Question:
Assalamualaikum ustaz. Is the talaq valid if a husband stated his intention for divorce through applications such as WhatsApp or other social medias such as messenger, Instagram and others?
Answer:
Waalaikumussalam wrt. wbt.,
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.
Talaq according to the 4th Edition of Kamus Dewan means a release from the bonds of marriage with the utterance of talaq, divorce and others by the husband. [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]’ means reconcile without any intention of ever hurting her. However, with the intention of islah (improvement) and doing good with her. Ans the phrase ‘or release [her] with good treatment’ after three times talaq, then give her, her rights.” [3]
Scholars divided talaq in terms of the clarity of the utterance of talaq into two, which are sorih clear and kinayah of which there is a possibility it means talaq or otherwise. For sorih phrase, there are three words if uttered then it automatically considered as talaq which are divorce, separate and letting go.
Examples of sorih utterances are ‘I let you go’, ‘you’re divorced’ or ‘I’m separating from you.’ If these utterances are made by the husband to his wife, then they are considered divorced. Examples of kinayah utterances are ‘go back to your family,’ ‘get away from me’ and others. However, such utterances depend on the intention of the husband. If he said as such to divorce his wife, then they are considered divorced. [4]
Talaq is valid only when it is uttered by the husband to his wife whether it is sarih (clear), even if it isn’t intentional and kinayah (figurative) if it is intentional. There is no exception in syarak if the talaq is uttered regardless of whether it is during normal times or in arguments or as a joke. This is based on a hadith:
- From Abu Hurairah RA, Rasullullah PBUH said:
ثَلاَثٌ جِدُّهُنَّ جِدٌّ وَهَزْلُهُنَّ جِدٌّ النِّكَاحُ وَالطَّلاَقُ وَالرَّجْعَةُ
“There are three things which, whether undertaken seriously or in jest, are treated as serious: marriage, divorce and taking back a wife after a divorce which is not final.” [5]
As we stated above, the utterance of talaq is divided into two which are sarih (clear) and kinayah (figurative). For sarih utterances, there are three words if uttered, then the talaq is valid, the words are divorce, separate, and let go. Imam al-Baijuri said:
“Talaq sorih doesn’t need for intention. The intention is of getting a divorce. For there is no ihtimal other than talaq for it.” [6]
While kinayah utterances are unclear. Whether it is considered a divorce depends on the intention of the husband. Ibnu al-Qasim al-Ghazzi stated:
“Kinayah is any utterance that could mean talaq or other meaning. And it needs for the intention. If he intends to divorce when he utters it the kinayah, then they are considered divorced. If not, then they aren’t considered as divorced.” [7]
According to the above question, we state that this type of talaq is included as kinayah and not sarih. It is in line with the decision of the 59th National Muzakarah Fatwa Committee for Religious Affairs Malaysia, talaq in writing that is clearly from a husband for his wife specifically through fax, SMS, email and others are kinayah talaq and it is valid if it is accompanied with the intention. All divorce myst be presented to the shariah court to rule the talaq is thabit. Talaq through modern communication devices is a divorce that doesn’t follow the manners of divorce set by syarak.
The ruling of divorce through WhatsApp is valid if it fulfils the following conditions:
- The sender of the WhatsApp message is from the husband.
- The recipient of the WhatsApp message is the wife.
- The WhatsApp message is read by the wife.
- The Husband intentionally wanted to divorce his wife
Furthermore, Dar al-Ifta’ al-Misriyyah stated the same where talaq sent through a short message (SMS) or others are included as talaq kinayah. Talaq such as this isn’t valid unless the husband intended to divorce his wife. The reason is that short messages are included as news (information) that can either be true or false. When matters such as this happen, the husband will be asked about his intention. If he intended to divorce his wife, then it is considered (the talaq is valid). If it is the opposite, then it isn’t considered. [8]
Thus, we state that talaq isn’t valid if the husband didn’t intend to divorce his wife when he send the message. However, if the husband intended to divorce his wife, then the talaq is valid. However, such matters should be referred to the shariah court to verify whether the divorce is valid or not. If the husband confesses in front of a judge, then the talaq is considered valid and then the couple is declared divorced.
May Allah SWT grant us happiness in marriage and distance us from the collapse of marriage. Amin.
Wallahu a’lam.
[1] See: https://prpm.dbp.gov.my/cari1?keyword=talak
[2] Surah al-Baqarah :229
[3] See Tafsir al-Maraghi, 2/169
[4] See al-Fiqh al-Minhaji,4/123
[5] Riwayat Abu Dawud (2194), al-Tirmidzi (1184) and Ibnu Majah (2039)
[6] See Hasyiah al-Baijuri ‘ala Syarh Ibn al-Qasim ‘ala Matan Abu Syuja’, 2/263
[7] See Syarh Ibnu al-Qasim ‘ala Matan Abi Syuja, 2/264
[8]Seehttps://www.dar-alifta.org/Home/ViewFatwa?ID=14255&title=الطلاق%20بواسطة%20رسالة%20بالهاتف%20المحمول%20-%20أمانة%20الفتوى