Some Husband and Wife Issues

These questions and answers are from Dr. Siddiqi’s column, which is published on the Pakistan Link website.

Q 1. A Muslim woman was very badly treated by her husband. For several years she tried to separate from him and asked him for divorce, but he refused to divorce her. Finally she went to the American court and filed for divorce. Now she has received the judgment from the court and her marriage with this husband is dissolved by the American court, but her husband tells her that only a Muslim judge can dissolve the Islamic marriage. The non-Muslim American court has no right to dissolve their Islamic marriage. He insists that they are still married. He has some Fatwas from some ‘Ulama in India and Pakistan who support this view. She really does not want to live with him, but he wants to punish her by keeping her in this uncertain condition. What is the solution? Please explain the Islamic position in this matter.

A 1. According to Islamic law only a husband has right to divorce his wife. In case a wife does not want to live with her husband she has a right of Khula’, i.e. she should ask her husband to divorce her and in return she may give up her Mahr. If the husband refuses to divorce her and she finds it impossible to live with him, then she can go to a Muslim judge (Qadi) and can ask him for the dissolution of their marriage. Muslim judge has the authority to dissolve Islamic marriage.

The dilemma that Muslims in America face is this that there are no Muslim courts or Muslim judges in this country, and even if some Muslim scholars or imams of some Islamic centers dissolve a marriage according to Islamic laws, the American courts do not recognize Islamic divorces. Until the American court dissolves the marriage, the parties are considered legally married. In America, divorce can only take place by the judgment of the civil court, neither a husband has right to divorce his wife, nor a wife to divorce her husband, nor a religious authority of any religion can dissolve a legal marriage. (To my knowledge the only exception is given to some American Indian groups in their reservations.)

Under these circumstances we can say that Muslims have three options:

  1. In case of marital dispute the husband of wife both should go to a Muslim scholar and both of them should sign an agreement that they would accept his decision. Once the decision is made they should file it in the family court. Such marriage settlement agreement will be according to Islamic law but it is also acceptable under the American family law. Once this agreement is filed it becomes binding on both parties.
  2. Second option is that husband and wife both sign a pre-marital agreement that in case of dispute they will resolve their differences and/or dissolve their marriage according to the Islamic law.

A properly formulated pre-nuptial agreement is acceptable in most of the States and it is binding on both parties. 3. In case they do not have a pre-nuptial agreement or either the husband or the wife refuse to go to an Islamic authority to resolve their disputes, then they have no choice except to go to non-Muslim American courts and because of the necessity and to protect the rights of woman or man, the decision of the American court should be acceptable, as long as it does not contain anything that is clearly forbidden under the Islamic law. Under these circumstances, if a woman obtains a decree of the dissolution of marriage, the Islamic centers should recognize it and should give the woman a letter confirming American court’s decision. They may say that under the present circumstances we have no objection to the courts decision and consider this couple no more husband and wife under the Islamic law as well.

Q 2. Can husband and wife or one of them expose themselves in front of each other? (H.Y., Los Angeles)

A 2. Yes, there is no ‘awrah (things to be hidden) between the husband and wife. Husband and wife can be naked in front of each other. However, Islam urges human beings to observe haya’ (modesty). The Prophet – peace be upon him- said, “The Haya’ is part of faith.” So one should not be nude unnecessarily. Husband and wife can take their clothes off in front of each other to enjoy their sexual relations at the time of sex, but after that they should cover themselves. It is not good to walk all around the house naked, even in one’s privacy what to say in front of others. It is absolutely haram to be nude in front of other people unless it be before the doctor for medical examination and treatment only.

Q 4. Can husband and wife taking bath together?

A 4. Yes, husband and wife are allowed to take bath together.

Q 5. Is husband allowed to drink his wife’s milk?

A 5. It is makruh (disliked, not recommended). That milk is for the babies and it should be left for them. However, if, unintentionally, some milk goes into his mouth, it is not forbidden, but he should not plan to drink that milk. Rada’ah or foster relationship and its rules come only when a child under the age of two years drinks a woman’s milk several times. If a grown up person drinks a woman’s milk, she would not become his foster mother and the rules of rada’ah will not be applicable in this situation.