What is the ruling if a husband and wife are in continuous strife and reconciliation seems impossible?
General Chapter
Al-Mughni
Book of the Wedding Feast
Primary text
When irreconcilable strife (Shiqaq) occurs between spouses, the ruler (Hakim) investigates the cause. If the fault lies with the wife, it constitutes disobedience (Nushuz), and the established ruling applies. If the fault lies with the husband, he must be confined near a trustworthy person who prevents him from harming or transgressing against his wife. If fault lies with both parties, or if both claim injustice, they must be kept near someone who supervises them and compels them toward fairness. If these measures fail and the strife continues, causing fear of further separation and disobedience, the ruler must appoint an arbitrator (Hakam) from his family and an arbitrator from her family. These arbitrators are tasked to bring about reconciliation or separation as they see fit, based on the verse commanding arbitration in case of dispute (Quran 4:35).
Supporting text
There is a difference of scholarly opinion regarding the authority of these two arbitrators. One view holds they are mere agents (Wakilan) who cannot effect separation without the explicit permission of the spouses, supported by the reasoning that the wife's body (Buḍ') and property are her rights, requiring agency for disposition. The second, and preferred view, is that they possess the authority of judges (Hukakam) and have the power to decree separation or reconciliation, with or without compensation, irrespective of the spouses' consent, based on the explicit divine command to send arbitrators without conditioning it on spousal consent.