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A while ago, I had gathered some quotes showing that separation of Muslim couples without the husband agreeing, through courts in Muslim countries are unreliable. A female Muslim can still be legally married while being divorced under law. I believe many are ignorant of this fact and Muslim men should take responsibility for the women in their family.

Fatwa of Mawlana Ashraf Ali Thanwi

The book called Hilatun Najiza which has numerous times been mentioned by the scholars as we have noticed previously, was written by Ashraf Ali Thanwi in 1933. He wrote the book when he saw the problematic issue of Muslim women in British India not able to obtain a divorce from their husbands. There was no way out for women when the husband did not agree with a divorce nor with a khul’. This resulted sometimes in women being apostates, in order to find their way out of the marriage contract. This was one of the reasons why the book was written in order to give some options to the women, who were getting abused by their husbands who were not fulfilling the rights of the wife. Ashraf Ali Thanwi exchanged letters with Maliki scholars from the Arab world, in order find a solution, since in the Maliki school of thought an annulment done by a judge done in an Islamic manner, even without the agreement of the husband, would be valid.

The later scholars of India saw this book as a guideline for those judges and local councils who wanted to annul the marriage contract of a couple, and recommended the study of this book strongly.

When looking at the contents he discusses several issues. One is the issue of annulment of the marriage contract and the other is the recommendation of delegating one divorce [tafwid al-talaq] to the wife’s party. If this would be done during the marriage contract, many problems would solve that may occur later on.

The other point he discusses, which is the most part of the book, are the conditions attached to the annulment of the contract. When looking to the conditions attached to the annulment of the contract without the husband agreeing, one can note how strict the conditions are given by the author of the book. It shows how it would not be easy to dissolve a marriage contract without the husband agreeing.

The author states that if there is a Muslim judge who is handling these cases in an Islamic manner, then there is no harm in accepting his decision. If however the judge is a non-Muslim then his decision is in all cases unreliable. Even if he was right in his verdict, it still would not be acceptable for Muslims to accept the decision simply because a non-Muslim may not decide over the case of the Muslims.

If the judge is a Muslim but does not follow the Islamic law in his decision and rather is obliged to follow the British law, the verdict of the judge in annulling the marriage contract would still not be reliable. The women seeking divorce was bound to go to an Islamic council dealing with such a case. The local scholar who would be the head of the council, would have the power to dissolve the contract of the couple, even without the permission of the husband. This local council would be counted as a replacement of the judge. It was acknowledged that generally there was no Islamic judge in India. (Ashraf Ali Thanwi, Hilat Najiza, Karachi: Dar al-Isha‘at 1987, p. 33, 148)

It would be permissible in necessary circumstances when the husband refuses to divorce, to adopt the position of another school of thought. For there is no way out for a woman seeking divorce when the husband refuses to cooperate. According to the Hanafi school of thought, it would then be permissible out of necessity to follow the Maliki school of thought in this case in order to release the wife from her husband. (Ibid, p. 34)

One of the difficulties in arranging such a council is that such a council should have righteous people in it. As the author states, he is not supposed to be a sinner and should not committing little sins continuously. A person who shaves of his beard, or does not fast or pray and lies, can not become a part of this council. The council should have at least one scholar, if all of the people in the councils are not scholars. If this is not possible, then there is no way the verdict of this council can be deemed as reliable, because everybody would decide according to his whims and desires. All of the people in the council should agree with the verdict, if not, the decision would not be valid. (Ibid, p. 40-42)

It is emphasized in the book that the council should constitute of at least three persons. If there are only one or two persons it, the decision is not reliable. There are supposed to be righteous [‘adil] and the scholars should have a part in the council. A council constituting of only laymen is not reliable. They should all agree with the verdict in the end. (Ibid, p. 149)

The rulings he has laid out for the council to follow has strict conditions attached to it. The council is obliged to follow the guidelines and the attached conditions. More importantly, the author only mentions five reasons that are applicable to a woman in order to get her contract dissolved. A summary of the reasons with some of the conditions are as follow:

