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.
The expressions used for divorce are either explicit (Ṣarīḥ) or metaphorical (Kinā’ī)—meaning they could imply divorce or something else. Divorce occurs through explicit terms without the need for intention (niyyah). However, metaphorical terms require intention for the divorce to take effect because of the possibility of other meanings.
The general rule regarding the expressions of divorce is to refer to the Personal Status Laws implemented in Islamic countries. Article (84) of the Jordanian Personal Status Law No. (15) of (2019) states: "Divorce occurs through explicit terms without the need for intention, and through metaphorical terms—which carry the meaning of divorce and others—by intention." Therefore, it is necessary to refer to the predominant view of the Ḥanafī school to clarify the ruling on "accidental" terms, pursuant to Article (325), which stipulates: "Whatever is not mentioned in this law shall be referred to the predominant view of the school of Abū Ḥanīfah; if it is not found, the court shall judge by the rulings of Islamic jurisprudence most consistent with the texts of this law."
By referring to the school of the Ḥanafīs, it becomes clear that the husband’s statement to his wife, "You are ṭāli’ (أنت طالىء)," is among the mispronounced terms (Al-Alfāẓ al-Muṣaḥḥafah) that do not lose the ruling of explicit terms due to mispronunciation. Consequently, divorce occurs through them, and the husband’s claim to the contrary is not judicially accepted unless he had called witnesses to that effect before uttering the word. Similar terms include ṭalāgh, ṭalāj, and ṭalāk.
Imam Ibn ‘Ābidīn al-Ḥanafī (may Allah have mercy on him) stated: "Among the explicit terms are mispronounced words, such as saying طalāgh or talāgh... i.e., with the letter ghayn. It is mentioned in Al-Baḥr: Among them are mispronounced terms." (Radd al-Muḥtār, Vol.3/P.249). He also stated: "Furthermore, replacing the final letter with another, as in the aforementioned mispronounced terms, does not remove the word from being explicit, even if such usage is not common. This is only because the explicit term was intended, and the mispronunciation is an accidental occurrence on the tongue, whether by error or intent, because it is the dialect of the speaker." (Radd al-Muḥtār, Vol.3/P.256).
An exception to this occurrence is if the husband calls witnesses—before uttering the mispronounced term—to testify that he does not intend divorce. Imam Ibn ‘Ābidīn said: "This includes terms like طalāgh, talāgh, طalāk, talāk, or spelling it out 'ṭ-l-q', or 'ṭalāq bāsh', without distinction between a scholar and an ignorant person. Even if he says: 'I mispronounced it intentionally to frighten her,' he is not believed judicially unless he called witnesses to that before saying it, and this is the issued fatwa." (Ad-Durr al-Mukhtār, Vol.3/P.249).
In conclusion, the husband’s statement to his wife, even if joking, "You are ṭāli’," results in a valid divorce. This is because mispronouncing the qāf as a hamza at the time of speech is considered an explicit divorce according to the custom of the dialect (‘Urf al-Lahjah). Thus, divorce occurs without depending on intention, unless he had called witnesses before the utterance to testify that he did not intend divorce. And Allah, the Exalted, knows best.
