Can A Wife Get Her Marriage Annulled By The Muslim Judge In Case She Is Unable To Obtain A Talaq Or Khula?
A
Wife Can Get Her Marriage Annulled By the Muslim Judge on the Legal Grounds
Acceptable In Islam
Main Points:
1.
In general the
husband has sole authority over granting Khula and Talaq to his wife.
2.
What are the
requirements for a Muslim court to declare the marriage null and void?
3.
If the Muslim
judge finds evidence that the husband is violent, or fails to pay her alimony
and fulfil other marital rights, he can annul the marriage.
.......
By
New Age Islam Staff Writer
8 December 2021
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(Representational Photo)
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Question: There are many cases reported in the present day
when the husband deliberately runs away and refuses to give divorce. He may
have gone abroad for work and doesn't want to have anything to do with his
wife. Nor would he release her from the prison that her marriage may have
become. He simply wants to deprive her of her marital rights. The wife wants
her marriage to be declared null and void. She has attempted to contact her
spouse in order to demand her rights. She has asked for divorce and Khula, but
her husband refuses to utter the words of divorce and Khula. What other options
does she have now? In such a circumstance, does Islamic Sharia allow for the
annulment of the marriage [Faskh-e-Nikah]? What are the requirements for a
marriage annulment?
In response to all of these queries, we will not respond on
our own behalf, but will instead quote material from various fatwa websites and
urge readers to express their perspectives on the matter in light of the Qur'an
and Sunnah, in order for the subject to become more apparent.
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A fatwa published on Banuri Education reads,
In general, the husband has sole authority over granting
Khula and Talaq to his wife. The court will not grant Khula or divorce without
the permission of the husband. If the husband wrongs the wife, for example, by
failing to pay alimony and the wife proves it through witnesses, the Muslim
judge may annul the marriage if she meets the court's legal requirements. The
marriage can only be dissolved if the conditions are considered valid.
What are the requirements for a Muslim court to declare the
marriage null and void?
According to Maulana Ashraf Ali Thanvi, who is referenced in
the fatwa, the judge should be a Muslim who is just, that is, a person who
avoids major sins (Kabaair) and does not always commit minor sins (Saghaair).
He should also be able to judge, and legal proof that is accepted in Islamic
law should be submitted to him. If the Muslim judge, based on evidence, is
certain that the husband is not fulfilling the rights of his wife such as bread
and maintenance, he has the ability to annul the marriage, and his judgement
will be legitimate. (Heela Naajizah, p.31-41)
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Another Fatwa published on Darul Ifta Deoband says,
“If there is a rift between the spouses due to oppression and
severe beating by the husband and the wife does not want to live with the
husband, then in some cases there is scope for annulment of the marriage
according to Islamic law” (Kaarwaai wa Tajaaweez, Eleventh Fiqhi Seminar, p.9)
(Representational Photos)
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The fatwa published on Darul Ifta Jamiaturrasheed says,
In essence, Islam has granted men the right to divorce.
"Divorce is the right of men," the Holy Prophet is reputed to have
declared. As a result, if a woman goes to court without a legal reason to get
her marriage annulled and the judge rules in her favour, the judge's decision
will be invalid. Yes! According to Islamic Sharia, a judge's decision to annul
a marriage on the basis of legal grounds is valid. The reasons for which the
decision will be considered valid are as follows:
1. When the
husband neglects the wife's rights and refuses to pay alimony.
2. When the
husband is impotent.
3. When the
husband has vanished.
4. When the
Husband is totally mental.
There are distinct conditions for the annulment of the
marriage in each of these circumstances.
It should be mentioned that due to the difficulty in
obtaining the conditions for annulment of marriage, the court now utilises the
term Khula in its degree. Even in these situations, the ruling of the court
will be regarded as an annulment of the marriage, provided that Shariah rules
are followed. For example, a decision in favour of a woman may be made without
the husband's knowledge. This ruling is only legal if the court makes its
judgement in accordance with all Shariah requirements, such as the woman's
claim being supported by two witnesses and the husband failing to appear in
court after being informed. The decision of annulment of marriage or Khula will
be declared null and void in circumstances where the decision was reached in an
illegal manner, and then the woman will not be given the permissibility to
remarry.
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The fatwa published on Fatwa Online says,
If the couple is not living together and their hate has grown
to the point that they can no longer live together, they should split in order
to establish Allah Almighty's limitations. This separation can take place in
one of two ways: the husband can divorce, or the wife can take the matter to
court. If the case goes to court, the judge's first aim should be to bring the
couple back together. If the husband refuses to reconcile, the judge should
convince him to divorce willingly. If the husband isn't ready, the woman should
create some sort of deal and persuade the husband to divorce (this is also
called Khula).
If any of these tactics fail and the wife provides reasons
acceptable in Sharia, such as the husband abusing and physically and mentally
torturing her, failing to pay her dues and refusing to divorce her, failing to
pay expenses and maintenance, the husband suffering from a contagious disease,
the woman having been defrauded at the time of marriage, etc., the court or the
Qazi has the authority to annul the marriage.
(End of the Quotes)
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Related Article: Can A Wife Demand A Khula Divorce From Her Husband, And What
If The Husband Refuses? Is Present Islamic Sharia Unjust To Women?
URL: https://www.newageislam.com/islamic-sharia-laws/marriage-annuled-talaq-khula-muslim/d/125925
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