When Can a Judge Annul a Marriage Against Both Spouses’ Will?
Shafi'i Fiqh
Answered by Shaykh Irshaad Sedick
Question
When can a Muslim ruler forcefully separate a husband and wife, even if neither of them wants it?
Answer
In the Name of Allah, the Most Merciful and Compassionate.
A Muslim judge or ruler may annul a marriage against the will of either or both spouses in cases with valid grounds, such as harm or invalidity in the marriage. This process is known as faskh (judicial annulment).
Allah (Most High) says:
“If you fear a split between them, appoint a mediator from his family and another from hers. If they desire reconciliation, Allah will cause it between them.” [Quran, 4:35]
Grounds for Faskh
- Apostasy (one spouse leaves Islam).
- Inability to fulfill marital obligations (e.g., impotence).
- Severe abuse or neglect.
- Desertion or abandonment.
- Fraud or deception (e.g., hiding illnesses). [Shirbini, Mughni al-Muhtaj]
Role of the Qadi
A qadi investigates the case, attempts reconciliation, and issues an annulment if the marriage is deemed harmful or invalid.
Implications
- The marriage is dissolved.
- The spouse may be entitled to financial rights.
- Both are free to remarry.
Judicial annulment protects the rights of spouses when harm exists, even if both parties are unwilling to separate.
And Allah knows best.
[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Faraz Rabbani
Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar Shaykh Taha Karaan (Allah have mercy on him), where he taught.
Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Shaykh Muhammad Awama, Shaykh Muhammad Hasan Hitu, and Mawlana Abdul Hafeez Makki, among others.
He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has been the Director of the Discover Islam Centre, and for six years, he has been the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.
Shaykh Irshaad has fifteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic podcast, education, and media platform called ‘Isnad Academy’ and has completed his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy Prophetic living and fitness.
