Divorce with clear and allusive words

http://islamqa.org/hanafi/daruliftaa/7718

I and my wife have been married for a very long time. One day we had an argument and my wife said so many things and she said “so is the marriage over?” I replied “no it is not!”, she kept asking me and I said no. we both then went silent then after a while she said it again in a quick voice and I was in deep thought at the time and I replied yes?, as in a response to her asking me something. My intention was not towards my nikah but in general as when a person would say yes referring as what?

After this we both renewed our nikah but the fear still remains in my heart. Did what I say apply as talaq?

One other question I had was what if a person is in doubt about his intention of divorce and this is in the case of kinayah been used. Does divorce take place?

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

As a principle, it should be remembered that words which effect divorce are of two types:

a) Clear and plain words (sarih)

b) Allusive words (kinaya)

Sarih (clear) means expressly pronouncing the word divorce or words derived from it, such as: “I divorce you” or “you are divorced” etc… Kinaya (allusive) means using words that are not exclusively prescribed for issuing divorce, but alludes and hints to it.

Clear and plain words effect divorce whether one intends divorce by them or not, while allusive words do not effect it unless one intends divorce by them or it is determined by the circumstance one is in. (See: the major books of Fiqh).

With regards to your situation, you said “yes” to your wife’s question “Is our marriage over?” Here, as you say that you were unaware what she had said, and you were merely saying “yes” as in “What?”, then this has no implication on your marriage and it is still intact. Your intention was not to confirm a divorce, for you were unaware what she had said.

With regards to your second question, i.e. having a doubt in ones intention in the case of using allusive words, the Jurists (fuqaha) mention that allusive words are in need of clear intention, thus divorce will not come into effect if one had a doubt in his intention.

It is stated in Durr al-Mukhtar:

“One knew that he took an oath, but was uncertain whether it was for divorce or something else, it will be ineffective (lagw). Similar is the ruling for the situation where one has doubt whether he issued a divorce or otherwise.” (See: Imdad al-Ahkam, 2/472)

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

http://islamqa.org/hanafi/daruliftaa/7649

I have said angrily to my wife many times in Urdu that “Bibi, tum farigh ho” or “Jao, tum meri taraf sai farigh ho” I never had the intention of divorcing her. Sometimes I would just say these phrases jokingly. Sometimes just to show that I am upset, but I never intended divorce with them. What is the Islamic ruling concerning my marriage? I have been told that these words constitute divorce even without intending divorce, whilst others have told me that an intention is necessary. Please clarify the Islamic ruling.

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

As explained in previous answers that words effecting divorce are of two types:

a) Clear and plain words (sarih),

b) Allusive words (kinaya).

Sarih (clear) means expressly pronouncing the word “divorce” or words derived from it such as “I divorce you” or “you are divorced”. Kinaya (allusive) means using words that are not exclusively prescribed for issuing divorce, but rather, they allude and hint to it. They can mean divorce as well as some other meaning.

A statement of Sarih results in a revocable/reversible (raj’i) divorce whether one intends divorce or not, whilst a statement of Kinaya does not effect a divorce unless one intends divorce by it (or one’s circumstances indicate divorce in a court of law), in which case an irrevocable/irreversible (ba’in) divorce comes into effect. (See: Radd al-Muhtar and other major books of Hanafi Fiqh).

Keeping the above principle in mind, let us look at the statements you have outlined in your question. The Urdu expression “Tum farigh ho” and “Jao, tum meri taraf sai farigh ho” would translate in English as “You are free” and “Go, you are free from me” In other words, these statements imply that the husband is informing his wife that she is completely free to go and at liberty to walk away from his marriage. In Arabic, it would be translated into something like “Khallaytu Sabilaki” or “Khaliyyatun”.

