Our beloved Prophet (SAWS) says that the most detestable act that Allah has permitted is divorce. In fact, Islam does not encourage divorce. Prior to the advent of Islam, there were two extreme views regarding divorce. In some societies and religious doctrines, divorce could be sought only on the death of one of the spouses or when adultery had been alleged and after divorce neither spouse was permitted to remarry.
In some other societies, it was very easy to break the bond of marriage and no check was there against the abuse of the practice of divorce. It is noticeable that, in the present world also, in some states of the USA it is possible to divorce, get remarried and then divorce again whimsically within the space of one day. (Source: Islamic Teaching Course, Vol.3, by Dr. Jamal A. Badawi). In fact the consequence of both the over-restriction and the over-liberalization is harmful. In the case of the over-restriction, i.e. to keep an unsuccessful marriage intact, there occurs a permanent bitter and hostile relation between the husband and wife. Whereas in the case of the over-liberalization, the family as an institution disintegrates and the society as a whole suffers. In contrast to these extremes, Islam takes a moderate view on divorce. In order to remove the misery of an unsuccessful marriage, Islam supports divorce as the last and final resort only to liberate both the spouses from the bitterness of the relation. And in Islam divorce can only be pursued when all other avenues have been taken to reconcile the couple but have come to no avail.
In fact, Allah (SWT) has given us the laws keeping the nature of human beings, with all their capabilities and limitations, in His mind. Verily it is in Allah's mind that husband/wife, being prompted by anger or haughtiness, can take an unpremeditated reckless decision regarding divorce. Hence Allah promulgates a long process of ninety days by three consequent steps of divorce and the spouse can change his/her decision within this period.
Ours is a society where there is an awful misunderstanding about the issue of divorce. If the husband utters Talak or divorce three times in the same breath, it is considered an irrevocable divorce and there remains no chance of reconciliation between the couple. And under this strict view, which is not supported by many classical and the modern Islamic scholars, many families are broken and the women and children are mostly affected. According to the view supported by many modern Islamic scholars, three or more utterances of divorce at a time are regarded as only one Talak (divorce). But, according to all scholars, to utter such number of divorce at a time is not encouraged in Islam and the person who pursues this undesirable system will be considered sinful. If it is held to be irrevocable and the final divorce, then the option offered by Allah to take back one's wife within 90 days becomes frustrated. In consequence the rate of the dissolution of marriage increases and, as a matter of course, more women and children will be helpless.
However, the competent Islamic scholars should remove, whatever may be the legal position, the misconceptions about Talak. If all the reverend Imams of the mosques in the country take the lead in the matter and start a social movement so that none gives 3 Talak at a time, it will be a big step forward.
Some people raise the question regarding the right of wife to pronounce divorce in Islam and many misunderstandings are there in our society centering this issue. In Islam woman is deprived in no respect and any question of injustice or anti-woman bias is inconceivable as Allah (SWT), the Lawgiver, is independent of any consideration of sex. In Islam wife is fully entitled to initiate or pronounce divorce though the procedure is different from that of her husband. If the husband is missing for a certain period of time or an indefinite time, or if he suffers from a fatal incurable disease, or if he is sexually impotent, and in some other cases and circumstances, the wife is given every right to initiate divorce. Moreover, if she suffers unhappiness, misery or incompatibility with her husband, then also she can do it with the intervention of court. There is another system of dissolution of marriage by the woman that is called "Khula" through which the wife can get separation from husband by returning the marital gift or part of it. It is not necessary that she should have a definite ground for pursuing Khula. Thus we see that both the husband and the wife can initiate divorce in Islam though the procedure is different.
The husband seems to be given the right to practice divorce arbitrarily; but this is not really so. In pursuing divorce the husband encounters financial disadvantages as he married his wife by giving her mohr (marital gift) and he is bound to give it to his wife at the time of dissolution of marriage if it is unpaid yet. Moreover, he will have to pay mohr for the second time if he wants to get married again. To make my point clearer, herein, I am quoting Dr. Jamal A. Badawi, a prominent Islamic scholar of the present time. He says, "Although both husband and wife suffer as a result of a divorce (psychologically for instance), a man has the additional burden of a heavy responsibility. He loses the whole of marriage gift, the wife is entitled to maintenance whilst in the waiting period (which can be as little as three months or as much as nine months); she is entitled to child maintenance if young children are in her custody; according to some jurists she would also be entitled to a consolation maintenance for a year etc. The fact that a husband who has so much to lose financially if he divorces his wife acts as a natural deterrent from abusing his right of divorce. If Muslim women had such a right, however, there would be no such check on them because they do not have any financial responsibilities towards their husbands." But it does not mean that Islam does not give the wife the right to break the marital bond when she wants so. It only checks the abusing of such right.
Discussing the conditions under which a wife can unilaterally divorce her husband without seeking the court's approval, Dr. Jamal A. Badawi pointed two situations:
The grounds on which a wife can seek divorce from her husband in the courts are:
"There are two methods of divorce by mutual consent:
"So the lack of an unconditional unilateral right of divorce does not prevent a wife from seeking divorce from her husband, if she has good reasons for it, in any of the ways described above."
It is true that, in most cases, the rural wives are deprived of the right to divorce (and also of many other social, political and religious rights). It is because of the failure of the governments of the Muslim countries and the leaders to educate them and inform them of their rights. The system of Khula Talak is not cumbersome as termed by some people of inadequate knowledge about Islam. It is a very easy procedure and the people should be informed about and be educated in it.
The guardians and the leaders of the Muslim Ummah should deem it their religious and moral responsibility to launch a social movement in order to establish the proper right and dignity of womenfolk. Allah (SWT) has enjoined it on us to strive for the cause of the oppressed men, women and the children. (Ref. Al-Qur'an 4:75).
by Md. Mahmudul Hasan