Fiqh of Marriage – Nushuz (Marital Discord)

wedding-rings• Nushuz (Marital Discord)

Allah Most High blessed this ummah with the most comprehensive and perfect law ever given to mankind – the shari’a.

This law did not fail to give us solutions to one of the most common everyday problems of human life: problems between husband and wife. Even if both the husband and wife are pious, practicing Muslims in a general sense, marriage presents additional tests which many do not pass as well as they should.

They may then begin failing to fulfill their obligations within the marriage and failing to treat one another as they should according to Islam. When this happens, Allah’s shari’a has laid down certain processes that the spouses (and possibly others helping them) should go through to try to rectify the situation. Unlike some ignorant “religions” concocted by men, Islam also recognizes that there may be situations where resolution is not possible and termination of the marriage is preferable – through divorce or other means. When one of the spouses is refractory, it is called nushuz on the part of that spouse, whether husband or wife. For the rest of this chapter, we will discuss the nature of nushuz and some of the steps which should be taken when it arises.

• The Meaning of Nushuz

The meaning of Nushuz in the language is “rising up”.

An-nushuz can be on the part of the wife, the husband or both can claim it to be from the other. Here are some of the definitions which the scholars have given to it:

“Each spouse transgresses and is hostile against the other.”

“It is a hatred by one of the spouses for the other or by each of them for the other.”

“Each one of the spouses differing from the other.”

“An-Nushuz is each of the spouses having hatred for the other and treating each other in an improper manner.”

Looking at all of these definitions, one sees that they are very close in meaning and indicate that an-nushuz can come from either spouse due to disobedience, hatred, contrariness, diffidence, harshness, aggression, etc.

• An-Nushuz on the Part of the Wife

Here are some definitions from the scholars of nushuz when it is committed by the wife:

“It is the woman leaving the house of her husband without his permission and keeping her husband from her without due right.”

“It is the woman departing from the obligatory obedience to her husband, her preventing him from her in the bed, her leaving the house without his permission to a place that she knows he would not permit her to go, her leaving the rights of Allah upon her, such as performing the purification of ghusl or fasting Ramadan, and her locking the door on her husband, keeping him out.”

“It is the wife disobeying her husband elevating herself above what Allah has obliged upon her and her raising herself above fulfilling her obligatory duties.”

“It is the wife’s disobedience of her husband concerning those acts of obedience that are obligatory upon her from the rights of marriage.”

“It is where the wife raises herself above her husband and she is diffident towards him in the sense that she does not obey him when he calls her to his bed or she leaves the house without his permission and so forth. It is when she withholds from him his right to her obedience.”

From all the different definitions, we see that nushuz on the part of the wife revolves around any of four characteristics:

She does not beautify herself for her husband when he desires that from her.

She disobeys her husband with respect to coming to his bed and she refuses to respond to his calls.

She leaves the house without his permission or without any legal right to do so.

She does not perform her obligatory religious duties, such as failure to perform some prayers, fasting Ramadan, covering her ‘awra, or any other obligatory act of Islam.

• Nushuz on the Part of the Husband

The jurists have defined nushuz when it is from the husband as follows:

“It is where the husband hates his wife and brings about harm to her.”

“The husband transgresses against his wife and harms her by boycotting her, hitting her in ways not called for by the law, irritating her, abusing her, reviling her, such as cursing and insulting her, etc.”

“For the husband to transgress her by hitting her of harming her or having very bad behavior towards her.”

“It is for him to harm her by beating her or making life difficult for her or keeping her from getting her rights fulfilled such as proper division between co-wives, support, etc.”

So, nushuz when it is committed by the husband, revolves around the following point:

The husband wrongfully elevating and raising himself arrogantly above his wife and above the obligations which Allah has placed upon him with regard to her.

He transgresses against her by beating her, harming her, reviling her, abusing her and not treating her properly.

He fails to fulfill his mandatory obligations toward her such as support, etc.

He becomes diffident toward her and unconcerned for her by boycotting her in talk or in the bed, refusing to speak to her, etc.

• Types of Cases of Nushuz

There are three different cases of nushuz, as Allah has made clear in His Book.

The first case is where the nushuz is committed by the wife. This case and its resolution have been mentioned in the Quran in the verse discussed previously:

“…And (as for) those (women) from whom you anticipate rebellion, admonish them, avoid them in the sleeping place and hit them. If they obey you, do not desire and further way to (harm) them. Surely, Allah is Knowing, Great.” [Noble Quran 4:34]

The second case is nushuz on the part of the husband. This has also been mentioned in the Quran:

“And if a woman fears nushuz from her husband or that he may turn away, there is no sin upon the two of them to make terms of agreement between them and agreement is better. Stinginess has been made present in all souls but if you extend good deeds and beware of Allah, verily Allah is fully knowledgeable of all that you do.” [Noble Quran 4:128]

The third case is where nushuz (mainly in the sense of ‘dislike’ and ‘turning away’) is committed by both the husband and wife. This is mentioned in the following verse:

“And if you fear a separation between the two of them, appoint an arbitrator from his family and an arbitrator from her family. If they desire reconciliation, Allah will bring them into agreement. Verily Allah is Knowing, Knowledgeable.” [Noble Quran 4:35]

• The Remedy for Nushuz When it is From the Wife

When a wife is in a state of nushuz, the husband can address it with the following three steps:

Admonition and guidance.
Boycotting
Striking her
What follows is a detailed discussion of each of these three steps.

• The First Step: Verbal Admonition and Guidance

The first thing a husband should do when his wife commits nushuz or the steps that lead to it is to attempt to warn her verbally, using Quran and Sunnah to remind her of her duties toward Allah and toward her husband. Allah said:

“As to those women from whom you see ill-conduct, admonish them…” [Noble Quran 4:34]

Admonition is a cure that is gentle and mild. Its goal is to replace estrangement and rebellion with love, compassion and togetherness in obedience to Allah Most High. All of the scholars early and late have agreed that this admonition is only as long as it is in agreement with the Shari’a. Otherwise, the husband has no such right according to the principle: “There is no obedience to the created if it involves disobedience to the Creator.” (sahih hadith). Here are some of the scholars’ definitions of this admonition (mau’idha):

“Advising and reminding one of the outcome of ones actions.”

“Reminding humans in a way that softens their hearts by reminding them of the rewards or punishments.”

“The husband makes her fear Allah Most High. He reminds her of what Allah has obligated upon her concerning his rights and obedience. She is to be told the results of her sin and disobedience and how she then forfeits her rights of maintenance and clothing. And she is to be told of how that permits him to strike her and boycott her.”

From the sunnah, it is narrated that the Prophet (peace and blessings be upon him) said:

“If you fear nushuz on their part, then advise them, boycott them in their beds and strike them in a way which is not injurious…” [Musnad Ahmad]

The Companions, the Followers and all who came after them to this day agree that this admonition is legally sanctioned when a wife commits nushuz. No one has ever rejected that and it is a point of consensus.

• The Second Step: Boycotting and Avoidance

Sometimes verbal admonition may have no effect on ending her state of estrangement and disobedience. I fact, it may increase her abstinence due to some emotion that has overtaken her, a defiant reaction or perhaps she has been deceived by position, wealth or beauty to consider herself better than her husband. The husband may be partly to blame for this if he allowed his own emotions to interfere with admonishing his wife in the best way. In any case, the next step in trying to end her recalcitrance is boycotting her and avoiding her “in the bed”.

Linguistically, this “boycotting” (al-hajr) is defined as “avoiding, cutting off and not having contact with the one who is being boycotted.” Allah recommends this using the additional phrase: “in sleeping places” (fiy al-madhaji’). This could mean either avoiding her entirely and sleeping somewhere else or it could mean sleeping in the same bed but keeping away from her and not speaking, etc.

