Imām Abu Hanīfah is
of the opinion that if a husband and his wife live separately for a long
time, divorce does not come into effect by default. However, he opines that
a divorce effectively takes place when a husband does ’Īlā (a practice that
was rampant among the Arabs at the advent of Islam whereby a husband swears
that he would not maintain sexual relationship with his wife). The Holy
Qur’ān has given clear directives in this regard that the husband should not
thus drag his wife along and must decide within four months if he wants to
reestablish the contract.
So if he does not decide
within the stipulated time period about the relationship, then divorce would
automatically come into effect. However, the case that you have put forth is
entirely different. The husband and wife have decided that they cannot live
together, but for some mutual interests, for example, to avoid the
disastrous consequences befalling the family, especially children, or for
any other reason they mutually decide to live separately. Obviously, this is
not a case identical to ’Īlā.
As far as your questions
regarding divorce are concerned, you must know that a wife needs to ask her
husband first to divorce her if she sincerely feels she cannot live with him
anymore. If he does not respond to her request, she has the right to turn to
the court of law which can force the husband to free her.
The husband is only obliged to keep his divorced wife in his house and
provide her during the period of ‘Iddat. If the woman is pregnant, then this
responsibility is extended to the day she gives birth to his child. The
matter of guardianship will be dealt with according to the circumstances and
position of both parties and the agreement they make while separating. If
the husband does not hand over the infant to the mother and she sues him,
then the court will decide who should be the guardian. There may be cases
where it is the mother who bears the burden and still, in some other
situations, the father is asked to shoulder the responsibility.