Question:
Assalamualaikum ustaz. What is meant by kinayah divorce? The reason is my husband said to me the following when I was pregnant with our child: “We’ll go our separate ways after you give birth.” Are we considered divorced? Hope for an explanation.
Answer:
Waalaikumussalam wrt. wbt.,
Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.
Talaq according to the 4th Edition of Kamus Dewan means a release from the bonds of marriage with the utterance of talaq, divorce and others by the husband. [1]
Allah SWT states:
ٱلطَّلَـٰقُ مَرَّتَانِ ۖ فَإِمْسَاكٌۢ بِمَعْرُوفٍ أَوْ تَسْرِيحٌۢ بِإِحْسَـٰنٍ
“Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment.” [2]
Syeikh al-Maraghi stated in his commentary: “The phrase ‘Then, either keep [her]’ means reconcile without any intention of ever hurting her. However, with the intention of islah (improvement) and doing good with her. Ans the phrase ‘or release [her] with good treatment’ after three times talaq, then give her, her rights.” [3]
Scholars divided talaq in terms of the clarity of the utterance of talaq into two, which is sorih clear and kinayah of which there is a possibility it means talaq or otherwise. For sorih phrase, there are three words if uttered then it automatically considered as talaq which are divorce, separate and letting go.
The examples of sorih utterances are ‘I let you go’, ‘you’re divorced’ or ‘I’m separating from you.’ If these utterances are made by the husband to his wife, then they are considered divorced. Examples of kinayah utterances are ‘go back to your family’, ‘get away from me’ and others. However, such utterances depend on the intention of the husband. If he said as such to divorce his wife, then they are considered divorced. [4]
Imam al-Baijuri said: “Talaq sorih doesn’t need for intention. The intention is of getting a divorce. For there is no ihtimal other than talaq for it.” [5]
While kinayah utterances are unclear. Whether it is considered a divorce depends on the intention of the husband.
Ibnu al-Qasim al-Ghazzi stated: “Kinayah is any utterance that could mean talaq or other meaning. And it needs for the intention. If he intends to divorce when he utters it the kinayah, then they are considered as divorced. If not, then they aren’t considered as divorced.” [6]
Figurative utterances are any utterances that may mean talaq or other meaning. There are various ways a person can figuratively means talaq such as:
- You’re nothing to me.
- You’re now separate from me.
- You are no longer mine.
- Go back to your family.
- Get away from me.
- Let’s separate ways.
- I’ll let you go your way.
- You’re prohibited for me.
All of the above are considered as figurative utterances that may mean talaq or other meanings.
This is based on a hadith from Aisyah R.Anha, she said:
أَنَّ ابْنَةَ الْجَوْنِ لَمَّا أُدْخِلَتْ عَلَى رَسُولِ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ وَدَنَا مِنْهَا قَالَتْ أَعُوذُ بِاللَّهِ مِنْكَ، فَقَالَ: لَقَدْ عُذْتِ بِعَظِيمٍ، الْحَقِي بِأَهْلِكِ
When the daughter of al-Jaun was admitted into the presence of Allah’s Messenger (ﷺ) and he went near her, she said, “I seek refuge in Allah from you.” He replied, “You have sought refuge in the Supreme [One Who is worthy of refuge being taken in], return to your family.” [7]
The Ruling for Clear and Figurative Talaq Utterances
- Divorce through clear talaq utterance is valid regardless of whether the husband intends for talaq or otherwise. The reason is clear talaq utterances has a final meaning of which it doesn’t need for the intention when one utters it.
- Figurative talaq although usually used to mean talaq, such as: “You’re prohibited for me” doesn’t automatically be considered as talaq except when the husband intends it as such. If the husband doesn’t intend for divorce or with any other intentions, then the talaq is invalid.
This follows the hadith from Ka’ab bin Malik RA, he said:
فإِنَّ رَسُولَ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ أَمَرَهُ أَنْ يَعْتَزِلَ امْرَأَتَهُ فَقَالَ أُطَلِّقُهَا أَمْ مَاذَا؟ قَالَ: بَلِ اعْتَزِلْهَا فلاَ تَقْرَبَنَّهَا. قَالَ: فَقُلْتُ لاِمْرَأَتِي: الْحَقِي بِأَهْلِكِ.
“Verily, Allah’s Messenger (ﷺ) has commanded you to remain separate from your wife. I said: Should I divorce her or what (else) should I do? He said: No, but only remain separate from her and don’t have sexual contact with her. The same message was sent to my companions. So, I said to my wife: You better go to your parents and stay there with them until Allah gives the decision in my case.” [8]
If a person intended to divorce his wife in the future, then it is considered as a promise (الوعد). It isn’t considered talaq as long as it isn’t bound with other matters. For example, the phrase “if you enter this house, then we’re divorced”. This is stated by al-Baijuri in his hasyiah to Ibn Qasim’s syarah.
In the above-presented question, the kinayah utterance is considered valid or otherwise depends on the intention of the husband. This is based on what happened to Ka’ab bin Malik when he didn’t participate in the Battle of Tabuk. Allah’s Messenger (ﷺ) has commanded him to remain separate from your wife. Ka’ab said:
أُطَلِّقُهَا أَمْ مَاذَا أَفْعَلُ
“Should I divorce her or what (else) should I do?”
Allah’s Messenger (ﷺ) said:
لَا بَلْ اعْتَزِلْهَا وَلَا تَقْرَبْهَا
“No, but only remain separate from her and don’t have sexual contact with her.”
The same message was sent to my companions. So, Ka’ab said to his wife:
الْحَقِي بِأَهْلِكِ
“You better go to your parents and stay there with them,”
When Allah SWT accepted his repentance, he returned to his wife, He wasn’t commanded to remarry her with a new akad. [9]
The phrase “go to your parents” shows that talaq isn’t valid when using kinayah utterance except if it is followed with an intention.
However, in our opinion, it is best to refer to the Shariah Court and apply for a talaq verification. This is an effort to ascertain whether the husband intends for talaq or not.
May Allah SWT shows us the best way in understanding this religion. Amin.
Wallahu a’lam.
[1] See: https://prpm.dbp.gov.my/cari1?keyword=talak
[3] See Tafsir al-Maraghi, 2/169
[4] See al-Fiqh al-Minhaji,4/123
[5] See Hasyiah al-Baijuri ‘ala Syarh Ibn al-Qasim ‘ala Matan Abu Syuja’, 2/263
[6] See Syarh Ibnu al-Qasim ‘ala Matan Abi Syuja, 2/264
[7] Narrated by al-Bukhari (4955)
[8] Narrated by al-Bukhari (4156) and Muslim (2769)
[9] Narrated by al-Bukhari (4419)
