Kinayah Talaq

Fatwa ID: 02106

Answered by Molana Ishaaq Hussain

Question:

Before I put the question forward I would like to provide some background information. 

I got married in the year 2000 and I work in the middle east. After 15 days of my marriage, I left my wife in India and joined my job in the middle east. Later after few years my wife joined me and now we have a happy family with four kids.

Coming to the question, I was under a heated discussion with my brother where we were arguing about shouldering of responsibilities by us and during this argument I told him that "Just after 15 days of marriage, I left or separated from my wife (in urdu language apni biwi ko chor de kar)" went to earn to the middle east and supported the family for many years referring to early years after my marriage i.e. year 2000 and later. I was trying to emphasize on the sacrifice that I did by getting separated from my wife just after marriage and going to earn to suppport my family (i.e. brothers & sisters). I made this statement in a spur of a moment without any clear intentions, immediately I recognised that the statement I left or separated from my wife (in urdu apni biwi ko chor de kar)" can also have the meaning of divorce, therefore immediately afterwards in the same sequence I clarified that "I mean I kept my wife in India and went to middle east". 

Please clarify and explain, does my above statement affect my nikah. I am really very disturbed. 

Also, do allusive words of divorce with or without any specific intention, especially when referring to a past incident when no divorce had taken place, affect the nikah or cause divorce. I desperately seek your answer or shariah ruling in this regard.

Answer:

Bismillah

There are two types of words which effect a divorce.

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, p 359 v 2, Raddul Muhtaar, p 465 v 2  Fatawa Hindiyah, p 354 v 1)

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, Fatawa Hindiyah, V1, P374)

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

With regards to your question, the phrase ‘apne biwi ko chor de kar’ comes under the category of Kinayah (ambiguous). Therefore, if you intended Talaq then one Talaq Baain will occur.(you will be able to remarry your wife with a new nikah once she has completed her iddat) However, if you did not intend Talaq when saying this phrase, then no talaqs will have occurred, thus your marriage will remain intact. (Fatawah Darul Uloom Deoband p 400 v 9)

Only Allah Knows Best

Written by Molana Ishaaq Hussain

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham.

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