Nushuz & resolving marital conflict

1The meaning of nushuz

Linguistically, nushuz means 'rising up' or 'standing out'. In Syariah, it is one spouse's defiance of the other spouse's obligatory rights under the marriage.

• A wife's nushuz — for example, leaving the marital home without permission and without a lawful reason, refusing marital relations without excuse, or refusing to move to a suitable home provided by the husband.
• A husband's nushuz — for example, not providing maintenance, leaving his wife without news, being harsh, causing hurt, or turning away from his wife (Surah an-Nisa' 4:128). In polygyny, injustice in the rotation of nights and maintenance is also a form of the husband's nushuz.

Not every disagreement is nushuz. Differences of opinion, tiredness, or a wife working with consent are not nushuz.

2A wife's nushuz: Surah an-Nisa' 4:34

Verse 4:34 mentions three steps for a wife whose nushuz is feared: "…advise them, and leave them alone in bed, and strike them. Then if they obey you, do not seek a way against them…"

1. Counsel (al-wa'z) — speaking calmly, reminding of Allah and of mutual rights, listening to the real reason.
2. Separation in bed (al-hajr) — not sleeping together or turning one's back, within the home. It is not throwing her out, neglecting maintenance, or cutting off communication. According to scholars, it should not exceed a reasonable period.
3. 'Striking' (adh-dharb) — discussed below; the jurists placed such strict limits on it that many scholars regard it as symbolic and better left alone.

Scholars stress that these steps are in order: one may not jump to a later step if an earlier step has worked. The effect of a wife's nushuz established in court is the loss of the right to maintenance during the nushuz (Act 303 s.59(2)); maintenance resumes when she returns to obedience.

3Firm limits: the Prophet's ﷺ example

Aishah r.a. said: "The Messenger of Allah ﷺ never struck anything with his hand, neither a wife nor a servant, except when striving in the path of Allah" (Sahih Muslim, Kitab al-Fadha'il). This is the clearest sunnah.

• In the Farewell Pilgrimage sermon, the Prophet ﷺ mentioned 'a strike that does not injure' (ghaira mubarrih) and urged fear of Allah in matters concerning women (Sahih Muslim, Kitab al-Hajj).
• Ibn Abbas r.a. interpreted it as with a tooth-stick (siwak) or the like — that is, a sign of displeasure, not violence (Tafsir at-Tabari).
• Striking the face is forbidden (narrated by Abu Dawud 2142; hasan). Any act that leaves a mark, pain, fear or humiliation is forbidden and is oppression.
• Many jurists (including in the Shafi'i school) stress that leaving it is better. The Prophet ﷺ said: "The best of you is the best to his family, and I am the best of you to my family" (narrated by at-Tirmidhi 3895; sahih).

4A husband's nushuz: Surah an-Nisa' 4:128

Verse 4:128: "And if a woman fears nushuz or aversion from her husband, there is no sin on them if they make a true reconciliation between them, and reconciliation is better…"

• A wife may initiate reconciliation, including by voluntarily giving up some of her rights. Sawdah r.a. gave her turn to Aishah so as to remain the Prophet's ﷺ wife (Sahih al-Bukhari 5212; Sahih Muslim, Kitab ar-Radha'). This giving up of rights must be voluntary, not coerced.
• If the husband continues to wrong her — not providing maintenance, being unjust between wives, or causing injury — the wife may complain to the court. The options include a maintenance order, taʿliq divorce (see conditions & taʿliq), judicial dissolution (fasakh) (Act 303 s.52) and khulʿ.
• In polygyny, injustice between wives in the rotation of nights and maintenance is a religious wrong and may also be an offence under state enactments.

5Arbiters: Surah an-Nisa' 4:35

"And if you fear a breach between the two, appoint an arbiter from his family and an arbiter from her family. If they both desire reconciliation, Allah will bring about agreement between them…" (4:35)

• Arbiters are just, knowledgeable representatives who understand the situation — preferably from each spouse's family.
• The arbiters' powers: Shafi'i and Hanafi — the arbiter is an agent and needs the spouses' mandate to divorce or accept a khulʿ payment. Maliki — the arbiter acts like a judge and may separate them if necessary. Hanbali — there are two narrations.
• In Malaysia, Act 303 s.48 and state enactments allow the court to appoint arbiters when there is shiqaq (persistent discord). If the arbiters do not agree, the court may appoint other arbiters or give them wider powers.

6Sulh in the Syariah Court

Before the trial of many family cases (maintenance, custody, jointly acquired property), Syariah Courts in Malaysia hold a sulh session — a negotiation session chaired by a Sulh Officer.

• Sulh is confidential, informal and quicker. An agreement reached is recorded and can be made an enforceable court order.
• If sulh fails, the case proceeds to trial.
• Sulh is not appropriate to force in cases of violence; the victim may tell the Sulh Officer about safety concerns.

7Domestic violence: forbidden, and help is available

Injuring a spouse, threatening, confining, sexual abuse, persistent insults or withholding money are forbidden — Allah says: "…and live with them in kindness" (Surah an-Nisa' 4:19), and "do not retain them to harm them" (Surah al-Baqarah 2:231).

In Malaysia, the Domestic Violence Act 1994 (Act 521) applies to everyone, including Muslims. The protection available:

• Emergency Protection Order (EPO) — issued quickly by a social welfare officer.
• Interim Protection Order (IPO) during the investigation, and a Protection Order (PO) from the court.
• A police report, examination at a hospital Emergency Department (One Stop Crisis Centre) and temporary shelter.

8Counselling and prevention

• Family counselling — the Counselling Unit / Family Development Division at the state Islamic Religious Department offers free or low-cost sessions. Counsellors registered with the Lembaga Kaunselor Malaysia can also help.
• Identify the cause — finances, family interference, injustice in polygyny, mental health, or communication. See psychology and maintenance.
• In polygyny — a written rotation schedule, a transparent maintenance budget and an agreed complaints channel reduce much conflict. See the husband's responsibilities.
• Divorce is not a religious failure when reconciliation is impossible — "But if they separate, Allah will enrich each of them from His abundance" (Surah an-Nisa' 4:130). See talaq & divorce.

Sources & references