His wife left his home and refuses to come back
Fatwa No: 130373

  • Fatwa Date:20-12-2009 - Muharram 4, 1431
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Question

Asalam-o-Alakum, I have been married for last 3.5 years and we have had more bad times in my relationship so far than gud time since my wife is doctor and all she wants to do is work. i have said to her many a times that she can work but will have to manage her house as well. there has been many fights and few times i have hit her which i am not proud off but she is being disobidient and gets very aggressive and abusive at times last month we have had similar fight after which she left house (even after i was adamant for her not to leave house and even my parents said to her the same) and later came back with police to take our 2.5 year old daughter with her she said to me via police that she want some time to think about what she wants next. it has been 5 weeks since she has left house and would not come back i have tried to contact her parents, unlce and anty to try to ask if she want divorce or if not come back i have even appologised of my act if front of them. Last night i send in my frineds to speak to her she has said that she want time and will now get job be independant and be on her feet before coming home. I have replied if you want to do all this you have to do this from own home not from refuge home. I have been told if wife stay away from husband for 4 months that means it is talaq, and also in all our fights i have not given her talaq at any time but said this few times that i will send you to your mum's house and if you want can send you divorce also she has repeatdly said she doesnt want talaq but spend time alone, i have said i only pernit you to spend time alone at you parents house not at refuge house please advice should i give her first talaq what is her obligation on iddah, that will get her to come home and spend iddah and time to think about what she want to do next with our relationship or anyother option. My daughter is the one suffering from this and i am prepared to do anything for her.

Answer

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

 

It is not permissible for a wife to go out to work except with the permission of her husband as Allaah put the right of the husband on his wife not to go out of his home except with his permission and if she goes out without his permission and consent, then she is rebellious and disobedient as stated by the jurists  may  Allaah  have  mercy  upon  them.

Even if we presume that a wife conditioned on her husband (when conducting the marriage contract) to work, it is not permissible for her to go out for other purposes than work except with his permission. Therefore, your wife is considered rebellious and disobedient by going out to this refuge home if this was without your consent while she has no sound reason for doing so, like fearing for her own safety.

In any case, we advise you to appoint some righteous people from your family and her in order to arbitrate between you as Allaah may enable you to reconcile with each other thanks to them. Allaah Says (what means): {And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allaah Will Cause it between them.}[Quran 4:35] If she regains consciousness and comes back to her home, then this is what is required, otherwise you may divorce her if you think that this is better.

Moreover, the mere fact that the husband and wife live separate from each other is not considered a divorce even if this was for a long time as clarified in Fataawa 89825 and 82732. What some people informed you about that when the spouses stay separated from each other for more than four months divorce takes place, then it seems that they mean Ilaa’, i.e. a husband swearing not to have sexual intercourse with his wife for more than four months, then when the four months expire divorce takes place immediately according to the Hanafi School. However, the preponderant opinion is that of the majority of the scholars  may  Allaah  have  mercy  upon  them who said that after the expiry of this period, the husband is ordered (by the judge) either to take back his wife or to divorce her if she wants divorce.

As regards the words that you uttered, they are a promise of divorce and divorce does not take place by them unless you intended it. For more benefit, please refer to Fataawa 90318 and 89056. In case you decided to divorce her, she would be obliged to spend her waiting period at her marital home. Besides, the jurists  may  Allaah  have  mercy  upon  them stated that if the bond of marriage still exists, the fostering of the children is the right of both parents, so your wife has no right to be the only one to foster her daughter. However, after the separation [divorce], the fostering will be her right or the right of her mother [the grandmother of the daughter] or the ones who are entitled for the fostering after her mother if there is any impediment that prevents her from the right of fostering. For more benefit, please refer to Fatwa 84618.

Allaah Knows best.

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