My problem, in short, is that I have been married since 1993 and I have one daughter, and from the beginning of our marriage, the problems between my husband and I were endless. The marriage lacked tranquility and peace of mind. Consequently, it became impossible for us to live with each other. For about five years now, there has been a separation between us. I live with my parents, and he lives with his. My husband refuses to divorce me even though we cannot even come together under the same roof. What is the ruling on my case? I heard that if there is a separation for three years between the spouses, the marriage becomes annulled or divorce is effected. What about five years of separation?
Answer
All perfect praise be to Allaah, the Lord of the worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, is His Slave and Messenger.
Allaah The Almighty legislated marriage so that spouses may find tranquility with each other. He made affection and mercy the basis of this relationship. Allaah The Almighty Says )what means(:}And of His Signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought.{]Quran 30:21[
Allaah The Almighty orders the spouses to be kind to each other and obligated rights for each one over the other. If the relationship reaches a deadlock, Allaah The Almighty legislates divorce for men if they are unable to continue their life without severe hardship. Allaah The Almighty also legislates Khul' )divorce initiated by the wife( for women when it is harmful for her to continue her marital life. Separation without divorce or Khul' is not considered a valid separation under Sharee‘ah )Islamic law( no matter how long the period may be. Hence, you have to ask this man to divorce you, if you feel that you can no longer live with him. If he refuses to divorce you, then, seek Khul’. If he further refuses, then, you should submit your case to the court to settle the matter.We supplicate Allaah The Almighty to choose what is best for you.
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NajimudeeN M
Assalaamu alaikum, Can a sister ask for Khula while in her menses? Jazak Allah khair
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammadis His slave and Messenger.
It is permissible for a wife to ask for Khul’ during menses. But the juristsheld different opinions on whether or not it is permissible )for a husband( to issue Khul’ when the wife is in her menses. Some of them are of the view that this is permissible, like the Hanbali School of jurisprudence and some others prohibited it like the Maaliki and Shaafi’i Schools of jurisprudence according to their most correct opinion.
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Question
ASAWRWB, my daughter married in 2003 and begot 2 children.my son-in-law cheated us though he was already married, he did not work for first 3 years for fear of dowry harrasment case pending against him due to first marriage. we came to know of this since 1 year. he is arrogant and mistreated my daughter, he uses filthy language, he is blackmailing my daughter through her son aged 7 years.he also filed false case of attempt to murder against me in india. my daughter wants to get separated and join me at qatar.he does not want to give the boy but he does not want his daughter.he states that his previous case is solved but does not shows the evidence. he does not care the law of the land, though high court order allows my daughter to visit her parents , he does not allow her. my family with my 2nd daughter is in qatar,pl advise us as to what we should do in the light of shariah. can we claim for the custody of the boy due to his bad character. he is an absconding person with no relationship and whereabouts.can my daughter seek for khula and if so what r his liabilities and her liabilities.iam praying to the Allmighty to make favourable judgement in the best interest of my daughter. may ALLAAH bestow His blessings and mercy on us all, may ALLAAH find a good and favourable soloution to this problem, as HIS knowledge is vast and we have no knowledge of what is good or bad for us. He is all knowing, most powerful, best of all judges,pl do pray for us and inshaallaah hope ALLAAH finds for us a solution very soon. my daughter is living separately now with her 4 year old daughter, as he has left her to the mercy of ALLAH , my daughter is steadfast, alhamdullillaah, observing saum, salat and hijab.may ALLAAH guide u to advise us righteously and reward u for the same, maa salaam
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammadis His slave and Messenger.
We have already issued Fatwa 86395clarifying that a husband is not obliged to inform his second wife that he is already married. Therefore, you have no right to file a case against that man just because he was already married before marrying your daughter.
As regards what you mentioned about his mistreatment to your daughter – if this is true – then he is Islamically not permitted to do so as he is ordered to treat her kindly; Allaah Says )what means(: }And live with them in kindness.{]Quran 4:19[ For more benefit, please refer to Fatwa 88304.
In case she is harmed by staying with him, then she has the right to ask for divorce due to the harm even if this divorce is in return for compensation that she gives to him; this is what is called Khul’ and it is clarified in Fatwa 89039.
However, it should be noted that he is not permitted to take this compensation from her if he is the one who caused the harm. Allaah Says )what means(: }And do not make difficulties for them in order to take ]back[ part of what you gave them unless they commit a clear immorality ]i.e. adultery[.{]Quran 4:19[
As regards the fostering of these two children when the parents are still married, then it is the right of both parents, and if they separate, the fostering is for the mother as long as she does not remarry. In case she travels to another country, the fostering is for the father;Al-Mardaawifrom the Hanbali school of jurisprudence, said in his book “Al-Insaaf”: “If either parent wants to travel to a distant and safe country in order to live there, then the father has more right in fostering the child.”
Moreover,Ibn Taymiyyahsaid in his book “Al-Fataawi Al-Kubra”: “If the husband resides in a country other than the country of the mother, then it is him who has the right in the fostering and not the mother, even though the mother has more right in the fostering than him if they are in the same country. This is also the view of the four schools of jurisprudence.”
Furthermore, having a bad conduct does not prevent the father from his right in the fostering as long as the matter does not reach dissoluteness as the fosterer may lose his right in fostering due to this, like if he/she is known for committing Zina )fornication or adultery(, consuming intoxicants and the like. For more benefit, refer to Fatwa 90461.
As mentioned before, your daughter has the right to ask her husband for Khul’, meaning asking him to divorce her in return for compensation that she gives to him. In case she takes Khul’, she becomes irrevocably divorced from him, and so, he does not have to spend on her unless she is pregnant. Besides, she is obliged to observe a waiting period and she is not permitted to live with him in the same house unless each one of them is in a part of the house that is separate with all its amenities as he has become a non-Mahram to her and there is no longer any relation between them.
In conclusion, you may endeavor to free your daughter from that man if it is confirmed that he harms her and she wants to be separated from him. Nonetheless, our advice is that rational people from the family of the husband and from that of the wife should interfere and try to reconcile between them if possible, otherwise let separation take place in kindness.
It should be noted here that it is not permissible to take the case to non-Islamic courts unless in case of necessity. Similarly, it is not permissible to act according to its ruling if it contradicts the Sharee’ah.
Finally, the following two matters should be noted:
1- The scholars differed in opinion in regard to a husband preventing his wife from visiting her parents even if they are in the same country, let alone if they are in another country. For more details, refer to Fatwa 82969.
2- What you mentioned about that man accusing you of trying to kill him, if this is just an accusation without any evidence, then this is a clear sin; Allaah Says )what means(: }And those who harm believing men and believing women for ]something[ other than what they have earned ]i.e. deserved[ have certainly born upon themselves a slander and manifest sin.{]Quran 33:58[
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