Grounds for Judicial Separation
Separation due to Failure to provide Maintenance
Hanafi says that judicial separation is not permissible on the grounds of failure to provide maintenance. The argue that the husband will either be solvent) one who does not have money) or insolvent (one who has money). If he is poor and insolvent, we cannot blame him for this, because Allah says,
Let him who has ample means spend in accordance with amplitude; and let him whose means of subsistence are scanty spend in accordance with what God has given him: God does not burden any human being with more than He given him (and it may be well that)God will grant after hardship, ease.
(65:7)
They further maintain that during the time of Holy Prophet (SAW) there were poor and rich among the sahabah but not a single example of judicial separation is found due to the inability of the husband to provide maintenance.
Maliki, Hanabali and Shafi jurists are of the view that even if the husband is poor, wife has a right to take the matter to the court. The court would either compel the husband to pay maintenance or would invalidate the marriage contract.
(Mughni-al-Muhtaj, vol.3)
Separation due to Non-Provision of Maintenance
Maliki is of the view that the separation would be tala-i-raja’I and the husband would be granted the right to go back to his wife if he becomes able to provide maintenance to her during the ‘idda’ period.
While Shafi and Hanbali say that separation would take place by the order of qadi and will be regarded as invalidation of the marriage contract and therefore the husband would have no right to go back to her wife.
(Al-Ahkam al-Shariyyah by Zaki uddin Sha ‘bah)
Regards,