Conditional Divorce


Bahishti Zewar, Fiqh, Part 4-Nikah (Marriage) in Islam / Friday, July 23rd, 2010

1. Prior to marrying a woman, a person said: “If I marry you, you are divorced.” If the person happens to marry this woman, one talâqul bâ’in will take place the moment the nikâh is performed. Now, he cannot keep her without remarrying her. If he said: “If I marry you, you are divorced two times”, two talâqul bâ’in will take place. If he issued three divorces, three will take place and it will be talâqul mughallazah.

2. A person made the condition of divorce prior to marriage. The moment the nikâh was performed, divorce took place. He then remarried the same woman. By remarrying her, another divorce will not take place. However, if the person made the condition in the following way: “Each time that I marry you, you are divorced”, then each time that he marries her, divorce will take place. Now, there is no way in which he can keep this woman. Even if she marries another person, separates from him, and thereafter remarries the first person, divorce will still take place.

3. A person says: “Whichever woman I marry, she is divorced.” Based on this, whichever woman he marries, divorce will take place. However, once divorce takes place between him and a woman and he decides to re-marry her, divorce will not take place this second time.

4. A person addressed a woman whom he had not married as yet saying: “If you carry out a certain action, you are divorced.” Such a condition is not considered. If he marries her and she carries out that action, divorce will not take place. This is because there is no way a person can divorce a woman who he has not even married except by saying: “If I marry you, you are divorced.” Divorce cannot take place in any other way if the woman is not married to him as yet.

5. If a person addresses his wife saying: “If you carry out a certain action, you are divorced.” “If you come near me, you are divorced.” “If you enter this house you are divorced.” Alternately, he threatened to divorce her on some other condition. In all these cases, if she carries out that action, divorce will take place. As long as she does not carry out that action, divorce will not take place. In all these cases, talâqur raj’î will take place, in which the husband has the right to keep his wife without having to renew the nikâh. However, if the person spoke in vague terms, talâqul bâ’in will take place. For example, he said: “If you carry out a certain action, there will be no relation between me and you.” Once she carries out the action, talâqul bâ’in will take place. This is on the condition that when the man uttered these words, he intended divorcing her.

6. If he says: “If you carry out a particular action, you are divorced two times, or three times”, divorce will take place according to the number that he specified.

7. A person said to his wife: “If you enter this house, you are divorced.” She entered the house and divorce took place. However, within her ‘iddah, he decided to keep her or he remarried her. Now if she enters the house, divorce will not take place. However, if he said: “Each time that you enter this house, you are divorced” or “Whenever you enter the house, then each time you are divorced”, then in such a case if she enters the house within her ‘iddah or after remarrying her, a second divorce will take place. Thereafter, within her ‘iddah or after remarrying her, she entered the house for a third time. A third divorce will take place. After this third divorce, it is not permissible for him to remarry her. However, if she marries another person, after separating from him, remarries her first husband, and then enters the house, divorce will not take place.

8. A person said to his wife: “If you carry out a certain action, you are divorced.” Before she could carry out that action, he divorced her and separated from her. After some time he remarried the same woman. After marrying her she carried out that action which he had warned her against during their previous marriage. In carrying out this action, divorce will take place. However, if the woman carried out that action after her first divorce and after completing her ‘iddah, but before remarrying him, then by carrying out that action after remarrying him, divorce will not take place. But if she carries out that action after the divorce but within her ‘iddah, a second divorce will take place.

9. A person said to his wife: “If you experience hayd, you are divorced.” Thereafter she saw some blood. Upon seeing the blood, we will not pass judgement of divorce. Instead, when she bleeds for three days and three nights, only then will we say that divorce has taken place from the time that her bleeding had commenced. But if the person said: “If you experience one hayd, you are divorced”, divorce will take place on the completion of her hayd.

10. A person said to his wife: “If you fast, you are divorced.” The moment she commences her fast, divorce will take place. However, if he says: “If you keep one fast or if you fast for the whole day, you are divorced”, then divorce will only take place on the completion of the fast. If she breaks her fast, divorce will not take place.

11. The wife decided to go out of the house. The husband said: “Don’t go now.” She did not pay any heed to him. Upon this, the husband said: “If you go outside, you are divorced.” The ruling in such a case is that if she goes outside at that very time, divorce will take place. But if she goes outside later, divorce will not take place. This is because, when the husband stopped her from going outside, he meant that she should not go now, and does not mean that she must not go outside for the rest of her life.

12. A person said: “The day on which I marry you, you are divorced.” Thereafter, he married her at night. Even then, divorce will take place. This is because in our normal conversation this means when I marry you, you are divorced.

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