Fatwa ID: 08645
Answered by: Maulana Abdurrahman Mohammad
Question:
I have been in extreme worry and have been seeking an answer to my question: does this situation count as talaq in the Hanafi madhab?
Me and my wife were having a normal conversation and I said “I give up” (this had no intention of divorce by the way, i was talking about giving up on something else). then it made me question myself; if I say “I give up” with an intention to divorce her, would the talaq count? so then I said “I give up” to her again with a pretend/fake intention of divorcing her. And I am genuinely unsure whether my intention to divorce her was real or fake; it was most likely a fake/pretend intention because I would never want to divorce my wife and also because I was only pretending.
In another situation, I was singing a song called Khalass to myself. And then again, I questioned whether saying “Khalas” with the intention of divorce counts as a talaq. So then I said “Khalas” verbally out loud to myself and nobody else heard it. And when saying it, I pretended to talk to my wife, and pretended to divorce her. My intention behind this statement could have been a fake (imaginary) intention to divorce her, or a real genuine intention I made myself have, so I could test whether it counts. My intention was very likely a genuine intention to divorce her, however I only made myself get this intention for a ‘test’ to see whether It would count as talaq; otherwise I would have never wanted to divorce her. One could argue that the fact that I had to make myself intend divorce as a ‘test’ makes the intention fake/not genuine however I’m unsure.
I read someone online say their husband said “anti talaq” to them. And I did not fully understand what “anti talaq” meant but I knew it was about something about divorce because of the word talaq. (I did not know it was an explicit statement of divorce)
One day, while I was walking back towards my wife I looked at her and verbally said the words “anti talaq” (you are divorced) to myself only and pretended to speak to her. I only said this to myself and nobody else heard me. Again, I did not know what this statement meant and I did not intend to divorce my wife when saying this. Rather, I was just trying to rein act the situation I had read online.
Later on, I found out what it meant, I was extremely stressed and afraid my marriage was broken. So I consulted a local imam about my utterance of this statement and I told my wife about it and what was said, so she knows I’m getting the statement reviewed. However me and my wife both know that I did not fully understand what it meant, and we both know I did not intend divorce.
Note: the ONLY reason she knew about this statement being uttered was because I told her I am asking scholars whether it counts as a talaq. Again, we both know I did not intend talaq or understand what the statement meant. I genuinely did not know that the statement “anti talaq” was an explicit statement of divorce and I did not understand its full meaning.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Talaq is a very serious matter and should not be taken lightly. One should be mindful of bringing it up, even jokingly or pretending. 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).[1]
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.”[2]
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.[3]
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 intention or a Talaq context for divorce to occur. Raddul Muhtār states:
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.[4]
Fatawa Hindiyyah explains:
Divorce does not occur with them except with intention or by the indication of a situation.[5]
First Statement: “I give up.”
This statement can be used to give a Kinayāh divorce, as it can imply “I give up on this marriage” or the like. You are the one restricting the meaning of these words to mean divorce. If you intended divorce through these words, one Talāq Bāin (irrevocable divorce) would have occurred, and your wife should have started her ‘Iddat. There is no pretending in Kinayāh divorce; you either divorce your wife or you don’t. If you did not intend divorce and said these words, divorce would not occur. If you said these words to pretend divorce and accompanied them with an intention of divorce just to see if it would happen, the divorce would occur. Otherwise, pretending or suggesting divorce with these words without intending divorce does not result in a divorce. Only you and Allah are aware of your intention and what transpired in your heart.
Second Statement: “Khalās”
This is a popular Kināyah statement used for divorce in our time, as mentioned in Fatawa Hindiyyah. The same ruling as above applies in the case of pretend. Even when testing, you can accompany these words with or without the intention of divorce, where the latter would initiate a Talāq Bāin. If you were checking to see whether this statement results in divorce and had intended to use these words for divorce, divorce took place. If you said this without the intention of divorce or to mean something else, divorce would not have occurred.
Based on your Istiftā’ (question), if you were testing [whether saying “Khalas” with the intention of divorce counts as a talaq], and your intention was [a real genuine intention I made myself have, so I could test whether it counts], this counts as a Talāq Bāin (irrevocable Talāq).
Third Statement: “Anti Tāliq” or “Anti Talāq”
This is a Talāq Sarīh (clear/explicit Talāq) and results in one Raj’ī Talāq (revocable Talāq), with or without intention. You may take your wife back in this Talāq as long as she is in her ‘Iddat. The Hadith “There are three things which, whether undertaken seriously or in jest, are treated as serious …” applies, whether you speak to her directly or intend to address her in her absence.
Timing of Talāqs
If all three statements resulted in Talāq, where the last two statements were given in your wife’s ‘Iddat (3 monthly cycles), all three would count and make her Mughallazah, meaning you cannot remarry her without her marrying and consummating with someone else. Statements of Talāq that occur after ‘Iddat do not count, as you cannot divorce someone who is not your wife. If less than three Talāq were given, you may ask a qualified Imam or scholar to perform a Tajdīd Al-Nikāh (Nikāh renewal) if your wife wishes to get back with you. This would require a new Mahr, and you will only get back the right to give the remaining Talāq (either one or two).
References:
[1] ثَلاَثٌ جِدُّهُنَّ جِدٌّ وَهَزْلُهُنَّ جِدٌّ النِّكَاحُ وَالطَّلاَقُ وَالرَّجْعَةُ
(Sunan Abi Dawud 2194, Jami` at-Tirmidhi 1184
[2] 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)
[3] 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)
[4] (كِنَايَتُهُ) عِنْدَ الْفُقَهَاءِ (مَا لَمْ يُوضَعْ لَهُ) أَيْ الطَّلَاقِ (وَاحْتَمَلَهُ) وَغَيْرَهُ
(Radd Al-Muhtār, vol. 3, pg. 296, Darul Fikr Beirut)
[5] لَا يَقَعُ بِهَا الطَّلَاقُ إلَّا بِالنِّيَّةِ أَوْ بِدَلَالَةِ حَالٍ
(Al-Fatāwā Al-Hindiyya, vol. 1, pg. 374, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)
Only Allah (عَزَّ وَ جَلَّ) knows best.
Written by Maulana Abdurrahman Mohammad
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
