Rulings and issues for a husband who discovered a romantic relationship between his wife and another man
Question

                I discovered that my wife is having a romantic relationship with a young man. In the beginning, there were phone calls between them, but it has reached such a stage of audacity that she brought him to the house in my absence. Up till now she does not know that I know about the matter, and that I intend to divorce her. My question is, do I have the right, according to sharee‘ah, to take back what I gave her of the mahr, and to force her to give up the delayed portion thereof, that was recorded in the papers filed with the sharee‘ah court? My second question is: my wife stole some money from me, and I did not find out that she was the one who was doing it until after the final theft. Do I have the right to demand that her family return what she stole from me, in addition to taking back the mahr that I mentioned in my first question? My third question is: we have two daughters; the older one is two and a half years old, and the little one is ten months old and she has stopped breastfeeding from her mother. Do I have the right, after divorcing her, to forbid my wife to bring them up, because of what she has done of betraying me? I want to bring up my daughters myself, for fear of her bad attitude. My fourth question is: my wife is now pregnant; can I divorce her whilst she is pregnant? My fifth question is: according to the doctor’s statement, the pregnancy is not yet established, and she may miscarry. If that happens, do I have to wait until her period comes so that I can divorce her? What is the shar‘i timeframe for divorce? My sixth question is: is one divorce (talaaq) sufficient, or must I divorce her on three separate occasions? Please advise me, may Allah reward you with all good. I am waiting for your fatwas so that I may begin divorce proceedings.
Praise be to Allah.
      Firstly: 

    If it has become clear to you 
    that she is having a haraam relationship with another man, or it becomes 
    clear to you that she is committing zina, or she admits that to you, it is 
    permissible for you to put pressure on her to give up the delayed portion of 
    her mahr. 

    Allah, may He be exalted, says 
    (interpretation of the meaning):

    “O 
    you who believe! You are forbidden to inherit women against their will, and 
    you should not treat them with harshness, that you may take away part of the 
    Mahr you have given them, unless they are guilty of brazenly immoral 
    conduct. And live with them honourably. If you dislike them, it may be that 
    you dislike a thing and Allah brings through it a great deal of good”

    [an-Nisa’ 4:19]. 

    “brazenly 
    immoral conduct” 
    does not refer only to zina; rather it also includes open defiance and 
    disobedience towards a husband, and reviling him and his family. So it is 
    more apt that having a haraam relationship with another man should also be 
    included in that and come under the same ruling. 

    Ibn Katheer (may Allah have 
    mercy on him) said: 

    With regard to the words “unless 
    they are guilty of brazenly immoral conduct”, 
    Ibn Mas‘ood, Ibn ‘Abbaas, Sa‘eed ibn al-Musayyab, ash-Sha‘bi, al-Hasan al-Basri, 
    Muhammad ibn Sireen, Sa‘eed ibn Jubayr, Mujaahid, ‘Ikrimah, ‘Ata’, al-Khurasaani, 
    ad-Dahhaak, Abu Qilaabah, Abu Saalih, as-Suddi, Zayd ibn Aslam, and Sa‘eed 
    ibn Abi Hilaal said: What is meant by that is zina, i.e., if she commits 
    zina, then you have the right to ask her to return the mahr that you gave 
    her, and to  put pressure on her so that she will give it up to you and you 
    will divorce her by khula‘, as Allah, may He be exalted, says in Soorat al-Baqarah 
    (interpretation of the meaning):

    “And 
    it is not lawful for you (men) to take back (from your wives) any of your 
    Mahr (bridal money given by the husband to his wife at the time of marriage) 
    which you have given them, except when both parties fear that they would be 
    unable to keep the limits ordained by Allah (e.g. to deal with each other on 
    a fair basis). Then if you fear that they would not be able to keep the 
    limits ordained by Allah, then there is no sin on either of them if she 
    gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)”

    [al-Baarah 2:229]. 

    Ibn ‘Abbaas, ‘Ikrimah and ad-Dahhaak 
    said: “brazenly 
    immoral conduct” is 
    defiance and disobedience. 

    Ibn Jareer – i.e., at-Tabari - 
    favoured the view that it includes all of that: zina, disobedience, 
    defiance, being sharp-tongued, and so on. 

    In other words, all of that 
    makes it permissible to put pressure on her so that she will give up her 
    rights, or part of them, so that he may leave her, and this is good. And 
    Allah knows best. 

    Tafseer Ibn Katheer 
    (2/241). 

    It is essential to understand 
    that the mere fact that the wife has committed zina does not mean that her 
    right to the mahr is waived. 

    Shaykh al-Islam Ibn Taymiyah 
    (may Allah have mercy on him) said: 

    The right to the mahr is not 
    waived just because she commits zina, as is indicated by the words of the 
    Prophet (blessings and peace of Allah be upon him) to the couple who engaged 
    in li‘aan, when the husband asked about his money; he said: “No, you are not 
    entitled to any money from her. If you were telling the truth against her, 
    then it is in return for what was made permissible to you of intimacy with 
    her, and if you were telling lies against her, then you have even less right 
    to it.” That is because if a woman commits zina, she may repent, but the 
    fact that she has committed zina makes it permissible for him to put 
    pressure on her, so that she will ransom herself from him if she chooses to 
    leave him, or she should repent. 

    Majmoo‘ al-Fataawa 
    (15/320) 

    Secondly: 

    Whatever a woman takes from her 
    husband’s wealth without his knowledge may be one of two things: 

    1.She has taken it to spend on herself and on her children and house, 
    and the reason for her doing that is stinginess and miserliness on her 
    husband’s part.

    2.She has taken it in order to buy luxuries, or to give the money to 
    her family, and other kinds of spending. 

    In the first case, it is not 
    permissible for the husband to ask her to give this money back, because she 
    took something that she is entitled to, because spending on the wife and 
    children is obligatory upon the head of the household. If he falls short in 
    that or refuses to do it, it is permissible to take from his wealth, even if 
    that is without his knowledge. 

    It was narrated that ‘Aa’ishah 
    (may Allah be pleased with her) said: Hind – the wife of Abu Sufyaan – said 
    to the Prophet (blessings and peace of Allah be upon him): Abu Sufyaan is a 
    stingy man and he does not give me enough for me and my child, except what I 
    take from him without him knowing. He said: “Take that which will suffice 
    you and your child on a reasonable basis.” 

    Narrated by al-Bukhaari (5049) 
    and Muslim (1714). 

    An-Nawawi (may Allah have mercy 
    on him) said, discussing what we learn from this hadith: 

    … If a person has some right 
    over another but he is not fulfilling it, it is permissible to take from his 
    wealth as much as he is entitled to, without his permission. 

    Sharh Muslim 
    (4/373) 

    In the second case, it is not 
    permissible for your wife to take anything from you without your permission, 
    and if she does that then she is sinning, and you have the right to ask her 
    to return what she took; if she refuses, you have the right to take back 
    your wealth from the deferred portion of her mahr or from anything else of 
    her wealth that you owe her. 

    Thirdly: 

    The basic principle is that the 
    mother is more entitled to custody of her children – before the age of seven 
    years – so long as she has not remarried. What is meant by custody is not 
    merely providing food, drink and shelter; it also includes teaching them, 
    educating them, teaching them morals and manners, and taking care of their 
    psychological wellbeing. If the mother is a disbeliever or an evildoer, it 
    is not permissible to give her custody of her children. What matters with 
    regard to custody is not that the one who has custody should be a father or 
    a mother; what matters is what he or she can offer the child of care and 
    Islamic upbringing and education. Based on that, the parent who is more 
    entitled to custody is one who is better in terms of religious commitment. 
    If the mother, after her divorce, is continuing to follow misguidance and 
    commit sin, it is not permissible to give her custody of her children, and 
    in that case custody should be given to the father, but if she repents and 
    mends her ways, then she is more entitled to custody of them so long as she 
    has not remarried, for “the one who repents from sin is like the one who 
    never sinned.” 