The Quran, the Sunnah, consensus of the scholars and sound reason indicate its permissibility and it being one of the means of disciplining the estranged wife when verbal admonition brings about no positive result. Allah said:

“…And avoid them in sleeping places…” [Noble Quran 4:34]

Imam Ahmad records in his Musnad that the Prophet (peace and blessings be upon him) separated from his wives for a month. (Although this was NOT for reasons of nushuz, it nonetheless shows the permissibility of the act.) The jurists have agreed that it is permissible if it leads to the woman correcting her ways and returning to proper guidance. It is a method which is effective with a woman who loves her husband.

The verse in Surah An-Nisa is ambiguous as to whether it means to avoid the bed and the bedroom entirely and sleep somewhere else or whether it means to avoid them IN the bed. That latter method is preferable because it avoids making the existence of the problem known to children and other family members and because there is a more positive atmosphere for actual reconciliation.

The boycotting may include boycotting her in speech, but that should not last more than three days according to the hadith in Sahih Muslim: “It is not permissible for a Muslim to boycott his fellow Muslim for more than three nights.”

As for boycotting her in the bed, this can continue for as long as he believes it may still lead to her stopping her acts of nushuz but in no case exceeding four months. This is the strongest opinion among the statements of the scholars. It is based on the time limit which Allah placed on al-Ilaa’ – where a man takes an oath to cut of relations with his wife. In the jahiliya, there was no limit on this, so a spiteful man could leave his wife “hanging”, having no relations with him but not divorced for as long as he wished. Allah limited this to four months, saying:

“And for those who cuts off relations with his wife is a waiting period of four months. Then, if he returns, surely Allah is Hearing, Knowing.” [Noble Quran 2:226]

The wife who does not mend her ways after four months of boycotting is not and will not mend her ways. She is deserving of divorce and there is not need to continue this “suspended” situation any further. This is because her continual estrangement and non-cooperation even though she knows full well that it will end in divorce shows clearly that she has no willingness to respond to the action which is taking place and return to a proper Islamic marriage. At the very least, it can be said that she will not be able to live with that husband in a pleasant and proper manner.

• The Third Step: Striking Her

In some cases the solution to the problem may require some harshness and toughness. This is because there are some people who cannot be set straight when they go wrong by good behavior and soft advice alone. Kindness and softness just make such people more arrogant and ignorant. Some such people, if met with toughness, respond by cooling down and ending their defiance. Generally speaking, it is not recommended for a husband to ever strike his wife and it is narrated that the Prophet (peace and blessings be upon him) said about those who do so that “they are not the best of you”.

However, in some cases resorting to harshness including striking may be a beneficial cure which in fact returns the partners back together in love and compassion. In these cases, it can be a positive cure and a spiritual discipline. It is not meant for revenge or punishment. Whoever does it in such a manner is committing a sin and transgressing against his wife. Instead, it is meant to restore what has become improper and bring the disruption to an end. Although it is a bitter medicine, in many cases it may be less harmful to all involved than the destruction of the foundation of the family.

• The Remedy When Nushuz is By the Husband

Islam has provided remedies for cases when nushuz is from the husband in ways consistent with both her feelings and sensitivities as a woman and their respective roles, rights and obligations as husband and wife. She can look for the reasons for his behavior and admonish him with Islam in an attempt to make things right between them. However, Islam has not given her the right to address this problem by boycotting him or beating him as has been given to the husband. This is because her nature is different from that of the man and because she does not have the same kind of power and authority in the marriage as he has.

She should use some or all of the following steps:

Try to discover the reason for his estrangement and/or bad behavior.

Admonish her husband and remind him of his responsibility in front of Allah towards his wife such as good behavior and kind treatment.

Try to please her husband in order to make things right. This can be just by showing kindness and concern and can also include compromising some of her own rights for the sake of harmony.

“And if a woman fears cruelty or desertion on her husband’s part there is no sin upon the two of them if they make terms of agreement and agreement is better…” [Noble Quran 4:128]

If it becomes clear to her that the signs of nushuz are confirmed and he is turning away from her out of dislike for her and wishing to be away from her, then there is no sin upon either of them if the “work out terms of peace”. This means that she may give up some of her due rights in order to stay in the marriage. For example, she may give up some of her rights to support, housing or equality of nights with other wives in order to remain under his protection and in the marriage. Or, she may give up some or all of her dowry in exchange for his divorcing her.

Ibn Abbas said: “Saudah feared that the Prophet (peace and blessings be upon him) was going to divorce her so she said to him, “O Messenger of Allah, do not divorce me but keep me and make my day for Aisha.” The Prophet (peace and blessings be upon him) did so and the verse was revealed concerning that. Bukhari

‘Umar said: “Whatever points they agree upon are permissible.” Al-Baihaqiy

• The General Remedy: Appointing of Arbitrators

“Arbitration” (At-tahkim) means to judge or decide a matter. Al-hakam (mentioned in the verse) is the one who has the right to make a ruling and decision for the two in dispute. The meaning of appointing arbitrators in this case is:

“The two disputing spouses appoint two men from their respective families to bring about accord between them and to settle their dispute.”

• The Ruling Concerning Such Arbitration

The scholars have agreed that two arbitrators should be appointed if dissension occurs between the two spouses and it is not clear which of the two (if either) is committing nushuz or if both of them are wherein the husband refuses to keep his wife in a proper manner or to set her free in a good way and/or the wife refuses to fulfill her rights that Allah has imposed upon her toward her husband.

The jurists also agree that one of the arbitrators should be from the husband’s family and the other from the wife’s family if possible. If that is not possible, other people may be appointed depending on what is in the best interest of those concerned. They also agree that when in agreement are to execute what they see as the best opinion in bringing accord between the spouses. However, if they disagree, then their opinions are not to be executed.

• The Evidence

If the two spouses are not able to come to some kind of agreement between themselves and separation seems to be looming, it is permissible for those in authority, a ruler or judge to appoint two men as arbitrators to see how they can bring about a reconciliation. This step is proven by the Quran, the Sunnah, consensus and sound reason. Allah said (verse cited earlier):

“And if you fear a separation between the two of them, appoint an arbitrator from his family and an arbitrator from her family. If they desire reconciliation, Allah will bring them into agreement. Verily Allah is Knowing, Knowledgeable.” [Noble Quran 4:35]

From the Sunnah, there is a report recorded by Ash-Shafi’i in his book Al-Umm from Ubaidah As-Salmani who said: “A man and woman came to Ali ibn Abi Talib and each of them had a group of people with them. Ali ordered them to appoint a male arbitrator from his family and one from her family. Then he said to the arbitrators: ‘Do you know what your responsibilities are? If you find that you can bring them back together, then do so. If you find that they should be separated, then do so.’ The woman said, ‘I am pleased with the Book of Allah concerning what is upon me and what is for me.’ The man said, ‘As for separation, I will not accept that.’ Ali told him, ‘You are lying, by Allah, until you accept the same things she has accepted.'”

• Qualifications of the Arbitrators

The two arbitrators must meet the following conditions:
Muslim
Adult
Mentally competent
Male
Free
Mature following right guidance
People of insight and understanding
Just and righteous

They must have knowledge concerning matters of reuniting and separating spouses in the Shari’a and what they have been commissioned for.

