Divorce

موضوع: Divorce 26/7/2010, 08:34

Divorce

2507. * A man who divorces his wife must be adult and sane, but if a boy
of ten years of age divorces his wife, precaution must be exercised.
Similarly, a man should divorce of his own free will, therefore, if
someone compels him to divorce his wife, that divorce will be void. It
is also necessary that a man seriously intends to divorce; therefore, if
he pronounces the formula of divorce jokingly, the divorce will not be
valid.

2508. It is necessary that at the time of divorce, wife is Pak from
Haidth and Nifas, and that the husband should not have had ***ual
intercourse with her during that period.

2509. * It is valid to divorce a woman even if she is in Haidh or Nifas in the following circumstances:

(i) If the husband has not had ***ual intercourse with her after marriage.

(ii) If it is known that she is pregnant. And if this fact is not known
and the husband divorces her during Haidh, and he comes to know later
that she was pregnant, that divorce will be valid, and as a recommended
precaution he should divorce her again.

(iii) If due to the husband's absence or imprisonment, he is not able to
ascertain whether or not she is Pak from Haidth or Nifas. But in this
case, as an obligatory precaution, man must wait for at least one month
after separation from his wife and then divorce.

2510. If a man thinks that his wife is Pak from Haidh and divorces her,
but it transpires later that at the time of divorce she was in the state
of Haidh, the divorce is void. And if he thinks that she is in the
state of Haidh and divorces her, and it is later known that she was Pak,
the divorce is in order.

2511. * If a person who knows that his wife is in Haidh or Nifas, is
separated from her, like when he proceeds on a journey, and wishes to
divorce her, he should wait till such time when he becomes sure that his
wife must have become Pak from her Haidh or Nifas. Thereafter, having
known that she is Pak, he can divorce her. And if he is in doubt he will
act according to rule no. 2509 for precaution.

2512. * If a man who is separated from his wife wishes to divorce her
and can acquire information as to whether or not she is in the state of
Haidh or Nifas, even if that information is ****d on her habit, or any
other signs known in Shariah, if he divorces her and later finds out
that his information was wrong, the divorce will be void.

2513. * If a man has ***ual intercourse with his wife during her Pak
period, and then wishes to divorce her, he should wait till she enters
into Haidh again and becomes Pak. But if the wife has not completed her
ninth year, or if she is pregnant, she can be divorced after the ***ual
intercourse. The same rule applies to a wife in menopause. The meaning
of menopause has been explained in rule no. 2457).

2514. * If a person has ***ual intercourse with a woman during her Pak
period and divorces her during the same period, and if it transpires
later that she was pregnant at the time of divorce, the divorce will be
void. As a recommended precaution, he should divorce her again.

2515. * If a person had ***ual intercourse with his wife during her Pak
period, and then separated from her, like, if he proceeded on journey
and wishes to divorce her then, not knowing whether she is Pak or not,
he should wait till such time when the wife enters into the state of
Haidh and becomes Pak once again. And, as an obligatory precaution, this
period should not be less than one month.

2516. * If a man wishes to divorce his wife who does see blood of Haidh
at all by habit, or because of some disease, while other women of her
age habitually see Haidh, he should refrain from having ***ual
intercourse with her for three months from the time he has had the
intercourse, and then divorce her.

2517. * It is necessary that the formula of divorce is pronounced in
correct Arabic using the word "Taliq"; and two just ('Adil) persons
should hear it. If the husband wishes to pronounce the formula of
divorce himself and his wife's name is, for example, Fatima, he should
say: Zawjati Fatima taliq (i.e. my wife Fatima is divorced) and if he
appoints another person as his Wakil to pronounce the formula of
divorce, the Wakil should say: Zawjatu muwakkili Fatima taliq (Fatima,
the wife of my client is divorced). And if the woman is identified, it
is not necessary to mention her name. And if the husband cannot
pronounce divorce in Arabic, or cannot find a Wakil to do so, he can
divorce in any language using the words of the same meaning as in Arabic
formula.

