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Fatawaa


Subject : Judge Deciding Separation on Grounds of Husband`s Unkindness and Failure to Pay Maintenance

Fatwa Number : 595

Date : 11-04-2010

Classified : Divorce

Fatwa Type : Search Fatawaa


Question :

What is the ruling of Sharia on the husband who treats his wife unkindly, doesn`t provide for her and refuses to grant her divorce?


Is it permissible for her to file for Khulu` on grounds of husband`s unkindness and failure to pay maintenance?


The Answer :

Praise be to Allah the Lord of the Worlds. May His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

As for failure to spend on wife, Maliki, Shafie and Hanbali Madhabs permit the judge to rule in favor of separation based on the verse in which Allah the Almighty says (What means): " Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself. These are the limits (imposed by) Allah. Transgress them not. For whoso transgresseth Allah’s limits: such are wrong-doers." {Al-Baqarah, 229}. This opinion is also supported by the following Hadith: Umar (May Allah be pleased with him} narrated: "He wrote (letters) to the commanders of the armies regarding some men (soldiers) who have been absent from their wives, that they should impose upon them to spend on their wives or divorce them; and if they divorce them they should then send the maintenance which they have withheld." [ash-Shafi'i reported it, then al-Baihaqi with a Hasan (good) chain of narrators]. Therfore, the judge`s decision to separate them for this reason is permissible and valid.

As for husband`s unkindness to wife, Maliki as well as some Hanbali and Shafie scholars granted the two arbiters the right to rule in favor of separation if there was no room for reconciliation. In case the two arbiters decided separating the spouses for this reason (Unkindness of husband) and the judge ruled in favor of that decision, then the verdict is valid and this is better than her filing for Khulu (Divorce at the instance of the wife who pays a compensation). And Allah the Almighty knows best.




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