Fatwa ID: 02399
Answered by: Mufti Mohammed Tosir Miah
My wife and I, after being married for almost 2 years, are not living together. Worldly affairs like cell phone chatting led me to issuing 2 Talaq's (Talaq Raj'ee). I revoked both Talaq's within the Iddah period and expect that we still be married. Her mother initiated her moving out our home and applying for a Fasakh on grounds that I beat her (not true). The MJC (Muslim Judicial Council) in Cape Town already told she has no grounds after hearing both sides. Now that she and her mother knows that, she applied again – saying I cannot Nafaqah her. Clearly they are trying a different approach and both my wife and her mother does not want to respect my authority that I am still her husband and she must live with me. It is true that her mother brought us food each night – something I never asked her to do but I have a permanent job, pay the rent and she carries the bank cards. Does that really give her grounds for a Fasakh? I even sent them Verses from the Quran – Surah Baqarah Verses: 228/229, Surah Talaq Verse: 1 and reminded her of Surah Zubr Verse: 71. I do not know what to do till our Shariah Court date, 25 July 2012 and really need to know if the Qadi, based on the above, may grant her the Fasakh.
بسم الله الرحمن الرحيم
Hadhrat Molana Ashraf Ali Thanwi in his book “Heelatun Najizah” and Qadhi Mujahid Islam in his Majmuu Qawaneen Islami have mentioned that the role of an Islamic Shariah Council is firstly try to resolve the issues between the two parties individually or through arbitrators and only when that fails, consider about the annulment of the marriage.
Furthermore, it is also a Quranic injunction to recon ciliate between the couples.
“If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.” (Surah Al- Nisaa v.35)
The Muslim Judicial Council should try their best to resolve the situation between the couples.
An Islamic Shariah Council can annul a marriage if they have at least three just persons sitting therein. They should all be knowledgeable and well versed in Shariah laws on marriage and divorce.
An annulment issued by such a committee is valid in the Shariah. (The Complete System of Talaq p.211)
An annulment of marriage can be effected in any of the following situations:
- The husband is missing completely
- The husband is absent with no known whereabouts
- The husband is incapable of maintaining his wife
- The husband is unwilling to maintain his wife
- The husband oppresses the wife such that he does not fulfil her rights
- The husband is castrated
- The husband is impotent
- The husband is insane
- The husband is afflicted with leprosy or any other illness which makes living with him difficult
- The choice of an immature when he/she attains maturity
- Husband or wife become apostate
- Foster relationship which only becomes known after Nikah. (The Complete System of Divorce p.213)
The evidence for the validity of an Islamic Shariah Council is derived from a Maliki jurisprudence book written by Shaikh Khalil Bin Ishaq called Mukhtasar al Khalil, in where it says that a woman whose husband has disappeared can take the case to the Islamic judge or to the leader and if the absence of the aforementioned two then to the Muslim congregation (i.e. a shari council) (p.163)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham