He had sex with his wife after the expiry of her waiting period
3-5-2010 | IslamWeb
Question:
Assalamu Alykum. I request you to please let me know the sharia ruling with regard to my situation. I have been married for over 15 years now. I have no kids.Except the past 7 months, I was always living and working alone in different cities /countries while my wife used to live with my parents at my home in my home country. I used to periodically visit my parents once a year for about 2-3 weeks. About 11 years back, I had issued a single divorce (1 time) to my wife in writing while I was working in a different city. The family elders thought it wise to send her back to her father's home while they were trying to resolve the issue and they sent her to her parents. Within couple of months my father passed away and I came home to visit my mother. At that time, I was told that my wife had returned to my house to support my mother. My reply to that was a single word "Okay". I do not know for sure if she returned during her iddat or after completion of her iddat period. Anyway, I was upset that she was returned without me revoking the talaaq. I never spoke to her, looked at her or touched her for over 1 year. After few more months or so I decided to have sex with her as a result of emotional pressures. Though I was anxious at that time that this may be haram, I thought since I had not said talaaq 3 times this may be Okay. Since then, we continued to live like husband and wife whenever I visited home. I now understand that since I had not revoked the talaaq before she completed her iddat, the talaaq had automatically converted into talaq-e-bain and our subsequent relationship has been illegal. Could you please answer the following for me. 1)If my saying “okay” to being informed that she returned, happened before her iddah expired, can this be considered as having taken her back (though I had not considered it as asking for her return)? Is our current status a haram one? ? Is it like we have committed adultery? ? If yes, what is the way forward for us
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.
There is neither might nor power except with Allaah. We do not know how come you had sexual intercourse with your wife in the same manner a husband has sexual intercourse with his wife while you are not sure that your taking her back is valid. A Muslim should not act or say something – while not knowing its ruling – before asking the scholars about it especially if it is about such a matter that pertains to sexual intercourse. Allaah Says (what means): {So ask the people of the message [i.e. former scriptures] if you do not know.}[Quran 16:43]
In addition to this, you did not inquire about this except after this long period had passed, so you are negligent in this regard and you are obligated to repent.
As for your statement ‘Okay’, it is not a clear statement of taking your wife back, so this is not considered as taking back your wife even if this happened during her waiting period unless you said it with the intention to take her back. However, this cannot be so since you mentioned that you did not intend to take her back when you said that. However, according to the view of some scholars 
having sexual intercourse (with the wife) is considered as taking her back provided that this takes place during her waiting period. But you did not have sexual intercourse with your wife except after a period of more than one year.
In general, the waiting period expires much less than this period. For a non-pregnant woman, it is three menses for menstruating women, and three months for non-menstruating women. Thus, what you mentioned indicates that you had intercourse with her after her waiting period had expired and if this is the case, then what happened between you and her was Zina (illegal sex); hence, both of you are obligated to repent.
Also, you are obliged to separate from her. If there are any children from this marriage, then they will be traced back to you if you believed that having sexual intercourse with her was lawful. Ibn Qudaamah 
said: “If he [the husband] does not know that she is irrevocably divorced from him, or does not know that her waiting period from a revocable divorce had expired, or does not know that this is forbidden for him, and people like him ignore this, then in this case, his children can be traced back to him.”
Now, if you both wish to continue the marital relationship, you are obligated to renew the marriage contract but after making sure that she is not pregnant by her having one monthly menses according to the most preponderant opinion of the scholars. For more benefit, refer to Fatwa 83629.
Allaah Knows best.