Another brother’s Question:
“As salaam alay kum,
I have two related question about divorce and would appreciate if you can please answer at your convenience:
Question 1. Divorce vow BEFORE marriage
Many months back I read a fatwa on some Hanafi website that if an un-married person makes divorce statement before marriage such as “Any woman I marry is divorced” or “if I marry XYZ then she is divorced” then according to Hanafi and Maliki sunni schools this man and his future wife will be automatically divorced as soon as he performs a nikkah!!
This was very disturbing to me so I tried to research further and found out that Shafaee and Hanbali schools do NOT count such statements to effect any divorce in a future marriage if they were made prior to performing of an actual nikkah.
But both sides have their supporting evidence even though seems like majority agrees that it will NOT be counted as divorce.
What is your opinion on this issue from the pure Quranice perspective ONLY because Hanafis and Malikis both have supposedly different hadiths to support their opinion? I will list the fatwas below for your reference so you know what information I have received on this issue.
What troubles me the most is that how come scholars like Abu Hanifa and Malik can go along in forming such opinions that go against the spirit of our religion?
Question 2. Repeating divorce statements to self-due to strong thoughts about divorce
Due to reading so many fatwas on divorce etc. I feel I have been suffering from these constant thoughts about divorce now. Not sure if this is called WASWASAH in Islamic terminology.
At times I start to repeat divorce related statements to myself in my mouth and can’t seem to stop the thinking process. I have no intention to say these statements whatsoever. Again, I have read that some Hanafi scholars go to the extreme (in my opinion) and say that if a person even moves his tongue in his mouth while repeating divorce statements then divorce will be effective and binding. When I repeat such statements in my mouth I have no audible sound coming out (even though my tongue moves and lips may move) but even a person standing right next to me will not be able to hear anything that I am repeating in my mouth. I am sure you will think I am just mentally sick even asking this question and maybe I am. But I do need to know why such extremes are written in our books of fiqhs to an extent that a person like myself gets extremely sad about the condition of our religion and the extremes present in it due to opinions of various scholars and schools of thoughts. Lastly, do you feel that me repeating such divorce statements to myself (without audible sound) have any legal implications? I hope Allah forgives me as I do not have any desire or intention to say these statements in first place.
Thank you for your time.”
(Question published as received)
In the name of Allāh, the Most Gracious, the Most Merciful
As-salāmu ‘alaykum wa-raḥmatullāhi wa-barakātuh
According to the Ḥanafī Madhhab, if an unmarried man says: “Any woman I marry is divorced” then the first woman he marries will be divorced (unless he made intention for all women), whoever he marries thereafter shall remain in his marriage.
Similarly, if an unmarried man says: “If I marry xyz, she is divorced”, divorce will take place when he marries the named woman; this would only be on the first occasion of marrying her, and if he marries her a second time, divorce will not take place.
As Muqallids of a Madhhab, our duty is to abide by the ruling of our Madhhab without searching further into its complexities. Hence, we advise you to stop self-researching and stick to following the ruling of the Ḥanafī Madhhab.
As for your statement: “What troubles me the most is that how come scholars like Abū Ḥanīfah and Mālik (raḥimahumallāh) can go along in forming such opinions that go against the spirit of our religion?”, that is indeed an ignorant statement and a fallacious claim to make. Verily, Allāh Ta‘ālā has preserved the Dīn through the knowledge of these erudite Fuqahā’. They certainly were aware of the verses of the Qur’ān, the Aḥādīth of our Beloved Messenger, Muḥammad (ṣallallāhu ‘alayhi wa sallam), and the spirit of our religion, Islām. They had a deep understanding of the Dīn and researched thoroughly before forming any opinion.
Your second question is unclear. What do you mean by divorce related statements? Do you address your wife with these statements? Kindly elaborate further.
And Allah Ta‘ālā knows best
(Mufti) Bilal al-Mahmudi
Mufti Zameelur Rahman
قال ابن مَازَةَ البخاري الحنفي (المتوفى: 616هـ): ولو قال: أيُّ امرأة أتزوّجها فهي طالق يقع على امرأة واحدة إلا إن نوى العموم، هكذا قيل، وكان ينبغي أن لا تصحّ نيّة العموم فيه؛ لأنَّ هذه الكلمة لا تحتمل العموم. (المحيط البرهاني. ج ٣، ص ٣٦٦. دار الكتب العلمية)
قال ابن نجيم المصري (المتوفى: 970هـ): ولو قال أي امرأة أتزوجها فهي طالق كانت على امرأة واحدة إلا أن ينوي جميع النساء. (البحر الرائق. ج ٤، ص ١٠. دار الكتاب الاسلامي)
قال ابن عابدين الدمشقي الحنفي (المتوفى: 1252هـ): لو قال: أي امرأة أتزوجها فهي طالق لا يقع إلا على امرأة واحدة كما في المحيط وغيره، بخلاف: كل امرأة أتزوجها نهر. والفرق أن لفظ كل للعموم ولفظ أي إنما يعم بعموم الصفة، لقولهم في: أي عبيدي ضربته فهو حر لا يتناول إلا واحدا لأنه أسند إلى خاص، وفي: أي عبيدي ضربك يعتق الكل إذا ضربوا لإسناده إلى عام. (رد المحتار. ج ٣، ص ٣٥٣. دار الفكر)
قال في العالمغيرية: قَالَ : إنْ تَزَوَّجْت فُلَانَةَ أَبَدًا فَهِيَ طَالِقٌ فَتَزَوَّجَهَا مَرَّةً فَطَلَقَتْ ثُمَّ إذَا تَزَوَّجَهَا أُخْرَى لَا يَقَعُ. (الفتاوى الهندية. ج ٩، ص ٢٦٠)