Islamic Shariah Council hastily issuing a separation?

Fatwa ID: 03008

Answered by: (Mufti) Mohammed Tosir Miah​

Question:

Assalamu Alaikum Wa Rahmatullah

Islamic Shariah Council hastily issuing a separation?

                                                                                   

Answer:

بسم الله الرحمن الرحيم

In the name of Allah, the Most Gracious, the Most Merciful.

 

بسم الله الرحمن الرحيم

Islam is a religion which ensures everyone’s rights are upheld. Allah is not unjust nor does He allow any injustice between His creations.[1] While the bond of marriage is one of love and affection[2], at times there may exist a conflict between spouses. The Quran provides a three-stage process to quash any disputes. These are as follows:

 

  1. Resolve family disputes within the house using one method after the other (i.e. first advise them; then if they persist forsake them in bed, and finally, strike them off in a manner that does not affect the body, nor goes to the undesirable limits of hurt or injury to the skin or bones).
  2. When this is not possible, government officials or the kinsfolk make peace between the disputing parties through two arbitrators, so that, the dispute does not go out of the larger family circle, even if it goes out of the house itself.
  3. When this too is not possible and the matter goes to the court finally, it is the duty of the judicial authority to investigate into the case background of both parties and come up with a decision which is just.[3]

 

If either of the spouses feels the other is negligent towards them and that living together is no longer possible, the husband has the right to divorce and the woman may seek khula. However, in cases when a woman cannot dissolve the marriage except through the court, the question arises as to how women living in non-Muslim countries can do this when the ruling of a non-Muslim judge or the ruling of a Muslim judge based upon a country's laws which are not consistent with Islamic laws cannot annul a marriage.[4]

 

The solution, in this case, is to establish a council which can then act in the capacity of an Islamic judge provided certain condition are met by this council. These conditions are as follows:

 

  1. This committee should consist of at least three people.
  2. All members of this committee should be ‘adl. This means that they should be practising Muslims who abstain from all major sins and do not continuously indulge in minor sins. If they commit a sin they immediately do tawbah and seek forgiveness from Allah.
  3. This committee should consist only of Muftis and Ulama who hold an in-depth understanding of Islamic laws. If this is not possible then at least one of them must be a Mufti or Aalim. If this is not even possible then the committee at every stage must consult Muftis and Ulama and then base their decision upon the input of the Muftis and Ulama. If a decision is made without consultation and input from Muftis and Ulama then that decision will be not considered and cannot be applied.
  4. The committee must investigate the case thoroughly and with due diligence before passing a verdict.[5]

 

The role of an Islamic Shariah Council is to abide by the procedures laid down by Allah (SWA) in the Holy Quran. They should first try to reconciliate between the spouses and give the spouses the opportunity to present their sides of the situation before coming to a decision.

 

The Prophet (peace and blessings of Allaah be upon him) told us that reconciling between people is better than observing voluntary fasts, offering voluntary prayers and giving voluntary charity. 

It was narrated that Abu’l-Darda’ (may Allaah be pleased with him) said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Shall I not tell you something that is better than the status of (voluntary) fasting, prayer and charity?” They said: “Yes.” He said: “Reconciling in a case of discord, for the evil of discord is the shaver.” Al-Tirmidhi said: It was narrated that the Prophet (peace and blessings of Allaah be upon him) said: “It is the shaver, and I do not say that it shaves hair, but that it shaves (i.e., destroys) religious commitment.” (Sunan Abu Dawuud & Sunan Tirmidhi)

The principle of being privy to both sides before arriving at a judgement is found in the aḥādīth of the Prophet . Once, while advising ‘Alī رضي الله عنه, the Prophet said, “When two people come to you asking you to judge between them, do not rule in favour of one until you hear the account of the other, for you will soon come to know of how to pass the judgement.” (Sunan Tirmidhī)

Once you have heard the accounts of both individuals, you will soon realise the full nature of the incident; who is right and who is wrong, and what the circumstances and possible justifications are. Until then, do not pass judgement.

 

Only Allah Knows Best

Answered by (Mufti) Mohammed Tosir Miah

Darul Ifta Birmingham

 


[1]عن أبي ذر الغفاري – رضي الله عنه – عن النبي – صلى الله عليه وسلم – فيما يرويه عن ربه عز وجل أنه قال : يا عبادي إني حرمت الظلم على نفسي وجعلته بينكم محرما فلا تظالموا… أخرجه مسلم في صحيحه.

 

 

 

[2]{وَمِنْ آيَاتِهِ أَنْ خَلَقَ لَكُم مِّنْ أَنفُسِكُمْ أَزْوَاجًا لِّتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُم مَّوَدَّةً وَرَحْمَةً إِنَّ فِي ذَلِكَ لَآيَاتٍ لِّقَوْمٍ يَتَفَكَّرُونَ} [الروم:21]

 

 

 

[4] بحوث في قضايا فقهية معاصرة ج 2 ص 173-175. وزارة الأوقاف و الشؤون الإسلامية

الحيلة الناجزة للحليلة العاجزة ص 270. مكتبه رضى ديوبند

كتاب النوازل ج 10 ص 88-89. المركز العلمي للنشر و التحقيق لال باغ مراد آباد

فتاوى محمودية ج 13 ص 173. دار الإفتاء جامعة فاروقية كراتشي

جديد فقهي مسائل ج 3 ص 124-130. زمزم ببلشرز

 

 

 

[5]الحيلة الناجزة للحليلة العاجزة ص 271-272. مكتبه رضى ديوبند

بحوث في قضايا فقهية معاصرة ج 2 ص 180-184. وزارة الأوقاف و الشؤون الإسلامية

 

 

 

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