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:
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
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