𝐂𝐨𝐮𝐥𝐝 𝐲𝐨𝐮 𝐩𝐥𝐞𝐚𝐬𝐞 𝐠𝐢𝐯𝐞 𝐢𝐧𝐟𝐨𝐫𝐦𝐚𝐭𝐢𝐨𝐧 𝐚𝐛𝐨𝐮𝐭 𝐭𝐡𝐞 𝐈𝐬𝐥𝐚𝐦𝐢𝐜 𝐭𝐞𝐫𝐦 “𝐍𝐮𝐬𝐡𝐮𝐳” (𝐃𝐢𝐬𝐜𝐨𝐫𝐝 𝐁𝐞𝐭𝐰𝐞𝐞𝐧 𝐭𝐡𝐞 𝐖𝐢𝐟𝐞 𝐚𝐧𝐝 𝐓𝐡𝐞 𝐇𝐮𝐬𝐛𝐚𝐧𝐝)?
Mohamad Mostafa Nassar
The Islamic term ‘nushuz’ refers to causing discord, indulging in lewdness, acting in a disobedient and reckless manner toward the husband, and a woman’s hatred of and rebellion against her husband. It is an Arabic derivative; the word ‘nashiza’ is derived from it and means disobedient woman.
In marriage, spouses should be in harmony. In Quranic verses and in hadiths (sayings of the Prophet), mutual rights and duties are determined. Allah says: “…women have rights similar to those against them (that men have), but men (in respect of their heavier duty and responsibility) have a degree above them (which they must not abuse)” (The Qur’an, Al-Baqara, 2:228).
In that verse accord between spouses is encouraged:
“Consort with them in a good manner, for if you are not pleased with them, it may well be that you dislike something, but God has set in it much good.” (The Qur’an, An-Nisa, 4:19)
As long as the woman takes the ‘mahr’ (money paid to the woman by the husband) which was agreed on in advance, and as long as the husband provides her livelihood, she has to obey his lawful commands. However, that obedience does not mean that the woman will obey every kind of command of her husband.
If commands which are against morals and good manners or which violate the rights given to her by Islam are in question, then her obligation to obey them is lifted.
Prophet Muhammad, peace, and blessings upon him, said:
“Where there is disobedience to Allah, there is no obedience to a servant (human being).” (Bukhari, Ahkam, 4; Muslim, Imara, 39). For the woman to consent to sexual desires of her husband except when she is in the menstruation period is also a necessity of that obedience.
(Al-Kasani, Badayiu’s-Sanayi, II, 334; al-Jassas, Ahkamul-Qur’an, Muhammed as-Sadiq, Darul-Mushaf, Cairo, II, 68 ff.; Ibn Rushd, Bidayatul-Mujtahid Egypt, II, 46 ff.; al-Fatawal-Hindiyya, Egypt 1310/1892, I, 556 ff).
If the woman shows disobedience to her husband, the appropriate way of conduct is described in the Qur’an: “As for those women from whose determined disobedience and breach of their marital obligations you have reason to fear, admonish them (to do what is right); then, (if that proves to be of no avail), remain apart from them in beds; then (if that too proves to be of no avail), beat them lightly (without beating them in their faces).” (The Qur’an, An-Nisa, 4:34).
This verse gives the husband the right to better his wife’s way of conduct. The husband applies the following steps, if the wife does not obey her husband’s lawful wishes and disobeys him:
1. Firstly, he warns, gives advice, and tries to persuade her. If no result is obtained this way,
2. He leaves the woman alone in her bed, or in her room. If it does not prove useful, either
3. The husband can beat his wife lightly, as a kind of discipline punishment. However, the husband can only beat her without leaving any scar on her body.
It is not peculiar to Islam that the husband has the right to amend his wife’s ways. The classical church law accepts that if there is a rightful reason, the husband can beat his wife lightly. In the 12th and 13th centuries in France, the husband could beat his wife on condition that he did not wound her.
In England, before the legislation dated 18th August 1882, the husband had the right to amend his wife’s ways by beating her lightly. The man must behave well toward his wife in words and actions and so must the woman.
The Prophet said:
“The best of you is the one who is the best toward his family. And I am the best toward my family among you.” (Ibn Majah, Nikah, 50; Darimi; Nikah, 55). It is mustahab (good act which is liked in religion) for the couples to behave toward each other in a good way (al-Kasani, ibid., II, 334).
It is makrooh (religiously abhorred) for the man to apply coitus interruptus during sexual intercourse in order to prevent her wife from having children without the consent of his wife. This is because the woman has rights on the possible child.
Here that coitus interruptus is makrooh=disliked is according to Abu Hanifa, due to preventing the conception; according to Abu Yusuf and Imam Muhammad because it causes lack of satisfaction (al-Kasani, II, 334, 335).
