Divorce with Clear (sarih) & Allusive (kinaya) Words
Question:
I and my wife have been married for a very long time. One day we had an argument and my wife said so many things and she said “so is the marriage over?” I replied “no it is not!”, she kept asking me and I said no. we both then went silent then after a while she said it again in a quick voice and I was in deep thought at the time and I replied yes?, as in a response to her asking me something. My intention was not towards my nikah but in general as when a person would say yes referring as what?
After this we both renewed our nikah but the fear still remains in my heart. Did what I say apply as talaq?
One other question I had was what if a person is in doubt about his intention of divorce and this is in the case of kinayah been used. Does divorce take place?
Answer:
As a principle, it should be remembered that words which effect divorce are of two types:
a) Clear and plain words (sarih)
b) Allusive words (kinaya)
Sarih (clear) means expressly pronouncing the word divorce or words derived from it, such as: “I divorce you” or “you are divorced” etc… Kinaya (allusive) means using words that are not exclusively prescribed for issuing divorce, but alludes and hints to it.
Clear and plain words effect divorce whether one intends divorce by them or not, while allusive words do not effect it unless one intends divorce by them or it is determined by the circumstance one is in. (See: the major books of Fiqh).
With regards to your situation, you said “yes” to your wife’s question “Is our marriage over?” Here, as you say that you were unaware what she had said, and you were merely saying “yes” as in “What?”, then this has no implication on your marriage and it is still intact. Your intention was not to confirm a divorce, for you were unaware what she had said.
With regards to your second question, i.e. having a doubt in ones intention in the case of using allusive words, the Jurists (fuqaha) mention that allusive words are in need of clear intention, thus divorce will not come into effect if one had a doubt in his intention.
It is stated in Durr al-Mukhtar:
“One knew that he took an oath, but was uncertain whether it was for divorce or something else, it will be ineffective (lagw). Similar is the ruling for the situation where one has doubt whether he issued a divorce or otherwise.” (See: Imdad al-Ahkam, 2/472)
And Allah Knows Best
[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK