A VALID SHAR’I REASON FOR NOT RETURNING TO THE HUSBAND
Question
A woman was subjected to verbal, mental and sexual abuse by her husband. She bore the abuse for eight long years, from day one of her nikaah. Finally, she broke down completely, physically and emotionally, and returned to her parents’ home. The separation was also agreed to by the husband.
After many months the husband has become extremely remorseful and sheds plenty of tears for the loss of his family. The children are with the mother.
He gives the assurance that he will not commit any abuse in future.
The wife still refuses to go back. She does not feel secure going back as he has given promises before. Every now and again he would say that he is going to turn over a new chapter, but the new chapter does not come.
When she would fearfully suggest counselling, he would reject it.
It appears that although he may want to change himself, but he appears to have a split personality or he is bi-polar, hence he repeatedly falls back to his temperamental abusive self.
She is furthermore not convinced of his repentance being genuine as she can see behind the crafting of his words that she will just be a down-trodden prisoner in his home again.
The bottom line is that there is no compatibility whatsoever with him and this leads to endless marital problems. In short, she resents him and just cannot bring herself to going back.
In light of the above, is a woman a naashizah (recalcitrant) if she refuses to return to the husband due to resentment of him, total incompatibility and inability to fulfil his rights?
Answer
In the circumstances described, it is our opinion, and Allah Ta’ala knows best, that she is not recalcitrant in refusing to go back.
The mufti and ulama who chair faskh hearings should consider the hard facts on the ground and not remain jaamid (frozen). They must take into consideration that women are weak in all regards, physically, emotionally, mentally, intellectually, and Deeni. Women cannot bear such atrocities, and thus the break down emotionally and physically as described in the question.
Once a woman has broken down, there is exceptionally little to no chance, to regain her. Forcing her back only serves to create a worse environment for all the parties concerned.
We have heard from a senior Aalim that once he was called to reconciliate between a couple. The girl’s father, after hearing the accounts then burst out into an emotional plea, “I don’t want my daughter to become mad; I don’t want my daughter to become mad.” He then related painfully that, two of his sisters who were forced back to their abusive husbands, went insane.
The parties to this tragic incident failed completely or totally disregarded the extremely delicate nature of a woman. The women were subjected to the men’s decisions regardless of the consequences.
The Shariah again, being the Revelation of Allah, the All-Wise and All-Knowing, has granted women many rights and concessions. In every facet of the Deen the weaknesses of women have been taken into consideration and the Ahkaam have been lightened for her feeble make-up.
Yet, we know of so-called Muslim men who say that the Ulama who tell women of their rights are in the wrong. Just imagine! When Allah Azza Wa Jall revealed these rights, and when Rasulullah (Sallallahu alaihi wasallam) expounded and demonstrated these rights, and the Sahaabah (Radhiyallahu anhum) and Awliya (Rahmatullahi alaihim) applied these rights, the puny so-called men of today fault the Ulama and Sufiya who speak about fulfilling women’s rights.
The accusation is directed, in fact, to Allah Jallah Shaanuhu. There is fear that such a person may have lost his Imaan. May Allah Ta’ala save us from freelancing in the Deen which ultimately leads to such blasphemy.
No matter how many assurances the husband in question may give the wife now, she will never trust him. Without even invoking the Principles of the Shariah in this case, any person with even a little understanding, of not just a woman’s temperament, but of human nature, will readily understand that to coerce the wife in question to return is a recipe for disaster, leading to such scenarios as mentioned above of the poor women becoming insane.
Therefore, in our humble opinion, the woman in question is not naashizah in refusing to return. This is our opinion. Other Ulama may have another opinion. We do not force our opinion on them, and they should not shove their opinion down our throats.
The Shariah has made available the devices of khula’ and faskh for such women. Husbands should not be spiteful, and faskh committees should not be short-sighted when dealing with such issues.
Total incompatibility and lack of harmony in marriage leading to perpetual tension and daily strife are valid grounds for wanting Talaaq. The Qur’aan and Sunnah of Rasulullah (Sallallahu alaihi wasallam) are crystal clear on this fact.
May Allah Ta’ala grant us insight and understanding to not only look at rights, but to consider the dignity and wellbeing of others.
We conclude with the following diabolical scenario which unfolded due to the husband withholding Talaaq and not applying his brains.
Q. A wife left her husband. After some years she married another man although her husband had refused to give Talaaq. Meanwhile he married another woman. She had two children from her second husband. The first husband had refused to give Talaaq. What is the ruling of the Shariah?
A. The husband (the first man) has grievously erred by not having issued Talaaq. The woman remains his wife as long as he does not issue Talaaq. According to the Shariah, her other “marriage” was not valid. The Shariah decrees that children born to a woman who has not been Islamically divorced are the legal children of her husband. Thus, in the scenario explained by you, this man must understand the following:
The woman is still his wife.
The two children are regarded as his legitimate children.
The children will inherit in his estate.
The woman too will inherit in his estate as long as he does not issue Talaaq. It is therefore in his own interests to issue Talaaq.
The husband (there is only one husband involved) should not ignorantly and spitefully refuse Talaaq. He will only be cutting off his nose to spite his face. (The Majlis, Vol. 27 No. 6)
O Allah! Please show us the Haqq as it is and sustain us by virtue of following it. Please show us baatil for what it is, and sustain us by virtue of shunning it. Aameen!