Her husband forgot his intention when he uttered a metaphorical divorce

12-4-2016 | IslamWeb

Question:

Thank you respected Shaykh to allow me to ask my query again. Is it a divorce? We had an argument, then the next day, my husband was mad so we had another arguement, and in this verbal fight, he said, "Leave the room or I will say the word." I said, "I will not leave." Then he said many times while arguing, "Leave the room or I will say (it)," but I said no, "I will not and you cannot make me leave the room like this," and we kept arguing. Then after some time, I went to the other room, but I came back and said to him, "You said you would divorce me, ok then, divorce me," and I started to argue again. Then he angrily said to me in Urdu, "Main Allaah ko hazir ker key kahta hoon hamara rishta khatam hain." Which means, l take Allaah as witness that our relationship is khatam. He did not say word divorce but he said word khatam. Khatam means terminated, ended or finished. Since it was my last divorce, when he said, "l take Allaah as witness that our relationship is khatam," I said to him, "I prayed to Allaah that whatever happens be for good." My husband said, "Yes, whatever happened, happened for good," but the next morning, he came and said that he did not intend divorce and that if he had wanted to divorce me, he would have said the word divorce. Then I asked, "Ok, then why did you say, I take Allaah as witness?" Then he asked me, "Did I say, 'I take Allaah as witness,' at that time?" I said, "Yes, you did say that." He got worried and said, "If I said, 'I take Allaah as witness,' at the time, and then now I claim that I did not intend divorce, then I am just making up an excuse and my intention could have been divorce at the time. Otherwise, why would I have said, 'I take Allaah as a witness'?" Then he said, "I am confused about the word khatam and do not know what I intended at the time. It could be divorce, so we should get separated." Then I said, "Just think about the intention and let me know." So I left him alone so he could think. After some time, he came and said that he did not intend divorce. I asked him again, and he said that he did not intend divorce.
Shaykh, I also want to know, just in case, what is the ruling if he forgets his intention or is confused about it?

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Answer:

All perfect praise be to Allaah, The Lord of the worlds. I testify that there is none worthy of worship except Allaah and that Muhammad is His slave and Messenger.

If your husband said, "Our relationship has ended," then this is considered a metaphor of divorce (kinaayah), not an explicit divorce. A metaphor of divorce does not make divorce effective except if it was the husband’s intention to divorce. If he did not intend divorce, or if he doubts his intention, then this doubt is not taken into consideration at all, because the original state is that the marriage is still valid, based on the Fiqh rule: 'Certainty is not removed by doubt.' For more benefit, please refer to fataawa 90416 and 92649.

The next step is to investigate the context in which the metaphor of divorce was pronounced (i.e. circumstantial evidence). If the husband said these words in a state of anger in the middle of an argument with the wife, then some scholars held that the circumstantial evidence is taken into account in this case in identifying the intention of the husband. However, they underlined that in this case, divorce only takes effect if the case is referred to the sharee'ah court (if the wife took the case to court to prove that divorce had taken place) and that if the case is not referred to the court, then the husband's claim (that divorce did not take place) will be accepted between him and Allaah, the Almighty.

The Hanbali book Ar-Rawdh Al-Murbiʻ Sharh Zaad Al-Mustaqniʻ reads:

"The metaphor for divorce - even if apparent - does not count as divorce unless it is accompanied with an intention to the same effect of the implicit expression of divorce, because such an expression is supposed to mean what is similar to it and what  is of its kind; so the implicit expression of divorce counts as divorce because he (the husband) intended it. If the husband uttered the implicit expression of divorce and did not intend to issue a divorce, then it does not take effect unless accompanied with circumstantial evidence to the same effect, namely in case of an argument, in a state of anger, or if he is responding to her (the wife's) request (for a divorce). In these cases, divorce takes effect with the metaphor even if the husband did not intend divorce given the circumstantial evidence. If he did not intend it in such circumstances or rather he intended something else, then his claim that he did not intend divorce will not be accepted as far as the courts are concerned because it is contrary to the circumstantial evidence. However, if he is adamant that he did not intend divorce, then this will be between him and Allaah." Hence, if your husband did not intend to divorce you while saying those words, then his claim will be accepted between him and Allaah (i.e. divorce does not take effect as long as the case is not referred to the court.

We advise the spouses to fear Allaah and protect their marriage from whatever may weaken it and bring it to ruin. If one of the spouses acts foolishly, then the other should adhere to wisdom and leave the place instead of responding to bad words with bad words. Sahl ibn Saʻd said:

"The Messenger of Allaah went to Faatimah's house but did not find ʻAli there. So he asked, 'Where is your cousin?' She replied, 'There was something between us and he got angry with me and went out. He did not take his midday nap in the house.' The Messenger of Allaah asked a person to look for him. That person came and said, 'O Messenger of Allaah, he (ʻAli) is sleeping in the mosque.' The Messenger of Allaah went there, and 'Ali was asleep, with his garment fallen from one side of his body, and it was covered with dust. The Messenger of Allaah started brushing the dust from him, saying, 'Get up! O Aba Turaab. Get up! O Aba Turaab (which literally means, O dusty one).'" [Al-Bukhari]

Ibn Hajar wrote:

"Ibn Battaal said, 'It is deduced from this hadeeth that marital problems and arguments could happen between the most noble and virtuous spouses. Anger is a natural emotion and sometimes the husband may get angry and needs to leave the house for a while, and he is not to be blamed for that. It is possible that ʻAli left the house fearing that he might have said what did not befit the refined status of Faatimah in such a state of anger. Therefore, he stopped talking and left the house for a while so that they would both calm down.'" [Fat-h Al-Baari]

Allaah knows best.