Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
Chapter on Explicit and Implicit Divorce
1342
The explicit words of divorce (ṭalâq) are those derived from it, such as “You are ṭâliq (adjective),” or “You are muṭallaqah (adj. in passive voice),” or “I divorced you (ṭallaqtuk).” 1343
صَرِيْحُهُ: لَفْظُ الطَّلاَقِ وما تَصَرَّفَ مِنْهُ كَقَولِهِ: أَنْتِ طَالِقٌ أَوْ مُطَلَّقَةٌ أَوْ طَلَّقْتُكَ.
When he speaks an explicit word of ṭalâq, she becomes immediately divorced, even if he did not intend it. 1344
فَمَتَى أتَى بِهِ بِصَرِيحِ الطَّلاقِ طَلُقَتْ وَإِنْ لَمْ يَنْوِهِ.
1342. Introduction
The reason why an entire chapter was dedicated to the distinction between the explicit and implicit words for divorce is that the difference is legally consequential. Explicit words are not contingent upon the intention, particularly in the case of litigation; on the other hand, with implicit words, the actual occurrence of ṭalâq depends on the presence of an accompanying intention.
1343. Explicit Words for Ṭalâq in Languages Other than Arabic
(A) + (+H, +S): Words that are customarily explicit on ṭalâq in other languages, such as ‘divorce’ in English, are considered explicit (+M: if witnessed by two who know the language).
1344. Mistaken Pronouncement and Jesting
One may say the Arabic word ‘ṭâliq’ without intending divorce in one of the following conditions:
- He means to say the word jokingly but does not intend to divorce his wife. In this case, the divorce will take place according to (A) + (+H, +M, +S). The Messenger of Allah (SA) said:
“There are three things which, whether undertaken seriously or in jest, are treated as serious: Marriage, divorce and taking back a wife (after divorce).” (T, D, Ma – from Abu Hurayrah. T:S)
ثَلَاثٌ جِدُّهنَّ جِدٌّ وَهَزْلُهُنَّ جِدٌّ: اَلنِّكَاحُ وَالطَّلَاقُ وَالرَّجْعَةُ
If a man is asked, “Do you have a wife?,” and he says no, intending to lie, she does not become divorced. However, if he says, “I divorced her,”
فَلَوْ قِيْلَ لَهُ: أَلَكَ امْرَأَةٌ؟ قَالَ: لاَ، يَنْوِيْ اْلكَذِبَ، لَمْ تَطْلُقْ، وَإِنْ قَالَ: طَلَّقْتُهَا، طَلُقَتْ وَإِنْ نَوَى اْلكَذِبَ.
matter to the court, the ṭalâq does not occur in the sight of Allah. If she takes him to court, there may be one of three scenarios, based on the corroborative evidence:
(A) + (+H, +M, +S): If there is no evidence or there is corroborative evidence that he intended divorce, as when he said it during an altercation with his wife, the court will officiate the ṭalâq.
(A) + (+M, +S): If there is corroborative evidence to support his claim that he did not intend ṭalâq, this claim will be accepted and there is no ṭalâq. (This is still unclear in the madhhab, but it is the proper way to reconcile the two reports from the imam.)
1345. For example, if a husband says to his wife, “We are done,” “This is the end,” or the like.
1346. Writing the Words of Divorce
(A) + (+H, +M, +S): Written words of divorce are treated like the implicit pronouncements, in that the ruling is contingent upon the intention of the writer.
