Validity of Faskh (Judicial Annulment) of Nikāḥ (Islamic Marriage) due to Shiqāq (Marital Discord) and its 21st Century Application

Abstract

Nikāḥ or an Islamic marriage can end due to many reasons. This paper analyses rulings, evidence, principles of faskh (Islamic judicial annulment of marriage) due to shiqāq (marital discord) and its procedures. First, thorough definitions are established for concepts such as shiqāq and faskh, along with an introduction to an ideal Islamic marriage, and the laws according to which a qāḍī or Muslim judge operates. Modern applications of faskh are compared by examining the faskh legal procedures of five Muslim countries – Jordan, Morrocco, Kuwait, Qaṭar and Malaysia – and one Muslim minority country – India – and the procedures set by its peak body on Muslim personal law, i.e. the All-India Muslim Personal Law Board. All codes are derived from the four canonical legal schools of thought of Sunni Islam, i.e. Ḥanafī, Mālikī, Shāfiʿī and Ḥanbalī. These provide a sufficient cross-section of the Muslim world for the on-the-ground reality and judicial operating procedures of how shiqāq is dealt with by judges. It was discovered that the Mālikī madhhab was chosen unanimously by all the legal codes as it provides the greatest recourse for women in bad marriages.