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I am going to start a thread on Muslim Law topics. I'l try my best to provide exact and authentic material on different important topics of Muslim Law off and on.

Faskh (Judicial Separation)

Nature and Description of Faskh

Faskh literally means annulment. It differs from talaq and other forms of dissolution of marriage in legal structure and its effects.

Faskh occurs in different forms. Some forms need decree of the court and some other do not need it. For example if the husband fails to provide maintenance to the wife, she may petition for judicial separation. On the other hand, if it is established that spouses are within prohibited degree to marry each other, then it will not need decree of the court. They will instead be automatically separated upon knowing the fact of prohibition.

Faskh requires ruling by the court in the following instances:

• Failure of the husband to provide maintenance

• Harm of wife

• Desertion by the husband or his imprisonment

• Separation due to Khula if husband does not agree to her request

• Disease or defect in the husband or his impotency

• Option of puberty

• Mutual imprecation


Faskh does not require decree by the court in the following instances:

• Invalidity of contract

• Existence of in-law relationship between the spouses

• Separation due to il’a

• Apostasy of wife or husband


The annulment of marriage in these cases takes place by the operation of law. It does not need pronouncement of repudiation by the husband or the order of the court.

Source: Family law in Islam by Dr. Muhammad Tahir Mansoori

Request for prays,

Zoyee

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,

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