It is stated in the renowned Hanafi Fiqh reference work, Al-Fatawa al-Hindiyya, regarding such type of phrases:

“If one says (to his wife) during a discussion on divorce “I have separated you (bayantuki)” or “I have no authority over you (la sultana li alayki)” or “I have released you (sarrahtuki)” or “I give you as a gift to yourself (wahabtuki li nafsiki)” or “I have freed your path/you are free to go (khallaytu sabilaki)”…… then divorce will come into effect. If, however, he (the husband) said, I did not intend divorce with my statement; his claim will not be accepted as true in a court of law [m: because he made this statement during a discussion on divorce]”. (Al-Fatawa al-Hindiyya, 1/375)

Note that a Muslim court of law or a Muslim judge will base his verdict on the circumstances in which such statements were made. As such, if a man was to pronounce allusive words of divorce in anger or whilst discussing divorce with his wife, a judge would rule that his marriage is over, even if he claimed he had no intention of divorcing his wife. This ruling is what we call in Islamic jurisprudence as “legally binding” (qada’an). However, despite this, if he is absolutely sure that he had no intention of divorcing his wife with such statements, then religiously and privately between him and Allah (diyanatan); his marriage will still be considered valid.

The above text of Al-Fatawa al-Hindiyya indicates that the statements “Tum farigh ho” and “Jao, tum meri taraf sai farigh ho” are allusive statements of divorce, and as such, would require an intention in order for divorce to be considered effective. Furthermore, there are other allusive statements mentioned in Al-Fatawa al-Hindiyya such as “Khaliyyatun” and “Bariyyatun” which have the same connotation. Here again, the normal ruling is given, in that if there is an intention of divorce, divorce will be effected otherwise not.

It is further stated in Al-Fatawa al-Hindiyya:

“In a situation of contentment [as opposed to the situation of anger and/or discussing divorce], a divorce will not come into effect with any of these (allusive) statements except with an intention of divorce.” (Al-Fatawa al-Hindiyya, 1/375)

Once again it should be noted that in the above text, the verdict of divorce being dependent upon intention is cited for a situation where the husband is content, as opposed to a situation where he is angry or the situation where divorce is being discussed. But as explained earlier, the verdict in the latter two situations may well change in a court of law, but religiously (diyanatan) if the husband is adamant that he had no intention of divorcing his wife, divorce will not come into effect even if he was angry or divorce was being discussed.

Therefore, in order for a divorce to come into effect with allusive (kinaya) statements of divorce, such as the one mentioned in your question, the statement must be accompanied with an intention of divorcing the wife, in which case a irrevocable (ba’in) divorce will come into effect. If the husband is adamant that he did not intend divorce, then no divorce will take place.

Having said all of the above, the scholars (ulama) of the Indian Subcontinent, where the Urdu language is predominantly spoken, have differed as to whether this statement “Farigh ho” or “Farigh khati” is a clear (sarih) statement of divorce or an allusive (kinaya) one.

In Fatawa Mahmudiyya – a 18 volume Fatawa-collection of the late Mufti Mahmud al-Hasan Gangohi (Allah have mercy on him) – the Shaykh issues a similar ruling to that which has been mentioned above, in that if the husband intends divorce, a irrevocable (ba’in) divorce will come into effect, and if there is no intention of divorce, then no divorce will take place. The reason being is that this is an allusive (kinaya) statement of divorce, and the general ruling on allusive statements is that they result in irrevocable divorces if the husband intends divorce, otherwise there is no divorce. (See: Fatawa Mahmudiyya, 4/61)

Shaykh Mawlana Ashraf Ali Thanawi (Allah have mercy on him) in his Imdad al-Fatawa (2/447) also considers this statement to be an allusive statement, but then issues the verdict that a irrevocable (ba’in) divorce will come into effect even if the husband does not intend divorce. His explains that the statement “farigh khati” is commonly used by the masses to affect an irrevocable divorce, hence it has become more like a clear statement, thus there is no need for an intention. (Imdad al-Fatawa, 2/447)

This position is then refuted by a later scholar, Mufti Rashid Ahmad, in his Ahsan al-Fatawa stating that if the statement “Farigh khati” is used commonly by the masses as a clear (sarih) statement of divorce, then the ruling of irrevocableness should no longer apply, because a clear statement of divorce results in a revocable (raj’i) divorce.

