Assalamu alaikum Warahmatullahi Wabarakatuh
Do the following statements when said with the intention of talak constitute a Kinayah breaking the bond of marriage? If not, please can you explain why as they appear to mean Talak?
Please can you provide a brief explanation of Kinayah which breaks the marriage bond?
"I take an oath that you are not my wife",
"you are not my wife",
"I am not your husband", "
"There is no Nikaah between the two of us..."
" I have not married you",
"There is no Nikah between us",
"I have no need for you".
May ALLAH in his extreme munificence reward you according to HIS SHAAN for your Khidmaat to the Deen.
Jazakallahu Kharian Wa Ahsanul Jaza
Wa Alaykum Salaam Warah Matullahi Wabarakatuh
Al-jawab billahi at-taufeeq (the answer with Allah's guidance)
Talaq is pronounced in two ways: direct expression (Sarih) and indirect expression (Kinayah). Direct expressions includes a man's statement, "You are divorced," "You are a divorced woman (Mutallaqah)," and I have divorced you." Talaq takes effect with these expressions and is of the retractable form (Raji').
The second category of statements are those in which divorce does not occur with figurative meanings (Kinayah) unless there is an accompanying intention or circumstantial evidence (i.e. a court of law or an Islamic judge will base his verdict on the circumstance in which such statements were made. As such, if a man was to pronounce allusive words of divorce in anger or whilst discussing divorce with his wife, a legal judge would rule that his marriage is over, even if he claimed he had no intention of divorcing his wife. This is known as Qada'an (legally binding). However, if he is absolutely sure that he had no intention of divorcing his wife with such statements, then this will be admissible for what is between him and Allah. This is known as Diyanatan (religiously obligatory). Hence, his marriage will still be considered to be valid.)
(Al Hidayah, Chapter: Pronouncing divorce)
The statements you mentioned above are Kinayah (allusive), so if the husband intended divorce with such figurative expressions or spoken in the context of divorce, then a single Talaq Ba'in (irrevocable divorce) will take effect. If three are intended, three takes effect, and if he intends two, a single irrevocable Divorce takes effect. (Al Hidayah, Chapter: Pronouncing divorce)
However, statements such as, "I take an oath that you are not my wife","you are not my wife", "I am not your husband", are Kinayah (allusive) and if divorce was intended with them then Talaq Raji' (revocable divorce) will take place and not Ba'in. (Ahsanul Fataawa Vol.5 Pg.142)