Fatwa ID: 08558
Written by Muftiyah Saniyah bint Asrar
Question:
I would like to discuss a complex issue regarding talaq and nikkah using rulings from the hanafi madhab. These are the statements uttered
One day i was walking towards my wife and I looked at her then i verbally said to myself ‘anti talaq’ (you are divorced) in arabic. only I heard myself say this and no one else. I did not fully understand the meaning behind this statement. I knew it was linked to talaq but I did not know it was an explicit statement. When saying this I was pretending to issue a talaq, because I wanted to see how the situation would be like in my head, however I genuinely did not intend to issue a talaq. A few days after I realised what this statement actually means and I told my wife about it since I was stressed out. She knows that I did not intend to divorce her. Two muftis have said this counts as a talaq however I dont understand why because I did not fully understand the meaning of these words.
One day I was talking to my wife and we were talking about something and I said ‘I give up’ to to her as part of a normal conversation. Afterwards, I thought to myself would this be a talaq If i said it with the intention to divorce. So I said it again to her however I’m not sure if I had an intention to divorce her. It is more likely that I did not intend to divorce her deep down, because I was only pretending in an imaginary situation and deep down i genuinely did not intend to divorce her.
One day I was singing a song called “Khalas” which means done in arabic. I was wondering if it would count as talaq if I said “Khalas” with an intention to issue a talaq. So I said it to myself while pretending to talk to my wife and divorce her. However I did not intend to actually divorce her deep down since I was only pretending. She does not know I said this and no one else heard me.
I have bad OCD and waswasa which causes me to say these statements quickly without thinking however I have never truly intended to divorce my wife. Only today have I just read that these hadiths say that talaqs are valid even in jest however I’m not sure if I was really jesting. It was more to test things and imagine things hypothetically but I could be incorrect.
Abu Hurairah (May Allah Most High be pleased with him) narrated that the Messenger of Allah ﷺ said, ‘There are three matters in which seriousness is serious and joking is serious: marriage, divorce and taking back one’s wife (Raj’ah).’ (Abu Dawood, 2194).
Abu Dharr (May Allah Most High be pleased with him) narrated that the Messenger of Allah ﷺ said, ‘Whoever divorces playfully, his divorce is valid. Whoever emancipates playfully, his emancipating is valid. Whoever marries playfully, his marriage is valid.’ (Musanaf Abd al-Razzaq, 10249).
Fadalah bin Ubayd al-Ansari (May Allah Most High be pleased with him) narrated that the Messenger of Allah ﷺ said, ‘Playfulness is not permitted in three matters, divorce (Talaq), marriage (Nikah) and emancipation. (Tabarani al-Mojam al-Kabeer, 780).
Also I was a little confused on wether my nikkah is valid. I got my nikkah done with my wife with an imam, and 2 witnesses however she had no wali. During this time we both had little islamic knowledge and blind followed the opinion of Abu Hanifa so we could get married. However I have read hadiths that
Prophet Muhammad said: “There is no marriage without a guardian.” (Narrated by Abu Dawud (2085)
The Messenger of Allah also said: “Whichever woman married without the permission of her Wali her marriage is invalid, her marriage is invalid, her marriage is invalid which make me really doubt the validity of my nikkah. I truly believe in these hadiths since they are authentic however I am facing difficulty. Is my nikkah invalid? and if my nikkah was invalid, would all these talaqs also be invalid?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
To begin with the question about the validity of your Nikah, there is a difference of opinion regarding the necessity of a Wali but according to the Hanafi school of thought it is not required. Therefore, your marriage will be valid.
The first instance when you said “antī tāliq,” one divorce goes through because of the words being clear divorce even if you didn’t intend to do so. That’s why it is very important to be careful with regards to issues of Talaq. The second time was also a Talaq because you had the intention of divorcing her. Had the words been said without the intention of divorce, it wouldn’t have counted as a divorce since the words were not clear. The same ruling applies to the third scenario. Since three talaqs have been given, you are divorced irrevocably, meaning that you can never marry her again unless she marries someone else and gets divorced.
You mentioned that you suffer from OCD. If this is something that has been diagnosed and a mental health professional can write up the diagnosis, the divorces won’t count. However, it is necessary to get approval from a professional before deciding this, as lack of such clarity can lead to you staying in a Haram relationship.
References:
الهداية في شرح بداية المبتدي ١/١٨٥
كتاب النكاح
قال: «النكاح ينعقد بالإيجاب والقبول بلفظين يعبر بهما عن الماضي» لأن الصيغة وإن كانت للإخبار وضعا فقد جعلت للإنشاء شرعا دفعا للحاجة «وينعقد بلفظين يعبر بأحدهما عن الماضي وبالآخر عن المستقبل مثل أن يقول زوجني فيقول زوجتك» لأن هذا توكيل بالنكاح والواحد يتولى طرفي النكاح على ما نبينه إن شاء الله تعالى «وينعقد بلفظ النكاح والتزويج والهبة والتمليك والصدقة» وقال الشافعي ﵀ لا ينعقد إلا بلفظ النكاح والتزويج لأن التمليك ليس حقيقة فيه ولا مجازا عنه لأن الترويج للتلفيق والنكاح للضم ولا ضم ولا ازدواج بين المالك والمملوكة أصلا.
العناية شرح الهداية – بهامش فتح القدير ط الحلبي ٣/٤٨٧
[فَصْلٌ وَيَقَعُ طَلَاقُ كُلِّ زَوْجٍ إذَا كَانَ عَاقِلًا بَالِغًا]
فَصْلٌ لَمَّا ذَكَرَ طَلَاقَ السُّنَّةِ؛ لِأَنَّهُ الْأَصْلُ وَذَكَرَ مَا يُقَابِلُهُ مِنْ طَلَاقِ الْبِدْعَةِ شَرَعَ فِي بَيَانِ مَنْ يَقَعُ طَلَاقُهُ وَمَنْ لَا يَقَعُ، (وَيَقَعُ طَلَاقُ كُلِّ زَوْجٍ عَاقِلٍ بَالِغٍ دُونَ الصَّبِيِّ وَالْمَجْنُونِ وَالنَّائِمِ لِقَوْلِهِ ﵊: «كُلُّ طَلَاقٍ جَائِزٌ إلَّا طَلَاقَ الصَّبِيِّ وَالْمَجْنُونِ»)
Only Allah knows best
Written by Muftiyah Saniyah bint Asrar
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
