Divorce

DIVORCE DUE TO WEIGHT GAIN
Shaykh Mis’id Al-Husaynee
http://www.subulassalaam.com/articles/article.cfm?article_id=54

Question: Is it permissible for a man to divorce his wife because she became overweight and he dislikes that?

Response: I say to this man; do you not see, if it were you who became overweight, while your wife was slim and dislikes your weight gain, would you be pleased if she requested a Khul’ from you because of an affair that is not completely in your control?

The answer is of course not, and the Prophet – صلى الله عليه و سلم – said: “None of you will truly believe until he loves for his brother what he loves for himself.”

It may be you who becomes fat in a short period of time, this affair is in the Hands of Allaah the Glorified. There are methods and medical means and otherwise with which a person can help his wife lose weight. But the intelligent individuals amongst the men do not look at such issues, indeed a household is built upon living kindly with each other, and this goes back to piety and manners.

How many a woman who has a fit body and is beautiful but is a calamity to her husband? And how many a woman who is not as such but carries out her husband’s rights and is a good wife to him, and he sees her as a Hoor from the Hoors of the life of this world.

So what must be looked at and considered my brother, is her religion and manners, as for her body, then do not make an issue out of it, especially since this woman has already become your partner. You must fear Allaah concerning your wife, and you must seek the causes that would help her lose weight, I ask Allaah to grant you and the rest of the Muslims success and steadfastness.

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IMPOTENCE PERMITS ONE TO SEEK A DIVORCE

Shaykh Ibn ‘Uthaymeen

Question: A woman was married for many years and did not have any children. After an examination, it was determined that the problem was from her husband and it would be impossible for the two of them to have children. Does she have the right to seek a divorce?

Response: That woman has a right to ask for divorce from her husband if it is shown that the infertility problem is from him alone. If he divorces her, that is final. If he does not divorce her, a judge may dissolve her marriage. This is because the woman has the right to have children and many women do not even get married except to have children. If the man she is married to is impotent or sterile, she has the right to ask for divorce and have her marriage dissolved. This is the stronger opinion among the scholars.

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MY HUSBAND CURSES AND ABUSES ME

Shaykh Ibn Baaz

Question: What is the legal ruling concerning seeking a divorce when proper relations become an impossibility? This is due to the following reasons: First, my husband is ignorant and he does not recognise any rights for me. He curses me and my father and calls us Jews, Christians and Shee’ah. However, I was patient with his evil manners because of my child. But when I became ill with arthritis, I no longer had the ability to bear his behaviour. I began to hate him a great deal, to the point that I cannot stand even talking to him. I asked him for a divorce but he refused. Now I have been living with him for six years with my children and he treats me like a divorced woman or a woman who is not related to him. But he still refuses divorce. I beg for your answer to my question.

Response: If the situation is as you have just described, there is nothing wrong in seeking divorce. There is no harm also in you ransoming yourself by paying him some wealth in order for him to divorce you. This is due to his improper behaviour and wronging you by evil speech. If you think it feasible, for the sake of your children and your need for his maintenance as well as the children’s, to be patient and advise him to behave properly and ask Allaah to guide him, there is great reward and a good end. We ask Allaah to guide him and make him firm in his religion.This answer is assuming that he prays and does not curse the religion. If he does not pray or if he curses the religion, he is a disbeliever. Then it is not permissible for you to stay with him or allow him control over you. This is because cursing and ridiculing the religion is disbelief and straying. It is apostasy from Islaam according to the consensus of the scholars. This is based on Allaah’s statement:{Say: Was it Allaah, and His signs and His Messenger that you were mocking? Make no excuse! You have disbelieved after you had believed}, [Soorah at-Towbah, Aayah 65-66]. Also, abandoning the prayer is a greater form of disbelief, even if a person does not deny its obligation, according to the stronger opinion among the scholars. This is based on what has been confirmed from the Prophet (saws) in Saheeh Muslim from Jabir ibn ‘Abdullaah that the Prophet (saws) said: ((Between a man and disbelief and polytheism is the abandoning of the prayer)).Also, Imaam Ahmad and the compilers of the Sunan recorded with a Saheeh chain from Buraydah ibn al-Hasib that the Prophet (saws) said: ((The covenant between us and them is the prayer. Whoever abandons it has committed disbelief)).There are also other evidences from the Qur.aan and Sunnah besides what we have mentioned.

