Dear Brother Mubashir Nazir
I wish to know what are the ground is permitted under Sharia that allow a Muslim woman to seek obtain divorce. I have read through the views of Medieval Jurists that present very limited options and almost impossible conditions for obtaining divorce while the Prophet (صلی اللہ علیہ وآلہ وسلم) allowed a Muslim woman to get divorced even on the grounds when she honestly confessed on her inability to abide by limits prescribed by Allah.
Secondly I wish to confirm when the Prophet ordered the man to let his wife go, no one would dare refuse order of the prophet, but today if a man in clear contempt of court refuses to release his wife on the orders of the judge, does Islamic law allow the nikah to be canceled by the judge on request of the woman.
Will be waiting to hear from you on this very important subject.
Assalaam o alaikum wa Rahmatullah e wa Barakatuhu
I appreciate your interest in Islamic Shariah. The views of the Medieval Jurists are a product of synthesis of Islamic Shariah along with the values and socio-economic environment of their societies which is called “Ma’roof”. Therefore, you should not feel any difficulty in your mind about their views. Such restrictions came from their socio-economic background, not from Islam.
The answers to your questions are:
1. Islam gives equal rights to both men and women to marry or divorce. Any restrictions placed on these rights (for both husband & wife) are to protect the institution of family. For example, the procedure to divorce is different for the husband from the one for the wife. The objective is to protect the institution of family up to the greatest extent.
There is no list of valid reasons given in the Quran and Sunnah because it is not possible to count such reasons for all societies and for all the times. We find some incidents at the Prophet’s time for such divorce. They provide some reasons. It does not mean that number of reasons is limited to those mentioned in such incidents. A large number of different incidents can come in future in different societies.
You’ve correctly mentioned the Hadith that the Prophet صلی اللہ علیہ وآلہ وسلم implemented the divorce of two wives of Thabit Ibn Qais. One was Habiba Bint Sahl who seeked divorce because she did not like the appearance of her husband. She said:
يا رسول الله ثابت بن قيس أما إني ما أعيب عليه في خلق ولا دين ولكني أكره الكفر في الإسلام
“O Allah’s Apostle! I don’t blame Thabit for his appearance or religion. But I hate to revert to infidelity after Islam.”
His other wife Jameela Bint Abdullah Ibn Ubai also seeked divorce because he tortured her.
أن ثابت بن قيس بن شماس ضرب امرأته فكسر يدها وهي جميلة بنت عبد الله بن أبي
“Thabit Ibn Qais jabbed his wife and broke her hand. She was Jameela Bint Abdullah Ibn Ubai.” (Both reports are mentioned in Sunan Nisai, the Book of Divorce and are authenticated by Nasir ud Din Albani).
Therefore, it is clear from above mentioned Ahadith that physical or mental torture by husband is one of the valid reasons for seeking divorce.
On the other side, the Prophet also told to both men and women that divorce without a valid reason is a great sin.
2. The government has full right of implementing divorce. The judge will ask the husband to divorce. If he refuses or delays the matter, the Judge will implement it legally and the couple will be separated. I don’t know about any disagreement on this point. All scholars agree that the court has the right to implement the divorce.
I’ve replied you on the basis on my knowledge and research. You can contact other scholars for that. It is better to compare different views with their arguments to reach at a conclusion. This is according to Shari’a. Practical law of different countries may differ. You should contact some lawyer of your country to know about the law of the country where you’re residing.
Subsequently, I checked the views of Medieval Jurists on the right of divorce. They have provided an amazing list of valid reasons in case of which, the wife claim for divorce or a court can initiate an action to implement the divorce itself. This list covers almost everything. I’m copying the details of such reasons from the Juristic Encyclopedia of Kuwait:
—— The husband does not pay agreed-upon Mehr (dowry) to his wife.
—— The husband is unable to meet expenses for his wife.
—— The husband tortures his wife.
—— The husband disappears from the scene and there is no information about him.
—— The husband is sent to jail due to committing a crime and now he is unable to discharge his liability to his wife.
—— The husband becomes physically disable to fulfill the rights of his wife.
—— The husband converts to another religion other than Islam.
—— The wife accuses her husband for adultery with another woman (Li’aan).
I think these reasons are enough to protect the rights of women. Please feel free to ask any other question appearing in your mind.
Muhammad Mubashir Nazir
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