Answered by Mufti Mohammed Tosir Miah
As salam alikum , before I ask my question, let me try and explain you the course of events.
1- Brother got married 6 months ago and his wife could not stay together because of her internship.
2- in last six month they stayed together just for 39 days , in which they have not got physical (strange in a marriage).
3- Temperaments of brother and his wife did not match up, also we found out she defy my brother on each and every account. she actually does not wish to stay with my brother in marriage.
4- She left his house without my brother’s consent to her mothers house.
5- Upon throwing the light on the course of events my family asked to meet their family and urged to meet and solve this problem face to face, on which they did not turn up. Further more her father asked for final word
6- my brother than with the intention not to keep her in his marriage told talaq e bain over phone off which she heard very clearly.
7- Brother than sent over the talaqnaama to her with the cheque of Mehar and expenses for her iddat period which they did not deliberately received .
Now my question is
1- is this talaq complete.
2- is it valid to give away talaq over phone when the girl heard it clearly
3- is it that brother have to complete talaq by saying it twice again to her
4- if in case brothers wife denies that she did not hear anything , still the talaq is valid .?
The words which effect divorce are of two types:
1) Clear and plain words (sareeh)
2) Ambiguous and allusive words (kinaya)
Sareeh means expressly pronouncing the word divorce or words derived from it, such as: “I divorce you” or “you are divorced” etc. Clear and plain words effect divorce whether one intends divorce by them or not. (Hidayah, V2, P359, Raddul Muhtaar, V2, P465, Fatawa Hindiyah, V1, P354)
Kinaya means using words that are not exclusively prescribed for issuing divorce, but alludes and hints to it. Kinaya words do not effect divorce unless one intends divorce by them or it is determined by the circumstance one is in. (Hidayah, V2, P373, Raddul Muhtaar, V2, P501, Fatawa Hindiyah, V1, P374)
The kinaya words effect talaaq bain when one intends divorce by them. (Hidayah, V2, P374, Raddul Muhtaar, V2, P507)
It is mentioned in Durrul Mukhtar:
“The main part (rukn) of divorce is the specific statement.” (Raddul Muhtar p.426 v.4)
Furthermore, one of the conditions for talaq to occur 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)
Keeping the aforementioned information in mind we can conclude that giving a talaq over the phone, whether rajee or baain will occur.
It is sufficient just to give this one talaq baain. By giving one talaq baain the marriage will be terminated straight away.
When a husband gave his wife a talaq then the talaq will occur. It is not necessary for your wife to know for talaq to occur. Similarly, it is not necessary for talaq to be given in her presence for it to occur. (Aapke Masail p.223 v.5)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham