Indexed OCR Text

من جيران الزوجين، ولا يشترط رضاء الزوجين بما يحكمان به. (الأحوال
الشخصية: ٤٠٨)
The Malikīs state that it is essential for the following four conditions to
be found in an arbiter:
1. Has to be a male.
2. Has to be just.
3. Has to be upright.
4. Has to know the rules and regulations with regard to the task
for which he is being appointed.
Thus, it is not permissible to appoint a woman, a child, a lunatic, an
unbeliever, a flagrant sinner and a foolish person. Similarly, a person
who does not know the rules related to reconciliation and discord
cannot be appointed as an arbiter.
If there are two arbiters from the families of both partners and it is
possible to appoint both of them, it will be obligatory to appoint them.
It will not be permissible for the qādī to appoint outsiders. It is
preferable for both arbiters to be neighbours of the husband and wife.
It is not a prerequisite for both partners to agree with the verdict of
the arbiters.1
الموسوعة الفقهية الكويتية:
ذب الفقهاء إلى أنه يشترط فى الحكمين العدالة، والفقه بأحكام النشوز،
واختلفوا في اشتراط الذكورة والحرية، وذلك فى الجملة، ولهم تفصيل:
قال المالكية: شرط الحكمين الذكورة والرشد والعدالة والفقر بما حكما فيه،
وبطل حكم غير العدل، وبو الفاسق والصبي والمجنون بإبقاء أو بطلاق بغير
مال أو بمال في خلع، وبطل حكم سفيه "وبو المبذر فى الشهوات ولو مباحة
على المذبب" وحكم امرأة، وحكم غير فقيه بأحكام النشوز ما لم يتشاور
1 Abridged from Kitab al-Faskh wa at-Tafrīq, p. 157.
239

العلماء في ما يحكم به، فإن حكم بما أشاروا به عليه كان حكمه نافذاً.
(الموسوعة الفقهية الكويتية: ١١/٤٧، وزارة الأوقاف والشؤون الإسلامية)
Allāh ta ālā knows best.
Annulment because of the husband humiliating and beating his wife
Question:
Two women left their husbands and went to their fathers' house. The
husband of the first wife had been beating her severely. It became
painfully difficult for her to continue living with him. The husband of
the second wife had been humiliating and insulting her verbally. He
constantly ridiculed her and hurled verbal abuses at her. She says that
it is very hard to live with him.
Are these actions included in the definition of nushūz (antagonism)? Is
the husband obliged to pay for the maintenance of his wife for the
period which she left him? If they have young children, is the husband
obliged to pay for their maintenance as well? Can these offences be
furnished as reasons for wanting an annulment? In other words, do
these women have grounds for asking for a separation?
Answer:
When a husband beats his wife severely, inflicts other tyrannies on
her, ridicules and abuses her verbally, and uses harsh words against
her to the extent that it becomes difficult for her to preserve her
dignity; then all these actions are included in nushuz. Both women will
have the right to present their cases before a qādī or jam'īyyatul
'ulama' and ask for an annulment. The 'ulama' will investigate the
matter and then have the right to annul both marriages.
Both women went to their fathers' houses because of the oppressions
of their husbands. They will therefore not be classified as nashizah
(recalcitrant). They will be eligible for maintenance. It is the
responsibility of the husband to pay for the maintenance of the
children who have not reached the age of puberty. He will therefore
pay for it for the duration of the wife's absence.
Kitab al-Faskh wa at-Tafrīq:
Islam most certainly does not permit the beating of a wife in this
manner. If a husband is guilty of such behaviour, the woman has the
right to present her case before a qādī and ask him to restrain the
husband. This is the view of Hanafi jurists. Malikī jurists are of the
view that the woman has the right to ask for a divorce.
240

مذبب الحنفية أن الزوج الذي يضار زوجته بنحو الضرب الأليم المبرح
يستحق التعزير، وللزوجة أن ترفع أمربا إلى القاضي طالبته تعزيره، ومذہب
المالكية أن للزوجة في هذه الحالة أن تطلب إلى القاضي أن يطلقها من، وأخذ
المشروع المصري أخير المذبب المالكية في بذه المسئلة، وسنستوفي بحث بذا
الموضوع فى الكلام على فرق الزوج. (الأحوال الشخصية: ١٥٤)
If the beating goes beyond the limits, and the woman is fed-up and
therefore asks for a separation; the Hanafi gadī must investigate the
matter. After conducting his investigations and obtaining evidence, if
he is convinced that the woman is true in her claims, then he may
issue a verdict in line with the Malikī jurisprudence.
The statements of the Malikī jurists are as follows:
ومذهب المالكية أن الزوج إذا كان يضار زوجته بالضرب ونحوه كالإكراه على
فعل أمر حرام كان لها أن ترفع أمربا إلى القاضي، وكان لها أن تطلب من
القاضي تأديبه وزجره ليكف أذاه عنها كما أن تطلب التطليق من، فإن
طلبت من القاضي كفر عنها وعظ أول الأمر فبين له ما يجب على الزوج من
حسن معاشرة زوجته وما عسى أن يترتب على سوء العشرة من التفريق
الشمل وضياع الولد إن كان، فإن أجدت الموعظة فبها، وإن جائته ثانية تخبره
أنه لم ينته ضربه، فإن استمر الأشكال بينهما بعث حكمين، ويجب على
حكمين أن يسعيا في إصلاح ذات بينهما وتأليف قلبيهما على المودة وحسن
المعاشرة، فإن تعذر عليهما ذلك نظرا فيمن تجيئ الإساءة من جهته إلى
صاحبه، فإن كانت الإساءة تأتي من قبل الزوج طلقا الزوجة عليه بغير عوض.
(الأحوال الشخصية ص: ٤٠٧، بحواله "كتاب الفسخ والتفريق": ١٤٩)
241

الموسوعة الفقهية الكويتية:
الشقاق بنا: بو النزاع بين الزوجين، سواء أ كان بسبب من أحد الزوجين أو
بسببهما معاً أو بسبب أمر خارج عنهما، فإذا وقع الشقاق بين الزوجين وتعذر
عليهما الإصلاح، فقد شرع بعث حكمين من أبلهما للعمل على الإصلاح
بينهما وإزالة أسباب النزاع والشقاق بالوعظ وما إليه، قال تعالى: "وإن خفتم
شقاق بينهما فابعثوا حكماً من أبله وحكماً من أبلها، إن يريدا إصلاحاً يوفق
الله بينهما." ومهمة الحكمين بنا الإصلاح بين الزوجين بحكمة وروية.
وقد اختلف الفقهاء في مهمة الحكمين. وذبب المالكية إلى أن واجب
الحكمين الإصلاح أولا، فإن عجزا عنه لتحكم الشقاق كان لهما التفريق
بين الزوجين دون التوكيل، ووجب على القاضي إمضاء حكمهما بهذا التفريق
إذا اتفقا عليه وإن لم يصادف ذلك اجتهاده. (الموسوعة الفقهية الكويتية:
٥٣/٢٩، التفريق للشقاق، وزارة الأوقاف، الكويت)
Majmū ah Qawānīn Islāmī:
If the husband speaks offensively to the wife, is vulgar and abusive to
her or beats her severely then she will have the right of separation.
وَلَا تُمْسِكُوْهُنَّ ضِرَارًا لِتَعْتَدُوْا. وَمَنْ يَّفْعَلْ ذُلِكَ فَقَدْ ظَلَمَ
نَفْسَهُ.
Do not retain them to harass them so that you may
oppress them. Whoever does this shall indeed harm his
own self.1
Now what can be worse than beating the wife severely and abusing her
verbally !? Rasūlullāh sallallahu 'alayhi wa sallam prohibited us from
striking in a manner which leaves marks on the body. Beating, abusing
verbally, etc. are actions which are against the accepted principles of
Neither harm nor transgression is permitted in) لاضرر ولا ضرار في الإسلام
1 Sūrah al-Baqarah, 2: 231.
242

Islam). In such a situation, the woman has the right to present her case
before a qādī. Once the latter investigates the matter, he will issue a
verdict by convincing the woman to continue living with her husband,
obtaining a guarantee from the husband that he will desist from
harming her, or separating the two.1
Kifāyatul Muftī:
If the tyrannies of the husband are unbearable and he refuses to issue
a divorce, and the woman fears for her chastity and dignity, she may
go to a Muslim court and have her marriage annulled. Once she
obtains an annulment and completes her 'iddah, she may marry
someone else.2
الدر المختار:
لا نفقة لأحد عشر .. وخارجة من بيته لغير حق وبي الناشزة. وفى الشامية:
قوله "بغير حق" ذكر محترزه بقوله: بخلاف ما خرجت الخ، وكذا ہو اختراز
عما لو خرجت حتى يدفع لها المهر، ولها الخروج في مواضع مرت فى المهر.
(الدر المختار مع الشامي: ٥٧٦/٣ باب النفقة، ط: سعيد)
البحر الرائق:
قوله (ولو مانعة نفسها للمهر) أي يجب عليه النفقة ولو كانت المرأة مانعة
نفسها بحق كالمنع لقبض مهربا، والمراد من المعجل إما نصاً أو عرفاً كما
أسلفناه، لأنه منع بحق، فكان فوت الاحتباس لمعنى من قبله، فيجعل كلا فائت.
(البحر الرائق: ١٧٩/٤ باب النفقة. وكذا فى مجمع الانهر: ٤٨٩/١. والفتاوى
الهندية: ٥٤٥/١، باب فى النفقة)
1 Majmū ah Qawānīn Islāmī, p. 199, register 81.
2 Kifāyatul Muftī, vol. 6, p. 152.
243

Fatāwā Rahīmīyyah:
It is the husband's responsibility to provide for his children's
maintenance. If the wife is breastfeeding the child, she can ask her
husband for compensation.1
Allāh ta'ālā knows best.
When a Shi'ah husband leaves his wife
Question:
A Sunnī woman married a Shi'ah man. After one night's marriage, he
said to her: "Enough! I am gone. I am not coming back." What must she
do?
Answer:
The verdict of the 'ulama' is that in the light of his beliefs, a Shi'ah is
not a Muslim. He believes in the distortion of the Qur'an, vilifying the
Sahābah, the concept of imamat, etc. - all of which are blasphemous
beliefs. Therefore, in this case, the marriage was not even valid in the
first place. However, because an external form of marriage was
realized, she must annul her marriage through the jam'īyyatul 'ulama'.
She may marry someone else after the expiry of her 'iddah.
The proofs for this ruling can be found in volume three, page 598 of
Fatāwā Dār al-'Ulūm Zakarīyyā.
Allāh ta'ālā knows best.
When a husband does not inquire about his wife for a long period of time
Question:
A woman has been married for about fourteen years and she also has
children. However, her husband has not been bothering about her and
the children for the past nine years. He did not make any
arrangements for their maintenance and has given up coming to the
house. What is the ruling of the Shari'ah in this regard?
Answer:
When a husband does not inquire about his wife and children for a
long time, does not make arrangements for their maintenance, and
gives up coming to the house; then the wife has a Shari ah-bestowed
right to present her case to a Sharī'ah judge or jam'īyyatul 'ulama'.
1 Fatāwā Rahīmīyyah, vol. 8, p. 451.
244

After investigating the matter, they will compel the husband to make
arrangements for his family's maintenance. If he refuses, they will
instruct him to divorce his wife. If he still refuses, they must annul the
marriage. Once the woman completes her 'iddah, she may marry
someone else.
فتاوى الشامى:
قال في غرر الأذكار: ثم اعلم أن مشايخنا استحسنوا أن ينصب القاضي الحنفي
نائباً "من مذيبه التفريق" بينهما إذا كان الزوج حاضراً وأبى عن الطلاق، لأن
دفع الحاجة الدائمة لا يتيسر إلا بالاستدانة، إذ الظابر أنها لا تجد من يقرضها
وغنى الزوج مآلاً أمر متوبم، فالتفريق ضروري إذا طلبته، والحاصل أن
التفريق بالعجز عن النفقة جائز عند الشافعي حال حضرة الزوج، وكذا حال
غيبته مطلقاً. نعم يصح الثاني عند أحمد كما ذكره في كتب مذيبه وعليه يحمل
ما في فتاوى قارئ الهداية حيث سأل عمن غاب زوجها، ولم يترك لها نفقة
فأجاب: إذا قامت بينة على ذلك وطلبت فسخ النكاح من قاضٍ يراه ففسخ
نفذ وسوقضاء على الغائب، وفي نفاذ القضاء على الغائب رويتان عندنا، فعلى
القول بنفاذه يسوغ للحنفي أن يزوجها من الغير بعد العدة. (فتاوى الشامى:
٥٩٠/٣، مطلب فى فسخ النكاح، سعيد)
Observe the fatwa of 'Allāmah Sa īd ibn Siddīq Fulātī Mālikī:
أما الجواب عن المتعنت الممتنع عن الإنفاق ففي مجموع الأمير ما نصه: إن
منعها نفقة الحال فلها القيام، فإن لم يثبت عسره أنفق أو طلق، وإلا طلق
عليه. قال محشّيه: قوله وإلا طلق أي طلق عليه الحاكم من غير تلوم إلى أن
قال: وإن تطوع بالنفقة قريب أو أجنبي ... قال ابن عبد الرحمن: لا مقال لها،
لأن سبب الفراق بو عدم النققة قد انتفى. (الحيلة الناجزة: ص ١١٥، ١١٩، ط:
دار الاشاعت، دیوبند)
245

Majmū ah Qawānīn Islāmī:
If a husband does not pay for the maintenance of his wife despite
having the means, and the wife cannot make her own arrangements
for earning a living while preserving her dignity and chastity, and
there is no one else to see to her day-to-day needs; or, she can make
arrangements after much difficulty but she has a strong fear of falling
into sin in the case where she lives away from her husband, and the
husband does not agree to khula' or divorce - then in the presence of
such a dire situation, she can make a request to a qādī to effect a
separation. The qādī will undertake a full investigation, call up
witnesses, etc .. If her claims are true, the qadi will instruct the
husband to fulfil the rights of his wife or divorce her; if not, he will
personally effect a separation. If the husband does not accept any of
the options, the gadī will separate the two. This separation will be
classified as a revocable divorce.1
Further reading: al-Hīlah an-Nājizah, p. 63; Kitab al-Faskh wa at-Tafrīq, p.
89; Kifāyatul Muftī, vol. 6, p. 117.
Allāh ta'ālā knows best.
A husband who is perpetually ill
Question:
A woman married a man and lived for some time with him.
Subsequently, her husband fell critically ill. Blood and pus flows
constantly from his body. The husband is not impotent but because of
his weakness and constant illness, he cannot engage in conjugal
relations. If he does, it causes him immense discomfort and pain.
There is no shortage on the part of the husband in paying for the daily
expenses [and running of the house]. However, the wife does not want
to continue living with him. She wants to have the marriage annulled.
Is this possible?
Answer:
The husband is perpetually ill, he cannot fulfil the rights of his young
wife, she cannot exercise patience, and there is a strong possibility of
her falling into sin. Because of the fear of her falling into sin and
committing adultery, the 'ulama' have permitted annulment in cases
of this nature. The wife must present her case to a qadī or jam'īyyatul
'ulama'. After investigating the matter, they will give the husband a
respite of one lunar year to get himself treated. If he still does not
1 Majmū ah Qawānīn Islāmī, p. 198, register 79.
246

recover, the wife will present her case again and ask for a separation.
The qādī or jam'īyyatul 'ulama' will then have the authority to annul
the marriage.
Majmū'ah Qawānīn Islāmī:
The husband's inability to engage in sexual intercourse could take
several forms. For example:
1.
He is castrated.
2.
His private part is too small, and therefore cannot engage in
intercourse.
3. He has a private part but does not have the ability to engage in
intercourse because of some illness.
In all these cases, the wife has the right to have the marriage annulled
via a qādī. In the first and second cases, the gadī will annul the
marriage immediately. In the third case, he will give the husband a
respite of one lunar year to have himself treated. If he still cannot
engage in sexual intercourse after one year, then upon the request of
the wife, the qadi will annul the marriage immediately.1
If, after getting married, a husband falls critically ill, and the wife
requests an annulment; the qādī will investigate the matter. Once he
obtains Shari'ah evidence, he will give the husband a respite of one
lunar year to get himself treated. If he still does not recover, and the
wife asks for an annulment again, the qādī will separate the two.2
Further reading: Kitab al-Faskh wa at-Tafrīq, p. 106; Fatāwā Dār al-'Ulūm
Deoband, vol. 10, p. 231.
Allāh ta'ālā knows best.
When the husband is lost in battle
Question:
There was a war situation in a certain country and certain people went
missing. Several years have passed and their whereabouts are still not
known. There is no information as to whether they are living or dead.
Can they be classified as mafqūd al-khabar (one whose whereabouts are
unknown)?
1 Majmū ah Qawānīn Islāmī, p. 193, register 74.
2 Majmū ah Qawānīn Islāmī, p. 194, register 75.
247

Answer:
Such people are undoubtedly classified as mafqūd al-khabar. The Hanafi
jurists pass a verdict on such people in line with the verdict of the
Mālikī jurists. According to the Malikīs, the qādī will give a respite of
four years with certain other conditions. He will then declare such a
person to be dead and permit the woman to enter into another
marriage.
Hadrat Muftī Muhammad Shafi Sahib rahimahullāh said:
Once the gadī determines through circumstantial evidence that these
people have gone missing in war and that they are not alive, he will
declare them to be dead. Their wives will be permitted to enter into
new marriages after the verdict of the qādī. (In the absence of a
Sharī ah judge, the jam'īyyatul 'ulama' will investigate the matter,
declare the missing person to be dead, and then permit the woman to
enter into a new marriage).1
Majmū ah Qawānīn Islāmī:
The order to wait for four additional years for a missing husband is
unanimously declared as essential if the woman is able to live a life of
patience, forbearance and chastity during this period. If this is not
possible - i.e. if the woman expresses the possibility of falling into sin,
and she has already waited for a long time before making such a
request and cannot wait any longer - then there is leeway to reduce
the four-year waiting period as per the verdict of the Maliki madh-hab.
If the woman has an overriding fear of falling into sin, the Malikīs say
she must wait for at least one year, after which it will be permitted to
effect a separation. This separation will be a revocable divorce. In such
a case, the woman will observe the 'iddah of divorce and not the 'iddah
of death.2
Further reading: al-Hīlah an-Nājizah, pp. 98-110; Kitab al-Faskh wa at-
Tafrīq, pp. 62-74; Fatāwā Dār al-'Ulūm Deoband, vol. 2, p. 556.
Allāh ta'ālā knows best.
1 Imdād al-Muftīyyīn, p. 556, Dār al-Ishā at, Karachi.
2 Majmū ah Qawānīn Islāmī, p. 196 as quoted from al-Hīlah an-Nājizah, pp. 69-80.
248

When the husband is absent most of the time
Question:
Five months after they got married, the husband left his wife and
disappeared. He neither informed his wife where he was going nor
anyone else. He returned after many days. He lived with his wife for a
few days and disappeared again without informing anyone. He
returned after some time. He does not give any reasonable reason for
his absence. It has become his habit to disappear. He is not working
anywhere nor is he occupied in any business. Whatever assistance the
wife was receiving, she had been giving some of it to her husband. On
one occasion he lost a large amount of money after taking it on the
pretext of starting a business. He also stole items belonging to the wife
and sold them. He neither provided a house for his wife nor did he
make arrangements for her expenses. People are of the view that he
will not mend his ways. Bearing in mind this situation, does the wife
have the right to request an annulment of the marriage? What is the
ruling of the Shari'ah in this regard?
Answer:
If the situation is as described by the wife, she has the right to present
her case to the jam'īyyatul 'ulama'. They will investigate the matter
and if the claims of the wife are proven to be true, they will instruct
the husband to fulfil the rights of his wife. If he refuses, they will
compel him to issue a divorce. If the oppressive husband is not
prepared to accept any of the options, the jam'īyyatul 'ulama' will give
him one month's respite. After that, acting on the request of the wife,
they will have the authority to separate the two. The wife will then
observe the 'iddah and she may enter into a new marriage.
Majmū'ah Qawānīn Islāmī:
A person is known to be alive but his whereabouts are unknown, or
they are known but he neither comes to his wife nor calls her to him,
and he does not provide for her maintenance - if these issues are
causing immense distress to the wife, then she can apply for a
separation to a qādī. After receiving her application:
a) The gadī will instruct the wife to present two witnesses who
will state under oath about the absence of her husband and the
fact that he did not leave anything with her through which she
could support herself, did not send anything to her, and did
not make any arrangements in this regard. She will also state
that she has not pardoned him for these injustices.
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b)
After establishing that they are married and that the husband
is obliged to maintain her, the qādī will send an order to the
husband to either present himself and fulfil the rights of his
wife or he must call her to himself (as long as there is no
danger to her going to that place). Alternatively, he must make
arrangements from wherever he is or he must issue a divorce
to her. If he refuses to accept any of these options, the qādī
will separate the two.
If the husband complies with the orders of the qadi, well and good. If
not, the qādī will grant him one month's reprieve or a few more days if
he considers it suitable, after which, acting on the request of the wife,
he will separate the two. This separation will be classified as a
revocable divorce.1
Observe the fatwa of Muftī Alfa Hashim Mālikī:
طريق تطليق زوجة المفقود أو الغائب الذي تعذر الإرسال إليه أو أرسل إليه
فتعاند إن كان لعدم النفقة فإن الزوجة تثبت بشابدين أن فلاناً زوجها وغاب
عنها ولم يترك لها نفقة ولا وكيلاً بها ولا أسقطتها عنه وتحلف على ذلك
فيقول الحاكم فسخت نكاح أو طلقتك من أو يأمره بذلك ثم يحكم به
وبذا بعد التلوم بنحو شهر أو باجتهاده عند المالكية. (الحيلة الناجزة: ١١٠، دار
الاشاعت، دیوبند)
Further reading: al-Hīlah an-Nājizah, p. 192; Kitab al-Faskh wa at-Tafrīq,
pp. 75-77.
Allāh ta'ālā knows best.
When a husband has an extra-marital affair
Question:
A woman claims that her husband is having an extra-marital affair
with a married woman. Consequently, he pays no attention at all to his
house and children. He spends most of his free time with the other
woman. He also abuses his wife physically, mentally and
psychologically. He does not give her the full amount for the running
of the house. Rather, it is her father who gives her most of the money.
1 Majmū ah Qawānīn Islāmī, p. 198, register 78.
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The husband does not pay for the medical expenses of the children. In
the light of these issues, can she ask for an annulment?
Answer:
If her claims are proven true, she will have a right to ask for a divorce.
If the husband refuses, she must present her case to the jam'īyyatul
'ulama' who in turn will investigate the matter. If the husband does
not fulfil her rights and does not give up his extra-marital affairs, the
jam'īyyatul 'ulama' will have the authority to annul the marriage.
Majmū'ah Qawānīn Islāmī:
If the husband speaks offensively to the wife, is vulgar and abusive to
her or beats her severely then she will have the right of separation.
وَلَا تُمْسِكُوْهُنَّ ضِرَارًا لِّتَعْتَدُوْا. وَمَنْ يَّفْعَلْ ذُلِكَ فَقَدْ ظَلَمَ
نَفْسَهُ.
Do not retain them to harass them so that you may
oppress them. Whoever does this shall indeed harm his
own self.1
Now what can be worse than beating the wife severely and abusing her
verbally !??
It is stated further on:
If intense hatred develops between husband and wife, and it seems
impossible to continue their marital life while upholding the orders of
Allāh ta'ālā, then in such a case:
1. The gadī will appoint two arbiters who will seek to reconcile
the two.
2.
If, despite the efforts for reconciliation, there is no way that
the two can agree to a separation; then the gadī will separate
the two on the basis of the mutual discord and the demand of
the wife.3
Allāh ta'ālā knows best.
1 Sūrah al-Baqarah, 2: 231.
2 Majmū ah Qawānīn Islāmī, p. 199, register 81.
3 Majmū ah Qawānīn Islāmī, p. 200, register 82.
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When a Maulana effects a separation
Question:
A woman was married to a certain man. Discord developed between
them. She left him and began living with her parents. The husband
demanded that if the children are handed over to him as per the rule
of the Shari'ah, he will issue a divorce. The wife does not want to hand
over the children to him. The wife got a Maulana to issue a separation
between the two without the husband's knowledge. She then got
married to someone else.
1.
Is the annulment valid?
2. If the annulment is invalid, what is the status of the children
born from the second marriage?
3. If the second husband passes away, will this woman inherit
from him?
Answer:
(1)
The annulment is invalid because it has to be done by a Sharī'ah qādī.
In the absence of the latter, it can be annulled through a jam'īyyatul
'ulama' or two arbiters. Even for this, there are certain rules and
regulations which have to be followed. Therefore, annulment by just
one 'alim is not possible. Based on this, the second marriage was
invalid. The woman is still in the marriage of the first husband.
Al-Hīlah an-Nājizah:
In all forms of a woman's release from a marriage, it is unanimously
agreed that neither she nor her guardians enjoy self-determination.
Rather, the verdict of a qādī is a prerequisite. In other words, it is
necessary for a woman to present her case before a qadī who will then
undertake a formal Shari'ah investigation. Only after that can he issue
a verdict of separation or whatever else. In the absence of a Shari'ah
qādī, a group of Muslims will take the place of a gadī. This is how it will
be done: The religious and influential Muslims of a place will make up
a group consisting of no less than three individuals. The woman will
present her case to them. They will investigate the matter and then
issue a verdict in line with the Shari'ah.1
1 Al-Hīlah an-Nājizah, p. 248. Also, Chand Aham Fiqhī Masā'il, p. 60.
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Note: Preconditions for the group of Muslims and arbiters were listed
previously. A more detailed discussion will be presented towards the
end of this chapter.
(2)
Since the marriage was not annulled, the second marriage is invalid.
However, the children which are born from the second marriage will
be legitimate.
ويثبت نسب الولد المولود فى النكاح الفاسد وتعتبر مدة النسب من وقت
الدخول عند محمد وعليه الفتوى قال أبو الليث كذا فى التبيين. (الفتاوى
الهندية: ٣٣٠/١، باب فى النكاح الفاسد)
(3)
The woman will be eligible for inheritance on the death of the first
husband because she is in his marriage. She will not be eligible for
inheritance from the estate of the second husband.
‘Allāmah Shāmī rahimahullāh writes:
قوله ويثبت النسب (فى النكاح الفاسد) أما الأرث فلا يثبت فيه. (فتاوى
الشامى: ١٣٤/٣، مطلب فى النكاح الفاسد. ط: سعيد)
Allāh ta'ālā knows best.
When a woman becomes an apostate
Question:
A woman is fed-up with her husband and he refuses to divorce her.
Someone showed her a leeway by saying that - Allah forbid - she must
become an apostate and her marriage will break automatically. She
must then become a Muslim after that. She did as advised. Did the
woman's marriage break? After becoming a Muslim again, can she
marry any man other than her previous husband?
Answer:
Our seniors went into much details on this issue in their verdicts.
