Praise
be to Allah
Firstly:
If the husband
does not spend on his wife, or he beats her, it is permissible for her to
ask for divorce (talaaq). If he refuses to spend on her, the qaadi (Muslim
judge) should force him to divorce her, and if he does not do that, then the
judge may issue the divorce (talaaq) himself, so as to ward off harm from
the wife.
It says in
al-Mawsoo‘ah al-Fiqhiyyah (41/66):
The scholars
differed, in the event that the husband is faced with financial difficulties
and his wife does not want to stay with him, as to whether she has the right
to ask for separation from him. There are two scholarly views:
The first view
is that she does not have the right to ask for separation, and the husband
does not have the right to prevent her from earning a living so that she can
spend on herself. This is the view of Ibn Shubrumah, Hammaad ibn Abi
Sulaymaan, ‘Ata’, az-Zuhri, al-Hasan, Ibn Abi Layla, and others. This is the
view of the Hanafis.
The second view
is that the woman has the right to ask for separation from her husband,
because of his inability to spend on her, and if he refuses then the judge
may separate them.
This is the view
of the Maalikis; it is regarded as more likely to be correct by the
Shaafa‘is, and is regarded as the correct view by the Hanbalis.
This separation
is regarded as an annulment of the marriage by the Shaafa‘is and Hanbalis,
and as a revocable divorce (talaaq) by the Maalikis. This was narrated from
‘Umar, Abu Hurayrah and Ibn ‘Umar (may Allah be pleased with them), and was
the view of Sa‘eed ibn al-Musayyab, al-Hasan, Ishaaq, Abu Thawr, and others.
End quote.
If this is the
case when the husband is not well off, then it is more appropriate if the
husband is well off but refuses to spend on his wife.
If there is a
Muslim judge, then he may order the husband to spend on his wife and treat
her kindly, then if he refuses to spend on her or he is not well off, and
the wife wants a separation, the judge may order a separation.
Secondly:
If there is no
Muslim judge, then a Muslim community leader takes his place, such as the
imam of the main mosque, or the director of the Islamic centre. So you
should take your case to them, and they can summon your husband and listen
to what he has to say, then if he continues to behave in this manner, they
may separate you.
If the imam of
the mosque refuses to listen to you, then look for another Muslim leader in
your country.
You do not have
the right to annul the marriage contract by yourself, under any
circumstances.
Al-‘Adawi said
in his commentary on Kifaayah at-Taalib ar-Rabbaani (2/133):
Muslim community
leaders may act in the stead of the judge in that case and in all other
cases where it is not possible to find a judge, or if the judge is not of
good character.
But in the case
of a husband who is not proven to be poor, and he admits that he is well
off, but he refuses to spend on his wife or to divorce her, then he should
be made to issue a divorce, according to one opinion, and according to
another opinion, he should be imprisoned until he agrees to spend on her.
If he is
imprisoned and does not do that, then he should be made to issue a divorce.
End quote.
With regard to
the wording of the divorce, it is sufficient to say words that are
indicative of that, such as saying, “We rule that So-and-so be divorced from
her husband, So-and-so, because of his refusal to spend on her,” and the
like.
And Allah knows
best.