Thursday | 18 April 2024 | 9 Shawaal 1445

Fatwa Answer

Question ID: 846 Category: Dealings and Transactions

As-salamu aliekum,

I have a question regarding a fasakh (annulment) issue. 
A woman had a difficulty in her marriage. There was a total breakdown in the marriage and the husband was harming her physically so she requested divorce from him but the husband refused to divorce her; and when the family intervened he admitted in front of them that he hit her. 
So she forwarded her claim to an Imam at the local mosque requesting fasakh (annulment). The Imam decided to meet with the husband on few occasions to come up with a solution but the husband did not cooperate. So the Imam requested from the wife 2 adult witnesses to proceed with fasakh (annulment) and after few days the Imam granted her fasakh
The husband until this day claims she's still married to him and she's not divorced. 
The Imam has ijazah from a leading authority. He serves as an advisory member on the Fatwa standing committee of the Assembly of Muslim Jurists in North America, and also serves on the board of directors of the Islamic Shura Council of South Michigan. 
Due to the fact that some family members disagree with the Imam on certain topics in Islam, the family members started questioning the validity of the annulment, which led them to think the Imam didn't follow proper Islamic annulment procedure. So now, some family members think the annulment is valid and some think it's not valid.
My question:
Is the annulment valid or not?
And regarding the witnesses, they are the family members that were present when the husband admitted that he hit her. Do these witnesses have to be well versed in Islam?

Wa aliekum as-salam,

الجواب وبالله التوفيق

As per the situation described in your question, the places where Shar‘ai courts are not present, jamatul-muslīmīn is considered as its replacement however in that jamah the following conditions have to be present:

1- The minimum number of members in that jamah should be 3, if there are less than 3 people and they make a decision it will not be considered valid as per the teachings of the Islamic Shari‘ah.

2- All members of this jamah should be adil i.e. a person who refrains from all gunah-e-kabīrah,doesnot repeat the gunah-e-sagīrahand in case of committing any sins immediately repents. Therefore a person, who accepts bribes, involves in interest based transactions, shaves beard, lies and does not pray should not be part of this jamah.

3- It is mandatory that ulamah are involved in the decision making process, the collective decision of just general public members does not equate with the decision of a qadhi.

4- The decision shall be unanimous but not based on majority. A decision which is made only based on the majority of members is not considered valid.

(Fatawah Darululoom ZakriyahPage 285, Vol 4)

Based on the nonfulfillment of the conditions mentioned above, the Fasqh performed by the imam of your mosque is not considered valid and you are still in your husband’s Nikah.

واللہ اعلم  بالصواب