    Ibn al-Qayyim (may Allah have 
    mercy on him) said: 

    Our shaykh – i.e., Ibn Taymiyah 
    – said: If one of the parents fails to teach the child and enjoin upon him 
    that which Allah has enjoined, then he is a sinner and is not entitled to 
    guardianship over the child; rather anyone who fails to undertake the duties 
    of guardianship is not entitled to guardianship. In fact he should either 
    give up guardianship and hand it over to one who will do what is required, 
    or someone should be made a co-guardian with him who will do what is 
    required, because the aim is to achieve obedience to Allah and His 
    Messenger. 

    Our shaykh said: 

    This right is not the right of 
    inheritance which is attained by ties of kinship, marriage or wala’, and is 
    the same regardless of whether the heir is an evildoer or righteous; rather 
    it is more akin to rights of guardianship, with regard to which it is 
    essential that the individual be able to carry out the duties, have 
    knowledge thereof and do them to the best of his ability. 

    He said: if we assume that the 
    father marries a woman who does not pay any attention to the interests of 
    his daughter, and does not take care of her, and her mother is more able to 
    take care of the daughter’s interests than that co-wife, then in this case 
    custody should definitely be given to the mother. 

    It should be understood that 
    there is no general shar‘i text to suggest that priority be given to one of 
    the parents in all cases, or that the child should be given the choice 
    between his parents in all cases. The scholars are unanimously agreed that 
    neither of them is given priority all cases; rather one who is a 
    transgressor and negligent should not be given precedence over one who is 
    righteous, fair and will treat him well. And Allah knows best. 

    Zaad al-Ma‘aad 
    (5/475, 476) 

    Please see also the answer to 
    question no. 20705. 

    Fourthly: 

    Divorce of a pregnant woman is 
    acceptable according to sharee‘ah and is in harmony with the Sunnah. Many 
    ordinary people think that it does not count as such, but their view has no 
    basis in Islamic teaching; rather it is a divorce that is in harmony with 
    the Sunnah. 

    Muslim (1471) narrated the 
    story of how Ibn ‘Umar divorced his wife; according to this report the 
    Prophet (blessings and peace of Allah be upon him) said: 
    “Tell him to take her back, 
    then divorce her when she is pure or pregnant.”

    Ibn ‘Abd al-Barr (may Allah 
    have mercy on him) said: 

    With regard to one who is 
    pregnant, there is no difference of opinion among the scholars that divorce 
    in this case is in accordance with the Sunnah, from the beginning to the end 
    of pregnancy, because her ‘iddah ends when she gives birth. Similarly, it is 
    proven from the Prophet (blessings and peace of Allah be upon him), in the 
    hadith of Ibn ‘Umar, that he instructed him to divorce his wife when she was 
    pure or pregnant, and he did not specify either the beginning or end of 
    pregnancy. 

    At-Tamheed 
    (15/80) 

    We have quoted a fatwa from 
    Shaykh Ibn Baaz (may Allah have mercy on him) on the ruling on divorce of a 
    wife who is pregnant, in the answer to question no. 
    12287. 

    As this is the case, you can 
    divorce your wife with one, revocable talaaq, after which you have the 
    choice: either you can take her back during the ‘iddah  – which lasts up 
    until the time she gives birth – if you see that she has mended her ways and 
    you are convinced that she has repented – or you can wait until the ‘iddah 
    ends, after which she will become revocably divorced. At that time she will 
    become free to choose her own destiny, but you can take her back if she 
    wants that and her guardian agrees to it, with a new marriage contract and 
    mahr, because she will have become a stranger (non-mahram) to you. 

    You should not issue three 
    divorces in one sitting, or in one sentence, because that is a way of 
    divorce that is contrary to the Sunnah. 

    Please see the answer to 
    question no. 36580 

    And Allah knows best.