Would not having sexual intercourse result in the termination of the marriage

CategoriesDivorce [521]

Fatwa ID: 01304

Answered by Mufti Mohammed Tosir Miah

Question:

Sir, me and my husband are going through some difficult times in our relationship. We have not had any physical contact for the last 2 months and this is being done deliberately and intentionally. I heard that if we stay away from each other for 4 months, deliberately, then some sort of separation or divorce is applicable. Please clarify this for me as I want to live with him for the sake of my children but don’t want any physical relationship with him.

Answer:

Bismillah

In the name of Allah, the most Beneficent, the most Merciful.

There are two main issues which need to be looked at from the question you sent.

The first issue is that not having sexual intercourse will not result in the termination of the marriage.

Divorce occurs if it was verbally said or written by the husband to the wife.

It is mentioned in Durrul Mukhtar:

 “The main part (rukn) of divorce is the specific statement.” (Raddul Muhtar p.426 v.4)

The second issue is regarding the ruling of Ilah.

Allah subḥānahu wa ta'āla (glorified and exalted be He) in the Holy Qur’an has said:

‘Those who swear to abstain from their wives have four months of waiting.  Therefore, if they revert back, Allah is Most-Forgiving, Very Merciful.  And if they resolve to divorce, Allah is All-Hearing, All-Knowing.’  (Surah Baqarah v.226-v.227)

If someone takes an oath that he will not have sexual intercourse with his wife, there are four situations:

  1. No time limit was fixed.
  2. A time limit of four months was fixed
  3. A time limit of more than four months was fixed
  4. A time limit of less than four months

The first three situations are termed in Shariah as ‘Ilah’.  If the oath-taker breaks this oath within four months and resumes sexual intercourse with his wife, he will have to come up with the kaffarah for his oath while his nikah remains intact.  If the time limit of four months did expire and the oath-taker did not break his oath, a talaq baain will occur.  The husband and wife can get back together if a new nikah is done.

Regarding the fourth situation, if the oath is broken, kaffarah will have to be given and if the oath is completed, the marriage will remain valid.   (Maariful Quran p.563 v.2)

Finally, the kaffarah one has to give is that of breaking an oath.   (Hidayah p.401 v.2)

The Kaffrah (Explation) of breaking an oath is mentioned in the Holy Quran Allah subḥānahu wa ta'āla (glorified and exalted be He) says;

“…Its expiation is to feed ten poor person at an average of what you feed your family with or to clothe them or to free a slave. And whoever, finds none shall fast for three days. That is expiation for you oaths when you have sworn…”(Surah Maaidah v.89)

In this verse the first expiation used in connection with Kaffarah of oaths is “itam” which could either mean ‘feed’ or ‘give food’ to someone, hence the jurists have said that the individuals can invite ten poor persons and feed them or he can give the food in their possession. In the first situation, it is necessary that he should feed ten poor persons two meals of the day to take their fill and in the second situation he should give to each of the ten poor persons at the rate of one fitrah per person, that is,

1.      Approximately 1.6kg of wheat

2.      Approximately 3.2kg of barley

3.      Or the equivalent of the above in cash which will be between £1-£3

If a person is unable to feed the poor then he would fasts for three days consecutively according to the Hanafi Fiqh. (Raddul Muhtar p.532 v.2 & Maariful Quran p.244 v.3)

A final ruling is that a Kaffrah given before breaking of the oath will not be valid. The reason is that he course which makes kaffarh necessary lies in the breaking of the oath. As long as the oath does not break kaffarah will not be necessary. (Maariful Quran p.245 v.3)

Regarding your situation it is clear that your husband did not make an oath to abstain from having sexual intercourse with you, but he is doing it deliberately, which by the way is a sin itself, will not result in the occurring of a divorce with the passing of four months.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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