Hadrat Muftī Muhammad Shafi Sahib rahimahullah went into
considerable detail in Imdad al-Muftīyyīn - i.e. the old edition of Fatāwā
Dār al-'Ulum Deoband. He quotes the texts of the jurists from pages 570
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to 575. These include quotations from Fath al-Qadir, vol. 3, p. 297; al-
Bahr ar-Rā'iq, vol. 2, p. 230; al-Fatāwā al-Hindīyyah, vol. 2, p. 317; Shāmī,
vol. 2, p. 403.
After quoting their statements, he writes:
If a woman becomes an apostate while her husband is a Muslim, then
although this marriage will be annulled, she cannot marry another
person. Rather, she is compelled by the Shari'ah that after she renews
her Islam, she must renew her marriage with the same man. The
dowry for this marriage will be less than normal. In this renewed
marriage, the approval or disapproval of the woman is not considered.
Instead, her new marriage will be valid by the order of a qādī even if
she disapproves. This is the fatwa of the jurists of Bukhara. It is also
the zahir ar-riwayah which is quoted in the various books and
commentaries ...
He writes in reply to another question that the Hanafi madh-hab has
three views on this issue:
1. The marriage is annulled but the gadī will compel the woman
into renewing the marriage, and force her to get married to
the same husband. This is the zahir ar-riwayah as found in the
texts in general.
2.
The marriage is not annulled, as is the verdict of many of the
jurists of Balkh and Bukhārā. Ad-Durr al-Mukhtar states that it is
permissible to issue a fatwa on this view. Shāmī also quotes
this fatwa from Nahr Fa'iq. The same fatwa is to be found in
Fatāwā Qunyah.
3.
A narration of Nawadir states that the woman will be classified
as a slave and placed under her husband. This is mentioned in
ad-Durr al-Mukhtar and other books.
The above three views are detailed in Fatawa Qādī Khan, Fath al-Qadir,
Qunyah, ad-Durr al-Mukhtar and Shāmī. All three views concur that after
a woman becomes an apostate, she can never come out of the control
of her husband. Instead, as per the first view, she will be compelled to
renew her marriage after she renews her Islam. As per the third view,
she will be placed under the husband's authority as a slave. However,
in the present situation in India, Muslims will not be able to apply
these two views. The verdict will therefore have to be issued on the
fatwa of the jurists of Bukhārā.
Therefore, in the case under question, the marriage of the woman has
not been annulled. However, as a precaution, the husband should not
have conjugal relations with her before renewing the marriage. No
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matter what, it will be permissible for him to keep her in his
possession. Allāh ta'ālā knows best.1
The jam'īyyatul 'ulama' and other 'ulama' bodies of non-Muslim
countries need to think earnestly on this issue. If a woman is really
suffering abuses and these could be used as reasons for annulment,
they should - as far as possible - hasten to make arrangements for the
annulment of the marriage in the light of details in al-Hīlah an-Najizah
and other books so that the door to apostasy is shut.
Allāh ta'ālā knows best.
Separation on the verdict of a non-Muslim judge
Question:
A woman in America went to court and presented a case for a divorce.
She wanted a divorce through the court and this was done against her
husband. Is the divorce valid, bearing in mind that the husband does
not approve?
Answer:
The verdict of separation and divorce by the non-Muslim judge is
invalid. The woman is still in the marriage of this man. Although the
marriage has terminated in the government register, the Islamic
marriage is still in-tact.
الصلاحية للقضاء لها شرائط منها العقل ومنها البلوغ ومنها الإسلام ومنها
الحرية ومنها البصر ومنها السلامة عن حد القذف. (بدائع الصنائع: ٣/٧،
کتاب ادب القضاء، ط: سعيد)
Al-Hīlah an-Nājizah:
In the absence of a Shari'ah qadi, if a government-appointed
magistrate or judge who has the right to divorce is a Muslim, and he
passes a verdict in line with Sharī ah rules, his verdict takes the place
of a Sharī'ah qādī. However, if he is a non-Muslim, his verdict is
certainly not considered. Annulment, etc. can never be effected by his
order.2
1 Imdād al-Muftīyyīn, vol. 2, p. 574.
2 Al-Hīlah an-Nājizah, p. 23.
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لان الكافر ليس بابل للقضاء على المسلم كما بو مصرح فى جميع كتب الفقه.
Fatāwā Rahīmīyyah:
The verdict of a non-Muslim magistrate (judge) is not considered.1
Kifāyatul Muftī:
The verdict of a non-Muslim ruler is not enough.2
Īdāh an-Nawādir:
If a non-Muslim judge passes judgement on issues related to divorce,
his verdict will not be considered according to the Shari'ah. His verdict
of divorce will not release the woman from a marriage. 'Allamah
Shāmī rahimahullāh writes in this regard:
لم ينفذ حكم الكافر على المسلم وينفذ للمسلم على الذمي. (ايضاح النوادر:
( los
Allāh ta'ālā knows best.
Annulment in non-Muslim courts
Question:
Are the verdicts of divorce, annulment and separation passed by non-
Muslim courts valid? Muslims are currently residing permanently in
non-Muslim countries and they are faced with situations of this
nature. Furthermore, in certain countries it is incumbent to go to
court for such matters. If their verdicts are not valid, are there
alternatives for their validity? Are there any alternative steps which
could be adopted?
Answer:
There are situations in which the verdict of a non-Muslim judge can be
in line with the Shari'ah ruling.
(1)
The husband presents a case in court to divorce his wife. The non-
Muslim judge passes a verdict of divorce between the two after
following legal procedures.
1 Fatāwā Rahīmīyyah, vol. 8, p. 377.
2 Kifāyatul Muftī, vol. 6, p. 132.
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According to the Shari'ah, this verdict will be valid because although
the Shari'ah has given full right of divorce to the husband, in this case,
the husband himself made an application to the court and made the
non-Muslim judge his representative. The judge will dissolve the
marriage as a representative of the husband. Therefore, the said
marriage will be dissolved.
The marriage will break and one irrevocable divorce (talaq-e-ba'in)
will apply. This is because it is permissible to appoint a non-Muslim
representative to do this. The 'iddah will be counted from the date of
the decree.
(2)
The wife makes an application to the governmental court and asks for
a separation. The non-Muslim judge passes a verdict of separation
(divorce) between the two. In such a case, the verdict and the
separation will be as follows:
a) The legal procedures were initiated and the husband received a
notice from the judge. The husband gave a formal permission to the
judge to continue with the proceedings. Divorce will apply in such a
case.
b) The legal procedures were initiated. When the husband received the
notice from the judge, he went to his lawyer who advised him that
challenging the case will result in nothing but delays and expenses.
The verdict of separation will be passed by the court. After obtaining
the approval of the husband, the lawyer records that the two can be
separated, or the husband himself signed his approval on the divorce
papers. A Sharī ah divorce will apply.
إذا قال الرجل طلق امرأتي كان توكيلاً ولم يقتصر على المجلس. (الفتاوى
الهندية: ٤٠٢/١)
When the husband says: "Issue a divorce to my wife", it will be a
representation for divorce.
من قال لا مرأته انطلقي إلی فلان حتی یطلقک، فذببت فطلقها فلان ویصیر
فلان وكيلاً بالتطليق وإن لم يعلم بوكالته.
A man said to his wife: "Go to such and such person, he will issue a
divorce to you." She went to that person (judge) and he issued the
divorce. The divorce will be valid. The one who issued the divorce (the
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judge) will be classified as a representative for issuing the divorce even
if he did not have knowledge of such an appointment.
c) The woman made an application for divorce. The judge sent a notice
to the husband. He rejected it and did not express his approval.
Despite this, the judge passed a verdict of divorce by the law.
d) The husband acknowledged his wrongs and convinced the court
that he will fulfil his marital obligations in the future. Despite this, the
judge passed a verdict of divorce.
e) The husband did not initiate any divorce procedures nor did he do
anything to demonstrate his approval. Despite this, the judge passed a
verdict of divorce.
f) The husband refused to challenge the application but explicitly
refused to issue a divorce. Despite this, the judge passed a verdict of
divorce.
In the last four cases (c, d, e, f), the marriage will be dissolved
according to the court, but according to the Shari'ah, the marriage will
still be in-tact. The woman cannot marry anyone else. However, she
has the right to refer her case to a Shari'ah body which will investigate
the matter. If the claims of the woman are true, it will have the
authority to separate husband and wife.
According to the new British law of 2004, one additional question -
among many others - is posed to the husband:
Do you consent to the decree being granted?
If the husband writes "yes", it is as though the husband appointed the
non-Muslim judge as his representative for the issuing of a divorce.
The non-Muslim judge then issues a divorce to the woman as a
representative of the husband. In such a case, an Islamic divorce also
applies because it is not necessary for a representative to be a Muslim.
A divorce via a non-Muslim representative is valid.1 (Condensed from
Islāmī Qanūn Nikāh wa Talaq under the heading "The British law of
divorce", pp. 140-143.
Proofs:
1 Condensed from Islāmī Qānun Nikāh wa Talaq under the heading "The British
law of divorce", pp. 140-143, by Maulānā Ya'qub Qasimī Sahib.
258