[Ruling on Swearing by “Ḥarām and Ṭalāq”]

Answer—and from Allah is success: The phrase of the oath, “ḥarām and ṭalāq, I did not / I will surely do…,” is, by its very nature, intended to reinforce the asserted statement, to persuade the listener—or even to restrain one’s own self, and the like. That is what is sought by swearing this oath.
What appears is that the swearer does not intend, by this oath, to divorce his wife and separate from her; most often he is not even attending to his wife at the time of swearing. Rather, his intention is directed toward emphasis and confirmation, and “actions are only by intentions.”
Furthermore, the words “ḥarām and ṭalāq” are isolated words, not predicated of the wife—neither explicitly nor implicitly in any grammatically sound way. Were someone, outside the context of an oath, to say merely “ṭalāq, ṭalāq,” or “ḥarām and ṭalāq,” nothing would take effect thereby.
For divorce to be realized, the wording of divorce must be applied to the wife’s name or to an explicit or properly implied pronoun referring to her, in a manner consistent with the rules of grammar and accepted linguistic usage. If the wording is not so applied, the divorce is invalid and no divorce occurs.
Divorce, like marriage, sales, gifts, endowments, vows, etc., is tied to verbal causes. The default is: no divorce—until its cause is realized.
Yes—the oath “ḥarām and ṭalāq” is frequent in some regions. What appears to me is that it has simply entered the speech of those regions and runs on tongues as part of the local idiom learned from childhood.
Analogous to this is the word “wallāh” (“by Allah”), which often slips out on tongues without an intent to swear, in our dialects.
Accordingly, we say: no divorce occurs by such an oath—and likewise we say regarding “ʿalayya al-ṭalāq” (“upon me be divorce”).
To clarify further: “ḥarām and ṭalāq” and “ʿalayya al-ṭalāq” function like “by Allah” or “I swear by Allah,” followed by, “I will surely do…” or “I did not do…,” or similar—showing that what follows is the thing sworn. It is as if the swearer said: “I swear by ‘ḥarām and ṭalāq’,” or “by ‘ʿalayya al-ṭalāq’.”
In reality, nothing in these phrases suspends the wife’s divorce upon an event; there is no conditional particle—neither explicit nor implicitly demanded by the grammar.
There is another kind of swearing by divorce—namely, suspending the wife’s divorce upon a condition in the form of an oath: e.g., “My wife is divorced if I do such-and-such,” or “If I do such-and-such, then my wife is divorced.”
This is the type of oath that warrants careful treatment—not what preceded, for the earlier form contains no mention of the wife, neither explicitly nor by allusion, and contains no suspension whatsoever.
As for this latter type, it does contain both elements: suspension and mention of the wife. What appears to me concerning this oath is that the swearer’s aim and intent, outwardly, is to reinforce and confirm what he is swearing about. This is the primary purpose that prompts the oath. Often the swearer dislikes swearing in this way and is only pressed by circumstance to do so. Outwardly, the one swearing thus does not intend to divorce his wife nor to separate from her; rather, he intends to confirm the statement. For divorce to be valid there must be intention and purpose; this is mentioned in Uṣūl al-Aḥkām as evidence for the requirement of intention in divorce.
However, what is outwardly apparent in unqualified divorce wording directed to the wife is that he does intend to divorce her; a rational person does not effect divorce without intention and purpose. This is how rational divorce works.
Whoever claims he divorced his wife without intending or aiming at divorce—his claim is not accepted, as it contradicts the outward presumption.
But the swearer by this oath is, outwardly, not intending divorce; he intends to confirm his statement.
In al-Maqāṣid al-Ṣāliḥah by our master, the scholar ʿAlī ibn Muḥammad al-ʿAjrī, May Allah have mercy on him, there is what indicates his inclination that swearing by other than Allah carries no legal effect.
In sum: the one who swears by divorce bears no intention to divorce his wife; rather, his intent is to confirm what he has sworn to. This is what appears when swearing by divorce.
If it be said: The swearer may suspend his wife's divorce upon the condition, so the divorce upon occurs upon the condition—and its outward sense is that divorce occurs upon the condition, for a rational, willing person does not utter such words unless he intends and deliberately wants them.
We say: That applies to divorce suspended on a condition outside the oath-form. The two cases differ because their purposes differ.
Swearing by divorce is driven by a purpose: affirming the ruling or report, persuading the addressee. But suspending divorce upon a condition outside an oath is driven by the purpose of effecting divorce upon the occurrence of its condition. That is the outward sense.
Divorce does not occur except with intention—based on the evidences that “there is no deed without intention.” If a husband pronounces divorce upon his wife without intending divorce, she is not divorced—between him and Allah. But if the wife disputes him and litigates, and witnesses testify that he uttered the word of divorce, the judge will rule divorce—based on the outward sense.
In the case of swearing by divorce, there are contextual indicators that he did not intend divorce by that oath. Among them:
1. The context in which such an oath is spoken is the context of affirming a statement to the listener and establishing it in his mind.
2. The divorce suspended in the swearer’s statement is mentioned only for the purpose of persuading the addressee, not for the purpose of divorce nor the intention of separation.
The matter resembles metonymy (kināyah) intended for its necessary implication: such as “So-and-so is much-ashed,” and His—Exalted is He—saying: "And do not make your hand chained to your neck, nor extend it completely…" [Al-Isrāʾ:29]. The point is not the abundance of ash, nor literally chaining or stretching the hand; rather, the point is the generosity implied by much ash, the stinginess implied by a bound hand, and the profligacy implied by an over-extended hand.
Thus divorce in the oath is similar: it is mentioned without intending its meaning, but rather to reinforce the statement—which is the necessary concomitant of swearing by divorce.
Source : Min Thimār al-ʿIlm wa al-Ḥikmah vol.1