If during an argument the husband in anger says to the wife without the intention of divorce 'pack your bags and go to your mum’s house' as he wants to scare her and see what her reaction is to this statement would that constitute divorce?

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

Answer

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 the situation mentioned above, the statement “pack your bags and go to your mums house” falls under the category of kinaya (ambiguous divorce). As you have said in the question you did not make an intention of divorce, hence, divorce would not occur.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham