The Background Story (Very Important):
Islam fully allows husbands to exploit and abuse their wives by beating them brutally (even with bruises). And poor wives have no right to seek divorce in Islamic court on the basis of this beating and abuse. They cannot even get their freedom through Khul' (خلع), which is again the right of a husband in Islam.
Yes, Islam has left no ESCAPE possible for poor women from this abuse. Islam makes them to endure this misery for their entire lives.
And when Islam is criticized for this injustice against women, then Islamic apologists come with an excuse that women can indeed escape their abusive husbands through FASKH in Islamic courts.
However, these Islamic apologists are only telling a lie, while:
- Faskh is an avenue that remains applicable only in a limited number of specific scenarios, such as cases of impotence, non-payment of maintenance, mental instability, or the husband's untraceable status.
- A woman has no right to get divorce through Faskh in cases where a husband beats her brutally, as this beating is a right which is given to him by Allah. Similarly, an Islamic court cannot grant her divorce if she has to suffer in ILA at the hands of her husband.
As an illustrative case, the 'Dissolution of Muslim Marriages Act, 1939' can serve as a study in relation to these laws. This law, formulated by Muslim scholars in the Indian subcontinent, subsequently gained official status in Pakistan and Bangladesh, and functioned as the Personal Law for Indian Muslims.
Dissolution of Muslim Marriages Act, 1939:
Grounds for divorceUnder the act a woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds,[1]
(i) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;
(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause his marital obligations for a period of three years; continues to be so:
(v) that the husband was impotent at the time of the marriage and
(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated (i.e. if the husband has slept with her before she becomes 18 years old, then she will lose her right to get divorce);
Key Observations:
- While the law grants women the right to seek divorce under specific circumstances, the process's duration is excessively prolonged, compelling the woman to endure the ordeal alone.
- It is noteworthy that 'Faskh' does not encompass instances of physical abuse, even involving visible injuries. Consequently, a wife enduring abuse cannot attain freedom from an abusive husband through Islamic court intervention via 'Faskh.' For further insights, our article titled"Wife Beating (Recommendation vs Law): Muhammad Recommended Beating Her Only Lightly, but He Made a Law That the Husband Can Beat Her Brutally Too, Even with Bruises" provides detailed information.
- Furthermore, juxtaposed with women's circumstances, husbands possess the privilege to immediately divorce their wives for reasons like infertility, mental instability, leprosy, perceived marital dissatisfaction, or even without providing any rationale.
Please note that Islamic Sharia allows a husband to slap his wife or to beat her brutally with bruises. On this basis, a woman is not allowed to get a divorce through Faskh in any Islamic court. Nevertheless, if the husband breaks any part of her body, only then she can get a separation through Khul'. This means she still has to pay him "ransom money" for her freedom. We request all to please read this important article: Khul’ خلع (i.e. getting freedom from husband) is not a “right” of a woman, but it is still a “right” of a husband to either grant it or deny it
Hassan Radwan