Talaq and separation should be last solution for the husband and wife

Answered according to Hanafi Fiqh by DarulIftaBirmingham

Please can you tell me if a man and women are not getting on in a marriage, such as do not love each other talk much to each other, have nothing much in common and finally husband has not come to his wife for pleasure when she asks to go to bed early for 5-6 months and now the wife feels no love for him. Living with husbands parents who are quite unreasonable with couple. Making married life harder to be comfortable. Husband refuses to live separately to make the marriage work. Does the wife have the right to divorce since the problem is getting worse? Married for over 3 years and things have got worse after a few months of a little bliss. Is the wife permissible for divorce? The husband and wife now feel that if things don’t get better within another 6 months which is mutually agreed then he would rather divorce amicably. He has had a relationship with another women before marriage for 4 years. Which may be the reason why things haven’t gone so well. Married because to please family. Women feels this is unfair on her to stay in a loveless marriage. Sadly both are fed up of trying and things are not getting better. Thank you Insha’Allah may you give me a clear answer, I am the mother of the women in this marriage.

In the name of Allah, the most Beneficent, the most Merciful.

Answer

Nikah (marriage) is an instinctive need of a man and woman and a means for the preservation of mankind. Moreover, nikah is a desired act and its lifelong fulfilment and safekeeping have been stressed upon in Islam.

The purpose of marriage in Islam is that a man and woman build a home, live together in love, kindness and happiness. (Marriage- A form of Ibaadah p.19)

Unfortunately, in some cases, after a nikah takes place a person is deprived of the comforts and benefits of it. Instead of the marriage being one of love and affection, hatred and animosity appear. Due to this strained and difficult relationship a desperate need is created for separation between the spouses. Islam has permitted the concept of talaq for such delicate and trying occasions so that each of the spouses may go their own way and spend their lives in peace elsewhere. (The Complete System of Divorce p.27)

Allah Subhanahu Wataaala provides general guidelines for the process of divorce with emphasis on both parties upholding the values of justice and kindness in formalising the end to their marriage.

Allah Subhanahu Wataaala encourages the husband and wife to appoint arbitrators as the first step to aid in reconciliation in the process of divorce. If the reconciliation step fails, both the man and woman are guaranteed the right to divorce as established in the Quran, but the difference lies in the procedure for each one.

The husband will be allowed to give his wife Talaq and the wife can initiate a Khula or a separation via an Islamic Shariah Council if that fails.

However, it should be borne in mind that in the eyes of Allah Subhanahu Wataaala, talaq is the most detestable of all lawful acts.

It is reported from Sayyiduna Ibn Umar Radiallahu Anhu that the Prophet of Allah Sallallahu Alayhi Wasallam said: “In the sight of Allah Subhanahu Wataaala , the worst of all halal (lawful) acts is talaq.” (Sunan Ibn Majah p146 v.1)

The permissibility of issuing the talaq has been granted only in very extreme and severe cases because it causes separation and break up between two families. Furthermore, for future generations it often leaves a bitter taste for all to bear. (The Complete System of Divorce p.31)

Regarding your question, if the couple after trying to make the marriage work, but failed, even though families and arbitrators from each side were involved to make the marriage work, then in that situation the husband and wife would be allowed to separate.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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