• Husband is impotent [‘innin]: The wife asking for an annulment because of the husband being impotent is bound to many conditions. The judge would perform a research to gather the facts. If the wife knew on beforehand that the husband was impotent and still got married to him, she would have no right to ask for an annulment. If they had relations after the marriage, and after that the husband got impotent, the right to ask for an annulment would no longer remain. When she heard of the news that the husband was impotent, she expressed her disapproval of living with him as his wife. If she did not do so, her right will be expire. The husband would be given the time in order to find a cure for his problem. As one can easily note, the conditions and guidelines mentioned by Ashraf Ali are many and it would not be that easy to perform an annulment of the contract.
• Husband is a madman [majnun]: Here the judge will give the husband a year in order to recover. If no changes occurred the wife will have the choice whether to stay with him or not. The wife will have to prove that the husband is dangerously crazy. After knowing he went crazy, the wife is not supposed to have bed relations with her husband, if she did so, it will be seen as being satisfactory for having him as a husband. By doing this deed the annulment will expire. However, there is detail into this regarding how crazy the husband got. If it was little and the wife had bed relations with him, and then it got worse, she will still have the right to ask for annulment. From the conditions mentioned by the author of Hilat al-Nijaza, it is quite clear that also in this case the wife is supposed to go a lot of proceedings.
• Husband has gone missing [mafqud]: In case the husband goes missing, the Maliki school is adopted since the Shafi‘i and the Hanafi schools of thought state that a wife should wait until the contemporaries of the husband have died. In case the Maliki school is adopted, the wife is supposed to wait for four years after she has informed the council or judge of her husband being missing. After everything is done to find the husband, the husband will be declared dead by the judge after four years. The judge is not supposed to take the words of the wife’s party, but he himself should also try to search for the husband. However, if there is strong possibility for the wife to commit a sin, she would be allowed to wait only one year.
• Husband being obdurate [muta‘annit]: This husband has the ability to fulfill the financial responsibilities towards his wife, but fails to do so. After a research done by the judge or the council this fact should be established first through witnesses. The husband should be asked to agree with a divorce, or asked to fulfill his financial duties towards his wife. If he refuses to do so, the council will grant the wife a divorce. There is no need to wait for the annulment of the contract or give the husband another chance according to the Maliki scholars. However, if the husband is ready to fulfill the financial rights of his wife again, he would be allowed to do so and can take his wife back during the waiting period. No annulment would take place in this case.
• The husband being absent [gha’ib]: If he is present, but not coming to his wife and not fulfilling his financial responsibilities, he should be asked by the judge to fulfill his wife’s rights. If he is not willing to do so, the judge can annul the contract. However, sending a letter to the husband would not be enough. Two reliable men should visit the husband and mention the consequences of not fulfill the rights of his wife. Now if the contract is annulled and the husband came back, and claimed the wife did not tell the whole story. If he can prove to the judge that this was indeed the case, he can take his wife back, even if the wife married an other male and got children from him. The second marriage would be considered as invalid. (Ibid, p. 29, 43, 51, 59, 73, 77, 165-167)

As we can see these five reasons have many conditions and guidelines attached to it. It shows how seriously the council or judge should work. One can also note that it seems unlikely that the judges in British India would carry out their work in the above manner.

Whether a wife can still ask for an annulment in any other cases than the above reasons, seems to be still under the debate of the scholars. We see that for example in the article of Taqi Usmani, whose article was attached in the book of Ashraf Ali Thanwi, that there are two kind of rights. One category of rights should be fulfilled by the husband religiously [diyanatan] out of fear of God. These rights can not be obtained through a court like for example being good towards his wife, having a good character etc. If one can not obtain these rights through a court, it is according to Taqi Usmani also impossible that they annul the contract. Thus he states in the end that all agree that only because of five faults the judge has the right to annul the contract. He emphasizes that a judge can not annul the contract simply because the wife is not happy with her husband.

Whether judgment by Taqi Usmani is absolute, remains the question. In the Muslim world annulment still takes places besides the five mentioned reasons.

Fatwa of Mufti Mahmud al-Hasan

Mahmud al-Hasan Gangohi was born in 1907. He got his religious education from Mazahir ‘Ulum. A school situated in Saharanpur, India which was a branch of the first madrasa established in Deoband in 1867. After graduation from Mazahir Ulum, he joined the institute in Deoband for two years. After his education, he began his career as a teacher and Mufti at Mazahir ‘Ulum, where he graduated from. He remained there for 25 years. Thereafter he left his teaching position in Saharanpur and began to teach at Jami’ al-ulum in Kanpur. After 14 years, he was then was asked by the elders of Deoband to become a Mufti in Deoband, which he accepted. For 18 years he served as a Mufti at the Dar al-Ifta’ department in Deoband. At Deoband, he was also given the honorable position to teach the book Sahih al-Bukhari, a task only given to competent teachers. He died in South-Africa in 1996, and was laid to rest there. He gave the following fatwa about divorce initiated through the court in India:

"In India, the Muslim judges who are appointed by the government like in Calcutta and elsewhere, their judgments are valid from an Islamic perspective if done according to the rulings of Islam." (Fatawa Mahmudiyya, 9/359)

Fatwa of Mawlana Abd al-Haq Haqqani

One of the famous scholars in Pakistan Shaykh ‘Abd al-Haq Haqqani, the founder of the famous Islamic school in Akora Khattaq stated likewise about the Muslim judge annulling a marriage contract:

"When the ruler [hakim] does not rules according Islamic principles [qawa‘id], then his decision will not be implemented and all Muslims should necessary protest against such decisions." (‘Abd al-Qayyum Haqqani, Sawanih Mawlana ‘Abd al-Haq, Sarhad: Al-Qasim Academy 2001, p. 253)

Fatwa of Barelwi scholar Mawlana Munib al-Rahman

The contemporary Barelwi author Munib al-Rahman insists in his fatwa, that when the judge annuls the marriage without the husband agreeing, this is not called a khul’, but a faskh (annulment). It is only called a khul’ when both parties agree with each other and the husband receives some sort of payment in exchange of the divorce. He stated that the annulments done by family courts in Pakistan, are not always done according to Islam. Moreover, they are sometimes totally unfamiliar with Islamic law. So he states that it is difficult to generalize about all courts, and states that a decision about a particular case can only be given when the full procedure done by the judge is studied, because the proof, witnesses and reasons for annulment is in every juridical case different.

He condemned using the word khul’ for an annulment made by the judge, because khul’ is only done when both parties agree when the wife gives up her dowry in order to receive a divorce. Thus he says with caution that if the court rules according to the proper Islamic methods in order to annul the marriage, without the agreement of the husband, this will be called an Islamic divorce, is not, this will not be so according to the Islamic law. (Munib al-Rahman, Tafhim al-Masa’il, Lahore: Zia al-Qur’an Publications 2004, 2/280-287)