Fatwa: # 17866
Category: Divorce
Country: South Africa
Date: 23rd April 2009

Title

Is the talaq valid when it is given during the menses however when the husband gave the divorce he did not know about it. Now the husband denies that he gave...

Question

I need an answer immediately because i don't want to live in sin.

Is the talaq valid when it is given during the menses however when the husband gave the divorce he did not know about it. Now the husband denies that he gave two talaqs and want to get back in this case if wife does not respond the way husband wanted is the rujoh is done or both husband and wife needed to be on same page or consumate.

It is three months now and wife need to know if rujooh happened or not. so she can live in the house without thinking that divore is happeved

Answer

In the name of Allah, Most Gracious, Most Merciful


Assalaamu `alaykum waRahmatullahi Wabarakatuh

 

There are three aspects to your query:

1.      Talaaq given in menses

2.      Husband denying giving Talaaq

3.       Husband making Rujooh and wife not consenting

The answers are given as follows:

1.      Talaaq issued during menses will be effective, whether the husband was aware of the menses or not.

وإذا طلق الرجل امرأته في حالة الحيض وقع الطلاق (فتح القدير ،مكتبه رشيديه، ص 338،ج3 )

 

2.      If the wife heard that the husband issued her a Talaaq, or she was informed by a reliable witness of the same, and the husband denies it, It will not be permissible for her to grant access to her husband over her.

 

 

والمرأة كالقاضي إذا سمعته أو أخبرها عدل لا يحل له تمكينه {رد المحتار ج3 ص251 سعيد}

فتاوي رحمية ج8 ص283\268}

 

 

3.      If the husband makes Rujooh verbally, for example he says I take you back as my wife etc. it will take place irrespective of the wife’s reaction. Consummation is not a condition for the validity of Rujooh. Also if the wife did not positively respond to the husband in consummation, the Rujooh will be valid.

قوله وتصح في العدة إن لم يطلق ثلاثا ولو لم ترض         (بحر الراحق ص50، ج4)

The Rujooh will only be valid during Iddat. If her Iddat terminated, it will not be valid. If the spouses want to reconcile, a new Nikah will need to be made.

إذا طلق الرجل امرأته تطليقةً رجعيةً أو تطليقتين فله أن يراجعها في عدتها، رضيت بذلك أو لم ترض.

(فتح القدير ،مكتبه رشيديه، ص 14،ج4 )

And Allah knows best

Wassalamu Alaikum

Ml. Mohammed Moola,
Student Darul Iftaa

Checked and Approved by:

Mufti Ebrahim Desai
Darul Iftaa

DISCLAIMER - AskImam.org questions
AskImam.org answers issues pertaining to Shar'ah. Thereafter, these questions and answers are placed for public view on www.askimam.org for educational purposes. However, many of these answers are unique to a particular scenario and cannot be taken as a basis to establish a ruling in another situation or another environment. Askimam.org bears no responsibility with regards to these questions being used out of their intended context.
  • The Shar's ruling herein given is based specifically on the question posed and should be read in conjunction with the question.
  • AskImam.org bears no responsibility to any party who may or may not act on this answer and is being hereby exempted from loss or damage howsoever caused.
  • This answer may not be used as evidence in any Court of Law without prior written consent of AskImam.org.
  • Any or all links provided in our emails, answers and articles are restricted to the specific material being cited. Such referencing should not be taken as an endorsement of other contents of that website.
The Messenger of Allah said, "When Allah wishes good for someone, He bestows upon him the understanding of Deen."
[Al-Bukhari and Muslim]