Assalamu Alaikum, Husband: When my wife was angry, she was shouting and telling I am divorçons you or i divorcé u. In response, I tried to stop her and shouted, ‘Don’t say such a thing’, but she did not listen and out of my anger I told her that while you were divorcing me, I had also given you talaq. I had no intention of giving her talaq. The anger was so intense that it makes me say the words of divorce But after a week we had mutual understanding and forgot what happened. At that time we only had Nikah over the phone, we didn’t meet each other and we lived in two different countries. Because of the immigration issue, we met after 1.5 years of our nikah and then living together. Is there any divorce took place?
In the Name of Allah, the Most Gracious, the Most Merciful
From our understanding, the words used were explicit words. Therefore, the divorce will occur even though there was no intention to issue a divorce. However, if implicit words where used, then an intention of issuing the divorce is needed for the divorce to occur.
The Fiqh of the Answer
There are two types of words that can be used to issue a divorce: Ṣarīh (explicit) words or Kināyah (implicit) words. Imam al-Atqānī (d.757 AH) explains that Ṣarīh words have a clear and explicit meaning of divorce, as they are commonly used by people for this purpose. Such words do not require an intention for the divorce to occur. On the other hand, Kināyah words have a less apparent meaning of divorce, and the occurrence of divorce relies on the intention of the person using them.
Furthermore, when one states to his wife, “you are divorced,” essentially, he is providing her with the information that she has been divorced. If it is not possible for this statement to be construed as informative, then it will be considered as if he is issuing the divorce with the statement itself. For example, if someone says to his wife, whom he married today, “I gave you a divorce yesterday,” no divorce will occur. This is because it will be assumed that he was providing her with the information that they were not married yesterday. However, if they had been married for more than one day and this statement is made, then this assumption cannot be made as they were married yesterday. Therefore, it will be assumed that with this statement, the person is issuing something that was not in existence (inshā’). Subsequently, a principle comes into play, asserting that creating something into existence in the past is akin to making something come into existence in the present. Due to the fact that, in the present time, he cannot issue a divorce in the past, it will be assumed that the divorce was issued at the moment of the utterance of the statement, as mentioned by Imam al-Atqānī (d.757 AH).
If a straightforward and unequivocal word is used to issue a divorce, it will take effect regardless of the intention behind it. Muftī Raḍā’ al-Ḥaq has also affirmed this perspective, stating that even if the intention was good and aimed at bringing someone closer to Allah, the divorce will still occur if the proper words are used. Imam al-Atqānī (d.757 AH) mentions that the divorce occuring is not dependant upon the person. After an explicit word has been mentioned, the divorce will occur. This is why if a person was to give a divorce to his wife as a joke, the divorce will occur even though this is not what he intended.
And Almighty Allah Alone Knows Best
Maulana Inaamul Hasan Chothia
Reviewed and approved by
Mufti Faraz Adam
Darul Iftaa Muadh ibn Jabal
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والصريح : ما كان ظاهر المراد ؛ لغلبة الاستعمال .والكناية : ما كانَ مسْتَتِرَ المراد، فيحتاج فيه إلى النية (غاية البيان لقوام الدين الأتقاني، ص 358، ج 5، ط دار الضياء)
غاية ما في الباب: أنَّه يَنْعَدِمُ الرضا بالإكراه، والطلاق لا يَتَوَقَّفُ على الرضا، ولهذا يقعُ طلاق الهازل ، مع أنه غير راض بوقوع الطلاق (غاية البيان لقوام الدين الأتقاني، ص 344، ج 5، ط دار الضياء)
بخلاف الإقرار بالطلاق ، حيثُ لا يَصِحُ ؛ لأنَّه إخبارٌ يَحْتَمَلُ الصدق والكذب ، وقيام السيف على رأسه دليلٌ على أَنَّهُ كَاذِبٌ ، فَمَا كَانَ كَذِبًا ؛ فَلا يَكُونُ صدقا، بخلاف الإنشاء، فإنَّه لا يَحْتَمِلُ الكذب ، ولهذا إذا أقر بالطلاق هازلا ؛ لَمْ يَقَعُ ، وإذا أنشأَ بِهِ هازلا ، يَقَعُ . (غاية البيان لقوام الدين الأتقاني، ص 345، ج 5، ط دار الضياء)
سوال : اگر کوئی شخص کسی مصلحت کی وجہ سے بغیر نیت طلاق کے اپنی بیوی کو طلاق کہدے یا لکھدے، لیکن مقصود طلاق دینا نہ ہو بلکہ کوئی خاص مصلحت مقصود ہو تو طلاق واقع ہوگی یا نہیں؟
الجواب: طلاق کے صریح لفظ کے ساتھ زبانی کہنے یالکھ دینے سے طلاق واقع ہو جاتی ہے، پھر نیت و ارادہ کی ضرورت نہیں ہے، چاہے کسی مصلحت کے پیش نظر کہا ہو یا لکھا ہو (فتاوى دار العلوم زكريا)