A wife is not happy with her marriage and desires separation. Efforts at reconciliation fail. But the husband refuses to divorce her and the wife files a petition to a Shariah Court for annulment of her marriage. The Court fails to grant her request for over a year on the plea that they have not received any response from the husband to the notices they sent him. The husband in the meantime marries another woman, but the wife cannot seek another husband as she is neither divorced by her present husband, nor has the Shariah Court ordered annulment of her marriage.

Now, in this scenario, the questions that arise for consideration here are:
1. Is it not a clear case of injustice to the wife?
2. If yes, then does Islam permit or tolerate such injustice?
3. Does it (Islam) give the husband the authority to refuse divorce?
4. Is the Shariah Court justified in prolonging the matter indefinitely?
5. What should the Court have done, in the circumstances, in the interest of justice?

The case cited is not a product of fiction. It is a true life story. The events mentioned are exactly as those happened. I'm making this clarification lest anyone should dismiss it all as being merely hypothetical.

The first question put up for discussion is whether it isn't a clear case of injustice against the wife. Yes, it is! And I'm sure, none will say it isn't.

Even by common sense, if a husband has the right of unilateral decision to legally separate from his wife, the wife too ought to have the same right. Marriage is a mutually approved contract between two persons. It can subsist only at the simultaneous pleasure of both the parties. A system that virtually says that a wife can remain a wife only at the sweet pleasure of her husband and gives no importance at all to the wife's pleasure, is undoubtedly an unjust system. And any pretension to being a just system vanishes into thin air, the moment the system helplessly watches the husband marry another woman while he effectively prevents his first wife to marry another man.

No wonder then that such a social system is condemned by other social systems as being retrogressive.

I shall now deal with the 2nd question posed, viz., whether Islam allows or tolerates injustice of the kind meted out to the wife in the case cited.

Qur'aanic Verse 3.18 informs us that Allah maintains His creation with justice. In verse 4.58, He commands us that when we judge, we should judge with justice. He exhorts us that hatred of any people should not incite us to act unequitably with them (5.8). He informs us that His Word has been accomplished in truth and in justice (6.115). He urges us that we should give full measure and weight with justice (6.152). The same verse also urges us that when we speak, we speak justly, even if it be against a relative. Allah asks the Prophet (peace and Allah's blessings be upon him) to tell the people, "My Lord has enjoined justice" (7.59). And, finally, verse 49.9 tells us, "...surely, Allah loves those who act equitably."

It may thus be seen that Islam does neither allow, nor tolerate, the injustice meted out to the wife in the case being analyzed here. In fact, Islam tolerates no injustice whatsoever, anywhere!

Herein above, I hope, I have succeeded in producing evidence to the effect that,
1. by logic and commonsense, the wife, in the case under our consideration, is no doubt subjected to gross injustices, and,
2. Islam does neither permit, nor tolerate, such or any other kind of injustices.
Now, I shall inshaAllah attempt to address the important 3rd question posed, viz., whether Islam grants the husband absolute authority to refuse to divorce his wife, when the wife asks for the divorce. The conclusions drawn at 1 & 2 above do substantially prove that Islam cannot give such authority to the husband. And, by way of providing a clinching proof, let me quote from my book, 'ISLAM & POLYGAMY':


Let me now deal with the 4th & the 5th questions, viz., whether the Shariah Court was justified in prolonging the matter indefinitely, and how it ought to have acted in Qur'aanic light.

The incidence cited here for analysis was a typical 'justice delayed is justice denied' case. The primary responsibility for the inordinate delay rested with the Court itself. It took its own time in sending notices to the husband, that too after repeated reminders from the wife's side. The presiding Mufti of the Court even got annoyed when it was suggested to him that the delay is causing injustice to the wife and that the Qur'aan is against any kind of injustice to anyone. He literally flared up, because an ordinary man on behalf of the wife had dared to quote the Qur'aan to him, a Mufti!! The Mufti threatened to close the wife's case unless the man tendered a written apology.

How could one expect any justice from such Shariah Courts? Instead of dispensing Islamic justice, they serve only to malign Islam.

The lethargy and the haughty attitude apart, was the Court justified in delaying the matter just because the husband wouldn't reply to their notices?

I have pointed out above that in view of verse 4.19, no husband has the right to retain any woman as his wife against her wishes. This being the case, the Shariah Court had no alternative but to accede to the wife's request to annul the marriage, without much ado. It was not necessary at all for them to wait indefinitely for the husband to give his reply. They could have at most given 3 months for both the parties to explore the possibility of a rappochement. And if it did not happen during that period, they should have annulled the marriage ex-parte, on the basis of the wife's request.

In the interest of justice, it also needs to be mentioned that the cited case is from a country where Muslims are in a minority. Shariah Courts do function, but they are subject to the general judicial system of the country. Hence a party aggrieved by a decision of a Shariah Court could theoretically approach the country's general courts against the decision.

The members of the Shariah Court appear therefore to dread the possibility of any aggrieved party dragging them to the general court.

But the country's Constitution guarantees to the Muslims the observance of their Personal Laws as prescribed by their own religion. Therefore the Muslims of the country as a community should together fight their case in the country's general courts, if anyone challenges any decision of the Shariah Court. It's a shame that the Shariah Courts function under duress. It's better to wind them up rather than to carry on with a virtual farce of a Court.

One may say that all the right things are there in the the Qur'aan, but lament that the right things are not implemented. I would say that the failure at implementation is largely because of the lack of general, first-hand awareness of what the Qur'aan contains. Most Muslims remain blissfully content with what others say the Qur'aan contains. They find no time to get the first-hand information from the Qur'aan itself. They are also fed by vested interests with the false notion that the Qur'aan is beyond their comprehension.

To inculcate general awareness that the contents of the Qur'aan are not the prerogative of just the privileged few, but are open to all human beings of average intelligence, is the humble objective of my writings.

Taking this particular case for example, few people are aware of the specific provision in the Qur'aan, by virtue of which a husband is obliged to divorce his wife if she insists on the separation. And the tragic fact is that even the high-profile men constituting the Shariah Court are unaware of this provision. Had they been aware, they would not have waited for such a long time for the husband's response. After allowing a 3-month period for a possible reconciliation between the 2 parties, the Court would have annulled the marriage ex-parte on the wife's petition. And had the husband in the case been aware of this Qur'aanic provision, this case would not have arisen at all!

Mohammad Shafi
(islam-n-interest.com)

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Guide us to the Right Path, Allah!