Husband saying I am not married to you in my country affect the marriage

Fatwa ID: 01893

Answered by Mufti Mohammed Tosir Miah

Question:

My husband and I recently had a major argument and there were things he had said that I am unsure of. I am a Malaysian and my husband is an American (a revert). At the moment he lives in Texas while I am still in Malaysia, waiting for my spousal visa to the USA (it has been 4 months since I applied). During a heated argument via text messages he had said many mean things and indicated that he didn't want the marriage anymore. I had asked if he means he is divorcing me because I wanted a clear cut answer so that I know exactly where I stand in this marriage. His answer was "I don't have to divorce you. I'm not married in my country". Would this be considered as talaq?

Answer:

Bismillah

The words which effect divorce are of two types:
1) Clear and plain words (sareeh)
2) Ambiguous and allusive words (kinaya)
Sareeh means expressly pronouncing the word divorce or words derived from it, such as: “I divorce you” or “you are divorced” etc… Clear and plain words effect divorce whether one intends divorce by them or not. (Hidayah, V2, P359, Raddul Muhtaar, V2, P465, Hindiyah, V1, P354)

Kinaya means using words that are not exclusively prescribed for issuing divorce, but alludes and hints to it. Kinaya words do not effect divorce unless one intends divorce by them or it is determined by the circumstance one is in. (Hidayah, V2, P373, Raddul Muhtaar, V2, P501, Hindiyah, V1, P374)

The kinaya words effect talaaq e bain (distinct divorce) when one intends divorce by them. (Hidayah, V2, P374, Raddul Muhtaar, V2, P507)

With regards to your question, the phrase you said falls into the second type of ambiguous and allusive words (kinaya). Therefore, if you intended to give talaq, one talaq baain will occur. Otherwise, no talaq will occur. (Fatawa Darul Uloom Deoband p.400 v.9)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.

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