Who Annuls a Marriage When There Are No Scholars?

Answered by Shaykh Irshaad Sedick

Question

I seek guidance on the ruling regarding marriage annulment (Faskh al-Nikaḥ) in the Shafi‘i School. Suppose a marriage has not been officially registered with civil authorities and no scholars are present in our area.

What recourse is available if the husband is unwilling to pronounce a divorce and refuses to agree to a khula‘?

Answer

In the Name of Allah, the Most Merciful and Compassionate. May Allah alleviate our difficulties and guide us to what pleases Him. Amin.

In the scenario you described, the couple could appoint a judge or present their case to scholars online in an ad hoc court set up, and Allah knows best.

Who May Annul a Marriage

The husband or wife can annul the marriage contract with justified grounds. Marriage annulment may only be conducted in the presence of an Islamic magistrate (qadi) or a third party chosen to judge between them (provided that he is a suitably qualified scholar of Islam) when there is no Islamic judge. [Keller, Reliance of the Traveler]

Process in Practice

In the absence of civil registration and local scholars to address the annulment of marriage (Faskh al-Nikaḥ) within the Shafi‘i School, the concerned parties could consider a few options. Firstly, the couple can seek the appointment of a local authority or leader who can act as an Islamic judge (qadi) if such a person is available and recognized by the community for their knowledge and fairness.

In cases where such a local authority is unavailable, another option would be to reach out to recognized Islamic scholars online. Many Islamic jurisprudence councils and fatwa committees now operate remotely and offer rulings on personal matters via online platforms. These scholars can establish an ad hoc court to consider the circumstances and render a judgment in accordance with Islamic principles.

It is essential to provide these scholars with all relevant details so they can give a just and fair ruling. The scholars will typically require proof of the marriage and details on why an annulment is sought, especially when the husband is unwilling to grant a divorce or agree to a khula‘.

Practice Caution

The annulment of a marriage is a serious matter, and it is paramount that the process is handled with utmost care and adherence to Islamic law. Whoever acts as a judge should have the requisite knowledge and piety and be well-versed in the intricacies of the Shafi‘i School’s jurisprudence. As always, in seeking such religious rulings, it is crucial to pray for guidance (istikhara) and seek Allah’s help in resolving the matter in the best way possible.

I pray this is of benefit and that Allah guides us all.
[Shaykh] Irshaad Sedick

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.