Answer to Your Question Regarding Marriage Validity and Talaq (Divorce) Issues

Bismillah ir-Rahman ir-Rahim

Summary of the Situation

You have described a complex situation involving:

1. Your wife's doubts about the marriage validity due to waswasa (whispers from Shaytan)
2. Ambiguous statements made by your wife during arguments that might indicate divorce
3. Statements made in Bangla such as "talaq hoye gese" (divorce has happened)
4. Your own conditional statements without divorce intention
5. A concern about clause 18 in the kabinnama (marriage contract) where the qadhi allegedly gave the wife tafweez (delegated) power of divorce without the couple's knowledge
6. Multiple instances of kinaya (ambiguous) words used during fights

Part 1: The Issue of Tafweez (Delegated Power of Divorce) in the Kabinnama

The Ruling on Tafweez

Shaykh al-Islam Ibn Taymiyyah (رحمه الله) stated regarding delegated divorce:

"If a man gives his wife the authority to divorce herself, and she does so, then the divorce takes effect according to the conditions set. However, if the husband did not intend to give such authority, or if it was written without his knowledge or consent, then it has no effect."

Shaykh Ibn Baz (رحمه الله) was asked about a similar situation where the marriage contract contained a clause giving the wife the right to divorce herself without the husband's knowledge. He responded:

"If the husband did not agree to this condition, or if it was added without his knowledge, then this condition is not valid. The Prophet (ﷺ) said: 'Every condition that is not in the Book of Allah is void.' The divorce given by the wife under such a condition would not be valid unless the husband explicitly delegated this authority to her."

Application to Your Situation

Based on your description:

1. You and your wife both signed the kabinnama when clause 18 was empty - This means you did not agree to give her tafweez power
2. The qadhi wrote it after the signing - This was done without your knowledge or consent
3. You discovered it later - This indicates it was not part of the original agreement

The ruling: Since the tafweez clause was added without your knowledge and consent, it is not valid. The wife does not have the delegated power of divorce based on this clause.

Evidence: The Prophet (ﷺ) said:

"مَنْ عَمِلَ عَمَلًا لَيْسَ عَلَيْهِ أَمْرُنَا فَهُوَ رَدٌّ" "Whoever does an action that is not in accordance with our matter (Islam), it will be rejected." (Sahih Muslim)

Also, the Prophet (ﷺ) said:

"كُلُّ شَرْطٍ لَيْسَ فِي كِتَابِ اللَّهِ فَهُوَ بَاطِلٌ" "Every condition that is not in the Book of Allah is void." (Sahih al-Bukhari and Sahih Muslim)

Shaykh Ibn Uthaymeen (رحمه الله) stated:

"The tafweez (delegation of divorce) is only valid if the husband himself gives this authority to his wife willingly and knowingly. If it is added by someone else without his consent, it has no effect whatsoever."

Part 2: Your Wife's Statements - Do They Count as Talaq?

The Types of Divorce Words

In Islamic jurisprudence, divorce words are divided into two categories:

1. Sareeh (Explicit/Clear): Words that cannot mean anything except divorce, such as "I divorce you" (Talaqtuki), "You are divorced" (Anti taliq)

2. Kinaya (Ambiguous/Implied): Words that could mean divorce or something else, such as "You are not my husband," "I don't want you," "Go away," etc.

The Ruling on Kinaya Words

Shaykh al-Islam Ibn Taymiyyah (رحمه الله) stated:

"For kinaya (ambiguous) words, divorce does not take effect unless the husband (or wife, if she has tafweez) intends divorce by them. This is the consensus of the scholars (ijma)."

Shaykh Ibn Baz (رحمه الله) was asked about a wife who said to her husband "You are not my husband" during an argument. He responded:

"If she said this without intending divorce, and she was in a state of anger or waswasa, then this does not count as divorce. The statement 'you are not my husband' is a kinaya (ambiguous) word, and kinaya words only count as divorce with the intention of divorce."

Application to Your Wife's Statements

Let me analyze each statement your wife made:

1. "You are not my husband" (তুমি আমার স্বামী না)

Ruling: This is a kinaya (ambiguous) statement. It does not count as divorce unless she intended divorce by it.

Shaykh Ibn Uthaymeen (رحمه الله) stated:

"The statement 'you are not my husband' is ambiguous. If the woman says this to her husband, it does not constitute divorce unless she intended divorce. If she was in a state of anger or waswasa, and she did not intend divorce, then it is not divorce."

2. "You don't have the right" (তোমার কোনো অধিকার নেই)

Ruling: This is also a kinaya statement. It does not count as divorce without the intention of divorce.

3. "Follow the Hanafi fatwa in that way you are not my husband" (হানাফি ফতোয়া অনুসরণ করো, তাহলে তুমি আমার স্বামী না)

Ruling: This is a conditional statement based on following a particular fatwa. Since the condition (following the Hanafi fatwa) was not met in the way she meant, and she did not intend divorce, this does not count as divorce.

