Fatwa ID: 08866
Answered by: Maulana Nuski Cassim
Question:
A person has married about year and half ago since then he is constantly facing the problem of ocd and extreme waswas. Whenever his wife say anything to him, the person’s mind automatically go into overdrive and start thinking that this word or this sentence can also be a kinayah for divorce and he try his best to answer in a way to repel the waswasa. It happens even with general terms that his wife use in conversation. The reason I am sharing the background is for you to understand the extent of waswasas this person is going through.
During general conversation with his wife the waswasas hit him and his mind starts thinking that these words from his wife can also be used as kinayah and he then starts thinking about the words and stops in-between talking to his wife to repel the waswasa and it causes headache and anxiety and panic. Few weeks ago he called his wife who was at her parents house at that time and the wife said something like ” you have forgotten you wife “or something like” you don’t realize that you also have a wife you have forgotten me ” the person mind automatically goes into panic state with this statement from the wife as his mind started thinking that these words are a form of kinnayah and he started repelling the waswasa by answering like no you are my beautiful wife I was just busy.
However the wife kept insisting that no you don’t care and you have forgotten about her. His mind was busy thinking that if he accepts this by saying yes or approving these then it may constitute a divorce. So he was trying his best to answer in a way that the waswasa should go away and his wife stops saying these words. However he became so angry at all this and in his head he repeated the words ” yes I have forgotten about you” or maybe “yes I have forgotten about you but you still are my wife”. He repeated this only in his mind and didn’t answer as such with his words. Once he said these words in response to his wife words in his mind his anxiety went away and anger went away.
Meanwhile both husband and wife started talking about some other topic as usual. So the question becomes if the wife said to husband that you have forgotten me and the husband is surrounded by waswas and answer in his head as ” yes I have forgotten you” or “yes I have but you still are my wife and will be as such forever” because of persistence of wife with this statement will the divorce happen if he did the niyyah and said such only in his head? And not with his words by tongue? And when the wide changed the topic he again started speaking normally wife tongue to her?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Divorce given through implicit (kinayah) wordings go back to the intention of the husband at the time of uttering such words. If he intended divorce through such words then talaq (ba’in) will occur, and if he did not intend divorce through such words then talaq will not occur.[1]
From what we’ve read and deduced, it is clear that this person did not intend divorce in any way with the statement, ” yes I have forgotten about you”. The statement was made more so as a sarcastic response to the wife saying, ” you have forgotten your wife “.
Hence, talaq did not occur in this scenario. Furthermore, our advice to this person would be to try their level best in completely disregarding any thoughts or conclusions concerning the issuance of divorce or the occurrence of it. Focusing on words said or playing scenarios in the head will only exacerbate the problem further.
Because they suffer from OCD and extreme waswas which causes anxiety and panic, the rulings pertaining to them are different and such cases of divorce occurring are also treated differently.[2]
Until and unless a clear unambiguous pronouncement of divorce such as ‘I divorce you’ is said[3], he is to disregard all other words and their possible meanings and intentions till he is cured of the OCD and extreme waswas surrounding this issue.
References:
1.
ومن حكم الكنايات أن لا يقع الطلاق بمجردها؛ وذلك لأنها ألفاظ محتملة للطلاق ولغيره، فلا تنصرف إلى أحد المحتملين إلا بدليل، فإن نوى الطلاق وقع في جميعها؛ لأن النية تصرف الكلام من وجه إلى وجه إذا كان محتملًا للوجهين
[شرح مختصر الكرخي، الطلاق الرجعي والبائن، ج. ٣، صفحة ٥٧٢، دار الاسفار]
2.
طلاق الصبي غير واقع، وكذلك طلاق المجنون المعتوه، وفي ”شرح الطحاوي” وكذلك المغمى عليه والمدهوش
[الفتاوى التاتارخانية، كتاب الطلاق، ج. ٢، صفحة ٤٣٩، دار الكتب العلمية]
لان التكليف بقدر الوسع
[الاختيار لتعليل المختار، كتاب الصلاة، ج. ١، صفحة ٤٦، دار الكتب العلمية]
” يلزم مراعاة الشرط بقدر الامكان ”
والمقصود من إمكانها استطاعتها، ولا يلزم ما فوق الاستطاعة
[القواعد الفقهية مع الشرح الموجز، صفحة ٩٢، ٩٣، دار الترمذي]
3.
فركنه أنت طالق أو طلقتك
[مختارات النوازل، كتاب الطلاق، صفحة ٢٥٦، مكتبة الإرشاد]
Only Allah knows best.
Written by Maulana Nuski Cassim
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham