Fatwa ID: 07811

Answered by: Mawlana Abdurrahman Mohammad

Question:

My kids were with my husband for some time when I went outside. When I came back, my daughter said happily “Mama is here” to which my husband replied “We had divorced Mama, right?” by which he meant that they are a team at home. But I really got worried and said to him that “Don’t say such words” to which he replied “I didn’t say anything like that” and explained to me what he said at that time. I want to know about the ruling of this is. Is it counted as divorce? I’m in doubt as he used the word “We”?

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

Answer:

In the Shariah, divorce (Talāq) is divided into two types: Ṣarīḥ (explicit words) and Kināyah (implicit words).

Explicit Words (Talāq Sarīh)

These are clear, direct terms and wording that undoubtedly signify divorce. Raddul Muhtaar defines it as: “that which establishes its legal ruling without intention, and he meant by what is the word or what takes its place from clear writing or an understandable sign.”[1] Fatawa Hindiyyah explains “It is as like [saying] you are ‘Taaliq’, and ‘Mutallaqah’, and ‘I divorced you’ (I gave you Talaaq). And one revocable divorce occurs, even if he intended more, or separation (Talāq Bāin), or he did not intend anything.”[2] In cases of explicit statements, no intention of divorce is required for divorce to occur. The words alone are enough.

Implicit Words (Kināyah)

Kināyah refers to indirect or ambiguous phrases that could imply divorce but may also have other meanings. These words do not result in an automatic divorce and require the intention for divorce to occur. Raddul Muhtār states that “according to the jurists (is whatever that was not stipulated for it) i.e. divorce (and has the possibility of it [divorce]) and other than it.”[3] Fatawa Hindiyyah states that “Divorce does not occur with them except with intention or by the indication of a situation.”[4]

Using the Word “We” in Divorce

In the Arabic language, the pronoun “We” can sometimes imply a single person in a representative sense, as seen in the many examples in the Quran where Allah SWT refers to Himself using “We”. This is known as the royal “We” and Talāq would occur with this. If the royal “We” was not used, the word “We” implies a group of people performing an action together. Even though your daughter was not capable of giving Talāq, your husband most definitely was. Since your daughter cannot initiate divorce, your husband’s words alone would be considered.

Analysis of Your Case

However, the word “We” here does not inherently impact the ruling on divorce. Because your husband phrased the statement as a question, this statement would require inspection. Fatawa Hindiyyah states “If he said to her, ‘Didn’t I divorce you yesterday?’ ‘Had I not divorced you yesterday?’ then this is an admission from him of both the marriage and the divorce. If he said, ‘Did I divorce you yesterday?’ then this is an admission of the marriage, but not an admission of the divorce.”[5] The second statement only asks if a divorce occurred while the first two statements indicate a divorce was given in an interrogative manner. Unfortunately, your husband’s statement most resembles the first scenario based on the sentence structure and affirming it with the word “right”. This would count as an admission of marriage and divorce. Therefore, a Talāq Raj’i (revocable divorce) had occurred and you should have started your ‘Iddat. If your husband decides to keep you as his wife, he will now have one less Talāq Raj’i out of three, and if this was the third Talāq, you would have to marry someone else.

Please remember that Talāq is a grave issue and be mindful of bringing it up even jokingly. The Prophet (ﷺ) said “There are three things which, whether undertaken seriously or in jest, are treated as serious: Marriage, divorce and taking back a wife (after a divorce which is not final).”[6]

References:

1. وَعَرَّفَهُ فِي التَّحْرِيرِ بِمَا يَثْبُتُ حُكْمُهُ الشَّرْعِيُّ بِلَا نِيَّةٍ، وَأَرَادَ بِمَا اللَّفْظَ أَوْ مَا يَقُومُ مَقَامَهُ مِنْ الْكِتَابَةِ الْمُسْتَبِينَةِ أَوْ الْإِشَارَةِ الْمَفْهُومَةِ (Radd Al-Muhtār, vol. 3, pg. 247, Darul Fikr Beirut)
2. وَهُوَ كَأَنْتِ طَالِقٌ وَمُطَلَّقَةٌ وَطَلَّقْتُك وَتَقَعُ وَاحِدَةٌ رَجْعِيَّةٌ وَإِنْ نَوَى الْأَكْثَرَ أَوْ الْإِبَانَةَ أَوْ لَمْ يَنْوِ شَيْئًا كَذَا فِي الْكَنْزِ (Al-Fatāwā Al-Hindiyya, vol. 1, pg. 354, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
3. (كِنَايَتُهُ) عِنْدَ الْفُقَهَاءِ (مَا لَمْ يُوضَعْ لَهُ) أَيْ الطَّلَاقِ (وَاحْتَمَلَهُ) وَغَيْرَهُ (Radd Al-Muhtār, vol. 3, pg. 296, Darul Fikr Beirut)
4.  لَا يَقَعُ بِهَا الطَّلَاقُ إلَّا بِالنِّيَّةِ أَوْ بِدَلَالَةِ حَالٍ (Al-Fatāwā Al-Hindiyya, vol. 1, pg. 374, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
5. وَلَوْ قَالَ لَهَا أَلَمْ أُطَلِّقْكِ أَمْسِ؟ أَمَا طَلَّقْتُكِ أَمْسِ؟ فَهَذَا إقْرَارٌ مِنْهُ بِالنِّكَاحِ وَالطَّلَاقِ جَمِيعًا، وَلَوْ قَالَ هَلْ طَلَّقْتُكِ أَمْسِ؟ فَهَذَا إقْرَارٌ بِالنِّكَاحِ وَلَيْسَ بِإِقْرَارٍ بِالطَّلَاقِ (Al-Fatāwā Al-Hindiyya, vol. 4, pg. 207, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
6. ثَلاَثٌ جِدُّهُنَّ جِدٌّ وَهَزْلُهُنَّ جِدٌّ النِّكَاحُ وَالطَّلاَقُ وَالرَّجْعَةُ (Sunan Abi Dawud 2194, Jami` at-Tirmidhi 1184)

Only Allah knows best.

Written by Mawlana Abdurrahman Mohammad

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham