Defining Ill-Conduct (Nushuz) in Marriage.

Hanafi Fiqh

Answered by Ustadh Tabraze Azam

Question: Assalam alaykum

How can we equate Nushuz (ill-conduct) on the part of the wife with that of the husband as mentioned in 4:34 and 4:128. Most scholars have understood Nushuz to mean marital discord. So here’s my grievance, why would the wife be disciplined by the husband when she commits Nushuz (4:34) but not so in the case of the latter since she is told to make an agreement (4:128). There are critics who made the claim that this ‘proves’ that Islam is ‘misogynistic’ as they understood from the two verses that the man’s word is absolute and the woman has no right to oppose. They say that when the wife commits Nushuz, she is disciplined with an iron fist but when the husband commits Nushuz she is forced to put up with his behaviour and make an agreement with him.

After reading Ibn Khatir’s tafsir on 4:128, when the wife fears that her husband is steering away from her or deserting her, she is allowed to forfeit all or part of her rights, such as provisions, clothing, dwelling, and so forth, and the husband is allowed to accept such concessions from her. How is this just?

The critics then rant that Islam favors men more than women and say that the husband can force his rights on her but the wife must forfeit her rights to satisfy her husband’s ego. I find this troubling and distressing myself. Also, I know that past and present scholars and jurists have agreed that when the wife commits Nushuz by not responding to his call for intimacy, the husband would then forfeit his responsibility of providing nafkah. How true is this? When we read 4:34 it only commands the husband to resort to three options only. Nowhere does the verse say that the husband should not provide for her and I also didn’t find such verdict in the hadith books themselves (correct me if I’m wrong). If this is true can it be applied to the husband as well? Can the wife refuse his call for intimacy if he fails to be kind, loving and responsible towards her and provides nafaqa(spendings) for her?

Answer: Wa alaikum assalam wa rahmatullah,

There is some detail to this, but the upshot is that you have to read Sura al-Nisa’ in its entirety, and thus verses in full context, in order to fully appreciate the underlying meanings and spirit found therein.

The two verses in question are as follows:

(1) “Men are the caretakers of women, as men have been provisioned by Allah over women and tasked with supporting them financially. And righteous women are devoutly obedient and, when alone, protective of what Allah has entrusted them with. And if you sense ill-conduct from your women, advise them first, if they persist, do not share their beds, but if they still persist, then discipline them gently. But if they change their ways, do not be unjust to them. Surely Allah is Most High, All-Great.” (Sura al-Nisa’, 4:34)
(2): “If a woman fears indifference or neglect from her husband, there is no blame on either of them if they seek fair settlement, which is best. Humans are ever inclined to selfishness. But if you are gracious and mindful of Allah, surely Allah is All-Aware of what you do.” (Sura al-Nisa’, 4:128)

Differing Gender Roles

Men and women have different roles. In the context of the family unit, the husband has been made the caretaker, as described in the verse. What does this responsibility entail? It requires that men act as the protectors and guardians of women; that they spend upon them financially, emotionally and otherwise; and that they secure for them their best interests in the journey of life.

The husband has a duty to maintain and preserve the sacred nature of his family unit in order that one and all can fulfil their divine calling to worship Allah Most High in serenity. There is a special reason or wisdom (hikma) for the breakdown of gender roles societally. We can often perceive what this is, yet at other times, it may not be so evident.

Defining Ill-conduct (nushuz)

Nushuz is not marital discord, but rather, ill-conduct or non-fulfilment of rights. Both verses are generally describing a set of affairs wherein one spouse is expressing their unhappiness, at some level, with the other, yet the latter would like to remain in the relationship.

When ill-conduct arises from the wife, then the husband, in order to put the situation right, has a few options, the details of which can be found or sought elsewhere. And in the opposite case, the wife also has some options given to her in order to improve the situation.

However, husband and wife are not equal in the right to pronounce a divorce, if it wasn’t contractually stipulated, but she can exit the marriage via a khul‘a agreement if she would like to. She is never at any rate expected to put up with ill-treatment or genuine harm.

Guardianship (wilaya) in the World

Allah Most High says, “Allah is the Guardian of those who believe.” (Sura Al-‘Imran, 3:68)

The sunna of Allah in the cosmos is to have people who lead and make the final call. This is normally the only way things can get done. Obviously, discussing, sharing ideas and seeking counsel is a prophetic sunna, but going forward, somebody has to make a decision, for better or for worse.

The Prophet (Allah bless him and give him peace) instructed that a man is in charge of his “flock,” and a lady, similarly, of hers. This pyramid of guardianship or leadership extends to all aspects of life, for instance, there is one community or district leader, as it were, one leader of any given country, one prophet [of this umma], and, metaphorically speaking, above all, one Lord.

The presence of ill-conduct signifies that something in the relationship is off. It is then the man’s duty, as the caretaker and guardian, to ensure that things are amicably resolved. Accordingly, the verse explains the three main matters which are at his disposal in order to rectify the problem. The expectation is that there be a variety of permitted avenues for rectification, because it’s often going to be different strokes for different folks.

As for abuse, such as the unjust refusal to divorce, it is not within his remit. A man cannot use his responsibility to perpetuate harm (darar) or abuse of any form whatsoever. Men’s guardianship (wilaya) over women can never be used as a smokescreen for the unlawful. As such, if he is not fulfilling his duty, she can take the matter to court to forcibly remove herself from the marriage. This is not a matter of worldly control, but moral, religious duty.

The Response of a Lady in Cases of Ill-conduct (nushuz)

Just to reiterate, we are discussing cases in which they would like to remedy the situation and remain together. If they would like to separate, both have the right to do so. Otherwise, she has many financial rights over him. Hence, if she’s going to get divorced, she may opt to make a settlement (sulh) of sorts to remain in a marriage which she’d rather be in, such as giving up part of her dowry (mahr). In doing so, the husband who has any semblance of dignity, self-respect and excellence, would also strive to improve his relationship with her because it is all, in the end, for Allah.

Incidentally, the reason for revelation of this verse was actually an incident which happened between our Mother Sawda (may Allah be well-pleased with her) and the Prophet (Allah bless him and give him peace) in which she forfeited her night with him for Lady ‘A’isha. (Tirmidhi)

Finally, and to be absolutely clear, the Qur’an and Islam itself are free from those who abuse their wives. There is no permission or excuse to engage in any such behaviour in the Qur’an by the agreement of the scholars who’s word counts for anything. Real men, namely, those that follow the prophetic way in its details, never need lay a finger on their spouses. Marriages work on the basis of gracious character and deep love, as the Qur’an informs us, and if your life is lacking in either, you need to take a step back to renew your direction.

[Tantawi, al-Tasir al-Wasit (3.333); Ibn ‘Ashur, al-Tahrir wa al-Tanwir (4.266); Sayis, Tafsir Ayat al-Ahkam (1.148); Bouti, al-Mar’a (114)]

And Allah Most High knows best.

[Ustadh] Tabraze Azam

Checked and Approved by Shaykh Faraz Rabbani

Ustadh Tabraze Azam holds a BSc in Computer Science from the University of Leicester, where he also served as the President of the Islamic Society. He memorised the entire Qur’an in his hometown of Ipswich at the tender age of sixteen, and has since studied the Islamic Sciences in traditional settings in the UK, Jordan and Turkey. He is currently pursuing advanced studies in Jordan, where he is presently based with his family.