Living separate, Seeks divorce
Mu' meneen Brothers and Sisters,
As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)
One of our brothers/sisters has asked this question:
May Allah Subanh Tallah Bless you for your tireless effort to guide the Ummah to serat e mustaqeem. My question to you is to help my friend. Please guide what exactly to be done as per Shariah.
My friend`s mother is not staying with her father from so many years and has not taken a divorce but would like to take a divorce as she does not want to sit for iddah after his death.
Is she divorced as she has not stayed with her husband.
Is this permissible in Islam?
How can the divorce happen without her mother going to the qadi or without approaching the husband. What if the husband refuses to divorce.
What can she do. Please help me to guide her.
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Living separate, Seeks divorce
In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is no one (no idol, no person, no grave, no prophet, no imam, no dai, nobody!) worthy of worship but Allah Alone, and we bear witness that Muhammad(saws) is His slave-servant and the seal of His Messengers.
Your question: Is she divorced as she has not stayed with her husband.
There is no time limitation in Shariah which stipulates that after a particular length of time of separation, the husband and wife will be considered divorced. The only way to legally separate a husband and a wife is through divorce. Thus if the husband and wife are not divorced, they will be considered married and she will have to sit for iddah or waiting period of four months and ten days after her husbands death.
Your question: How can the divorce happen without her mother going to the qadi or without approaching the husband.
The only way for a wife to get a divorce is either through her husband, or though a Shariah Court. There is no other way to seek a divorce.
Your question: What if the husband refuses to divorce. What can she do.
She needs to approach a Shariah Court and explain her case, and tell the Judge that she has been living separately from her husband for n number of years and she wishes to seek a divorce. The Court will summon the husband and ask him to divorce her. If for any reason the husband refuses, the Court has the right to pronounce an irrevocable divorce and then they will be considered legally divorced. The divorce which is initiated by the wife is known as khula in Shariah, and because she initiated the divorce, she will be required to give back the mehr which she had received from her husband at the time of marriage.
Whatever written of Truth and benefit is only due to Allahs Assistance and Guidance, and whatever of error is of me. Allah Alone Knows Best and He is the Only Source of Strength.
Your Brother in Islam,