Subjecting the Talaaq to the approval of the court

Q: Every time I have an argument with my wife I get frustrated and I ask her “what do you want to do now” because I want to know what is the next step in fixing our situation.  Does this count? If I tell my wife in anger “I will divorce” and in frustration I say “You know in English it counts if I say it” but I never attributed divorce to her, I was frustrated with the whole argument and got carried away.  If I start learning fiqh and I tell my wife “she is saying we are divorced”, will this count because I did not want to issue it, I thought we were and later on I found out we were not.  In the same week I was frustrated and stressed out that I said in anger, until we find out about our situation we have to sleep in different rooms because it is harem for us but I did not say you are harem for me, I wanted to be on safe side, which is why I said it.  Will this count? If I blame her for making me say such implicit statements in the past in anger but I had no intention of divorcing her, does this count? Finally, if I tell my wife, that you are not considered to be a wife because you don’t clearly listen to what I am saying, does this count because, once again, my intention was not to divorce her but to degrade her for not paying attention to what I’m saying.  Nonetheless, if husband says to his wife that “You are not my wife”, is intention required?  Also, if I tell my wife I will not be involved in this marriage anymore because I am getting hopeless in waiting for better times, does this count and at the same time I say that child in your stomach is not mine but my intention was not to deny the fact that I had intercourse with her and a child came about, does this count? Waswasa- If a person is affected with waswasa and has problems remembering his intention, are his statements considered? Nikah- Can I re-perform nikah with my wife with certain conditions, such as witnesses must be required for divorce to take place and simply uttering an explicit and implicit statement without without witnesses is void? Also, can I also state in my nikah that a court ruling must be required to judge the case? 

A: If a person uses an ambiguous word which could imply talaaq as well as another meaning then his niyyat will be taken into account at the time of the utterance. If he intended talaaq, then one talaaq e baain will take place. If he did not intent talaaq then no talaaq will take place. Do not pay attention to any stray thoughts or waswasas (baseless thoughts) that come in your mind, Talaaq will take place once a person issues the talaaq, whether there are witnesses present or not. Talaaq is not subject to the court or witnesses approving of the talaaq taking place. 

وعن أبي هريرة رضي الله عنه قال : جاء ناس من أصحاب رسول الله صلى الله عليه وسلم إلى النبي صلى الله عليه وسلم فسألوه إنا نجد في أنفسنا ما يتعاظم أحدنا أن يتكلم به قال أو قد وجدتموه قالوا نعم قال ذاك صريح الإيمان (رواه مسلم باب بيان الوسوسة في الإيمان وما يقوله من وجدها 1/79)

الطلاق على ضربين صريح وكناية فالصريح قوله أنت طالق ومطلقة وطلقتك فهذا يقع به الطلاق الرجعي ... ولا يفتقر إلى النية (الهداية 2/359)

وأما الضرب الثاني وهو الكنايات لا يقع بها الطلاق إلا بالنية أو بدلالة الحال (الهداية 2/373)

الطلاق على ضربين صريح وكناية فالصريح قوله أنت طالق ومطلقة وطلقتك فهذا يقع به الطلاق الرجعي ... ولا يفتقر إلى النية (الهداية 2/359)

وأما الضرب الثاني وهو الكنايات لا يقع بها الطلاق إلا بالنية أو بدلالة الحال (الهداية 2/373)

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)

Category: