The Right Of Talaaq
QUESTION:
A woman was granted interim maintenance relief beyond the Iddah period. The court held that a husband could not unilaterally end a marriage through a Talaaq, and that the marriage dissolves only once a court of law confirms the dissolution.
The background to this judgement is that a divorce had taken place, which was confirmed by Jamiat offices in Johannesburg. A few months later, the divorcee challenged the divorce with a Muslim attorney in Johannesburg. The court initially upheld the agreement between the two parties, based on their engagement with the Jamiat and concluded by two parties.
She with her lawyer appealed this, arguing that the Talaaq didn’t take place and claimed maintenance. A group of sincere Muslims engaged the family of the divorcee, as well as the attorney, in good faith, warning them of the severe consequences of the appeal which would directly affect various aspects of the Shariah which have been clearly defined by Allah Ta’ala in the Quraan Shareef. Now the court will determine the Talaaq. Even if a husband issues multiple Talaaqs but the judge feels otherwise, it will not be constituted as Talaaq. Coupled with this, the wife can go directly to the court and get a Talaaq from the judge, even if the husband did not issue a Talaaq.
Basically, the right of Talaaq has been taken away from the husband and given to the courts, and by extension, given to the wife. This ultimately harms many aspects of Deen such as inheritance, Nikaah, Talaaq, etc. which are clearly outlined in the Quraan Sharif. The Muslim attorney has challenged the law of Allah Ta’ala n the Quraan Sharif, despite being advised of consequences.
Furthermore, the judge has uutilized the application of the woman’s legal centre to pronounce this judgement, which is contrary to the Quraan Sharif and Sunnah, bearing in mind that Ulama bodies in SA are friends of the court in this matter, in support of the woman’s legal centre.
ANSWER:
From the outset, it is solely the right of the husband to issue the Talaaq. (Re: Kitaabun Nawaazil Vol. 9 Pg. 30). Neither the court, nor the wife, has the authority or ability to take away this right from him. Now, coming the queried scenario:
Q1) What is the status of the Imaan of the divorcee who has challenged the law of Allah Ta’ala?
A1) The divorcee will be sinful for challenging and acting against the law of Allah Ta’ala and Rasulullah Sallallahu Alaihi Wasallam. However, she will not become a Kaafir. Yes, if she believes that the law of Allah Ta’ala (i.e. the Quraan) is incorrect and the decision of the court is correct, then she will leave the fold of Islam and her Nikaah will be terminated. If she happens to pass away in such a state, then her Janaazah Salaah will not be performed. (Re: Kitaabun Nawaazil Vol.1 Pg. 390)
Q2) What is the status of the Imaan of the attorney who has intentionally fought this case, challenging the Quraan despite being advised against it? And further, he made this judgement law which will now affect all Talaaq going forward? Is he a Muslim?
A2) As stated in No.1
Q3) What is the status of his Nikaah?
A3) As stated in No.1
Q4) What legal steps should the attorney take to undo the damage he has caused?
A4) The attorney who has made this grave offense should make Taubah (seek sincere repentance) and should inform the court that he has made an error and retract the case.
Q5) What category of apostasy would such stances be categorized as?
A5) As stated in No.1
Q6) Should their Janaazah Salaah be performed if they don’t undo the harm and damage they have caused?
6. As stated in No.1
عن أبي هريرة رضي الله عنه عن النبي صلى الله عليه وسلم قال: المراء في القرآن كفر. (سنن أبي داؤد ٦٣٢/٢ رقم: ٤٦٠٣)
وفي الظهيرية: وإن لم تكن له نية حمل المفتي كلامه على وجه لا يوجب التكفير ويومر بالتوبة والاستغفار واستجداد النكاح. (الفتاوى التاتارخانية ٢٨٦/٧، رقم: ١٠٤٨٧)
عن الضحاك بن مزاحم قال : إذا ارتد الرجل بانت منه امرأته فإن أسلم فهو خاطب . (رواه سعيد بن منصور في سننه ٢٩٧/٢ رقم: ٢٨٣٤)
وفي الينابيع: قال أبو حنيفة: لا يكون الكفر كفراً حتى يعقد عليه القلب.
(الفتاوى التاتارخانية ٢٨٦/٧، رقم: ١٠٤٨٧)
ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST!
ANSWERED BY:
Mufti Abdul Kader Fazlani
Date: 18 Muharram 1448 / 06 July 2026
CHECKED AND APPROVED BY:
Mufti Yacoob Vally Saheb