1) Wife filing for a court divorce: In this scenario the husband did not file for divorce, neither did he instruct his wife to go ahead and file for divorce, nor did he (subsequent to the court divorce) categorically approve and sanction the divorce, the Nikaah in terms of Shari’ah is still intact as no Shar’ie divorce has taken place. 

A western Legal divorce in itself without it being clearly instructed by the husband or a tacit instruction will not constitute a Talaaq in terms of Shariah irrespective of the period of separation as it is the sole prerogative of the husband to pronounce a divorce in Shari’ah. 

2) Husband filling for a court divorce: The husband’s statement i.e. “Wherefore the plaintiff claims: 1. A decree of Divorce” when issuing a summons filing for divorce in the high court does not directly constitute a proclamation of Divorce in terms of Shariah. Hence, the mere utterance of the queried statement will not be sufficient to annul the marriage even if the husband had the intention to divorce his wife and even if he has previously mentioned to her that he will divorce her. 

However, it should be noted that although the aforementioned statement does not constitute divorce, it is however a tacit approval authorizing the judge to divorce his wife on his behalf on the basis of representation. Hence, if the judge subsequently issues a divorce to his wife then the divorce as issued by the judge would duly take effect, thus rendering them as divorced in terms of Shari’ah also. 

All the above will also be based on whether the judge used words of divorce which are recognized as words of divorce in Shari’ah. If he used such words which are not divorce words in our books of jurisprudence although they may be words of divorce in keeping with that specific court system of divorce, it will not be valid. 

AND ALLAH TA'AALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST

ANSWERED BY: Zaid Bhikhoo 

Islamic Date: ٢٨ ذو القعدة ١٤٤٠ 

English Date: 29 August 2019