Q: I want to know about a problem which has effected me and my life a lot. My husband converted from shiaism although Masha Allah he has improved a lot in Imaan but still he is not acquainted with all sunni procedures. He is a high blood pressure patient and at times he says that please do not make me angry. I become mad in anger and do not know what to do, now the question is that one day on phone during fighting I was telling him that as you during our days of engagement used to say meri taraf say azad ho now do not use such things as it causes separation but he was insisting that Islam is not that tough that in anger if I say so without intention we would be separated, he said when I have to leave you I would use divorce word, we were still fighting that I asked him to let me talk to my mother in law who is still a shia and she said to me that no talaq never happens like this I was talking to her and in the background I heard my husband saying meri taraf say azad hai he was in anger and I think that as to repeat in anger he said this meri taraf say azad hai azad hai I asked my mother inlaw, you heard what he said? She said no I heard nothing he is in anger he talking to himself. I told her the words she said no I heard nothing like that I asked my husband he said I did not say any word to get you separated he said he was in much anger but he swore to Quran and Allah that he had not said azad words and he said he never had any intention of divorce if he had used divorce words. Then I cried and hang up. He called and said do you have Quran with translation and read Ayat 227-230 and said tum bakwas karte ho in Quran its word talaq for separation then he said you just fight for nothing i love you and i do not want to leave you then he gave Quran to aunty who read ahead and told him that in Quran it is allowed to marry 4 yateem girls he told me then i said even halala is also a solution in Quran he said in extreme anger that phir mein tumhein farigh karta hoin phir tum karlo halala. I asked what is yours intention he said shutup you are my wife and i am in anger i do not want to lose you I told him his words he said no i said to phir dafa hojao aur karo halalay and that too so that you shut shut up he swore upon Holy book that he never want to leave me or divorce me he said he was in much anger but he knew that talaq word would separate us thats why he didn’t use it. Please tell me my husband says he never said words of separation and even my saas says she had not heard it now what is my condition what about talaq?
A: Generally, in most places these words (azaad kardiya) are used as an equivalent for an explicit word of divorce. Hence the husband had uttered these words several times. And added to it he used the words faarigh kardiya. Apparently this word has been used for divorce. Hence three divorces have already occurred. If the wife is certain that she had heard it herself then she does not require any additional proof for the validity of the divorce. The divorce is irrevocable and she is no longer permissible for the husband until she marries a third person.
Q: Thanks a lot for replying and sorry for the botheration again but I am that woman (wife) and I am confused upon how many times I heard that azad word as I am sure I heard once and I am sure he didn’t say twice rather I am confused as he sadi azad word and then reconfirmed that but I am not sure and it is not for any worldly benefit. I am really confused. I think I heard him saying meri taraf say azad hai and again telling his mother that mama jan bata dein meri taraf say azad hai which I think he was referring to his previous statement. Please explain would it be count as 1 or 2 talaaqs?
A: If your husband is certain that he did not utter the words more than once, or if he has uttered the word azad for the second or third time but he is certain that was only to reconfirm the first divorce then this will be counted as one. However, when he used the words faarigh kya to halaalah karle, apparently these were words used with the intent of talaaq as it is quite obvious with through the word halaalah karle. This word will construe a baa’in talaaq. Hence, if you need to get back together then you both will need to renew the nikaah only.
Q: Actually my husband denies that he used those words (azad) although he was in anger but he do not have intention of divorcing me he had swore upon Quran that he said farigh karta hoin tum karlo halalay just to give the answer to when I said that halala is a solution of Quran not more than that. We were not discussing divorce he was giving me explanation that he had not said any word to divorce me just this was the matter. Now i want to ask that if faraigh kardiya is the word of kinaya then would his taking oath that he just said that in response to my words because he disliked them. Would his oath have any effect? I am sorry I am disturbing you again.
A: As mentioned previously, once you are certain that he had uttered the words azad, the talaaq will be effective.
باب الكنايات ( كنايته ) عند الفقهاء ( ما لم يوضع له ) أي الطلاق ( واحتمله وغيره ( ف ) الكنايات ( لا تطلق بها ) قضاء ( إلا بنية أو دلالة الحال ) وهي حالة مذاكرة الطلاق أو الغضب فالحالات ثلاث رضا وغضب ومذاكرة والكنايات ثلاث ما يحتمل الرد أو ما يصلح للسب أو لا ولا ( فنحو اخرجي واذهبي وقومي ) تقنعي تخمري استتري انتقلي انطلقي اغربي اعزبي من الغربة أو من العزوبة ( يحتمل ردا ونحو خلية برية حرام بائن ) ومرادفها كبتة بتلة ( يصلح سبا ونحو اعتدي واستبرئي رحمك أنت واحدة أنت حرة اختاري أمرك بيدك سرحتك فارقتك لا يحتمل السب والرد ففي حالة الرضا ) أي غير الغضب والمذاكرة ( تتوقف الأقسام ) الثلاثة تأثيرا ( على نية ) للاحتمال والقول له بيمينه في عدم النية ويكفي تحليفها له في منزله فإن أبى رفعته للحاكم فإن نكل فرق بينهما مجتبى ( وفي الغضب ) توقف ( الأولان ) إن نوى وقع وإلا لا ( وفي مذاكرة الطلاق ) يتوقف ( الأول فقط ) ويقع بالأخيرين وإن لم ينو لأن مع الدلالة لا يصدق قضاء في نفي النية لأنها أقوى لكونها ظاهرة والنية باطنة ولذا تقبل بينتها على الدلالة لا على النية إلا أن تقام على إقراره بها عمادية ثم في كل موضع تشترط النية فلو السؤال بها يقع بقول نعم إن نويت ولو يكم يقع بقول واحدة ولا يتعرض لاشتراط النية بزازية فليحفظ (الدر المختار 3/ 296 – 302)
Answered by:
Mufti Ebrahim Salejee (Isipingo Beach)