I have said angrily to my wife many times in Urdu that “Bibi, tum farigh ho” or “Jao, tum meri taraf sai farigh ho” I never had the intention of divorcing her. Sometimes I would just say these phrases jokingly. Sometimes just to show that I am upset, but I never intended divorce with them. What is the Islamic ruling concerning my marriage? I have been told that these words constitute divorce even without intending divorce, whilst others have told me that an intention is necessary. Please clarify the Islamic ruling.
As explained in previous answers that words effecting 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”. Kinaya (allusive) means using words that are not exclusively prescribed for issuing divorce, but rather, they allude and hint to it. They can mean divorce as well as some other meaning.
A statement of Sarih results in a revocable/reversible (raj’i) divorce whether one intends divorce or not, whilst a statement of Kinaya does not effect a divorce unless one intends divorce by it (or one’s circumstances indicate divorce in a court of law), in which case an irrevocable/irreversible (ba’in) divorce comes into effect. (See: Radd al-Muhtar and other major books of Hanafi Fiqh).
Keeping the above principle in mind, let us look at the statements you have outlined in your question. The Urdu expression “Tum farigh ho” and “Jao, tum meri taraf sai farigh ho” would translate in English as “You are free” and “Go, you are free from me” In other words, these statements imply that the husband is informing his wife that she is completely free to go and at liberty to walk away from his marriage. In Arabic, it would be translated into something like “Khallaytu Sabilaki” or “Khaliyyatun”.
It is stated in the renowned Hanafi Fiqh reference work, Al-Fatawa al-Hindiyya, regarding such type of phrases:
“If one says (to his wife) during a discussion on divorce “I have separated you (bayantuki)” or “I have no authority over you (la sultana li alayki)” or “I have released you (sarrahtuki)” or “I give you as a gift to yourself (wahabtuki li nafsiki)” or “I have freed your path/you are free to go (khallaytu sabilaki)”…… then divorce will come into effect. If, however, he (the husband) said, I did not intend divorce with my statement; his claim will not be accepted as true in a court of law [m: because he made this statement during a discussion on divorce]”. (Al-Fatawa al-Hindiyya, 1/375)
Note that a Muslim court of law or a Muslim judge will base his verdict on the circumstances in which such statements were made. As such, if a man was to pronounce allusive words of divorce in anger or whilst discussing divorce with his wife, a judge would rule that his marriage is over, even if he claimed he had no intention of divorcing his wife. This ruling is what we call in Islamic jurisprudence as “legally binding” (qada’an). However, despite this, if he is absolutely sure that he had no intention of divorcing his wife with such statements, then religiously and privately between him and Allah (diyanatan); his marriage will still be considered valid.
The above text of Al-Fatawa al-Hindiyya indicates that the statements “Tum farigh ho” and “Jao, tum meri taraf sai farigh ho” are allusive statements of divorce, and as such, would require an intention in order for divorce to be considered effective. Furthermore, there are other allusive statements mentioned in Al-Fatawa al-Hindiyya such as “Khaliyyatun” and “Bariyyatun” which have the same connotation. Here again, the normal ruling is given, in that if there is an intention of divorce, divorce will be effected otherwise not.
It is further stated in Al-Fatawa al-Hindiyya:
“In a situation of contentment [as opposed to the situation of anger and/or discussing divorce], a divorce will not come into effect with any of these (allusive) statements except with an intention of divorce.” (Al-Fatawa al-Hindiyya, 1/375)
Once again it should be noted that in the above text, the verdict of divorce being dependent upon intention is cited for a situation where the husband is content, as opposed to a situation where he is angry or the situation where divorce is being discussed. But as explained earlier, the verdict in the latter two situations may well change in a court of law, but religiously (diyanatan) if the husband is adamant that he had no intention of divorcing his wife, divorce will not come into effect even if he was angry or divorce was being discussed.
Therefore, in order for a divorce to come into effect with allusive (kinaya) statements of divorce, such as the one mentioned in your question, the statement must be accompanied with an intention of divorcing the wife, in which case a irrevocable (ba’in) divorce will come into effect. If the husband is adamant that he did not intend divorce, then no divorce will take place.
Having said all of the above, the scholars (ulama) of the Indian Subcontinent, where the Urdu language is predominantly spoken, have differed as to whether this statement “Farigh ho” or “Farigh khati” is a clear (sarih) statement of divorce or an allusive (kinaya) one.
