A case of conditional divorce in a specific context
12-10-2016 | IslamWeb
Question:
My question is about words of conditional divorce uttered by husband in intense anger. A husband and wife were having fights about their baby's illness. Then the wife was accusing her husband about neglecting their baby. She was blaming her husband for not taking care of the baby properly and was saying things like, "You are not dedicated to my baby", "I will not let you do this to my baby" and some similar things. The husband who was very mad at the wife said,"Why are you saying she's your baby repeatedly whereas she is my baby as well? You will say our baby". But the wife was angry as well and she said,"I will say my baby a hundred times, Do what you can" Then the husband was very mad and he desperately said,"If you say my baby again divorce will take place, it will happen as many times as you say this". Then the wife just stopped. Then the husband came to his senses and said, "I withdraw this. I did not intend to say that." But the wife was afraid to say "my baby" again. Then the husband explained that although the words came out like if you ever say "my baby" again but his meaning was to indicate phrases like accusing the husband about not being caring to "her baby" as if he was not father to the baby. He hated being accused like that. But his objection was not about the wife saying "my baby" in other contexts like in normal day to day conversations or while praying to Allah or talking with other people/doctors like, "My baby is one year old." or "Please Allah be merciful to my baby". The husband did not want to make talaq conditional on the wife saying such things. But he did not want her to say this to him in times of fight to make him angry. So the way and tone of saying made him angry not the word itself. My question is, can the wife say "my baby" in normal cases? If she avoids saying this during fights in a way that hurts her husband and uses it it normal talks/with other people or lovingly calls the baby "Oh my sweet baby" will any divorce take place?
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallAllaahu ‘alayhi wa sallam, is His Slave and Messenger.
The words that this husband said constitute a conditional divorce conditioned to his wife's saying, 'My baby;' however, it is in the form of a promise. Therefore, divorce does not take effect unless the husband intended to issue a divorce of immediate effect. Please, refer to Fatwa 269398 on the promise of divorce.
The conditional divorce cannot be withdrawn according to the view of the majority of scholars. So, if the husband intended to issue a divorce with an immediate effect and the wife uttered the very expression upon which the husband conditioned the divorce, divorce takes effect according to the opinion of the majority of scholars whether he intended to issue a divorce or merely to threaten her. Shaykhul-Islam Ibn Taymiyyah 
on the other hand, held that the conditional divorce can be withdrawn. However, if the husband does not withdraw the conditional divorce and his intention was merely to threaten his wife, divorce takes effect according to the view of Ibn Taymiyyah .
Divorce is repeated as the wife repeats that expression, because the husband specified that in his statement. For more benefit, please refer to fatwa 142613.
In the case in question, we believe that the matter is simple since the husband made it clear that he meant preventing his wife from saying this expression in a specific context, namely accusing her husband of failing to care for the baby. Hence, if the wife said this expression in another context, divorces does not take effect. Please, refer to fatwa 230647.
Finally, we advise the husband and wife to adhere to wisdom and reason in addressing the problems that they may encounter. The husband should avoid the words of divorce as they may cause confusion and may even lead to the break up of the family.
Allaah knows best.