Fasakh when your husband is imprisoned

Can I apply for fasakh because my husband is imprisoned?

Yes. A husband imprisoned for three years or more is one of the recognised grounds for fasakh, standing on its own without needing to prove any other fault.^[1] The length of the sentence, not the reason behind it, is what the court looks at for this ground.

For the full list of recognised grounds, see fasakh grounds.

What does the court want to see for this ground?

The court will usually want confirmation of the sentence and its length, such as documentation of the conviction.^[1] This is a more straightforward ground to evidence than some others, since the fact of a long sentence speaks for itself.

If you are unsure how to obtain the right documentation, a Peguam Syarie can advise on what to request and from where.

Does my husband need to be present at the proceedings?

Not in the same way an unrestricted husband would be. The Syariah Court has processes for notifying and hearing from a party who is in custody, though the exact arrangement depends on your state’s court and its procedures.

His imprisonment does not stop the case from moving forward, which is part of why this ground exists.

Why does a long imprisonment count as a ground on its own?

A long imprisonment leaves a marriage unable to function in any practical sense, regardless of fault, which is why the law recognises it separately from cruelty or failure to maintain. The reason for his sentence is not what the court weighs here, only its length.

This can matter if you are unsure whether the underlying reason for his imprisonment affects your case. Generally, it does not, for this specific ground.

Can I still claim maintenance for our children?

Yes. Child maintenance is a separate claim from fasakh, and a father’s duty to support his children does not end because he is imprisoned.^[1] Enforcement can be harder while he has no income, but the claim itself remains valid and worth raising alongside your fasakh application.

Raise both together with a Peguam Syarie so your children’s ongoing needs are addressed alongside ending the marriage.

What happens after the fasakh is granted?

Once granted, you enter your iddah period, and can raise nafkah iddah, mut’ah, and child maintenance claims as they apply to you. His imprisonment does not change these next steps, though enforcement of any payment order may need to wait until his release or depend on other assets.

If his sentence is shorter than three years, ask a Peguam Syarie whether another ground, such as a sustained failure to maintain, may fit your situation instead.