Divorce Issues

Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh.  (May Allah's Peace, Mercy and Blessings be upon all of you)

 

 

One of our brothers/sisters has asked this question:

Please help me understand my position. I belong to the Bohora community and am a mother of two children , aged 14and12. I have recently separated(6months now) from my husband of 15yrs.I could not take my children with me due to financial limitations. My husband has refused to support the children financially in any way if I do decide to take them withme. He is also refusing to grant me divorce. Though I continued to live in the same house,we have not had any marital relationship for four years. We also were not communicating at all. He is adamantly refusing to divorce me for very flimsy reasons. I have approached the jamaat head and he also says that there is nothing any body can do under such circumstances. 

What I would like to know is:How can I obtain my freedom from this man?

 

What are my rights regarding my children?

 

Whilst he is refusing to grant me divorce, can he marry for a second time without my consent?

 

I am told that I might have to pay him money to get a divorce. Is this lawful?

 

The gifts of gold that I had been given by his family and him at the time of marriage and any gifts given to me during the marriage have to be returned. Is this so?

 

I have not been given any significant amount of mehr. I still have the original amount(cash only) intact. Do I have to return this ?

 

I have been told that Islam is the only religion that gives a woman the right to divorce. But , the way I understand the situation is that , a woman can move for divorce, but the husband holds the power to refuse. If he wants to divorce his wife , then it is very easy for him. He just has to "stay away" from her for three months and that is final.She has no say or power to refuse to divorce him. Please correct me if I am holding any misconceptions.Awaiting an urgent reply. 

 

(There may be some grammatical and spelling errors in the above statement. The forum does not change anything from questions, comments and statements received from our readers for circulation in confidentiality.)

 

Answer:

 

Divorce Issues

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is no one (no idol,  no person,  no grave, no prophet,  no imam,  no dai,  nobody!) worthy of worship but Allah Alone, and we bear witness that Muhammad(saws) is His slave-servant and the seal of His Messengers.

 

Your question:  How can I obtain my freedom from this man?

All you have to do is approach any Shariah Court, and give him a reason that you do not wish to remain married to your husband.   The reason can be as simple as the two of you do not get along, or that you simply no longer wish to remain married to him.    

 

The Judge should then arrange to grant you a divorce, which is known in Shariah as ‘Khula’.   If a husband divorces his wife,  she does not have to pay back the ‘mehr’;  but when a wife asks for ‘khula’ or divorce,  she is required to pay back the ‘mehr’ and all the gifts given to her by her husband,  unless he willingly lets it go.  Other than that, there are no restrictions for a woman asking for ‘khula’ or divorce in Islam.

 

Your question: What are my rights regarding my children?

The law in Islam is that for the male children upto the age of 7, and for the girl children upto the age of puberty,  they will stay with the mother.    It is the responsibility of the father to provide for the upkeep of the children during this period of dependence.  

 

After these ages, the right will be transferred to the children and they will have the right to decide whom they wish to stay with.    Whether they decide to stay with the mother or the father, it is the responsibility of the father alone to provide for their upkeep until the age of dependence.

 

Your question:  Whilst he is refusing to grant me divorce, can he marry for a second time without my consent?

A believer does not need the consent of his first wife or wives, to marry again.    Allah has given the believers permission to marry, and have upto a maximum of four wives at any one time.   

 

Your question:  I am told that I might have to pay him money to get a divorce. Is this lawful?

Allah says in the Holy Quran Chapter 2 Surah Baqarah verse 229:Divorce may be pronounced twice (by the husband); then either keep the wife with honor,  or let her leave gracefully.   And it is not lawful for you to take back anything out of what you have given them.   There is however, an exception to this; if you fear that they might not be able to keep within the limits imposed by Allah,  there is no harm if both agree mutually that the wife should obtain divorce by giving something as compensation to the husband.   These are the bounds set by Allah; therefore do not violate them!   For those who violate the bounds of Allah are the transgressors.

 

If a wife initiates the divorce, it is termed ‘khula’ in Islamic Law or Shariah.   In such a case, it would be permissible for the husband to take back from the wife the whole or part of the ‘mehr’ according to the terms of the agreement.   But if the husband himself divorces his wife, he will have no right to take back anything that he has given her, neither the ‘mehr’ nor the gifts, etc.

 

Your question: The gifts of gold that I had been given by his family and him at the time of marriage and any gifts given to me during the marriage have to be returned. Is this so?

This is indeed the case when the woman asks for a divorce.   Her husband has a right to take back whole or part of the mehr, and the gifts which he has given her during the marriage.

 

But if the husband gives the divorce, he has no right to take anything back from the wife.

 

Your question:  I have not been given any significant amount of mehr. I still have the original amount(cash only) intact. Do I have to return this ?

The amount of mehr that was paid during the marriage, is the amount to be given back if the wife initiates the divorce.

 

Your question: I have been told that Islam is the only religion that gives a woman the right to divorce. But , the way I understand the situation is that , a woman can move for divorce, but the husband holds the power to refuse. If he wants to divorce his wife , then it is very easy for him. He just has to "stay away" from her for three months and that is final.She has no say or power to refuse to divorce him. Please correct me if I am holding any misconceptions.  Awaiting an urgent reply. 

Allah says in the Holy Quran Chapter 2 Surah Baqarah verses 226-227:Those who take an oath to keep apart from their wives, are given four months (for a final decision).   Then if they resume their relations, Allah is Forgiving and Merciful.  And if they resolve on divorce,  (let them remember that) Allah hears everything, and knows everything.

 

Allah Subhanah, in His Divine Wisdom, has put the ties of marriage into the hands of the man.   When he wishes to divorce her, it is indeed easy for him to do so.   He has to pronounce the divorce by stating ‘I divorce you’, and wait for three monthly periods,  after which the divorce is final,  and each of the partners are allowed to marry whomever they will.   If during this waiting period or ‘iddah’ of three monthly courses, the husband and wife decide to live together and have conjugal relation, the divorce will be deemed cancelled.  The husband has the right to cancel the divorce twice, and if he pronounces a divorce for the third time, it will be irrevocable, and he will not be able to cancel this final and irrevocable divorce.   

 

If the woman moves or initiates for a divorce, she will have to approach an Islamic or Shariah Court, and they will either tell the husband to divorce her, and if he refuses to do so, they will grant the divorce, which will be final.

 

The husband does not have a right to refuse the divorce, if initiated by the wife, and decreed by the Shariah Court.   The marital relations between a husband and a wife are not allowed to remain cordial.  There do occur causes which render the relations strained, but Allah’s Law does not allow that the strained relations should continue indefinitely.  It has, therefore, laid down the maximum period of four months, during which, they should either reconcile with each other as husband and wife, or separate for good,  so that they are free to marry wherever they wish.

 

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me.  Allah Alone Knows Best and He is the Only Source of Strength.

 

Your Brother in Islam,

 

 

Burhan

 

 

 

 

 

 

 

 

 

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