Allah Most High blessed this ummah with the most
comprehensive and perfect law ever given to mankind - the shari'a. This
law did not fail to give us solutions to one of the most common
everyday problems of human life: problems between husband and wife.
Even if both the husband and wife are pious, practicing Muslims in a
general sense, marriage presents additional tests which many do not
pass as well as they should. They may then begin failing to fulfill
their obligations within the marriage and failing to treat one another
as they should according to Islam. When this happens, Allah's shari'a
has laid down certain processes that the spouses (and possibly others
helping them) should go through to try to rectify the situation. Unlike
some ignorant "religions" concocted by men, Islam also recognizes that
there may situations where resolution is not possible and termination
of the marriage is preferable - through divorce or other means.
When one of the spouses is refractory, it is called
nushuz on the part of that spouse, whether husband or wife. For the
rest of this chapter, we will discuss the nature of nushuz and some of
the steps which should be taken when it arises.
The Meaning of Nushuz
The meaning of Nushuz in the language is "rising up".
An-nushuz can be on the part of the wife, the husband or
both can claim it to be from the other. Here are some of the
definitions which the scholars have given to it:
"Each spouse transgresses and is hostile against the other."
"It is a hatred by one of the spouses for the other or by each of them for the other."
"Each on of the spouses differing from the other."
"An-Nushuz is each of the spouses having hatred for the other and treating each other in an improper manner."
Looking at all of these definitions, one sees that they
are very close in meaning and indicate that an-nushuz can come from
either spouse due to disobedience, hatred, contrariness, diffidence,
harshness, aggression, etc.
An-Nushuz on the Part of the Wife
Here are some definitions from the scholars of nushuz when it is committed by the wife:
"It is the woman leaving the house of her husband without his permission and keeping her husband from her without due right."
"It is the woman departing from the obligatory obedience
to her husband, her preventing him from her in the bed, her leaving the
house without his permission to a place that she knows he would not
permit her to go, her leaving the rights of Allah upon her, such as
performing the purification of ghusl or fasting Ramadan, and her
locking the door on her husband, keeping him out."
"It is the wife disobeying her husband elevating herself
above what Allah has obliged upon her and her raising herself above
fulfilling her obligatory duties."
"It is the wife's disobedience of her husband concerning
those acts of obedience that are obligatory upon her from the rights of
marriage."
"It is where the wife raises herself above her husband
and she is diffident towards him in the sense that she does not obey
him when he calls her to his bed or she leaves the house without his
permission and so forth. It is when she withholds from him his right to
her obedience."
From all the different definitions, we see that nushuz on the part of the wife revolves around any of four characteristics:
She does not beautify herself for her husband when he desires that from her.
She disobeys her husband with respect to coming to his bed and she refuses to respond to his calls.
She leaves the house without his permission or without any legal right to do so.
She does not perform her obligatory religious duties,
such as failure to perform some prayers, fasting Ramadan, covering her
'awra, or any other obligatory act of Islam.
Nushuz on the Part of the Husband
The jurists have defined nushuz when it is from the husband as follows:
"It is where the husband hates his wife and brings about harm to her."
"The husband transgresses against his wife and harms her
by boycotting her, hitting her in ways not called for by the law,
irritating her, abusing her, reviling her, such as cursing and
insulting her, etc."
"For the husband to transgress her by hitting her of harming her or having very bad behavior towards her."
"It is for him to harm her by beating her or making life
difficult for her or keeping her from getting her rights fulfilled such
as proper division between co-wives, support, etc."
So, nushuz when it is committed by the husband, revolves around the following point:
The husband wrongfully elevating and raising himself arrogantly above
his wife and above the obligations which Allah has place upon him with
regard to her.
He transgresses against her by beating her, harming her, reviling her, abusing her and not treating her properly.
He fails to fulfill his mandatory obligations toward her such as support, etc.
He becomes diffident toward her and unconcerned for her by boycotting her in talk or in the bed, refusing to speak to her, etc.
