Fatwa ID: 06922
Answered by: Maulana Abdul Malik
Question:
I have been separated from my husband for 14 and half years, as he had taken on another wife, of which I was opposed to. We have 4 grown up children.
My husband refuses to give me talaq and goes around defaming me, although for the past 14 years, I have been busy bringing up my 4 children.
Everywhere I turn for help to obtain a khula, he lies and tells them we are still together, and convinces people that I am lying.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Marrying a second wife is permissible on the condition that the husband is able to do justice to both wives and fulfil their rights.
Allah states in the holy Quran; “Then marry other women of your choice; two, three, or four. But if you are afraid you will fail to maintain justice, then (content yourselves with) one or those (bondwomen) in your possession. This way you are less likely to commit injustice” (Quran, 4:3)
That one man could have more than one wife was something considered permissible in all religions of the world even before the advent of Islam. The custom prevailed in Arabia, India, Iran, Egypt, and Babylon and among peoples elsewhere.
As result often men took many wives who they were unable to maintain and as a result treated them unjustly.
The Holy Quran that stopped this great injustice prevailing in the human society at large. The Holy Quran restricted the plurality of wives by declaring that keeping more than four in marriage is unlawful. Furthermore, to treat any of them unfairly will also be unlawful.
It comes in the Sunnah on the authority of Abu Huraira (May Allah be pleased with him) who narrated that The Messenger of Allah (May Allah’s peace and blessings be upon him) said: “When a man has two wives and he is not just between them, he will come on the Day of Judgment with half his body paralysed.” (Sunan Tirmidhi, hadith # 1141) [1]
If a husband is able to do justice between both the wives, it will be permissible for him to marry more than one wife in the shariah.
However, it’s normal for a woman to have jealousy and not want to share her husband with another wife. This may lead to a wife wanting a divorce from her husband.
That being said, the wife must bear in mind that in Islam a woman is not allowed to ask her husband for divorce without a valid reason.
It is narrated from Thawban (May Allah be pleased with him) that the messenger of Allah (May Allah’s peace and blessings be upon him) said; “Whichever woman asks her husband for a divorce, for no reason, then the smell of paradise is forbidden for her” (Sunan Tirmidhi, hadith, 1187) [2]
If there is a breakdown in the marriage, then efforts should be made to reconcile between both parties. When all avenues of reconciliation have been exhausted and the couple are still unable to live in harmony then they may resort to divorce.
With regards to your specific situation, if for genuine reasons you are unable to live with your husband in harmony then you may request a divorce.
If he refuses to give you a divorce then you may request khula (Mukhtasar Quduri, pg. 163) [3]
If your husband refuses the Khula offer, then as a last resort you may to apply to a local Ulama council for a faskh i.e. annulment of the nikah. They will explain to you how the faskh works.
In conclusion, if you are unable to live together with your husband in harmony because of some injustice from him and all avenues of reconciliation have been exhausted. In which he continues to act unjustly towards you and refuses to divorce you or accept your request for khula then you may present your case to the local Ulama council for annulment of the marriage.
[1] عَنْ أَبِي هُرَيْرَةَ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ “ إِذَا كَانَ عِنْدَ الرَّجُلِ امْرَأَتَانِ فَلَمْ يَعْدِلْ بَيْنَهُمَا جَاءَ يَوْمَ الْقِيَامَةِ وَشِقُّهُ سَاقِطٌ ”
[2] عَنْ ثَوْبَانَ أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ “ أَيُّمَا امْرَأَةٍ سَأَلَتْ زَوْجَهَا طَلاَقًا مِنْ غَيْرِ بَأْسٍ فَحَرَامٌ عَلَيْهَا رَائِحَةُ الْجَنَّةِ ” .
[3]إذا تشاقا الزوجان وخافا أن لا يقيما حدود الله فلا بأس أن تفتدي نفسها منه بمال تخلعها به
فإذا فعلت ذلك وقع بالخلع تطليقة بائنة و لزمها المال
Only Allah (عز و جل) knows best.
Written by Maulana Abdul Malik
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
