The Statutes of Marriage; Annulment (faskh)
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Marata"
C. Annulment (faskh)
Any time a spouse has certain specified physical or mental disabilities which make continuation of the marriage difficult, the other spouse may annul the marriage. These disabilities vary according to the different schools. All schools except the Hanafi list insanity, emasculation, and impotence for the men, and insanity, leprosy, and a blocked vagina for the wife; each of them except the Hanafi then adds various other disabilities of the same sort. In the Hanafi school the wife has the right to annul the marriage only for the three grounds listed, while the husband has no grounds for annulment on the basis of disabilities.1
The spouse who discovers a disability in the other spouse must exercise the right of annulment immediately or lose the right. Similarly, if there was knowledge of the disability before the marriage, the marriage is in effect an expression of satisfaction with the disability, so there is no grounds for annulment; however, the Shafi'is and Malikis hold that a woman's knowledge of the man's impotence before marriage does not effect her right to annul the marriage.2 If the annulment takes place before consummation, the wife receives no dower; if the marriage has been consummated, she receives the full dower.
All schools agree that disabilities which existed before the marriage are grounds for annulment, but there is a difference of opinion about disabilities which appear after the marriage. The Malikis hold that in the case of such later disabilities, the wife-but not the husband-has the right to annulment before consummation, so long as the husband was healthy before the marriage; however, in the case of insanity and leprosy, the husband has one year in which to undergo treatment, If he is not cured in one year , the annulment takes place,3 All schools agree that a full year is needed before the man can be judged impotent; after a year, the annulment takes place, The Shafi'is and Hanbalis maintain that both spouses retain the right to annulment, whether before or after consummation, The Sunni schools agree that the annulment should be declared by a qadi. The Shi'is say that disabilities occurring after marriage do not establish grounds for annulment, with the exception of the husband's insanity, which is grounds for annulment even after consummation; as for impotence, the wife should seek the qadis pronouncement of the one year period, but then she herself annuls the marriage.4
1. Fiqh, IV, 189-92.
4. Sharh al-lum'a, v, 387; Riyad, II, 132-35.
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