A translation of this fatwa from Naseem al-Sham
Question:
Dr Muḥammad
Tawfīq al-Būṭī, as-Salām ʿalaykum wa Raḥmatullāhi wa Barakātuh:
A woman, along with her husband’s father and mother,
consulted me. She said that her husband was in prison for some years. After
being in prison for three years he committed another crime and as a result he
was given a life sentence. It has now been three years since that ruling which
means that her husband has been absent for six years, in prison. Now she is
asking for the marriage to be dissolved (faskh)[1]
and her husband’s parents are also asking for it, saying that she is a young
lady and they don’t want her to suffer. In Shāfiʿī fiqh, is there a
way to do this? What would the ruling be for her in the other madhhabs?
May Allah bless you. If you are able to given us an answer today, please do so.
Answer (from Sheikh Muḥammad Tawfīq Ramaḍān):
This woman and those like here have a way out in the
Revealed Law by which they can get out of this problem, and it is to make the
case that they have to ask for expenditure (nafaqah) because there is no
provider (munfiq), which is the husband, strictly speaking.
She can present her case to the judge (qāḍī)
and ask for a separation (tafrīq)
due to the lack of expenditure, even if she is wealthy. Even if her husband’s
family take it upon themselves to provide for her, she is not obligated to
accept it, because the one who is legally responsible for her expenditure is
her husband, and he’s not there.
There is another way, which is to make the case that one is
suffering harm,[2]
but that would require a study, and therefore I think the first illustration is
better and easier.
Related Posts:
[1]
(tn): i.e. to nullify the marriage contract completely; this is different from
divorce in that a divorce is only final if it is tripartite (al-baynūnah al-kubrā). Please see v.8,
p.336-343 of Imam Wahbah az-Zuḥaylī’s Mawsūʿah al-Fiqh al-Islāmī wa Qaḍāyā Muʿāṣirah (Damascus:
Dār al-Fikr, 2013) for
further details.
[2]
(tn): This shows that in addition to the case of not being provided for, a woman can also
make the case that she is suffering harm in her marriage. A qāḍī
has the authority to dissolve the marriage in such cases. However, when
unqualified individuals appoint themselves as judges, believing
women can suffer immeasurable harm, and this is due to not only the stunning
lack of knowledge of these so-called judges but also their cultural prejudices,
and Allah knows best.
No comments:
Post a Comment