Q: Please advise on how we can be assisted with the following?
My parents divorced in a court of law approx 23 years ago due to my father’s drug addiction and have never been in contact since then. I recently asked my mum if she sat for iddat and if my father gave her Talaaq. The reply was negative as he refused to give talaaq at the time due to our ignorance on matters of deen my mum did not pursue this further as she was advised by some Moulana that they are divorced.
I have over the years been in sporadic contact with my Father and he has/had a history of being in and out of Government Mental Facilities. It reached a stage where over the last few years he has lived on the street. I tried taking him into my place however he was unable to live with us due to his constant need to use drugs and the fact that I rent in a complex with strict body corp rules which made his living with us quite difficult. My attempts to have him institutionalized where also unsuccessful due to his unwillingness and the long waiting period at Government institutes. He thus remained on the street. We have in the last three weeks received news that he was quite ill and passed away. My attempts to confirm this with the State Mortuary proved futile.
The dilemma we now face is that my mum needs to know what her position would have been over the course of time.
Can the Nikah now be annulled or does she have to sit in iddat due to there having never been Talaq issued and the fact that now we do not know if my father indeed did pass away or not?
Your assistance in clarifying this matter will be of great help to ease the uncertainty that my mum faces?
A: We suggest that you find out from the first Aalim who had stated that your parents were divorced. He may have some correct grounds to declare them divorced. If he had valid proof to declare them as divorced then the iddat has already ended.
Answered by:
Mufti Ebrahim Salejee (Isipingo Beach)
Q: My mother does not recall who this Moulana was as it was such a long time ago. How should we proceed in such an instance and can you’ll assist in this?
A: If there was a talaaq in place and the marriage was not reconciled the iddat started from the point of divorce.
( ومبدأ العدة بعد الطلاق و ) بعد ( الموت ) على الفور ( وتنقضي العدة وإن جهلت ) المرأة ( بهما ) أي بالطلاق والموت لأنها أجل فلا يشترط العلم بمضيه سواء اعترف بالطلاق أو أنكر
قال الشامي في رد المحتار : قوله ( لأنها أجل ) أي لأن العدة أجل فلا يشترط العلم بمضيه أي بمضي الأجل اه ح وفي عامة النسخ لأنهما بضمير التثنية أي عدة الطلاق وعدة الموت قلت وهذا مبني على تعريف البدائع من أن العدة أجل ضرب لانقضاء ما بقي من آثار النكاح وقدمنا ترجيحه (رد المحتار 3/ 520)
Answered by:
Mufti Ebrahim Salejee (Isipingo Beach)