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Does divorce occur in this situation?

Answered according to Hanafi Fiqh by DarulUloomTT.net

Assalamu Alaykum,

We have a question regarding divorce that is written in a sms; under severe force/ threat. We have studied different fatawa on related topics and understand the concepts of Marsumah, ghayr marsumah, talaq mulgee and ghayr mulgee. However, as with any situation, it is important to get fatwa particular to that situation, lest we deviate MaazAllah.

Here is the scenario:

The husband has been under constant pressure from the wife to divorce her. He has no intentions to do so. Despite provocation he has resisted it. However, the wife informs the husband on the phone that she will be committing suicide, and that it’s too late for anything unless he gives her talaq right away, she will take her life. the husband ignores messages and tried to to back to the wife to help but meanwhile the phone dies and the husband freaks out that she will kill herself and smses her “I give you talaq all three”.
Later when wife switches on the phone she reads this.

Now the husband is very clear that he only wrote this to stop her from killing herself, as she was on the verge. He also says with the “you” he didn’t intend his wife; furthermore, he says he honestly thought this way talaq cannot happen as it is under coercion/ duress.

Now the question is; according to Shariah; would this count as “force”/ talaq mulgee? The wife was in clear position to carry out the threat of suicide there and then. the husband only wrote it. Never uttered it verbally
would three talaqs be considered valid and hence irrevocable? Or would they be considered invalid.
Your opinion and guidance will be greatly helpful.

Wa Alaikum Assalaam,

A threat to commit suicide or an attempt to commit suicide amounts to coercion, and it is clear to me that the husband was under pressure/force to divorce his wife since she was bent on committing suicide. He acceded to her request in order to stop her from this act which is something that no one will like to happen, especially to one’s wife. Therefore, based on my understanding, he was pressured to do something which he did not want to do, and his wife’s threat to commit suicide compelled him to write the divorce which would have been to save her from destroying herself.

This being the case, according to the statements of many Jurists (Fuqaha), the divorce written by the husband will not be considered.

The reason for this is that the wife’s threat to commit suicide if the husband did not divorce her, itself was a severe pressure on the husband, and in order to save her from this heinous crime, he had no choice except to accede to her request. This threat placed him under duress and forced him to write the divorce.

It is also evident from what you have stated that the husband did not intend to divorce his wife. He only wrote the statement to stop her from killing herself. Therefore, seeing that he wrote a statement of divorce which he did not intend, the divorce will not count.

In this regard, the texts of the Fuqaha are as follows:

فلو اكره علي ان يكتب طلاق امرأته فكتب لا تطلق

Translation: ‘If one is forced/compelled to write divorce to his wife and he wrote it, then the divorce will not occur.’

(Ad Durr Al Mukhtar Maa Fatawa Ash Shami Vol. 3, Pg. 236, H.M Saeed Company, Karachi).

و في البزازية أكره علي ان يكتب علي قرطاس امرأته طالق او أمرها بيدها لم يصح الا اذا نوى

Translation: ‘And in Al Bazaziyah if one is forced upon writing on a paper that his wife is divorced or her matter is in her hand, then this is not valid except that he intended it.

(Al Fatawa Bazaziyah Ala Hamish Al Hindiyah, Vol. 6, Pg. 131 Maktaba Rasheediya, Queta, Pakistan, 1983).

It is also mentioned in other books of Fatawa that writing Talaq to one’s wife when one has been forced/compelled to do so, does not count as divorce. (Kitabul Fatawa Vol.5, Pg. 102, Zam Zam Publishers, Karachi 2010).

And Allah Knows Best.

Mufti Waseem Khan.

6/3/17.

This answer was collected from DarulUloomTT.net, which is operated under the supervision of Mufti Waseem Khan from Darul Uloom Trinidad and Tobago.

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