Question:
Does a wife who decides to leave the marital home shared with her husband and children qualify as committing nusyuz?
(Adis***, 08564699****)
Answer:
- First, it is necessary to understand the meaning of nusyuz from the perspective of Islamic jurisprudence (fiqh). The term nusyuz is explained, among others, by Musthafa Sa‘id al-Khin and Musthafa al-Bugha in their book al-Fiqh al-Manhaji ‘ala Madzhab al-Imam al-Syafi‘i (Damascus: Dar al-Qalam, 1992), Vol. IV, p. 106, as follows:
ونشوز المرأة: عصيانها زوجها، وتعاليها عمّا أوجب الله عليها من طاعته
“A woman’s nusyuz is her act of disobedience toward her husband and her refusal to carry out what Allah has obligated upon her, namely obedience to her husband.”
- That the meaning of “Nusyuz” in Islamic Law that applies in Indonesia is explained in Article 84 paragraph (1) of the Compilation of Islamic Law (KHI) “A wife can be considered nusyuz if she does not want to carry out the obligations as intended in Article 83 paragraph (1) except for a valid reason” Jo Article 83 KHI “(1) The main obligation for a wife is to be physically and mentally devoted to her husband in a way that is justified by Islamic law-(2) The wife organizes and arranges the needs of the house daily steps as well as possible.”The KHI does not provide detailed forms of conduct that qualify as nusyuz. However, based on the formulation above, any action by a wife that results in her failure to fulfill her obligations toward her husband or causes the daily household affairs not to be properly managed may be categorized as nusyuz.
- Considering that Ms. Adis*** did not specify the reasons for leaving the marital home, and in order to better address the question of whether a wife’s deliberate departure from the marital home constitutes nusyuz, we refer to the opinion of scholars from the Shafi‘i school as cited in al-Mausu‘ah al-Fiqhiyyah al-Kuwaitiyyah (Vol. 40, pp. 288–289).
وَقَال الشَّافِعِيَّةُ: مِمَّا يَكُونُ بِهِ نُشُوزُ الزَّوْجَةِ خُرُوجُهَا بِغَيْرِ إِذْنِ زَوْجِهَا مِنَ الْمَنْزِل لاَ إِلَى الْقَاضِي لِطَلَبِ الْحَقِّ مِنْهُ، وَلاَ إِلَى اكْتِسَابِ النَّفَقَةِ إِذَا أَعْسَرَ بِهَا الزَّوْجُ، وَلاَ إِلَى اسْتِفْتَاءٍ إِنْ لَمْ يَكُنْ زَوْجُهَا فَقِيهًا وَلَمْ يَسْتَفْتِ لَهَا، وَلاَ إِلَى الطَّحْنِ أَوِ الْخُبْزِ أَوْ شِرَاءِ مَا لاَ بُدَّ مِنْهُ، أَوِ الْخَوْفِ مِنَ انْهِدَامِ الْمَنْزِل، أَوْ جَلاَءِ مَنْ حَوْلَهَا مِنَ الْجِيرَانِ فِي غَيْبَةِ الزَّوْجِ، أَوِ انْقِضَاءِ إِجَارَةِ الْمَنْزِل أَوْ رُجُوعِ مُعِيرِهِ, وَكَذَا لَوْ خَرَجَتْ لِحَاجَتِهَا فِي الْبَلَدِ بِإِذْنِهِ كَأَنْ تَكُونَ بَلاَّنَةً أَوْ مَاشِطَةً أَوْ دَايَةً تُوَلِّدُ النِّسَاءَ، فَلاَ تُعْتَبَرُ نَاشِزَةً بِذَلِكَ. وَتَكُونُ الزَّوْجَةُ نَاشِزَةً كَذَلِكَ بِإِغْلاَقِهَا الْبَابَ فِي وَجْهِ زَوْجِهَا، وَعَدَمِ فَتْحِهَا الْبَابَ لِيَدْخُل وَكَانَ قَفْلُهُ مِنْهَا، وَبِمَنْعِهِ مِنْ فَتْحِ الْبَابِ، وَحَبْسِهَا زَوْجَهَا، وَدَعْوَاهَا طَلاَقًا، وَكَوْنِهَا مُعْتَدَّةً عَنْ غَيْرِهِ كَوَطْءِ شُبْهَةٍ.
Fiqh experts from the Shafi’i community basically state that nusyuz is the departure of a wife from a shared residence without her husband’s permission, where the wife’s departure without her husband’s permission is not for reasons of going to the judge to seek justice, not for reasons of earning a living because her husband has difficulty (in meeting household needs), not for reasons of seeking knowledge (which her husband cannot teach), not to fulfill or buy household needs, not to save herself from danger or disaster (such as an earthquake that causes the house to collapse, etc.) and not for other reasons that cause the wife to no longer be able to live in the shared residence (such as, the residence is a rented house whose lease has expired). A wife is not considered Nusyuz (even if she leaves her husband for a long time) if her departure is with her husband’s permission, such as to work as a household assistant, nurse or midwife. (In addition to leaving the shared residence) A wife is also considered Nusyuz by doing the following actions: forbidding her husband from entering the house (by locking the door), or the husband restraining himself from his wife because the wife is committing Wath’i Syubhat.
- Based on the example, the wife’s action of deliberately leaving the Joint Residence is considered Nusyuz’s action. Unless the departure from the Joint Residence house has legal reasons such as fighting for justice (there is an act of Domestic Violence, for example), because they are studying, because they are earning a living, etc.
This Legal Opinion is submitted based on the limited initial information we received. For further details, please make an appointment for a consultation with our lawyer.
