PURPOSE:
To understand the concept of Faskh and to follow uniform guidelines, for understanding Faskh initiative of any Imam(s) and to avoid conflicts.
PREAMBLE:
In the absence of a QADI or SHARIAH COURT, we are faced with the question of annulment of marriage in Canada. This question was dicusssed for the first time ever at a Conference of Imams in Washington D.C. in 1991. No attempt has been made to this day to develop some guidlines on this subject by any Organization in North America. Some Imams have done Faskh on an individual basis or in consultation with Imams and Muftis at home and abroad. This may be the first such effort at formulating guidelines for
Faskh.
METHODOLOGY:
Two workshops were held in Toronto in 1995. Several Imams participated. Minutes of the first workshop was circulated for review and comments. Discussions were also held with Mufti Mujahidul Islam (AMEER-E-SHARIAH - INDIA), who also reviewed the minutes. In his presentation on Fiqh for Minorities at the ISNA convention, he also elaborated on this topic and emphasized the need for a QADI or guidelines on
Faskh.
THE second workshop reviewed the Minutes of the first one and discussed most of the items vis a vis new information. A draft guidelines were produced as follows:
1) EMERGENCY
FASKH:
Marriage is automatically cancelled if:
a) In the case of Riddah (apostasy)
b) If one partner turns Mushrik, (opinions vary if Kitabiya)
c) If the woman accepts Islam; (See Apendix A)
d) If it is discovered and proven to be true, that they are blood relatives forbidden to marry.
2) FASKH DONE BY
QADI:
a) Non support ( Malik, Shafei, Hanbal);
i) Upon woman's request,
ii) Husband has no visible means of support;
b) Strong evidence of Harm and Abuse becomes unbearable -- (Malik and Hanbal),
(See Appendix B)
c) Absence of Husband -- Malik & Hanbal
(See Appendix C);
i) Desertion;
ii) Dissappearance;
iii) Deportation;
iv) Sponsorship denial.
d) Long term imprisonment --
Malik, Hanbal.
3) LEGAL CANADIAN DIVORCE:
Does it constitute Faskh? (See Appendix
D)
4) IMPOTENCE OR INSANITY:
Aids, Herpes or other illneses
(See Appendix E).
5) CASE OF ISLAMIC MARRIAGE ONLY:
Marriages without a License.(See Appendix
F)
Caution: Faskh should be done in the presence of at least two Imams.
APPENDICES
APPENDIX A:
If a Woman accepts Islam, her maariage is automatically cancelled. However, in this Country, it is not easy to move out right away, because of number of reasons.
e.g. Children's custody, Splitting Assets and financial holdings, Splitting Liablitiies, Pending litigation etc.
Depending on the situation, she is to be advised as follows:
1) Cease all conjugal relationship immediately;
2) Invite Husband to accept Islam ( Use discretion to allow time if necessary);
3) Try to resolve all matters amicably and quickly before moving out.
4) Advise on splitting assets and liablities vis a vis legal requirements and implications;
APPENDIX B:
HARM AND ABUSE:
Verify the evidence of Harm and Abuse. Very often such complaint is used as a way out of marriage. Doctors or Police report may be helpful but not necessary.
APPENDIX C:
ABSENCE OF HUSBAND:
DESERTION:
Left home but his wherabout is known;
Refuse to return home;
Refuse to pay maintenance.
DISAPPEARANCE:
Whereabout not known;
Efforts to locate failed;
Entry to Canada is barred by Immigration.
DEPORTATION:
Deported by Immgiration under Canadian laws. When this happens Wife may refuse to join the Husband for number of reasons, such as:
1) Would not want to be with a Criminal or some one declared as a Security threat;
2) Fear of cultural assimilation in a foreign country.
3) Her or Children's safety is threatened.
SPONSORSHIP DENIAL:
Immigration may be denied to a prospective Husband;
Marriage may have taken place by Proxy;
Wife may not want to go to a foreign country.
For Sponshorship purpose, some Scholars have suggested that if a marriage has to take place then it should be a Conditional marriage i.e. contingent upon sponshorship acceptance.
LONG TERM IMPRISONMENT:
Although inmates have rights to conjugal relations, the wife may not want to continue the relationship with a convict. Careful assessment is necessary before doing
Faskh.
WAITING PERIOD: What should be the waiting period?
IMAMS:
MALIK :-- Two opninons: 1yr & 4Yrs.
HANMBAL: 6 Months to a Year.
ABU HANIFA: 99 yrs., but the Fatwa is on Imam Malik's 4 yrs.
Hanbali position may be applied in exceptional cases such as:
If the Woman is young and alone and any of the following factors could be a threat:
1) Safety;
2) Health (Physical & Psychological);
3) Temptation;
4) Mobility (To do necessary chores).
APPENDIX D:
If the divorce is initiated by the husband and he signs divorce papers, then it becomes Talaq. No Faskh is needed. However, if the divorce is initiated by wife, then she can request the presiding Judge to make the husband pronounce Talaq. However this seen as a coercion and is not valid. Refusal to give Talaq may necessitate
Faskh.
APPENDIX E:
Faskh can be done after verifying Impotence or Insanity. Welfare of the Husband should also be considered, i.e. he is not left as destitute.
Contagious deceases such as Herpes, Aids etc can be life threatening and a Faskh may be sought on medical grounds. Verfiy the medical reports before doing
Faskh.
APPENDIX F:
It is illegal to perform marriage in Ontario without a valid marriage license or Bann. Case of law suits have surfaced in Toronto for marriages performed without license. It is not recognized by the Province and are not entiltled to any marital rights.
In the event of a marriage without a License or Bann, the above guidelines apply for Faskh, however exercise discretion for issuing a Faskh certificate
