i have a question and i will be greatful if u can answer me as soon as possible because currently the decision has to be taken immediately.My friend husband has given her divorce in india.he legally signed the papers in front of two witnesses.the divorce was named as TALAQ E BAEEIN. And my friend was in state of menses the day he signed that day her periods began.She was told to wait for her iddah to get over and accordingly if we take that day of menses she finished her iddah.Now after three months he has sent her text message formally annoucing that he has taken her into his nikah back as his wife.

My question is

1-is talaq e baeein it the first or second or third divorce.As he has not uttered the words before also wen she was in nikaah.

2-can he take back his wife by just a mobile sms.

3-plz tell me if the divorce is valid if she is menstruating.

Plz help me in the light of Quran and Sunnah.


140315

Ruling on
kissing and embracing one wife in front of her co-wives!

.

Praise be to Allah.

Firstly:

Revocable divorce is the first or second talaaq, so long as it is not talaaq
in return for money (i.e., so long as it is not khula‘). Then this revocable
divorce is counted as one of the three talaaqs, and it is permissible to
take the wife back during her ‘iddah, even if that is without her consent,
with no new marriage contract or mahr; rather the original marriage contract
remains in effect. 

As for
irrevocable divorce (at-talaaq al-baa’in), it is divided into two types,
major and minor. Irrevocable divorce in the major sense means that the
husband has completed three talaaqs, as a result of which the marriage
contract between them comes to an end, and it is not permissible for him to
marry her again until after she has married another husband in a genuine
marriage, not a tahleel marriage (one aimed making it permissible for her to
go back to the first husband), then the second husband divorces her or
passes away. 

Irrevocable divorce in the minor sense refers to cases where talaaq is
issued in return for compensation, or it occurs before consummation of the
marriage, or where the husband has issued one or two talaaqs and has not
taken her back before her ‘iddah ended. As a consequence of that, the
marriage contract between them comes to an end, but it is possible for the
husband to remarry her with her consent, and with a new marriage contract
and mahr. This has been explained previously in fatwa no.
46561

Hence
it is known that this talaaq that your friend signed for his wife is a
revocable talaaq, so long as it did not happen in return for money, and was
not a third talaaq, as appears to be the case from your question. 

Secondly: 

The
‘iddah of a woman divorced by talaaq varies according to her situation. This
has been explained previously in detail in fatwa no.
12667
 

So
long as this woman menstruates, as is mentioned in the question, then her
‘iddah is according to her menstrual cycle. So what she must do is wait
until she has had three menstrual cycles after her divorce, including the
menses that came on the day of the talaaq, if he divorced her before her
menses began, as we shall see below. If her husband took her back during
this ‘iddah, i.e., before her third menses, then she is still his wife. 

But if
he took her back after the end of the ‘iddah, then in that case the taking
back is not valid, and she has become irrevocable divorce in the minor
sense. 

Thirdly: 

The
fuqaha’ are unanimously agreed that taking back the wife is valid if done by
means of words to that effect, such as if he says to her: “I take you back”
or “I take her back”. However they differed as to whether taking back may be
achieved by means of actions, such as intercourse and the things that lead
to it, e.g., touching, kissing, being alone together. This has been
discussed previously in the answer to question no. 23269

You
say that your friend sent her a text message saying that he was taking her
back. If he intended to take her back by means of this message, then it was
fulfilled thereby. The scholars have stated that writing down the taking
back, with the intention of doing so, counts as taking back. It says in
I‘aanat al-Taalibeen ‘ala Hall Alfaaz Fath al-Ma‘een
(4/34): Writing may
take the place of speaking, if accompanied by the intention. End quote. 

However we should point out that just as it is not necessary to have the
wife’s consent to taking her back, it is also not necessary to inform her of
it; rather even if he takes her back without her knowledge, the taking back
is still valid, and she is obliged to comply with the implications of his
taking her back once she is certain of his claim to have taken her back
during the ‘iddah, or once he establishes proof for her. 

It
says in Badaa’i‘ as-Sanaa’i‘ fi Tarteeb ash-Sharaa’i‘ (3/181):

Similarly, informing her that he is taking her back is not an essential
condition; even if he does not tell her that he is taking her back, that is
acceptable, because taking back is his right exclusively. End quote. 

Fourthly: 

Issuing a talaaq during menses is a sin and an act of disobedience; it is
contrary to the command of the Prophet (blessings and peace of Allah be upon
him). As to whether it is applicable to the wife, that is a matter
concerning which the scholars differed. We have discussed this difference of
opinion previously; for information on the most correct view, please see
fatwa no. 72417 

This
difference of opinion is of concern if the husband issued a divorce to his
wife at the time when she was menstruating. As for completing the official
procedures and filing the divorce papers, that has nothing to do with
whether the woman is menstruating or not. If he divorced her during a period
of purity in which he had not had intercourse with her, but the divorce
papers were signed when she was menstruating, then this divorce was done in
accordance with the Sunnah and counts as such, according to scholarly
consensus, even if she got her menses on the same day, after he had actually
divorced her. 

And
Allah knows best.