Separation and automatic divorce

Q592 :After a marriage lasting only four months, a man was separated from his wife for one year, during which she gave birth to a baby girl. A year later, she wrote to him saying "According to the Shaf'ie law, a separation of husband and wife for one year means that the marriage is held void. Since we followed the Shaf'ie law, we are no longer man and wife." She claimed her dower through a court of law and she is now receiving monthly maintenance for the child. A lawyer has advised the man not to divorce his wife, because under Indian law, the man will have to pay monthly maintenance which will be very expensive. The woman is employed in a bank in India. Could you please explain that under the Shaf'ie law, the marriage is held void as a result of separation for one year or longer. Is it necessary that the man divorces his wife? If he does, is she eligible to receive monthly maintenance, even if she is employed? Will the man need to pay the marriage expenses of the girl when she is of marriageable age? If so, how much? Can a country enforce any law on Muslims which is against Islam?


A592 : I admit that this is the first time I hear that in any Islamic school of thought a separation of man and wife for any length of time could render the marriage void. Your letter, however, made me rush to the highly valuable book entitled Al Umm written by Imam Al-Shaf'ie and in which he discusses all aspects of Islamic Law, whether it pertains to faith, worship or family matters as well as other transactions within the Muslim community. It may come as a surprise to that woman that no such ruling as she has claimed is entered by Imam Al-Shaf'ie. How could it be when it has no basis whatsoever in the Qur'an or the Sunnah? What I can tell this woman is that she is still married to her husband despite the fact of their separation, and this is according to the Shaf'ie school of thought as well as all other Islamic schools of thought. It is true that she may have claimed her dower through a court of law. The court will definitely rule in her favor because a Muslim's wife is entitled to receive a dower at the moment the marriage contract is made. If it is not paid, then it remains a debt which is owed to her by her husband. She can claim it at any time. When she does, he cannot refuse to pay it. Again, a judgment which forces the husband to pay maintenance for his child is perfectly in order. He is responsible for the upbringing of the child, even though his wife may be working and may receive a higher salary than his own. It is indeed his responsibility to look after the child. Even though a divorce may take place, the upbringing of the child remains his responsibility and he will have to pay maintenance money for the child as long as the child is with her mother. In normal situations, a girl may stay with her divorced mother until she is nine, when the father may claim her custody. You ask whether it is necessary for the man to divorce his wife. In the circumstances, it seems the proper solution. What is the point in keeping such a marriage going when matters have been so aggravated as to make the woman apply for judgment against her husband? You mentioned the lawyer's advice to the man against divorce in order to escape the burden of maintenance. This is an intricate problem in the particular case of India. In Islam, a man is required to maintain his divorcee, during her waiting period, which normally extends to approximately three months, unless the woman is pregnant at the time of divorce when her waiting period lasts until her delivery. This does not seem to apply in this case. During her waiting period, a divorcee stays in her husband's home although they must sleep in separate bedrooms and she is not required to do any house work. It may be that the lawyer has given his advice on the basis of the famous ruling which an Indian court passed, requiring a Muslim husband to maintain his divorcee, who was very old, as long as she lived. There was an outcry among the Muslim community in India against this ruling. I am not sure what the exact legal position is now in India in such cases, but Islam does not require a man to support a woman who is no longer his wife. In the Islamic family system, the woman should be supported by her own people, i.e. her father or her brothers, or uncles, etc. The point is that marriage is a legal contract. When it is broken, then all rights that have been established by such a contract come to an end. Maintenance is one such right. Your question is whether it is necessary that the couple should get divorced. The answer is that they know better. I cannot tell them whether it is necessary or not. However, in such cases, the Islamic view is that if the man and the woman want an amicable solution to their problem, then two arbiters, one from her family and one from his family, should meet to discuss matters. If an agreement is reached, well and good. If, on the other hand, they find that a proper accommodation is difficult or impossible then the two parties may agree on the proper procedure for divorce. If this is agreed, then the man may divorce his wife and give her all her dues. If she still has any dower outstanding, it is payable. She is also entitled to maintenance during her waiting period, as I have already explained. After that, she is not entitled to any maintenance. Her own family should support her. Since she is working in a bank, she is presumably able to earn her own living. However, maintenance is payable to the child as long as she needs to be supported. Perhaps all these matters including maintenance of the wife during her waiting period, payment of outstanding dower, if any, and maintenance and custody of the daughter should be sorted out by the two arbiters or by the man and his wife themselves. They may wish to put it down in a legal document, duly witnessed, which outlines their agreement in order to prevent any subsequent animosity or distress. You ask about the expenses of the marriage of the daughter, and whether the father is liable to pay these. This seems to be a question which anticipates events that will not take place for many years. Any way, the girl is the man's daughter and he is responsible for her upbringing in the same way as every father is responsible for the upbringing of his daughter. Whatever expenses are incurred in connection with her living, education, marriage and illness are borne by her father. This is his responsibility from the Islamic point of view. How things develop in future is something which no one can predict. It seems to me, however, that this father does not want to know anything about his daughter or her mother. If he is going to leave the upbringing of his daughter to her mother, he does not only relinquish his responsibility but he relinquishes his right. In Islam, rights are always related to duties. When someone does not fulfill an incumbent duty, he forfeits the right to which he may be entitled as a result of fulfilling his responsibility. It may be agreeable to both himself and his wife that their daughter should continue to live with her mother, permanently. If they enter that into the agreement, they are free to do so. However, this does not relieve the father from his duty to support his daughter. Your last point is whether a country can enforce on Muslims a law different from that of Islam. The answer is that the government in power can enforce any law. Most countries, however, do not like to have problems with their people or with minorities. Therefore, they try to take the beliefs of minorities into account and provide for the implementation of the family law of religious communities. But sometimes, a person may apply to the civil authorities to arbitrate in his or her particular dispute according to the civil law of the country, rather than the religious law of his or her community. When this takes place, the authorities will grant the request of the applicant and judge that dispute in accordance with the provisions of the civil law. Therefore, if this man's wife has found out that the civil law will give her more than that to which she is entitled under Islam, she may resort to the law in order to get that. However, that does not make what she gets through the law lawful to her. No authority supersedes that of Allah. Since Allah has ruled in matters of marriage and divorce, then His law should be implemented. If one resorts to any other authority or law-enforcing agency in order to get something which is more advantageous to him than what Islam gives him, this does not make that extra thing lawful to him. Muslims must always abide by the law Allah has promulgated and explained in the Qur'an and in the sunnah of the Prophet (peace be upon him).


Our Dialogue ( Source : Arab News - Jeddah )