Chapter 8: Divorce
"When ye divorce women, and they fulfill the term of their (IDDAT). Either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them; (or) take undue advantage if any one does that, he wrongs his own soul . . .".(II : 231) "For those who take an oath for abstention from their wives, a waiting for four months is ordained; if then they return, God is oft forgiving, most merciful". (II : 226) see also (II : 226-232) Except in an extreme case where a woman, owing either to utter incompatibility of temperament or cruel treatment on the part of the husband, is compelled to seek redemption - a privilege which in Arabic is called "KHULA" (IV -127) in Islam the right to divorce a wife vests in the husband, on he ground that it is he who maintains her. Notwithstanding, the whole trend of the law of divorce in Islam is in favor of the wife. She is alone held to be the aggrieved party and the husband as the aggressor. And no wonder ! for the Holy Prophet (PBUH) is reported to have said that the thing which law allows but which is most repugnant to God is. A perusal of the various verses in the Qur'an repeated to divorce, will show that Islam in the first place tries to prevent a divorce, by putting checks and counter checks on it as far as possible, but when a divorce becomes inevitable, it not only makes the lot of the divorced woman as comfortable as possible by enjoining kindness towards them, but saves them also from dishonor. Now to appreciate properly the Islamic law of divorce it is necessary to know what the position of women in Arab was before the advent of Islam. There was no limit as to the number of times a pagan Arab could divorce his wife and still retain the right of recalling her. All the while she was ill-treated and was not allowed to marry any one else unless and until he permitted her to do so. His will in this respect was absolute. Islam put a stop to this cruelty. The maximum number of times a Muslim could pronounce a divorce against his wife and still retain the rights of recalling her or of reconciliation has been limited to two only (II:229). Even when no divorce is actually announced but when a man by an inconsiderable oath takes a vow to abstain from his wife, he is given only four months to come to a decision one way or another, i.e. either to reconcile or to divorce her. He is not to keep her in suspense any longer. (II : 226-227). These verses are clear enough; they say in so many words to a disgruntled husband; "You shall not keep your wife in suspense for more than four months, decide in the meantime finally, otherwise you lose your wife". For according to commentators, if the conjugal relationship is not re established between husband and wife within four months, the marriage is held to be automatically dissolved. Not only that, but, if before reconciliation, the wife gets her periods thrice, a fresh marriage ceremony is necessary between them before they can come together again. This is really to prevent a man taking unduly long to come to a decision on the point, for the very idea of a man having to remarry his own wife after an estrangement is certainly not a very inviting one and thus in itself acts as a deterrent.
How and when a divorce take place? Answer: Divorce takes place when a husband pronounces the customary words, "I divorce you". It is not necessary that his wife should be present or should hear the words herself. The normal situation is that divorce is started by the husband. Exception is made if at the time of marriage the wife stipulates that she has the right to divorce her husband and he consents to that. If divorce is pronounced in the presence of the woman, then the divorce process is started immediately. She begins her waiting period and claims whatever rights she may have against her husband. If divorce takes in the absent of wife, it is effective also from that very moment, but it is obligatory on the part if the husband to inform her of it. Her waiting period begins from the time the word is pronounced, not from the time when she learns of it. If the news is sent by letter which is phrased in such a way as to say; "This is to give you notice that when you receive this letter of mine you are divorced", then the divorce takes place at the moment of her receiving the letter. If the letter is lost the divorce does not take place because it has been made conditional on her receiving the letter. Scholars are unanimous that divorce cannot take place unless it is pronounced by words. If it remains in the husbands mind without being given verbal expression. Then it has no effect whatsoever. It is however, for preferable that the husband should not loss with the idea for a long while. If he happens to have a row with his wife. It is more appropriate to try to solve the problem with reason and wisdom. If he feels that his married life cannot continue he should take a positive step and dissolve the marriage. If on the other hand, he wants to keep his marriage, then he should not allow the thoughts of divorcing his wife to disturb him frequently.
If a divorce takes place before the consummation of the marriage, is it necessary for the wife to observe the waiting period? Answer: If the marriage contract is made and divorce takes place before the consumation of the marriage, the woman does not observe any waiting period or "Iddat". If a dowry is agreed, then she is entitled to half of it, unless she willingly forgoes it. She is recommended to do so in the Qur'an. If no dowry is agreed or specified, the husband should give her a present according to his means.
If a man is in a state of blind anger pronounces the words of divorce to his wife is it considered a valid divorce? Answer: There are certain persons who may utter the words of divorce and the marriage is not affected. These people include any one who is in a state of blind anger. In order to make things easier to understand, let us remember that if a mad person utters the word of divorce his wife remains married to him. This is because a mad person does not have proper control over his actions or his utterances. If a person who is not mad looses his temper to the extent that he does not understand what he is saying, his divorce of his wife, if it happens when he is in that state, is not valid. He is deemed to have temporarily lost control of what he says or does. It needs to be pointed out, however, that every case of anger is sufficient grounds for invalidating divorce. If the angry person understands what he says and its significance, then he must stand by what he says. His divorce is valid. It follows that in such cases the person concerned himself is the only one who is able to determine whether he knew and understood what he said or not. Allah certainly knows the exact situation. The person concerned should not imagine that he can deceive Allah. To try to deceive Allah in such a case is to persuade oneself that to live in sin is the same as to have a valid marriage. People may go to seek the advice from scholar. No scholar can judge in what state a person was when he divorced his wife. He can only go by what he is told by the people concerned. They can only tell people Islamic rulings as they have learned them and cannot judge what was the persons situation or the circumstances at the time.
Could you explain whether the pronouncement of divorce three times at the same time and place constitutes divorce once or three times? Answer: If a person pronounces the word of divorce three times at the same time or place as unfortunately many ignorant Muslims do, then the divorce is counted as a THIRD TIME divorce. According to major schools of thought, it considers each pronouncement of divorce as a complete and separate divorce, i.e. it counts as a triple divorce which requires a marriage between the wife and another man, before the divorced couple can be remarried. Some scholars of high repute, among them Ibn Tamiyah who was an Imam in his own right is of the opinion that it counts as a single divorce only. Whichever view one takes, one must remember that this is a matter of religion as well as a matter of the future of a family. Hence, it must be taken very seriously. The argument of Ibn Tamiyah carries a lot of weight and seems valid. This is the reason why a number of Muslim countries adopt his opinion in their personal laws. In Saudi Arabia, most judges in Islamic courts follow the Hanbali school of thought, which, like the other three, consider this divorce a triple one. Some judges, however, may take the other opinion I have explained. The personal law in several Islamic and Arab countries, notably Egypt and Syria, have opted for the other opinion which relies on authentic Hadiths by the Prophet (PBUH).
Please explain the process of divorce and the workings leading to a third time divorce? Answer: The confusion arises from the fact that many people believe, or under the impression, that for divorce to take place the man needs to pronounce the word of divorce, i.e. to say to his wife "You are divorced" three times. This is not true. Indeed, the Prophet (PBUH) was very angry when he was informed that some of his companions did that. To pronounce the word of divorce once is sufficient for the divorce process to start. A divorced woman then starts her waiting period which extends over three menstrual periods or three periods of cleanliness in between her menstruation periods. If she is pregnant her waiting period expires when she gives birth. During that time, she remains in her husbands house, but they cannot have sexual intercourse if they wish the divorce process to take its full course. During this waiting period, her husband has the right to revoke the divorce and resume the marriage if both agree. They do not need to have a fresh marriage contract or a fresh dowry. When the waiting period is lapsed she leaves her husband home and she is free to marry someone else. If the remarriage takes place after the waiting period has lapsed, a new marriage contract and dowry are needed. If a couple goes through this divorce period twice and are remarried for the third time, then they get divorced again. At this point they cannot remarry unless the woman has married someone else and was divorced by him in the normal way. This is what Allah tells us in the Qur'an. "A divorce is only permissible twice. After that, the parties should either hold together on equitable terms, or separate with kindness". (II : 229). I must mention here, that during her waiting period a divorced woman stays in her husband's home. That does not means that the situation within the home remains unchanged. Divorce is not a court sentence. Its effect comes immediately. Separation between the couple takes place the very moment the word of divorce is pronounced. Each of them eats alone and sleeps alone. She does not serve her former husband as she used to. She does not even wash the dishes. They become like flat mates who have quarreled over something and each of them begins to have little to do with the other. Indeed here the separation is complete. While she is entitled to be respected and treated honorably that does not mean that the two former partners have the same relationship which they maintained before they were divorced. The new situation created by the word of divorce is a very delicate one; On the other hand, it gives a chance for reinstatement and the divorcing husband may be able to upset his former wife and cause her some mental if not physical injury. From another point of view, a divorced woman finds herself in a totally new situation and would not know where her maintenance would come from. In order to solve this situation in the most amicable way, ensuring the rights for all concerned, Islam makes it absolutely clear that a divorced woman in her waiting period must be treated with honor and respect. Moreover, she has to be maintained by her former husband in the standard to which she has been used to. When there conditions are met, it becomes possible for the waiting period to serve the purpose of cooling and allow the estranged partners to reflect anew on their new situation. Who knows, they may decide that the divorce was a terrible mistake and they would rather stay together and resume their married life. With the waiting period, they can do that easily, no one would have to come in between them to create an impediment to the resumption of their life together.
Can a woman divorce her husband even if he does not approve of such a decision? Answer: Allah has given the right of divorce to the man in any marriage because it is he who bears all the financial commitments which result from this relationship. He has to pay a dowry to his wife and provides a home for both of them and their children. He has also to support his wife financially, even if she is rich. When a man divorces his wife he again takes upon himself certain financial commitments. Apart from the balance of her dowry if any, and he pays her maintenance during her waiting period and gives her a present, i.e (mataa). Also a woman has no problem of payment of dowry on remarrying. If she has an income and she shares with her husband the expenses of her married life, it must be known to both of them that she has no obligation to make such a contribution. She does it voluntarily because the benefit goes to her own family. The distribution of financial responsibility is the main reason for the fact that Islam gives the right to divorce to the man. This right can be exercised by the wife only if it has been agreed between her and her husband and he relinquishes his right to her. In other words an agreement must be entered between them which gives the wife the right to divorce if she wants to do so. if this condition is not stipulated, then the woman cannot divorce her husband either verbally or in writing, in his presence or in his absence. Since she cannot have the right to do so, she cannot exercise it. If she pronounces the word of divorce or writes it, the words have no validity and the marriage remains valid as if nothing happened. When matters reach such a stage between a husband and his wife and where there is no doubt that separation seems the better solution. Then a divorce can be granted by the courts at the request of the wife. There are certain elements which must be present in every marriage or it to bring a measure of happiness in both partners and to their children. When these elements are absent, the marriage suffers and happiness becomes a very dear commodity in the home. These elements are the ones which the Qur'an describes as affection and compassion. If it becomes clear that this does not exist anymore then it is advisable that the man and wife should part company. The sooner the husband realize it the better for both of you. If the husband for reasons of his own be they selfish or otherwise, does not ask for a divorce, there is a procedure called "KHULA" which means the termination of a marriage at the wife's request. The Arabic term means that the woman in this case splits herself out of this marriage relationship. It involves a refund by the wife to her husband of the dowry he paid her or a compensation which may be any agreed amount. Islam recognizes that there are situation when a woman finds it intolerable to continue to live with her husband. Being a practical religion, Islam provides a solution to such a problem. As always the solution considers the rights and interests of all parties involved. Since in Islamic marriage the bridegroom pays a dowry to his bride, it follows that he expects to receive something in return. That is the case which a man expects from his wife. It is not difficult to imagine that a husband is adversely affected by a divorce to which he does not agree. Moreover, the dowry which a husband pays is made on the understanding that he will get the benefit of marriage for as long as he and his wife live. When the woman applies for the termination of the marriage, it is only fair that she should refund to her husband the dowry he gave her in the first place. Sometimes, to refund the dowry is not in any way commensurate to the damage which befalls a man whose wife leaves him. The dowry might have been nominal or the level of dowries may have become several times higher as a result of inflation as any other case, or the husband may have become too old to find a new wife who would agree to marry him for the some dowry. It is, therefore, permissible to ask the woman who wants to be divorced to pay compensation to her husband. The compensation should be agreed between the two partners amicably. The situation occurred at the time of the Prophet (PBUH) when Habeebah bint Sahl who was married to a companion of the Prophet (PBUH) called Thabit ibn Qais come to the Prophet (PBUH) asking for guidance. She said "it is about my husband, Thabit ibn Qais, that I have come to speak to you. I have nothing to say against his character or his strength of faith, I however, hat to revert to disbelief after I have become a Muslim". What she meant was that she found life intolerable with her husband. Other reports suggests that the man in question was far from handsome. His physical appearance always brought home to her that there was something wanting in her life. When the Prophet (PBUH) sounded her husband about divorcing her, he mentioned that he had given her as a dowry an orchard which was the best property he had. The Prophet (PBUH) asked her whether she was willing to give him back his orchard, and she said that she was prepared to give him more if he wanted. The Prophet (PBUH) said to him; "accept the orchard and divorce her once".
Could you please detail the Islamic conditions laid down for the maintenance of a divorcee? Answer: According to Islam a woman who is divorced by her husband is entitled to maintenance during her waiting period which continues for three menstruation periods or three periods of cleanliness from menstruation, or for three lunar months if she does not menstruate, or until she delivers her baby if he is pregnant. She is also entitled to stay in her husband's home during her waiting period, without having sexual intercourse with him. This is always provided that the divorce is revocable one. That is, it should be first or second time divorce which means that the couple may be reunited in a marriage bond if they wish. If there is any part of the woman's dowry still outstanding at the time of divorce, then she is entitled to receive that as well. when the waiting period is over, the woman has no claim on her ex- husband. What she is paid during her waiting period is in return for the fact that she cannot marry again during that period unless she and her divorcing husband make up and wish to be reunited. In other words, she is waiting in the interest of Her marriage, so that she and her ex-husband may have a chance to think again. In certain Islamic countries, family laws stipulate that if the collapse of the marriage is attributed to a fault by the husband he may be required to give his divorced wife in addition to her maintenance in her waiting period and her outstanding dowry, the equivalent of Her living expenses for one year. This ruling is based on two verses in the Qur'an which is rendered in English as follows: "For divorced woman maintenance (should be provided) on a reasonable (scale), this is a duty on the righteous". (II : 241). also "O Prophet ! say to thy consorts ; If it be that ye desire the life of this world, and its glitter then come I will provide for your enjoyment and set you free on a handsome manner". (XXXIII : 28). Both these verses mention "Provision" for divorces, without giving any qualification which restricts the beneficiaries of such provision to any particular group of divorce women. Hence, they apply to all divorcees, making the provision mentioned, or to use the Arabic term "MATAA", applicable in all cases of divorce. This is, however, the ultimate of what may be claimed by a divorced woman according to Islamic law. Taken within the context of the Islamic social system, it is fair to both the divorcing man and the divorced woman. According to Islam, a woman is entitled to be provided for by her husband if she is married, or by her father if she is not. When a woman is divorced she returns to her parent's home where she enjoys the some rights as before her marriage. In other words her parents are required to support her. If she has no parents, then her closest relatives must support her until she is married again. If she has adult children, they are required to look after her and support her by way of duty, if she has no relative to support her, then the Government is required to make her on allowance which satisfies all her needs. This means that a divorced woman will not be left to the streets to beg, and will not be forced to accept any unbecoming or unsuitable employment in order to survive. There will always be someone to look after her wither a close relative or the state. In view of that, there is no case for imposing on her ex-husband the obligation of supporting her for life. If every man who divorces his wife will be required to pay her maintenance for the rest of her life, we sow the seeds of division, hatred and hard feelings in society. We also provide the temptation for the man to evade legal requirements and for the woman to act immorally. Since divorce comes generally after friction and conflict between the two partners, there is also the temptation to seek vengeance by hurting the divorcing husband and placing a financial burden on him. |