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Tuesday, 19 June 2012

Text messaging one that they are divorced.

Q: is it true that in Islam a man can send his wife a text message saying you are divorced?

A: All-Praise is due to Allah,
The fuqaha’ are unanimously agreed that divorce may take place in writing, because divorce may be understood from writing letters, so it is akin to speaking, and because writing may take the place of words uttered by the writer. The evidence for that is the fact that the Prophet (peace and blessings of Allaah be upon him) was commanded to convey the message, so he conveyed it sometimes by speaking and sometimes in writing. So the writing by means of which divorce takes place is clear writing, such as writing on a paper, a wall or on the ground, in a manner that can be understood and read. As for writing that is not clear, such as writing in the air or in water or anything that cannot be understood and read, this does not count as a divorce, because this writing is like muttering that cannot be heard. End quote.

Al-Mawsoo’ah al-Fiqhiyyah, 12/217

If the husband writes a message to his wife saying “You are divorced,” whether that is via a mobile phone or on a piece of paper or via e-mail, then it depends on his intention at the time of writing. If he was determined to divorce her, then it counts as a divorce, but if he wrote that without the intention of divorce, rather he wanted to make his wife upset or some other reason, then it does not count as a divorce.

Ibn Qudaamah (may Allaah have mercy on him) said: Divorce does not take place if the word of divorce (talaaq) is not uttered, except in two cases, one of which is when a person is unable to speak, such as a man who is mute; if he issues a divorce by means of gestures, then his wife is divorced.

The second case is if the divorce is written; if he intended it as such then his wife is divorced. This is the view of al-Sha’bi, al-Nakha’i, al-Zuhri, al-Hakam, Abu Haneefah and Maalik, and it is the view that is narrated from al-Shaafa’i.

If a man writes it without intending divorce, then it does not count as such according to the majority of scholars, because writing is open to interpretation, and he may have intended just to test the pen, or improve his handwriting, or upset his wife, without intending it (as a divorce). End quote from al-Mughni, 7/373

It says in Mataalib Ooli al-Nuha (5/346): If the one who wrote the words of divorce says: I only intended to improve my handwriting thereby, or I only intended to upset my wife, that is to be accepted, because he knows best what his intention was, and he intended something that may be interpreted as other than divorce… and if he intended to upset his wife by making her think that he was divorcing her when in fact that was not the case, then he was not intending to divorce her. End quote.

Shaykh Ibn Baaz (may Allaah have mercy on him) was asked: a man was sitting with his sister and his wife and he asked his sister to bring him a pen, then he wrote on a paper: “Talaaq, talaaq (divorce, divorce)” without referring to anybody. His sister got angry and took the pen, then she wrote three times, Talaaq, talaaq, talaaq (divorce, divorce, divorce).” Then she threw the paper to his wife and said to her: “Look, is what I have written correct?” But he did not intend to write these words for his wife.

He replied: This divorce does not count as such for the wife mentioned, if he did not intend thereby to divorce her. Rather he was simply writing or he intended something other than divorce, because the Prophet (peace and blessings of Allaah be upon him) said: “Actions are but by intentions…”

This view was held by very many of the scholars and some of them narrated that it was the view of the majority, because writing is like a metaphor, and a metaphor does not count as a divorce unless it is intended as such, according to the more correct of the two scholarly opinions, unless the writing is accompanied by evidence that the intention was divorce, in which case it counts as such.

(See Islam Q&A Fatwa: 72291)

And Allah knows best...

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