The Validity of Fasakh Due to Non-Cohabitation: An Analysis of Marital Intimacy and Its Implications within the Framework of Maqasid al-Shariah

Muhammad Syihab Nokman and Mohd Harifadilah Rosidi
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Muhammad Syihab Nokman: Faculty of Shariah and Law, University Sains Islam Malaysia, Bandar Baru Nilai, Negeri Sembilan, Malaysia
Mohd Harifadilah Rosidi: Faculty of Shariah and Law, University Sains Islam Malaysia, Bandar Baru Nilai, Negeri Sembilan, Malaysia

International Journal of Research and Innovation in Social Science, 2025, vol. 9, issue 7, 2213-2222

Abstract: This study investigates the validity of Fasakh (judicial annulment) as a legal remedy for non-cohabitation and the resulting absence of marital intimacy within Muslim marriages, critically analysing its implications through the lens of Maqasid al-Shariah. In Islamic law, the fulfilment of conjugal rights and the maintenance of marital intimacy are fundamental obligations that underpin the objectives of marriage, including the preservation of lineage (ḥifẓ al-nasl), the protection of dignity (ḥifẓ al-‘ird), and the pursuit of emotional well-being (ḥifẓ al-nafs). Drawing on a qualitative methodology, this research reviews Syariah court judgments, classical and contemporary juristic discourse, statutory provisions, and authoritative fatwas to assess the grounds on which fasakh may be granted due to prolonged non-cohabitation or the failure to consummate the marriage. The findings reveal that the absence of marital intimacy, whether resulting from voluntary separation, neglect, or persistent inability to fulfil conjugal obligations, constitutes valid grounds for fasakh if it causes demonstrable harm (mudarat) to either spouse. The study further argues that, from the perspective of Maqasid al-Shariah, the legal system should prioritise the welfare and dignity of both spouses by facilitating equitable dissolution when marital objectives are unachievable. In conclusion, the paper advocates for a compassionate and context-sensitive approach in applying Fasakh, ensuring that legal judgments are firmly rooted in Islamic law’s higher objectives and the family institution’s holistic well-being.

Date: 2025
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