Talaq from a husband who has black magic

As discussed with you over the phone the person got married with his choice in UK and after 2 and half years of marriage they were not having kids so father in law went to three different muftis in bangladesh to find out the reason and all three of them said there is a bandish on your wife so you guys don’t have kids.

Once the jadoo was broken few months later wife got pregnant and everything was fine then at 41 weeks a normal baby died in womb. which prompted husband / wife to get it checked and this time again muftis checked and said there is a jadoo on both husband and wife to get divorce and make sure they are never happy in this marriage.

The jadoo was taken off from wife and jadoo from husband was on the process of being taken off and during that phase this situation happend.

Question: Husband has given one talaq (only one talaq) in extreme anger and was not sane when he said “I give you talaq”  now the question is since he is still being treated for the jadoo and he was extremely angry with no sense when he was doing it does this even ONE talaq counts as talaq out of three?

In the name of Allah, the most Beneficent, the most Merciful.

Answer

For talaq to occur, one of the conditions is that the person issuing the talaq must be sane and mature.  Imam Kasani (RA) has said “And amongst the conditions of Talaq is that he be sane, literally and figuratively.  The talaq of an insane person is not effected, nor that of an immature boy, who is not of an understanding age.”   (Badaius Sanai p.179 v.4)

Saaiduna Ali Radiallahu Anhu narrates that the Prophet of Allah Sallallahu Alahi Wasalam said, “there are three (persons) whose actions are not recorded: a sleeper until they awaken, a boy until he reaches puberty and an insane until they recover their mind.” (Sunan Abu Dawuud)

Sayyiduna Abu Hurairah Radiallahu Anhu narrates that the Prophet of Allah Sallallahu Alahi Wasalam said: “Every divorce is effected except the divorce of an insane person and the one who has lost his senses.” (Sunan Tirmidhi)

Sayyiduna Ali Radiallahu Anhu said: “Every divorce is effected except the divorce of the one who has lost his senses. (Sahih al-Bukhari)

If the black magic was so severe that a person was not aware of what he was doing or saying then based on the aforementioned hadiths talaq will not occur. Therefore, the talaq the husband gave would not be considered as one talaq from the three. (Raddul Muhtar p.451 v.4)

Finally, I would like to stress that Fatwas given by scholars and Imams are based on the apparent facts. If the husband however, had control in what he was saying then the talaq would occur and between himself and Allah one talaq would occur.

It is related from Umm Salama Radiallahu Anha, the wife of the Prophet, that he heard some quarrelling at the door of his room and went out to them. He said, “I am a mortal. Litigants come to me and it may be that one of them are more eloquent than the other and so I suppose that he is telling the truth and give judgement in his favour accordingly. If I judge for him the right of a Muslim, it is a piece of the Fire, so he can take it or leave it.” (Sahih Bukhari)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham