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Annulment of marriage

2011-08-12
August 12, 2011

ANNULMENT OF MARRIAGE

Question:


As-salāmu ‘alaykum


Can a woman ask that her marriage be annulled based on her husband not being able to take care of her? His not taking care of her is not based on an illness or a disability affecting him, but rather on his ill temper and his lack of ability to keep a job.
Also, what if it is proven that he is mentally unstable and has a very vicious temper, to such a point that he as a yo-yo feeling towards the marriage – that is, one day he is fine and wanting to make the marriage work and promises to keep his job and support her and their child, and then the next time he says that the marriage is over and wants her to come home to collect her belongings?
They are married for 15 months and he has been unemployed for 13 months. He refuses to seek employment elsewhere in the country and does not want to leave N. (= a locality in Southern Africa), which means, basically, that he is not really fighting for his marriage.
My daughter is married to one such man from N. and is currently living with me for the past 2 months, as she has recently given birth to their first child. She is not sure as to whether she wants to continue with this marriage or divorce him.
Another question is the following: Can my husband and I ask for the marriage to be annulled, if we can see that our son-in-law is not showing any signs of stabilizing himself and building a stable environment for her and their child? I am almost certain that, due to her “love” for him, she may take him back and jeopardize both her and her child’s future, as she is not able, at this point in time, to see clearly.
Please do advice.

 

Answer:


As-salāmu ‘alaykum


1.    First of all, we Muslims do not hasten to undo a lawful relationship and to undermine / disable the male authority at the first sign of inadequacy. We rather seek to edify the marital power in such a manner that change can positively take place from within, rather than from without by swiftly substituting male x for male y and aiming straight for quick-fix solutions. It seems to me that you are pushing for a hasty resolution of the union, and haste is generally a bad companion;
2.    It might be, from what you describe, that he has bipolar tendencies. Medical-psychological treatment should not be discounted as a viable alternative, unless it is proven to be impossible or far-fetched to secure his cooperation in that regard;
3.    The root causes of his unstable working relationships and / or his insistence with restricting the search for employment to N., ought to be addressed first so as to seek a solution to the underlying psychological-existential problem;
4.    A woman cannot “divorce” a man. Divorce is a right of Allah which He has exclusively placed in man’s hands. However, she can in certain circumstances seek a judicial dissolution of the union. One of the actionable grounds for that is the husband’s inability to maintain her;
5.    If she knew that he was devoid of financial funds at the time of concluding the marriage, which seems to me to be the applicable scenario in your case, she has no right of judicial recourse, though he should be urged to put his house in order in that respect. If he was poor and devoid of material means to start with, there is no obligation of maintenance resting on him. The foundation of that ruling is found in His statement, Exalted is He: «He who has plenty should spend out from his plenty, but he whose provision is restricted should spend from what Allah has given him. Allah does not demand from any self more than He has given it» [Sūrah at-Talāq: 6. That Divine statement is followed by: «Allah will appoint, after difficulty, ease»]. He should, however, allow her, in that case, to reside in the parental home if the latter is financially stable, unless either she or her family can assist him financially in such a way as to cover the primary necessities [But here, there is clear objection to his cohabitation with her on the part of her original family]. If he becomes sufficiently affluent in the course of the marriage, after his initial impecuniousness, she cannot claim from him arrear maintenance, on account of the arch-rule, established by the said Qur’ānic āyah, that the person without financial means is not legally answerable (mukallaf), i.e. liable, for maintenance. That being the case, he cannot be retrospectively saddled with legal liability for it, since the pairing: financial prosperity / duty to maintain his wife did not exist at the earlier stage of the marriage. The arch-rule in the fiqh is that, if one is not subject to taklīf in respect of something, i.e. he is not liable in law for it, no incorporeal property dayn settles in his fictional recipient for such obligations, called dhimmah in the fiqh, as a debt to be made good through the like or equivalent of what he did not discharge earlier;
6.    If, on the other hand, he had sufficient material means at the time of entering into the marriage (which does not appear to be the case in this matter), she has an option to seek the judicial dissolution of the marriage (unlike the stricter view held by Abu Hanīfah and ash-Shāfi`ī) if he can longer maintain her, especially when he ends providing nothing at all or providing what does not cover any real primary need for material sustenance. In such an instance, she appears before a judicial authority, and such presiding officer determines the matter, whether the husband is in attendance or in absentia. If her claim is proven, the judicial officer dissolves the union if he does not begin to maintain her within a reasonable grace period which he demarcates (again to grant an effective chance for the marriage to work, especially as in this case a child has been born out of the union). If such a dissolution is ordered, it takes the form of a revocable divorce = If he acquires sufficient funds to maintain her during her ‘iddah or waiting period, he has the right to take her back as his wife regardless of her consenting to that or not. If he does not take her back within the period of ‘iddah, he loses such right of revocation. The separation then becomes complete, and the two of them cannot get back together as husband and wife unless it is done pursuant to a fresh marriage contract involving their mutual consent to it, her guardian’s approving endorsement, the naming of a new dowry and, as a condition of completeness though not of essential validity, the proclamation thereof through two witnesses at least;
7.    It might well be (and it clearly appears so to me) that the harmful conduct he is dishing out to her (based of course on your depiction of the scenario which he would be entitled to challenge in court if he wishes to do so, since judgments in Islam cannot be based on one side of a story) might configure an actionable darar or judicially recognized harm of a wife by a husband. If proven, that leads, via the institution of a judicial action, and not by a unilateral determination by the wife, to a full irrevocable divorce as defined here above. The categories of actionable harm are broad, and there are ways clearly delineated in the fiqh to ascertain the harm and seek to eradicate it, either by dissolution when that step cannot be deferred, or else, whenever possible, by seeking a rapprochement which rids the relationship of such vitiating harm, if need be by sending two neutral umpires to live in the proximity of the couple for the necessary period of time. The space is too narrow here to detail those aspects;
8.    Finally, the contract is entered into between the two spouses. You as parents have no direct legal interest (as opposed to a human interest) in the subject matter of the dispute that is capable of granting you legal standing (locus standi) at any one of the relevant judicial proceedings. You cannot give rise to a legal suit on her behalf, and you should not bully her into doing so, as opposed to advising her and recommending that to her, when applicable, as a last-resort measure. You ought to let go of your desire to control the course of your daughter’s life based on your perception of what is best for her, and remit the choice in that to Allah, the One truly in charge.
Success is by Allah.


 



Recent Comments
Sumbal - February 15, 2014 19:46 PM
Assalamlikum

I have question, i am very good muslim y husband was very selfish person he used me just for immigration purpose also never supported me fianacially,how i can get annulment, please let me know according islam, becasue its really hurt me what he did to me
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