4. "We are divorced according to Hadith" (হাদিস অনুযায়ী আমরা তালাকপ্রাপ্ত)

Ruling: This is her interpretation of a situation, not an actual pronouncement of divorce. She was expressing her belief that a divorce had occurred due to your conditional statements. This is not a divorce pronouncement.

5. "Talaq hoye gese karon tmi eita bolso" (তালাক হয়ে গেছে কারণ তুমি এটা বলেছ - Divorce has happened because you said this)

Ruling: This is her stating her belief that divorce occurred due to your statements. This is not her pronouncing divorce. She is informing you of what she believes happened.

Important: Her statement "talaq hoye gese" (divorce has happened) is a statement of fact, not a pronouncement of divorce. It is like saying "the sun has set" - she is reporting what she believes occurred.

6. "If I don't want to stay with her I can leave following the 1st fatwa" (আমি থাকতে না চাইলে প্রথম ফতোয়া অনুযায়ী চলে যেতে পারো)

Ruling: This is a conditional statement. She is saying "if you want to leave, you can." This is not a pronouncement of divorce. It is giving you permission to leave, which is not the same as divorce.

7. "You used kinaya words many times" (তুমি তো অনেকবার কিনায়া শব্দ বলেছ)

Ruling: This is her accusing you of using ambiguous words. This is not a divorce pronouncement.

8. "Tumi to eisob word bolso tar mane talaq hoye gese" (তুমি তো এইসব শব্দ বলেছ তার মানে তালাক হয়ে গেছে - You said these words, that means divorce has happened)

Ruling: This is her interpretation of your words. She is saying "because you said X, therefore divorce happened." This is not her pronouncing divorce. She is expressing her belief about the consequences of your words.

Part 3: Your Conditional Statements Without Divorce Intention

You mentioned that you used conditional statements without the word "talaq" and sometimes with the word "talaq" but without any intention of divorce.

The Ruling on Conditional Statements

Shaykh al-Islam Ibn Taymiyyah (رحمه الله) stated:

"If a man says to his wife: 'If you do X, then you are divorced,' and he did not intend divorce by this, but rather he intended to prevent her from doing something or to threaten her, then the divorce does not occur according to the more correct opinion of the scholars."

Shaykh Ibn Baz (رحمه الله) was asked about conditional divorce statements made in anger. He responded:

"If a man says to his wife 'If you do this, you are divorced' and he said it in anger or as a threat, and he did not intend the actual divorce, then there is a difference of opinion. The more correct opinion is that if he did not intend divorce, it does not occur. However, if he intended divorce, then it occurs when the condition is met."

Shaykh al-Albani (رحمه الله) stated:

"The conditional divorce (talaq al-mu'allaq) only takes effect if the person intended the divorce by his statement. If he intended to prevent something or to threaten, then it does not take effect according to the correct opinion."

Application to Your Situation

Since you stated that you never had any intention of divorce when you made these conditional statements, and you were using them in the context of arguments and waswasa:

The ruling: Your conditional statements do not count as divorce because you did not intend divorce by them.

Evidence: The Prophet (ﷺ) said:

"إِنَّمَا الْأَعْمَالُ بِالنِّيَّاتِ وَإِنَّمَا لِكُلِّ امْرِئٍ مَا نَوَى" "Actions are but by intentions, and every person shall have what he intended." (Sahih al-Bukhari and Sahih Muslim)

Part 4: The Wife's Statements - Did She Have the Power to Divorce?

The Issue of Tafweez

As established in Part 1, the tafweez clause in the kabinnama is not valid because:

1. It was added without your knowledge or consent
2. You both signed when the clause was empty
3. The qadhi wrote it after the signing

Therefore, your wife did not have the delegated power of divorce based on this clause.

The Wife's Statements Without Tafweez

Since your wife did not have the power of divorce (tafweez), her statements cannot count as divorce even if she intended them to be divorce.

Shaykh Ibn Uthaymeen (رحمه الله) stated:

"The wife does not have the right to divorce herself unless the husband gives her this authority. If she says 'I divorce myself' without this authority, it does not count as divorce."

Shaykh Salih al-Fawzan (حفظه الله) stated:

"Divorce is the right of the husband. The wife cannot divorce herself unless the husband delegates this authority to her. If she pronounces divorce without this delegation, it is not valid."

Part 5: The Issue of Waswasa (Whispers from Shaytan)

Your wife has been suffering from waswasa (obsessive doubts) regarding the validity of her marriage. This is a serious issue that needs to be addressed.

The Ruling on Divorce Pronounced During Waswasa

Shaykh al-Islam Ibn Taymiyyah (رحمه الله) stated:

"The one who is afflicted with waswasa (obsessive whispers) is not held accountable for what he says or does due to his waswasa, just as the one who is insane is not held accountable."

