#14 Fiqh of Family – Book of Divorce (Bid’i Divorce)
Channel: Hatem al-Haj
Series: Hatem al-Haj - Fiqh of Family
File Size: 36.28MB
I'm about to proceed. Today we'll talk about talaq and we are going over
this he died in the year 620, after hedra we have already finished that, that, that is the topic of worship and transactions, financial transactions, we finished the look of inheritance after that.
And then we started the family
and after the fact of family, we'll go over the fact of, you know,
hunting in foods and drinks and oaths and vows.
So that you know, customs and then we'll go over the
proper engineered and they had and that would be the last section of and it is shorter than the previous ones much shorter than the previous ones. So hopefully inshallah, within this year, if we have no more interruptions, we should
try to finish
Allah says here,
what I Hello, Gemma Sarah, it is not permissible to combine the three divorces. We're done with this. We've covered this last time, the three composite divorce, the three fold composite divorce, we're done with this, it is not permissible according to the majority to combine the three divorces at once is that clear? copper is recording the majority to combine the three divorces at once. However,
the majority would still counted them as three divorces. And we talked about even if a man's position that the account has one divorce, that is basically the mainstream position nowadays in most countries and most
sort of laws, but had during his time it was an eccentric position apparent anomalous eccentric whatever equals South position.
But we are saying that this is the right position to adapt to in in you know, in the interest of the Muslim family, because counting the three composite the three four composite divorce as three divorces means the end of this family
if we have a way to not do this, then we should
but we will not repeat our discussion we because of we talked about it in detail last time and that's why I told you it would be helpful to go over the last two sessions and flatlanders here before the session we'll just carry on and talk about the other types of impermissible divorces he is talking here in this section about impermissible divorces. What are impermissible divorces? That is the divorce a woman during her period or to devote together to give a woman a 334 composite divorce at once. These are called impermissible divorces could a divorce that is unwarranted be also impermissible. That is what I believe that is not the position of the majority. That seems to be the
position of the HANA fees in one half two positions within the Hanafi Meza and people can fight all the time over which one would be authorized. But I believe that this is the stronger position within the Hanafi madhhab. The default for divorce is impermissibility as long as it is on where and and that is a position within the Hanbury meth lab that I support. What does it mean doesn't mean anything if I support it, it just means something to me, you know, but but I support it.
So divorce is impermissible also if it is unwarranted, but the authorized position in the hands of any Muslim is that divorce is
impermissible? Not if it is unwarranted. But if you are divorcing a woman during her period, or your divorce, you're divorcing
three at once, three times at once or three divorces at once. Then the check says what are the material
Hi, fi hi Leah how to her in Asahi Lima, Robin O'Meara and
Rebecca vertica Amaro de la Sol olalia. Sutherland,
Sutherland from makara, Monaco for the Raja, some mc chhatrapati. Metohija from moto for invada, who are new to the NACA, kubla and yamasa. It is also impermissible to divorce the wave after consummation of the marriage during her menstrual period, or during a time of purity in which he had intercourse with her. This is because of Edna Homer Is this because of Amara narrated, that he divorced his wife while she was on her period. And when Homer mentioned that to the Messenger of Allah sallallahu sallam, he said order him to take her back and then keep her as a wife until she becomes pure, then she moves through weights and then she becomes pure afterwards if he's dead wants
to divorce her, let him do that before touching her without having intercourse with her.
So the the divorce is during the period he says in the beginning, it is also impermissible to divorce the wife after the consummation of the marriage. This is an actress This is an important contingency here because it diversity during diet that is permissible sometimes
divorce the earning died is permissible
if the if the marriage has not been consummated
so divorce during the dude I'm sorry divorce during yes divorce during the height I'm sorry, divorce during the height is not permissible when
if the marriage has been consummated, why because if the marriage has not been consummated is there is
there is no added so if there is no add there then people could divorce anytime you know during the behind the law during the high that doesn't matter because most likely the reason behind the precondition of divorce is during the height is what
because you will prolong the idea for the woman
in a locked room on the surface on the dirty hidden now less monotonous isn't sort of luck, if you go divorce women from the permanent debt
meaning what divorce them to that to that
what does that mean to their to their waiting
period it means to the commencement of their waiting period. So that they may commence immediately their waiting period
without delay, now, if you have died that comes here, this is either okay
that there is seven days let us say and then 20 177
height, the height is seven days.
