As salaam alay kum,
I have two related question about divorce and would appreciate if you can please answer at your convenience:
Question 1. Divorce vow BEFORE marriage
Many months back I read a fatwa on some Hanafi website that if an un-married person makes divorce statement before marriage such as “Any woman I marry is divorced” or “if I marry XYZ then she is divorced” then according to Hanafi and Maliki sunni schools this man and his future wife will be automatically divorced as soon as he performs a nikkah!!
This was very disturbing to me so I tried to research further and found out that Shafaee and Hanbali schools do NOT count such statements to effect any divorce in a future marriage if they were made prior to performing of an actual nikkah.
But both sides have their supporting evidence even though seems like majority agrees that it will NOT be counted as divorce.
What is your opinion on this issue from the pure Quranic perspective ONLY because Hanafis and Malikis both have supposedly different hadiths to support their opinion? I will list the fatwas below for your reference so you know what information I have received on this issue.
What troubles me the most is that how come scholars like Abu Hanifa and Malik can go along in forming such opinions that go against the spirit of our religion?
Question 2. Repeating divorce statements to self due to strong thoughts about divorce
Due to reading so many fatwas on divorce etc I feel I have been suffering from these constant thoughts about divorce now. Not sure if this is called WASWASAH in Islamic terminology.
At times I start to repeat divorce related statements to myself in my mouth and cant seem to stop the thinking process. I have no intention to say these statements whatsoever. Again, I have read that some Hanafi scholars go to the extreme (in my opinion) and say that if a person even moves his tongue in his mouth while repeating divorce statements then divorce will be effective and binding. When I repeat such statements in my mouth I have no audible sound coming out (even though my tongue moves and lips may move) but even a person standing right next to me will not be able to hear anything that I am repeating in my mouth. I am sure you will think I am just mentally sick even asking this question and may be I am. But I do need to know why such extremes are written in our books of fiqhs to an extent that a person like myself gets extremely sad about the condition of our religion and the extremes present in it due to opinions of various scholars and schools of thoughts. Lastly, do you feel that me repeating such divorce statements to myself (without audible sound) have any legal implications? I hope Allah forgives me as I do not have any desire or intention to say these statements in first place.
Thank you for your time.
Allah hafiz,
REFERENCES
—- HANAFI FATWA about Divorce before marriage —————
If a person makes the following statement, “If I marry so and so, she is divorced” or, “Any woman I marry is divorced”, talaaq will automatically take place after marriage according to the Hanafi school of thought. This is also the mazhab of Mujahid, Salim Ibn Abdillah and Zuhri (Rahimahumullah)These jurists have based their opinion on the following Aathaar(narrations)
1) Abdullah Ibn Umar used to say, ” When a man says, when I marry so and so,she is divorced’ then it will be so (i.e. talaaq will take place) when he marries her. If he divorces her once, twice or thrice then it will take place as he said”. (I’laa us Sunan, Hadith: 3285)
2) When a similar issue was mentioned to Aswad Ibn Yazeed, he opined that no talaaq takes place. Thereafter he asked the Ulama of Hijaz regarding the same mas’alah and they also opined that no talaaq takes place. Thereafter the matter was presented to Abdullah Ibn Mas’ood and he had opined that talaaq takes place. (I’laa us Sunan, Hadith 3286)
3) Imam Zuhri had once mentioned that if a person says, “Every woman I marry is divorced”, talaaq will automatically take place. So his contemporary Ma’amar objected to it and said,” Is it not mentioned in the Hadith that there is no divorce before marriage?” Imam Zuhri replied,” that hadith refers to a person who said the wife of so and so is divorced”. (Whereas she is not the wife of the person who uttered these words) (I’laa us Sunan,Hadith: 3287)
It is evident from the above quoted narrations that the Hanafi jurists did not simply “make up” this mas’alah, rather, their viewpoint is based on the Aathaar of Sahabah and Tabi’een (Rahimahumullah)The Hanafi jurists interpret the Hadith, “There is no divorce before marriage” and other Ahadith that are similar to it to mean that talaaq cannot take place before marriage, instead, talaaq can only occur after marriage. (Mirqaatul Mafateeh, I’laa us Sunan, Pg 222-224, Vol: 11, Darul Kutubil Ilmiyyah)
And Allah knows best
Wassalam
Ml. Suhail Tarmahomed,
Student Darul Iftaa
Checked and Approved by:
Mufti Ebrahim Desai
Darul Iftaa, Madrassah In’aamiyyah
— OTHER FATAWA that says No Divorce will happen if statement was made before marriage ———
Among the evidence that there is no divorce before marriage (nikaah) are the following reports:
1. The hadeeth of ‘Abd-Allaah ibn ‘Amr (may Allaah be pleased with him),who said: “The Messenger of Allaah (peace and blessings of Allaah be upon him) said: ‘There is no vow for the son of Adam with regard to that which he does not possess; there is no setting free of (a slave) whom he does not possess; there is no divorce of (a wife) whom he does not possess.” (Reported by al-Tirmidhi).
