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Fatwa CenterIntended to take back his divorced wife, but didn't until her Iddah expired
Question
The time of Iddah went out and my well was to return my wife back, but she didn't want. Do I consider that I've returned her back just because of my "Neyyat" was to take her back before Iddah time went out? We have had intercourse just few days after Iddah time expired.
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. We ask Allaah to exalt his mention as well as that of his family and all his companions.
Intending to take back your wife without uttering this [to others] and without really taking her back, is not considered and this does not permit the husband to enjoy his wife. Al-Baaji
said: 'A husband is not considered as having taken back his wife with intention only, but his intention should be accompanied with action or he should express his intention by words to this effect.'
As regards a person who expresses his will in taking back his wife either by telling her that or taking her back with the intention of keeping her as his wife, then this is acceptable and it is considered that he has taken her back without any difference of opinion in this regard, and she becomes lawful to him [and he is allowed to have sexual intercourse with her] even if she refuses to go back to him as her refusal is not taken into account since the husband took her back [or expressed his will to this effect] during her waiting period.
Nonetheless, if her waiting period expires with him clearly expressing his will to return her, then the wife is considered as divorced a revocable divorce [if it is not the third divorce] and her husband is not permitted to enjoy her as she becomes a marriageable woman to him. Therefore, it becomes evident that you were wrong in having sexual intercourse with this woman after the end of her waiting period. Thus, you are obliged to repent and not commit this sin again in the future. You should be keen in asking the scholars
before acting or saying anything in order to avoid any unpleasant consequences.
Finally, it should be noted that it is permissible for you to marry this woman if she agrees to it, provided that you marry her with a new marriage contract and a new dowry. Also, this should be done with the consent of her guardian, and provided this is not the third divorce, if it is the third divorce, then she is not lawful to you until another man sincerely marries her and consummates the marriage with her, and then divorces her. For more details, please refer to Fatwa 82541.
Allaah Knows best.
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