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IS THE WOMAN WHO SEEKS DIVORCE (KHULA) FROM HER HUSBAND WITHOUT A LEGITIMATE REASON A SINNER?

By Shaykh ‘Abdul ‘Azeez bin ‘Abdullaah bin Baaz (rahimahullah)

Translated by Shadeed Muhammad

http://www.masjiduthaymeen.org/posts/2005/01/11/42.htm

The questioner asks: If the woman seeks a divorce (khula) from her husband without a legitimate reason and the husband refuses that request, is she a sinner as a result?

The Shaykh replied: The questioner asks: If the woman seeks a divorce (khula) from her husband without a legitimate reason and the husband refuses that request, is she a sinner as a result?

The Shaykh replied: If the woman has no legitimate reason, then the husband is not obligated to respond to that request of divorce (khula), but it is also necessary for him to seek out those things which will bring about harmony and love (in the relationship) and to rid it (the relationship) of those things that will lead to divorce. Because it could be that she has some legitimate reasons.

So it is necessary for him to take notice of this because she could have a legitimate reason either because of his bad character or stinginess or staying out all night or coming home in the late hours of the night or for reasons other than this. So it is binding upon him to observe these things and to fear Allaah in order that he gives the woman her due right.

As for her, then it is not permissible for her to seek a divorce (khula) except with a legitimate reason. As it comes on the authority of the Messenger that he said: “Any woman who seeks a divorce (khula) without a legitimate reason, she will not smell the fragrance of Paradise.” (Bukhaari)

And that is a severe threat. So, it is incumbent upon the woman that she live with her husband in kindness and that she listens and obeys him in that which coincides with the Book of Allaah and the Sunnah of His Messenger and not to seek a divorce from her husband except with a valid excuse.

And if there is a legitimate excuse, then there is no problem with that. For example: he is stingy, which would not allow him to give her the rights that are due to her or if he is immersed in sin and disobedience like getting drunk or high (on drugs) or other than that or he stays out all night all the time or he makes her life very constricted or reasons other than this that are legitimate, then it is an excuse that is regarded and honored.

Or it could be from the fact that she may hate him a lot and the fact that Allaah has not placed love in her heart for him and she cannot respect his rights as a result of her hatred of him, then there is no harm in her seeking a divorce. So, in turn she does not commit sin by not giving him his rights. And if she seeks a divorce from him, then she is to return to him his mahr (dowry) that he gave to her at the time of marriage and that which he gave her to prepare for marriage (gifts and clothes and the funds needed for the walimah).

And if her reason for divorce was from the fact that she hated him then it is to give him what he gave her as a mahr and from what he gave her from gifts other than the mahr.

So, if the reason for her seeking a divorce is because he doesn’t give her that which is her right or he is stingy regarding her necessities or he stays out all night and he does not come home to her except in the late hours of the night and he is tired or because he engages in getting drunk or high then these are legitimate reasons for a request of divorce and if he refuses, then she should take him to the Muslim courts so that they can look into his affair.

As for the one who does not pray, then it is not permissible for her to remain with him because abandoning the prayer is kufr (disbelief) and refuge is sought with Allaah. And that is because the prayer (salaat) is the pillar that keeps the religion erected, so if the husband abandons the prayer then this becomes a legitimate excuse for the woman to refuse to be with him. And it is not permissible for him to be together with her, not until he repents to Allaah from this abandonment of the salaat based upon the statement of the Messenger (صلى الله عليه وسلم): “The covenant between us and them is the salaat. So whoever abandons it has disbelieved.” (Ahmad, Tirmidhee, Nasaa’ee)

And also his statement: “The head of the affair is Islaam and its central pillar is the salaat.” (Ahmad, Tirmidhee)

And likewise he (peace be upon him) said: “Between a man and disbelief and shirk is the abandonment of the salaat.” (Muslim, Abu Dawood, Nasaa’ee)

So this shows that the salaat is a magnificent affair and it the pillar of Islaam and it is the first thing that the slave will have to account for on the Day of Judgment from his actions.

So, it is incumbent upon every believing man and believing woman or any individual who proclaims Islaam to fear Allaah and safeguard his prayers at their proper times and to establish them in congregation with the Muslims in the masjids because not doing so is disobedience and sin and the fact that he prays them in the house is also disobedience and not kufr (disbelief).

But the fact that he abandons them altogether, then this is disbelief even if he does not initially reject the fact that they are waajib (mandatory) and that is in light of the most correct view of the two positions of the scholars.

And as for the one who rejects the fact that they are waajib (mandatory) then he is a disbeliever by the consensus of the Muslims and likewise the one who rejects the fact that salaat is mandatory or fasting the month of Ramadhaan or zakat or anything from that which is known in the religion as a necessity, then he is a kaafir (disbeliever) as a result and Allaah’s safety is sought.

Shaykh Saalih bin Fawzan

Al-Mulakhas al-Fiqhee: vol. 2, pg. 381-385

When this (relationship) is not attained in the marriage – affection and repose is not achieved for one or both of the spouses’ and the situation is foreboding with little chance of reconcilement then the husband is ordered to release her in kindness.

Allaah the Most High says: “…either you retain her on reasonable terms or release her with kindness.” [Surah Al-Baqarah: 229]

“But if they separate (by divorce), Allaah will provide abundance for every one of them from His Bounty. And Allaah is Ever All­ Sufficient for His creatures’ need, All­ Wise.” [Surah An-Nisaa: 130]

But if the husband finds repose and comfort, but the wife does not find the same in him as a result of her disliking his traits, physical appearance, deficiency of religion or she fears that she would displease Allaah by not fulfilling his (husband’s) rights and needs; then in this case she may request a separation and dissolution from him while extending to him an offer of monetary gain so as to liberate herself from him.

Allaah the Most High says: “…except when both parties fear that they would be unable to keep the limits ordained by Allaah (i.e. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her (to achieve Al-Khul’).” [Surah Al-Baqarah: 229] This means: That if the husband or the wife know that they will not fulfill the ordainments of Allaah towards each other if they remain in union, leading to the transgression of the husband on the woman, causing her to disobey him (refuse his cohabitation), then there should be no harm in the woman liberating herself from him by appeasing him financially (to gain discharge). There is also no harm in the husband accepting the remuneration and then letting her go.

The Ruling of al-Khul‘:

The woman can free herself from her husband completely in a just process that is beneficial to both parities. The husband is to cooperate with her in this regard. If he loves her then it is preferred for her to remain with him and have Sabr and not seek to separate.

Khul‘ is Mubaah (permitted) when the proper reasons – alluded to in the previous verses are found. These reasons include both parties fearing that if they remain in union that they will not fulfill the ordainments of Allaah towards each other. (On the other hand) it is Makrooh (disliked) and in the opinion of some scholars it is Haraam (prohibited) to seek Khul‘ without due cause. To this effect, Allaah’s Messenger (saws) said:

“Any woman who asks her husband for a divorce (khul‘) without due cause, then the scent of Paradise is Haraam for her (i.e. she will not smell it).” [Reported by the five except an-Nasaa’ee] [1]

Shaikh Taqee-ud-Deen (Ibn Taimiyyah) said: “The Khul‘ which is in accordance to the Sunnah is that the woman has an abhorrence to the man (her spouse). She ransoms herself from him in the same way a captive is ransomed.” [2]

If the husband hates her but retains her hoping that she will seek to ransom herself (in so doing producing a profit for himself) then he is Dhaalim (Oppressive and tyrannical). Any monetary gain he receives is thus Haraam and the Khul‘ is invalid (i.e. he is to divorce her and not do Khul‘). Allaah, the Most High says: “O you who believe! You are forbidden to inherit women against their will, and you should not treat them with harshness, that you may take away part of the Mahr you have given them…” [Surah An-Nisaa: 19] This means that no harm should be inflicted while living together so as to compel her to give back the dowry or not ask for a marital right that she is due by her husband unless it is a censure from the husband to a woman who has fornicated and he seeks to take back what he had graced her with. This instance is sanctioned by Allaah. Allaah says: “O you who believe! You are forbidden to inherit women against their will, and you should not treat them with harshness, that you may take away part of the Mahr you have given them, unless they commit open illegal sexual intercourse.” [Surah An-Nisaa: 19]

Ibn ‘Abbaas (radiallahuanhu) said explaining this verse: “This verse pertains to a man who has a woman whom he hates to be in companionship with but he owes her payment of her dowry. So he harms her so that she will relinquish seeking the dowry from him so as to free herself from him. Allaah has prohibited this action when He said: ‘…unless they commit open illegal sexual intercourse.’ Zinaa (adultery) is what is implied. In this instance the husband can take back what he had given her as dowry. He is to compel her to relinquish all the dowry he gave to her and then grant her the Khul‘.” Wallaahu A’lam