Missing husband
Question:
This is an actual query from a lady in Pakistan. Her husband has disappeared ? presumed in jail/ killed by government. What is the legal position of her nikah with him? how long should she wait for him before she can approach the courts to nullify her nikah and remarry i.e seek khullah.
Answer:
We do not have any general and explicit directives about the situation that you described. This situation (i.e. a woman whose husband vanishes) is a known issue in Feqh (science of jurisprudence) and in the lack of any concrete evidences in the Shari’ah the jurists have given a variety of opinions about it. These opinions vary from waiting till the end of the life expectancy of a normal human being and then assuming that the husband is death (which is a Hanafi view) to referring case to the court or a group of religiously aware elders including scholars (which is a Maliki view).
In my understanding the Maliki view is the soundest view on this issue. The main issue is to find a balance between ‘rushing into new marriage’ which in the event of the return of the first husband will lead to complications and ‘waiting for an unbearable time to establish what happened to the husband’, which can be very difficult for the woman.
Accordingly, in my view, the woman should refer her case to the court and seek their help in this. I would like to think that a reasonable court will use media and other tools to see if any information about the husband can be reached and if not, will announce to the relatives of the husband that if no reliable news can be found of him by a reasonable deadline then the wife will be divorced by the court. If the court in the country does not take care of situations like this, then a similar process needs to be adopted by a group of wise, morally and religiously sound, neutral and reliable people.
Please also note that if the law in the country already has a specified procedure for dealing with these cases then that law supersedes all the above and needs to be obeyed.
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October 2013
This is an actual query from a lady in Pakistan. Her husband has disappeared ? presumed in jail/ killed by government. What is the legal position of her nikah with him? how long should she wait for him before she can approach the courts to nullify her nikah and remarry i.e seek khullah.
Answer:
We do not have any general and explicit directives about the situation that you described. This situation (i.e. a woman whose husband vanishes) is a known issue in Feqh (science of jurisprudence) and in the lack of any concrete evidences in the Shari’ah the jurists have given a variety of opinions about it. These opinions vary from waiting till the end of the life expectancy of a normal human being and then assuming that the husband is death (which is a Hanafi view) to referring case to the court or a group of religiously aware elders including scholars (which is a Maliki view).
In my understanding the Maliki view is the soundest view on this issue. The main issue is to find a balance between ‘rushing into new marriage’ which in the event of the return of the first husband will lead to complications and ‘waiting for an unbearable time to establish what happened to the husband’, which can be very difficult for the woman.
Accordingly, in my view, the woman should refer her case to the court and seek their help in this. I would like to think that a reasonable court will use media and other tools to see if any information about the husband can be reached and if not, will announce to the relatives of the husband that if no reliable news can be found of him by a reasonable deadline then the wife will be divorced by the court. If the court in the country does not take care of situations like this, then a similar process needs to be adopted by a group of wise, morally and religiously sound, neutral and reliable people.
Please also note that if the law in the country already has a specified procedure for dealing with these cases then that law supersedes all the above and needs to be obeyed.
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October 2013
