A man doesn’t want to live with his wife but doesn’t want to divorce her for the sake of the children

If he has no interest in his present wife, there is nothing wrong with
divorcing her and marrying another, but if he and she come to an agreement whereby she may
remain his wife for the sake of the children, there is nothing wrong with this either. If
he gives her the choice between divorce and giving up her rights to his time and his
spending on her, in whole or in part, this is not oppression. Oppression is when he keeps
her by force without giving her any of her rights whilst at the same time refusing to give
her a divorce.

The evidence (daleel) that the situation described above is
permissible is to be found in the hadeeth narrated by Imaam al-Bukhaari from
‘Aa’ishah (may Allah be pleased with her), which comments on the aayah
(interpretation of the meaning): “And if a woman fears cruelty or desertion on her
husband’s part…” [al-Nisaa’ 4:128]. She said: “This
was a woman who was married to a man who did not care for her, so he wanted to divorce her
and marry someone else. (According to another report narrated by al-Bukhaari she said: He
was a man who saw something he disliked in his wife, so he wanted to divorce her.) She
said to him: ‘Keep me, do not divorce me. Marry someone else and I will absolve you
of your obligation to spend on me and share your time with me.’ This is what Allaah
referred to when He revealed the aayah (interpretation of the meaning): ‘…
there is no sin on them both if they make terms of peace between themselves; and making
peace is better…’ [al-Nisaa’ 4:128].”

(Reported by
al-Bukhaari, 4807)

“This was a woman who was married to a man who did not
care for her” means that he did not love her or want to treat her well or stay with
her. “I will absolve you of your obligation towards me” means: leave me without
divorcing me. Concerning this issue, Allaah revealed the words (interpretation of the
meaning): “And if a woman fears cruelty or desertion on her husband’s
part…” [al-Nisaa’ 4:128]. ‘Ali reported that this was
revealed concerning a woman who is married to a man and does not want to leave him, so
they come to an agreement that he will visit her every three or four days.”

Al-Tirmidhi reported via Sammaak from ‘Ikrimah from Ibn ‘Abbaas
that he said: “Sawdah was afraid that the Messenger of Allaah
(peace and
blessings of Allaah be upon him) would divorce her, so she said: ‘O Messenger of
Allaah, do not divorce me; give my day to ‘Aa’ishah.’ So he did so. Then
this aayah was revealed.” Al-Tirmidhi said: “(This is) hasan ghareeb.”
I say: there is corroborating evidence in a hadeeth from ‘Aa’ishah narrated by
al-Bukhaari and Muslim, without referring to the revelation of the aayah. (From Fath
al-Baari).

The hadeeth mentioned by al-Haafiz ibn Hijr (may Allaah have mercy on him)
is in Sunan al-Tirmidhi, 2966, where it is reported that Ibn ‘Abbaas said:
“Sawdah was afraid that the Prophet
(peace and blessings of Allaah be upon him)
would divorce her, so she said: ‘Do not divorce me. Keep me and give my day to
‘Aa’ishah.’ So he did so, then Allaah revealed the aayah: ‘…
there is no sin on them both if they make terms of peace between themselves; and making
peace is better…’ [al-Nisaa’ 4:128]. So whatever they agreed upon was
permissible.” It is as if the last sentence was the comment of Ibn ‘Abbaas. Abu
‘Iesa said: this is a hasan ghareeb hadeeth.

Al-Mubaarakpoori said, commenting on this hadeeth:

‘Sawdah was afraid…’ This refers to Sawdah bint Zam’ah
ibn Qays al-Qurashiyyah al-‘Aamiriyyah. The Messenger of Allaah
(peace and
blessings of Allaah be upon him) married her in Makkah after Khadeejah had died, and
consummated the marriage there. The scholars agree that he consummated his marriage to her
before he consummated his marriage to ‘Aa’ishah, and she migrated to Madeenah
with him. She died at the end of the khilaafah of ‘Umar ibn al-Khattaab.

‘…was afraid that the Prophet
(peace and blessings of
Allaah be upon him) would divorce her, so she said…’ Al-Bukhaari and Muslim
reported from ‘Aa’ishah that Sawdah bint Zam’ah gave her day to
‘Aa’ishah, so the Prophet
(peace and blessings of Allaah be upon him) used
to give ‘Aa’ishah her own day and that of Sawdah. Al-Haafiz said in al-Fath:
Abu Dawood reported this hadeeth (from ‘Aa’ishah): ‘The Messenger of Allaah

(peace and blessings of Allaah be upon him) never used to prefer any of us over
others in sharing his time (i.e., he was fair in dividing his nights among his wives, and
each one of them had her allotted night). When Sawdah bint Zam’ah grew old and feared
that the Messenger of Allaah
(peace and blessings of Allaah be upon him) might
divorce her, she said: ‘O Messenger of Allaah, my day is for
‘Aa’ishah,’ and he accepted this from her. Then concerning this and similar
cases, the aayah was revealed (interpretation of the meaning): ‘And if a woman fears
cruelty or desertion on her husband’s part…’ [al-Nisaa’ 4:128]. These
reports agree that she feared divorce and so gave her day to ‘Aa’ishah.

Then al-‘Allaamah al-Mubaraakpoori said: The aayah may be explained
thus: ‘If a woman fears’ means if she expects. ‘Cruelty’ means
that he spurns her by refusing to sleep with her or by spending less on her than he
should, because he dislikes her and wants to marry someone more beautiful. ‘Desertion’
means that he turns his face away from her. ‘There is no sin on them both if they
make terms of peace between themselves’ means with regard to the sharing of his
time and his spending on her, i.e., he should still give her something in this regard
(sharing time or spending) in order to preserve the relationship: if she accepts, this is
OK, otherwise the husband must either give her her full rights or divorce her. ‘Making
peace is better’ means better than separation, cruelty and desertion. Whatever
they agree upon between themselves is permissible.

(Tuhfat al-Ahwadi Sharh Jaami’ al-Tirmidhi).

And Allaah knows best, May Allaah bless our Prophet
Muhammad.