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Fatwa CenterCriterion of coercion in divorce
Question
TALAQ IS TAKEN IN FOLLOWING SITUATION, I WAS FORCED BY FATHER IN LAW THEY SAID IF I AM NOT GIVING TALAQ THEY WOULD GO TO POLICE CASE.SO I WAS AFRAID OF MY FATHER, HE IS SO OLD, SO GAVE TALAQ WHILE THE MY WIFE WAS NOT PRESENT IN MY HOUSE, ONLY SOME PEOPLE CAME TO TAKE TALAQ,BECAUSE MY WIFE HAD GONE TO HER FATHER HOUSE TO RESIDE SOME DAYS,WHEN I WENT THERE THEY BEATED ME,THE SECOND DAY THEY SENT SOME PEOPLE TO TAKE TALAQ,TO AVOID WRONG HAPPENING I GAVE TALAQ.I COULD NOT UNDERSTAND WHAT WAS THE REASON BEHIND. SECOND SHE IS PREGNANT FOR FIVE MONTHS MY QUESTION IS "TALAQ PERFORMED OR NOT.
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 scholars of Fiqh differed as to whether or not the divorce of the one under coercion actually takes place. The Fiqh Encyclopedia reads: The majority of scholars are of the opinion that the divorce given under coercion does not take place if the compulsion is as severe as the threat of killing, cutting off the bodily organs, painful beating, and so on. Their opinion is based on the Hadeeth of the Messenger of Allaah, sallallaahu ‘alayhi wa sallam, “Divorce and manumission (of slaves) do not count in case of Ighlaaq (i.e. when the mind becomes prevented from thinking due to anger or any other reason.” They also use as evidence the Hadeeth in which he said: “Allaah has forgiven my nation for what they do by mistake, or due to forgetfulness, or what they are forced to do.” Being in such a state, one becomes stripped of will and intent, which makes him like an insane or a sleeping person. But if the coercion is weak or proved not to affect the coerced person, his divorce in this case takes place, because he still has freedom of choice. The Hanafi scholars are of the opinion that the divorce by a person under coercion takes place because he has chosen it to avert the harm of others from himself; and in this way, the divorce takes place because the freedom of choice exists.” (End quote)
However, the preponderant opinion which we adopt here in Islamweb is that of the majority of scholars, provided that the coercion (which effectuates the divorce) is a compelling coercion. In his clarification of coercion which effectuates divorce, Al-Hajjaawi 
from the Hanbali school of jurisprudence, said: “And whoever is coerced to it (divorce) wrongfully, by putting him or his child in pain, harming him by taking his property, or threatening to do any of those things by a person who is thought to be able to do so, thereupon he divorces accordingly, his divorce will not take place.” Thus, the compelling coercion is to threaten a person to cause pain to him or to anyone whose pain may affect him like his child, or that he is threatened by one thought, almost certainly, to be able to carry out his threat in case he (the threatened person) does not divorce.
Based on this, your fear that you may be imprisoned (if you do not divorce) is coercion so long as it your fear is justifiable, such as to know that those people are able to carry out their threat; or that you fear that your parent will be harmed if you do not divorce, is a considerable coercion so long as the fear is justifiable; and in both cases, your divorce will not take place. But if your fear is unjustifiable in reality, then your divorce will take place, whether your wife is inside or outside the house at the time of divorce.
In any case, this matter should be taken to the Sharee‘ah-based court to look at it from all sides. For further information, please refer to Fataawa 85014 and 154947.
Finally, in case the divorce has taken place, you have the right to take your wife back before she gives birth, if this is not your third divorce to her.
Allaah Knows best.
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