There are two avenues for a Muslim women to divorce her husband: 1) Mutual-agreement upon her request (al-khula’), and 2) divorce imposed by a judge (tallaq al-qadi).
The first method is preferred as it facilitates an amicable separation,
which is especially important if there are children involved. The
second method, on the other hand, is a rather blunt instrument that
should only be used when a husband egregiously violates the terms of the
marriage contract.
As
for mutual divorce, a woman may request such a divorce from her husband
if she finds herself incompatible with him. She must repay the dowry (al-mahr) that she was given at the beginning of the marriage.
Allah said:
فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ ۗ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَاIf you both fear you will not uphold the limits of Allah, there is no blame upon either of you in regards to what she repays him. These are the limits of Allah, so do not transgress them.
إذا كرهت المرأة زوجها لقبح منظر أو سوء عشرة وخافت أن لا تؤدى حقه جاز أن تخالعه على عوضIf the wife dislikes her husband because of his ugly appearance, or bad companionship, and she fears she will not fulfill his rights, it is permissible to request a divorce from him on condition of compensation (‘iwad).
وَجُمْلَةُ الْأَمْرِ أَنَّ الْمَرْأَةَ إذَا كَرِهَتْ زَوْجَهَا لِخَلْقِهِ أَوْ خُلُقِهِ أَوْ دِينِهِ أَوْ كِبَرِهِ أَوْ ضَعْفِهِ أَوْ نَحْوِ ذَلِكَ وَخَشِيَتْ أَنْ لَا تُؤَدِّيَ حَقَّ اللَّهَ تَعَالَى فِي طَاعَتِهِ جَازَ لَهَا أَنْ تُخَالِعَهُ بِعِوَضٍ تَفْتَدِي بِهِ نَفْسَهَا مِنْهُThe summary of the matter is that the wife, if she dislikes her husband because of his appearance, his character, his religion, his old age, or his weakness and so on, and she is afraid she will not fulfill the right of Allah Almighty in obedience to him, it is permissible for her to request a divorce from him with compensation by which she frees herself of him.The first woman to request a divorce in the time of the Prophet (ṣ) was Habibah bint Sahl, who was married to Thabit ibn Qays. Habibah and Thabit did not get along, so the Prophet (ṣ) divorced them and Habibah repaid the dowry to Thabit.
Yahya
ibn Sa’id reported: Habibah bint Sahl was married to Thabit ibn Qays
and Thabit had struck her. When she woke up, she went to the door of the
Messenger of Allah, peace and blessings be upon him, while it was not
yet daylight. She said, “Thabit and I cannot be together.” Thabit came
and the Prophet (s) said to him:
خُذْ مِنْهَا وَخَلِّ سَبِيلَهَاTake what she owes you and let her go her way.In this case, Thabit had hit her during an argument and this was considered legitimate grounds for Habibah to request an annulment from the Prophet (ṣ). She returned the dowry, effectively dissolving the marriage contract.
It
is not permissible for a husband who wishes to divorce his wife to
impose hardship upon her in order to compel such compensation. Islam
does not allow such a loophole for men to take advantage of their wives.
Allah said:
وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ ۚ وَعَاشِرُوهُنَّ بِالْمَعْرُوفِDo not make difficulties for them in order to take back what you have given them, unless they behave in a clearly immoral manner. Live with them honorably.
وإن ضربها أو منعها حقها طمعا في أن تخالعه على شئ من مالها لم يجز … فإن طلقها في هذه الحال على عوض لم يستحق العوضIf he hits her or obstructs her rights in anticipation of her request to divorce on condition of repaying something from her property, it is not permissible… If he divorces her in this manner on condition of compensation, he does not deserve compensation.If the husband is guilty of serious misconduct, such as neglect, abandonment, adultery, or domestic violence, the wife has the right to bring her complaint to a judge and have the divorce imposed upon him. These transgressions are violations of the marriage contract, which necessitates that the marriage is ended.
One
of the most significant misdeeds necessitating a judge-imposed divorce
is the failure of a husband to adequately provide for his wife. This is a
type of neglect or abandonment.
وَكُلُّ مَوْضِعٍ ثَبَتَ لَهَا الْفَسْخُ لِأَجْلِ النَّفَقَةِ لَمْ يَجُزْ إلَّا بِحُكْمِ الْحَاكِمِ لِأَنَّهُ فَسْخٌ مُخْتَلَفٌ فِيهِ فَافْتَقَرَ إلَى الْحَاكِمِ كَالْفَسْخِ بِالْعُنَّةِ وَلَا يَجُوزُ لَهُ التَّفْرِيقُ إلَّا أَنْ تَطْلُبَ الْمَرْأَةُ ذَلِكَ لِأَنَّهُ لِحَقِّهَا فَلَمْ يَجُزْ مِنْ غَيْرِ طَلَبِهَا كَالْفَسْخِ لِلْعُنَّةِ فَإِذَا فَرَّقَ الْحَاكِمُ بَيْنَهُمَا فَهُوَ فَسْخٌ لَا رَجْعَةَ لَهُ فِيهِ وَبِهَذَا قَالَ الشَّافِعِيُّ وَابْنُ الْمُنْذِرِEvery case that results in an annulment for her due to issues of spending are only permissible by the ruling of a judge, as a disagreement in regards to an annulment is in need of a judge, similar to an annulment due to impotence. It is not permissible for him to separate them unless that is requested by the wife, as it is her right. It is not permissible without her request, similar to an annulment due to impotence. When the judge separates them, it is an annulment without the possibility of remarriage. This was said by Al-Shafi’i and Ibn al-Mundhir.Another case discussed by the jurists is the failure of the husband to meet the sexual needs of his wife by swearing an oath never to be intimate with her again (al-‘ila’a). Again, this is a type of neglect or abandonment.
وَالطَّلَاقُ الْوَاجِبُ عَلَى الْمُولِي رَجْعِيٌّ سَوَاءٌ أَوْقَعَهُ بِنَفْسِهِ أَوْ طَلَّقَ الْحَاكِمُ عَلَيْهِ وَبِهَذَا قَالَ الشَّافِعِيُّDivorce, with the possibility of remarriage, is an obligation upon a husband who swears an oath never to be intimate with his wife, whether he initiates it himself or it is imposed upon him by a judge. This was said by Al-Shafi’i.The Prophet (ṣ) also would intervene on behalf of women who were being abused by their husbands.
Ali
ibn Abi Talib reported: The wife of Al-Walid ibn ‘Uqbah came to the
Prophet, peace and blessings be upon him, and she complained to him
saying, “O Messenger of Allah! Al-Walid has beaten me!” The Prophet (ṣ)
said:
قُولِي لَهُ قَدْ أَجَارَنِيSay to him: He has protected me.
She
did not stay but for a while until she returned and she said, “He did
not give me anything but more beatings!” The Prophet (ṣ) tore a piece
of cloth from his shirt and he said:
قُولِي لَهُ إِنَّ رَسُولَ اللَّهِ قَدْ أَجَارَنِيSay to him: Verily, the Messenger of Allah has given me his protection.
She
did not stay but for a while until she returned and she said, “He did
not give me anything but more beatings!” The Prophet (ṣ) raised his
hands and he said:
اللَّهُمَّ عَلَيْكَ الْوَلِيدَ أَثِمَ بِي مَرَّتَيْنِO Allah, you must deal with Al-Walid, for he has sinned against me twice.As such, it is the right of a Muslim woman to seek divorce from a judge whenever she is the victim of abuse by her husband, whether that is physical, verbal, or emotional abuse.
للزوجة التطليق على الزوج بالضرر وهو ما لا يجوز شرعا كهجرها بلا موجب شرعي وضربها كذلك وسبها وسب أبيهاThe wife may have a separation from her husband due to harm caused that is not legally permissible, such as abandoning her without a legal necessity, or striking her likewise, or cursing her or her parents.
ذهب الإمام مالك أن للزوجة أن تطلب من القاضي التفريق إذا ادعت إضرار الزوج بها إضرارا لا يستطاع معه دوام العشرة بين أمثالهما مثل ضربها أو سبها أو إيذائها بأي نوع من أنواع الايذاء الذي لا يطاق أو إكراهها على منكر من القول أو الفعلImam Malik adhered to the opinion that the wife has a right to seek separation by decree of the judge if she claims that the husband has greatly harmed her such that it is not possible for them to continue in marital association. For example, he hits her, abuses her, or harms her in an intolerable way, or he forces her to commit evil in word or deed.All of this demonstrates that a Muslim woman is not locked into a harmful marriage. She has the right to seek divorce from the judge when her marital rights are violated, although it is best for them to arrange a divorce on mutual grounds before involving coercive authorities.
That
said, divorce itself is still harmful to families and children. It is
one of the worst of all lawful deeds due to its negative impact, but it
is nevertheless allowed when it becomes the lesser of two evils.
Abdullah ibn Umar reported: The Messenger of Allah, peace and blessings be upon him, said:
أَبْغَضُ الْحَلَالِ إِلَى اللَّهِ الطَّلَاقُThe most hateful of lawful matters to Allah is divorce.A wife who is considering a divorce must sincerely evaluate the reasons for such a separation, because the Prophet (ṣ) warned Muslim women of serious consequences in the Hereafter for initiating a frivolous divorce.
Thawban reported: The Messenger of Allah, peace and blessings be upon him, said:
أَيُّمَا امْرَأَةٍ سَأَلَتْ زَوْجَهَا طَلَاقًا فِي غَيْرِ مَا بَأْسٍ فَحَرَامٌ عَلَيْهَا رَائِحَةُ الْجَنَّةِWhenever a woman asks her husband for a divorce without a strong reason, the fragrance of Paradise becomes forbidden for her.Moreover, a couple who are having marital issues should try to make good faith efforts to resolve their differences, especially for the sake of their children, as Allah said:
وَالصُّلْحُ خَيْرٌReconciliation is better.Surat al-Nisa’ 4:128
In
sum, Muslim women may obtain a divorce by mutual agreement with the
husband or by imposition of a judge. A wife has no obligation to stay
with a man who abuses, abandons, or neglects her, or otherwise violates
her rights that are enshrined within the marriage contract. It is better
for a husband and wife to reconcile their differences or divorce
amicably before involving coercive authorities.
Success comes from Allah, and Allah knows best.