Types of Cases of Nushuz
There are three different cases of nushuz, as Allah has made clear in His Book.
The first case is where the nushuz is committed by the
wife. This case and its resolution have been mentioned in the Quran in
the verse discussed previously:
"...And (as for) those (women) from whom you anticipate
rebellion, admonish them, avoid them in the sleeping place and hit
them. If they obey you, do not desire and further way to (harm) them.
Surely, Allah is Knowing, Great." [Noble Quran 4:34]
The second case is nushuz on the part of the husband. This has also been mentioned in the Quran:
"And if a woman fears nushuz from her husband or that he
may turn away, there is no sin upon the two of them to make terms of
agreement between them and agreement is better. Stinginess has been
made present in all souls but if you extend good deeds and beware of
Allah, verily Allah is fully knowledgeable of all that you do." [Noble
Quran 4:128]
The third case is where nushuz (mainly in the sense of
'dislike' and 'turning away') is committed by both the husband and
wife. This is mentioned in the following verse:
"And if you fear a separation between the two of them,
appoint an arbitrator from his family and an arbitrator from her
family. If they desire reconciliation, Allah will bring them into
agreement. Verily Allah is Knowing, Knowledgeable." [Noble Quran 4:35]
The Remedy for Nushuz When it is From the Wife
When a wife is in a state of nushuz, the husband can address it with the following three steps:
Admonition and guidance.
Boycotting
Striking her
What follows is a detailed discussion of each of these three steps.
The First Step: Verbal Admonition and Guidance
The first thing a husband should do when his wife
commits nushuz or the steps that lead to it is to attempt to warn her
verbally, using Quran and Sunnah to remind her of her duties toward
Allah and toward her husband. Allah said:
"As to those women from whom you see ill-conduct, admonish them..." [Noble Quran 4:34]
Admonition is a cure that is gentle and mild. Its goal
is to replace estrangement and rebellion with love, compassion and
togetherness in obedience to Allah Most High. All of the scholars early
and late have agreed that this admonition is only as long as it is in
agreement with the Shari'a. Otherwise, the husband has no such right
according to the principle: "There is no obedience to the created if it
involves disobedience to the Creator." (sahih hadith). Here are some of
the scholars' definitions of this admonition (mau'idha):
"Advising and reminding one of the outcome of ones actions."
"Reminding humans in a way that softens their hearts by reminding them of the rewards or punishments."
"The husband makes her fear Allah Most High. He reminds
her of what Allah has obligated upon her concerning his rights and
obedience. She is to be told the results of her sin and disobedience
and how she then forfeits her rights of maintenance and clothing. And
she is to be told of how that permits him to strike her and boycott
her."
From the sunnah, it is narrated that the Prophet (peace be upon him) said:
"If you fear nushuz on their part, then advise them,
boycott them in their beds and strike them in a way which is not
injurious..." [Musnad Ahmad]
The Companions, the Followers and all who came after
them to this day agree that this admonition is legally sanctioned when
a wife commits nushuz. No one has ever rejected that and it is a point
of consensus.
The Second Step: Boycotting and Avoidance
Sometimes verbal admonition by have no effect on ending
her state of estrangement and disobedience. I fact, it may increase her
abstinence due to some emotion that has overtaken her, a defiant
reaction or perhaps she has been deceived by position, wealth or beauty
to consider herself better than her husband. The husband may be partly
to blame for this if he allowed his own emotions to interfere with
admonishing his wife in the best way. In any case, the next step in
trying to end her recalcitrance is boycotting her and avoiding her "in
the bed".
Linguistically, this "boycotting" (al-hajr) is defined
as "avoiding, cutting off and not having contact with the one who is
being boycotted." Allah recommends this using the additional phrase:
"in sleeping places" (fiy al-madhaji'). This could mean either avoiding
her entirely and sleeping somewhere else or it could mean sleeping in
the same bed but keeping away from her and not speaking, etc.