To give the woman what is her right without delay is included in the scope of behaving well toward her because The Prophet said: “It is a wrongdoing (zulm-cruelty) for the wealthy to postpone his debt.”
(Bukhari, Hawala, I,II, Istikraz, 12; Muslim, Musakat, 33; Abu Dawud, Buyu, 10; Tirmidhi, Buyu, 68; Nasai, Buyu’,100,101; Ibn Maja, Sadaqat, 8).
Again, it is necessary not to bring two wives together in the same lodging without their consent. It may cause enmity and rivalry among them. Similarly, it is a disrespect and ill behavior to have a sexual intercourse with a wife in the presence of another wife.
Spouses have the right to benefit from their sexual aspects. They have the right to want intercourse from each other. According to the Hanafi and the Shafii Schools of Islamic Jurisprudence, it is legally sufficient for the husband to engage in intercourse with his wife for once during their marriage.
The woman has the right to get their marriage cancelled if it could not be realized because of the man’s impotency. More intercourse than one, on the other hand, is seen as vital for the continuance of the marriage.
According to the Shafii School, it is wajib (required) to engage in one intercourse because it is the right of the husband. After that, just like leaving the rented house on its own without living there, it is also permissible to leave the woman on her own because what calls for the intercourse is lust and love. And it cannot be made wajib (required).
However, it is mustahab (recommend) not to leave the woman on her own in the matter of sexual relation: The Prophet said to Abdullah b. Amr b. As (may Allah be pleased with him): “Do you fast during daytime?” He answered, “Yes”.
The Prophet continued: “Do you spend the nights worshipping?” He replied, “Yes” again. And The Prophet said: “As for me, I fast, and sometimes I do not fast. I perform prayers, and I sleep as well. I also engage in sexual relation with women.
Whoever turns away from my Sunnah (practice) is not from me.” (Bukhari, Nikah,I; Muslim, Nikah, V; Nasai, Nikah, IV; Darimi, Nikah, III; Ahmad b. Hanbal, II, 158). This is because if the woman is left on her own in that matter, it is feared that corruption and disorder may prevail.
(az-Zuhayli, al-Fiqhul-Islami wa Adillatuh Damascus, 1405/1958, VII, 105, 106).
According to the Hanbali School, the man must engage in sexual relation with his wife at least once in four months, because the time period specified for the vow of abstinence (ila) is that long (see the Qur’an, Al-Baqara, 2:226-227).
On the other hand, it is a mutual right for the spouses to benefit from their sexual aspects. Marriage is made lawful for the good of spouses. It is one of the instances of its goodness that they appease their lust in a lawful way.
If an unexcused period of more than four months passes without intercourse, they may get divorced upon their appeal. Here there is a comparison to the vow of ‘ila’ (see al-Buhuti, Kashshaful-Qina’, Matbaatul- Muhammadiyya, V, 214; az-Zuhayli, ibid., VII, 106, 107).
If the discord between the couples continues and the precautions specified in the above-mentioned verse do not yield a result, in the next verse the method of appointing an arbiter is ordained.
“And if you fear that a breach might occur between a couple, appoint an arbiter from among his people and an arbiter from among her people. If they both want to set things aright, God will bring about reconciliation between them.” (The Qur’an, An-Nisa’, 4:35)
In this verse, the group addressed is judges. If the husband failed to maintain accord, then the right of one of the spouses to apply to a judge and to demand the appointment of an arbiter emerges. It is more appropriate to choose the arbiters from among the relatives because they will know the parties, know the reasons for the discord and they will have more chances of reaching a reconciliation
Is the duty of arbiters only reconciliation? Or do they have the authority to divorce the couple?
According to Abu Hanifa and Ahmad b. Hanbal, as long as the spouses do not give special authority, arbiters do not have the authority to divorce because they are in the position of deputy and cannot go beyond the authority granted.
In the verse, the authority of the arbiters is only to set things aright. However, if the spouses have given them special authority, they can divorce the couple.
In the practice of the Ottoman Empire, the divorce through arbiters did not prevail because the judges themselves performed the duty of arbiter upon appeal. As a result, the method of arbiter has prevailed not as a means of divorce but as an institution of reconciliation
(Ash-Shirazi, al-Muhadhdhab, II, 74; ar-Ramli, Nihayatul-Muhtaj, Egypt, nd VI, 44). That view of the Hanafi School was narrated from Hasan al-Basri, Qatada and Zayd b. Aslam.
According to a view from Imam Shafii, the arbiter (hakem) is only a reconciliator and is in the position of a deputy. According to another view, ‘hakam’ means ‘hakim’ (judge). For this reason, even if the two parties do not consent, the arbiters may also decide to divorce them if they see it necessary (as-Sabuni, Tafsiru Ayatil-Ahkam, Damascus 1397/1977, I, 472; Hamdi Döndüren, Delilleriyle İslâm Hukuku, Istanbul 1983, p. 398, 399).
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