HER HUSBAND DISAPPEARS FROM HER FOR SIX MONTHS AND ABOVE……
HER HUSBAND DISAPPEARS FROM HER FOR SIX MONTHS AND ABOVE; SHE DOESNOT KNOW HIS WHERE ABOUT AND THE HUSBAND NEITHER GETS IN TOUCH WITH HER NOR BEARS HIS RESPONSIBILITIES ON HER. THE WIFE COULD NO MORE BEAR THE STRESS, WHAT IS THE VIEW OF SHARIAH ON THIS ISSUE?
RESPONSE OF THE SHAYKH: May Allah preserve him
The Muslim scholars seriously disagree over the waiting period that is incumbent on wife when she misses her husband whose where about could not be ascertained, from 120 years as opined by the Hanafi School of Thought to 4 years as opined by Maliki School and a narrated view from Shafi’i School. The reason behind their difference is that the Hanafi School gives consideration to the time span which human rarely surpasses; while other scholars give consideration to the longest duration of pregnancy and based on that if a wife waits for 4 years it will be crystal clear that she is not pregnant.
Secondly: it is note-worthy that the views of scholars in case such as this often change with time. Hence, with the modern means of communication, four years is too much to ascertain where about of a missing person and, similarly, pregnancy confirmation, in the face of new medical techniques, does not require us to wait for four years.
Thirdly: it is necessary to take note that this case falls under cases that will be determined by judicial discretions and does not require fixed verdict. Thus it is necessary to resort to any available Islamic judiciary, and in the circumstance where there is none, it is thus incumbent to resort to the Muslim community to decide.
Fourthly: if the said wife is hurt by the absence of her husband for lack of expenses or marital relation, she has the right to invite the Muslim community or any Islamic centre located in her vicinity, this is because the Muslim community is legally fit to be in the stead of judge actually or presumably. Ad-Dasuqi Al-Maliki says in his commentaries: “Among the issues pertaining to the missing one is termination of his marriage for lack of marital expenses or for the wife is being hurt by lack of sexual intercourse; no one is capable of terminating his marriage except the judge provided that he exists actually or presumably; if the [judge] is not existing, then the Muslim community will replace him as asserted by our Shaykh Al-Adawi.”
It is note-worthy that there will be no valid divorce less after searching for the husband via the available means of searching; but after the conclusion of searching, and [the missing one] did not appear coupled with the wife’s demand of divorce, then a valid divorce should be issued. The wife will then offer her death waiting period and get married if she wishes subsequently.
Based on the fore-goings, it is clear to you that the verdict is premised on the wife’s demand without necessarily waiting for a fixed duration. It is thus lawful for the wife to seek the court discretion any time her patience has reached the deadlock consequent upon being harmed with the missing of her husband. Allah knows best!