Fatwa No : 89771
Ruling on a Husband Saying “Okay, I Will Come” in Response to a Demand for Divorce Over the Phone

Ruling on a Husband Saying “Okay, I Will Come” in Response to a Demand for Divorce Over the Phone

Respected Mufti Sahib, Assalamu Alaikum wa Rahmatullahi wa Barakatuh. I seek a fatwa from you regarding an issue between my husband and me. The situation is as follows: I asked my husband for divorce and requested that he give a conditional divorce, meaning that if he were to contract another marriage, then two divorces would occur each time. At that time, he was on the phone and talking to a customer. He said, “Alright, be patient, I am coming.” I repeatedly asked him to give the divorce immediately, but he said that he was currently on a call and that we would talk later. Later on, he called me and clearly stated, “I will not give a divorce. I only said ‘alright’ so that you would remain quiet. I had no intention of giving a divorce.” Now my questions are as follows: Does merely saying “alright” result in the occurrence of divorce? If the husband has no intention of giving divorce, does divorce still take place? Does a divorce automatically occur merely upon the wife’s request? Is our nikah (marriage) still valid? Kindly provide a clear fatwa according to Hanafi jurisprudence. Thank you.

الجوابُ حامِدا ًو مُصلیِّا ً

In the situation described, when the husband responded to the wife’s demand for divorce by saying, “Alright, be patient, I will come,” this statement merely amounted to a promise to discuss or consider the matter later after coming home. It was not an immediate pronouncement of divorce in response to the wife’s demand. This understanding is further confirmed by the overall context of the conversation and by the husband’s later clarification that he had no intention of issuing a divorce and had only said “alright” in order to calm her down. Therefore, no divorce has occurred as a result of these words. Moreover, it is a well-established principle that a divorce does not take effect merely upon the wife’s demand; rather, a divorce only occurs when the husband actually pronounces it with words that legally effect divorce. Since no such pronouncement was made in this case, the marriage remains intact. Accordingly, the marriage between the questioner and her husband is still valid, and both spouses may continue to live together as husband and wife. However, the questioner is advised that in future disagreements or disputes, she should avoid hastiness in demanding divorce, so as to prevent regret and distress later on.

مأخَذُ الفَتوی

کما فی الدر المختار: هو) لغة رفع القيد لكن جعلوه في المرأة طلاقا وفي غيرها إطلاقا، فلذا كان أنت مطلقة بالسكون كناية وشرعا (رفع قيد النكاحفي الحال) بالبائن (أو المآل) بالرجعي (بلفظ مخصوص) هو ما اشتمل على الطلاق، فخرج الفسوخ كخيار، عتق وبلوغ وردة فإنه فسخ لا طلاق،(ج:3،ص:226)
وفی الھندیۃ: ولو قالت أنا طالق فقال نعم طلقت ولو قاله في جواب طلقني لا تطلق وإن نوى قيل لرجل ألست طلقت امرأتك فقال بلى تطلق كأنه قال طلقت لأنه جواب الاستفهام بالإثبات ولو قال نعم لا تطلق لأنه جواب الاستفهام بالنفي كأنه قال ما طلقت كذا في الخلاصة(ج:1،ص:356