Does a wife have the right to seek dissolution (Faskh) of marriage if her absent husband has concealed his wealth and the judge cannot secure maintenance (Nafaqah) from him?
General Chapter
Al-Mughni
Book of Maintenance (Nafaqāt)
Primary text
The wife possesses the option to dissolve the marriage contract if her husband has hidden his wealth, she endures the waiting period, and the judge cannot obtain funds from the absent husband or secure maintenance from his assets. This is the apparent position in the view of Al-Khiraqi and the choice of Abu Al-Khuttab. The evidence supporting this position is the directive issued by Umar, may Allah be pleased with him, to men who were absent from their wives: ordering them either to provide maintenance or to grant divorce. This constitutes compulsion toward divorce upon refusal to maintain. Furthermore, since maintenance from his property is obstructed, she is granted the choice, analogous to the state of insolvency (I'sar). Moreover, forbearance causes her harm that can be removed by dissolution, necessitating its allowance. If dissolution is permitted for proven insolvency, it is more appropriate for this situation. The inability to secure maintenance via his property is a form of impediment justifying dissolution, just as it is in sales contracts where the buyer's insolvency or flight before payment permits dissolution.
Supporting text
The opposing view, favored by Al-Qadi and apparent in the Madhhab of Al-Shafi'i, dictates that the wife does not possess the right to dissolution. This is because dissolution due to insolvency is predicated on the defect of insolvency itself, which is not present here since the husband is presumed solvent (Muwassir). They argue that the solvent husband might be able to pay the next day, unlike the insolvent one. They also contend that the husband might yet provide maintenance later.