Q: please help my Islamic understanding of this, I have been married for 9 years when my wife informed me on the Sunday evening that she has decided to return to her mothers house and the marriage was over. I told her she should stay home or could go to her parents (temporarily) but to please attempt to reconcile the marriage. After she left the next day she and her family refused any attempt at reconciliation (except for three sessions with a psychologist where again she simply stated the marriage is finished and there was nothing to discuss)
I would like clarity on FASAKH or annulment granted by Imam Wahab of the Majlisushura Al Islami and request Islamic guidance regarding custody of my three year old son
The fasakh was given on the 03 May 2008, on the basis of the ‘emotional state’ of my wife
Reason for requesting Fasakh
My wife simply stated throughout the fasakh process with Imam Wahab that the reason she requests a fasakh (and abandoned the marital home) is because she is ‘not happy’, and refuses to entertain any talk of reconciliation.
When I asked them whether a Muslim wife can simply decide to leave without presenting any reason the imam simply stated ‘that was her perception’ and that he would not rule on the matter.
During the course of the counselling session;
1. I offered a talaaq with the condition that she returns to our family home before the divorce is final to allow the opportunity for reconciliation. She refused.
2. On the 03 May 2008 in her presence I suggested that a Khula would be more appropriate than a Fasakh.
Imam Wahab refused.
I was unemployed for approximately 4 years during the Marriage but I have currently been employed as a HR Manager for three years and permanently employed for another 5 months before that. At the time of the Fasakh I had been working for about 3 years in total. Although I did provide for the family to the best of my means my wife volunteered to help with the expenses (I never asked) but i’m not sure if her nafaqah was sufficient. But no mention was made of nafaqah at all during process.
Custody
The Majlisushura Al Islami Hakim stated that Custody should be taken to the Family Advocates Office (SA LAW) rather than the traditional custody view held by the Mathaib Shafi or Hanafi.
Is such Fasakh valid i.e. are we divorced or not I have been trying for months to get Shura to explain how such a fasakh is possible. They simply don’t respond.
I feel this fasakh is a slander on my name because I never hit my wife, of had an affair, or use drugs or anything serious that would in my (and peoples) mind warrant a Fasakh. Nor have has anyone formerly accused me of anything they simply slander me in public.
My (ex) wife insists the fasakh is valid and refuses to discuss this with any Aalim (despite all my warnings that this seems entirely incorrect, and attempts to bring her to another Aalim (without forcing her), she is also pursuing custody through the Secular Courts.
Please help my understanding here I am trying to find peace with this situation as I Believe we should always be at peace with ALLAH’s decree even if it appears against our interest. But I am not sure what the best course of action is here even if my wife is wrong I could force her back into marriage this could hardly result in a happy family home. But at the same time she refuses to grant my Islamic rights to my child and insists that I can only see him ever second weekend. Her family now make all the decisions on his life and I am sporadically informed on what they decided. I went for Hajj last year and I placed my trust entirely In ALLAH on this, and I am certain ALLAH has power over all things (even when people act contrary to Islam)
Questions
1. Are we married or not especially because I am convinced with my little knowledge that this is not how I was taught a faskh should be given.
2. If this Fasakh is not valid can I insist that she give me Islamic custody through the Shafi or Hanafi mathab before I give her a Talaq. (assuming she asks one day)
3. If she sincerely believes this faskh is valid and (as Imam Wahab insists) is simply another valid Islamic view on fasakh (despite her acknowledgement that most Ulama including the MJC would never grant her a Fasakh) is she blameworthy in ALLAH’s judgement (in her mind she is following and Aalim). If so please describe for me the spiritual condition of such a woman..
4. Please advise me what would be best conduct for me and my son in ALLAH’s judgment
I have decided to not ague with her about this any more and am trying to cooperate as amicably as possible for our sons benefit as feel this is the Best in ALLAH’s sight and best for my son’s well being.
If possible Mufti please refer to Quran or Ahadith in your response…
A: It would have been better for you to refer to the MJC for two reasons:
- They are closest to the people involved.
- They are greater acquaintance with the Shafi`ee law.
Not withstanding the above, if shar`ee procedures were not followed then obviously there will be no faskh. Hence, your wife will be living in sin for her gross disobedience and for walking out of the marital home for no valid shar`ee reason. However, we advise you that if for some reason your wife is convinced that the spouses are not compatible then it is better for you to issue her a divorce and terminate the marriage. In this way, you will save her from shar`ee implications, as well and sin. Do not subject the divorce to the custody of the child. Try your best for your child’s betterment. Thereafter assign your affair to Allah Ta`ala.
Answered by:
Mufti Ebrahim Salejee (Isipingo Beach)