I have been given a first, revocable, talaaq, and my 'iddah ended
after I became pure following the third of three menstrual cycles
since thedivorce occurred two months ago. During the 'iddah period, my
husband did not take me back, but he is a master atplaying games and
there are a number of issues between us. I am afraid that he may have
taken me back without telling me, because there was a court case as I
had taken him to court for khula' (a kind of divorce), but whenthe
talaaq occurred, there was no longer any need for it so the case was
closed. I am afraid that after the case was closed Iwill find out that
he took me back without my knowledge. Please note that he divorced me
in front of a notary and nowI have a document of thatrevocable
divorce. I hope that you can advise me asto what I should do? In order
for him to take me back, does he have to do so in front of the same
notary in front of whom he divorced me, and in the same record, or
not?.
Praise be to Allaah.
Firstly:
The husband may take back his wife whom he divorced revocably
duringthe 'iddah, and it is not stipulated that she shouldbe present
or know of it, or that the taking back bedone in the presence of a
notary, whether the divorce was issued in the presence of a notary or
not.
But it is mustahabb for the taking back to be witnessed by two
witnesses, and it was said that it is obligatory for it to be
witnessed.
Ibn Qudaamah (may Allahhave mercy on him) said: Taking back is done by
saying to two Muslim men: Bear witness that I have taken aback my
wife, without any guardian being present and without any mahr being
added. Another report was narrated from Abu 'Abdullah (may Allah have
mercy on him), which says that it is permissible to take the wife back
without it beingwitnessed, the reason being that taking back does not
require any guardian or mahr, or the consent or knowledge of the wife,
according to scholarly consensus, because of what we have mentioned
about the woman who us revocably divorced coming under the heading of
rulings on wives, and taking her back means keeping her and continuing
marriage to her. Hence Allah, may He be glorified and exalted,
described taking back as "retaining" and leaving them as "releasing"
them, as He says (interpretation of themeaning): "…and they have
reached their term, then retain them in kindness or release them in
kindness" [al-Baqarah 2:231] and, in another verse, "and then (a
woman) must be retainedin honour or released in kindness" [al-Baqarah
2:229]. Marriage is brokenby divorce and is restored when the divorce
is rendered null and void; taking back the wife removes the reason for
the break and stops it going all the way to irrevocable divorce;
therefore it does not require what is required to initiate a new
marriagecontract.
With regard to witnessing, there are two reports, one of which
saysthat it is obligatory. This isone of the two views of
ash-Shaafa'i, because Allah, may He be exalted, says (interpretation
of themeaning): "Then when they are about to fulfil their term
appointed, either take them back in agood manner or part withthem in a
good manner. And take for witness two just persons from among you
(Muslims)" [at-Talaaq 65:2]. The apparent meaning of the commandis
that it is obligatory, andbecause this is for the purpose of making
intimacy permissible, having it witnessed is required as in the case
of the marriage contract.
The second report says that having witnesses is not required. This is
the view favoured by Abu Bakr, and was the opinionof Maalik and Abu
Haneefah, because there is no need for acceptance, so there is no need
for witnesses, as is the case with all the husband's rights, and that
is becausewith regard to that in which the guardian's consent is not
required, it is not necessary to have witnesses. In this case the
command is understood as meaning that it is mustahabb. However there
is no difference of opinion among the scholars that it is Sunnah to
have witnesses.
End quote from al-Mughni, 7/403
Thus you know that your husband may have taken back during the 'iddah
and that his taking back isvalid, whether he took you back in the
presence of a notary or not. But if he comes after the end of your
'iddah and claims that he took you back, he will be to provide proof,
which is the testimony of two witnesses, unless youbelieve his claim,
in whichcase you may go back to him.
If the woman gets married after the end of her 'iddah, then her first
husband claims that he took her back without herknowledge and provides
proof of that, then she is to be returned to him.
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