Topic:
*Ruling on Divorce by Saying: “Consider yourself completely free and released.”
(No-37702)
I had an Islamic marriage with Daria in April 2023; it was verbal with an Imam and witnesses, no written certicate. In January 2024 I decided to end the relationship, I didn't pronounce divorce directly but I wrote to the following messages and I did have the intent of divorce. I haven't seen Daria since then. Are we considered correctly divorced Islamically? "I do feel excessively terrible about all the pressure and annoyance that I transposed to you from my situation, and all the time you spent waiting for me to recover. There’s no prospect that my situation will change anytime in the next 1-2 years, the process still has many steps, and things are only escalating more and more; there’s impossiblity of early resolution. Please do move on Daria with your life, you have been patient and supportive enough, but I cannot bear with the guilt of wasting more of your life, you have no guilt at all in what’s happening to me. You have been a bright light in my otherwise dark life, I will always always appreciate and think really highly of you. I want you to feel fully released and fully free to move on with your life without any feel of guilt from your side for leaving me while in this situation." "Thank you my dear Daria. You will always have a dear place on my heart as well. I want you not to feel obliged that you have to wait for me in terms of relationship my dear, I do literally have 1-2 years left in the process; it will be impossible for things to be resolved before, with the way things are going. You have sacrificed a lot for your loved ones throughout your life, I am not at a stage when I need care, I can really manage. You need not to feel you have to wait for me, otherwise you will become extremely frustrated, and I don’t want our dear relationship to turn sour at any point ever, I would rather we remain always have good and happy memories."
In the scenario mentioned, since your intention was to issue a divorce, when you said to your wife, “Consider yourself completely free and released,” one Talaq Ba’in (irrevocable divorce) occurred.
It should be noted that the wording “consider yourself free (آزاد)” on its own normally results in a revocable divorce (ṭalāq rajʿī). However, by adding the word “completely,” the statement becomes more emphasised, which results in a Talaq Ba’in instead of ṭalāq rajʿī.
After a Talaq Ba’in has taken place, the husband no longer has the right of Rujūʿ (revoking the divorce). However, if both husband and wife mutually agree to resume marital life, they may contract a new nikāḥ with a new mahr.
After renewing the Nikah, the husband will have the right to issue two divorces in the future.
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دلائل:
رد المحتار:(باب الكنايات،299/3،ط: سعید)
ﻓﺈﻥ ﺳﺮﺣﺘﻚ ﻛﻨﺎﻳﺔ ﻟﻜﻨﻪ ﻓﻲ ﻋﺮﻑ اﻟﻔﺮﺱ ﻏﻠﺐ اﺳﺘﻌﻤﺎﻟﻪ ﻓﻲ اﻟﺼﺮﻳﺢ ﻓﺈﺫا ﻗﺎﻝ " ﺭﻫﺎﻛﺮﺩﻡ " ﺃﻱ ﺳﺮﺣﺘﻚ ﻳﻘﻊ ﺑﻪ اﻟﺮﺟﻌﻲ ﻣﻊ ﺃﻥ ﺃﺻﻠﻪ ﻛﻨﺎﻳﺔ ﺃﻳﻀﺎ، ﻭﻣﺎ ﺫاﻙ ﺇﻻ ﻷﻧﻪ ﻏﻠﺐ ﻓﻲ ﻋﺮﻑ اﻟﻔﺮﺱ اﺳﺘﻌﻤﺎﻟﻪ ﻓﻲ اﻟﻄﻼﻕ ﻭﻗﺪ ﻣﺮ ﺃﻥ اﻟﺼﺮﻳﺢ ﻣﺎ ﻟﻢ ﻳﺴﺘﻌﻤﻞ ﺇﻻ ﻓﻲ اﻟﻄﻼﻕ ﻣﻦ ﺃﻱ ﻟﻐﺔ ﻛﺎﻧﺖ، ﻟﻜﻦ ﻟﻤﺎ ﻏﻠﺐ اﺳﺘﻌﻤﺎﻝ ﺣﻼﻝ اﻟﻠﻪ ﻓﻲ اﻟﺒﺎﺋﻦ ﻋﻨﺪ اﻟﻌﺮﺏ ﻭاﻟﻔﺮﺱ ﻭﻗﻊ ﺑﻪ اﻟﺒﺎﺋﻦ ﻭﻟﻮﻻ ﺫﻟﻚ ﻟﻮﻗﻊ ﺑﻪ اﻟﺮﺟﻌﻲ.
