Regulations of Kinaa Divorce in Islamic Jurisprudence
Kinaa divorce differs significantly from explicit divorce, as it requires an intention due to the ambiguous nature of its phrasing. However, some scholars, including those from the Hanafi and Hanbali schools, argue that contextual evidence may suffice in place of intention. For instance, if a husband says to his wife during an argument, “Go back to your family,” they consider this an instance of divorce even if there was no explicit intention stated.
Conversely, scholars from the Maliki and Shafi’i schools, along with certain Hanbali scholars, maintain that contextual evidence does not replace the need for intention in cases of Kinaa divorce. They assert that the husband must internally intend the divorce before using any Kinaa phrase that could carry alternative meanings; this view is generally regarded as more robust.
Kinaa Divorce in Legal Context
The Jordanian Personal Status Law aligns with the opinion that intention is a prerequisite for executing a Kinaa divorce. Therefore, the husband must have the intention of divorce when pronouncing a Kinaa phrase; otherwise, the divorce does not take effect.
As outlined in Article 84 of the Jordanian Personal Status Law No. 36 of 2010: “Divorce occurs through explicit phrases without the need for an intention, while Kinaa phrases—which suggest the meaning of divorce but are ambiguous—require intention to be effective.”
Definition of Divorce
Divorce is defined as the dissolution of the marriage bond through specific expressions that indicate such a separation, either immediate (as in irrevocable divorce) or eventual (as in revocable divorce after the waiting period), using particular terminology. The validity of divorce hinges on certain conditions that must be met, including requirements concerning its phrasing. Types of divorce based on phrasing are as follows:
- Explicit Divorce
This form of divorce is understood directly from its phrasing without ambiguity. Phrases like “You are divorced,” “I divorce you,” or “You are officially divorced” unmistakably convey the intended meaning. There is no necessity for intention here; the divorce is automatically effective unless contextual factors indicate otherwise, such as the individual being coerced or mistaken.
- Kinaa Divorce
Kinaa, in linguistic terms, refers to expressing one notion while implying another. Kinaa divorce, therefore, consists of phrasing that is not specifically designated for divorce alone, allowing for multiple interpretations. For instance, a husband might say to his wife: “I have let you go,” “You are released,” “You are to return to your family,” or “You must observe your waiting period.” These phrases can imply divorce but may also signify different meanings, warranting specific rulings that differ from explicit divorce.
Scenarios Where Divorce Does Not Occur
Divorce is recognized only when pronounced by a mature, rational, consenting individual and does not take effect in the following circumstances:
- Coerced Divorce: A divorce that occurs under duress is considered invalid.
- Divorce by an Intoxicated Individual: The words of an intoxicated person are treated similarly to coercion as they cannot fully comprehend what they are saying.
- Divorce by an Angry Individual: Not all instances of anger render the divorce invalid, but if the anger overwhelms the person’s capacity to think clearly, the divorce will be disregarded.
- Divorce by Erroneous, Unaware, or Forgetful Individuals: As cited by the Messenger of Allah (peace be upon him) in relation to Ibn Abbas (may Allah be pleased with him): “Allah has excused my Ummah for mistakes, forgetfulness, and things done under compulsion.”
- Divorce by an Insane Person or One Suffering from Mental Illness.