Fatwa: # 19643
Category: Divorce
Country: South Africa
Date: 20th December 2011

Title

Can you please elaborate on the rulings regarding the annulment of a marriage?

Question

Can you please elaborate on the rulings regarding the annulment of a marriage?

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

 

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

 

At the outset, we wish to point out that the dissolution of a marriage by means of faskh (annulment) is a very sensitive and delicate affair.  A faskh is governed by a stringent protocol.

 

In all cases involving faskh (annulment), we adhere to the guidelines mentioned in the book al-Hīla al-Nājizah of Hadhrat Maulana Ashraf Ali Thanwi rahimahullah.

 

Due to the sensitivity of the issue, it is of utmost importance to exercise caution in determining the validity of a faskh (annulment). 

 

Hakīm al-ummah Maulana Ashraf Ali Thanwi rahimahullah exercised extreme precaution even in the compilation of al-Hīla al-Nājizah.  He even consulted the Malikī ῾ūlamā’ repeatedly on the issue.     

 

In general, both spouses must be given the opportunity to respond to a judicial hearing.[i]  A judicial committee (panchāyat) cannot annul the marriage unilaterally.  However if the husband does not co-operate in the judicial process, the judicial committee will have the discretion to rule for an annulment of the marriage.[ii]   

 

If there is a total breakdown in the marriage and irreversible differences, then there are grounds for an annulment according to the Maliki ῾ulamā’.  The rulings regarding shiqāq (marital discord) are known to the ῾ulamā’. 

 

Generally, if the couple are not getting along and all efforts have been made for reconciliation, then the husband should adhere to the injunctions of the Qur῾ān and release his wife in a good manner.  Failure to do so will only result in further dissension and violation of the rights of the husband and wife. 

 

Please note this is a general response without being specific to any case.

 

And Allah Ta’āla Knows Best

Mawlana Faraz Ibn Adam,
Student Darul Iftaa

UK

 

Checked and Approved by,
Mufti Ebrahim Desai.
www.daruliftaa.net

 


[i] وفي الدر المختار من نسخة رد المحتار

(وَلَا يَقْضِي عَلَى غَائِبٍ وَلَا لَهُ) أَيْ لَا يَصِحُّ بَلْ وَلَا يَنْفُذُ عَلَى الْمُفْتَى بِهِ بَحْرٌ (إلَّا بِحُضُورِ نَائِبِهِ) أَيْ مَنْ يَقُومُ مَقَامَ الْغَائِبِ (ج 5 ص 409 أيج أيم سعيد

 

[ii]  وكذا في فتاوى محمودية ج 13 ص 179 إدارة الفاروق

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