In what cases does a woman have the right to divorce?

The Answer

Dear Brother / Sister,

The family institution is a very important institution in terms of the individual and society. In order to fulfill this important function, the family must be stable, peaceful and suitable for happiness.

Let us imagine a family in which discord, quarrel, tension, separation and reunification continue. No parties of this family cannot be happy and peaceful. Thus, they cannot be successful in their deeds related to the world and the hereafter.  They always have the question “what will happen to me/us?...” in their minds.

As for the children, they cannot be happy, peaceful and successful either; they acquire false information, negative feelings and consciousness about the dignity of the family institution, and the fact that the family is the warmest and safest home.

Therefore, Islam does not consider the union of marriage as a contract that will continue regardless of the circumstances, as in other religions and legal systems, or as a contract that will not have any sanctity or dignity like the purchase of goods.

Divorce is a deed that Allah does not like; therefore, it is necessary to try to continue with patience and persistence before divorcing.

However, despite the utmost efforts of both parties or one party, if it is not possible for the marriage union to continue by fulfilling the above-mentioned function and when this conviction becomes certain, separation will be legitimate.

Most of those who know that the husband has the right to divorce (talaq) directly (without the involving the court, by undertaking the financial burden) in Islamic law do not know that women who are not satisfied with their marriage and who have been wronged have the right to divorce even if their husbands do not want it; they criticize Islam because of it.

However, the right to demand divorce through court by citing the reasons, which is practiced in many countries of the world today, is also recognized in Islamic law. This right can also be exercised by applying to arbitrators rather than to the court.

In addition, the woman can also get the right to divorce her husband when the marriage contract is made or later, and can divorce directly (on her own will) by using this right when necessary.

The decision of the judge to terminate the marriage upon the woman’s demand and in the presence of legal reasons was in question only in very narrow limits in Hanafi madhhab; therefore, it was not popular in the Ottoman country until the Family Law Decree.

Upon the adoption of the aforementioned law, the authority of the judge expanded, and other Islamic countries developed the same institution through citation and expansion.

The reasons for the woman’s demand to divorce are as follows:

1. Disease and defect

There are of two types disease, disability and defect.

The first is related to sexual life and includes the defects and diseases that prevent sexual intercourse in men or women; such as the man’s being impotent, his genital organ’s being cut or disabled, the woman’s having a disability or abnormality in the genital organ that prevents intercourse.

The second is the diseases that are disgusting and hateful or contagious, like leprosy, smallpox, syphilis, ringworm, mental illness.

2. Loss (Absence)

A person who has been lost and whose place is unknown, and it is not known whether he is alive or not is called “mafqud”.

Imam Malik said that a woman needed to wait for four years to be free, and after that, she could apply to a judge for the verdict of death and divorce. Family Law also adopted and enacted this decree.

The husband who is known to be alive but has left his home is called “ghaib”. According to Abu Hanifa and Shafii, the wife of the missing person cannot apply to the court and demand to divorce.

According to Imam Malik and Ahmad b. Hanbal, she can demand to divorce.

If the husband’s place is known, the judge writes him to come or take his wife and gives him a certain time; if the situation does not change at the end of the period, he divorces them.

If the place of the husband is not known and the period of absence has exceeded one year, the judge decides to divorce them upon the demand of his wife.

For these results, the absence must not be based on an excuse such as military service, education and jihad.

Family Law regards the impossibility of providing sustenance as a condition for the absence of the man to be a reason for divorce (art. 126).

According to Imam Malik, the decision of the judge to divorce due to absence is bain (irrevocable) divorce; According to Ahmad b. Hanbal, it is a termination.

3. Ceasing sustenance

Providing sustenance is among the legal consequences of the marriage contract since it is the duty of the husband and the right of the woman. If the husband does not or cannot provide sustenance, what is the sanction for the woman to get her right?

Acting upon the verses and general principles about sustenance, mujtahids gave different answers to this question:

According to Abu Hanifa and Thawri, a woman cannot file a divorce case because of this; she needs to be patient and ask her husband to allow her to work; if her husband cannot provide sustenance, he owes her the amount of sustenance and she collects it according to the general rules of collecting receivables. The basis of this opinion is the following verse: “… Allah puts no burden on any person beyond what He has given him...” (at-Talaq: 65/7) Based on this verse and similar evidence, Ibn Hazm went further and said, “The poor husband’s sustenance has to be provided by his wife if she is rich.”

According to the imams of the other three madhhabs, the husband’s failure to provide sustenance is a reason for the woman to file for divorce. The following verse and similar ones are the proofs of this ijtihad: “... but do not take them (your wives) back to injure them, (or) to take undue advantage...” (al-Baqara: 231).

According to Ibn Qayyim, a woman cannot file for divorce on the grounds of sustenance unless she has been deceived about the financial strength of her husband.

Family Law preferred the ijtihad of Abu Hanifa (art. 94-99) regarding sustenance being the reason for divorce.

4. Ill-treatment and incompatibility

If ill-treatment, incompatibility, non-compliance with family law come from the husband (if the fault belongs to the husband), what the woman needs to do is to apply to the judge and arbitrators. In accordance with the verses that introduce these rules (an-Nisa: 4/33-34), all mujtahids agree unanimously that the judge would refer the situation to the arbitrators if he was consulted due to ill-treatment and incompatibility.

Different opinions arise about the authority of the arbitrators, one of whom is usually 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).

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