This would be 21 to 23 or something and then seven and then 23 other side and then seven like this.
Okay. Now, if you divorce here, how does she come see you later?
Okay, she will not count this period where we are saying that, you know,
we're going hanafy and confetti here.
So the the the core means the higher the period. So we are going to wait three periods, right? We're going to wait three periods. If he divorced her here.
She will not count to this period. Then this will be her first period.
This will be her second period. She would have to wait until the end of the third period. When can she get married? Here
she can get married.
and they used to get married rather quickly after divorce. So,
so, if you divorce her
or if you divorce her here and you have not touched her like he had no intercourse here this
is like a period of purity in which you have not had marital relations for divorce or here this is your first period second, third.
So, how many days have you seen is saved her like many times?
Because she will. So that is that is what it means for
Tina to the commencement of their period if he divorced her here, she can commence her period right away. If he divorced her here, she will have to drop this and wait until she convinces her period here.
If he divorces her here,
if he divorces her on the height,
okay, he divorced her during the height. What counts as part of this period?
No, she wasn't she will start from here.
No, she is she is somewhat has wifey. He is. She is still his wife, in a sense, you know, but she's divorced. She hasn't been divorced. She's still in her period, she had started her period. But we're not talking about like, here, what is her writing, she isn't her period. She isn't her waiting period. But she's not counting
that, in order for her to count to the three periods after which she will be,
you know, basically free of the marriage bond, free to marry to remarry. She will not be counting this. She will start from here as her first period because Allah says, you know that I thought Kuru three periods. So she would need to wait three periods. She is this is her first period because she will not count this one in which he divorced her. So it will end here.
Okay, but let's say he divorced her here.
Right before the period started, he divorced her here.
You know, versus here, there is only two day to day difference here between here and here. Right before the parents started, she will count this. When does hair period when does hair waiting period end?
ends here, not there.
Maybe this is a better example. You know, someone divorced his wife here. And someone though of course his wife here. The high end the demonstration started here.
The one with the versus wife here. Given that he has not had marital relations during this period of purity. So why don't we divorce his wife here.
His wife will be able to start the countdown. Not to start here period in the sense that the other one is not in the period.
The waiting period. But the start that countdown
of her period from here. The one who divorced his wife here. The wife will start the countdown to the end of her period from here not from here. From here from the beginning of the following hide menstruation. menstrual period.
Yeah, so there's all bad. So if she has
one that we can think of the purity period becomes worse.
no, that is the only way we're not going by that.
So we're going by the Hungarian hanafy period means poker means higher than higher the means, you know, lesser period. And if it is meant for a period, then she will need to spend three full menstrual periods awaiting, you know, her, the end of her period. And this period, you know, since he divorced her in the middle of the period will not count because it's not a full menstrual period, we need three full menstrual periods.
So, this, this and this, not this one.
So, now, nowadays, impermissible, okay.
We'll come to it are coming to us gonna discuss this.
So what are you hiding? Okay, so then we are all clear that this is implementable right
now, whether it counts or not. That's another big discussion.
See how Yes.
Well, that's what we're talking about now.
Yes, that's what we that's what we're coming to. Yes.
He has to divorce her during a
time of purity, in which he had no marital relations with her. That means intercourse To be clear, and because, you know,
so that we don't cause confusion.
So it's not kissing, hugging and stuff like this, it is basically intercourse.
Yes, if they had basically marital relations, during that purity, then he cannot divorce her during that period,
during that talk.
So now, it is clear that in order for him in order for divorce, and all of this is basically to put breaks down on people so that they don't, you know, make haste to divorce and then they think about it and so on. So, it is not like you can divorce whenever you want, you'll have to figure out if it is hard to divorce now or not. And then hand most of the time, people are, you know, to find the period of purity in which you have not touched your wife. That's not the usual scenario, right?
For most of the people they need to think is it allowed for me to divorce now or not, and if it is not allowed, and people must refrain or desist, and then if it is harder than they can proceed, but in order for someone to divorce his wife in a halal way,
then he would have to divorce This is the height, this is the height. This is the tone or purity and this administration, so you don't have to divorce her during this period. With one more condition, he should not have touched her since the last period. And if he touched her here, he cannot divorce her in this period. He will have to wait until she has menstruation and then divorce her in this period after she becomes pure.
Clear. Clear. Now let us say he did it. Yes.
This is the punish him because he had
he divorced her during her period. So the Hadith
says Moreover, the Raja haka hates a man. Ha taco from taco from taco. So the hubby says neurophysiology commanded him to take her back. Now he divorced her here. He said, command them to take her back until she becomes pure.
Then she means sweets. Then she becomes pure and then he can divorce her here. So that have these four people who you know,
made haste and divorce.
Their wives during her period, the Hardys commends them to not only divorce her after she becomes pure, even though in this period of purity, he had not touched her, but this is an exception. This is a period of priority in which he had not touched her, but it is still around to divorce her because he had made haste and divorce her during the period. The hobbyist commends him to keep her for this full period of purity
until she waits one more time and then in the second period of purity, he may divorce her, but in general, for people who have not divorced their wives during the period, how can they do it? They need to do it during a period of purity in which there was no intercourse between them
during the period of purity in which during which there was no intercourse between
Okay, so let us say he did
does it count as a divorce or does not count as a divorce? Okay, now, who said it counts as a divorce? Pretty much everybody.
You know, not everybody, pretty much like almost.
So the format, and the majority of the scholars have considered it this divorce, a valid divorce impermissible, but it counts.
sinful he earns his sin, but it counts. It is sinful, but it counts.
Then who said not?
Everything me. But was he the only one? No, he was not there were like, but but he goes to great lengths and defending his position. So that's why the position becomes ascribed to him. Don't ever think that the only one who said music is holidays in the husband because everybody thinks, you know, everybody uses music is hard. You know, that's the position of the husband. Don't blame it on one man. Usually that doesn't happen. You know, usually, that is the person who sort of
defended the position hacklin. So people have attributed the position ascribe the position to him.
Anyway, this is a different discussion. But it was like sprinkles of Maliki's and hand berries, including given RP before him that they may among become buddies also, who said that it would not count. Now for Ebony Tamia. He had basically like a good agenda against divorce, not a bad agenda. He had a good agenda against divorce. The problem was divorce in his time is that it was rampant. And many people were like the three composite divorce
was happening so often divorce at any time. And people were like having the mohanlal all the time, you know, you know the problem, the Mohammed who comes in and marries their wife for one night and so and then return then she goes back to them. And whatever is happening during that, whether it is defines to the Sharia, or defines to sort of virtue, you know, because if they consummated the marriage and then he returned to her the for the next day that Kathy is shocking to Muslim sense.
And if they did not consummate the marriage, this is defiance to the Sharia, because she should they should consummate the marriage. This should not be sort of like pretend marriage, it should be a real marriage to make our holiday for the previous one. Now, this was a major problem, you will find the love even you know, it stayed way beyond me, you find people like oriental Asuka people who came and lived in Egypt for in the 18th and 19th century and so on. They were reporting this as like one of the wonders of the Muslim world like the not the bad wonders
and and then the they were saying that you gave me you think that these people have like an IRA and protectiveness over the women. Look at you know, look at this practice. Does this show any sort of nobility or protectiveness
and I have read many of such accounts by you know,
orientalist and so on and so forth. So, the there was a problem. There was a problem and so you have this good at
Against divorce. So he was always,
to some extent biased to invalidate the utterances of divorces. Because he was working under this pressure
made him somewhat biased to invalidate any divorce. Sometimes this bias was a good bias, and ended ended up with like the three composite divorce counting guys one divorce that seems to be the stronger position. If we go back to last session, we talked about hobbies and habits and how it used to count as one how at least if not best, to use the counters wandering time, the profit animal buck, and the beginning of the Hara farmer.
Now however, you want to interpret this hadith and our best, but you cannot deny that Hadith reported by a Muslim from Abner bass, who is saying that it used to count as one during the time of the Prophet venerable book is a pretty strong evidence.
You cannot deny that the the intent of the legislator is that three marriages, three divorces are not happening all at once to destroy the marriage. But basically, it is three opportunities, you got your third opportunity, it didn't work out. You're not meant for each other. That should be the intent of that legislator. You cannot also deny that the Quranic statement about this faint
of heart that and it is one divorce after divorce, I thought American fame second eldest, said that we're talking about divorce, marriage, divorce, marriage, divorce marriage, we're not talking about composite divorces, the client does not say this. So in the previous session, when I presented the position of the American Family Law, I supported it. I can't do this here, because it doesn't seem to be the stronger position. And I am saying that he was somewhat like he had like his good agenda against divorce, that's fine. But it it's
it made him want to invalidate every divorce under the sun, that he can invalidate. Keep in mind that he is an email munstead. So he is not he's not basically going to do crazy things. So this is a position that is still defensible, and it is still defensible to the point that he was not the only one. There are mannequins who said that, if not all of the honeyberries before him said that.
There are many after him shokan he said that a great scholar as well. So the person can said that.
Even about him there, there are many who adopted this position. So this is not a crazy position. And I'm trying I'm saying that he was inclined to look for reasons to invalidate divorces to remedy the problem of McLean, that was pretty
short of offenses to Muslim common sense. So now, he said that this does not count. This device does not count. Why doesn't it count? Okay. He said that some of the reports this report from Homer for a moment of the alarm animal, about his son of the lab Under Armour, where the Prophet sallallahu Sallam became angry with him that he divorced his wife during her period and said, command him to take her back and then keep her until she becomes pure and then he miss rates and then she becomes pure. And some of the reports of this hadith the Prophet sallallahu Sallam was
said to have not seen me
when I'm young
or what me out there has a
Miata has shaken at me means he did not see it as anything has anything what he did not see his divorce as anything. So, every time he said that, when he when we say that he did not see it as anything in the also this has to be understood to mean as anything valid until proven proven otherwise. When we say less alotta
limo, for instance, there is no solid for someone who does not have does not does that mean there is no Salah period or there is no complete Salah
no complete Salah
from no Salah period
However, there is no solid for someone who doesn't have a clue, but when the Prophet says I will do it man, let me ask you a small IRA, there is no rule for someone who did not mention the name of Allah on it, it means there is no complete will do or there is no sinless will do you know, depends on whether you consider this matter and the beginning of the hub, but at any rate, it is not a condition of validity. So, if you miss it, it is not a condition of validity in this sense, why are we say in lasala
you know without to who or what do there is that in no valid salah and we're saying no complete weirdo, because in general, it should be old, no valid, no valid Salah no valid, it should all go to be no valid, unless we have Kareena unless we have some soft evidence corroborative evidence that it does not mean no valid but it just means no complete. So when the prophets of Allah is
there are too many examples, but it is clear anyway. Sometimes we say this is not complete email. This is there is no email. There is no complete email on this or that, but we have to have our Kareena so when the Prophet negates something it means that is all negated that means it's invalid unless we have a Kareena Tamia says, Well, this, there is no Carina
laminata hash and it means that he did not see something valid. While he does not he did not count counted as anything valid. Let me accept her then. But then the other scholars said that some of the reports said, You know what, at the end, he counted
it was counted against him, he was counted against them. So to reconcile between these reports, and these reports, we have to say that this these reports that knocked me in he did not see it's something valid or counted as something valid. He did not see something good.
Good, not valid, but still valid, because that's the way we can reconcile between these reports and these reports. And then they would say to him, why would it not be valid? Why would it be invalid? His being in a time of purity in which the husband did not touch her?
inherent to the concept of divorce or extraneous to it? It's extraneous. The force basically is the the determination of marriage by the willful husband who does have that right to terminate the marriage, being in a period of purity or not in a period of purity is extraneous to the nature of this action or the nature of divorce. Therefore, if if it happens, he's sinful, but it should count because that is extraneous.
They call this facade of the job.
It means facade.
know it it means that the that the thing that is prohibited is not inherently part of the action.
There are separate they are separate, like a slot Florida nasugbu praying in Atlanta that is
force wrongfully seized to pray in a land or in a house that's wrongfully seized. The seeds that have any say
somebody say the very action of the prayer cannot be separated from the fact that the land is wrongfully seized because during the prayer he is occupying a space that is wrongfully seized. So we cannot separate the two. The three other imams say no they are separated. There is no relationship the Salah is valid, and he's sinful because he's praying in a land that strong flee seas. And in fact of the three other imams may have a stronger position here.
