Conditional divorce interpreted according to intentions
15-12-2013 | IslamWeb
Question:
AoA Mufti Sb My name is Atif Hameed Bhatti and live in Islamabad, Pakistan. I need a FATWA regarding TALAQ (Divorce) Since my marriage for almost 8 years time, my wife has always been fighting with me and does not listen to whatever I say to her. Now for almost 2 years , she is living in a separate rented house with my 2 kids. She is living there alone. I mean, she is neither living with me nor with her parents. I have tried lot of times that she should live with me in my own or rented house and also tried to live with her at her rented house but she always fights and whenever I ask her something, her reply is “I am independent and will do whatever I want to" Last Saturday (Dated: 02-10-2013), she again did the same. I told her “ If you will not come back to my home by tomorrow evening alongwith children, I divorce you". My intention was definitely of Divorce and wanted her to come back home. On next day (Sunday) at about 1:15 p.m., she came with kids for 10 minutes and talked to my mother about what I said and then again left. Now she says that she fulfilled the condition of coming back and “Divorce has not happened”. But my intention was never that she come for a round of 10 minutes to my home when I laid the condition. According to me “ Divorce has happened” . My “INTENTION” from my conditional divorce was that she should start living with me, not make a tour of 10 minutes to my home. Please guide me and give a FATWA regarding that. I will be really thankful to you. Atif Hameed Bhatti
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 
is His slave and Messenger.
In a conditional divorce, what matters is your intention. You said that you intended that she returns home to live with you. Since she did not do so, the divorce was effective. For more benefit, please refer to Fatwa 83152.
There is one exception for this: If your wife is someone who is concerned about your oaths – that is, she dislikes breaking your oaths – and so she did what she did - that is, she came to your house for ten minutes – with the interpretation that by doing so your oath is not broken, then the oath is not broken. Shaykh Al-Islam Ibn Taymiyyah 
said: “Someone who falls under someone else's oath may do that thing (about which the oath was taken) out of forgetfulness or misinterpretation, or that the oath was taken for some reason and that reason no longer exists; or someone may make an oath according to a certain belief and then it turns out to be untrue - all these types do not result in divorce according to the strongest opinion.” [End of quote]
Under the assumption that your oath was broken and the divorce was effective, then if this is not the third divorce and you wish to take your wife back (during her waiting period), then you may take her back without a new contract. It is appropriate in this case that righteous people from your family and hers sit together to reconcile between you both, and some resolutions (or conditions) should be laid out so that she will not do that again. For more benefit, please refer to Fatwa 82541 about the types of divorce.
Finally, if a wife ceases to be obedient to her husband, then she is Naashiz (recalcitrant) and this frees her husband from the obligation of financial support until she is obedient to him again. By her being Naashiz, the husband also has the right to discipline her according to Sharee'ah (Islamic Law). In this regard, please refer to Fatwa 85402.
Allaah Knows best.