As such, the position taken by the author of Ahsan al-Fatawa is that this statement “Farigh khati” is considered a clear (sarih) statement of divorce, for customarily it is only used by a husband to pronounce divorce. Therefore the normal rule for pronouncing a clear statement of divorce will apply, which is that a revocable (raj’i) divorce will come into effect regardless of whether the husband intends a divorce or otherwise. (See: Ahsan al-Fatawa, 5/155-156)

The conclusion that can be deduced from all of this (Allahu A’lam) is that statements such as “Tum farigh ho” and “Farigh khati” are to be generally considered as statements of Kinaya. Thus, if a husband uttered them with an intention of divorce, then an irrevocable divorce (talaq ba’in) will come into effect, otherwise there will be no divorce. However, if the customary understanding (urf) of a particular community is such that these terms are exclusively used for divorce, then we will consider them to be statements of Sarih divorce, and as a result, by pronouncing them, a revocable divorce (talaq raj’i) will come into effect regardless of whether the husband intended a divorce or otherwise.

The great Hanafi jurist, Imam Ibn Abidin (Allah have mercy on him) explains this very concept in his renowned masterpiece Radd al-Muhtar. He states quoting from Al-Shurunbulaliyya that a question was raised concerning a specific statement used exclusively for divorce in Turkish, but it was not a statement that was clear and explicit in giving the meaning of divorce. The question was posed as to whether the statement would be considered a clear expression of divorce due to the fact that it was customarily used exclusively for divorce, or an allusive statement of divorce given the fact that linguistically it was not an exclusive term denoting divorce. Imam Ibn Abidin then quoted many Hanafi jurists such as al-Rahimi, Shaykh al-Islam Abu as-Sa’ud and others that they issued a verdict of the statement being considered a clear (sarih) statement of divorce, hence a revocable (raj’i) divorce coming into effect. (See: Radd al-Muhtar, 2/248, bab al-sarih)

Imam Ibn Abidin (Allah have mercy no him) further on states:

“A clear (sarih) statement of divorce is that which is customarily used for divorce in a way that it is not used for anything but divorce…” (Radd al-Muhtar, 3/252)

And he states in another place:

“The statement “Sarrahtuki” (I have freed you) is an allusive statement of divorce but in the understanding of the Persians its usage has become widespread as a clear statement of divorce. As such, if a person said “raha kardam” [which means “I have freed you” in Persian], a revocable (raj’i) divorce will come into effect despite the fact that originally this was an allusive statement of divorce…” (See: Radd al-Muhtar from Ahsan al-Fatawa, 5/155)

Therefore, in conclusion, statements such as “Tum farigh ho” and “Jao, tum meri taraf sai farigh ho” and “Farigh khati” are to be generally understood and classed as allusive (kinaya) pronouncements of divorce, and as a result, will result in irrevocable (ba’in) divorces provided the husband intends divorce with them; otherwise there will be no divorce. However, if the customary practice and understanding (urf) of a particular community is such that these statements are used exclusively for the pronouncement of divorce – in such a way that they are not used for anything else – then they are to be classed as clear (sarih) pronouncements of divorce, and as a result, will result in revocable (raj’i) divorces regardless of whether the husband intends divorce with them or not.

