Somebody asked me about a fatwa that he had given 3 talaqs to his wife, so I referred him to a Mufti. The mufti saheb told him to write it out, but instead he ended up getting another fatwa from someone else. That person said that talaqe mughallazah did not take place because he had once said to his wife a week ago with the intention of talaq "go back to your dads house”, therefore due to kinayaa she had already become baain. Since then she wasn’t his wife for a week that’s why the later 3 talaqs wasn’t counted.
Can you please clarify this issue as to whether tallaqe mugaalazah took place or not with the aqli and naqli dalaail and with the hawaalah if possible.
In the name of Allah, the Most Beneficent, Most Merciful
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, Fatawa 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 circumstances. (Hidayah, V2, P373, Raddul Muhtaar, V2, P501, Fatawa Hindiyah, V1, P374)
The kinaya words effect talaaq bain when one intends divorce by them. (Hidayah, V2, P374, Raddul Muhtaar, V2, P507)
With regards to the situation you mentioned that the person said to his wife, with the intention of talaaq, (a week before giving 3 talaaqs) "go back to your dad’s house". This falls under the category of kinaya (ambiguous divorce). The ruling of such a statement depends on the intention of the husband. As you stated that the husband intended talaq with those words therefore one talaaq e bain (irrevocable divorce) will have taken place.
It is stated in Raddul Muhtaar (V2, P509) that when a person gives a talaaq bain and then followed it up with a clear divorce within the iddat period then the talaqs will take place. Therefore in the above situation as the three talaaqs were said within the iddat period of the talaaq bain, talaaq e mughallazah has taken place.
Only Allah knows best.
Darul Ifta Birmingham