If a man divorces his wife in a fit of temper, then two weeks later he comes to take her back, but she does not agree to go back to him, because he is unjust and has a number of wives, and he does not treat them fairly and he had forsaken her for more than a year – does she become haraam for him and is she regarded as divorced, or what?.
Praise be to Allaah.
The divorce issued by one who is angry and does not know what he is saying because of his anger or temper does not count as such. But if his anger did not affect his reasoning, and he knew what he was saying, then it does count as a divorce. The issue of divorce at times of anger has been discussed in the answers to questions no. 45174 and 22034.
The husband has the right to take his wife back and it is not essential that she agree to that, so long as he is taking her back within the ‘iddah of a first or second talaaq, because Allaah says (interpretation of the meaning):
“And divorced women shall wait (as regards their marriage) for three menstrual periods, and it is not lawful for them to conceal what Allaah has created in their wombs, if they believe in Allaah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And they (women) have rights (over their husbands as regards living expenses) similar (to those of their husbands) over them (as regards obedience and respect) to what is reasonable, but men have a degree (of responsibility) over them. And Allaah is All-Mighty, All-Wise”
This verse points to the conditions of taking back the wife, which are:
1- That it applies to talaaq (divorce). If it is the matter of annulment of the marriage, the husband cannot take her back, because Allaah says “And divorced women”.
2- That it should be a revocable divorce, which can only be a first or second talaaq. The phrase “The divorce is twice” [al-Baqarah 2:229] refers to the divorce where it is possible to take back the wife. If the third talaaq takes place, then he cannot take her back unless she marries another husband in a genuine marriage, then he separates from her in a proper manner after consummating the marriage.
3- It should be within the ‘iddah period, because Allaah says “And their husbands have the better right to take them back in that period” i.e., during the ‘iddah. If the ‘iddah comes to an end and he wants to take her back, that is only possible with a new marriage contract and mahr.
4- By taking her back, he should not intend to harm her, rather he should intend to reconcile and set things straight, because Allaah says “if they wish for reconciliation”. If he intended to harm her, she has to prove that to the shar’i judge so that he may rule as he sees fit.
The verse clearly indicates that the wife has no choice in the matter if the husband wants to take her back, and she has no right to refuse to go back to him, because Allaah says “And their husbands have the better right to take them back”. Even if she does not go back to his house, if he says he takes her back and brings witnesses to that, then he has in fact taken her back. Continue reading