إجابة الحاكم لتطليق امرأة الأسير المتضرّرة دراسة تحليليّة في ضوء مقاصد الشّريعة الإسلاميّة

Captive’s Wife Litigation and Right of Divorce in Islamic Law (A Study from Islamic Political Science Perspective)

Abstract

Islamic political science gives flexibility to judges, jurists and Islamic experts to generate the right Islamic stand and point of view for responding to an ended daily issues and new challenges in the light of Islamic general principles. Islamic political science is also the key measurement of grating rights and prevent harms and damages in the incoming questions as long as the scholars’ new generated point of view is in line with firm Islamic super vision. Furthermore, issues of internees, captives or prisoners are very significant and worth of research and study due to ongoing war and crises in the world generally and Islamic community in particular. The backbone of research statement is what is reported in Islamic jurisprudence of consensus among Muslim jurists that wife of internees, captives or prisoners has no right but to wait for her husband to until he is released and becomes freeman. Thus, the ruler or judges should not grant the wife right of divorce even if she insisted on it as far as her husband is a live regardless of the period of being absent.  Therefore, this study aims at shading light on the issue and create balance between wife’s sexual right in Islam as basic need of human being and spirit or goal of so reported consensus. The research has used inductive approach and analytical methodology in this study based on the nature of the study. Among the most important findings of the research is that the reason of the consensus in this particular issue has taken place in fulfilment of general interest of husbands and other interests of Islamic societies. Nevertheless, principle of interest is subject to time and place location and it is likely to be changed. Thus, the Muslim jurist or judge should consider the wife litigation and grant her right of divorce accordingly.

Keywords: Shari’ah objectives, Islamic political science, consensus, judge and ruler, captive’s wife.