In Fatawa Mahmudiyya – a 18 volume Fatawa-collection of the late Mufti Mahmud al-Hasan Gangohi (Allah have mercy on him) – the Shaykh issues a similar ruling to that which has been mentioned above, in that if the husband intends divorce, a irrevocable (ba’in) divorce will come into effect, and if there is no intention of divorce, then no divorce will take place. The reason being is that this is an allusive (kinaya) statement of divorce, and the general ruling on allusive statements is that they result in irrevocable divorces if the husband intends divorce, otherwise there is no divorce. (See: Fatawa Mahmudiyya, 4/61)
Shaykh Mawlana Ashraf Ali Thanawi (Allah have mercy on him) in his Imdad al-Fatawa (2/447) also considers this statement to be an allusive statement, but then issues the verdict that a irrevocable (ba’in) divorce will come into effect even if the husband does not intend divorce. His explains that the statement “farigh khati” is commonly used by the masses to affect an irrevocable divorce, hence it has become more like a clear statement, thus there is no need for an intention. (Imdad al-Fatawa, 2/447)
This position is then refuted by a later scholar, Mufti Rashid Ahmad, in his Ahsan al-Fatawa stating that if the statement “Farigh khati” is used commonly by the masses as a clear (sarih) statement of divorce, then the ruling of irrevocableness should no longer apply, because a clear statement of divorce results in a revocable (raj’i) divorce.
As such, the position taken by the author of Ahsan al-Fatawa is that this statement “Farigh khati” is considered a clear (sarih) statement of divorce, for customarily it is only used by a husband to pronounce divorce. Therefore the normal rule for pronouncing a clear statement of divorce will apply, which is that a revocable (raj’i) divorce will come into effect regardless of whether the husband intends a divorce or otherwise. (See: Ahsan al-Fatawa, 5/155-156)
The conclusion that can be deduced from all of this (Allahu A’lam) is that statements such as “Tum farigh ho” and “Farigh khati” are to be generally considered as statements of Kinaya. Thus, if a husband uttered them with an intention of divorce, then an irrevocable divorce (talaq ba’in) will come into effect, otherwise there will be no divorce. However, if the customary understanding (urf) of a particular community is such that these terms are exclusively used for divorce, then we will consider them to be statements of Sarih divorce, and as a result, by pronouncing them, a revocable divorce (talaq raj’i) will come into effect regardless of whether the husband intended a divorce or otherwise.
The great Hanafi jurist, Imam Ibn Abidin (Allah have mercy on him) explains this very concept in his renowned masterpiece Radd al-Muhtar. He states quoting from Al-Shurunbulaliyya that a question was raised concerning a specific statement used exclusively for divorce in Turkish, but it was not a statement that was clear and explicit in giving the meaning of divorce. The question was posed as to whether the statement would be considered a clear expression of divorce due to the fact that it was customarily used exclusively for divorce, or an allusive statement of divorce given the fact that linguistically it was not an exclusive term denoting divorce. Imam Ibn Abidin then quoted many Hanafi jurists such as al-Rahimi, Shaykh al-Islam Abu as-Sa’ud and others that they issued a verdict of the statement being considered a clear (sarih) statement of divorce, hence a revocable (raj’i) divorce coming into effect. (See: Radd al-Muhtar, 2/248, bab al-sarih)
Imam Ibn Abidin (Allah have mercy no him) further on states:
“A clear (sarih) statement of divorce is that which is customarily used for divorce in a way that it is not used for anything but divorce…” (Radd al-Muhtar, 3/252)
And he states in another place:
“The statement “Sarrahtuki” (I have freed you) is an allusive statement of divorce but in the understanding of the Persians its usage has become widespread as a clear statement of divorce. As such, if a person said “raha kardam” [which means “I have freed you” in Persian], a revocable (raj’i) divorce will come into effect despite the fact that originally this was an allusive statement of divorce…” (See: Radd al-Muhtar from Ahsan al-Fatawa, 5/155)
Therefore, in conclusion, statements such as “Tum farigh ho” and “Jao, tum meri taraf sai farigh ho” and “Farigh khati” are to be generally understood and classed as allusive (kinaya) pronouncements of divorce, and as a result, will result in irrevocable (ba’in) divorces provided the husband intends divorce with them; otherwise there will be no divorce. However, if the customary practice and understanding (urf) of a particular community is such that these statements are used exclusively for the pronouncement of divorce – in such a way that they are not used for anything else – then they are to be classed as clear (sarih) pronouncements of divorce, and as a result, will result in revocable (raj’i) divorces regardless of whether the husband intends divorce with them or not.
(Note that this answer is relatively detailed and scholarly. As such, if one is confused or unclear of the outcome, please do not hesitate to enquire from a reliable scholar, Insha Allah)
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK