Fatwa ID: 05773

Answered by: Maulana Muhammad Asadullah Anwar Adam

Question:

InshaAllah you are well. I had a couple of questions regarding divorce.

1 – If a husband says to his wife ‘you can leave me if you want, ‘you’re free to go, ‘you can get a divorce’, ‘you can divorce me’ or ‘you can divorce me if you want, I’m not stopping you or any variation of these sentences without the intention being that he’s delegating the right to divorce herself to her but rather than she can apply for divorce or khula through legal means – does that then lead to him delegating the right to divorce from his wife regardless of intention? So if he said any of those sentences and she said ok ‘I am leaving you or ‘I divorce myself’ would that divorce be valid?

2 – There seems to be a lot of ambiguity about some allusive words for divorce and when they may actually be sarih – my question was who decides whether a word is sarih? For instance if the sentences ‘you aren’t my wife anymore’, ‘you aren’t my wife’, ‘we’re over’ or ‘our relationship is over’ are uttered they’re all understood to be allusive words and don’t lead to divorce without intention – then how does a husband know if he’s uttered something that’s considered sarih? If the husband consciously said something other than ‘I divorce you because his intention was never to divorce his wife and he knows that would lead to divorce then how could it be said that some other words will be considered sarih when he consciously chose not to say something that would lead to divorce?

3 – What makes a kinaya statement into a sarih statement? Is it that when a husband utters it – based on the community no one has any ambiguity about the fact that what he has done is divorcing her? If so, wouldn’t saying ‘you’re not my wife’ be a sarih statement?

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

Answer:

1: Delegating the rights of divorce to the wife can occur without him intending it if he uses words that clearly means he is giving her the right to divorce him, if he uses unclear words then it is necessary that he intends to give her the right to divorce him [1]. Furthermore, the wife’s choice to divorce him only lasts in the place/time that the option was given to her unless the husband specifies that she keeps the right. [2]

2 & 3: Clear words (sarih) of divorce are words that are only used for divorce, it’s decided by the common use of language by the people of our time [3], It is not sarih if the common use of those words can carry any other meaning when spoken to a person wife.

Only Allah knows best

Written by Maulana Muhammad Asadullah Anwar Adam

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

[1] Raddul Mukhtar volume 4, page 552, Dar Sadir Print

[2] Hidayah page 177 volume 3

[3] Hidayah page 143, volume 3