2518. There is no question of of divorce in the case of a woman with
whom temporary marriage is contracted, for example, for one month or one
year. She becomes free when the period of her marriage expires or when
the man forgoes the period of her marriage by saying: "I hereby exempt
you from the remaining time of marriage", and it is not necessary to
have a witness nor that the woman should be Pak from her Haidh.
Iddah of Divorce (The Waiting Period after Divorce)

2519. A wife who is under nine and who is in her menopause will not be
required to observe any waiting period. It means that, even if the
husband has had ***ual intercourse with her, she can remarry immediately
after being divorced.

2520. * If a wife who has completed nine years of her age and is not in
menopause, is divorced by her husband after ***ual intercourse, it is
necessary for her to observe the waiting period of divorce. The waiting
period of a free woman is that after her husband divorces her during her
Pak period, she should wait till she sees Haidh twice and becomes Pak.
Thereafter, as soon as she sees Haidh for the third time, her waiting
period will be over and she can marry again. If, however, a husband
divorces his wife before having ***ual intercourse with her, there is no
waiting period for her and she can marry another man immediately after
being divorced, except if she finds traces of her husband's semen in her
private part, then she should observe Iddah.

2521. If a woman does not see Haidh in spite of being the age of women
who normally see Haidh, if her husband divorces her after ***ual
intercourse, she should observe Iddah for three months after divorce.

2522. * If a woman whose Iddah is of three months, is divorced on the
first of a month, she should observe Iddah for three lunar months, that
is, for three months from the time the moon is sighted. And if she is
divorced during the month, she should observe Iddah for the remaining
days in the month added to two months thereafter, and again for the
balance from the fourth month so as to complete three months. For
example, if she is divorced on the 20th of the month at the time of
sunset and that month is of 29 days, she should observe Iddah for nine
days of that month and the two months following it, and for twenty days
of the fourth month. In fact, the obligatory precaution is that in the
fourth month, she should observe Iddah for twenty one days so that the
total number of the days of the first month and the fourth month comes
to thirty.

2523. * If a pregnant woman is divorced, her Iddah lasts till the birth
or miscarriage of the child. Hence, if, for example, she gives birth to a
child one hour after being divorced, her Iddah is over. But this is in
the case of a legitimate child of the husband who is divorcing. If the
pregnancy is illegitimate, and her husband divorces her, the Iddah will
not be over.

2524. * If a woman who has completed nine years of age, and is not in
menopause, contracts a temporary marriage, for example, if she marries a
man for a period of one month or a year and the period of her marriage
comes to an end, or her husband exempts her from the remaining period,
she should observe Iddah. If she sees Haidh, she should observe Iddah
for two periods of Haidh, and cannot marry again during that period. But
if she does not see Haidh, then she should refrain from marrying
another man for forty five days. And if she is pregnant, she should
observe Iddah till the birth or miscarriage of the child, or for forty
five days and as a recommended precaution, she should wait for whichever
period is longer.

2525. The time of the Iddah of divorce commences when the formula of
divorce is pronounced, irrespective of whether the wife knows about it
or not. Hence, if she comes to know after the end of the Iddah that she
had been divorced, it is not necessary for her to observe Iddah again.
Iddah (Waiting Period) of a Widow

2526. If a woman is free and is not pregnant and her husband dies, she
should observe Iddah (the waiting period) for four months and ten days,
that is, she should not marry during that period even if she has entered
into menopause or her husband had contracted temporary marriage with
her, or he may not have had ***ual intercourse with her. If, however,
she is pregnant, she should observe the waiting period till the birth of
the child. But if the child is born before the end of four months and
ten days from the death of her husband, she should wait till the expiry
of that period. This period is called the waiting period after death
(Iddatul Wafat).

2527. It is haraam for a woman who is observing the Iddah of death to
wear brightly coloured dress, or to use surma and to do any such act
which is considered to be an adornment.

2528. * If a woman becomes certain that her husband has died, and
marries another man after the completion of Iddah of death, and later on
learns that her husband had died later, she should separate herself
from her second husband. And as a precaution, if she is pregnant, she
should observe Iddah of divorce for the second husband till she gives
birth to a child, and should thereafter observe Iddah of death for the
first husband. But if she is not pregnant, she should first observe
Iddah of death for her first husband and thereafter she should observe
Iddah of divorce for the second husband.

2529. * The Iddah of death begins, in the situation when the husband has
disappeared or is absent, when the wife learns of his death, and not
from the time when he actually died. But this rule does not apply to a
wife who has not attained the age of Bulugh, or if she is insane.