Trustworthy
Their intention must be solely to please Allah
Pious having fear of Allah
It is recommended that they be from the relatives of the spouses

• The Role of the Arbitrators

The two arbitrators have a very important role to play, a noble purpose and a great responsibility. They will frequently become the target of enmity from one or both of the spouses and they should be willing to face that for Allah’s sake. To attempt to bring about reconciliation and harmony where there is misunderstanding, oppression and/or strife is one of the best good deeds. Allah said:

“There is no good in most of their secret talks except for one who orders charity, good deeds or reconciliation between people. And whoever dos that seeking Allah’s pleasure we shall give him a great reward.” [Noble Quran 4:114]

It is a must upon the two arbitrators that they spare no effort in trying to bring about reconciliation and harmony between the spouses. Failing that, they also have the authority to separate the spouses according to the strongest opinion among the scholars. In a case where there seems to be no hope of bringing the two back together in a harmonious marriage, then the only solution may be to free the spouses from one another by separation. Otherwise, the situation amy just get worse and bring about even greater harm. Allah ordered the husband to:

“Divorce is two times then retaining on reasonable terms or releasing with kindness…”[Noble Quran 2:229]

“And if they separate, Allah will fulfill their needs from His generosity and Allah is Generous, Wise…” [Noble Quran 4:130]

• The Different Types of Separation

Terminating the marriage contract is done through one of three ways: 1) dissolution of the contract by the ruler or judge, 2) khula’ and 3) divorce. If reconciliation cannot be achieved, then the arbitrators may separate the two through khula’ where the woman returns part or all of her dowry if the woman cannot abide by the marriage and the man is unwilling to divorce her unilaterally. If they determine that the problem is from both sides and the differences are irreconcilable they can institute a divorce – according to many of the scholars – even if the couple or one of them did not request the divorce.

• Do the Arbitrators Have the Authority to Separate?

Discussion of the Issue

There is a difference of opinion among the scholars concerning whether or not the arbitrators have the right to separate the couple and bring and end to the marriage. This difference revolves around the following points:

One opinion states that the arbitrators are simply acting as agents for the spouses and they cannot go beyond what they have been commissioned to do without first getting such permission from those who assigned them. Their role is only to attempt to reconcile, not separate.

Another opinion is that the arbitrators have been appointed by the judge or ruler to solve the problem between the spouses. They are, therefore, like judge. The judge may decide according to whatever is in the best interest and if separation is the best solution, then so be it.

The strongest of these opinions is that the arbitrators are like judges and DO have the authority to separate between the spouses with or without their consent. Ibn Al-Qayyim said about this:

“It is the most amazing thing to say that they are simply agents and not arbitrators or judges. Allah has given them the position of arbitrators or judges. This role has been given to other than the spouses. If they were both simply agents or trustees (wakil) working on behalf of the spouses, the verse would read, “And appoint a trustee from his family and a trustee form her family.” Furthermore, if they were to be simply agents or trustees, they would not need to be from the respective families. In addition, the judgement has been put in their hands. Allah said, “If they both wish for peace, Allah will cause a reconciliation” however, agents or trustees have no independent will of their own, they only fulfill what their superior has desired. Moreover, the agent (wakil) is never called a judge or arbitrator (hakam) in the language of the Quran, the language of the law or in common speech. Finally, the arbitrator has the authority to decide a matter and that decision must be implemented. However, neither is true for a wakil…”

Some of the scholars state that if the ruler or his deputy appoints two arbitrators then they have no role except to study which of the two parties is in the wrong, to advise them and to attempt to bring about reconciliation. If no reconciliation is reached, then the matter is taken up to the ruler or his deputy. This leaves this issue open to three possible opinions:

The arbitrators are simply agents or trustees working on behalf of the spouses. This is because the right of divorce is in the hands of the husband only and a settlement other than divorce can only come about when the wife accepts it.

The arbitrators are acting in the role of the ruler or his deputy. The ruler may bring about divorce if the harms of the marriage are made evident to him.

They are witnesses only.

The strongest opinion is that the arbitrators are like judges and not simply agents or trustees. They have the authority to separate the couple in the same way that they have the authority to make them come back together.

ViA – www.islamswomen.com
women in islam facebook

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s