Question:
Is a divorce considered valid if the talaq is pronounced when one is outraged?
Answer:
Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.
The pronouncement of talaq (divorce) is divided into two which are sarih (clear) and kinayah (unclear). For sarih pronouncement, there are three words of which if one of them is pronounced, then the talaq is considered valid. These words are divorce, separate and letting go.
Imam al-Baijuri stated sarih talaq doesn’t need for an intention. For there is no dihtimal for other than talak. [1]
Allah SWT states:
ٱلطَّلَـٰقُ مَرَّتَانِ ۖ فَإِمْسَاكٌۢ بِمَعْرُوفٍ أَوْ تَسْرِيحٌۢ بِإِحْسَـٰنٍ
“Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment.” [2]
Syeikh al-Maraghi stated in his commentary: “the phrase ‘Then, either keep [her] in an acceptable manner or release [her]’ refers to reconciliation without any intention to hurt her. However, it is with the intention of islah (improvement) and being kind. And the phrase ‘release [her] with good treatment,’ after the third talaq means to return her rights.” [3]
Syeikh Muhammad al-Zuhaili stated in his book al-Mu’tamad [4], talaq that is pronounced clearly (sarih – such as saying divorce and talaq) and it is meant for his wife, by the husband, then it is valid even if it is pronounced without an intention. The exceptions are only in the following six situations:
- A person saying or stating it in his sleep
- An insane person
- A sabq al-lisan person (mistakenly)
- A person calling another; that is if a person has a wife named “Taliq” which means a divorcee.
- Unfathomable words
- Forced and intoxicated not from sinning
For the sixth situation, the mabawiyyah evidence used to support it is a hadith of Rasullullah PBUH:
لَا طَلَاقَ وَلَا عَتَاقَ فِي إِغْلَاقٍ
“There is no divorce or emancipation in case of ighlaq.” [5]
Imam al-Syaukani in Nail al-Autar [6] stated: “The meaning of ‘fi ighlaq’…al-gharib scholars (linguists or experts in confidential terminologies) interpreted it as forced. This is narrated by Ibn Qutaibah, al-Khattabi, Ibn Sayyid and others. It is said the meaning is constant or continual insanity, but al-Mutarrizi exempted it. It is also said it means anger. This is found in Sunan Abi Daud, a narration from Ibn al-A`rabi and interpreted by Imam Ahmad. However, Ibn Sayyid criticizes it saying: If this is so, divorce would never happen for a person will only get a divorce when one is angry.” Abu Ubaisah said: “Ighlaq is constriction.”
Hence, in madhhab al-Syafie, talaq, when one is angry or outraged, is valid. However, we are inclined towards the opinion that if extreme anger results in a person losing his rationality and feelings, akin to an insane person, then the talaq is invalid, however, one must refer to the experts to evaluate it. In both situations, since it is a clear (sarih) pronouncement, it is obligatory for both the husband and wife to refer to the local Syariah Subordinate Court for the Application for the Confirmation of Divorce Declaration because talaq is a serious matter related to the purpose of Syariah, namely to protect the ancestry, family and lineage.
May Allah protect us all from neglecting or taking the issue of talaq lightly.
Wallahu a’lam.
[1] See Hasyiah al-Baijuri ‘ala Syarh Ibn al-Qasim ‘ala Matan Abu Syuja’, 2/263
[3] See Tafsir al-Maraghi, 2/169
[4] See al-Muʿtamad fi al-Fiqh al-Syafie, 4/163-166
[5] See narration by Abu Dawud (2193)