A BROTHER FROM ENGLAND WRITES:
“Your response to my question on civil divorce and talaaq has generated much discussion and debate. However, some scholars still insist that the fatwa of the local Mufti is correct (that is, a court’s decree of divorce is a valid Talaaq according to the Shariah). They proffer the following arguments:
- As the husband is asking the court to issue him a divorce, his intention is inconsequential.
- Although the defenders of the fatwa cannot escape the reality that a non-Muslim judge has no wilaayat over a Muslim, for the purpose of fatwa, they argue, the judge has to be divested of his position and duties as a judge, and be treated as an ordinary person who is being appointed a wakeel by the petitioner. And since the wikaalat of a non-Muslim is acceptable, the divorce issued by him is also valid. A further piece of sophisticated incoherence they employ is to argue that a wakeel does not have to know that he has been appointed as wakeel while he may be acting as one.
There seems to be much confusion among the scholars who agree that a civil divorce results in talaaq. In
the US, the position adopted is that a talaaq raj’i comes into effect, whereas in the UK the ruling is for a talaaq baa-in.
Reliance on this ruling is causing considerable heartache to Muslims in the UK. Women are walking away from their marriages using the fatwa as justification. Innocent men are accused of ‘living in sin’ simply
because they have ended their legal marriage registration. I would appreciate further comments and advice on the matter. (The initial question was discussed in The Majlis, Vol.19 No.2)
It is truly surprising that Ulama fail to grasp the simple reality of a secular court’s divorce decree not being a Shar’i Talaaq. The arguments they are proffering are like an attempt to squeeze blood from a stone.
(1) The argument that “in divorce matters the spoken word or written word takes precedence over any interpretation the speaker or writer may attach to his words” has absolutely no relevance to the issue
of a husband seeking annulment of the legal registration of his marriage. The argument
presented here pertains to Talaaq, while the court application pertains to an entirely different matter. It does not relate to Talaaq. It pertains to cancellation of a secular registration by a secular court. Thus the
argument is fallacious because what is being said applies to Talaaq while the application to court does not remotely relate to Talaaq.
(2) The argument of Wikaalat (Agency) in this context is obnoxious and downright stupid. Neither does the husband appoint the judge to be his Wakeel nor does the judge accept that he is a Wakeel of the husband nor does he issue verdicts in the capacity of a wakeel of anyone,.
(3) The judge cannot be treated as an ordinary person who has been appointed a wakeel.
To imagine that the judge sitting in his court as a judicial official executing his judicial obligation is not a judge but an ordinary man who has been appointed the wakeel by a man who denies having appointed
him the wakeel, is to defy reason, logic, brains and reality. If this type of corrupt and utterly baseless imagination could be regarded as valid for the extrapolation of Ahkaam (Shar’i laws), then one may employ such corrupt, stupid and baatil imagination to imagine that a prostitute is one’s wife and the
relationship with her is lawful. There is no scope in the Shariah for the formulation of laws on the basis of imagination.
(4) The petitioner denies appointing the judge as his wakeel. Reality totally precludes the operation of Wikaalat in the judicial procedure. And, if by some bizarre assumption it should be stupidly accepted that the judge is a wakeel, then too, the husband denies appointing him as his wakeel, and he denies the assignment of Talaaq to the judge who is imagined to be the wakeel. There must necessarily be some semblance of reality before one could ever entertain the idea of Wikaalat.
(5) While the wikaalat of a non -Muslim is valid, the issue here is that a non-Muslim has not been appointed the wakeel. No one has been appointed the husband’s wakeel for issuing Talaaq on his behalf. Should we momentarily descend into the dregs of stupidity and assume that the judge is the husband’s wakeel, then too, it is binding on the wakeel to execute only the task which has been assigned to him by his Muakkil (principal). If a man appoints a wakeel to purchase for him a horse, the wakeel may not buy a donkey. If he
does buy a donkey, it will be for himself, not for the muakkil. Now, if we should stupidly accept that the judge is the wakeel, then he has to act according to the instructions of the husband who has ordered
him to cancel the secular registration of his marriage. If the wakeel who has not been appointed to administer Talaaq, issues talaaq to the man’s wife, such talaaq will not be valid. If a man appoints another person to strike his wife a few shots with a whip, and he (the wakeel) instead of giving her a beating issues Talaaq, such talaaq will not be valid for the simple reason that he did not act in accordance with the terms of his wikaalat.
(6) The averment that a wakeel’s act will be valid even if he is unaware of his appointment as the wakeel, has no relevance here. The contention applies to an instance of ‘appointment’. But, in the matter under discussion there is no appointment. The husband flatly denies any appointment of a wakeel. This argument
germane to our context is ludicrous. It is absurd.
(7) The confusion among the scholars on this simple issue is the product of unprincipled reasoning. The matter is simple and conspicuous. There is no ambiguity. But because they have not applied their minds,
they stumble in incongruities. The scenario is as simple as follows:
A. The husband wants, for example, that after his death his estate should devolve to his heirs according to the Shariah. In a secular state he has to leave an Islamic Will to ensure conformity with the Shariah. However, in certain secular marital property regimes, an Islamic will is not valid. Or he requires cancellation of the secular registration for some other reason.
B. To achieve this objective, he instructs an attorney to apply to the secular court for the cancellation of the
registration. For accomplishing this, there is a secular legal procedure to follow. The attorney adopts this legal procedure, and makes the application to the court.
C. The judge in his own right as the judge of the court decides and issues an order to cancel the registration.
Now regardless of what the secular process is for achieving this objective, it is never Talaaq. The husband has not uttered Talaaq to his wife nor has he appointed the attorney or the judge to administer Talaaq
to his wife. He only requires cancellation of the haraam registration.
(8) Women who regard the kaafir court’s verdict as a Talaaq should understand that their Nikah remains valid. They cannot get Islamically married to any other man. Any subsequent mock ‘nikah’ with
another man will be an adulterous relationship. It is therefore, imperative for the Muftis at your end to exercise caution and fear. They will be plunging people into the cauldron of zina with their highly erroneous fatwa.
Furthermore, we do not understand how “women are walking away from their marriages, using the fatwa as justification”. Although the fatwa is highly erroneous and has no validity in the Shariah, as preposterous as it is, it nevertheless, has been issued for a case where the husband makes the application for cancellation of the registration. The fatwa does not bring within its scope a court’s decree of divorce applied for by a woman. If the wife makes the application, we are sure that the Muftis at your end, despite their inability to have comprehended the judge’s role and the husband’s petition, do not extend their
idea to a case where the woman applies for ‘divorce’ regardless of whether the husband defends or does not defend the application. Thus, the issue of ‘women walking away from their marriages’ is incomprehensible to us.