Muhtar, 3/236)


Those who are unfortunately faced with the situation of being forced to divorce their wives despite their unwillingness to do so can use the abovementioned ruling as a means of avoiding divorce. They can avoid possible harm unto them selves and also divorcing their wife. But it should be remembered that any verbal utterance of divorce will be valid.


Now, this leaves us with the definition of “force (ikrah)” for it is imperative that we understand what is exactly considered a situation of being forced or compelled.


The jurists (fuqaha) state that there are two situations of force:


1) Extreme or complete force (mulji’)


2) Not so extreme or incomplete force (ghayr mulji’)


A complete level of force is when a person is threatened in a way that he fears loosing his life, limb of the body or he is threatened with excessive beating.


The incomplete level of force is when one is threatened with minor beating or being imprisoned. (See: Radd al-Muhtar, 6/129, kitab al-ikrah & al-Fatawa al-Hindiyya, 5/35)


It should be remembered that only the extreme and complete level of force will be effective in changing the ruling of divorce.


Thus, Imam al-Mawsili (Allah have mercy on him) states:


“If one is threatened with the striking of a whip or being imprisoned for a day or two, then that will not (legally) be considered as being forced.” (al-Ikhtiyar)


Imam al-Haskafi mentions in his Durr al-Mukhtar that there are four conditions for force to be effective in making a change:


a) The compeller has the power and means to enforce his threat,


b) The threat and the subsequent fear is at present and not in the future,


c) One is threatened in a way that he fears loosing his life or a limb of the body, or fears being saddened in such a way that it removes his content of doing that action,


d) The one forced does not carry out the action willingly from his heart. (See: Radd al-Muhtar, 6/129)


Therefore, if one was forced without actually being threatened with anything or one was threatened with minor beats, then this will not be considered a legal situation of force. Hence, a divorce written in such a situation will remain valid.


However, if one was threatened in a way that he risked loosing his life or an organ of the body, or he feared excessive punishment, then his written divorce will not come into effect.


Moreover, the jurists (fuqaha) have stated that an individual of respect and honour will be considered in a situation of legal “force” even in a lesser degree of force than that which was mentioned above.


Imam al-Haskafi (Allah have mercy on him) states:


“The nature of force changes from one individual to another, because reputable people become saddened (m: extremely as mentioned earlier) with even rough conversation, and disreputable people may not become so saddened except with excessive beating.” (See: Radd al-Muhtar, 6/129)


The same has been mentioned in Bahr al-Ra’iq, 8/71, al-Ikhtiyar, 2/105, Majma’ al-Anhur, 2/430 and other references. (See for more details on this: Fatawa al-Rahimiyya, 5/316)


The meaning of this is that if an individual is highly respected within the community, such as a religious scholar or a community leader, etc, and he is threatened with minor force, such as his wife holding him by the neck or screaming loudly demanding him to divorce her in the presence of other people in the community, etc, then in such a case, his written divorce will not come into effect. However, one should not take this as a blanket ruling, rather refer and take each individual case to a local scholar of knowledge and piety.


In conclusion, a verbal pronouncement of divorce is considered valid in the Hanafi School. However, a written divorce in a state of (legal) force will not come into effect.


In light of the above, your question has been answered, in that you were forced to pronounce the divorce. Thus, if you pronounced divorce three times, it will be valid, hence your marriage with your wife is over.


And Allah knows best


Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK

http://qa.sunnipath.com/issue_view.asp?HD=1&ID=3481&CATE=11


And Allah knows Best
Wa Alaykumussalaam Wa Rahmatullahi Wa Barakatuh

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