Doubts About Giving Kinaya a Divorce

CategoriesDivorce [623]

Fatwa ID: 06169

 

Answered by: Maulana Yūsuf Badāt

 

Question:

 

I have severe OCD and taking therapy at this moment. I am medically diagnosed mentally with OCD since 2014. I am always full of doubts.

 

Does clearing the throat and having a divorce in mind at the same time cause divorce? I never had intentions to give it as I am happy with my wife. I have not tried saying it through clearing my throat but at the same time, I lately get doubts about what if I tried saying it through clearance of my throat. I always say through clearing my throat Bismillah.

 

Another question is that there was no argument or mention of separation, nothing at all, whilst typing this message, I ended up remembering the divorce word but I did not write the message with intentions but later I get doubts about my intentions. Personally, I do not think they were 100%. That is why I changed the message.

 

Is this kinaya divorce? Do not stress and try to keep busy. Take Meher out for a walk and just speak to your parents. Clear your mind. Message me. I will reply. I love you. I just hate living there. I did not want to sit downstairs. I had enough of that house, seriously. Let us come back from Pakistan. I will move us from there Insha Allah within a few months.

 

To clear it up more; It is because I had a few issues at home with my parents etc. nothing serious. My wife was upset last night so I did not want to come to work and keep her by herself at home, so I messaged her. Whilst typing, when I said speak to your parents I 100% meant it, as so it will help her keep her stress free and her mind to stay happy but whilst typing the divorce word came into my head. This happens without me wanting it. There were no intentions but then like I said later I get doubts plus we did not argue. I went to work happily. There were no issues with my wife. We did not argue on text. Nothing at all. I was the first to message her so I told her that. I also told her I did not mean it like that. She understands the divorce word comes to mind when writing the message so I had to add to it for no confusion. I know 100% it did not divorce. It is just my mind playing tricks and makes me think yes it was but I know it was not intended.

 

Also talking to a work colleague, I said, I want to get married again. No intention of divorce. I just said that everyone dies. No one lives forever and if my wife died would I get married again? Yes, I would however not if I was passed 50 in age. To clear it up, I said that I did not mean the divorce word or separation. There was no intention of divorce. She agreed I did not say anything to hint toward divorce.

 

 

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

 

Answer:

 

The thought of divorce during conversations does not constitute divorce according to Islamic law. In order for the divorce to be effective, the husband must clearly pronounce the words of divorce or intend divorce with words that could constitute a divorce. In the described scenarios, divorce has not taken place. – (See: Al-Qawāid Al-Fiqhiyyah, Page 251, Dār Al-Tirmidhī, Rad Al-Muḥtār, Vol 3, Page 296, Dār Al-Fikr2, Badā’i Al-Ṣanā’i, Vol 3, Page 25, Dār Al-Kutub Al-‘Ilmīyyah3,)

 

“‘Abd Allāh Ibn Yazīd bin Rukānah narrated from his father, from his grandfather (may Allāh be pleased with them) who said, “O Messenger of Allāh! I irrevocably divorced my wife.” So he asked, “What did you intend by that?” I replied, “One (divorce pronouncement).” He then questioned, “[Do you swear] By Allāh?” I stated, “[Yes] By Allāh.” He clarified, “Then it is as you intended.” – (Tirmidhī 1177)4

 

 

Only Allāh knows best

Written by Maulana Yūsuf Badāt

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

 

 

 

 

1 لَا عِبْرَةَ لِلتَوَهُم – القواعد الفقهية ص٢٥ دارالترمذي

 

 

2 فالْكِنَايَاتُ لَا تَطْلُقُ بِهَا قَضَاءً إلَّا بِنِيَّةٍ أَوْ دَلَالَةِ الْحَالِ وَهِيَ حَالَةُ مُذَاكَرَةِ الطَّلَاقِ أَوْ الْغَضَبِ – كتاب الدر المختار وحاشية ابن عابدين رد المحتار ج ٣/ ص ٢٩٦ دار الفكر

 

 

3 وإنْ دَخَلَتْ عَلى الزَّمانِ فَإنْ كانَ ماضِيًا يَقَعُ الطَّلاقُ فِي الحالِ نَحْوُ أنْ يَقُولَ أنْتِ طالِقٌ فِي الأمْسِ أوْ فِي العامِ الماضِي لِأنَّ إنْشاءَ الطَّلاقِ فِي الزَّمانِ الماضِي لا يُتَصَوَّرُ فَيُجْعَلُ إخْبارًا أوْ تَلْغُو الإضافَةُ إلى الماضِي ويَبْقى قَوْلُهُ أنْتِ طالِقٌ فَيَقَعُ فِي الحالِ وكَذَلِكَ إذا كانَ حاضِرًا بِأنْ قالَ أنْتِ طالِقٌ فِي هَذا الوَقْتِ أوْ فِي هَذِهِ السّاعَةِ يَقَعُ فِي الحالِ وإنْ كانَ مُسْتَقْبَلًا لا يَقَعُ حَتّى يَأْتِيَ بِأنْ قالَ أنْتِ طالِقٌ فِي غَدٍ أوْ فِي الشَّهْرِ الآتِي لِأنَّ الطَّلاقَ يَحْتَمِلُ الِاخْتِصاصَ بِوَقْتٍ دُونَ وقْتٍ فَإذا جُعِلَ الغَدُ ظَرْفًا لَهُ لا يَقَعُ قَبْلَهُ – بدائع الصنائع ج٣ / ص٢٥ دار الكتب العلمية

 

 

4 عَنْ عَبْدِ اللَّهِ بْنِ يَزِيدَ بْنِ رُكَانَةَ عَنْ أَبِيهِ عَنْ جَدِّهِ قَالَ أَتَيْتُ النَّبِيَّ صلى الله عليه وسلم فَقُلْتُ يَا رَسُولَ اللَّهِ إِنِّي طَلَّقْتُ امْرَأَتِي الْبَتَّةَ ‏ فَقَالَ مَا أَرَدْتَ بِهَا قُلْتُ وَاحِدَةً‏ قَالَ‏ وَاللَّهِ‏ قُلْتُ وَاللَّهِ قَالَ فَهُوَ مَا أَرَدْتَ – الترمذي ١١٧٧

 

 

 

 

 

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