Q: With regards to matter in reference we request your expert advice. Sister Aliya approached our offices on 24 June 2011 with her marital problem. She is married to her husband Malcolm Naidoo for five almost 5 years after he reverted to Islam. Since she married him she has numerous complaints about him not maintaining her or fulfilling her marital rights. The relationship has broken down and they are separated. She claims he is not a practising Muslim, cannot read the kalimah and does not perform Jumuah salaah. She is requesting her Talaaq.
We invited him to our offices the same day and he agreed to come but did not turn up for the appointment. Upon calling him he advised that he is not prepared to accede to her request as he does not want to shoulder the burden of doing wrong by divorcing. He maintains he is a Muslim although when questioned about salaah and other basics he was ignorant.
The sister has advised that on several occasions when in conversation with her husband requesting him for a divorce he told her “you are free” and “do what you want”. One such occasion was on Friday 24/6/2011 at our offices. She has submitted a document under oath confirming this. He is not prepared to come to our offices to take an oath to deny the wife’s claim. Please advise on the status of the Nikah.
A: The general principle in kinaayah words of talaaq is that either niyyah or circumstantial evidence is required for the talaaq to be effective.
لا يقع بها الطلاق إلا بالنية او بدلالة حال . الفتاوى الهندية 1 / 374
The words ‘You are free’ could be equated to the word ‘برية’ which in the situation of a request for talaaq (muzaakarat-ut-talaaq) will be effective qadhaa’an.
ففي حال مذاكرة الطلاق يقع الطلاق في سائر الأقسام قضاء إلا فيما يصلح جوابا و ردا . الفتاوى الهندية 1 / 375
Hence, the route of qadhaa could be adopted to cancel such a nikaah if there is difficulty feared in annulling the nikaah.