2530. * If a woman says that her Iddah is over, her word can be accepted
unless she is known to be unreliable, in which case, her word will not
be accepted. For example, if she claims to have seen blood three times
in the month, her claim will not be trusted, except when her women
relatives confirm that it is her habit.
Irrevocable and Revocable Divorce

2531. * Irrevocable divorce means that after the divorce, the husband is
not entitled to take back his wife, that is, he is not entitled to take
her as his wife without Nikah. This divorce is of five kinds, namely:

(i) The divorce of a woman who has not completed nine years of age.

(ii) The divorce of a woman who is in menopause.

(iii) The divorce of a woman whose husband has not had ***ual intercourse with her after their marriage.

(iv) The third divorce of a woman who has been divorced three times.

(v) The divorce called Khul'a and Mubarat.

(vi) The divorce by intervention of Mujtahid, in the case of a wife
whose husband is neither prepared to maintain her nor to divorce her.

Rules pertaining to these kinds of divorces will be detailed later.
Divorces other than these are revocable, in the sense that as long as
the wife is observing Iddah her husband can take her back.

2532. * When a person has given revocable divorce to his wife, it is
haraam for him to expel her out of the house in which she was residing
at the time of divorce. However, in certain cases, like, when she has
committed fornication or adultery there is no harm in expelling her.
Also, it is haraam for the wife to go out of the house unnecessarily,
without her husband's permission.
Orders Regarding Return (Ruju')

2533. * In the case of a revocable divorce a man can take back his wife in two ways:

(i) By telling her words which would mean that he wants her again as his wife.

(ii) By acting in a manner which would convey his intention to take her back.

And taking her back will be established by ***ual intercourse although
the husband may not have intended it. But touching, kissing, with or
without intention of taking her back is not sufficient.

2534. It is not necessary for taking her back that the husband should
call any person to witness, or should inform his wife. On the other hand
if he takes her back without any one else realising this, the Ruju' is
in order. However, if the husband claims after the completion of Iddah
that he took his wife back during Iddah, he must prove it.

2535. * If a person who has given revocable divorce to his wife takes
some payment from her, making a compromise with her that he will not
make Ruju' to her, though this compromise is valid and it is obligatory
on him not to 'return', yet he does not forfeit the right to 'return'.
And if he 'returns' to her, the divorce given by him does not become the
cause of their separation.

2536. * If a man divorces a woman twice and takes her back, or divorces
her twice and takes her back by Nikah, or takes her back after one
divorce and returns her by Nikah after the second divorce, she becomes
haraam for him after the third divorce. But if she marries another man
after the third divorce, she becomes halal for the first husband on
fulfilment of five conditions, that is, only then he can remarry her:

(i) The marriage with the second person should have been of permanent
nature. If he contracts with her a temporary marriage for one month or a
year, and then separates from her, the first husband cannot marry her.

(ii) The second husband should have had ***ual intercourse with her, and
the obligatory precaution is that the ***ual intercourse should have
taken place in the normal way.

(iii) The second husband divorces her, or dies.

(iv) The waiting period (Iddah) of divorce or Iddah of death of the second husband should have come to an end.

(v) On the basis of obligatory precaution the second husband should have been Baligh at the time of intercourse.
Khula' Divorce or Talaqul Khula'

2537. * The divorce of a wife who develops an aversion from husband and
hates him, and surrenders to him her Mahr or some of her property so
that he may divorce her, is called Khula' Divorce. The hatred must have
reached a proportion where she would not allow him conjugal rights.

2538. If the husband himself wishes to pronounce the formula of Khula'
divorce and his wife's name is, say, Fatima, he should say after
receiving the property: "Zawjati Fatimatu Khala'tuha 'ala ma bazalat"
and should also say as a recommended precaution: "Hiya Taliq" i.e. "I
have given Khula' divorce to my wife Fatima in lieu of what she has
given me, and she is free'. And if the wife is identified, it is not
necessary to mention her name in Talaqul Khula' and also in Mubarat
Divorce.

