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Actual and Inferred Attribution of Divorce to One's Wife


By Mufti Muhammad Ibn Adam

Q) I was at work the other day and started thinking about the word Talaq and how it is pronounced (as I often do with an Arabic word) and began saying it to myself. I uttered Talaq many times without directing it to my wife in any way and there was no one there to hear me say this. I am really worried now, because some people have told me I may have divorced my wife. Can you please let me know if my wife is divorced or not.

In the name of Allah, Most Compassionate, Most Merciful,

A basic yet extremely important principle regarding divorce is that when a man pronounces divorce to his wife in clear and plain words (sarih), it comes into effect regardless of whether he intends divorce or otherwise. Sarih means to explicitly pronounce the word “divorce” or words derived from it, such as: “I divorce you” or “you are divorced”. It does not make a difference in which language one pronounces the divorce, as long as a word or sentence is specifically used for indicating divorce (such as the word Talaq), divorce comes into effect whether one intends divorce or not. (See: Radd al-Muhtar, 3/250 & other major works of Fiqh).

However, in order for this divorce to be effective, the husband needs to attribute it to his wife. This attribution (idhafa) of divorce is of two kinds:

a) Actual attribution (idhafa sariha)

b) Inferred attribution (idhafa ma’nawiyya)

Actual Attribution

Actual attribution is when one clearly attributes the divorce to one’s wife such as saying: “I divorce my wife” or “I divorce Zaynab, my wife” Here, there is no possibility of the man attributing divorce to anyone other than his wife, and as such, divorce will without doubt be effected.

Inferred Attribution

This is when one pronounces divorce without clearly attributing it to one’s wife, but prevailing circumstances indicate that divorce is being attributed to her. For example, the husband says: “Divorce” directly after having an argument with his wife or he points towards his wife and says “Divorce” or “Divorce to this woman”. In this case also, divorce will be effected.

Shaykh Muhammad Qudri Basha states in his Al-Akham al-Shar’iyya fi al-Ahwal al-Shakhsiyya:

“It is necessary in order for divorce to be effective that the statement [of divorce] is attributed to the woman one intends to divorce, even if it is an inferred attribution.” (Al-Akham al-Shar’iyya, P: 122)

The renowned Hanafi jurist (faqih), Imam Ibn Abidin (Allah have mercy on him) states:

“…By omitting an inferred attribution, divorce will not be effected, for an inferred attribution of divorce to one’s wife is a condition [in order for divorce to be considered valid].” (Radd al-Muhtar ala al-Durr, 3/284)

He further states:

“It is not necessary that the attribution (idhafa) be clear and actual (sariha) in his statement, for it is mentioned in al-Bahr: “If a man said “divorce” and he was asked as to whom it was attributed? And he replied: “To my wife” then his wife will be considered divorced.” (ibid)

He also states:

“…If he (the husband) said: “A woman is divorced” or he said: “I have divorced a woman thrice” and he claimed he did not attribute the divorce to his wife, his claim will be accepted. It is understood from this that had he not said that divorce was not attributed to his wife; his wife would have been divorced. Because the normal practice is that the one who has a wife only pronounces divorce in order to divorce her and no one else.” (ibid)

In light of what Imam Ibn Abidin (Allah have mercy on him) has stated above, it becomes clear that attributing and directing the divorce to one’s wife is a condition for its validity. However, this “attribution” need not be actual, rather, clear and actual attribution (idhafa sariha) and inferred and understood attribution (idhafa ma’nawiyya) are both sufficient to effect a divorce. In the case of actual attribution, divorce will be considered effected at all costs, even if the husband claims not to have directed the divorce to his wife, because the attribution is clear and actual. In the case of inferred attribution, however, the default is that divorce will be considered effected, unless the husband claims that he did not attribute the divorce to his wife, in which case, his statement will be accepted and hence there will be no divorce. However, a Muslim judge (qadhi) or Mufti may issue a verdict of divorce (qadha’an) if a prevailing circumstance indicated that the husband is lying and he did attribute the divorce to his wife. (See: Fatawa Rahimiyya, 5/323-324)

In essence we have three situations here: When there is no attribution of divorce to the wife at all, when there is actual attribution and when there is inferred attribution.

