Fatwa ID: 06787

 

Answered by: Alimah Saleha Islam

 

Question:

 

I know that divorce takes place if the words spoken to the wife are sareeh regardless of intention, But if the words are kinaya then it is based on intention

 

So my first question is: What if there IS the intention of divorce but the words spoken to the wife are not sareeh neither are kinaya, does divorce still take place with just the intention alone?

 

The second question is: do any of these 3 statements Kinaya words of divorce: are these kinaya words that could mean divorce:

 

‘ Okay From now on I will have all my meals alone ‘

 

‘ From now I will do all my activities alone

 

‘ Okay I will just do all my workouts alone ‘

 

Please note that there was no conversation or situation regarding anything to do with divorce at the time of these statements

 

 

 

In the name of Allah, the Most Gracious, the Most Merciful

 

Answer:

 

You are correct in stating that there are two types of phrases/words which can cause divorce (Talaq) to come into effect, Sarīh & Kināyah:

 

1. Sarīh (clear): This is when a husband issues his wife a divorce (talaq) in clear terms, using clear phrases/words such as; “I divorce you” or “you are divorced” etc…

 

Using clear phrases/words will cause one divorce (Talaq Raji’) to come into effect and no consideration is given to intention.

(Al lubaab fi sharh al Kitab, pg 100, vol 4)[1]

 

2. Kināyah (ambiguous): This is when the husband issues his wife a divorce (Talaq) using unclear phrases/words which are not specifically used for issuing divorce but rather indicate it. Furthermore, there is a condition that Kināyah phrases/words do not affect divorce unless either the husband intends divorce by using them in that instance, or it is determined by the context of the situation.

(Al lubaab fi sharh al Kitab, pg 103, vol 4)[2]

 

Kināyah phrases/words may indicate divorce if the intention was present at the time of expression, then divorce (Talaq Bāin) will take effect.

 

With regards to your 1^st question, “What if there IS the intention of divorce but the words spoken to wife are Not saree neither are kinaya, does divorce still take place with just the intention alone?

 

Divorce does not take place with intention alone; it is a requirement for the divorce to be directed at the one for whom it is intended. However, the expression of unclear phrases/words with the accompaniment of intention will cause divorce (Talaq Bāin) to occur.

 

With regards to your 2^nd question, “Do any of these 3 statements Kinaya words of divorce: are these kinaya words that could mean divorce:

 

‘ Okay From now on I will have all my meals alone ‘

 

‘ From now I will do all my activities alone

 

‘ Okay I will just do all my workouts alone ‘”

 

The above words/phrases will not result in divorce

 

 

[1] والطلاق على ضربين: صريحٍ، وكنايةٍ، فالصريح قوله: أنت طالقٌ، ومطلقةٌ، وطلقتك، فهذا يقع به الطلاق الرجعي

(و لا يفتقر إلى النية)

 

 

[2] والضرب الثاني: الكنايات، ولا يقع بها الطلاق إلا بنيةٍ أو دلالةٍ حالٍ

 

 

 

Only Allah (عز و جل) knows best.

Written by Alimah Saleha Islam

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham