Aslam

Praise be to Allah.

Firstly:

If it has become clear to you

that she is having a haraam relationship with another man, or it becomes

clear to you that she is committing zina, or she admits that to you, it is

permissible for you to put pressure on her to give up the delayed portion of

her mahr.

Allah, may He be exalted, says

(interpretation of the meaning):

“O

you who believe! You are forbidden to inherit women against their will, and

you should not treat them with harshness, that you may take away part of the

Mahr you have given them, unless they are guilty of brazenly immoral

conduct. And live with them honourably. If you dislike them, it may be that

you dislike a thing and Allah brings through it a great deal of good”

[an-Nisa’ 4:19].

“brazenly

immoral conduct”

does not refer only to zina; rather it also includes open defiance and

disobedience towards a husband, and reviling him and his family. So it is

more apt that having a haraam relationship with another man should also be

included in that and come under the same ruling.

Ibn Katheer (may Allah have

mercy on him) said:

With regard to the words “unless

they are guilty of brazenly immoral conduct”,

Ibn Mas‘ood, Ibn ‘Abbaas, Sa‘eed ibn al-Musayyab, ash-Sha‘bi, al-Hasan al-Basri,

Muhammad ibn Sireen, Sa‘eed ibn Jubayr, Mujaahid, ‘Ikrimah, ‘Ata’, al-Khurasaani,

ad-Dahhaak, Abu Qilaabah, Abu Saalih, as-Suddi, Zayd ibn Aslam, and Sa‘eed

ibn Abi Hilaal said: What is meant by that is zina, i.e., if she commits

zina, then you have the right to ask her to return the mahr that you gave

her, and to  put pressure on her so that she will give it up to you and you

will divorce her by khula‘, as Allah, may He be exalted, says in Soorat al-Baqarah

(interpretation of the meaning):

“And

it is not lawful for you (men) to take back (from your wives) any of your

Mahr (bridal money given by the husband to his wife at the time of marriage)

which you have given them, except when both parties fear that they would be

unable to keep the limits ordained by Allah (e.g. to deal with each other on

a fair basis). Then if you fear that they would not be able to keep the

limits ordained by Allah, then there is no sin on either of them if she

gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)”

[al-Baarah 2:229].

Ibn ‘Abbaas, ‘Ikrimah and ad-Dahhaak

said: “brazenly

immoral conduct” is

defiance and disobedience.

Ibn Jareer – i.e., at-Tabari -

favoured the view that it includes all of that: zina, disobedience,

defiance, being sharp-tongued, and so on.

In other words, all of that

makes it permissible to put pressure on her so that she will give up her

rights, or part of them, so that he may leave her, and this is good. And

Allah knows best.

Tafseer Ibn Katheer

(2/241).

It is essential to understand

that the mere fact that the wife has committed zina does not mean that her

right to the mahr is waived.

Shaykh al-Islam Ibn Taymiyah

(may Allah have mercy on him) said:

The right to the mahr is not

waived just because she commits zina, as is indicated by the words of the

Prophet (blessings and peace of Allah be upon him) to the couple who engaged

in li‘aan, when the husband asked about his money; he said: “No, you are not

entitled to any money from her. If you were telling the truth against her,

then it is in return for what was made permissible to you of intimacy with

her, and if you were telling lies against her, then you have even less right

to it.” That is because if a woman commits zina, she may repent, but the

fact that she has committed zina makes it permissible for him to put

pressure on her, so that she will ransom herself from him if she chooses to

leave him, or she should repent.

Majmoo‘ al-Fataawa

(15/320)

Secondly:

Whatever a woman takes from her

husband’s wealth without his knowledge may be one of two things:

1.She has taken it to spend on herself and on her children and house,

and the reason for her doing that is stinginess and miserliness on her

husband’s part.

2.She has taken it in order to buy luxuries, or to give the money to

her family, and other kinds of spending.

In the first case, it is not

permissible for the husband to ask her to give this money back, because she

took something that she is entitled to, because spending on the wife and

children is obligatory upon the head of the household. If he falls short in

that or refuses to do it, it is permissible to take from his wealth, even if

that is without his knowledge.

It was narrated that ‘Aa’ishah

(may Allah be pleased with her) said: Hind – the wife of Abu Sufyaan – said

to the Prophet (blessings and peace of Allah be upon him): Abu Sufyaan is a

stingy man and he does not give me enough for me and my child, except what I

take from him without him knowing. He said: “Take that which will suffice

you and your child on a reasonable basis.”

Narrated by al-Bukhaari (5049)

and Muslim (1714).

An-Nawawi (may Allah have mercy

on him) said, discussing what we learn from this hadith:

… If a person has some right

over another but he is not fulfilling it, it is permissible to take from his

wealth as much as he is entitled to, without his permission.

