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The
Ameer, divorce and khul'ah
Question:
Is it permitted for the Imaam or leader of a Muslim minority
group to authorise divorce and khul'ah in order to avoid resorting
to the jurisdiction of western courts of law. Also, if the
husband refuses to release his wife, does the Imaam have the
authority to order that they separate and by so doing open
the way for her to marry someone else after her 'iddah has
ended?
Response:
There can be no doubt that it is obligatory to refer this
matter back to the Ameer or leader, who will make a decision
according to Islaamic law. It is not permitted for the Muslims
to request a legal decision from anyone who does not judge
according to the Book of Allaah and the Sunnah of His Messenger
(sal-Allaahu
`alayhe wa sallam).
The
scholars, may Allaah have mercy on them, even say that should
the disbelievers come to the Muslims for a legal decision,
then it is not permitted for us to pass judgement except in
accordance with Islaamic law. It is obligatory then, for this
Muslim group to go to the Ameer for a legal decision, if he
is qualified to pass judgement. He then has the right to advise
the husband to divorce his wife or release her in the case
of khul'ah, if it is not possible for them to remain together.
However, can he force him to divorce or release her?
The
scholars, may Allaah have mercy on them, have differing opinions
concerning this issue. Some of them have said that the ruler
or leader can force the husband to release his wife if it
is not possible for them to remain together. Their proof is
the hadeeth
narrated by Thaabit Ibn Qays in which the Prophet (sal-Allaahu
`alayhe wa sallam) says, ((Accept the garden and divorce
her)) His words "accept" and "divorce"
are commands and commands are primarily used for compulsion
and obligation, especially when used in the context of disputes
between two parties. Some of the scholars, however, say that
he does not have the right to order the husband to release
her and that the words of the Prophet (sal-Allaahu
`alayhe wa sallam) ((Accept the garden and divorce her))
is a command in the sense of advice and guidance and not compulsion.
In any case, I believe that in this matter the ruler or leader
must consider the case and if it seems better to wait and
be patient then this should be done.
If,
on the other hand, a definite decision is needed, then he
should settle the matter by giving back to the husband whatever
he had given to his wife and annulling the marriage. This
can be carried out by the leader or Ameer of a group or society.
The scholars have also mentioned that if two men appoint to
arbitrate between them someone who is qualified to pass judgement,
then all that he decides should be enforced.
Shaykh
Ibn 'Uthaymeen
al-Aqalliyaat al-Muslimah - Page 64, Fatwa No.5
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