So an example for the first situation (when there is no attribution) is when the husband says to his brother or a woman other than his wife: “I divorce you” or when teaching a group of students rules of divorce the teacher says: “A man said to his wife, I divorce you”. In this case, divorce has not been attributed to one’s wife; hence, it will not be effected.

An example for the second situation (when there is clear actual attribution of divorce to one’s wife) is when the husband says: “I divorce my wife” or “my wife is divorced”. In this case, divorce will be effected even if the husband was to claim that the divorce was not attributed to his wife.

An example for the third situation (when divorce is attributed to one’s wife in an inferred manner) is when the husband says: “A woman is divorced” or “This one is divorced” or he says “divorce” to himself. In this case also, divorce will be effected unless the husband swears that the divorce was not attributed to his wife. However, if the prevailing circumstance indicates that he did attribute the divorce to his wife, such as he said: “divorce” after having an argument with his wife, a Muslim judge will rule that divorce has been effected even if the husband’s claim was to the contrary.

From the above explanation, it is evident that mentioning one’s wife’s name is not necessary in order for an Islamic divorce to be considered valid. Similarly, there is no pre-requisite of the wife being in the presence of the husband when he pronounces divorce.

As such, if a man whilst being alone said to himself: “Divorce” or “I divorce”, then divorce to his wife will be considered valid unless he claims he did not attribute or direct this divorce to his wife. If he made this statement after an argument with his wife and he was still adamant that it was not directed at her, then also, technically speaking, divorce will not be considered effected, although a Muslim judge may issue a verdict of divorce in an Islamic court (qadha’an).

For example, a couple were fighting and arguing when the husband left the house and whilst being alone he uttered “divorce” to himself without saying his wife’s name and without saying the full sentence “I divorce my wife”. Now, if the husband swears that he did not direct the divorce to his wife, his word will be accepted from a technical point of view, but a Muslim judge’s ruling would be that divorce has been effected. The Fatwa issued by many Muftis will also be of divorce being effected, for the situation entails that the husband did attribute the divorce to his wife. On the contrary, a couple were having a quite meal together when suddenly the husband uttered “Divorce”. Now, he could be thinking about a Fiqhi issue that he taught his students during the day and hence made this utterance, or it is possible that he may be attributing the divorce to his wife. As such, religiously (diyanatan) as well as legally in a court (qadha’an) his claim of not attributing divorce to his wife will be accepted and no divorce will take place. But if he did not claim anything, by default, divorce will be considered to have been effected.

The following may make it easier to understand this issue:

1) Divorce without any attribution to one’s wife = No divorce at all times.

2) Divorce with actual clear attribution to one’s wife = Divorce effected at all times.

3) Divorce with inferred attribution:

a) No denial from husband = Divorce effected.

b) Denial from husband that divorce was attributed to his wife:

b.1) No prevailing circumstance = No divorce religiously or legally.

b.2) Prevailing circumstance = religiously no divorce, but legally in a court of law divorce effected.

This is an extremely important issue, since many Muslims are unclear of the Islamic ruling for a situation where the husband pronounces the word “divorce” to himself, without mentioning his wife’s name and without his wife being in his presence. Due to its importance, I have endeavoured to explain this issue in depth and tried simplifying it to the best of my ability. I hope it has been of benefit, Insha Allah.

In light of the foregoing discussion, your query should have been answered. You state that you pronounced the word “Talaq” many times to yourself without attributing or directing these pronouncements to your wife. If this was the case, then your marriage still stands and divorce has not come into effect with these utterances. As stated earlier, if a husband clearly states that I did not attribute the utterance of the mere word “Talaq” to my wife, divorce will not come into effect. However, you need to be precautious in the future of not uttering this word without genuinely having a need to do so.

And Allah knows best

 

Article taken (with Thanks) from Daruliftaa.org

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