Was this a divorce?
A husband, whilst fighting with his wife on their wedding day uttered the words “let’s just pack this whole thing up”, Referring to their nika. Was this a divorce issued from the husband?
Bismillaahir Rahmaanir Raheem.
Alhamdulillaahi was salaatu was salaamu `alaa Rasoolillaahi wa `alaa aalihi wa sahbihi wa man waalaahu, wa ba`d:
Divorce is of two types: Sareeh (explicit) and Kinaayah (ambiguous).
Explicit divorce is for example: “Anti Taaliqun” (you are divorced).
While all ambiguous wordings which may mean divorce or may mean something else will be judged based on the intention of the husband at the time when he made the statement. If he intended divorce by it then a single Talaaq Baa’in (irrevocable divorce) will take place, and he will have to renew his Nikaah if he wants to continue staying with that woman.
However if he did not intend divorce then no divorce will take place. Even if he lies and says he did not intend divorce when in reality he did intend divorce, then too we are forced to give the ruling that no divorce has taken place, because we cannot tell what the hearts conceal. Allaah will take him to task in the hereafter for his lie, but in this world they shall be treated as husband and wife.
Imaam Al-Kaasaani Rahimahullaah defines what Kinaayah is in Badaa’i`us Sanaa’i` and says: “It is all those words which are used for divorce and used for other than it as well, like for example: “You are free” or “You are forbidden upon me” etc.” [i]
He then says: “Now when these statements have the possibility of referring to divorce or to something other than divorce, its real meaning is hidden to the listener, therefore it requires an intention in order to specify its meaning.” [ii]
And he further states: “And there is no difference of opinion that divorce does not take place with any of these ambiguous wordings except with an intention, so if he intended divorce then it will take place between him and Allaah Ta`aalaa, but if he did not intend anything then between him and Allaah Ta`aalaa nothing (no divorce) will take place, and if he mentions any of these (ambiguous wordings) and then (falsely) says: “I did not intend divorce.” He will be liable for that by Allaah Ta`aalaa, because Allaah Ta`aalaa knows his secrets and what he conceals.” [iii]
Now in the case in question, this is a prime example of Kinaayah, therefore the man will have to be asked concerning his intention, if he says he intended divorce, well then the marriage is broken, but if he says he just said so out of frustration and had no intention of divorce, then their marriage is intact.
And Allaah knows best.
Ubaidullah Ibn Adam Aal-Ebrahim.
Checked and Approved by:
Mufti Rashid Ahmed Moosagie.
Tuesday 16th Sha`baan 1434 – 25th June 2013.
[i]فَهُوَ كُلُّ لَفْظٍ يُسْتَعْمَلُ فِي الطَّلَاقِ وَيُسْتَعْمَلُ فِي غَيْرِهِ نَحْوُ قَوْلِهِ: أَنْتِ بَائِنٌ، أَنْتِ عَلَيَّ حَرَامٌ. – قاله الإمام الكاساني رحمه الله في كتابه بدائع الصنائع.
[ii]وَإِذَا احْتَمَلَتْ هَذِهِ الْأَلْفَاظُ الطَّلَاقَ وَغَيْرَ الطَّلَاقِ فَقَدْ اسْتَتَرَ الْمُرَادُ مِنْهَا عِنْدَ السَّامِعِ، فَافْتَقَرَتْ إلَى النِّيَّةِ لِتَعْيِينِ الْمُرَادِ. – قاله الإمام الكاساني رحمه الله في كتابه بدائع الصنائع.