Divorce does not take place by mere movement of the tongue
Fatwa No: 358534

  • Fatwa Date:3-1-2018 - Rabee' Al-Aakhir 16, 1439
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Question

Assalaamu alaykum. During a quarrel, a husband just uttered 'a' or 'one' or 'on'. Nothing else was uttered; is there any problem? Please answer the question according to Hanafi Fiqh. If anyone uttered something without moving his lips and only slightly moving his tongue but while breathing out, so one could only hear the breath coming out, is there any problem?

Answer

All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad, sallallahu ‘alayhi wa sallam, is His slave and Messenger.

If the purpose of the question is to ask about divorce, then divorce does not take place by these utterances, because they do not indicate divorce, neither explicitly nor implicitly. Al-Kaasaani  may  Allaah  have  mercy  upon  him wrote:

"There are two categories of divorce expressions: explicit and implicit. As for the explicit expressions of divorce, they are exclusively used to indicate the termination of the marriage bond. They include the word 'divorce' or any of its derivatives (other than the present tense and the imperative), such as 'You are divorced', or 'I divorced you', or 'You are a divorced woman', and the like. The implicit expressions of divorce, on the other hand, are of two kinds: firstly, the expressions that are basically metaphors of divorce in and of themselves; secondly, the expressions that are legally considered metaphors of divorce due to the husband's intention to issue a divorce while pronouncing them. An example of the first kind is any expression that indicates the termination of the marriage bond and indicates another meaning as well, such as 'You are free' ... As for the second kind, that he writes that his wife is divorced on a piece of paper, a board, the floor, or the wall... so he is asked about his intention in this case (as the determining factor)." [Badaa'iʻ As-Sanaa'iʻ]

The Hanafis held that divorce does not take place by the mere movement of the tongue. The Hanafi book Al-Fataawa Al-Hindiyyah reads regarding the recitation in prayer, "It is invalid for the praying person to utter the letters correctly without hearing himself, and this opinion was adopted by the majority of the scholars ... The same applies to reciting the Basmalah (saying Bismillahi Ar-Rahmaani Ar-Raheem [in the name of Allah, the Most Merciful, the Ever Merciful]) over the Thabeehah (sacrificial animal), making Istithnaa' in oaths (saying 'if Allah wills' when making an oath), and divorce."

It seems that the man in reference suffers from Waswaas (obsessive whisperings), and the divorce issued by a man suffering Waswaas does not take place even if he utters the explicit words of divorce, as he is considered to be mentally driven by Waswaas. Ibn ʻAabideen narrated on the authority of Al-Layth  may  Allaah  have  mercy  upon  them that the divorce issued by a husband suffering from Waswaas does not count because he is overwhelmed by whisperings in his mind.

This man should be given the advice to stop saying such utterances and to pay no attention to such Waswaas that affects him concerning divorce. He should seek remedy for this Waswaas and protect himself by reciting Ruqyah (healing through Quranic recitation and supplications).

Allah knows best.

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