PRIBUMI ONLINE, TANJUNG ENIM – Question:
Assalamu’alaikum warahmatullahi wabarakatuhu.
Ustadz whom I respect at the fatwa table, I am facing the problem of contemporary fiqh which is quite confusing. Here’s the problem, some time ago my wife heard the news from where- that I intend to remarry. Then suddenly I received a message via SMS that my wife was willing to accept her divorce decision from me. I do not say so.
How is my attitude, has fallen talak with the message of divorce via SMS or is considered nothing? Because after my wife sent the SMS will not mix with me again. What is the law of divorce and marriage through SMS. Please explain it from the perspective of contentikher jurisprudence.
Thank you for the explanation, hopefully Ustadz always get God help to faithfully care for this beloved rublik.
Jazakumullah khairan katsiran.
Depok, West Java
Wa’alaikumussalam warahmatullahi wabarakatuhu.
It is inevitable that information technology and communications media are increasingly moving forward and the flow of culture is increasingly profound, according to the famous futurist John Naisbitt in his High Tech, High Touch; Technology and Our Search for Meaning (1999) increasingly leads people to “tech-drunken zones”, characterized by a variety of sociological symptoms, ie 1) we prefer quick resolution of problems, from religious to nutritional problems; 2) we fear and adore technology; 3) we blur the distinction between the real and the false; 4) we accept violence as a right and a reasonable one; 5) we love technology in the form of toys; And 6) we live a life spaced and taken away.
The diverse phenomenon of the popular short mesagge service called SMS, a short text message via cell phone, is a contemporary phenomenon of the development of communications and cellular technology that is loved by the majority of the world’s population. It is not uncommon to cause controversial issues, including the issue of divorce from the point of view of religion that has not been so popular. Even the divorce via SMS in Indonesia is not so popular, even from among feminists and feminist institutions we have not heard their views on this matter.
The controversy stems from a man in Dubai, United Arab Emirates, who was divorcing his wife in an SMS message because he was upset by his wife’s slow, with the sound, “I am divorced for being slow!” The problem was eventually brought to justice and decided to divorce divorce). The reason, according to the Head of Talak Rujuk Section in Dubai Court, Abdus Salam Darwish that the sender of SMS proved -sang husband-indeed intent to divorce his wife.
The controversial phenomenon also spread to Malaysia and Singapore, which I then heard for the first time to spread to Indonesia through the case of siblings whose version is slightly different. As is the case in Dubai, the Malaysian and Singapore Courts have also confirmed divorce, as stated by Mufti Kuala Lumpur, Datuk Hisyam Yahya, and Religious Courts officer Singapore Shaifuddin Saruwan that the divorce is valid after going through court proceedings.
Before explaining the law from the perspective of Jurisprudence and its reasons and the argument, it is necessary to clarify that the SMS message you received from the wife, if you did not divorce, is included in the discussion of the Khulu chapter, the divorce lawsuit normally filed by the wife , And divorce decisions are still returned to the husband without having to go through litigation, either answer directly or not through SMS. Provided that it is accurate and correct that the sender of SMS reply is from the husband and Khulu ‘lawsuit is true of the wife.
In this case there is a strong reason that syar’i (justified by the Shari’a), then the court (religious judge) as waliyul amri has the right and authority to decide divorce, even though the husband refuses divorce, so as not to torture and depend the wife’s (wife’s) status, Fulfillment of wife’s rights and livelihood. Then it is effectively falling divorce, with or without answering the answer of the khulu’s consent of the husband
Khulu ‘by language means’ uproot and remove’. Which in the jurisprudence term means’ uproot and remove the marriage bond ‘(naz’wa izalah az-zaujiyah), whether done by a wife, guardian, or judge by compensating some material (‘ iwadh) to the husband according to court decision or husband’s agreement wife. However, to keep in mind is that if there is a divorce due to the approval of khulu ‘(divorce lawsuit from the wife), then fell talak bain, especially according to the Malikiyah scholars implicitly implicated for both
To reconcile for eternity until his wife widows again after marriage and has gathered with other men (see: ad-Durrul Mukhtar, II / 766, Fathul Qadir, II / 199, Mughnil Mukhtaj, III / 262, Bidayatul Mujtahid, II / 66, al-Mughni, VII / 51).