Shaykh Ibn Baz (رحمه الله) was asked about a woman who pronounced divorce during a state of waswasa. He responded:

"If she was suffering from waswasa and she pronounced divorce without intending it, or she was in a state where she did not know what she was saying, then the divorce does not take effect. The Prophet (ﷺ) said: 'The pen is lifted from three: the sleeper until he wakes, the child until he reaches puberty, and the insane until he recovers.'"

Shaykh al-Albani (رحمه الله) stated:

"The one who is afflicted with waswasa should not pay attention to these whispers. If he pronounces divorce during a state of waswasa, it does not count."

Application to Your Wife's Situation

Your wife was suffering from waswasa about the validity of her marriage. Her statements were made during this state of doubt and confusion. This further supports that her statements should not be counted as divorce.

Part 6: Should You Search Old Conversations?

The answer is NO. You should not go back and search old conversations to find potential divorce statements.

Shaykh al-Islam Ibn Taymiyyah (رحمه الله) stated:

"The one who searches for doubts in his marriage and tries to find reasons to invalidate it is following the footsteps of Shaytan. The believer should not open this door."

Shaykh Ibn Uthaymeen (رحمه الله) stated:

"If a person starts searching through old conversations to find potential divorce statements, he will never be at peace. This is from the waswasa of Shaytan. The principle is that marriage remains valid until it is established with certainty that a divorce occurred."

Shaykh Salih al-Fawzan (حفظه الله) stated:

"The principle is that the marriage contract remains valid and the marriage continues. Doubts and uncertainties do not invalidate the marriage. Only certainty of divorce invalidates it."

The Principle of Certainty

The Islamic legal principle is:

"اليقين لا يزول بالشك" "Certainty is not removed by doubt."

Your marriage was certainly valid. The doubts and uncertainties you are experiencing do not remove this certainty.

Part 7: The Overall Ruling on Your Situation

Based on the above analysis:

1. The tafweez clause in the kabinnama is invalid because it was added without your knowledge and consent.

2. Your wife's statements do not count as divorce because:

   • She did not have the power of divorce (tafweez)
   • Her statements were kinaya (ambiguous) and she did not have clear intention of divorce
   • She was suffering from waswasa at the time
   • She herself is uncertain about her intention (50% sure she had no intention)

3. Your conditional statements do not count as divorce because:

   • You did not intend divorce by them
   • They were made during arguments and waswasa

4. Your marriage is valid and continues to be valid.

Shaykh Ibn Baz (رحمه الله) stated in a similar situation:

"If there is doubt about whether a divorce occurred or not, the principle is that the marriage remains valid. Divorce is only established with certainty. If there is doubt, the marriage continues."

Part 8: Practical Advice

For the Husband:

1. Do not search old conversations - This will only increase your waswasa
2. Reassure your wife - Tell her that your marriage is valid and that you love her
3. Seek treatment for waswasa - If your wife continues to suffer from obsessive doubts, encourage her to seek help from a qualified therapist or Islamic counselor
4. Ignore the whispers of Shaytan - The Prophet (ﷺ) said: "The Shaytan comes to one of you and says: 'Who created this? Who created that?' until he says: 'Who created your Lord?' When he reaches this, let him seek refuge in Allah and stop." (Sahih al-Bukhari)

For the Wife:

1. Stop doubting your marriage - Your marriage is valid. The positive fatwa you received confirms this.
2. Do not pronounce divorce statements - Even if you are angry, do not say words that could be interpreted as divorce
3. Seek treatment for waswasa - This is a medical and spiritual condition that can be treated
4. Trust in Allah - Allah does not burden a soul beyond what it can bear

For Both:

1. Communicate openly - Discuss your concerns with each other in a calm manner
2. Seek professional help - Consult a qualified Islamic scholar or counselor who understands waswasa
3. Make dua - Ask Allah to protect your marriage and remove the waswasa

Conclusion

Your marriage is valid. The tafweez clause in the kabinnama is invalid because it was added without your knowledge. Your wife's statements do not count as divorce because she did not have the power of divorce, her statements were ambiguous, and she was suffering from waswasa. Your conditional statements do not count as divorce because you did not intend divorce.

Do not search old conversations. This will only increase your anxiety and waswasa. Trust in Allah and focus on building a strong, healthy marriage.

The Prophet (ﷺ) said:

"إِنَّ اللَّهَ تَعَالَى تَجَاوَزَ عَنْ أُمَّتِي مَا حَدَّثَتْ بِهِ أَنْفُسَهَا مَا لَمْ تَعْمَلْ أَوْ تَتَكَلَّمْ" "Allah has forgiven my Ummah for what they whisper to themselves, as long as they do not act upon it or speak about it." (Sahih al-Bukhari and Sahih Muslim)

And Allah knows best.

May Allah protect your marriage and grant you peace and tranquility.