Praise be to Allaah.
The husband may take back his wife whom he divorced revocably
during the ‘iddah, and it is not stipulated that she should be present or
know of it, or that the taking back be done in the presence of a notary,
whether the divorce was issued in the presence of a notary or not.
But it is mustahabb for the taking back to be witnessed by
two witnesses, and it was said that it is obligatory for it to be
Ibn Qudaamah (may Allah have mercy on him) said: Taking back
is done by saying to two Muslim men: Bear witness that I have taken aback my
wife, without any guardian being present and without any mahr being added.
Another report was narrated from Abu ‘Abdullah (may Allah have mercy on
him), which says that it is permissible to take the wife back without it
being witnessed, the reason being that taking back does not require any
guardian or mahr, or the consent or knowledge of the wife, according to
scholarly consensus, because of what we have mentioned about the woman who
us revocably divorced coming under the heading of rulings on wives, and
taking her back means keeping her and continuing marriage to her. Hence
Allah, may He be glorified and exalted, described taking back as “retaining”
and leaving them as “releasing” them, as He says (interpretation of the
meaning): “…and they have reached their term, then retain them in
kindness or release them in kindness” [al-Baqarah 2:231] and, in another
verse, “and then (a woman) must be retained in honour or released in
kindness” [al-Baqarah 2:229]. Marriage is broken by divorce and is
restored when the divorce is rendered null and void; taking back the wife
removes the reason for the break and stops it going all the way to
irrevocable divorce; therefore it does not require what is required to
initiate a new marriage contract.
With regard to witnessing, there are two reports, one of
which says that it is obligatory. This is one of the two views of
ash-Shaafa‘i, because Allah, may He be exalted, says (interpretation of the
meaning): “Then when they are about to fulfil their term appointed,
either take them back in a good manner or part with them in a good manner.
And take for witness two just persons from among you (Muslims)” [at-Talaaq
65:2]. The apparent meaning of the command is that it is obligatory, and
because this is for the purpose of making intimacy permissible, having it
witnessed is required as in the case of the marriage contract.
The second report says that having witnesses is not required.
This is the view favoured by Abu Bakr, and was the opinion of Maalik and Abu
Haneefah, because there is no need for acceptance, so there is no need for
witnesses, as is the case with all the husband’s rights, and that is because
with regard to that in which the guardian’s consent is not required, it is
not necessary to have witnesses. In this case the command is understood as
meaning that it is mustahabb. However there is no difference of opinion
among the scholars that it is Sunnah to have witnesses.
End quote from al-Mughni, 7/403
Thus you know that your husband may have taken back during
the ‘iddah and that his taking back is valid, whether he took you back in
the presence of a notary or not. But if he comes after the end of your
‘iddah and claims that he took you back, he will be to provide proof, which
is the testimony of two witnesses, unless you believe his claim, in which
case you may go back to him.
If the woman gets married after the end of her ‘iddah, then
her first husband claims that he took her back without her knowledge and
provides proof of that, then she is to be returned to him.
Ibn Qudaamah (may Allah have mercy on him) said: If the
husband of the revocably divorced woman takes her back without her
knowledge, that taking back is valid, because it does not require her
consent and therefore it does not require her knowledge either, as in the
case of talaaq. If he took her back and she did not know, then her ‘iddah
ended and she married someone else, then he comes and claims that he took
her back before her ‘iddah ended, and he has proof of that, it is proven
that she is his wife and the second marriage is invalid, because he (the
second husband) married the wife of another man. So she is to be returned to
the first husband, whether the second husband consummated the marriage with
her or not. This is the correct opinion and it is the view of most of the
fuqaha’, including ath-Thawri, ash-Shaafa‘i, Abu ‘Ubayd, and ashaab ar-ra’y.
It was also narrated from ‘Ali (may Allah be pleased with him).
A second report was narrated from Abu ‘Abdillah (may Allah
have mercy on him): if the second husband has consummated the marriage with
her, then she is his wife and the first marriage becomes invalid. This was
narrated from ‘Umar ibn al-Khattaab (may Allah be pleased with him), and it
is also the view of Maalik. Something similar was narrated from Sa‘eed ibn
al-Musayyab, ‘Abd ar-Rahmaan ibn al-Qaasim and Naafi‘. End quote from
Based on that, perhaps you can consult a lawyer to see
whether it is possible to reopen the case of khula‘ easily after it was
closed, or whether it is possible to leave it without closing it. Or you can
try to find out your husband’s attitude by any means, so that you can find
out whether he took him back before the end of your ‘iddah or not, so as to
know exactly where you stand.
We ask Allah to make things easy for you and to decree good
for you wherever it may be.
And Allah knows best.