Fatwa ID: 07956
Answered by Alimah Saleha Bukhari Islam
Question:
I hope this finds you in peace and good tidings. I would like to describe circumstances that have developed over several years but culminated in a series of events that have taken place in the past year up to this past December relating to matters of divorce.
My wife and I have a year of disagreements, arguments and uncertainty surrounding our marriage. The source of all three is that I haven’t been most consistent husband. To add to matters, I wasn’t always there when I should have been. This led to arguments and untimely my wife insisting for a divorce. After months of disputed and not seeing eye to eye on things, we met early last year and I said 1 talak in front of witnesses, her sister and brother in-law, her father, and brother. We reconciled afterwards and I vowed to make things work. Things did not improve on my end. This was discussed at length and in early December another talak was said. I must emphasise that I always maintained that I wouldn’t stand in the way my wife wanted a divorce. I maintain that we can discuss things, but that if a divorce is what she wanted I wouldn’t deny it to her.
However, in the middle of December not long after I said talak for the second time things took a turn for the worse. I went to see my wife and we had breakfast with our child. I was as late from jummah which led to my wife asking where I was. After I did not respond she became understandably upset. She sent a flurry of texts which consisted in demands that wanted a divorce immediately. I did not immediately respond to her texts but acknowledged what she wanted. I went home afterwards and sometime in the late hours in the late hours of the night we briefly texted where she asked me why I did not return, but also demanding a divorce. It wasn’t until the next morning when we verbally spoke on the phone and she said she wanted the divorce. She asked me if I wanted to do this. I said I wasn’t going to be non-compliant as I had always emphasised in our marriage that if she wanted a divorce I wouldn’t stand in the way. She said, “That’s what I want.” So, to give into her demands I said the final talak. Divorce is not what wanted but said it anyway.
What I would like to know is does my final talak count as an instance of divorce even though I only said it because she wanted it?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
I’m sorry to hear that you’ve had a year of disagreements, arguments and uncertainty surrounding your marriage. I understand that you have already executed two talaqs prior to this last one which you are enquiring about.
Divorce is of two types, explicit (Sarīh) and implicit (Kināyah). The explicit is when he says: You are divorced, and I am divorced, and I divorce you. This constitutes a revocable divorce because these words are used in divorce specifically and are not used in anything else. The implicit (Kināyah)is when the husband issues his wife a divorce using unclear phrases or words which are not specifically used for issuing divorce but rather direct towards it. Additionally, there is a condition that the usage of implicit (Kināyah) phrases or words do not affect divorce unless either the husband intends divorce by them in that instance, or it is determined by the context of the situation. [1]
You mentioned that you prompted your wife with divorce, and she confirmed that she wanted a divorce by saying, “That’s what I want.” And so, you said the final Talaq. If you had used implicit phrases or words, then your intention would need to be clarified.
If, on the other hand you used explicit phrases or words, then your intention is irrelevant. Under these circumstances, even if divorce was not intended, Talaq has occurred. In your case, this was the third and last Talaq. Therefore, your marriage has ended, and your wife must begin to count her period of Iddah. [2]
Only Allah (عز و جل) knows best.
Written by Alimah Saleha Bukhari Islam
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
[1] (الطَّلَاقُ عَلَى ضَرْبَيْنِ: صَرِيحٌ، وَكِنَايَةٌ. فَالصَّرِيحُ قَوْلُهُ: أَنْتِ طَالِقٌ وَمُطَلَّقَةٌ وَطَلَّقْتُك فَهَذَا يَقَعُ بِهِ الطَّلَاقُ الرَّجْعِيُّ) لِأَنَّ هَذِهِ الْأَلْفَاظَ تُسْتَعْمَلُ فِي الطَّلَاقِ وَلَا تُسْتَعْمَلُ فِي غَيْرِهِ فَكَانَ صَرِيحًا
ص3 – كتاب العناية شرح الهداية بهامش فتح القدير ط الحلبي – باب إيقاع الطلاق – المكتبة الشاملة
[2] امْرَأَةٌ قَالَتْ لِزَوْجِهَا طَلِّقْنِي وَطَلِّقْنِي وَطَلِّقْنِي فَقَالَ الزَّوْجُ قَدْ طَلَّقْتُك طَلُقَتْ ثَلَاثًا نَوَى الزَّوْجُ الثَّلَاثَ أَوْ لَمْ يَنْوِ وَلَوْ قَالَتْ بِغَيْرِ حَرْفِ الْوَاوِ طَلِّقْنِي طَلِّقْنِي طَلِّقْنِي فَقَالَ الزَّوْجُ قَدْ طَلَّقْتُك فَإِنْ نَوَى الثَّلَاثَ طَلُقَتْ ثَلَاثًا وَإِنْ نَوَى وَاحِدَةً أَوْ لَمْ يَنْوِ شَيْئًا تَقَعُ وَاحِدَةٌ كَذَا فِي الْمُحِيطِ
ص356 – كتاب الفتاوى العالمكيرية الفتاوى الهندية – الفصل الأول في الطلاق الصريح – المكتبة الشاملة
وَأَنَّهُ لَوْ قَالَ: يَا مُطَلَّقَةُ: أَنْتِ طَالِقٌ، وَكَانَ طَلَّقَهَا قَبْلَ ذَلِكَ، فَقَالَ: أَرَدْتُ تِلْكَ الطَّلْقَةَ، فَهَلْ يُقْبَلُ أَمْ يَقَعُ أُخْرَى؟ وَجْهَانِ. ذَكَرَ إِسْمَاعِيلُ الْبُوشَنْجِيُّ: أَنَّهُ لَوْ قَالَتْ لَهُ: طَلِّقْنِي وَطَلِّقْنِي وَطَلِّقْنِي، أَوْ طَلِّقْنِي طَلِّقْنِي طَلِّقْنِي، أَوْ قَالَتْ: طَلِّقْنِي ثَلَاثًا، فَقَالَ: طَلَّقْتُكِ، أَوْ قَدْ طَلَّقْتُكِ، أَوْ أَنْتِ طَالِقٌ. فَإِنْ نَوَى عَدَدًا، وَقَعَ، وَإِلَّا فَوَاحِدَةٌ، وَأَنَّهُ لَوْ طَلَّقَهَا وَاحِدَةً رَجْعِيَّةً ثُمَّ قَالَ: جَعَلْتُهَا ثَلَاثًا، فَهُوَ لَغْوٌ لَا يَقَعُ بِهِ شَيْءٌ.
ص84 – كتاب روضة الطالبين وعمدة المفتين – فصل – المكتبة الشاملة
