Source: Fatāwā Muḥammadiyyah, Volume 1, Page 830
What is the verdict of the scholars in the following case?
A dispute arose between two parties regarding the abduction of a girl. The party whose son was accused of kidnapping the girl filed a counter-allegation, accusing the girl's family of hiding their son.
Later, they found a dead body resembling their son and, assuming it was his, buried it. They subsequently filed a murder case against the girl’s family.
During the investigation, the investigating officer challenged the boy's family, saying:
“If your son has truly been killed, then instead of swearing an oath, prove it by divorcing your wives.”
Taking this challenge seriously, they issued triple divorces to their wives to affirm their claim.
Later, the officer recovered the boy alive and presented him before both parties.
Now the question is: According to Sharīʿah, have those divorces taken effect or not?
Al-ḥamdu lillāh, waṣ-ṣalātu wa-s-salāmu ʿalā Rasūlillāh. Ammā baʿd:
Assuming the question is accurate, the divorces have taken place based on two primary Sharʿī principles:
◈ The husbands, after finding a body resembling their missing son, became convinced that their son had been murdered by the girl's family.
◈ Acting on this strong assumption, they intentionally issued divorces to validate their claim.
◈ In Islamic law, ẓann ghālib (overwhelming presumption) is accepted as a valid basis in certain legal matters.
Examples include:
❖ When a person cannot determine the Qiblah, he may pray based on strong assumption.
❖ The ruling regarding sajdat al-sahw (prostration of forgetfulness) is also based on ẓann ghālib.
▶ Thus, the issuance of divorce under strong presumption is likewise considered valid.
There are two primary types of divorce:
✿ Not linked to any condition or future event.
✿ Intended for immediate enforcement.
✿ Example: A husband says: “Anti ṭāliq” (You are divorced) – it takes effect immediately.
✿ Linked to a specific condition.
✿ Example: “If you go to such-and-such place, you are divorced.”
Conditions for validity of conditional divorce:
① The condition must refer to a future event.
② The wife must be under the husband's marital bond at the time.
③ The condition must be fulfilled while the marriage is still valid.
① Talaq Taʿlīq Qasami (Oath-like Conditional Divorce)
✿ Used to emphasize a claim, prevent an action, or encourage an action.
✿ Example: “If you go outside, you are divorced” – intent is not to divorce, but to deter.
② Talaq Taʿlīq Sharṭi (True Conditional Divorce)
✿ Divorce is intended upon fulfillment of a condition.
✿ Example: “If you don’t waive my mahr, you are divorced.”
Based on understanding, this case falls under Talaq Taʿlīq Qasami (Oath-like Conditional Divorce).
Despite this, the majority of scholars (jumhūr) are of the opinion that both types of conditional divorce result in actual divorce.
Shaykh Muḥammad Sābiq al-Miṣrī رحمه الله said:
"Both types of conditional divorce result in actual divorce, according to the majority of scholars."
(Fiqh al-Sunnah, Vol. 2, pp. 222–223)
Imām Ibn Ḥazm رحمه الله stated:
"Conditional divorce does not occur. According to the Shaykhayn (Abū Bakr and ʿUmar رضي الله عنهما), oath-like conditional divorce does not result in divorce but requires kaffārat al-yamīn (expiation of an oath). However, true conditional divorce does occur."
(Fiqh al-Sunnah, Vol. 2, p. 223)
The investigating officer reasoned that people lie under oath, and later pay kaffārah and repent.
But issuing divorce is seen as more serious, as people do not easily ruin their homes.
Hence, the officer proposed this extreme measure to test the truth of their claim.
So, they said:
“If the girl’s family didn’t kill our son, then our wives are divorced.”
When the son was found alive, and they admitted it, the condition was fulfilled.
Thus, according to the majority of scholars, the divorces have taken effect.
However, Imām Ibn al-Qayyim and Imām Ibn Ḥazm held that such divorce does not take place.
✿ According to the majority of fuqahāʾ, the divorces have taken place.
✿ According to Imām Ibn al-Qayyim and Imām Ibn Ḥazm, they have not taken place.
هٰذا ما عندي، والله أعلم بالصواب
❖ Question:
What is the verdict of the scholars in the following case?
A dispute arose between two parties regarding the abduction of a girl. The party whose son was accused of kidnapping the girl filed a counter-allegation, accusing the girl's family of hiding their son.
Later, they found a dead body resembling their son and, assuming it was his, buried it. They subsequently filed a murder case against the girl’s family.
During the investigation, the investigating officer challenged the boy's family, saying:
“If your son has truly been killed, then instead of swearing an oath, prove it by divorcing your wives.”
Taking this challenge seriously, they issued triple divorces to their wives to affirm their claim.
Later, the officer recovered the boy alive and presented him before both parties.
Now the question is: According to Sharīʿah, have those divorces taken effect or not?
❖ Answer:
Al-ḥamdu lillāh, waṣ-ṣalātu wa-s-salāmu ʿalā Rasūlillāh. Ammā baʿd:
Assuming the question is accurate, the divorces have taken place based on two primary Sharʿī principles:
① Divorce Issued Based on Ghalib Ẓann (Strong Presumption)
◈ The husbands, after finding a body resembling their missing son, became convinced that their son had been murdered by the girl's family.
◈ Acting on this strong assumption, they intentionally issued divorces to validate their claim.
◈ In Islamic law, ẓann ghālib (overwhelming presumption) is accepted as a valid basis in certain legal matters.
Examples include:
❖ When a person cannot determine the Qiblah, he may pray based on strong assumption.
❖ The ruling regarding sajdat al-sahw (prostration of forgetfulness) is also based on ẓann ghālib.
▶ Thus, the issuance of divorce under strong presumption is likewise considered valid.
② Types of Divorce in Sharīʿah
There are two primary types of divorce:
➊ Talaq Munajjaz (Immediate Divorce)
✿ Not linked to any condition or future event.
✿ Intended for immediate enforcement.
✿ Example: A husband says: “Anti ṭāliq” (You are divorced) – it takes effect immediately.
➋ Talaq Muʿallaq (Conditional Divorce)
✿ Linked to a specific condition.
✿ Example: “If you go to such-and-such place, you are divorced.”
Conditions for validity of conditional divorce:
① The condition must refer to a future event.
② The wife must be under the husband's marital bond at the time.
③ The condition must be fulfilled while the marriage is still valid.
Two Subtypes of Conditional Divorce:
① Talaq Taʿlīq Qasami (Oath-like Conditional Divorce)
✿ Used to emphasize a claim, prevent an action, or encourage an action.
✿ Example: “If you go outside, you are divorced” – intent is not to divorce, but to deter.
② Talaq Taʿlīq Sharṭi (True Conditional Divorce)
✿ Divorce is intended upon fulfillment of a condition.
✿ Example: “If you don’t waive my mahr, you are divorced.”
❖ Classification of the Present Case:
Based on understanding, this case falls under Talaq Taʿlīq Qasami (Oath-like Conditional Divorce).
Despite this, the majority of scholars (jumhūr) are of the opinion that both types of conditional divorce result in actual divorce.
❖ Opinions of Scholars:
Shaykh Muḥammad Sābiq al-Miṣrī رحمه الله said:
"Both types of conditional divorce result in actual divorce, according to the majority of scholars."
(Fiqh al-Sunnah, Vol. 2, pp. 222–223)
Imām Ibn Ḥazm رحمه الله stated:
"Conditional divorce does not occur. According to the Shaykhayn (Abū Bakr and ʿUmar رضي الله عنهما), oath-like conditional divorce does not result in divorce but requires kaffārat al-yamīn (expiation of an oath). However, true conditional divorce does occur."
(Fiqh al-Sunnah, Vol. 2, p. 223)
❖ Investigative Insight:
The investigating officer reasoned that people lie under oath, and later pay kaffārah and repent.
But issuing divorce is seen as more serious, as people do not easily ruin their homes.
Hence, the officer proposed this extreme measure to test the truth of their claim.
So, they said:
“If the girl’s family didn’t kill our son, then our wives are divorced.”
When the son was found alive, and they admitted it, the condition was fulfilled.
Thus, according to the majority of scholars, the divorces have taken effect.
However, Imām Ibn al-Qayyim and Imām Ibn Ḥazm held that such divorce does not take place.
Summary of the Ruling:
✿ According to the majority of fuqahāʾ, the divorces have taken place.
✿ According to Imām Ibn al-Qayyim and Imām Ibn Ḥazm, they have not taken place.
هٰذا ما عندي، والله أعلم بالصواب
