Kinaya (allusive speech in fiqh)

Kinaya, in lexical sense, is speaking so as to indicate what is meant, like rafath and ghaʾit; in law it is speech whose meaning is hidden by use although its literal sense is clear, so it needs intention or what stands for it, such as the circumstances ¹.

Sarih, the explicit word, is one that has no attachments and is understood without intention; majaz is a word used for what it was not set for, on a link between them; and taʿrid is an implied sense without naming it, as in saying I came to greet you ^{1 2}.

The Shafi'is have a rule: a word that recurs in the sacred law until it is known is explicit; one that occurs once in the law but is not known to jurists has two views, the sounder joining it to explicit words; and a word that is common usage but not in the law has two views, the sounder joining it to kinaya. Most jurists hold a word explicit only when it is used for nothing but what it was set for ².

A unilateral act such as divorce, emancipation or release is concluded by kinaya with intention, as by an explicit word. A contract needing offer and acceptance and witnesses, such as marriage, is not concluded by kinaya, since the witness does not know the intention. Writing for manumission and khul' are concluded by kinaya with intention; sale and lease have two views, the sounder that they are valid ³. The Hanbalis differ: al-Qadi allowed kinaya only in divorce and emancipation, while others allowed it in all contracts except marriage ^{3 4}.

Divorce kinaya are numerous and cannot be counted. Most jurists agree on many, such as: you are irrevocably divorced, you are unlawful to me, free of me, freed, divorced, cut off, your affair is in your hand, choose, observe the waiting period, cleanse your womb, I have released you, your rope is on your neck, go out, leave. They differed on 'I have released you' and 'I have parted from you', and the majority held both are kinaya ^{3 4}.

The Hanafis divide them into three classes. The first five words, your affair is in your hand, choose, observe the waiting period, cleanse your womb, you are one: the speaker is not believed to deny intention, and divorce falls in both discussion and anger. The second five, free of me, pure, cut, separated, unlawful: the speaker is believed in anger or contention but not when divorce was mentioned. The rest are believed in all cases ⁵.

The Malikis divide them into apparent and hidden. Apparent: cut, your rope is on your neck, one irrevocable; they bind three divorces regardless. I have released you binds three unless fewer is intended. Hidden: enter, go, leave, which bind a single irrevocable divorce if so intended and three after consummation otherwise. Some phrases, such as you are to me like carrion, bind three after consummation; a reproach is taken as showing no intention to divorce ^{5 6}.

The Shafi'is hold that divorce by kinaya falls only with intention, and that words which bear divorce only by strained reading have no effect even if intended, such as may God bless you. The number of divorces follows the number intended ⁶. The Hanbalis divide them into apparent kinaya, which are words set for final separation, and hidden kinaya, which are set for one divorce unless more is meant; no kinaya divorce falls without intention ^{6 7}.

Intention must accompany the kinaya word. If one speaks without intention and intends later, nothing falls; but the circumstances, such as anger, a quarrel, or answering a request for divorce, stand for intention. A man in such circumstances who denies intent is believed between himself and God but not by the court. Apparent kinaya bind three even with intention of one, as reported from Ali, Ibn Umar, Zayd ibn Thabit (may God be pleased with him), Ibn Abbas and Abu Hurayra (may God be pleased with him) ⁷.

In ila', kinaya is any word that can mean intercourse or other things and is not chiefly used for intercourse. Kinaya in zihar include: you are to me like my mother's eye or head. Kinaya in slander include: you lewd one, you wicked one. Kinaya in waqf include: I gave in charity, I forbade, I made it. In khul' they include: I have freed you, I have released you, I have cut you off, and khul' is concluded by kinaya only with the speaker's intention ^{7 8}.