I am enquiring on behalf of my friend about a matter regarding divorce. My friend was having an argument with his wife and his own brother and he was in such a rage that the police had to be called. The police came and took him outside and then gave him 5-10 minutes to go back in and collect his belongings. However he went back in to the house and shouted the word talaq but is now unsure how many times he said it (he could have said it twice, three tines or four). His mother was present in the room and she claims he said it twice before she intervened and instead he started swearing. The brother was under the influence of drugs but also had an argument with each other and says he said it three times. The wife says he said it three times counting on his fingers ( the wife has been unhappy with him for a while due to his bad deeds and has previously said to him finish me one way or the other earlier on in the day- claims the husband). I also have known this friend of mine very closely for the best part of 20 years and can say if he becomes angry then we friends steer clear of him because of his rage. In this case is the talaq valid under Hanafi fiqh.
Answer:
There are two issues regarding your question. The first issue is regarding giving talaq in anger and the second issue is regarding the wife’s claim that the husband gave her three talaqs whilst the husband’s mother is claiming two.
The jurists have categorised anger into three stages:
1. The initial stage of anger where ones mind is sound and fully in control of what one is saying. In such a case talaq will occur without any doubt.
2. Extreme anger to the point of insanity, where one is unaware where he is or what he is saying. In such a case talaq will not occur.
3. Finally that stage which is between the above two stages in that one was extremely angry but not to the point of insanity, and was aware of what one was saying. In this case also, talaq will also occur. (Raddul Muhtar p.452 v. 4)
Normally it can be said that the anger does not reach the level of insanity as mentioned above therefore divorce is valid and will take place.
However in circumstances where it is claimed that the anger was such that a person lost his sanity, then in those occasion it is necessary that the person has previous medical history of insanity or has been diagnosed by the doctor of being of unstable mind, or has two male witness or one male and two female witnesses testifying that in fact on that occasion the person had in deed lost his sanity, then the divorce will not take effect. (Ibid)
Regarding your second question, if the wife is 100% certain that her husband had given her three divorces then her marriage with him is broken. (Fatawa Rahimiyah p.318 v.8)
However, if she is not sure how many times he has said it then it is permissible for the wife to remain with him. (Fatawa Darul Uloom Deoband p.42 v.9)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham