Divorce
The missionary and orientalist invasion of the previous age focused its
attack on two issues meant to decry the Islamic attitude concerning women.
These are divorce and polygamy, though in fact they are two of the good
things Islam is proud of.
It is unfortunate, indeed, that when these two issues are discussed among
some Muslims, they refer to them as two problems of the family and society.
They speak of them in a way that disparages our great Islam and its outstanding
Law.
The fact is, Islam did not make laws regarding these two issues except
to cure many problems in the life of men and women as well as in the life
of the family and society. The genuine problem is in misunderstanding what
Allah has pecreed, or in misapplying it. If anything is misused, it leads
to pernicious disservice.
Not every divorce is commendable in Islam. Some cases of divorce are disliked
or even forbidden because they entail destruction of the family, which
Islam takes care to build and form. That is why it is recounted in the
tradition which was transmitted through Abu Dawud,
"The most hateful halal (permissible thing) to
Allah is divorce". [Surah 2:102] No
wonder the glorious Qur'an likens the separation between man and his wife
to the work of heretic sorcerers, as the Almighty says: "And
from these people learn that by which they cause separation between man
and his wife". [Surah 4:130] Divorce
according to Islamic Law is similar to a painful surgery; the sane human
being endures the pains of his wound, even an amputation, in order to protect
the remaining parts of the body to keep away greater injury. If the aversion
between husband and wife is undiminished, and the means of reconciliation
and attempts by reconciling parties fail to bring them together, divorce
then is the bitter medicine which has no alternative. This is the reason
why if there can be no reconciliation, there is divorce. The Glorious Qur'an
says, "But if they separate
(by divorce), Allah will provide abundance
for everyone of the them from His Bounty". [Surah 4:130]
What Islam decrees here is what is dictated by reason, wisdom, and Muslims"
interests. It is totally illogical and unnatural to force, by the power
of law, a life partnership on partners who do not feel comfortable with
each other and do not trust each other. On the contrary, they undergo feelings
of repugnance; they hate each other and cannot tolerate living with each
other. To force such a life by the power of law is a severe punishment,
undeserved by man except for committing a major crime. It is worse than
life imprisonment and is certainly like the unendurable hell. In olden
times a wise man said, "One of the great calamities is to live with someone
who does not agree with you, but does not leave you." Abu Al-Tayyeb Al-Mutanaby
said:
Of the distressing matters in the world for the freeman, Is to perceive
the inevitability of befriending a foe. If that is said about a companion
one meets one or more times a week, for perhaps an hour or several hours
a day, what about a wife who stays at his home, who is very close to him
and is the partner of his life?
However, Islam has established a number of principles, teachings, and rules
which, if followed and used with discretion, would lessen the need for
divorce and limit its scope to a great extent. Some of these are considered:
1- To make a good choice of a wife, paying more attention to her religion
and morals than her money, wealth and beauty. The Prophet (blessings and
peace be upon him) said, "A woman is married for
four attributes, for her money, her family name, her beauty and her religion.
Get the religious one and you will be comfortable". [
Mutafaq aley (agreed upon) on the authority of Abu Huraira The Pearl and
the Coral (Al-Lu'lu' wal-Marjan) (928).] To
behold the intended fiancee before the marriage contract to be reassured
of the extent of her beauty in his own eyes and of her place in his heart,
as this early view is the messenger of warmth and affection. For that reason,
the Messenger (blessings and peace be upon him) said to a man who intended
to marry a certain woman, "Go and behold her, for
it is more likely it will lead to harmony between you". [
See The Concise Comprehensive Book of Sound Hadith (Sahih Al-Jame' As-Sagheer)
and its supplement (859).] i.e., it will bring about warmth and harmony. This prophetic command, "Behold
her," if it does not indicate obligation, it certainly indicates preference.
The Hadiths (prophetic traditions) referring to the same meaning are numerous.
Jabber said about the woman he married, "I used to
hide underneath a tree till I saw of her what led me to marry her".
Unfortunately, there are some Muslims, especially in the Gulf region, who
perceive the man's beholding his intended fiancee as an unprincipled act.
Therefore, he does not see her except on the wedding day, though she may
be a school or university student who goes to the market and is seen by
all the people except her fiancé.
In contrast, there are those who allow the man to sit alone with his intended
fiancee and allow them to go out together and frequent cinemas, etc. Thus,
what is correct is lost between two extremes of exaggeration and licentious
behaviour.
3- For the interested woman and her guardians to choose a husband of noble
character and to prefer the one whose faith and morals are satisfactory.
We have already mentioned the following Hadith, "If
the man who satisfis you in faith and morals comes to you, let him marry
(your
daughter)." The predecessors said, "When you
get your daughter married, let her marry a man of faith; if he loves her,
he will treat her nobly, and if he hates her, he will not be unfair".
4- A woman's approval of the one who proposes is a condition of marriage.
It is never allowed to force a woman to marry a person she does not want.
The Prophet (blessings and peace be upon him) dissolved the marriage of
a woman who was married by force.
5- To consider the satisfaction and approval of the woman's guardian as
obligatory or preferable, so that a woman does not marry while her people
disapprove of the marriage or are dissatisfied with her, which would lead
to estrangement between her and her family. Such estrangement might also
be reflected on her married life and have a great effect on it.
6-To consult mothers about the marriage of their daughters in order that
the marriage may be based on stable ground to the satisfaction of all parties.
It is transmitted that the Prophet (blessings and peace be upon him) said,
"Ask
women about their daughters," as has already been mentioned in the
Hadith and in the speech of Imam Al-Khattb in his report.
7- It is necessary to live together in marriage through mutual understanding,
pointing out the details of rights and duties exchanged between the married
couple, awakening the faithful consciences to adhere to Allah's Laws and
to fear and obey Allah by following His Laws. The husband and wife each
have duties in return for his or her rights. A Muslim is supposed to perform
his or her duties before asking for his or her rights. The Almighty says:
"And
they (women)
have rights (over their husbands as regards
living expenses, etc.) similar (to
those of their husbands) over them as regards
obedience and respect, etc., to what is reasonable. [Surah 2:228]
8- To persuade the husband to be realistic so as not to seek perfection
in his wife, but to consider her merits as well as her weak points. If
he dislikes one trait, he will find another to satisfy him. In the Hadith,
"No believer should loathe a woman who believes in Allah; if he hates one
of her manners, he is satisfied with another". [
Transmitted by Ahmad and Muslim on the authenticity of Abu Huraira, Op.
cit. (7741)]
9- To ask the husband to use his reason and consider the general welfare
of all involved if he feels a fomenting hatred towards his wife. He should
not hasten to yield to his emotion and should hope Allah changes his urge
to something good. The Almighty says: "And live with
them honourably. If you dislike them, it may be that you dislike a thing
and Allah brings through it a great deal of good". [Surah 4:19]
10- To command the husband to treat his disobedient, unruly wife with wisdom,
progressing bit by bit from leniency, without weakness, to firmness, without
violence. The Almighty says: "As to those women on
whose part you see ill-conduct, admonish them (first),
(next),
refuse them to share beds, (and last)
beat them (lightly, if it is useful),
but if they return to obedience, seek not against them means (of
annoyance). Surely Allah is Ever Most High,
Most Great". [Surah 4:34]
11 - To command the society to intercede when there is a breach between
the husband and wife with a family council of the trustworthy persons of
his relatives and hers, in an attempt to mend, reconcile and resolve the
existing crisis through peaceful means. The Almighty has said: "If
you fear a breach between them twain, appoint (two)
arbitrators one from his family and the other from hers; if they both wish
for peace, Allah will cause their reconciliation. Indeed Allah is Ever
All-Knower, Well-Aquatinted with all things". [Surah
4:35]
These are the teachings of Islam. If Muslims follow them and keep them,
divorce will be greatly limited.
Islam, however, does not decree divorce at all times nor in all cases.
Divorce is permissible, according to the Qur'an and the Sunna (prophetic
traditions) when the man is not hasty and chooses a suitable time. For
instance, he should not divorce his wife when she has her menstrual period,
nor when she is purified of her menses if he has had intercourse with her. [
That is, if she is purifies of her menses (i.e. between her periods) and
he had had intercourse with her, he should not divorce her until she has
completed her next menstrual period. This will ensure she is not pregnant.
(editor's note)] If he did, his divorce would not be according to the teaching (Sunna) of
the Prophet and would be forbidden. Some jurisprudents have gone so far
as to say the divorce is not valid then because it does not follow what
the Prophet (blessings and peace be upon him) has commanded us to do. In
the authentic Hadith, "Whoever did what we did not
command, his deed is invalid". [Transmitted by Muslim (1718) on
the authority of isha.] The
man should be sober, in a well-balanced and judicious state. If he is not
fully conscious, or forced, or in a state of wrath which causes him go
beyond his intention and imagination and utter what he does not want to
say, it is not considered valid. [
Transmitted by Abu Dawud (2193) and Ibn Majah (2046) on the authority of- isha.]
The noble Hadith says,
"No divorce in blind rage."
Abu
Dawud interpreted it to mean "anger," while another interpreted it to mean
"by force." Both are correct.
He should have the intention to divorce his wife and to be actually separated
from her. But if he makes of the divorce an oath to swear with, blackmail
or threaten, it will be invalid, as some ancient scholars have said. This
is reiterated by the well-versed jurists Ibn Al-Qayyim and his Sheikh Ibn
Taymeya.
If such types of divorce are not valid, what remains is the intended, premeditated
divorce which is reflected upon and studied by the husband before approaching
it, and which he sees as the sole cure for an unbearable life. This divorce
is described by Ibn `Abbas as "the divorce which is only according to an
aim (an intention). [
Mentioned by Al-Bukhari in Section 11, "Book of Divorce" (6/168) on the
authority of Ibn Abbas.]
However, when divorce takes place, it does not utterly cut off the marriage
tie and make it irremediable. On the contrary, as mentioned in the Qur'an,
divorce gives every divorced man two chances to go back and redeem the
situation. If the divorces occur one after another, and if the two times
do not succeed in changing their minds, the third divorce is the final
and decisive one, after which the divorce cannot return to him unless she
has first been married to another man (and widowed or divorced from him).
Therefore, putting the three chances given by Allah in one utterance is
against the decree of the Qur'an. That is what is indicated and illustrated
by the Sheikh of Islam Ibn Taymeya and his disciple Al-Qayyim, and what
the Islamic Law courts accept in several Arab countries.
However, divorce does not deprive the divorced woman from taking maintenance
during the legislated period that she stays without marriage (`iddah). [
Iddah is a waiting period. Its duration is usually (a) until she gives
birth if she is pregnant, or (b) three menstrual cycles if she has regular
periods, or three calendar months if she no menses. For details and exceptions,
consult a book of Islamic jurisprudence (Fiquh). During the
iddah the woman is not free to marry anyone else. If it is a reversible
divorce, her husband may choose to take her back at any time during the iddah. If he does not take her back after the waiting period, the divorce
is final and the woman is free to marry someone else, or she may go back
to her husband with a new marriage contract, and he must Pay her a new
dower. (editor's note)] Divorce
does not allow the husband to dismiss her from her home, but forces the
husband to let her stay in her house with him (in the same house); perhaps
sentiments would return, hearts be purified and urges renewed:
"it
may be that Allah will afterward bring some new thing to pass (i.e.
to return her back to you if that was the first or second divorce)".
[Surah 65:1]
Moreover, didoes not allow the man to consume the woman's dower or take
back what was given before: "And it is not lawful
for you (men)
to take back any of your Mahr (bridal money
given by the husband to his wife at the time of marriage) (from your wives)
which you have given them". [Surah 2:229]
She also has the right of mut'a, the amount of which can be decided the
social conventions. " And for divorced women, maintenance
(should
be provided) on reasonable (scale).
This is a duty on Al-Mutaqeen (the pious)".
[Surah 2:241]
That is something general for every divorced woman to appease and compensate
her. [
Muta is compensation or gift made in a lump sum rather than on-going maintenance.
(editor's note)]
It is also forbidden for the divorced man to spread rumours about his ex-wife
or to scandalise her or offend her or her family after divorce:
"either you retain her on reasonable terms or release her with kindness" [Surah 2:229]
"And do not forget liberality between yourselves". [Surah 2:237]
That is divorce as decreed by Islam. It is a cure as it should be, at the
right time, in the right measure, in the right style and with the right
aim.
On the other hand, Christianity has totally forbidden divorce for Catholics;
except in the case of adultery, it is also forbidden by the Orthodox Church.
Their reason is that what is united by Allah (whom they call God) cannot
be separated (divorced) by man. As for Muslims, they believe that Allah
unites and He is the One Who separates (divorces) through His decreed Laws.
Allah makes Laws for His worshippers according to what is in their interest,
and He is the One Who knows them better. The result is that many Christians
have abandoned what is forbidden, which have obliged most Christian countries
to set local laws allowing divorce without the restrictions, ties and morals
of Islam. It is no wonder that many now get divorced for the most trivial
reasons, and their married lives have been subjected to degeneration and
collapse.
They ask, "Why is divorce initiated by the man alone?" The reply is that
the man is the one in charge of the family and is its backbone. He is the
one who pays the dower and what follows until the establishment of the
family is built on his own shoulders. Therefore, it is very hard for him
to destroy that establishment except for powerful reasons and inevitable
necessities which would make him sacrifice all these expenses and absorb
these losses. A man may be less hasty as he is less affected by emotions.
As for the woman, she can be very affected by emotions, especially during
the menses. What is more, it may not be in the parties" interests to leave
the divorce to a court because not all the reasons for divorce are meant
to be public, to be transmitted by lawyers and writers to become the subject
of gossip on everyone's tongue. Yet, in the West divorce is achieved through
court. This does not lessen divorce, nor does the court stand in the way
of the man and woman who seek divorce.
This is an important question for a great number of people: "`If divorce
is initiated by the man-and we already know the reasons and justifications
for this-what, then, is decreed concerning a woman's initiating a divorce?
What is her way to get rid of the injustice of the husband if she loathes
life with him for his harsh temper, his ill conduct, or for not performing
his duties in an obvious way? Or there could also be physical or financial
impotence which prevents him from fulfilling these duties, or other reasons.
The answer is that the Judicious Law-Maker (i.e. Allah) has made several
outlets for the woman through which she can overcome her dilemma:
1 - Her condition in the marriage contract to have divorce in her hands,
which is eligible according to Abu Hanifa and Ahmad. In the authentic Hadith,
"The
truest condition is that which you made lawful, to have physical intercourse".
[
Mutafaq aley (agreed upon) according Uqba Ibn Amer, The Pearl and the Coral (Al-Lu'lu'
wal-Marjan) (2/894).]
2- By paying a ransom (Khul'). A woman who dislikes her husband can ransom
herself by repaying what she took as a dower and things like that. It is
not fair of her to be the one who wishes for the divorce and the destruction
of the marriage bond; and then the husband becomes the only loser. Almighty
Allah says:" Then if you fear that they would not
be able to keep the limits ordained by Allah, then there is no sin for
either of them of she gives back (the mahr
or part of it) for her al-khul' (divorce)".
