My question is: What is the ruling on what he said? He wants me and our children back, but I fear he has to expiate first. Shall I find someone else to return me back to my home, as his intention was to divorce me if he returns me to his home; because he was very angry?.
Praise be to Allaah.
Firstly:
What is prescribed for the
Muslim is to avoid using divorce in arguments between him and his wife,
because of the grave consequences that result from divorce. Many men take
the matter of divorce lightly, so every time there is an argument between a
man and his wife he swears that he will divorce her, and every time he
disagrees with his friends he swears that he will divorce his wife, and so
on. This is a kind of toying with the Book of Allaah. If the Prophet
(peace and blessings of Allaah be upon him) regarded the one who divorced
his wife three times in one go as toying with the Book of Allaah, then how
about the one who takes divorce as a habit, and every time he wants to stop
his wife doing something or urge her to do something, he swears that he will
divorce her?! Al-Nasaa’i (3401) narrated that Mahmoud ibn Labeed
said: The Messenger of Allaah (peace and blessings of Allaah be upon him)
was told about a man who had divorced his wife three times in one sitting.
He stood up angrily and said, “Is he playing with the Book of Allaah whilst
I am still among you?” Then a man stood up and said, “O Messenger of Allaah,
shall I not kill him?” Al-Haafiz said: the men of its isnaad are
trustworthy. This was classed as saheeh by al-Albaani in Ghaayat
al-Maraam, 261.
Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said:
Those foolish men who
utter words of divorce for every matter, minor or major, are going against
the teaching of the Prophet (peace and blessings of Allaah be upon him) who
said: “Whoever swears (an oath), let him swear by Allaah or else remain
silent.” Narrated by al-Bukhaari, 2679. So if a believer wants to swear an
oath, let him swear by Allaah.
Moreover we should not make a lot of oaths, because Allaah says
(interpretation of the meaning):
“And protect your oaths (i.e. do not swear much)”
[al-Maa'idah 5:89]
The commentaries on this verse may be summed up as saying that what it means
is: do not swear a great deal by Allaah.
But swearing to divorce one’s wife, such as saying, “My wife is divorced if
she does such and such,” or “My wife is divorced if she does not do such and
such,” or “if I do such and such then my wife is divorced,” or “If you do
not do such and such then my wife is divorced,” and so on, is contrary to
the teachings of the Prophet (peace and blessings of Allaah be upon him).
Fataawa al-Mar’ah al-Muslimah,
2/753.
Secondly:
Your husband’s saying “If
you go out you are divorced” or “I will send you to your family and if I
take you back you are divorced” are examples of a divorce that is
conditional upon something, and reference should be made to the husband’s
intention. If his intention was to divorce you, then divorce takes place if
you go out, but if he did not intend to divorce you and he intended only to
stop you from going out, then it comes under the ruling on oaths, and if you
go out or he takes you back, then he has to offer kafaarat yameen (expiation
for breaking an oath), and no divorce takes place as a result.
Shaykh Ibn ‘Uthaymeen said:
The most correct view is that if divorce is used as a vow, in the sense that
the intention behind it is to urge someone to do something, or to stop them
from doing something, or to prove that someone is telling the truth or
lying, or to confirm something, then it comes under the rulings on vows,
because Allaah says (interpretation of the meaning):
“O Prophet! Why do you forbid (for yourself) that which
Allaah has allowed to you, seeking to please your wives? And Allaah is
Oft‑Forgiving, Most Merciful.
Allaah has already ordained for you (O men) the absolution
from your oaths”
[al-Tahreem 66:1-2]
So Allaah has made forbidding something to oneself a vow or oath.
And the Prophet (peace and blessings of Allaah be upon him) said: “Actions
are but by intentions, and every man will have but that which he intended.”
Al-Bukhaari, 1.
This man did not intend to divorce, rather he intended to swear an oath, or
something of that nature. So if he breaks his vow, then it is sufficient for
him to offer kafaarat yameen. This is the more correct view.
Fataawa al-Mar’ah al-Muslimah,
2/754
The Standing
Committee was asked about a man who said to his wife, “You will be divorced
if you do not come with me,” and she did not go with him. Does this mean
that they are divorced?
They replied:
If you did not intend
that divorce should take place, rather you meant to urge her to go with you,
then divorce has not taken place. But you have to offer kafaarat yameen,
according to the more sound of the two scholarly opinions. If you did intend
that divorce should take place and she did not do as you said, then she has
been divorced once.
Fataawa al-Lajnah al-Daa’imah,
20/86.
Thirdly:
If your husband’s intention
was to divorce you, as you say, then you should look at what he meant when
he said “If I bring you back.” If what he meant was “if I bring you back
myself”, but there was no reason why someone else should not bring you back
or you should not come back by yourself, then in that case you should go
back with someone else, and no divorce takes place.
But if what he meant was
that divorce would take place in all cases, whether he brought you back or
someone else brought you back, then if you go back, a revocable divorce
takes place – if this is the first or second talaaq – and he may take you
back during the ‘iddah.
Fourthly:
If the husband said this in
a moment of anger, then you should look at the level of this anger, as is
explained in the answer to question no.
45174 and
82400.
And Allaah knows best.
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