The one who jokes with the words of divorce (1)

The image of joking is: A husband manipulates with the words of divorce before his wife as part of coquetry and mockery: Divorce me. He says: You are divorced. So, she is divorced for real because he addressed her intentionally and by his free will

According to the following Hadith: "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)." (2)

The one who is forced to divorce his wife (3)

The majority of scholars stated that the divorce of the forced is not applicable and held the following as proofs:

1- The Hadith of "Allah has pardoned my people for [their] mistakes and [their] forgetfulness and for what they have done under duress." (4)

2- The Hadith of "There is no divorce or emancipation in case of constraint or duress (ghalaq)," and scholars explained Ghalaq with compulsion.

3- It is an expression that was done without right and by force, so it is not valid as if a Muslim is forced to utter the word of disbelief.

A person is not considered forced but according to three conditions:

First, the impeller should have power over the forced and the forced cannot resist his force.

Second, the forced believes that the threat of the impeller can be done.

Third, the tool which an impeller uses in forcing can cause harm and damage like killing, cutting, painful beating, long detention and likewise.

As for slight beating, taking little money, or short-time detention, it is not a kind of compulsion.

As for the one who is forced legally such as the ruler who compels a husband to divorce his wife, in this case divorce is applicable.

The Hanafi school of Fiqh stated that the divorce of the forced is applicable exactly as the divorce of the one who jokes as reported in the Hadith: "There are three things which, whether undertaken seriously or in jest, are treated as serious: Marriage, divorce and emancipation." So, the forced has the choice to speak with whatever he likes but he is not content with the ruling, and he knows the major and minor evils and he chose the lighter of them.

Likewise the one who jokes with the words of divorce who has the choice to speak but is not content with the ruling.

The Hanafi school interpreted the Hadith of: "Allah has pardoned my people for [their] mistakes and [their] forgetfulness and for what they have done under duress." saying that the Hadith is exclusive, so it cannot include both the world and the Hereafter but it should be in one of them. The majority of scholars stated that the meaning of the Hadith is meant for reckoning in the Hereafter, so it cannot be directed to the world also otherwise it will be inclusive which is not stated by any scholar.

They refuted the comparison made between the divorce of the forced and the divorce of the one who is forced to disbelieve by saying: Apostasy is based on belief which means that an apostate should speak with the words of disbelief according to his own belief, and the existence of the sword over his head is a clear proof that he does not believe in what he is saying and it is a false speech unlike the one who is forced to divorce his wife who has full choice and intention.

The correct view, and Allah knows best, is that the divorce of the forced is not applicable.

Ibn Al Qayyim (may Allah bestow mercy on his soul) said: "The difference between the forced and the one who jokes is that the one who jokes intends the word of divorce but is not content with the result which is not due to him but he only seeks the reasons without achieving the results. As for the rulings and results, they are due to the Lawgiver whether a person intends or does not intend to do them. The ruling shall be based on the intention of a person in case of his sanity and charging. When a person intends it, the Lawgiver judges him whether he intends or not unlike the sleeping person, the insane, and the intoxicated who do not have sound intentions and not charged, so their words are nonsense like the words of children who do not understand the meanings of words and do not intend them. The core of the issue is the difference between the one who intends the words while he knows the ruling without satisfying its result and the person who does not intend the word and does not know its meaning, so the types which the Shari`ah considers are four:

1- To intend the result without uttering it.

2- Not to intend the meaning or the result.

3- To intend the meaning without the result.

4- To intend the meaning and the result.

The first two types are meaningless while the last two are taken into consideration. That is what I understand from the Qur'an and the Sunnah as well as the rulings, thereby the words of the forced are nonsense and are not considered. The Qur'an indicated that the one who is forced to utter the words of disbelief is not a believer and the one who is forced to embrace Islam is not considered a Muslim. The Sunnah denoted that Allah (Glory be to Him) pardons the forced for the words which he utters, as for his actions, they are controversial. The actions which are made permissible by compulsion are forgiven such as eating during the daytime of Ramadan, working during the time of Salah, and wearing the sewed clothes during Ihram, whereas the actions which are not permitted by compulsion are not forgiven such as killing a person and destroying his money.

The difference between sayings and actions under compulsion is that when actions are done, their bad consequences stay with them unlike words which can be cancelled and can be considered like the words of the sleeping and the insane. So, the bad consequence results from the action, which are not permitted even under compulsion, are confirmed unlike the bad consequence results from words which are not confirmed unless a person knows the words and says them by free will." (5)

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(1) See: Al Bahr Ar-Ra'iq 3/263, Al Mabsut 24/106, Al Majmu` Sharh Al Muhadhdhab 17/100, I`anat At-Talibin 4/5, Rawdat At-Talibin 8/54, and Hashiyat Ar-Rawd Al Murbi` 6/490.

(2) Reported by Abu Dawud in the chapter of the divorce of the one who jokes 2196 - 2/225 and Al Albany graded it as good, and At-Tirmidhy in the chapter on seriousness and joking in divorce, Hadith No. 1184 - 3/490 and said: This Hadith is Hassan Gharib (a good Hadith that is strange to come from this chain of narration) which is confirmed by the Prophet's Companions and others, and Ibn Majah in the chapter on the one who divorces, marries, or takes his wife back in marriage, Hadith No. 2039 - 1/658, and Ad-Daraqutny in the chapter on dowry, Hadith No. 45 - 3/256, and Al Albany graded it as good in Irwa' Al Ghalil, Hadith No. 1826 - 6/224.

(3) See: Al Bahr Ar-Ra'iq 3/264, Tabyin Al Haqa'iq 2/195, Sharh Al Fath Al Qadir 3/488, Hashiyat I`anat At-Talibin 4/9, Al Majmu` Sharh Al Muhadhdhab 17/65,

Hashiyat Ar-Rawd Al Murbi` 6/489, and Al Iqna` on the Fiqh of Imam Ahmad 4/4.

(4) Reported by Ibn Hibban in his Sahih in the chapter on the virtue of the nation, Hadith No. 7219 - 16/202 Shu`ayb Al Arna'ut said: its chain of narration is authentic according to the condition of Al Bukhari, and Ibn Majah reported it in the chapter on the divorce of the forced and the one who forgets, Hadith No. 2045 - 1/659, and Ad-Daraqutny in the book of vows, Hadith No. 33 - 4/170, and Al Albany graded it as authentic in the abbreviation of Irwa' Al Ghalil, Hadith No. 82 - 1/17.

(5) See Zad Al Ma`ad 5/206 with slight abbreviation.

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