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Fatwa CenterThe wife of the prisoner can ask him for divorce
Question
I married my husband one month before he was taken into prison. Now, one year later I am asking him for a divorce because this is too hard for me and he has three to five more years for drug charges. I have no children by him and we are not able to have physical contact. He told me no that he will not give me a divorce and he wants me to wait for him. How do I go about getting a divorce if he will not cooperate with me and release me?
Answer
Praise be to Allah, the Lord of the Worlds; and may His blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions. It is Haram (prohibited) for a wife to ask her husband to divorce her without a legitimate cause. This is according to the Hadith (Prophet's saying): Any woman who asks her husband to divorce her without any justification, for her Paradise will be prohibited. [Narrated by Ahmad , Abu Dawood , and others] But if there is a justifiable reason for asking for divorce, then there is no sin in that. Imam Ibn Hajar said: The narrations on warning women from asking their husbands for divorce are restricted to the cases where there is no acceptable reason behind divorce. Hence, if a woman's husband is a prisoner who does not spend on his wife, nor does she have money to spend on herself, she may ask for divorce. In "Al-Mughni", Ibn Qudamah says about the absence of the husband: … if his absence is not for ever, and his news is known, his wife has no right to ask for divorce, according to the consensus of the Muslim Jurists unless she is not able to spend on herself from his money, in which case she may ask for divorce. Another justification for the wife to ask for divorce is when the husband proves to be morally incompetent during the marital life (i.e. becomes disobedient to Allah). Imam Ibn Al-Qayyim , may Allah have mercy on him, in "Zadul-Ma'aad: 5/169", says: If he is no longer a good-mannered Muslim (rebellious/disobedient) during the marital life, or if a certain defect takes place which necessitates abrogating the marriage contract, then she has the right for divorce. This is according to the apparent ruling of the Madhhab (school of thought), which is the opinion held by the Maliki Madhhab. If the husband consumes drugs and the wife is a chaste and religious woman, then she has the option either to continue her marital life with him or to ask for divorce. To conclude, we advice our sister, the inquirer, to raise her case to the nearest Islamic court or organization that looks into the Muslim's affairs, such as marriage, divorce, etc, to see her case. These might give an appropriate ruling that takes all important things into consideration. Allah knows best.
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