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Family therapists' fiqh is upon us!

2012-01-28
January 28, 2012

SOCIAL WORKERS' FIQH HAS NOW DESCENDED UPON US!

Q: As-salāmu ´alaykum honorable Sidi,
 
We have a question on marriage, and a divorce which can possibly be void.
 
A woman went to a shaykh to demand a khul`, lying as she told him her husband abused her.
The khul` was granted by the shaykh, who is not a qādī and whose education is unknown. He is merely the same man who celebrated the marriage ceremony between the two and runs a family therapy center.
The husband is innocent of such a charge.
He works all day long and hands the wife money, and does not disrespect her in any way.
On the other hand, although he has performed his duties as a husband, she has not.
She comes and goes as she pleases without any permission, she rarely cooks food, and she has forced her husband to sleep on the sofa with his clothes left in a pile on the floor.
She verbally abused the husband. He works and she has never worked a single day in her life, as she lives on benefit from the kāfir government in a western country.
They still live under the same roof. The wife's ‘iddah will be over soon, and the husband is now facing homelessness.
If he does not move out, the wife threatens to call the kāfir police and report the husband for a “crime” he is innocent of.
The woman in question has two brothers living in the same region, whereas the husband is alone and has no family to help him. Her two brothers are well aware that she is lying and that the husband is innocent of the charge.
 
Both husband and wife, as well as all other people involved in the story, follow the Shāfischool of law.
 
What is the verdict on the divorce, and the fiqh on the general scenario?

A: It appears that, with the devolution of Islam, as a societal phenomenon, proceeding at an increasingly faster speed, we have reached the novel phase of “social workers’ fiqh.

    In the first place, it must be emphasized that no legitimate authority can attach to the therapist’s pronouncement of dissolution of the union. That authority must derive from a recognized ground. Here there is none. There is no Islamic leadership who has appointed him to determine the dispute; and there is no contractual agreement whereby the parties have jointly consented to his jurisdiction to rule upon it. His flagrant lack of any jurisdictional competence means that, on that basis alone, his dissolution of the union is legally void and of no force and effect. It is pro non dicto, i.e. as if it was never pronounced;
    Secondly, and subordinately, he lacks the requisite skills to fulfill such role in any event. His lack of eligibility for it is obviously exacerbated by the unilateral procedure he followed in the matter;
    Thirdly, it is trite law in Islam that a khul` is the consensual rescission of a contract of marriage by the two spouses thereto. It is a bilateral transaction in terms of which each party gives a quid pro quo to the other. Here, there could have been no khul` when no bilateral agreement was concluded and only one party took part in the process where she unilaterally demanded the dissolution of the marriage. Such scenario could only have involved a claim to dissolve it based on alleged darar or actionable harm;
    Even then, there was total irregularity in what the family therapist did. An action for dissolution of a marriage founded on darar must necessarily involve hearing evidence from both parties to the dispute, even alleging, purely on a hypothetical basis, that the therapist had any recognized jurisdiction to entertain the dispute to begin with. He thus had to hear the counter-testimony of the husband, and could never rely on the word of the woman alone. Indeed, from the details of the scenario sketched in the question, it appears that on the merits the husband had a far more cogent case and that the allegations of the woman lacked sufficient substance, but, over and above that, no decision could have been reached even by a lawfully constituted and qualified judge in the absence of the male partner to the marriage;
    The most one could say in this regard is that the issue of harm and the identification of which one of the spouses is wholly or chiefly responsible for it is an unclear and entangled issue that requires deeper full-rounded scrutiny. In that event, even in the view of Imām ash-Shāfi`ī, whose school of jurisprudence both spouses adhere to, it would be necessary to send two neutral arbiters to investigate the situation and break the impasse one way or the other, by bringing about reconciliation or by separating the spouses as a last resort step, as the case may be.

It thus follows inevitably, from inter alia the aforesaid, that no validity whatsoever attaches to the therapist’s pronouncement.
The marriage between the parties has never been dissolved and the marital relationship still subsists in full.
No ‘iddah could have commenced. The two individuals concerned remain husband and wife in Islam for all intents and purposes.

It is also incumbent on the entire local Muslim community, as a collective obligation or fard kifāyah, to assist the man in:
a)    Ensuring through any possible means that the utterly illegal dissolution of the marriage is given no practical recognition and effect to by the Muslims; and
b)    Combating any vicious criminal action or interference by the kāfir police as threatened by the wife, and providing him with every possible material, moral and spiritual support in the circumstances.

It goes without saying that, as emphatically stressed by our beloved Prophet, Sallallāhu ‘alayhi wa-Sallam, in a most authentic hadīth, a woman who demands a khul` without any legitimate reason shall not even smell the fragrance of the Garden from far away.


 



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