Laws of Religion

Laws of Islam Concerning Women and Men

 

Divorce

 

Grounds for Dissolving a Marriage

 

From Islamic Jurisprudence (fiqh/sharia§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

 

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Grounds for dissolving a marriage (jurisprudence/fiqh/sharia). Among the scholars**, Malik, al-Shafiʽi and Abu Hanifa agree that a person has the option of dissolving a marriage if certain defects are discovered in the spouse, though some scholars hold otherwise.[1] For Abu Hanifa, the only grounds for rejecting a woman in marriage is blockage of vulva which prevents intercourse. Malik and Al-Shafiʽi say that the defects that justify dissolving a marriage are inability to have sexual intercourse because of congenital blockage of the vagina in the woman or because of impotence or severed penis in the man and also insanity, leprosy and another particular skin disease.[2] (Reliance of the Traveller (Shafiʽi school) lists elephantiasis rather than this second skin disease.[3])  Some of Malik’s followers add being black, baldness, or offensive odor from the vagina or breath as grounds for dissolving a marriage.[4]

 

According to the Maliki school, marriage of a virgin female is to be annulled if she objects to having a husband who is a drunkard, who disobeys Islamic law, whose wealth was obtained in violation of Islamic law or who often divorces his wives.[5]

 

If a husband is unable to pay the bridal payment (mahr*), Abu Hanifa says the bride may refuse to have sex with him. Malik and al-Shafiʽi add that if, in such a circumstance, the marriage has not been consummated, the woman can choose to dissolve the marriage.[6]

 

Malik and al-Shafiʽi say that a marriage dissolves if the husband is not able to provide maintenance for his wife.[7] The Maliki school holds, specifically, that if the husband of a virgin female married by order of her father is too poor to maintain her, then they are to be divorced.[8] According to Reliance of the Traveller (Shafiʽi school), a woman may annul her marriage if her husband is not able to provide her with the basic housing, food and clothing appropriate for a person who is not wealthy.[9] Abu Hanifa, however, says that the inability to provide maintenance for one’s wife is not grounds for dissolving a marriage.[10]

 

If a husband takes an oath not to have sexual intercourse with wife for four months and fulfills the terms of the oath, Abu Hanifa says that an irrevocable divorce is effected by four-month period of abstinence. Malik and al-Shafiʽi hold that a divorce is not effected after the four-month period unless husband pronounces a divorce,[11] and such a divorce would be revocable.[12] If a husband continues to not have sexual intercourse with his wife for more than four months but will not divorce her either, Malik says that a judge is to order her divorce from him.[13] Reliance of the Traveller says it is unlawful for a man to swear an oath to abstain from sexual intercourse with his wife for more than four months.[14]

 

Al-Shafiʽi and the Shafiʽi school hold that if a woman is taken as a prisoner in war, she becomes a slave and her marriage is dissolved.[15] Abu Hanifa limits this by saying that the marriage is dissolved unless she and her husband were imprisoned together, at the same time.[16]

 

A majority of the scholars say that the sale of a female slave does not result in her divorce.[17] However, a female slave can divorce her husband when she is manumitted if her husband is a slave. Abu Hanifa says that she may divorce him even if he is free, but Malik and al-Shafiʽi disagree on this point.[18]

 

 

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*Mahr is a payment given by the groom to the bride upon their marriage.

 

**Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

 

 

Laws of Religion is a project of the Religion Research Society.

 

Updated October 12, 2016

 

 

Abbreviations used in footnotes:

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Limited preview is available here (Volume 1) and here (Volume 2). Full text online and download for Volume 1 is here and here and for Volume 2 is here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA. It can be downloaded as a pdf file from various websites such as this one.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society. It can be downloaded here.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.



[1] DJP 18.3.1 (Vol 2, pages 58-60)

[2] DJP 18.3.1 (Vol 2, pages 58-60)

[3] RT m7.1 (page 531)

[4] DJP 18.3.1 (Vol 2, pages 58-60)

[5] DJP 18.2.2.1.4 (Vol 2, pages 17-19)

[6] DJP 18.3.2 (Vol 2, pages 60-61)

[7] DJP 18.3.2 (Vol 2, pages 60-61)

[8] DJP 18.2.2.1.4 (Vol 2, pages 17-19)

[9] RT m11.13 (pages 546-547), RT m11.14 (page 547)

[10] DJP 18.3.2 (Vol 2, pages 60-61)

[11] DJP 20.1 (Vol 2, pages 122-123)

[12] DJP 20.5 (Vol 2, page 124)

[13] DJP 20.6 (Vol 2, page 124)

[14] RT n8.1 (page 566)

[15] DJP 18.2.3.8 (Vol 2, pages 51-53), RT o9.13 (page 604)

[16] DJP 18.2.3.8 (Vol 2, pages 51-53)

[17] DJP 18.2.3.12 (Vol 2, pages 56-57)

[18] DJP 18.3.4 (Vol 2, pages 62-63)