Does a court summons, issued by the wife, constitute divorce?
Question:-
A husband abused and deserted his family, and is not providing for his family. They were separated over two years ago. They got back together but he then deserted her, and now, all respect is lost.
There is no hope of reconciliation, yet the husband is spitefully withholding the Talaaq.
1. If the matter has been taken to court and the wife issues the divorce summons, will Talaaq fall if the husband or the lawyer, accepts the summons on his behalf?
2. If the wife issues the divorce summons which states, “Divorce will be effective on acknowledgement of the divorce summons”, does the Talaaq take place:
(i) if the husband signs it?
(ii) if his lawyer or his representative signs it?
Answer:-
1. If the wife issues a divorce summons and the husband or his attorney signs to acknowledge receipt of the summons, then the divorce will not take place.
2.1. Although the wife has stated in the divorce summons that divorce will be effective by the husband acknowledging the summons, and the husband goes ahead and signs the document, even then the divorce will not take place.
2.2. The same ruling mentioned in 2.1 above, will be applicable if the lawyer or his representative signs it, that is, divorce will not take place.
A female hasn’t been afforded the authority of issuing a divorce in Shariah, hence, in all of the above cases, divorce will not fall. However, the husband should not unjustly oppress the wife and withhold the divorce, particularly if there is no hope of reconciling and continuing with the marriage. It is recorded in the Hadith Sharif that Allah Ta’ala grants respite to the oppressor, but when He grips him, then he doesn’t let go of him. The Quraan Sharif states, “Verily His grip is painful, severe.” In another verse of the Quraan Sharif Allah Ta’ala states, “If after divorcing the women twice, the woman is either retained in good faith (without harming her) or released (from the marriage) in kindness.” [Surah Baqarah, Verse 229] The verse clearly indicates that one should either keep his spouse in good manner (if he intends reconciling), or release her in a good manner, if there is no hope of reconciliation. The Hadith states that there is no barrier between the curse of the oppressed person and Allah Ta’ala. In other words, the Dua of the oppressed is certainly granted, even though it may be after time. In conclusion, we request the husband to reconcile with the wife in a kind manner, and if there is no hope of reconciliation, then dismiss her from the marriage in a kind manner.
ALLAH TA’ALA KNOWS BEST!
ANSWERED BY:
Mufti Mohammed Desai
Date: 26 Shawwal 1444 / 17 May 2023