However, if the reason of khulu ‘the wife is not yet strong, then it should be reconsidered rationally, because in this case the matter of married husband is still an issue or indeed will be combined. Because, divorce is, if it should happen, then according to the Prophet, it is a must but still most hated God Almighty. Similarly, to think carefully, whether the desire polygamy (if indeed the issue is true) is right, by looking at various real conditions between mudharat and maslahatnya.
The law of khulu ‘itself is originally permissible (jaiz) and effective far talak according to the scholars, including the Shafi’iyah, because the need of wives to free themselves from the torture of women’s basic bond and appreciate its excitement and independence. Nevertheless, it is still considered something makruh (hate God) if it is in normal condition without a strong reason that syar’i (al-Baqarah: 229, an-Nisa: 4 and 128). Nabibersabda, “Any wife who sues her husband for divorce without a reason (strong), then forbidden for him the aroma of heaven.” (Narrated by al-Khamsa except Nasa’i).
In the case of a strong reason, the husband is obliged to grant the wife’s divorce, as in the story of Thabit bin Qais who granted his wife khulu by accepting a garden which his wife returns to him as ‘iwadh’ upon the khulu’s accord Advises the Prophet. (Narrated by Bukhari, Nasa’i, Ibn Majah, See: Kasyaful Qina, V / 237, Nailul Authar, V / 246).
There is also the problem of dropping divorce through SMS sent by someone to his wife with or without the reason of the divorce received by sharia, then we return the first principle of marriage and divorce in Islam is a sacred thing, serious, full of trust, responsibility, and message Justice so that the Prophet Saw cautioned not to play games, because the problem is not in place to be mocked and regardless of how seriously assessed and effective.
The reason, “Three serious things, is serious law and the jokes are also serious law: marriage, divorce, and liberating slaves. And the law of marriage is consistent. Still marrying the line because the fading of the marriage ropes is something that God hates most, though it may be done. “(Narrated by Abu Dawud, an-Nasa’i, and Ibn Majah).
Talah (thalaq) in the Arabic language of its original meaning is’ fade back the bonding rope and release, ‘as it is almost similar to the meaning of the etymology of khulu’. Usually khulu ‘is used as divorce from wife, while divorce as divorce from husbands, which in sharia terminology of slaughtering must use clear and understandable explanatory (redaction). (Ibn Qudamah, al-Mughni, VII / 66).
The law of divorce (divorce) through SMS can be analogous / diqiyaskan with divorce law through regular letter writing. Because there are similarities, both are messages divorced through text that is not verbal (spoken). The fiqh scholars (fuqaha) agree that it is effective in falling talak (Prof. Dr. Wahbah az-Zuhaili in al-Fiqh al-Islami wa Adillatuhu, VII / 382).
In the case of divorce via SMS which is very necessary, according to the scholars, as in the problem of divorce through the letter, is the accuracy of the truth of the address or the number of recipients and senders, as well as confirmation of intent or deliberate impeachment of divorce. If it is proven true, through checking the second mobile phone number and direct confirmation, then fell one talak. It has actually been effective, even without going through the court so that all consequences must be met by syar’i.
The litigation is only as a reinforcement and reconfirmation of the sitting matter, in addition only as administrative demands and the prevalence of applicable positive law provisions (ad-Durr al-Mukhtar, II / 589). However, even though SMS can be a means, or other media that is more gentle, warrior, and wise and wise, of course the use of SMS for divorce is very inhuman, unethical, and uncivilized. Because, it is very contrary to the spirit and basic principles of sharia in the bond (akad) marriage, as mentioned above too unfocused the problem as a form of motion sickness technology and as a paradox and contradictory attitude to the process before to reach the marriage level is done with great care And with all forms of respect and respect for the woman