Sharh Muslim

(4/373)

In the second case, it is not

permissible for your wife to take anything from you without your permission,

and if she does that then she is sinning, and you have the right to ask her

to return what she took; if she refuses, you have the right to take back

your wealth from the deferred portion of her mahr or from anything else of

her wealth that you owe her.

Thirdly:

The basic principle is that the

mother is more entitled to custody of her children – before the age of seven

years – so long as she has not remarried. What is meant by custody is not

merely providing food, drink and shelter; it also includes teaching them,

educating them, teaching them morals and manners, and taking care of their

psychological wellbeing. If the mother is a disbeliever or an evildoer, it

is not permissible to give her custody of her children. What matters with

regard to custody is not that the one who has custody should be a father or

a mother; what matters is what he or she can offer the child of care and

Islamic upbringing and education. Based on that, the parent who is more

entitled to custody is one who is better in terms of religious commitment.

If the mother, after her divorce, is continuing to follow misguidance and

commit sin, it is not permissible to give her custody of her children, and

in that case custody should be given to the father, but if she repents and

mends her ways, then she is more entitled to custody of them so long as she

has not remarried, for “the one who repents from sin is like the one who

never sinned.”

Ibn al-Qayyim (may Allah have

mercy on him) said:

Our shaykh – i.e., Ibn Taymiyah

– said: If one of the parents fails to teach the child and enjoin upon him

that which Allah has enjoined, then he is a sinner and is not entitled to

guardianship over the child; rather anyone who fails to undertake the duties

of guardianship is not entitled to guardianship. In fact he should either

give up guardianship and hand it over to one who will do what is required,

or someone should be made a co-guardian with him who will do what is

required, because the aim is to achieve obedience to Allah and His

Messenger.

Our shaykh said:

This right is not the right of

inheritance which is attained by ties of kinship, marriage or wala’, and is

the same regardless of whether the heir is an evildoer or righteous; rather

it is more akin to rights of guardianship, with regard to which it is

essential that the individual be able to carry out the duties, have

knowledge thereof and do them to the best of his ability.

He said: if we assume that the

father marries a woman who does not pay any attention to the interests of

his daughter, and does not take care of her, and her mother is more able to

take care of the daughter’s interests than that co-wife, then in this case

custody should definitely be given to the mother.

It should be understood that

there is no general shar‘i text to suggest that priority be given to one of

the parents in all cases, or that the child should be given the choice

between his parents in all cases. The scholars are unanimously agreed that

neither of them is given priority all cases; rather one who is a

transgressor and negligent should not be given precedence over one who is

righteous, fair and will treat him well. And Allah knows best.

Zaad al-Ma‘aad

(5/475, 476)

Please see also the answer to

question no. 20705.

Fourthly:

Divorce of a pregnant woman is

acceptable according to sharee‘ah and is in harmony with the Sunnah. Many

ordinary people think that it does not count as such, but their view has no

basis in Islamic teaching; rather it is a divorce that is in harmony with

the Sunnah.

Muslim (1471) narrated the

story of how Ibn ‘Umar divorced his wife; according to this report the

Prophet (blessings and peace of Allah be upon him) said:

“Tell him to take her back,

then divorce her when she is pure or pregnant.”

Ibn ‘Abd al-Barr (may Allah

have mercy on him) said:

With regard to one who is

pregnant, there is no difference of opinion among the scholars that divorce

in this case is in accordance with the Sunnah, from the beginning to the end

of pregnancy, because her ‘iddah ends when she gives birth. Similarly, it is

proven from the Prophet (blessings and peace of Allah be upon him), in the

hadith of Ibn ‘Umar, that he instructed him to divorce his wife when she was

pure or pregnant, and he did not specify either the beginning or end of

pregnancy.

At-Tamheed

(15/80)

We have quoted a fatwa from

Shaykh Ibn Baaz (may Allah have mercy on him) on the ruling on divorce of a

wife who is pregnant, in the answer to question no.

12287.

As this is the case, you can

divorce your wife with one, revocable talaaq, after which you have the

choice: either you can take her back during the ‘iddah  – which lasts up

until the time she gives birth – if you see that she has mended her ways and

you are convinced that she has repented – or you can wait until the ‘iddah

ends, after which she will become revocably divorced. At that time she will

become free to choose her own destiny, but you can take her back if she

wants that and her guardian agrees to it, with a new marriage contract and

mahr, because she will have become a stranger (non-mahram) to you.

You should not issue three

divorces in one sitting, or in one sentence, because that is a way of

divorce that is contrary to the Sunnah.

Please see the answer to

question no. 36580

And Allah knows best.