Is a divorce by text message valid in Hanafi Fiqh provided that the message was really sent by the partner and not by a third person using the partners phone?
ANSWER
In the name of Allah, Most Compassionate, Most Merciful,
According to Shariah, verbal utterance is not a necessary condition for the validity of a divorce (talaq). Rather, divorce is also effected by means of the written word.
The great Hanafi jurist, Imam al-Kasani (Allah have mercy on him) states:
“Similarly, issuing a divorce verbally is not a condition. Hence, divorce will be effected with clear and unambiguous writing, or with the understood gesture (isharah) of a dumb person, because the clear written word is in place of verbal utterance”. (Bada’i al-Sana’i, 3/100)
It is stated in al-Fatawa al-Hindiyya:
“Writing (m: a divorce) is of two types: A formally written letter and informal writing. A formally written letter is that which has a heading and title like that which is written to a non-present person, and non-informal writing is that which does not have a heading. Then, non-formal writing is of two types: Clear and understandable writing and unclear writing. Clear writing is that which is written on a piece of paper, wall or ground in a way that it is understandable and readable, and unclear writing is that which is written in the air, on water or on something in a way that it is not understandable or readable.
In the case of unclear and unreadable writing (m: like on water or in the air), divorce will not come into effect even if one intends it. And if the writing is clear but not as a formally written letter, divorce will be effected if the person intends it otherwise it will not count. As far as a formally written letter is concerned, divorce will count regardless of whether one intends it or not.” (al-Fatawa al-Hindiyya: 1/378)
In light of the above text, if one was to write divorce on water, in the air or in a way that it was unclear and unreadable, and divorce was merely scribbled, then divorce will not come into effect, even if one had the intention of divorce.
The second scenario is when the husband writes a formal letter divorcing his wife. This will count as a divorce whether he intends it or not.
The third situation is where the husband does not write a formal letter with a heading etc, but the writing is nevertheless clear and understandable, such as writing on a piece of paper or on a wall, etc. In such a case, divorce will count if he had the intention to divorce otherwise it will not count.
Now, it is imperative that we understand the definition of “formal” and “informal” writing and distinguish between them, because in the case of formal writing, divorce is effected even without having a intention, whereas in the case of informal writing, intention of issuing a divorce is necessary.
Imam al-Haskafi (may Allah have mercy on him) states:
“The husband issued a divorce in writing; if the writing was clear and was written on something like a slab, then divorce will be effected if he had the intention……and if he wrote it as a letter and formal address (khitab), such as he wrote: “O such and such! (m: he mentioned his wife’s name) when this letter reaches you, you are divorced” then in such a case she will be divorced with the reaching of the letter.” (See: Radd al-Muhtar ala al-Durr al-Mukhtar, 3/246, matlab fi al-talaq bi al-kitabah)
Imam al-Mawsili (Allah have mercy on him) states in his al-Ikhtiyar:
“If one wrote divorce in a book, on a slab/board, on a wall or on the ground, divorce will not be effected unless one has the intention….If this writing was not in a addressed form, for example he wrote: “wife is divorced” then this (also) will depend on his intention (m: meaning if he had the intention of divorce it will count otherwise not)…and if he wrote it in the form of a formal address and as a letter, for example he wrote: “O such woman (m: his wife) you are divorced, or when this letter reaches you, you are divorced, then divorce will come into effect even without having a intention.” (al-Ikhtiyar li ta’lil al-Mukhtar, 3/171-172)
In light of the above texts, it can be deduced that “informal” writing is that which one merely writes on a wall, board, slab, skate, small piece of paper, etc without addressing it to the wife or referring the divorce to her, and without sending it to her or intending to do so. For example, one wrote on a wall “divorce” or “I divorce” etc. Obviously one cannot send this wall to one’s wife. Hence in this case, divorce will only count if one intends it.
On the other hand “formal” writing is that which one writes on a proper document similar to what one uses when writing a letter, or addresses it to the wife or refers the divorce to her, with the intention of sending the written document to her. Hence, divorce in this case will count even if one did not intend it.
Based on the above explanation, we find that there can be few situations with regards to issuing a divorce by text massage over the phone or by email:
a) If one merely typed the word “divorce” or Talaq” or “I divorce” etc on the phone as a text message or on a computer as email, without actually referring the divorce to one’s wife or taking her name, and also without sending her the message or mail, then in such a case divorce will only count if one intends it. The reason being is that this would be considered “informal” writing for which an intention is needed. It is similar to writing these words on a wall or piece of paper without actually addressing the divorce to one’s wife.
b) If one typed the word “divorce” or “talaq” etc as text massage or email and then sent it to the wife’s phone or email, then divorce will come into effect even without having an intention. The reason being is that, by sending the message or email to one’s wife, it becomes a formal writing of divorce in which having an intention is not necessary.
c) If one did not send the text message or email to the wife, but referred the divorce to his wife or took her name, then in such a case also, divorce will come into effect even without having an intention. It is similar to one issuing a divorce as formal writing without actually sending it to the wife. Referring the divorce to one’s wife and taking her name in it self becomes “formal” writing, hence divorce comes into effect even without intending it.
It would be worthy to note three additional points in regards to our discussion:
Firstly, when one writes the divorce formally, it comes into effect even without sending it to one’s wife. Merely completing the writing will effect a divorce. However, if one wrote to one’s wife that “when this letter reaches you, you are divorced” then divorce will occur when the letter or mail reaches her.
Allama Ibn Abidin (Allah have mercy on him) states:
“In formal writing, if one issued the divorce by stating: “Now then (amma ba’du) you are divorced” divorce will be effected as he writes these words, hence the wife will be obliged to observe her waiting period (iddah) from the time of writing. However, if one connected divorce to the receiving of the letter such as he wrote: “When this letter reaches you, your are divorced” then divorce will come into effect as soon as the letter reaches her, with or without her reading the letter (m: hence her waiting period will commence from the time the letter reached her).” (Radd al-Muhtar, 3/246)
Secondly, for written divorce to come into effect, the husband must have either written it himself or ordered another person to do so on his behalf.
Allama Ibn Abidin (Allah have mercy on him) states:
“Every letter that which the husband did not write himself, neither did he dictate it himself, divorce will not come into effect until he does not admit that it is his writing.” (Radd al-Muhtar, 3/247)
Therefore, the husband himself or the one who he ordered must have written the divorce in order for it to count. Hence, the text message, email, etc must be typed and sent by the husband himself or someone (whom he ordered) on his behalf. If someone else used the husband’s phone or email address and sent the message to the wife, divorce will not count.
If the husband’s email address or phone was used, or the wife received a letter of divorce, but the husband denied emailing it, sending the text message or sending the letter to her, then in such cases, the husband’s word will be taken unless it is proven otherwise. In order for the divorce to come into effect, the husband must admit that it is his letter, email, or message; or it is proven by witnesses that he did actually write the letter or sent the message. (Radd al-Muhtar 3/247)
Finally, issuing a divorce in writing when under force does not count, provided one did not utter anything verbally. This was explained in detail in an earlier post under the title “forced to divorce” hence one may refer to it for more details.
The above was some necessary fiqh with regards to issuing a divorce in writing. I hope it has been beneficial, Insha Allah.
And Allah knows best
[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK
Darul Iftaa
Leicester , UK
No comments:
Post a Comment