The Quran, the Sunnah, consensus of the scholars and
sound reason indicate it permissibility and it being one of the means
of disciplining the estranged wife when verbal admonition brings about
no positive result. Allah said:
"...And avoid them in sleeping places..." [Noble Quran 4:34]
Imam Ahmad records in his Musnad that the Prophet (peace
be upon him) separated from his wives for a month. (Although this was
NOT for reasons of nushuz, it nonetheless shows the permissibility of
the act.) The jurists have agreed that it is permissible if it leads to
the woman correcting her ways and returning to proper guidance. It is a
method which is effective with a woman who loves her husband.
The verse in Surah An-Nisa is ambiguous as to whether it
means to avoid the bed and the bedroom entirely and sleep somewhere
else or whether it means to avoid them IN the bed. That latter method
is preferable because it avoids making the existence of the problem
known to children and other family members and because there is a more
positive atmosphere for actual reconciliation.
The boycotting may include boycotting her in speech, but
that should not last more than three days according to the hadith in
Sahih Muslim: "It is not permissible for a Muslim to boycott his fellow
Muslim for more than three nights."
As for boycotting her in the bed, this can continue for
as long as he believes it may still lead to her stopping her acts of
nushuz but in no case exceeding four months. This is the strongest
opinion among the statements of the scholars. It is based on the time
limit which Allah placed on al-Ilaa' - where a man takes an oath to cut
of relations with his wife. In the jahiliya, there was no limit on
this, so a spiteful man could leave his wife "hanging", having no
relations with him but not divorced for as long as he wished. Allah
limited this to four months, saying:
"And for those who cuts off relations with his wife is a
waiting period of four months. Then, if he returns, surely Allah is
Hearing, Knowing." [Noble Quran 2:226]
The wife who does not mend her ways after four months of
boycotting is not and will not mend her ways. She is deserving of
divorce and there is not need to continue this "suspended" situation
any further. This is because her continual estrangement and
non-cooperation even though she knows full well that it will end in
divorce shows clearly that she has no willingness to respond to the
action which is taking place and return to a proper Islamic marriage.
At the very least, it can be said that she will not be able to live
with that husband in a pleasant and proper manner.
The Third Step: Striking Her
In some cases the solution to the problem may require
some harshness and toughness. This is because there are some people who
cannot be set straight when they go wrong by good behavior and soft
advice alone. Kindness and softness just make such people more arrogant
and ignorant. Some such people, if met with toughness, respond by
cooling down and ending their defiance. Generally speaking, it is not
recommended for a husband to ever strike his wife and it is narrated
that the Prophet (peace be upon him) said about those who do so that
"they are not the best of you".
However, in some cases resorting to harshness including
striking may be a beneficial cure which in fact returns the partners
back together in love and compassion. In these cases, it can be a
positive cure and a spiritual discipline. It is not meant for revenge
or punishment. Whoever does it in such a manner is committing a sin and
transgressing against his wife. Instead, it is meant to restore what
has become improper and bring the disruption to an end. Although it is
a bitter medicine, in many cases it may be less harmful to all involved
than the destruction of the foundation of the family.
The Remedy When Nushuz is By the Husband
Islam has provided remedies for cases when nushuz is
from the husband in ways consistent with both her feelings and
sensitivities as a woman and their respective roles, rights and
obligations as husband and wife. She can look for the reasons for his
behavior and admonish him with Islam in an attempt to make things right
between them. However, Islam has not given her the right to address
this problem by boycotting him or beating him as has been given to the
husband. This is because her nature is different from that of the man
and because she does not have the same kind of power and authority in
the marriage as he has.
She should use some or all of the following steps:
Try to discover the reason for his estrangement and/or bad behavior.
Admonish her husband and remind him of his
responsibility in front of Allah towards his wife such as good behavior
and kind treatment.
Try to please her husband in order to make things right.
This can be just by showing kindness and concern and can also include
compromising some of her own rights for the sake of harmony.
