Deserting the Wife, Between Disciplining and Abuse - An Islamic Jurisprudential Study -
Sabri, Orwa Ikrimah
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This study treats the topic of deserting the wife as a means for disciplining the wife upon disobedience of her husband and rebellion against him, such by means of elucidating the manifold opinions of the Fuqaha (Muslim jurists) insofar as the method of desertion such as desertion of the wedlock bed or eschewal of sexual contact or verbal communication or otherwise, while also pointing out the lawful duration. Moreover, the adoption of desertion as a means for harming the wife was addressed, and the position of the Fuqahavis a vis the right of the wife to demand separation as a result of this reason through the courts of law, and the period that grants the wife this right, and also the type of separation resulting from the separation ordained by the judge in terms of considering it as a separation/ Dissolution (Faskh) or divorce. The author reached several results including the fact that desertion (Hajr) may be applied to its multiple meanings, whereby the husband my choose the method which influences and assists in ending the condition of the rebellion of the wife in a manner whereby the interests of the children are not affected negatively. Moreover, the desertion of the wife should be time-specific and it may not be prolonged toseveral months or years, because al-Hajr entails an aim related to reforming the wife and ending her rebellion or disobedience. And in case the period of desertion exceeds the Islamicallypermitted period, or the Hajr was adopted as a means for harming the wife, such will confer on her the right to take recourse to the judiciary, in order to admonish the husband and give him a period of time to mend his ways with his wife, but incase he continues the desertion, the author views with favor the possibility of effecting separation. As regards the period of desertion enabling the wife to demand separation (Tafriq) the author favors the position that it is four months in case the husband is cohabiting with the wife based on an analogy to Ilaa (eschewal of sexual intercourse for a period of time), and one year in case he is absent, but if the desertion is by eschewing verbal communication and misconduct in the cohabitation, the husband is not given a grace period, but shall be warned, and in case he is insistent he shall be ordered to separate immediately. The type of separation resulting from the decision of the judge (Qadi) to separate the couple is irrevocable divorce, and this is the plausible position favored by the author.