What if husband refuses to divorce wife?

http://islamqa.org/hanafi/daruliftaa/7731

What can a wife do if the husband refuses to give her a divorce? She can no longer live with him and he does not give her rights. In Islam, does only the man have the right to divorce? What if the woman is very unhappy? Is they any way out for her or will she have to suffer all her life?

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

In Islam, divorce is considered to be the worst of the lawful things. The Messenger of Allah, (Allah bless him & give him peace) said:

“Divorce is the most hated of all lawful (halal) things in the sight of Allah.” (Sunan Abu Dawud, no. 2178)

Although Islam emphasises the importance of marriage, it is a humane and practical religion which recognises the fact that there may be situations in which dissolving the marriage bond may be in the better interests of the individuals concerned and of society at large. Divorce is allowed as a last resort, rather as amputation or major surgery may be the unpleasant but a necessary step needed to save a person’s life. If divorce was forbidden, then animosity and adultery may become rampant. To save individuals and society from the greater evils, divorce has been permitted. However, it is not a step to be taken lightly or hastily. Sincere attempts at reconciliation are to be made first and – as in the case of marriage – the rights and welfare of women are to be upheld.

Imam Abu Hamid al Ghazali (Allah have mercy on him) states:

“The greatest care should be taken to avoid divorce, for, though divorce is permitted, yet Allah disapproves of it. If divorce becomes essential then the woman should be divorced kindly, not through anger or contempt, and not without a valid reason. After divorce, a man should give his former wife a present and not announce to others any of her shortcomings.”

Due to this spirit of Islam, Allah Most High granted the right of divorce to the husband and not the wife or any other third party. If one was to look at the verses in the Qur’an that deal with divorce, one will see that the address of divorce is directed to the husbands only and not the wives.

For example, Allah Most High says:

“O Prophet! When you divorce women, divorce them at their prescribed periods, and count their prescribed periods, and fear Allah your Lord.” (Surah al-Talaq, 1)

It should be remarked here that in the first instance the Messenger of Allah (Allah bless him & give him peace) is addressed individually, as the teacher and representative of the community. Then the actual directions are addressed to the community collectively.

Allah Most High says:

“So if the husband divorces his wife (irrevocably), he cannot, after that, remarry her until after she has married another husband and he has divorced her.” (Surah al-Baqarah, 230)

And:

“When you divorce women, and they fulfil the term of their Idda, either take them back on equitable terms or set them free on equitable terms, but do not take them back to injure them or take undue advantage.” (Surah al-Baqarah, 231)

And:

“There is no blame on you if you divorce women before consummation or the fixation of their dower.” (al-Baqarah, 236)

And in one verse, it is quite clear:

“And he in whose hand is the marriage tie.” (al-Baqarah, 237)

The above verses are just some of the examples which indicate that the right to divorce has been given to men. There is not one verse in the Qur’an where divorce has been attributed to the wives. The same can be understood from the narrations of the Messenger of Allah (Allah bless him & give him peace).

One must always remember that Shariah injunctions are fully in conformance with logic, wisdom and are prescribed for the betterment of the society as a whole. We as Muslims believe that nothing has been ordained by Allah Almighty except that there is benefit in it for us. We are not from those that attempt to twist the rulings of Shariah in order to appease ourselves and the so called ‘modern world’.

Wisdoms behind the right of divorce being given to men:

There are many reasons and much wisdom in giving this right to the husbands, just to mention a few:

1) As mentioned previously, divorce is the most detested of the lawful things in Shariah. Therefore, in order to prevent unnecessary divorces, there was great wisdom in giving the right of divorce to men.

The reason for this is that, in the case of a divorce, although both the husband and wife suffer as a result (psychologically for instance), a man encounters many financial disadvantages and has the additional burden of a heavy responsibility. He loses the dowry (mahr) that was paid to the woman, he will have to pay Mahr for the second time if he marries again, the wife is entitled to financial support and maintenance (nafaqa) whilst in the waiting period (idda), she is entitled to child maintenance if young children are in her custody, etc…

The husband has so much to lose financially if he divorces his wife and this acts as a natural deterrent from abusing his right of divorce. If women had such a right, however, there would be no such check on them because they do not have any financial responsibilities towards their husbands.