So but you
somewhat subjective, to look at whether you could separate the two from each other or not. So if it is extraneous to the act itself, if that contingency is extraneous to the act itself, the act could be valid, despite the violation that pertains to the, to the contingency.
so here, they said, even claim era, no law, why would it not count?
This is extraneous to the act of divorce, the divorce should count. It's just that he's doing it at the wrong time. So, he is sinful doing it at the wrong time, but it should count. So he said to them, but what about the facade?
which is the same thing? You know, that's that's how we answer them. prohibition implies invalid invalidity.
prohibition implies invalidity, they said to him, this is if the prohibition pertains to the essence of the Act, not to extraneous conditions. And here, the Prophet did not prohibit him from divorcing
the essence of the Act, he property and prevented him from divorcing during that time. So extraneous to the act.
And then they also said he remembered me or him Allah said that, behind a Muslim reported from I saw the olana, that the Prophet sallallahu Sallam seven and a half and a half Mm hmm. And
whoever innovates in our fear that which is not all of it, or that which is not in accordance with it, it shall be rejected. So this person innovated in our affair, something that is not of it to be rejected. They said to him, this is a punishment for him when he does that, that his act will be rejected. But here, you're not punishing him. You're taking him off the hook?
No, it is, you know,
if you consider the divorce to be punishment, maybe it was. But but but no one has been punished here. It is just that
he will not have the reward for his act that is innovative. If you innovate. in worship, you're not going to be rewarded, because Allah will not reward you for innovation. Allah wants you to worship him as he pleases.
You were told what is pleasing to Him through the prophet SAW Selim should do everything according to design. That's what the Hadith means. But it does not mean that someone who divorces in an improper way, his divorce will not count.
To give him another chance.
The majority of the scholars said that should count against them. At the end of the day, at the end of the day, hi.
You know how sympathetic I am to the position of a man. And I find this maybe a sort of continuity of psychological makeups or something, but it is not like really a matter of partisanship, or zealotry or anything but this position, I was not able to agree with him on it.
Why is it the position of the majority is clearly stronger, but to me at least, but having said that, having said that, is it okay for someone to give a factor? How
to use this position like let's say someone divorced his wife three times, they have four kids, and they are really
in bad shape. And they don't know what to do they come and ask you that this last divorce count and the last divorce happened during the period. Well, what do you say if you are like me, you believe that the position of the majority is stronger.
You could defer to other Mufti, you could defer to other Mufti that can
give them a fatwa based on the position of mmm Tamia, Rahim Allah, and many of the scholars who, who don't even agree with with his position on the three composite divorce, they do this. Many of the scholars in different parts of the world who still don't agree with his position on the composite of the three, four composite divorce in particular, they defer to other modalities that would
Like a more lenient factor, if it is about the sort of the interest of the family and keeping the family from
okay. And that's that is known, you know, and that is like a common practice, not not undebatable but it is a very common practice among the most teas in
throughout the world. Then the sheikh said was similar to the talaq, we're clear with this we're done with this part it is haram. Whether it is valid or not stated is it's a matter of disagreement.
But, but the majority so that is about it. The second said was similar to
me super happy with
the Sunnah in divorce is to divorce the wife monster during the state of purity, during which, during which he had no intercourse with her than to leave her until her death is over. To leave her until her idea is over. This means what?
This sun nine divorce is that, you know here
she ended here, your divorce here, if you must, you know. Anyway, you divorce here. And then she starts to count from here. This period here, there was no touching. So that's the sun. Then
when the SIR period ends,
If you want to divorce her again,
you would have to take her back here, and then divorce her back here.
I'm just saying that if you must like it.
Because Keep in mind, do you take her back here with her permission?
But here was her permission, you can take her back here without her permission. But here it's outside there is
a new contract. Yes. Everything new. So, okay.
No, this is this is not the third which is okay. He is saying that the proper divorce is when you divorce her here and don't divorce her again, until she ends her add one divorce. That's it, and let leave her alone until she answers.
You don't have thick hair back in divorce or anything. I'm just saying that if you like if you're so inclined,
then that's what you can do. But anyway, like if someone you know, people sometimes divorce their wives three times, to keep themselves from taking her back. Like someone who really was hurt by his wife. Let's say he does not want him. He does not want to get weak and take her back. So he divorced her three times, so that he can keep himself from hurting himself again.
