Answered by Mufti Muhammad ibn Adam al-Kawthari
Question: Last weekend my husband divorced me in a fit of anger while we were arguing. He says it was not pre-planned but it just spilled out due to anger. The problem is we are not sure how many times he pronounced it. What I remember is, he said: “I am divorcing you, I have divorced you, I have divorced you.”
Answer: In the Name of Allah, Most Gracious, Most Merciful
It is a well-known fact that divorce is normally pronounced and issued in the state of anger. Rarely does one issue a divorce in a state other than anger. One would not say to his wife: “You are a very nice girl, go I am divorcing you!”
The jurists (fuqaha) have categorized anger into three stages:
1) Initial stages of anger in a way that one’s mind is mentally sound, and fully conceiving and comprehending what one is saying. In such a case, divorce will be effected without doubt.
2) Extreme anger to the point of sanity (junun), in that one is unaware where one is, what one is saying, what are the implications of these words, etc. In such a case, divorce will not come into effect.
3) In between the above two stages, in that one was extremely angry but not to the point of insanity (junun), and was aware of what one was saying. In this case also, divorce will be effected. (See: Ibn Abidin, Radd al-Muhtar, 3/244 & other fiqh references).
In most of the cases, the anger does not reach the level of insanity as outlined in category number two, thus divorce is valid and effected. However, in particular circumstances, when the anger does reach the level of insanity, and one can not distinguish between black and white, then indeed divorce will not count. One must keep in mind accountability to Allah Almighty and then decide for him/herself.
Therefore, you mentioned that your husband divorced you in anger and that he regretted it later. In light of the above-mentioned explanation, the divorce will count and the legal ruling will not be lifted due to normal anger.
As far as the three pronouncements of divorce are concerned, they stand as three divorces, as mentioned in detail in an earlier post. The words “I am divorcing you, I have divorced you, I have divorced you” count as three divorces, for explicit words used for divorce in the present and past- tense form are considered valid in the issuing of divorce even if pronounced altogether at once. (See: Radd al-Muhtar)
Regarding having doubts as to how many times the pronouncement of divorce took place, Imam al-Haskafi (Allah have mercy on him) states in his Durr al-Mukhtar:
“If one has a doubt in pronouncing one divorce or more, he should base his verdict on the minimum.”
Allama Ibn Abidin (Allah have mercy on him) explains the above:
“(al-Haskafi’s statement: “base the verdict on the minimum”) is similar to what al-Istijabi mentioned, unless one is certain or regards the opposite to have most probably occurred. It is related from Imam that, if one is uncertain whether he pronounced three divorces or less, then he should exercise his judgment (taharri). And if he can not come to a decision (m, in that both sides are equal), he should take the more strict outcome upon him. This has been related in al-Ashbah from al-Bazzaziyya. Al-Tahtawi stated that, this was the position of Qadikhan, and may be due to the aspect of him being precautions (m, in matters related to the lawful and unlawful) especially in marriage and divorce. I (m, Ibn Abidin) say: It is possible to consider the first position legally binding (qadha’an) and the second religiously obligatory (diya’natan). (Radd al-Muhtar ala al-Durr, 3/283)
It is stated in Khulasat al-Fatawa:
“An individual took an oath of divorce but was in doubt as to whether he pronounced one or three divorces, it will be regarded as one, unless he becomes certain or regards the opposite to have most probably occurred.” (2/120 from Imdad al-Ahkam, 2/387)
The upshot of all of the above is that, there are few scenarios in the case of having a doubt:
1) There is certainty on pronouncing a specific number. In such a case (obviously) that which one is certain of will come into effect.
2) There is inclination towards one side, in that one regards a specific number of divorces to have most likely been pronounced. In such a case also, that which one is inclined towards will be effected.
3) Both sides are equal, in a way that one cannot prefer one over the other. In such a case, although there is scope in taking the minimum (i.e. one had a doubt between pronouncing two or three divorces, then one may regard it as two), for the minimum is certain to have occurred whereas there is doubt in the opposite, it is religiously more precautious to take the strict option (that is take three in the above example), for it is a question of lawful marriage and unlawful fornication. Ibn Abidin (Allah have mercy on him) considered the strict verdict in this case to be religiously binding, as understood from his text.
Finally, it should be noted that, if a woman heard her husband pronounce three divorces and has no doubt in this, but her husband is doubtful, then it will not be permissible for her to treat him as her husband. It will be necessary for her to consider the marriage to be over, thus not let her husband have a husband-wife relationship with her, as the Fuqaha mention that a woman is like a judge (al-mar’atu kal qadhi), meaning that she will be considered a judge with regards to her own situation. (See: Radd al-Muhtar, 2/432). Yes, if she is also doubtful, then she will act according to the procedure outlined above.
In conclusion, you mention that you remember your husband pronouncing divorce three times, thus three divorces have into effect, thus the marriage will be considered to be over. You will not be allowed to return together until after your waiting period (iddat) is over, and until you marry another man and consummate the marriage, get divorce, and complete your second waiting period, because of explicit texts of the Qur’an and Sunnah.
And Allah knows best
Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK