Different scenarios of Talaaq

Question ID: 
2185
hoq***@gmail.com asks:

Question

Assalamualaikum Sheikh.
1. If a woman says before marriage, "every man is haram for me" or "I am haram to every man" will she be divorced after marriage when her husband gives her the right? What to do so that talaq doesn’t occur when she gets married?

2. If the delegation of talaq takes place at the time of contracting the marriage, with the woman saying, “I marry myself to you on the condition that I will have the right to divorce myself whenever I wish,” and the husband responds, “I accept this,” the delegation is valid, right? Doesn’t it have to be said during ijab by women? What if she said something by herself like this long before her marriage when she doesn’t even know her husband? Will divorce talaq occur if she doesn’t say something like this during her ijab? If talaq occurs this way, what to do so that talaq doesn’t occur when she gets married?

3. what if the woman says long before her marriage, "I am divorced if I get married" will she be divorced right after her husband gives her the right of talaq even though she doesn't pronounce it? Does it have any connection with the previous statement about delegation? What if she mistakenly said "I am divorced if I get married" long before her marriage but don't pronounce the words of delegation during her marriage contract. Will the divorce occur? Please explain according to hanafi fiqh. What to do so that talaq doesn’t occur when she gets married? What precautions she can take?

4. Is there any divorce for women where her husband doesn’t give her the right but because of she said something she becomes divorced even though her husband doesn’t delegate the right to her?

5. What to do to prevent divorce of a woman when she has OCD or waswas? If her husband doesn’t give her the right before marriage, during marriage or after marriage, will the divorce still occur because of the woman’s saying?

6. How should she console herself when she has ocd thoughts on divorce before marriage?

Please answer every question in details according to Hanafi fiqh. May Allah reward you.

Answer

Waalaikumussalaam wa Rahmatullahi wa Barakatuh

1. Before answering to your question lets understand a ruling first. Shari’ah never gave the rights to the wife to give herself Talaaq, in fact, this rights goes to the husband. Yes, in only one scenario, where the husband after marriage do Tafweez e Talaaq meaning he hands over his rights to give Talaaq to his wife or someone else, then only, his wife will have the power to give herself Talaaq or this someone can give her Talaaq in place of the husband and the Talaaq will be valid.

Coming up to your question, If a woman says before marriage, "every man is haram for me" or "I am haram to every man" or she says long before her marriage, "I am divorced if I get married" or sentence like that, in all these cases, Talaaq will not come to effect. This is because a lady can never own the right of talaq by herself. [1]

2. On the other hand, if a woman says to her future husband in front of two males witnesses or two females and one male at the time of Ijaab (proposal) and Qubool (acceptance), “I marry myself to you on the condition that I will have the right to divorce myself whenever I wish,” and the husband responds, “I accept this” then both, the Nikaah and the Tafweez e Talaaq will be valid, providing that the Ijaab is done by the woman. [2]

3. Same answer as number one.

Important note: The answer was given according to the sentences used in the question. Different sentences and wordings used by the future wife or the future husband will have different rulings.

4. There is no such divorce for women.
5./6. These evil thoughts are definitely from shaytan. The remedy for these evil whispers are the last two Surahs of the Qur'an (Surah Falaq and Naas).

You can also contact a muslim psychologist for assistance in healing from your OCD.

[1] قَوْلُهُ (‌وَلَا ‌يَصِحُّ ‌إضَافَةُ ‌الطَّلَاقِ ‌إلَّا ‌أَنْ ‌يَكُون ‌الْحَالِفُ ‌مَالِكًا أَوْ يُضِيفَهُ إلَى مِلْكٍ) فَإِنْ قَالَ لِأَجْنَبِيَّةٍ إنْ دَخَلْت الدَّارَ فَأَنْتِ طَالِقٌ ثُمَّ تَزَوَّجَهَا فَدَخَلَتْ الدَّارَ لَمْ تَطْلُقْ؛ لِأَنَّهُ لَمْ يُوقِعْ الطَّلَاقَ فِي نِكَاحٍ وَلَا أَضَافَهُ إلَى نِكَاحٍ. (الجوهرة النيرة على مختصر القدوري/ج2/ص39)
ولا يصح إضافة الطلاق) أي تعليقه (إلا أن يكون الحالف مالكا) للطلاق حين الحلف، كقوله لمنكوحته: إن دخلت الدار فأنت طالق (أو يضيفه إلى ملك) ، كقوله الأجنبية: إن نكحتك فأنت طالق (وإن) لم يكن مالكا للطلاق حين الحلف ولم يضفه إلى ملك بأن (قال لأجنبية: إن دخلت الدار فأنت طالق، ثم تزوجها فدخلت الدار لم تطلق) ، لعدم الملك حين الحلف والإضافة إليه. (اللباب في شرح الكتاب/ج3/ص46)
قَالَ زَوِّجْنِي ابْنَتَك عَلَى أَنَّ أَمْرَهَا بِيَدِك لَمْ يَكُنْ لَهُ الْأَمْرُ لِأَنَّهُ تَفْوِيضٌ قَبْلَ النِّكَاحِ. (شامي/ج3/ص27)

[2] لَكِنْ ذَكَرَ فِي الْبَحْرِ هُنَاكَ أَنَّ هَذَا لَوْ ابْتَدَأَتْ الْمَرْأَةُ فَقَالَتْ زَوَّجْت نَفْسِي عَلَى أَنَّ أَمْرِي بِيَدِي أُطَلِّقُ نَفْسِي كُلَّمَا أُرِيدُ أَوْ عَلَى أَنِّي طَالِقٌ فَقَالَ: قَبِلْت وَقَعَ الطَّلَاقُ وَصَارَ الْأَمْرُ بِيَدِهَا، أَمَّا لَوْ بَدَأَ هُوَ لَا تَطْلُقُ وَلَا يَصِيرُ الْأَمْرُ بِيَدِهَا (شامي/ج3/ص27)

Answered jointly by:
Mf Uthmaan and Mf Abdallah
for the Jamiatul ulama of Mauritius