That is incorrect. That is haraam to divorce her three times three in at once.
three at once is harder.
also it is this courage to divorce her and then divorce her again during her waiting period.
Will it count? Yes, according to the majority, who said it doesn't count him he told me
he said there is no divorce without Raja How do you divorce a divorced woman.
So if you divorced her here,
you can give her another divorce here. She's divorced.
She's not my Hamlet, lip Pollock anymore. She's not subject to your divorces anymore. You have to work in order for you. In order for your divorce to count, you'd have to take her back and then divorce her and then take her back and then divorce her this way. However,
and certainly every time you do this, it has to be in a purity in you know then which there is no recourse and so on. So he's complicating the divorce for people to be basically keep them from like hasty divorces.
I believe in that position, even though this is a very splinter minority position.
Very small splinter minority position that divorce
It does not count without Raja that you know divorce the back to back divorces do not count this is a very splinter minority position. But in all honesty, it is a very strong position. If you look at the intent of the legislator, if you look at the, you know, the dictates and the text of Revelation, if you look at also principles of sharing a common sense, like that is what are my intended alliances and see opportunities. This means
each divorce has to happen in a marriage like marriage, divorce, marriage, divorce, marriage, divorce, marriage, not Divorce, Divorce divorce, not three composite divorces. So, anyway, but certainly according to the form of
if he divorces her here and then gives her another divorce he deviated from this or not, but it counts a third deviated but it counts.
Or is that just
that's that's chapter that will come coming
finish and then we'll get because everything is coming or it's all coming. And then the sex ed metal carella anti tonic listen now if you don't and I'm so happy. When canopy touring Asahi hide in Lompoc. Look had taught her
how to determine Ohio. If he says to her you are divorced according to the certain while she is in a period of purity, during which he did not have intercourse with her she becomes immediately divorced. If he had intercourse with her during that period or if she is menstruating, then the divorce takes place only once her menstruation ends. That's obvious.
He will say to her you are divorced according to the sudden she is in her period. It doesn't have to divorce it does not become effective. Now, when does it become effective? When her period and and her period it starts it becomes effect.
Callahan de la COVID are here. Hi,
fi todo cadwyn Connecticut. I'm takato Seba autohide.
Yes, he's like yes.
Yeah. Like what? If he's an idiot, he would be better off without him right.
But anyway, if he says there you are divorced according to the bizarre. That's idiotic. But you know she is actually much better off if someone is actually doing this. She would be better off without him.
If he says to her, you are divorced according to the better way and she is menstruating or in a state of purity during which you have intercourse with her. Then she becomes immediately divorced. If she is not then she does not become divorced until he has sex with her or she demonstrates because it has to be a bit he is saying that I'm giving you a bit a divorce. She is now in a period in which he did not touch her divorce does not happen once she mens rates now with a divorce can be effective.
If he's doing this isn't too much, you know
ya know a lot of things you know.
Yes. If you actually study the chapters on divorce, you'll be surprised what people came up with.
We have a hammer the lady who is a Latina head fell so not a little bit off. topic. Listen a little bit our title Katrin Han
has for the wife was whom married she was not consummated. The pregnant wife whose pregnancy becomes obvious. The post menopausal wife and the pre menarche of wife whenever he says there you are divorced according to the certain order with our way she becomes immediately divorced because there is no sooner or for these people.
he is someone who has not had hide yet. Someone who is not having hide anymore. There is no seminar but offer them a divorce at any time is effective. Someone who is pregnant you know
disagree. It's it's controversial. But anyway, if you think pregnant woman does not have hydro, which is, you know, the, that is
controversial position. But then for a pregnant woman in general, regardless of the height for the pregnant woman for the pregnant woman in general, what is
the idea of the pregnant woman
to give birth? If you divorce her during pregnancy, whether at any time you're not prolonging her head, so it is, you know that that point is not really applicable to pregnant women. It is applicable only to women who are in
the age of menstruation, you know, like the minority of women who menstruate and after consummation, why after conservation, because if marriage has not been consummated, there is no idea to begin with there is no waiting period, your divorce her she can marry the next day.
So there is no waiting period.
we're going to have to defer the sorry hatanaka to the chapter on explicit and implicit divorce. Until next time, and I'll take your questions because I understand Do you have enough questions? Yes.