Answered by Muftī Yūsuf Badāt
Question:
I told my wife, “The day you leave Canada, then the remaining two ṭalāqs are effective.”. This was said in the context of a larger discussion that was going on regarding my wife selling a property and traveling with my mother in-law to Pakistan. I had explained this several times to my wife and also my father in-law a few days prior as well, that I am upset and my wife does not have my approval to sell the property and travel now. In that context I said, “The day you leave Canada, then the remaining two ṭalāqs are formalized.” There was no intent at all, about bounding her to Canada forever.
My wife and her family are insisting that anytime she leaves Canada regardless, she is divorced. I take an oath and clearly state that I only intended her being divorced if she is leaving like this now, and not forever.
My question is that is this divorce perpetual that anytime she leaves Canada she is divorced or is it only in the context that I intended.
Answer:
In the Name of Allāh, the Almighty, the Most Merciful, the Most Kind.
Thank you for contacting Mathabah Institute. In the described scenario of conditional divorce, there is a conflict in understanding whether the condition is applicable now only or forever. The wife is claiming forever, and the husband is claiming a particular context. In such a situation, the husband’s intent and statement will be given preference, especially seeing that he had explained his condition several times to his wife and also his wife’s family. Therefore, if the wife travels now as intended by the husband, then she is considered divorced and the two divorces are formalized. However, as the husband explained if the wife does not travel now and travels after the approval of her husband, then she will not be divorced. – (See: Rad Al-Muḥtār, Vol 3, Page 356, Dār Al-Fikr[1])
And Allāh Knows Best.
[1] مَطْلَبٌ فِي اخْتِلَافِ الزَّوْجَيْنِ فِي وُجُودِ الشَّرْطِ قَوْلُهُ فِي وُجُودِ الشَّرْطِ أَيْ أَصْلًا أَوْ تَحَقُّقًا كَمَا فِي شَرْحِ الْمَجْمَعِ أَيْ اخْتَلَفَا فِي وُجُودِ أَصْلِ التَّعْلِيقِ بِالشَّرْطِ أَوْ فِي تَحَقُّقِ الشَّرْطِ بَعْدَ التَّعْلِيقِ وَفِي الْبَزَّازِيَّةِ ادَّعَى الِاسْتِثْنَاءَ أَوْ الشَّرْطَ فَالْقَوْلُ لَهُ ثُمَّ قَالَ وَذَكَرَ النَّسَفِيُّ ادَّعَى الزَّوْجُ الِاسْتِثْنَاءَ وَأَنْكَرَتْ فَالْقَوْلُ لَهَا وَلَا يُصَدَّقُ بِلَا بَيِّنَةٍ وَإِنْ ادَّعَى تَعْلِيقَ الطَّلَاقِ بِالشَّرْطِ وَادَّعَتْ الْإِرْسَالَ فَالْقَوْلُ لَهُ – رد المحتار ج ٣/ ص٣٥٦ دار الفكر
