#500: Can a Sister Seek for Divorce from a Muslim Cleric without the Husband`s Acceptance

QUESTION

The Questioner asks:

Can I get myself divorced by the authority of a Muslim cleric without him? If so can this sheikh do it?

ANSWER

Alhamdulillāh; what we explained to you is with respect to the situation you depicted, where the husband does not fulfill her rights as a wife, distances from her, and does not allow her a divorce even after it has become apparent that the marriage was a failure.

The Ulamā have a consensus that a wife can request a divorce if her basic rights are not fulfilled by the husband and all efforts to rectify the situation have failed.

Upon this Allāh said:

: وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُواْ حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا إِن يُرِيدَا إِصْلاَحًا يُوَفِّقِ اللّهُ بَيْنَهُمَا إِنَّ اللّهَ كَانَ عَلِيمًا خَبِيرًا {النساء:35
“And if you fear that some division could occur between them both, then appoint a judge from his family and another from her family, that they may bring about rectitude (between them ) if they truly both want rectitude, Allāh will grant them concurrence in that regard. Indeed Allāh is All-Knowing, All-Aware.” An-Nisā: 35

The Mālikī Imām Is’hāq Ibn Khalīl – rahimahullāh – said in his Mukhtasar:

وعليهما الإصلاح، فإن تعذر فإن أساء الزوج طلقا بلا خلع وبالعكس ائتمناه عليها أو خالعا له بنظرهما، وإن أساءا معاً فهل يتعين الطلاق بلا خلع أو لهما أن يخالعا بالنظر وعليه الأكثر؟ تأويلان.
“And it is upon them (the two judges) both to bring about a rectitude between them both. And if that were not possible, then, if the husband were to have wronged, then it should be a divorce, not a khul’a. If otherwise (I.e. she had wronged), then they (the judges) should both return her to him if he can take her or they dissolve the marriage with a compensation for him. But if they both committed wrong, should they dissolve the marriage simply or with a compensation for him, or for both of them – and upon this is the majority? So, two positions.”

He further said:

ونفذ طلاقهما وإن لم يرض الزوجان والحاكم
“And their dissolving of the marriage is sound and correct even if both spouses and the ruler are not in agreement”

That is if it were two arbitrating judges.

What if it were a judge or a Muslim Cleric to which she referred the matter?

The judge rules that the divorce takes place if he considers the matter to be irreconcilable.

The evidence for this is the Hadīth recorded in Sahih Bukhārī where the wife of Thābit Ibn Qays Ibn Shimās – radiyallāhu anhumā – came to the Rasūl – salallāhu alayhi wasallam – to seek for divorce and she was granted by the Rasūl – salallāhu alayhi wasallam – on the account that she returns to him the Mahr (dowry) that he had given her during the marriage.

Based on this, what is obligatory upon you is to first seek for means to resolve it amicably, if this fails, then you should refer the matter to a Muslim judge or recognized cleric who would attempt again to rectify the relationship by summoning him.

If then it fails, then he can dissolve the marriage without his acceptance as we explained earlier and then you would observe the ‘Iddah of one month.

Bārakallāhu fīkum
Jazākumullāhu Khayran.

📚 IslamNode