Question :
If a man said to his wife, "Consider yourself divorced," and he intended a divorce, and the wife agreed to the divorce. Also, if she said to him, "Divorce me," and he replied to her saying, "Consider yourself divorced"; fulfilling her request, is it correct to say that silence cannot be attributed to a statement, and therefore we apply to her the decision of the Court of Appeal No. (60028), which is that the divorce is not valid because this word is not considered one of the words of divorce, or do we effect one instance of divorce upon her, especially since this word has many possibilities, and there may be many decisions for this word in the courts, so what is the ruling of Sharia on that?
The Answer :
All perfect praise be to Allah the Lord of the Worlds. May His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.
Based on 54 reviewed decisions from the Sharia Court of Appeals, it was found that the phrase "Consider yourself divorced" was not considered from the clear and plain words of divorce (Sarih) nor the allusive words of divorce (Kinaya), even if the husband intended a divorce.
The court based its decision on the statement found in the Hanfi fiqh book {Al-Bahr al-Ra'iq, a commentary on Kanz al-Daqa'iq, volume 8, page 549}, which states: "If a husband says, "Dada Inkar wa Kardah Inkar," the divorce does not take effect, even if he intends it to……This is because the meaning of his saying "Dada Inkar wa Kardah Inkar " is: "Suppose it has occurred or estimate it as if it has occurred"; so nothing is established by it, and "Inkar" ... means "Suppose it has not occurred or estimate it as if it has not occurred."
The court also based its decision on what is stated in the book {Bahjat al-Mushtaq fi Ahkam al-Talaq, P.22}: "If someone is asked, 'Have you divorced your wife?' and he replies, 'Consider her divorced,' or 'Count her as divorced,' the divorce does not take place."
In conclusion, if a husband says to his wife, 'Consider yourself divorced,' or 'Suppose,' or 'Imagine,' which implies a sense of supposition or assumption, the divorce does not occur, even if the husband intends to divorce her. Similarly, if the wife responds by saying she considers herself divorced or assumes herself to be divorced, it has no legal effect. This is because the words used do not constitute either Sarih (clear and plain) or Kinaya (allusive) declaration of divorce. And Allah the Almighty knows best.