2. The hadeeth of ‘Abd-Allaah ibn ‘Amr (may Allaah be pleased with him), who reported that the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “No divorce except of (the wife) whom you possess; no setting free except of (the slave) whom you possess, and no selling except of (the goods) that you possess.” (Reported by Abu Dawood).
3. The hadeeth of Ibn Makhramah from the Prophet (peace and blessings of Allaah be upon him), who said, “No divorce before marriage, and no setting free before taking possession.” (Reported by Ibn Maajah).
4. Imaam al-Bukhaari (may Allaah have mercy on him) said in his book al-Jaami’ al-Saheeh: Chapter: there is no divorce before marriage. Allaah says (interpretation of the meaning): “O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no ‘iddah have you to count in respect of them. So give them a present, and set them free, i.e., divorce in a handsome manner.” [al-Ahzaab 33:49]. Ibn ‘Abbaas said: “Allaah made divorce after marriage.”
5. Al-Bayhaqi (may Allaah have mercy on him) stated that the majority of the Sahaabah and Taabi’een understood from these texts (i.e. above mentioned hadiths on divorce before marriage) that if a man says, “If I marry So and so then she is divorced,” then he marries her, no divorce takes place, because he issued a conditional divorce and said it at a time when she was not his wife. This was narrated from him by al-Haafiz in Fath al-Baari.
6. Ibn ‘Abbaas (may Allaah be pleased with him) was asked about a man who said: “Every woman whom I marry will be divorced.” He said: It is of no significance, because Allaah says (interpretation of the meaning): “O you who believe! When you marry believing women, and then divorce them .” [al-Ahzaab 33:49].
7. Ibn Khuzaymah also narrated that he [Ibn ‘Abbaas] was asked about a man who said: “If I marry So and so then she will be divorced.” He said: It is of no significance, because only the one who is married to a woman can divorce her.
Following are some major scholars who are of the opinion that no divorce will take place in future marriage by any such statements if they were uttered while the man was still un-married:
Jurists like Sufyaan Bin ‘Uyaynah, Abdul Rahman Bin Mahdi, Imam Shafi’i,Imam Ahmed Bin Hanbal, Ishaaq, Abu Thawr, Daud and Muhammad Bin Jarir Tabarai hold the above view
Answer
Assalamo Alaikum
The fact that a foolish statement made before Nikah would have no implications whatsoever on the actual Nikah when it takes place is borne out by the fact such foolishness has not even been mentioned in the Quran. There are two other foolish practices relevant to Talaq mentioned in the Quran and both are dealt with in detail. Both practices have to do with acts done after the Nikah. How can a statement made even before a serious contract took place be effective? Is a bride a toy that her life could be made miserable simply because of a statement made by her husband at a time when he wasn’t even her husband? What is then the purpose of the elaborate law of divorce mentioned in the Quran that requires a husband to make sure that he keeps his divorced wife at his home for around three months before he departs her? If this relationship was to be so brittle that a statement made even before marriage could break it then what was the purpose of going through such a long process to terminate it even when the husband was prepared to make a clear statement that he wanted to divorce his wife?
I think it should not be one of your worries to bother about the fact that a certain view was given by a great scholar. We respect scholars for their scholarship and piety but we are not bound to follow anyone blindly. When you find an understanding clearly written in the Quran, be sure that that’s the right Islamic opinion on the issue. We would carefully consider what scholars have to say. But if their opinion on an issue is not supported by
sound religious arguments, we will not accept their opinion but would continue to respect them.