Can I divorce her without paying her the delayed portion of the mahr because she is regarded as wilfully defiant (naashiz) by not obeying my order to leave her job?.
Praise be to Allaah.
So long as you knew that this woman was working when you
got married, and you agreed to that, and you did not stipulate that she
should give up her job, you have no right to force her to leave this job
after you got married.
It says in al-Rawd al-Murbi‘ wa Haashiyatuhu:
“He has the right to stop her hiring herself out” because he
will miss out his rights as a result of that, so it is not proper for her to
hire herself out except with his permission. But if she hired herself out
before marriage, that is valid and binding.
It says in the footnote or commentary:
i.e., her employment is valid and the contract is binding,
and the husband does not have the right to annul it, because its benefits
were acquired by means of a contract that came before his marriage
End quote from Haashiyat al-Rawd al-Murbi‘ by Ibn
Qaasim, 6/444. See also al-Insaaf, 8/267
Shaykh Zakariya al-Ansaari (may Allah have mercy on him)
If a free woman hires herself out to do a specific job, as a
wet nurse or for any other purpose, without the permission of her husband,
that is not permissible, because all her time is devoted to fulfilling his
rights… But with his permission it is permissible.
If he married her when she was employed, he does not have the
right to stop her from fulfilling the terms of the contract to which she is
committed; this is similar to the case if she hired herself out with his
permission. End quote from Asna al-Mataalib, 2/409.
Based on that:
The husband does not have the right to take her away from the
country in which his wife is required to stay according to the terms of the
contract that he knew about before he married her or for which he gave her
It says in Minah al-Jaleel:
If a woman has committed herself to working as a wet nurse,
and her husband wants to take her away from the land where the family of the
nursing infant lives, if she hired herself out as a wet nurse with his
permission, he does not have the right to do that. But if it was without his
permission, then he does have the right to do that and the contract of
employment is annulled.
End quote from Minah al-Jaleel, 7/471
Based on the above:
The matter is between you and your wife. If she agrees to
give up her job in order to travel with you, then she has done well. But if
she does not accept that, then you can look for a suitable job in the place
where your wife lives and works.
If you do not agree to that and you want to divorce her, you
do not have the right to withhold the mahr that you agreed to give her and
she is not being wilfully defiant (naashiz) by refusing to give up her job.
Rather you may either keep her or divorce her and give her the right that
she has over you, which is half of the mahr stipulated.
We ask Allah to set things straight for you and your wife and
reconcile between you.
And Allah knows best.