In Islamic law the right of terminating the marriage through a Talaq has been given to the husband. There is great wisdom in this teaching of Islam. Not withstanding the above, Islam has also taken into consideration the fact that a husband may sometimes abuse the power given to him and cause his wife undue distress by refusing to release her from marriage, despite the objectives of the marriage not being achieved. In these circumstances Islam has given the wife an opportunity to seek relief from such oppression. However, it is important to bear in mind the severe warnings directed to a wife who unduly seeks a divorce. Rasulullah r has mentioned that the fragrance of Jannah is Haram for a woman who seeks a divorce without a valid reason (Musnad Ahmad).
Importantly a woman must exhaust all possible avenues of reconciliation prior to considering Faskh. Faskh is resorted to as an absolute last resort when all other mechanisms have failed.
Valid Grounds for Faskh
The following constitute some of the common valid grounds for Faskh:
1. Absent husband: absconding or missing
2. Failure to provide maintenance: inability or refusal
3. Serious health condition or Disease: insanity, leprosy, impotency, HIV or any such disease that could endanger the wife
4. Severe abuse: Physical or other
5. Gross neglect and/or undesirable conduct: spouses fear inability to fulfill the limits prescribed by Allah
6. Lengthy imprisonment
N.B: The above mentioned grounds are not exhaustive and are governed by conditions and subject to further details as expounded in the Shariah.
The Process of Annulment
A woman who wishes to apply to the Muslim Marriages Tribunal for dissolution of her marriage must comply with the following:
1. She should have made a concerted effort to reconcile her marriage by adopting the necessary measures such as marital counseling, external intervention etc.
2. If every effort to reconcile the marriage has failed and she believes that no possibility of reconciliation remains, she may then consult the Muslim Marriages Tribunal.
3. The Tribunal will require her to fill in the Pre Application Assessment Form which would elicit important information and documentation, in order to ascertain the merits of her application.
4. Once the above is established, the applicant will formally apply for dissolution of marriage by completing the Application for Dissolution Form.
5. The Tribunal would thereafter undertake to establish contact with the husband for the purpose of conducting a hearing wherein both parties would be accorded a fair chance to present their case. The parties would be given adequate notification before the date of the hearing is set. In the event of the husband not appearing, the Tribunal reserves the right to issue a default judgment.
6. Both parties must be present at all the hearings of the Tribunal in order to state their case, present their evidence and undergo cross examination. These hearings may also be recorded.
7. After following due process, which could entail a substantial amount of time, the Tribunal will issue a judgment with regards to the annulment.
8. If the Tribunal annuls the marriage, the wife will be required to observe the Iddah.
This is a general overview of Faskh and its procedure. Related queries should be referred to a competent Alim or to the Tribunal.