ﻭاﻟﺤﺎﺻﻞ ﺃﻥ اﻟﻤﺘﺄﺧﺮﻳﻦ ﺧﺎﻟﻔﻮا اﻟﻤﺘﻘﺪﻣﻴﻦ ﻓﻲ ﻭﻗﻮﻉ اﻟﺒﺎﺋﻦ ﺑﺎﻟﺤﺮاﻡ ﺑﻼ ﻧﻴﺔ ﺣﺘﻰ ﻻ ﻳﺼﺪﻕ ﺇﺫا ﻗﺎﻝ ﻟﻢ ﺃﻧﻮ ﻷﺟﻞ اﻟﻌﺮﻑ اﻟﺤﺎﺩﺙ ﻓﻲ ﺯﻣﺎﻥ اﻟﻤﺘﺄﺧﺮﻳﻦ
البحر الرائق:(مسائل متفرقة في الطلاق،548/8،ط: دار الكتاب الإسلامي)
قال - ﺭﺣﻤﻪ اﻟﻠﻪ - (ﻗﺎﻟﺖ اﻟﺰﻭﺟﺔ ﻟﺰﻭﺟﻬﺎ ﻣﺮا ﻃﻼﻕ ﺑﻐﻠﻲ) ﻳﻌﻨﻲ اﻋﻄﻨﻲ ﻃﻼقا (ﻓﻘﺎﻝ اﻟﺰﻭﺝ ﺩاﺩﻩ ﻛﻴﺮا ﻭﻛﺮﺩﻩ ﻛﻴﺮا ﻭﺩاﺩﻩ ﺑﺎﺩ ﻭﻛﺮﺩﻩ ﺑﺎﺩ ﻳﻨﻮﻱ ﻳﻘﻊ) ﻣﻌﻨﺎﻩ اﻻﻋﺘﺒﺎﺭ ﻟﻠﻨﻴﺔ ﻭﻋﺪﻣﻬﺎ ﻓﺈﻥ ﻧﻮﻯ ﺑﻬﺬﻩ اﻷﻟﻔﺎﻅ الطلاق ﻭﻗﻊ ﻓﺈﻥ ﻟﻢ ﻳﻨﻮ ﻻ ﻳﻘﻊ
بدائع الصنائع:(في حكم الطلاق البائن،187/3،ط: دار الكتب العلمية)
ﻓﺎﻟﺤﻜﻢ اﻷﺻﻠﻲ ﻟﻤﺎ ﺩﻭﻥ اﻟﺜﻼﺙ ﻣﻦ اﻟﻮاﺣﺪﺓ اﻟﺒﺎﺋﻨﺔ، ﻭاﻟﺜﻨﺘﻴﻦ اﻟﺒﺎﺋﻨﺘﻴﻦ ﻫﻮ ﻧﻘﺼﺎﻥ ﻋﺪﺩ اﻟﻄﻼﻕ، ﻭﺯﻭاﻝ اﻟﻤﻠﻚ ﺃﻳﻀﺎ ﺣﺘﻰ ﻻ ﻳﺤﻞ ﻟﻪ ﻭﻃﺆﻫﺎ ﺇﻻ ﺑﻨﻜﺎﺡ ﺟﺪﻳﺪ
مأخذه التبويب دار العلوم کراچی: فتویٰ نمبر:40/1817)
خیر الفتاویٰ:(کتاب الطلاق،101/5،ط: امدادیہ)
واللّٰہ تعالیٰ اعلم بالصواب
دار الافتاء الاخلاص کراچی