Divorce in court and Faskh of Nikaah.

Question:

Kindly supply me with the answer for the following, The husband has filed for divorce in the court fo law, however, he refuses to give his wife Talaaq. The husband and wife are presently separated and has not been in contact with one other for the past eleven months.

1- Does this constitute Talaaq (divorce) according to Shariah?

2- If it does, when will it take place? (At the time of filing or when the court rules?)

3- If it does not, then does this provide Shar’i grounds for Faskh (annulling of the marriage?)

 

السلام عليكم ورحمة الله وبركاته

 

‘Filing for a court divorce’ by the husband is a technical term in the law field that generally means a man approaches the secular court and instructs it or grants it the autonomy to dissolve the subsisting matrimonial bond between himself and his wife. The court appoints a person (most likely a non-Muslim judge) to issue a Divorce on the husband’s behalf, since according to the law of the country a person cannot terminate/dissolve his own marriage unilaterally.

By the husband instituting the divorce, i.e. applying and filing for divorce in a secular court, he is in fact, deputing and instructing the judge/magistrate to issue the divorce on his behalf. In essence, he had delegated to the court, by way of Tawkeel the authority to issue Talaaq and divorce on his behalf.

After highlighting the fact that the husband is the plaintiff and he initiated the divorce process in this case, we now proceed to answer your queries in order of sequence:

1 – The husband’s action of merely filing for divorce will not constitute Talaaq. It will be considered as Tawkeel (Tawkeel bil Talaaq).

TAWKEEL

Tawkeel bil Talaaq means a husband appoints a person to be his Wakeel bil Talaaq (agent) by instructing him or delegating to him the right to administer a divorce on his behalf to his wife. The Wakeel (agent) thereafter may exercise his appointment by either issuing a Talaaq or not. If the Wakeel (the judge/magistrate in this case) subsequently carried out the husband’s request by formally issuing the decree of Divorce, then the wife will be Islamically divorced as well. The Talaaq will thus become effective and binding upon the wife. Such a divorce will be equivalent to one Talaaq-e-Raj’ee (a revocable divorce).

Note: In the case of Tawkeel bil Talaaq the Muwakkil (i.e. the husband), prior to the Talaaq or Divorce decree being passed, retains the prerogative to revoke and retract or withdraw his instruction of Divorce. He can dismiss his Wakeel (the judge/magistrate in this case), thereby barring him from his mandate. If the judge/magistrate, after the withdrawal and his dismissal, still issues a decree of Divorce, then as per Shariah, it will be considered as null and void. The Muwakkil’s wife will not be divorced from her husband in this instance.

وإذا قال لِرَجُلٍ طَلِّقْ امْرَأَتِي فَلَهُ أَنْ يُطَلِّقَهَا في الْمَجْلِسِ وَبَعْدَهُ وَلَهُ أَنْ يَرْجِعَ كَذَا في الْهِدَايَةِ .

وإذا قال لرجل طلق امرأتي فله أن يطلقها في المجلس وبعده وله أن يرجع عنه لأنه توكيل وأنه استعانة فلا يلزم ولا يقتصر على المجلس . (الْهِدَايَةِ)

Translation: If the husband instructs a person to “Divorce my wife”; the Wakeel has the right to divorce the wife in that same sitting or even afterwards. The husband also has the right to revoke his instruction. [Fataawa Aalamgiri, Vol. 1, Pg. 407].                        

قال لِامْرَأَتِهِ انْطَلِقِي إلَى فُلَانٍ حتى يُطَلِّقَكِ فَذَهَبَتْ فَطَلَّقَهَا فُلَانٌ صَحَّ وَيَصِيرُ فُلَانٌ وَكِيلًا بِالتَّطْلِيقِ .

Translation: “If a husband said to his wife go to a certain person so that he may divorce you, and the wife complies by going to the person who consequently pronounces the divorce, the divorce will be valid and the person delegated to pronounce the divorce (in the inquired case, the judge/ magistrate) will be considered a Wakeel of Talaaq.             [Fataawa Aalamgiri, Vol. 1, Pg. 408].

2 – Normally, the wording of the husband’s statement when issuing the summons filing for divorce is: “Wherefore the Plaintiff claims (or prays for Judgement against Defendant): 1- A decree of Divorce ….” If in this case the wording is similar, then it will be Tawkeel, and will not directly constitute a proclamation of Divorce in terms of Shariah. The Talaaq and divorce will only become effective and binding upon the wife when the judge/magistrate formally issues the decree of Divorce.

3 – The dissolution of marriage by means of Faskh (annulment) is a very sensitive affair and governed by a stringent protocol. Faskh can only be done with extreme caution in dire circumstances, like when the husband does not provide for his wife; or if there is a strong fear that the wife will fall into sin (adultery) because of the husband failing to fulfil her conjugal rights. In cases such as these, there are steps to follow in order of sequence; first and foremost persons representing both parties should make an attempt to bring about a reconciliation between the couple. If this fails and the husband is not prepared to mend his ways, he will be requested to honourably issue a divorce to his wife. If the divorce is not issued and the husband still refuses to give his wife Talaaq, making her life difficult, then she should try to obtain Khula’ from her husband. (Khula’ is the release from a marriage tie obtained by the wife upon payment of compensation to the husband; e.g. returning her dowry to him or any other compensation that both parties agree on). If the husband is not prepared to implement Khula, then she may apply for Faskh to a panel of religiously inclined Muslims that includes at least one Aalim, The panel will call on both parties and listen to the case. If the wife’s allegations are proven to be genuine and the husband is still not prepared to desist from his unjust treatment of her, then the panel may go ahead and dissolve the marriage according to a set of rules laid down by Shari’ah.                    

And Allah Ta’ala knows best

Mufti Khaleel Ali

Darul Iftaa, Jaamia Madinatul Uloom (Trinidad)

www.fatwa-tt.com /www.jaamia.net

 

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