2) There is no doubt in the fact that the Almighty Creator created men and women differently in many ways, physically, psychologically, mentally and emotionally. Both men and women have been given certain qualities, features and characteristics and according to these characteristics, Allah Most High divided their responsibilities.

Men and women have been given certain duties and responsibilities that suited them and that it conformed to the way they were created. The responsibility of providing the daily bread was placed on the shoulder of the husband, as it requires physical strength and men were naturally created with more physical power than women. Similarly, the responsibility of looking after the household affairs (to a certain degree) was given to the woman, as that was more suited to her.

This is not a question of injustice or sexual discrimination. Let me give you an example: I had two friends that were ready to help and assist me due to seeing me overloaded with work. Now, I had two things that needed to be done, one was to thoroughly clean my office with the moving of heavy furniture, and the other job was to calculate my accounts. One of my friends was physically stronger and had a well-built body, whilst the other was not so quite fortunate in this regard, but had a great brain. It will only be from common sense that I hand the job of calculation to the one who was more able mentally and the lifting of heavy furniture to the one who had more strength, might and power. If the contrary was done, it would be condemned by everybody.

Similar is the case with Allah Almighty in that He distributed the responsibilities and rights between men and women in a way that was suited to them. Women naturally have been created with this great quality of compassion, warmth and sensitivity. They are easily pleased and made angry. This is something that they have naturally been created with. If the husband becomes upset, it may take months in order to overcome his stubbornness and please him, whilst the wife can be pleased very easily no matter how displeased she was. This is one of the great qualities women possess and we as men should definitely learn from it.

Due to women being more sensitive than men, it was natural (keeping in mind the dislike of divorce in Islam) that the right to divorce was not given to them. If it was, then there would be many divorces and break-up of marriages. They would issue divorces in the heat of the moment and regret it later. Ask married couples how many times the wife divorces her husband during the day, but from the heart she truly and genuinely loves him and could not consider a moment of her life without him. A man due to his doggedness and generally having more ability to reflect and ponder was duly given this right of divorce.

These are just two of the wisdoms behind the right of divorce been given to the man.

This does not, in any way, mean that the husband may abuse this right and harm and mistreat the wife without her having any means to end the marriage. Islam is a complete religion and respects the rights of all. There are various grounds on which a woman may seek the annulment of her marriage.

1) The following are the grounds on which the wife may seek a divorce from her husband at a court of an Islamic country or in the absence of an Islamic Court (as in western countries) from a committee of a few religious people that consists of at least one scholar of Islamic law:

a) Inability or refusal of the husband to financially support his wife (even if she happens to be rich, it is still the full responsibility of the husband to maintain her).

b) Abuse and mistreatment of the wife (which includes beating and swearing, cursing and attempting to force her to do wrong).

c) Impotence or any other illness that prevents the husband from fulfilling the wife’s sexual needs (in recognition of the wife’s legitimate instinctive needs).

d) Incurable, repulsive disease in the husband like leprosy (or aids according to the contemporary scholars).

e) Insanity in the husband.

f) Extended absence or desertion of the husband.

g) The husband deceiving and concealing information regarding himself at the time of marriage.

h) The relationship becoming severely damaged, in that there is allot of hatred between the spouses and it is impossible for them to live a peaceful life.

The above are brief examples in which a woman can seek a divorce. There are certain rules, regulations and principles with regards to the procedure, and one should consult a reliable scholar before taking any action.

2) There are certain situations where a woman may get a divorce even without the intervention of an Islamic court:

a) Delegating of the husband, the right of divorcing, to the wife after marriage,

b) Delegating this right at the time of contracting the marriage,

c) Delegation of this right before the marriage and the marriage is attributed to this delegation,

d) Conditional delegation, where at the time of signing the marriage contract, the wife stipulated certain conditions to her husband, the breach of which would result in a divorce.

There are certain rules for this also. For more details, see a detailed article on this website (in the marriage section) with regards to stipulating conditions in marriage.

In conclusion, Shariah primarily gives the unilateral right to divorce to the husband. However, under certain conditions, the wife also has a right to seek for the annulment of the marriage. This is the ruling that was chosen for us by our Creator and it is totally in accordance with logic, common sense and the betterment of the society as a whole.

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK