A Layman Follows the View of His Mufti
Fatwa No: 384565

Question

As salami alaikum. My question is which body or scholar a couple should refer to if there is a confusing divorce situation they suddenly face. For example, if the husband said something that could result in divorce. The couple are orginally from Bangaldesh, where they married. In Bangladesh, there is a Muslim Family Law Ordinance passed by government which sets general guidelines for divorce and maintenance, custody etc. A husband should give notice and within 90 days the union council chairman will make hearing for reconciliation. If reconciliation is not possible, or parties fail to present then talaq is effective after 90 days of notice. If huband and wife do not agree they can take the case to a family court which is judged by a Sub-judge who is aware of the Muslim family law but not necessarily a Mufti or Scholar in Islam. Also in Bangladesh, there are Muftis graduated from Madrallsa/Islamic Universities and they are typically strict hanafi(very rigid about divorce utterances). But this couple migrated to Australia and have been living there for 4 years. Now after 4 years this incident happened and they have a nearby mosque in Australia where they know a Muslim Scholar who is from Egypt. They can immediately approach this scholar and explain to him face to face and receive a fatwa. But note that this scholar comes from a different country/madhab so he may have different view about certain Fiqhi issues and may take intention/circumstances in consideration before giving divorce fatwa. So which scholar or body are the couple Islamically required to go? Is it okay if they ask this nearby scholar in Australia regardless of his nationality/madhab because he is closest and knowledgable also? Or is it must for them to call a Bangladeshi Mufti or visit Bangladesh to solve issues in family court? Is it practical that one should be bound to madhab of the country they married in?

Answer

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

We hope that the matter is easy and there is no need to worry.

This is because the scholars say that a layman does not have a specific School of Jurisprudence to follow, and that his School of Jurisprudence is the view of the one who issues a Fatwa to him. If he faces any issue or problem, then he must go to a scholar whom he trusts, and he asks him and acts according to his Fatwa.

Allah Says (what means): {So ask the people of the message if you do not know.} [Quran 16:43]

Based on this, there is nothing wrong with asking this Shaykh who is present in the country where you live, if he is known to issue Fataawa and is trustworthy. The fact that he is not from your nationality, and that he follows another School of jurisprudence unlike your country, does not harm.

Islamic Centers in non-Muslim countries serve instead of Islamic judiciary in Islamic countries, as stated in a statement by the Assembly of Muslim Jurists of America (AMJA), so you may refer to it when in need for litigation and dispute settlement.

It should be noted that both spouses should make sure that the family is far from problems so that it will be safe from what can lead to the separation of the spouses and the family break up and the children being spoiled. If each spouse knows the right of the other on him/her, and fulfills it for him/her, then the family will be stable and happy. This is one of the most important objectives of Islam from legislating marriage.

Allah Says (what means): {And of His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought.} [Quran 30:21]

Allah knows best.

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