Signing the Documents of Divorce in a Secular Court
According to AMJA’s Family Code:
A legally enforced divorce that is performed by the secular judicial system outside the lands of Islam, when contrary to the desire of the husband, only terminates the civil marriage contract. As for the marital bond in the eyes of the Sharia, that is referred back to the husband, or the Islamic judge, or those in his position. But if the husband willingly signs the divorce papers, then the divorce becomes legitimate, and the role of the secular judicial system in that case would simply be a documentation of that.
she becomes divorced, even if he intended to lie. 1347
If he says to his wife, “You are khaliyah, 1348 bariyah, 1349 bâ’in (finalized), 1350 battah, 1351 or batlah,” 1352 intending to divorce her, she becomes divorced three times unless he intended less than that. Aside from that, 1353 the divorce will always count as a singular divorce unless he intends a composite threefold divorce. 1354
وَإِنْ قَالَ لاِمْرَأَتِهِ: أَنْتِ خَلِيَّةٌ، أَوْ بَرِيَّةٌ، أَوْ بَائِنٌ ، أَوْ بَتَّةٌ، أَوْ بَتْلَةٌ، يَنْوِيْ طَلاَقَهَا طَلُقَتْ ثَلاَثاً إِلاَّ أَنْ يَنْوِيَ دُوْنَهَا، وَمَا عَدَا هَذِهِ يَقَعُ بِهِ وَاحِدَةً إِلاَّ أَنْ يَنْوِيَ ثَلاَثاً.
If he gives his wife the choice, and she chooses separation, she is divorced one time. 1355 If she does not choose, or if she chooses to remain with her husband, no divorce takes place. ‘Â’ishah
وَإِنْ خَيَّرَ امْرَأَتَهُ، فَاخْتَارَتْ نَفْسَهَا، طَلُقَتْ وَاحِدَةً. وَإِنْ لَمْ تَخْتَرْ أَوِ اخْتَارَتْ زَوْجَهَا، لَمْ يَقَعْ شَيْءٌ، قَالَتْ عَائِشَةٌ رَضِيَ اللهُ عَنْهَا: "قَدْ
1347. The utterance of the word ‘divorce’ and those that are derived from it should be taken seriously because judges should only go by that which is apparent; they cannot discover people’s intentions. In this case, he uttered the word ‘divorce’, so it will be counted against him.
1348. Released from the bond of marriage; a she-camel is called khaliyah when released from her rope.
1349. Adjective from al-barâ’ah, which means innocence and non-liability.
1350. Adjective from al-bayn, which means separation.
1351. Adjective from al-batt, which means cutting.
1352. Adjective from at-tabattul. Maryam (Mary, mother of Jesus) is called al-batool because she had no interest in men or anything that would take her away from the worship of Allah.
1353. All of these words are implicit, so the occurrence of the composite threefold divorce (which counts, according to the majority) will depend on his intention. (See the discussion of the threefold divorce in the previous chapter.)
1354. According to another view, considered to be the madh-hab (A/SM & Iqnâ‘): If he intends divorce by any of these strong metaphors, then three divorces will be binding, regardless of how many times he intended.
1355. If this was the first or second divorce, and it was not for compensation, he has the right to take her back during the ‘iddah.
(rah) said, “The Messenger of Allah gave us the choice. Was that a divorce?” 1356
خَيَّرَناَ رَسُوْلُ اللهِ ، أَفَكَانَ طَلاَقاً؟"
She is not entitled to choose except in the same session (when he gives her the choice), unless he gives her the option after that.
وَلَيْسَ لَهَا أَنْ تَخْتَارَ إِلاَّ فِي الْمَجْلِسِ، إِلاَّ أَنْ يَجْعَلُهُ لَهَا فِيْمَا بَعْدَهُ.
1356. (Ag) This is a rhetorical question from ‘Â’ishah to deny that giving the wife a choice counts as a ṭalâq.
1357. In this case, she may give herself a composite threefold divorce. (See the discussion of the threefold divorce in the previous chapter.)
1358. Granting the Wife the Right of Divorce
Before or after the contract, the husband may give his wife the right of divorce. The discussion above is about granting her this right after their marriage contract is finalized. In this case, regardless of the phrasing, the right is limited to the same session during which he granted it, according to (-H, -M, -S). Only (A) differentiates between giving her the choice, which will be limited to the same session, as indicated above, and granting her the right of divorce, which continues until he rescinds the authorization, divorces her, or has intercourse with her. (As for stipulating this right in the contract, see the Chapter on Conditions in Marriage.)
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