"And if a woman fears cruelty or desertion on her
husband's part there is no sin upon the two of them if they make terms
of agreement and agreement is better..." [Noble Quran 4:128]
If it becomes clear to her that the signs of nushuz are
confirmed and he is turning away from her out of dislike for her and
wishing to be away from her, then there is no sin upon either of them
if the "work out terms of peace". This means that she me give up some
of her due rights in order to stay in the marriage. For example, she
may give up some of her rights to support, housing or equality of
nights with other wives in order to remain under his protection and in
the marriage. Or, she may give up some or all of her dowry in exchange
for his divorcing her.
Ibn Abbas said: "Saudah feared that the Prophet (peace
be upon him) was going to divorce her so she said to him, "O Messenger
of Allah, do not divorce me but keep me and make my day for Aisha." The
Prophet (peace be upon him) did so and the verse was revealed
concerning that. Bukhari
'Umar said: "Whatever points they agree upon are permissible." Al-Baihaqiy
The General Remedy: Appointing of Arbitrators
"Arbitration" (At-tahkim) means to judge or decide a
matter. Al-hakam (mentioned in the verse) is the one who has the right
to make a ruling and decision for the two in dispute. The meaning of
appointing arbitrators in this case is:
"The two disputing spouses appoint two men from their
respective families to bring about accord between them and to settle
their dispute."
The Ruling Concerning Such Arbitration
The scholars have agreed that two arbitrators should be
appointed if dissension occurs between the two spouses and it is not
clear which of the two (if either) is committing nushuz or if both of
them are wherein the husband refuses to keep his wife in a proper
manner or to set her free in a good way and/or the wife refuses to
fulfill her rights that Allah has imposed upon her toward her husband.
The jurists also agree that one of the arbitrators
should be from the husband's family and the other from the wife's
family if possible. If that is not possible, other people may be
appointed depending on what is in the best interest of those concerned.
They also agree that when in agreement are to execute what they see as
the best opinion in bringing accord between the spouses. However, if
they disagree, then their opinions are not to be executed.
The Evidence
If the two spouses are not able to come to some kind of
agreement between themselves and separation seems to be looming, it is
permissible for those in authority, a ruler or judge to appoint two men
as arbitrators to see how they can bring about a reconciliation. This
step is proven by the Quran, the Sunnah, consensus and sound reason.
Allah said (verse cited earlier):
"And if you fear a separation between the two of them,
appoint an arbitrator from his family and an arbitrator from her
family. If they desire reconciliation, Allah will bring them into
agreement. Verily Allah is Knowing, Knowledgeable." [Noble Quran 4:35]
From the Sunnah, there is a report recorded by
Ash-Shafi'i in his book Al-Umm from Ubaidah As-Salmani who said: "A man
and woman came to Ali ibn Abi Talib and each of them had a group of
people with them. Ali ordered them to appoint a male arbitrator from
hiss family and one from her family. Then he said to the arbitrators:
'Do you know what your responsibilities are? If you find that you can
bring them back together, then do so. If you find that they should be
separated, then do so.' The woman said, 'I am pleased with the Book of
Allah concerning what is upon me and what is for me.' The man said, 'As
for separation, I will not accept that.' Ali told him, 'You are lying,
by Allah, until you accept the same things she has accepted.'"
Qualifications of the Arbitrators
The two arbitrators must meet the following conditions:
Muslim
Adult
Mentally competent
Male
Free
Mature following right guidance
People of insight and understanding
Just and righteous
They must have knowledge concerning matters of reuniting
and separating spouses in the Shari'a and what they have been
commissioned for.
