Question # 139: As Salam alaikum Sheik. This is question from my friend. She got married two years ago. Both husband and wife lived together for less than 2 months. After that she got opportunity to work abroad. After few months, her husband stopped calling her or speaking to her. And he is not playing the role of a husband since two years. She has shown sabr and is seeking help from Allah. The husband has no time to talk to her but is talking to other women. He already has 3 wives & my friend is the fourth one. She is very worried and seeking divorce, but he is not ready to divorce her. And he is telling her that it will be possible only after my death. Please tell me what she can do now. Please help me through Quran and authentic hadith.
bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Shorter Answer: Given the circumstances, the wife can seek the help of a Muslim qadi (judge); he is permitted to invoke the proceedings of khula on the unilateral initiation of woman (living away) in the absence of her husband, as the qadi has the authority to separate husband and wife and end the marriage, if the wife is being harmed by her husband’s neglect, whether it be sexual, economic or social. The husband’s absence has no effect on the validity of the annulment.
Long Answer: It is part of the kind treatment on the part of husband not to be away from his wife for a long time, because it is her right to enjoy intimacy with her husband as it is his right to enjoy intimacy with her. Narrated `Abdullah bin `Amr bin Al-`As (رضي الله عنه) that the Prophet (صلى الله عليه و سلم) said: “…Your family has rights over you.” (Sahih Al-Bukhari) Abu Hurayrah (رضي الله عنه) said: “The Messenger of Allah (صلى الله عليه و سلم) said: “Whoever has two wives and inclines more to one of them than the other, will come on the Day of Resurrection with half of his body leaning.” (Narrated by Ibn Majah; classed as sahih by al-Albani in Sahih Sunan Ibn Majah)
However, Al-eela is where the husband takes an oath not to approach his wife. This is what is being referred to in the following verse of the Qur’an, “Those who take an oath not to have sexual intercourse with their wives must wait for four months, then if they return, verily, Allah is Oft-Forgiving, Most Merciful” (al-Baqarah, 2:226).
In pre-Islamic days, there was no limit to the length of this oath. Hence, a husband could virtually leave his wife hanging for her entire life as he neither treats her like a wife nor divorces her. In Islam, a four-month limit has been put on such an oath. After four months, the husband must return to his wife and have sexual intercourse with her or the marriage will be considered terminated. Some say that the marriage does not terminate automatically but the wife takes the case to the judge and the judge will then force the husband to declare a divorce. (‘Fiqh of Family, Marriage and Divorce’ by Jamal Zarabozo)
The schools differ where four months pass without intercourse. The Hanafis observe: She will divorce herself irrevocably without raising the issue before the judge or the husband will divorce her (Bidayat al-mujtahid). The Maliki, the Shafi’i and the Hanbali schools state: If more than four months pass without his having intercourse, the wife will raise the issue before the judge so that he may order the husband to resume sexual relations. If the husband declines, the judge will order him to divorce her. If the husband declines again, the judge will pronounce her divorce; and in all situations the divorce will be revocable. (Farq al-zawaj of al-Khalil) (‘The five school of Islamic Law’ by Muhammad Jawad Maghniyyah)
Shaykh Salih Al-Fawzan states that, “If the four months are over and the husband still refuses to have sexual intercourse with his wife, he must be forced by the judge to divorce her, provided it is the wife’s wish. However, if such a husband still refuses either to have normal sexual relation with his wife or to divorce her, the judge divorces her or cancels the marriage contract, as the judge is legally considered the husband’s guardian in this case, so he is entitled to divorce her on behalf of the husband. Faqihs apply the same rulings to those men who inexcusably and harmfully abandon having sexual intercourse with their wives for more than four months, even if without forswearing. (‘Summary of Islamic Jurisprudence’ by Salih Al-Fawzan)
According to Shaykh Ibraaheem al-Khudayri (a judge in the Supreme Court of Riyadh), “[A Muslim qadi (judge) is permitted to invoke the proceedings of khula on the unilateral initiation of woman living away from her husband in the absence of her husband], because the qadi has the authority to separate husband and wife and thus end the marriage if it is impossible for them to maintain a stable marriage and if the wife is being harmed by her husband’s neglect, whether it be sexual, economic or social. The qadi should study each case on its own merits and look into the circumstances surrounding each case. The husband’s absence has no effect on the validity of the annulment.” (Shaykh Muhammad Saalih al-Munajjid)
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.