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Subject : Ruling on Woman or her Guardian Asking for Separation on Grounds of Husband`s Unfitness

Fatwa Number : 3423

Date : 01-10-2018

Classified : Conditions of marriage

Fatwa Type : Search Fatawaa

Question :

Is it permissible for a woman`s guardian to ask for separating her from husband because the latter drinks and owns a license for selling liquor?

The Answer :

All perfect praise be to Allah The Lord of the Worlds and may His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

Fitness in marriage is considerable in Islamic Law and-according to the majority of the jurists-it is in religiosity. Accordingly, the one who drinks liquor and the one who sells it aren`t fit for the chaste,religious woman. "Iffah is the fourth type of fitness and refers to religiosity, righteousness and refraining from the unlawful; thus, the wicked man isn`t fit for the chaste, religious woman, because Allah, The Almighty, said, "Is then the man who believes no better than the man who is rebellious and wicked? Not equal are they.{As-Sajdah, 18}."{Moghni Al-Mohtaj, V.4/P.274}. Fitness of the man(Husband) is the right of the woman and her guardian upon the conclusion of the marriage contract. Al-Imam Al-Ghazali said, "Fitness of man is the right of the woman and her guardian, but if they have approved of an unfit husband, then that is permissible."{Al-Waseet Fi Al-Math-hab, V.5/P.8}.

The Jordanian Personal Status Law took fitness in marriage into consideration, made it a condition for the validity of the marriage contract, considered religiosity part of it, made it the right of the woman and her guardian and made it considerable upon concluding the marriage contract. Article(21) stated:

"A- Husband`s religious and financial fitness is a condition for the validity of the marriage contract. Financial fitness, here,refers to his ability to afford the advanced portion of the Mahr(Bridal gift) and maintenance.

B- Fitness of the man is the right of the woman and her guardian, and it is considerable upon concluding the marriage contract. However, if this fitness ceased to exist after the contract was concluded, then that doesn`t affect the validity of the marriage." This Law has excluded certain situations in which the woman has no right to ask for judicial annulment on grounds of husband`s unfitness, and they are: pregnancy, having approved of his unfitness before the conclusion of the marriage contract or three months have passed over the guardian`s knowledge of his unfitness.

In conclusion, after the marriage is completed and the contract is put into effect, the woman`s guardian has no right to ask for separation on grounds of husband`s unfitness. However, the wife, alone, has the right to ask for separation on other grounds to avoid any harm resulting from the marriage, and this whole matter is up to the Islamic court to decide. And Allah knows best.



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