Trustworthy
Their intention must be solely to please Allah
Pious having fear of Allah
It is recommended that they be from the relatives of the spouses
The Role of the Arbitrators
The two arbitrators have a very important role to play,
a noble purpose and a great responsibility. They will frequently become
the target of enmity from one or both of the spouses and they should be
willing to face that for Allah's sake. To attempt to bring about
reconciliation and harmony where there is misunderstanding, oppression
and/or strife is one of the best good deeds. Allah said:
"There is no good in most of their secret talks except
for one who orders charity, good deeds or reconciliation between
people. And whoever dos that seeking Allah's pleasure we shall give him
a great reward." [Noble Quran 4:114]
It is a must upon the two arbitrators that they spare no
effort in trying to bring about reconciliation and harmony between the
spouses. Failing that, they also have the authority to separate the
spouses according to the strongest opinion among the scholars. In a
case where there seems to be no hope of bringing the two back together
in a harmonious marriage, then the only solution may be to free the
spouses from one another by separation. Otherwise, the situation amy
just get worse and bring about even greater harm. Allah ordered the
husband to:
"Divorce is two times then retaining on reasonable terms or releasing with kindness..." [Noble Quran 2:229]
"And if they separate, Allah will fulfill their needs from His generosity and Allah is Generous, Wise..." [Noble Quran 4:130]
The Different Types of Separation
Terminating the marriage contract is done through one of
three ways: 1) dissolution of the contract by the ruler or judge, 2)
khula' and 3) divorce. If reconciliation cannot be achieved, then the
arbitrators may separate the two through khula' where the woman returns
part or all of her dowry if the woman cannot abide by the marriage and
the man is unwilling to divorce her unilaterally. If they determine
that the problem is from both sides and the differences are
irreconcilable they can institute a divorce - according to many of the
scholars - even if the couple or one of them did not request the
divorce.
Do the Arbitrators Have the Authority to Separate?
Discussion of the Issue
There is a difference of opinion among the scholars
concerning whether or not the arbitrators have the right to separate
the couple and bring and end to the marriage. This difference revolves
around the following points:
One opinion states that the arbitrators are simply
acting as agents for the spouses and they cannot go beyond what they
have been commissioned to do without first getting such permission from
those who assigned them. Their role is only to attempt to reconcile,
not separate.
Another opinion is that the arbitrators have been
appointed by the judge or ruler to solve the problem between the
spouses. They are, therefore, like judge. The judge may decide
according to whatever is in the best interest and if separation is the
best solution, then so be it.
The strongest of these opinions is that the arbitrators
are like judges and DO have the authority to separate between the
spouses with or without their consent. Ibn Al-Qayyim said about this:
"It is the most amazing thing to say that they are
simply agents and not arbitrators or judges. Allah has given them the
position of arbitrators or judges. This role has been given to other
than the spouses. If they were both simply agents or trustees (wakil)
working on behalf of the spouses, the verse would read, "And appoint a
trustee from his family and a trustee form her family." Furthermore, if
they were to be simply agents or trustees, they would not need to be
from the respective families. In addition, the judgement has been put
in their hands. Allah said, "If they both wish for peace, Allah will
cause a reconciliation" however, agents or trustees have no independent
will of their own, they only fulfill what their superior has desired.
Moreover, the agent (wakil) is never called a judge or arbitrator
(hakam) in the language of the Quran, the language of the law or in
common speech. Finally, the arbitrator has the authority to decide a
matter and that decision must be implemented. However, neither is true
for a wakil..."
Some of the scholars state that if the ruler or his
deputy appoints two arbitrators then they have no role except to study
which of the two parties is in the wrong, to advise them and to attempt
to bring about reconciliation. If no reconciliation is reached, then
the matter is taken up to the ruler or his deputy. This leaves this
issue open to three possible opinions:
The arbitrators are simply agents or trustees working on
behalf of the spouses. This is because the right of divorce is in the
hands of the husband only and a settlement other than divorce can only
come about when the wife accepts it.
The arbitrators are acting in the role of the ruler or
his deputy. The ruler may bring about divorce if the harms of the
marriage are made evident to him.
They are witnesses only.
The strongest opinion is that the arbitrators are like
judges and not simply agents or trustees. They have the authority to
separate the couple in the same way that they have the authority to
make them come back together.
موضوع: Nushuz (Marital Discord) 
الإثنين أبريل 19, 2010 1:01 am