2539. If a woman appoints a person as her representative to surrender
her Mahr to her husband, and the husband, too, appoints the same person
as his representative to divorce his wife, and if, for instance, the
name of the husband is Muhammad and the name of the wife is Fatima, the
representative will pronounce the formula of divorce thus: "An
muwakkilati Fatimah bazalat mahraha li muwakkili Muhammad li Yakhla'aha
'alayh". Then he says immediately: "Zawjatu muwakkili khala'tuha 'ala ma
bazalat hiya Taliq".

And if a woman appoints a person as her representative to give something
other than Mahr to her husband, so that he may divorce her, the
representative should utter the name of that thing instead of the word
"Mahraha" (her Mahr). For example, if the woman gives $500 he should
say: bazalat khamsa mi'ati Dollar".
Mubarat Divorce

2540. * If the husband and the wife develop mutual aversion and hatred
and the woman gives some property to the man so that he may divorce her,
this divorce is called 'Mubarat'.

2541. * If the husband wishes to pronounce the formula of Mubarat, and
for example, his wife's name is Fatima he should say: "Bara'tu zawjati
Fatimah 'ala ma bazalat". And as an obligatory precaution, he must add:
"Fahiya Taliq", that is "my wife Fatima and I separate from each other
in consideration of what she has given me. Hence, she is free." And if
he appoints someone as his representative, the representative should
say: "An qibali muwakkili bara'tu zawjatahu Fatimata 'ala ma bazalat
Fahiya Taliq". And in either case, if he says: "bima bazalat" instead of
the words "'ala ma bazalat" there is no harm in it.

2542. * It is necessary that the formula of Khula' or Mubarat divorce is
pronounced in correct Arabic. And if that is not possible, then the
rule explained in 2517 will apply. However, if for the sake of giving
her property, the wife says in English or any language that: "I give you
such and such property in lieu of divorce" it will be sufficient.

2543. If during the waiting period of Khula or Mubarat divorce the wife
changes her mind and does not give her property to the husband, he can
take her back as a wife without Nikah.

2544. The property which the husband takes in Mubarat divorce should not
exceed the Mahr of the wife. But in the case of Khula' divorce, there
is no harm if it exceeds her Mahr.
Various Rules Regarding Divorce

2545. If a man had ***ual intercourse with a non-mehram woman under the
impression that she was his wife, the woman should observe Iddah,
irrespective of whether she knew that the man was not her husband or
thought that perhaps he was her husband.

2546. * If a man commits fornication with a woman knowing that she is
not his wife, it is not necessary for the woman to observe Iddah. But if
she thought that the man was probably her husband, as an obligatory
precaution, she should observe Iddah.

2547. * If a man seduces a woman so that her husband decides to divorce
her and then she can marry him, the divorce and marriage are in order,
but both of them have committed a major sin.

2548. * If a woman lays a condition at the time of Nikah that if her
husband goes on a journey or, for example, does not give her maintenance
for six months, she will have the right of divorce, the condition is
void. However, if she lays a condition that if her husband goes on a
journey or, for example, does not give her maintenance for six months,
she will be his Wakil for her own divorce, the condition is in order.

2549. If the husband of a woman disappears and she wishes to marry
another man, she should approach an 'Adil Mujtahid and act according to
his directive.

2550. The father and the paternal grandfather of an insane man can divorce his wife.

2551. If the father or paternal grandfather of a child contracts a
temporary marriage between him and a woman, and a part of the period
fixed for the marriage covers some of the time when the child will have
attained the age of bulugh, for example, if he contracts the marriage of
a fourteen years old boy for a period of two years - he (the father or
the paternal grandfather of the child) can exempt the woman from a part
of the period of marriage if doing so, is in the interest of the child,
but he cannot divorce the child's permanent wife.

2552. If a man considers two person to be just ('Adil) according to the
standard prescribed in Shariah, and divorces his wife in their presence,
another person to whom their being 'Adil is not proved can, after the
expiry of that woman's Iddah, marry her or give her in marriage to
another person, although the recommended precaution is that he should
not marry her nor should he give her in marriage to someone else.

2553. If a person divorces his wife without informing her, and he
continues to maintain her the way he did when she was his wife, and
after a year tells her that he divorced her a year ago, and also proves
it, he can take back from her the things which he supplied her during
that period if she has not used them up, but he cannot demand from her
the things which she has already expended

الموضوع الأصلي : Divorce الكاتب : AlexaLaw المصدر : منتديات عالم القانون

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