Rulings on Divorce - III

30/07/2012| IslamWeb

Separation by court

It is a permissible matter in order to enable the woman to terminate her marital relationship that she could not terminate by herself, because she does not have the right of divorce.

Separation by the court is of two kinds:

1- Separation which is considered as divorce and it is considered an irrevocable divorce. There are many reasons for which the woman has the right to ask for separation, leading to divorce, including:

• The husband does not financially support her
• The husband has some disabilities, whether they are physical disabilities like leprosy, to the extent that it makes it difficult upon her to stay with him without harm, or sexual dysfunctions that prevent him from having sexual intercourse with her or begetting children

• Bad companionship
• The husband's long absence from his wife
• His long imprisonment which causes harm to the wife, even if he leaves her sufficient maintenance.
Among the forms of separation which are regarded as an irrevocable divorce, we may mention Eelaa‘ if its conditions are met, and Khul‘ for those who are of the opinion that it is divorce.

2- Separation which is considered as an annulment of the marriage contract and it does not reduce the number of divorces.

Cancellation is caused by something that happens with which the marriage contract is prevented from continuing, like the choice of either of the spouses, upon reaching puberty, to annul the marriage (which was concluded by hisher guardian before reaching puberty) , discovering that the spouses are suckling siblings, or the conversion of any of the spouses to Islam. The annulment of the marriage contract terminates the marital relationship at once, like an irrevocable divorce.

When any one of the spouses embraces Islam before the other

If either of the spouses embraces Islam before the other, their marriage is in a hanging state: if the other embraces Islam before the wife's term of ‘Iddah (waiting period) is over, their marriage is still in effect; and if her term of ‘Iddah is over, she could marry anyone else if she so desires, or wait if she so desires. If the other spouse, who had not yet embraced Islam, embraces Islam, and the wife had not yet been married to anyone else, they would return to their matrimony with no need to renew the contract.

According to Imaam Ibn Al-Qayyim "We do not know that a marriage was ever renewed because (either of the spouses embraced) Islam (after the other). One of two things used to be done in this respect: either they separate and she marries another; or she remained a wife of him until he/she embraced Islam even after a long time." It is narrated on the authority of Ibn ‘Abbaas, may Allah be pleased with him, that he said, "The Messenger of Allah, sallallaahu ‘alayhi wa salam, returned his daughter Zaynab, may Allah be pleased with her, to Abu Al-‘As Ibn Ar-Rabee‘ (after he had embraced Islam) on the basis of their previous marriage, and he did not do anything afresh." [Ahmad, Abu Daawood and Ibn Maajah]

Li‘aan

If a man accuses his wife of committing adultery, whatever the form his charge against her might take -- even if it is to deny before the judge that her pregnancy is from him -- the ruling is the same as described by Allah The Almighty in the Aayah (verse) that says (what means): {And those who accuse their wives [of adultery] and have no witnesses except themselves - then the witness of one of them [shall be] four testimonies [swearing] by Allah that indeed, he is of the truthful. And the fifth [oath will be] that the curse of Allah be upon him if he should be among the liars. But it will prevent punishment from her if she gives four testimonies [swearing] by Allah that indeed, he is of the liars. And the fifth [oath will be] that the wrath of Allah be upon her if he was of the truthful.} [Quran 24:6-9]

The presence of the judge is necessary for the process of Li‘aan to be carried out. He has to remind the woman (of Allah The Almighty), and admonish her. According to the Sunnah (tradition), in Li‘aan the man should be brought forward to give his testimony first before the woman. If the husband abstains from Li‘aan, the corporal punishment prescribed for the crime of the false accusation should be implemented on him. If the woman abstains from Li‘aan, the corporal punishment prescribed for adultery should be implemented on her. After carrying out the measures of Li‘aan, the spouses should be parted, as they would become unlawful for each other, and they should never marry again according to the opinion of the majority of Islamic jurists. However, some are of the opinion that it is possible for him to remarry her if he belies himself, or if either of them is incompetent for being a witness.

If a man is involved in Li‘aan with his wife in which he denies his child from her, the child's ascription to the father, as well as the child’s financial maintenance lapse; and this cancels any mutual inheritance between them. In this case, the child is attributed to his mother, and they inherit each other, since the child is traced to the owner of the bed (i.e., the legitimate husband), which becomes cancelled by Li’aan. It is narrated on the authority of Abu Hurayrah, may Allah be pleased with him, that he said: The Messenger of Allah said: "A child is traced to the owner of the bed, and for the adulterer are stones (i.e. stoning to death)." [Al-Jamaa’ah except Abu Daawood]

Eelaa‘

It is that the husband takes an oath not to have sexual intercourse with his wife for a duration that exceeds four months. Whoever does so is considered in a state of Eelaa' from his wife. However, according to the Maaliki scholars, whoever abstains from having sexual intercourse with his wife for the same period without making an oath, just for the purpose of harming her, is considered in a state of Eelaa' from her, and is subject to the ruling of Eelaa‘.

Ruling of Eelaa‘: According to the Sharee‘ah (Islamic legislation) the husband who has sworn not to have sexual intercourse with his wife has as long as a four-month respite to retract his decision and have sexual intercourse with his wife. If he does not, he would be in a state of Eelaa’, and expiation for his oath would become due upon him. Allah The Almighty Says (what means): {For those who swear not to have sexual relations with their wives is a waiting time of four months, but if they return [to normal relations] - then indeed, Allah is Forgiving and Merciful.} [Quran 2:226]

However, if the four months elapse and the husband does not retract from his oath by having sexual intercourse with his wife, by doing so he will have then decided to divorce his wife. Allah The Almighty Says (what means): {And if they decide on divorce - then indeed, Allah is Hearing and Merciful.} [Quran 2:227] Hence, the majority of scholars are of the opinion that the wife has the right to ask him either to have sexual intercourse with her or to divorce her. If he still abstains from having sexual intercourse with her, the judge should pressure him to divorce her. If he refuses, then, the judge should divorce her on his behalf, and it becomes a revocable divorce according to the soundest opinion. The term of ‘Iddah is due upon the woman who is divorced upon the basis of Eelaa‘, like other divorced women.

In other cases, a man might make his wife unlawful for himself. If prohibition is intended for the woman herself, it does not become a divorce. It is narrated on the authority of Ibn ‘Abbaas, may Allah be pleased with him, "If a man declares his wife unlawful for himself, it is an oath for which he should make expiation." Then he recited: {There has certainly been for you in the Messenger of Allah an excellent pattern.} [Quran 33:21] [Muslim] ‘Aa‘ishah, may Allah be pleased with her, said, "The Messenger of Allah took an oath not to have sexual intercourse with his wives. Afterwards, he made lawful what he had made unlawful (for himself), and made expiation for his oath." [Al-Bukhari and Muslim]