Academic Illuminations I: Intention in Divorce

On occasion, there is an issue that I ponder over for years, and, despite how many people I seem to ask, no one seems to have a very good answer. This continues until one day, someone does more than merely wave their hands and gives a truly convincing answer. When the illumination finally does come, it feels like being reunited with a long lost beloved. I am usually elated for days and subject the usual victims (who will stay listening long enough to hear me through) to the excitement. Over the past year, I have had at least two major illuminations, and a couple minor ones as well, alhamdulillah.

The Problem

The Shafi'i (and probably every other major) school of Islamic Law says that if a man divorces his wife with an explicit expression (e.g. "You're divorced", or "I divorce you"), there is no need for an intention. Thus, even if he did not intend divorce, his wife is actually divorced. There were a number of scenarios that just didn't seem to fit. The clearest of these is as follows: a man divorces his wife, and, during her `iddah, she calls him up and starts to bother him. He tells her, "You are divorced, so why don't you leave me alone?", meaning by this that there is no longer a relationship between them such that she should continue to nag him. Scholars concur that this does not count as a second divorce since he was merely informing her that he had divorced her, and not initiating a new divorce. However, if his intention were different, then the very same statement could indeed mean the initiation of a new divorce. There is no getting around it: intention matters. A number of students of knowledge tried waving their hands around the issue, but the problem remained with me.

The Illumination

Finally, Sheikh Amjad Rasheed visited from Hadramaut and clarified the issue. The Shafi'is say that, with regards to divorce, intention is of three types: intending to utter the words of divorce, intending their meaning, and intending their effectiveness. Of these, only the third is irrelevant. Thus, if a man mistakenly utters an explicit pronouncement of divorce, or utters it explicitly, but intends some other meaning that can be borne out lexically or semantically, then the divorce is not effective. However, if a man intentionally utters an explicitly pronouncement of divorce and does not intend any other meaning, yet does not intend the divorce to actually be effective, because, for example, he was just joking, then this is irrelevant, and his wife is divorced from him. All of this is the moral ruling (Ar. al-hukm diyanatan). If the issue is raised to an Islamic judge, he looks for diverting evidence (Ar. sarif) to support the man's claim that the utterance or meaning of the statement did not entail the initiation of a divorce.