How can a woman who is not given the right to divorce be divorced?

The Details of the Question

- I remember that you state in one of your articles that a woman can get a divorce only if she gets the right to divorce from the man before marriage.
- If a husband does not fulfill his duties and has not given his wife the right to divorce either before or after marriage, how can a woman divorce her husband?

The Answer

Dear Brother / Sister,

A woman can demand divorce by applying to the judge for reasons such as the husband’s illness, loss, not giving money for sustenance, ill-treatment and incompatibility that may harm the woman.

If the ill-treatment, disagreement, incompatibility and non-compliance with family law come from the husband, the woman can apply to the judge and arbitrators. In accordance with the verses that introduce those rules (an-Nisa, 4/33-34), all mujtahids unanimously agree that the judge would refer the case to the arbitrators if he was applied due to ill-treatment and incompatibility. Different opinions arise about the jurisdiction of the arbitrators, usually one from the wife’s family and the other from the husband’s family.

According to Abu Hanifa, the arbitrators are in the position of deputies and unless they have been given the authority to divorce and terminate the marriage, they cannot do so.

According to Imam Malik and some other mujtahids, the arbitrators have the authority to compromise them, and if it is not possible, to end the marriage life with or without a fee. The aforementioned verses and the practice of the Companions show it.

In the Ottoman State, where Hanafi madhhab was dominant, Hukuk-u Aile (Family Law) Decree preferred Imam Malik’s ijtihad on this issue and enacted it. Article 130 of the Law briefly states the following:

If there is a severe conflict between the spouses and one of them applies to the judge, the judge appoints an arbitrator from the families of the parties each. If there is no suitable person in the family, the judge appoints appropriate people from non-relatives as arbitrators. The family council established in this way will listen to the parties, examine the situation and try to compromise them. If it is not possible to compromise them, it will decide as follows: If the husband is at fault, it will separate them and end the marriage life; if the woman is at fault, it will end the marital life in return for some or all of the mahr (it will decree for mukhala’a). If the arbitrators are unable to reach a decision, the judge will either set up another arbitration committee or include a third person who is not a relative of the parties in the committee. The decision of the arbitrators is final.” The separation decreed by the arbitrators is like bain (irrevocable) divorce (art. 131).

How will this rule be implemented in our country, which does not apply Islamic Law today?

1. If the woman applies to a judge of the state due to something that the shari’ah considers to be a reason for divorce, and the judge decides to divorce her for the same reason, the woman is divorced.

2. If the judge refuses to divorce though there is a reason, the woman applies to arbitrators. The arbitrators are generally from the families of both parties. If it is not possible, two people whose knowledge and ethics are appropriate are chosen as arbitrators.

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