(Note that this answer is relatively detailed and scholarly. As such, if one is confused or unclear of the outcome, please do not hesitate to enquire from a reliable scholar, Insha Allah)

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK


http://islamqa.org/hanafi/daruliftaa/8313

I have been contemplating divorce almost since the day I got married, but I have put it off hoping Allah will change everything for the better. Since the subject has been on my mind almost constantly, I have spoken to others (family members and friends) about it to release my stress and tension. During the course of such conversation I have said some things which may constitute divorce such as “I don’t want to be with her” and “I cant stand being with her” (what I meant was I am not happy when with her), but recently I kind of decided that I will divorce my wife before I leave for Hajj (meaning I will tell her over the phone a day before I leave), what I would like to know is whether me giving her a divorce before I go to Hajj is binding or whether it is already done merely by the fact I made up my mind that I will do it before I leave for Hajj. Please help, your brother in need of advice? Also what is the significance of saying “I am going (meaning I am going to go ahead with it) to divorce her”, but not meaning I have divorced her.

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

1) Thinking about divorce or contemplating issuing a divorce to one’s wife does not Islamically constitute a divorce, as long as one does not actually issue a divorce verbally or in writing.

Sayyiduna Abu Hurayra (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “Verily Allah overlooks my Umma for the misgivings that occur in their hearts until they say it verbally or act upon it.” (Sahih al-Bukhari & Sahih Muslim)

Although the above Hadith is in relation to having evil and sinful thoughts, it can be generalized, in that as long as one has a specific intention in the heart, it will be of no consequence unless one says it verbally or follows it up with action.

Imam al-Haskafi (Allah have mercy on him) states in his renowned Durr al-Mukhtar:

“The main integral (rukn) of divorce is the specific statement (lafdh makhsus).”

Imam Ibn Abidin explains the above by saying:

“(al-Haskafi’s statement: “the main integral of divorce is the specific statement”) that is, a statement which has the meaning of divorce whether in clear terms or in allusive terms…The expression “statement” also includes clear writing and the gesture (isharah) of a dumb person…” (Radd al-Muhtar ala al-Dur, 3/230)

Therefore, in order for a divorce to count, one needs to verbally pronounce the words of divorce or write it. If the person is dumb, then his clearly understood gesture would be sufficient.

2) Words that effect divorce are of two types: Clear words (sarih) and allusive words (kinaya). Sarih (clear) means expressly pronouncing the word divorce or words derived from it, such as: “I divorce you” or “you are divorced” etc. Kinaya (allusive) means using words that are not exclusively prescribed for issuing a divorce, although they allude and hint to divorce.

Clear and plain words effect divorce whether one intends divorce by them or otherwise, while allusive words do not effect divorce unless one intends divorce by them or it is determined by the circumstance one is in. (See: the major classical books of Fiqh).

3) Divorce does not count in the case of one using words that represent the future, hence, if one said: “I will divorce you” or “I am going to divorce you” and/or other similar statements, divorce will not be effected. Divorce only comes into effect when using words of divorce in the past and present tense forms.

It is stated in al-Fatawa al-Hindiyya:

“If an individual said in Arabic “I will divorce you” it will not be considered a divorce unless its usage becomes widespread for the present tense, in which case divorce will count.” (al-Fatawa al-Hindiyya, 1/384)

In light of the above-mentioned three points, it becomes clear that your marriage is still intact and no divorce has taken place. You state that you have been contemplating divorcing your wife since you were married, thus, in light of point number one, merely contemplating divorce is of no consequence. Similarly, you state that you decided to divorce your wife before going for Hajj; hence, this also does not invalidate your marriage, as it is mere contemplation. Even if you mentioned this to your wife or someone else, divorce will not occur, as promising to divorce in the future is not considered a divorce as mentioned in point number three.

As far as the statements “I don’t want to be with her” and “I can’t stand being with her” are concerned, they are not clear (sarih) words of divorce, rather they allude to it. The first statement made by you is both an allusive statement and also attributed to the future; hence, divorce is not effected even if you did intend divorce. The second statement may be considered an allusive statement of divorce in the present tense form, but as mentioned in point number two, allusive words require an intention of divorce, and you state that you merely intended you were not happy with her; hence, divorce is not effected on account of it.

In conclusion, according to the details given by you in your question, your marriage is still intact and divorce has not taken place. You need to be extra vigilant in the future, as not to regret something you don’t want to take place.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK