Fatwa ID: 01843

Answered by Mufti Mohammed Tosir Miah

Question:

1. In the above given situation, is the marriage still valid or has it been dissolved according to the Islamic teachings?
2. If the marriage is valid, we are still husband and wife and if she does not want to live with me, despite I am ready to reconcile and fulfil my responsibilities.  What is the right procedure for her to get marriage dissolved?
3. If I am not able to get visa to stay in the UK, is it a valid reason to dissolve the marriage?  However a solicitor has assured me that if we show and can prove a strong relationship then we have good chance to get the visa?
4. If a wife does not live with her husband without any valid reason. Does she have right to get the marriage dissolved? Or does the Sharia Council have any right to dissolve the marriage on wife’s request?

Answer:

Before we look at the answers to the questions you posed, I will firstly explain the role and responsibilities of an Islamic Shariah Council and for what reasons they can annul a marriage.

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:

1. The husband is missing completely
2. The husband is absent with no known whereabouts
3. The husband is incapable of maintaining his wife
4. The husband is unwilling to maintain his wife
5. The husband oppresses the wife such that he does not fulfil her rights
6. The husband is castrated
7. The husband is impotent
8. The husband is insane
9. The husband is afflicted with leprosy or any other illness which makes living with him difficult
10. The choice of an immature when he/she attains maturity
11. Husband or wife become apostate
12. 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 he 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)

The role of an Islamic Shariah Council is firstly 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.

Allah (SWA) says:

“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) (See Hadhrat Molana Ashraf Ali Thanwi’s  Heelatun Najizah)

We will know look at your questions individually.

Answer 1

If the Islamic Shariah Council annulled your marriage without hearing your side of the story or without giving you the opportunity to respond to your wife’s claims then such annulment would not be considered valid in the Shariah.

Answer 2

If the wife does not like the husband and because of this she does not want to remain with the husband then like I mentioned above they should try to firstly reconcile  their differences and only when that fails and there are no other alternatives the wife does have an Islamic right to annul the marriage. An example of this can be found regarding Thabit Bin Qays Radiallahu Anhu wife, Jamilah Bint Saluul came to the Prophet of Allah Sallallahu Alahi Wasalam wanting a khula from her husband because she did not get along with him. The Prophet of Allah Sallallahu Alahi Wasalam told her to return the garden which she took from her husband as the dowry, back to him. (Sahih Bukhari p.943 v.2 & Sunan Ibn Majah p.148 v.1)

Answer 3

Islamically, it is not a reason to annul the marriage. However, if the Shariah Council feel that by the husband being in another country he would not be able to fulfil the rights of the wife, then they may annul the marriage.

Answer 4

The answer is similar to answer 2 in terms of they should try to resolve their differences. However, if that fails the wife should firstly ask for a khula from her husband.

A Khula is an agreement between the husband and wife to dissolve the contract of marriage in lieu of compensation paid by the wife.

Allah states in the Quran: “…It is not lawful for husbands to take anything back which they have given them except when both parties fear that they may not be able to follow the limits set by Allah; then if you fear that they both will not be able to keep the limits of Allah, there is no blame if, by mutual agreement the wife compensates the husband to obtain divorce. These are the limits set by Allah; do not transgress them, and those who transgress the limits of Allah are the wrongdoers.” (Surah Al Baqara: 229)

From the above ayah it is clear that Khula can only be carried out with the consent and agreement of both the husband and wife. The wife does not have the jurisdiction to enforce Khula without the consent of her husband.

However if the couple cannot come to an agreement the wife may take her case to an Islamic Shariah Council who will evaluate the arguments and evidences presented from both sides and then come to a verdict which will be binding on all parties.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.