A man has 2 wives. He says to the first wife I divorce her meaning he gives a divorce to the second wife. One else hears him say this except for the first wife and himself. The second wife lives in another country and the husband only sees her for a couple of weeks a year. The man has never told second wife he said these words about her. The man will visit his family and second wife in a couple of months. This happened over 8 months ago (Giving Talaaq to second wife) Now my questions. Is this a valid divorce? What would happen if the man says nothing and sleeps with second wife? What is the ruling if this man said talaaq three times?
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
If a husband says about his wife, ''I am divorcing her'', then this does not lead to divorce by itself as this is a promise of divorce, and a promise of divorce is not a divorce. In addition to this, the present tense could refer to the present and it could refer to the future. However, if by this statement, he intends to divorce her in the present time (now), then divorce takes place. Al-'Abbaadi from the Shaafi'ee School of jurisprudence said, ''If a man says to his wife that she will be divorced, does this mean that she is divorced as the wording may refer to both the present and the future? Also, is this a clear statement of divorce or a metaphor for divorce if it appears that this expression is a metaphor for divorce? If he intends divorce in the present by uttering it, then she is divorced, but if he intends to condition that on something else, then he should mention the condition otherwise it is just a promise and it does not lead to divorce.''
If we assume that the husband intends divorce by uttering this expression, then it is not a condition for his wife to know about it for this divorce to take place, rather divorce takes place as soon as he utters this expression. However, he is allowed to take her back if it is the first or second divorce as long as she is in her waiting period.
As regards when a husband utters this expression three times, then if it is in one session, divorce takes place three times, according to the view of the majority of the scholars if he did not only intend to stress the first divorce (by the repetition). For more on this, please refer to Fatwas 92233 and 89861.
According to the view of the majority of the scholars that she is divorced three times, he is not permitted to enjoy her. If he does so, he is wrong in doing so and if he believes that he is allowed to have intercourse with her and has a child from this [intercourse], then the child should be traced back to him as he has intercourse with her believing that it is permissible for him to do so.
Finally, it should be noted that if a man has two wives in two different countries, he is obliged to be just between them as he had chosen to be away from one of them, and her right is not overruled simply by him being away from her; this is the view of Ibn Qudaamah as he clarified how to divide the time and be just between them, like appointing a period according to his ability, like a month for each, or a period more or less than a month.
Allaah Knows best.
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