Spousal Harm in the Mālikī Law School: Evidence and Procedure

Abstract

The Mālikī law school grants a wife the right to judicial divorce if her husband harms her. Mālikīs distinguish between harm that is legally actionable and harm that is non-actionable. A husband causes actionable harm (ḍarar) when he violates his wife’s rights, which Mālikī scholars define broadly. By establishing ḍarar as grounds for divorce, Mālikīs demonstrate their willingness to limit a husband’s marital authority and increase opportunities for a woman to leave her marriage. In this study, I highlight the types of evidence and procedures Mālikī jurists use to establish ḍarar and facilitate judicial divorce by examining four cases that deal with emotional, sexual, and physical harm. Through a substantive approach to law, Mālikīs offer several ways for a woman to collect evidence, prove her claim of harm, and receive a divorce.