Fatwa No : 83716
The Ruling on Divorce When the Wife Claims Three Divorces but the Husband Denies It

The Ruling on Divorce When the Wife Claims Three Divorces but the Husband Denies It

What do the esteemed Muftis say regarding the following issue that my marriage took place three years ago in Lahore. In October, I came to Karachi to stay at my mother’s house. A month later, my husband sent me a message on my mobile phone stating: “If you do not return by 16th November, then you are divorced from me.” Accordingly, I went with my father to my in-laws’ house and reached there on 15th November. However, when I informed everyone that my husband had already, a year and a half earlier, given me three divorces on two separate occasions, they told me that my divorce had already taken place. I also have a son who is now two months old; he was born after those two divorces. I had not previously disclosed the earlier two divorces to anyone. The reason I continued living with my husband was that I only knew that if divorce is pronounced three times on separate occasions, then the divorce becomes effective. When I had gone to Lahore, my husband had even obtained a fatwa in which he wrote that he had never previously divorced me. I am also sending you that fatwa. Therefore, I humbly request that you provide me with a ruling in light of the Qur’an and Sunnah. Note: The words of divorce used by my husband were: “I divorce you”, and he repeated these words three times.

الجوابُ حامِدا ًو مُصلیِّا ً

A Mufti does not possess knowledge of the unseen; he is bound to provide an answer based strictly on the question as presented. The ultimate responsibility for the truth or falsehood of the statement lies upon the questioner. With this introduction, it should be clarified that in the case under discussion, the woman claims that her husband has given her three divorces. She has no witness to the occasion, but she testifies that she herself heard the words of divorce being pronounced three times, and she is also willing to take an oath on this statement. The husband, however, denies issuing any divorce. In such a situation, when the woman states that she clearly heard the words of ṭalaq thalatha (three divorces) with her own ears, remembers it well, and her statement is in fact true that her husband did pronounce three divorces yet she has no witness to support her claim and the husband denies it, then if she is willing to take an oath and is prepared to bear responsibility for her statement in the Hereafter, she should, in light of the principle “al-mar’atu kal qadi”(“the woman herself is her own judge in such matters”), consider herself divorced with three divorces and must not allow her husband to have marital authority over her. However, if this matter were to be taken before a judge (Qadi, and the woman could not produce witnesses to prove her claim, then the Qadi would rule in favor of the husband (the defendant) on the basis of his oath, and against the wife, declaring that divorce has not occurred, and would send her back to him. In such a case, although she would not be sinful for complying with the court’s ruling, yet if she truly remembers having heard the three divorces from her husband, then as far as possible, she must not allow her husband authority over her until halala e shar‘iyyah takes place. Rather, she should separate from him through ṭalaq bil-maaal (divorce in exchange for money/compensation) or through khula.

مأخَذُ الفَتوی

كما في حاشية ابن عابدين: والمرأة كالقاضي إذا سمعته أو أخبرها عدل لا يحل له تمكينه. والفتوى على أنه ليس لها قتله، ولا تقتل نفسها بل تفدي نفسها بمال أو تهرب، كما أنه ليس له قتلها إذا حرمت عليه وكلما هرب ردته بالسحر. و في البزازية عن الأوزجندي أنها ترفع الأمر للقاضي، فإنه حلف ولا بينة لها فالإثم عليه. اهـ. قلت: أي إذا لم تقدر على الفداء أو الهرب ولا على منعه عنها فلا ينافي ما قبله. (3/ 251)۔