Revoking a Divorce Issued Before Consummation of Marriage: Permissible?
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Revoking a Divorce Issued Before Consummation of Marriage: Permissible?

Questioner

Tijan

Reply Date

Sep 25, 2017

Question

As-Salamu alaykum. If a man issues one clear divorce to his wife before their marriage is consummated, can he revoke that divorce? What if the marriage has not been consummated, but the couple has been alone together?

Mufti

Answer


Revoking a Divorce Issued Before Consummation of Marriage Permissible

Wa `alaykum As-Salamu waRahmatullahi wa Barakatuh.

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:

1- If a divorce takes place before consummation and khalwah, it results in an irrevocable divorce, and there is no `iddah and the husband cannot revoke the divorce.

2- If divorce takes place before consummation but after khalwah, it again results in an irrevocable divorce, and the husband cannot revoke the divorce. However, in this case, the wife is obligated to observe the `iddah. 


In his answer to your question, Mufti Muhammad Ibn Adam Al-Kawthari, Director and researcher at the Institute of Islamic Jurisprudence (Darul Iftaa, www.daruliftaa.com), Member of the Al-Qalam Shari`ah Scholars Panel, and advisor on Islamic Banking, states:

In the case of a divorce taking place before consummation of marriage, the legal ruling needs to be understood in relation to two important matters:

1) The Waiting Period (`iddah)

a) If the marriage has not been consummated and neither has the couple been alone together (khalwa), and the husband pronounces one divorce, then there is no obligation upon the woman to observe the waiting period (`iddah).

Allah Most High says:

“O you who believe, when you marry believing women and then divorce them before you have touched them; then they have no obligation of any waiting period for you that you may count…..” (Al-Ahzab 33:49)

According to the Hanafi jurists, the statement “before you have touched them” refers to consummation (dukhul) as well as being alone together. As such, if both – consummation and being alone – did not take place, the woman is not obligated to observe the waiting period.

b) However, if the marriage was not consummated but the couple did remain alone together, then observing the waiting period is necessary.

It is stated in Al-Fatawa al-Hindiyya,

“The waiting period is necessary after being alone together (khalwah), regardless of the presence of a deterrent from having sexual intercourse or otherwise.…” (Al-Fatawa al-Hindiyya 1/306)

Imam Ibn `Abidin (Allah have mercy on him) states,

“In other words, being alone together (khalwah) – in this case – has the same implication as that of consummation. A woman divorced before consummation but after ‘Khalwah’ is also obligated to observe the waiting period.

As for being alone with a deterrent from having sexual intercourse – known as khalwah fasida – there is an opinion within the Hanafi School that `iddah is not necessary, but the reliable and mainstream position is that `iddah is necessary in this case also.” (See: Fatawa Mahmudiyya 13/382)

2) Revoking the Divorce (raj`ah)

Normally, when a divorce is pronounced in clear words after consummation of marriage, it results in a revocable (raj`i) divorce and, as such, the husband has a right of revoking the divorce/taking the wife back within the waiting period.

However, when a divorce is pronounced in clear words before consummation of marriage, it results in an irrevocable (ba’in) divorce and, as such, the husband does not have a right of revoking the divorce.

The woman may marry another man instantly after divorce, since – as explained in the first issue – she is not obliged to observe the waiting period.

As for being alone together, in this case it does not have the same implication as that of consummation. Accordingly, even if the couple had remained alone together, the divorce is still considered as irrevocable (ba’in).

Imam Badr al-Din al-`Ayni (Allah have mercy on him) states, “Consider that ‘being alone together’ has the same implication as that of consummation in relation to: [paying] the entire dower (mahr) and the obligation of the waiting period (`iddah), but not in relation to other than these two issues.

As such, if the man divorces her [even] after being alone together (khalwah), the divorce will be irrevocable.” (Al-Binaya)

Since the divorce is considered irrevocable even after khalwah, the husband will not have a right of revoking the divorce within the waiting period.

Imam Haskafi states in his Al-Durr al-Mukhtar, “Revoking the divorce is not valid in the waiting period after remaining alone together [without consummation].” (See: Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/37)

In conclusion, to answer your specific question, if a divorce takes place before consummation and khalwah, it results in an irrevocable divorce, and there is no `iddah and the husband cannot revoke the divorce. If divorce takes place before consummation but after khalwah, it again results in an irrevocable divorce, and the husband cannot revoke the divorce. However, in this case, the wife is obligated to observe the `iddah.

Almighty Allah knows best.




About Muhammad Ibn Adam Al-Kawthari

Director and researcher at the Institute of Islamic Jurisprudence (Darul Iftaa, www.daruliftaa.com), Member of the Al-Qalam Shari`ah Scholars Panel, and advisor on Islamic Banking

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