Talaaq and Visitation Rights

Question:

The wife leaves the husband’s home after asking for one Talaaq.  The husband tells her:  “Take your one Talaaq and go home.”  After a few days he revoked the Talaaq and asked her to return home.  She refuses.

1.  Did Talaaq take place?  If yes then what type of Talaaq?

2.  Is it correct for the wife to refuse to return?

3.  Does the husband have to maintain the wife after she refuses to return?

4.  Can visiting restrictions be placed on the husband for visiting his daughter (baby)?  He is paying  maintenance.

5.  Can visiting restrictions be placed on the baby’s paternal grandparents?

6.  If the wife’s family stop the husband from visiting the baby, does he still have to pay maintenance for the child?

Answer:

1. In light of the words uttered by the husband one Talaaq-e-Baain (irrevocable Talaaq) took place.  The words “go home” are Kinaayah (ambiguous).  Although the husband did not intend Talaaq by uttering these words, it is possible that these words are a result of the previously mentioned Talaaq and the husband uttered the words of Talaaq on the request of the wife.  For this reason the occurrence of one Talaaq-e-Baain is given preference in this case. (Fataawaa Darul Uloom, Vol. 2 (Imdaadul Mufteen), Page 622-623)  (Answered by Mufti Muhammad Ashraf)

2. The husband’s revoking of the Talaaq was incorrect as one Talaaq-e-Baain had taken place therefore the wife has the right to refuse to return (as a wife) to the husband.

3. The wife must spend the ‘Iddah in the husband’s house and the husband will be liable for her maintenance until her ‘Iddah expires if she does so.  If the wife does not spend her ‘Iddah in the husband’s house without any valid Shar’i reason then the husband will not be liable for her maintenance.  (Raddul Muhtaar, Vol. 2, Page 674, 719 and 728, Imdaadul Ahkaam, Vol. 2, Page 883, Ahsanul Fataawaa, Vol. 5, Page 464)

4. The husband is fully entitled to visit the baby whenever he wishes to do so.  No visiting restrictions can be enforced on him.  (Raddul Muhtaar, Vol. 2, Page 697 and 699, Aapke Masaail aur Unkaa Hal, Vol. 5, Page 423, Fataawaa Rahimiyyah, Vol. 8, Page 449)

5. Visiting restrictions can be placed on the paternal grandparents as they have no legal rights over the child.

6. Under all circumstances the husband is liable for the maintenance of the child if the child does not have any wealth in his/her possession.  (Raddul Muhtaar, Vol. 2, Page 728-729, Fataawaa Haqqania, Vol. 5, Page 30, Fataawaa Rahimiyyah, Vol. 9, Page 152)

And Allah Ta’ala knows best

Qasim bin Hashim Limbada

Attested to as correct by:

Mufti Muhammad Ashraf

Darul Iftaa

Jameah Mahmoodiyah

Springs

01 July 2004

12 Jumaadul Oola 1425