[Surah 2:229]
According to the prophetic traditions, Thabet Ibn Qais's wife complained
to the Prophet (blessings and peace be upon him) of her strong loathing
of her husband. The Prophet (blessings and peace
be upon him) asked her, "Would you give back his orchard?'1-which was her
dower.- She answered, "Yes." The Prophet (blessings and peace be upon him)
ordered Thabet to take back his orchard and nothing more. He asked the
husband to utter one irreversible repudiation". [
Transmitted by Al-Bukhari (6/170). "Book of Divorce" division 112, on the
authority of lbn Abbas.]
3- Divorce through two arbitrators when there is a breach between husband
and wife. Allah has said: "If you fear a breach between
them twain (the man and his wife)
appoint (two) arbitrators,
one from his family and the other from hers; if they both wish for peace,
Allah
will cause their reconciliation". [Surah 4:35]
The Qur'an's calling that family council the "arbitrators" indicates that
the two selected persons have the right to judge and decide. Some of the
Prophet's Companions said to the arbitrators, "If you wish to unite them,
then do so; and if you wish to divorce them, then do so."
4- Divorce for physicalimpotence. If the husband has a weakness
which deprives him of having sexual intercourse, the wife can raise the
matter to court for a divorce in order to prevent any harm touching her.
In Islam, there should not be harm or any harming effect on others.
5- Divorce for injury falling on the wife. If the husband harmed his wife
and hurt her, restricted her unfairly, such as by refusing to sustain her,
for example, she can ask the judge to divorce her. In such a case, the
judge will force a divorce to put an end to harm and injustice on her.
The Almighty says: " But do not take them back to
hurt them". [Surah 2:231]
The Almighty also
says: "either you retain her on reasonable terms
or release her with kindness". [Surah
2:229]
One of the injuries befalling a wife is to be struck without provocation.
And some scholars of Islam have gone so far as to divorce a wife from her
poor husband if he failed to sustain her and she asked for divorce. Islamic
Law does not commit her to be patient when it comes to hunger with a poor
husband if she does not accept it out of loyalty and nobility.
With these outlets, Islam has opened many doors for a woman to be liberated
from the cruelty of some husbands and their being domineering without having
the right to be. [
See "The Right of the Averse Wife in my book Contemporary Legal Opinions (Fataawa
Mu'aserah), 2/361-366]
The laws laid down by men may
be against the rights of women, but the Law decreed by Allah, the Creator
of men and women, is a Law void of injustice or prejudice. It is perfect
justice: "And who is better in judgement than Allah
for a people who have firm Faith". [Surah 4:129]
It remains to say that a great number of Muslims have abused divorce and
have set it in the wrong place, making of it a sword pointed at a wife's
neck. They have used it as an oath to swear with about everything great
or small. Moreover, many jurisprudents have widened the scope of divorce,
even to include the divorce of the drunkard and the one in wrath, and also
the forced one, though the Hadith says, "No divorce
in blind rage". [
Transmitted by Abu Dawud - his own wording - (3133), Al-Termithy (1141), Al-Nisa'i, 7/63, Ibn Majah (1969),
Al-Doramy p.539, and Ahmad, 2/347,471.
All on the authority of Abu Huraira.]
Ibn `Abbas says, "Divorce
is only according to an aim (an intention)." But they take seriously
the three times a man mentions divorce in one utterance in a state of anger,
meant to be a threat in a fight outside the house, though he is totally
happy and satisfied with his wife However, what is indicated in the texts
and the intentions of the forgiving nature of the Islamic Law, in order
to establish a family and protect it, is to narrow the scope of divorce.
It is not valid except by a certain utterance, at a certain time, with
a certain intention. We owe this to Allah; that is what Imam Al-Bukhari
and other predecessors perceived, and which has been confirmed by Ibn Taymeya
and Al-Qayyim and others. This expresses the spirit of Islam. As to miscomprehension
or misapplication of the rules of Islam, it is the responsibility of Muslims
not of Islam.
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