Question # 391: The Shafis, the Hanbalis and some of the Maalikis are of the view that phrases like, “You may leave” and “Get out” are explicit statements of divorce (wherein the intention of the husband does not count). I would like to know whether their view is backed up by any evidence. And also please provide your counter response to their view based on Quran and ahadeeth.
bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
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Shorter Answer: No divorce occurs when these words “You may leave” (“Israhi” in Arabic), “Get out” or similar phrases are used, so long as the husband does not intend divorce thereby.
Long Answer: The words “You may leave” are regarded by the majority of fuqaha’ as a form of implicit divorce, and it does not count as divorce unless there is the intention of divorce.
The Shafi‘is and some of the Hanbalis are of the view that saying “You may leave [a translation of the Arabic word israhi]” is an explicit form of divorce. So if the husband says “Israhi (you may leave)” to his wife, it counts as a divorce and if he says, “I did not intend divorce,” that is not acceptable unless there is circumstantial evidence to show that he did not intend to divorce, such as if he said to her, “Israhi (you may leave)” immediately after telling her to go out early to work in the fields. Ibn Hajar al-Makki, one of the Shafi‘is, said that “Israhi (you may leave)” is used in a metaphoric way.
Al-Ramli said in Nihaayat al-Muhtaaj [(Madhab Al-Imam Al-Shafi’i)]: “If the husband has clearly uttered the word of divorce, it is not acceptable for him to say that he did not intend to divorce unless there is circumstantial evidence to that effect. For example, he mentioned: if he said to her “Israhi (you may leave)” immediately after telling her to go out early to work in the fields, then this is to be accepted as it appears to be.”
Some of the Malikis were of the view that divorce takes place if the word “Israhi” is spoken even if that is without the intention of divorce, because it is explicit according to some of them, or it is a word that is used in a metaphoric way with a clear meaning that does not need intention.
The correct view is that of the majority, which is that no divorce takes place if the husband says “Israhi” or similar phrases, unless he intended divorce.
Ibn Qudamah (may Allah have mercy on him) [(Hanbali)] said in al-Mughni: If he says, “I have divorced you” or “I am leaving you” or “You may leave (israhi)”, that means that divorce has taken place. This implies that explicit divorce is represented in three words: “divorce” (talaaq), “separation” (firaaq) and “leaving” (saraah) and other words or phrases derived from them. This is the view of al-Shafi‘i.
Abu ‘Abd-Allah ibn Haamid was of the view that explicit divorce is represented only in the word “talaaq” and words/phrases derived from it. This is also the view of Abu Hanifah and Malik, except that Malik said that it counts as divorce even if that was not the intention, because metaphoric words of which the meaning is clear do not need an intention. The evidence for this opinion is that words derived from firaaq (separation) and saraah (leaving) are often used in cases other than divorce, so they cannot be regarded as explicit expressions of divorce.
With regard to the word firaaq (separation) and saraah (leaving), these words are mentioned in the Qur’an in the context of separation between the spouses, so it may be explicit to that effect, like the word talaaq. Allah (سبحانه و تعالى) says in the Qur’an:
- “either you retain her on reasonable terms or release her (tasreeh) with kindness” (Soorah al-Baqarah, 2:229)
- “But if they separate [wa in yatafarraqaa] (by divorce), Allah will provide abundance for every one of them from His Bounty” (Soorah an-Nisa’a, 4:130)
- “then come! I will make a provision for you and set you free (usarrihkunna) in a handsome manner (divorce)” (Soorah al-Ahzaab, 33:28)
And the view of Ibn Haamid is more correct, that explicit statement of something is that which states it and cannot be interpreted in any other manner unless it is a far-fetched interpretation. The words firaaq (separation) and saraah (leaving), although they appear in the Qur’an in the sense of separation between spouses, they are also used with other meanings, as Allah (سبحانه و تعالى) says in the Qur’an: “And hold fast, all of you together, to the Rope of Allah (i.e. this Qur’an), and be not divided [wa la tafarraqu] among yourselves” (Soorah Aal ‘Imran, 3:103)
People do not use this word in the sense of divorce, so it is not one of the explicit words of talaaq for them.”
(The above reply is based on answer provided by Islamqa.info on the topic)
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.