Is Menacing Divorce Valid?
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Is Menacing Divorce Valid?

Questioner

Sabri

Reply Date

Oct 06, 2018

Question

A man threatened his wife saying, “If you visit so-and-so, then you are divorced!” Actually, he did not mean to divorce her, but he just wanted to strictly prevent her from visiting the person. So, if she visits the person, is the divorce valid?

Mufti

Answer


Is Menacing Divorce Valid?

In the Name of Allah, Most Gracious, Most Merciful. 

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.


In this fatwa:

If he just wanted by such a conditional divorce to strictly prevent his wife from visiting such a person, then the divorce is invalid, for it was pronounced as a threat.


Responding to the question, Dr. `Ugail Jasem An-Nashmi, professor of Islamic jurisprudence in Kuwait, states the following: 

The husband should be patient with his wife especially when he sees something in her that he disapproves and dislikes. The Prophet (peace and blessings be upon him) said: “Let a believing man not dislike a believing woman. If something in her is displeasing to him, another trait may be pleasing.” (Muslim)

While on the one hand, Islam requires the husband to be tolerant and patient with what he dislikes in his wife, on the other hand, it commands the wife to try to please her husband to the best of her ability.

According to the four schools of Islamic jurisprudence as well as the majority of Muslim scholars, divorce is valid whether it is fully expressed, such as saying to one’s wife, “You are now divorced”; or incompletely expressed, such as saying, “You are divorced after a month”; or conditionally expressed, such as saying, “You are divorced if you go to such-and-such place.”

Our opinion in this connection is the same as that of Ibn Taymiyah and Ibn Al-Qayyim as regards dependent divorce. They maintain that dependent divorce is of two kinds:

1- Conditional divorce

It is the divorce which is meant by the husband to be valid if the condition is fulfilled. Such a kind of divorce is deemed valid once the condition is fulfilled.

2. Menacing divorce 

It is the divorce which is NOT meant by the husband to be valid if the condition is fulfilled, but it is just meant to strictly emphasize that the wife do something or avoid doing something, or to strictly confirm something.

In this case, the husband is mostly unwilling to validate such a conditional divorce even if the condition is fulfilled.

Accordingly, such a kind of conditional divorce is deemed invalid, and it requires the ruling on perjury instead.

Hence, we say to the questioner that if he just wanted by such a conditional divorce to strictly prevent his wife from visiting such a person, then the divorce is invalid, for it was pronounced as a threat.

Moreover, it is worth mentioning that a lot of personal laws in a lot of Arab countries conform to this opinion, stating that only the fully-expressed divorce is valid, unlike the conditional divorce, incompletely-expressed divorce and menacing divorce, which are invalid.

Almighty Allah knows best.

Editor’s note: This fatwa is from Ask the Scholar’s archive and was originally published at an earlier date.




About Dr. `Ugail Jasem An-Nashmi

Professor of Shari`ah at the University of Kuwait

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