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Published: Fri, 02 Feb 2018
There are many reasons for marriage dissolution.
The phenomenon of marriage dissolution had existed before Islam and has persisted ever since. Indeed, if the contemporary world situation is indicative of any trend, it appears to foretell a continuing increase in divorce rates; the gradual decline in some societies is offset by the continuing rise in others. However, Islam has taken a position between categorical proscription and unqualified liberalization of divorce. It neither instituted the practice nor ignored its reality and occurrence. An outright prohibition would probably remain an ‘ideal’ or merely a state of mind, but hardly a pattern of actual behaviour, because absolute self-control is not always attainable. Such a prohibition, then, would seen incompatible with Islamic ideology which, as a matter of principle, prescribes only what is humanly attainable. On the other hand, any unregulated liberalization of divorce is socially inconceivable. Instead of demanding the impossible or catering to the intolerable, Islam adopted a position which has been variously characterized as ‘lax’ and loose by some observers, ‘rigid’ and inflexible, or moderate and perfect by others.
It is obligatory e.g., where there is no conceivable way of reconciliation or hope for peace between the parties. It’s highly recommended or nearly obligatory if the wife is unfaithful or defiantly inattentive to her religious duties. It’s forbidden legally and/ or religiously during the wife’s monthly course and also during the interim in which an intercourse has taken place. It’s strongly undesirable or nearly forbidden where there is no good reason for it, because it would be harmful and Muslims are forbidden by their religion to initiate harm or inflict injury upon one another. Finally, it’s lawful when there is a valid ground for it, like recurrent inconsiderateness or failure to realize the objectives of marriage.
Even then, it is designated by the Prophet (pbuh) as the most repugnant, in the sight of Allah, of all lawful things; it is an act which shakes the throne of Allah as it were.
The permissibility of divorce in Islam is thus only one of several religio -legal categories and represents an alternative course of action, which is admissible in response to certain basic human needs. But beyond this general response, there are some peculiar factors bearing on the position of Islam. One of these is that, in Islam, things as such are lawful in principle. They become forbidden or undesirable, obligatory or commendable according to other elements of the situation. Finally, Islam has been characterized as the religion of the middle but straight and well-balanced course.
Islam regards divorce as both real and lawful in principle, however undesirable or repugnant. This recognition has elicited different reactions from different scholars. To understand divorce in Islam as most Muslims do or believe it should be understood, it’s necessary to go beyond the face value of such simplistic misconceptions whether they originate with certain disoriented Muslims or mistaken outsiders.
While Islam takes for granted the continuity and permanence of marriage, it does not entirely exclude the other possibility. People’s hearts and minds change in different ways for different reasons. The Qur’an declares that if parties fear that they will not be able to observe Allah’s limits or implement His law of marriage, then a divorce may be negotiated. The general ground of divorce in the Qur’an is therefore the hopeless failure of one or both parties to discharge their marital duties and to consort with each other in kindness, peace and compassion.
Jurists agree in principle that certain situations peculiar to the husband’s position justify the wife’s request for a divorce and the implementation of that request. Long absence without knowing the whereabouts of the husband, long imprisonment, capture by war enemies, refusal to provide for the wife, severe poverty, and impotence are the major circumstances under any of which a wife may, if she so desires, seek a legal release from her marriage bond by way of divorce or annulment, depending on the particular situation. There is another set of circumstances which may involve either party. These are: desertion, serious chronicle diseases, insanity, deceptive misrepresentative at the conclusion of marriage contract, incongruity, mistreatment, and debauchery or moral laxity. If one party is involved in any of these situations, the other may justifiably seek a divorce or annulment. There are also circumstances which necessitate the dissolution of marriage. Some of these are the wife’s acceptance of Islam when her husband remains non-Muslim, apostasy of a Muslim party, particularly the husband, and established invalidity of the initial marriage contract.
The Timing of Divorce and the Preceding Steps
The timing, the preceding steps, and the consequences of divorce, as well as other related factors, already or to be considered, all seem to represent checking points and impose certain limitations on divorce. To begin with, before a divorce takes place as a final legal action, several conditions must obtain.
– The husband who initiates a divorce must be of age and capable of ‘discrimination’, a state usually measure by the age of puberty.
– He must be sane, conscious, alert, and free from excessive anger. If he acts while under the influence of intoxication, his divorce pronouncement is void, according to some Jurists; valid according to others, provided the intoxicant is of the prohibited kinds and is used voluntarily. Parenthetically, validation of divorce pronouncement by an intoxicated, jesting, or thoughtless man is probably intended to discipline the man and awaken him to the seriousness of his action, something perhaps similar to what ‘Umar did with people who took the divorce formula lightly.
– He must be free from external pressure. If he is forced to divorce his wife against his will and he, under pressure, so pronounces her, the pronouncement is void, according to all schools of law except Hanafi, whose position in this respect is regarded by other Jurists to be clearly incompatible with the statements of the Prophet.
– There must be a clear intention on his part to terminate the marriage. Some schools, however, accept as valid the divorce pronouncement of a jesting and thoughtless or forgetful husband.
– Finally, if a divorce is to take place according to the Prophet’s Sunnah, i.e instructions, the wife must be of age and in state of ‘fresh purity.’ That is, she must be fully recovered from the menses of the regular menstruation and the usual postnatal fluxes, whose maximum time spans are about ten and forty days respectively. In addition, she must not have had an intercourse at any time during this period of fresh purity, which covers the whole interim between the monthly courses. If she is experiencing her period or the postnatal flux, or if there has been an intercourse after recovery and purity there from, the wife’s state is considered impure and there can be no Sunnah divorce. Under these circumstances, a divorce pronouncement is both religiously forbidden and legally void according to the Shi’i and Zahiri schools of law.
This so-called Sunnah divorce requires the wife to be in a state of fresh purity for the following reasons. First, menstruation is called by the Qur’an ‘hurt’; its term is a difficult time of fatigue, depression, irritability, tension, etc. Much of this is due to the wife’s physical condition, which makes her sexually both undesirous and undesirable, and also to the husband’s unfulfilled needs. Intercourse is forbidden during all such times of impurity. All these factors may lead some parties to act hastily or misjudge each other. It’s required therefore that they wait for these periodical difficulties to pass and then act, if they must, under normal conditions. Secondly, when the wife enters her period of purity, she is usually fresh and pleasantly companionable, both desirous and desirable, more considerate and responsive. She has not only her capacity, but also the opportunity to strengthen the marriage tie and command the husband’s love, compassion, and devotion. If, in spite of this, there is a desire to dissolve the marriage it will be, presumably, for some serious reasons other than a passing fatigue, momentary depression, or casual unfulfilment. A divorce contemplated under these congenial circumstances is unlikely to be rash, thoughtless or irresponsible.
Among the factors bearing significantly upon divorce is the light in which Islam views the contraction and dissolution of marriage. Although, as previously shown, marriage is neither a civil act nor a sacramental vow, the Qur’an defines it as a solemn covenant, a God-given blessings, and a means of love and compassion. To maximize the probability of continued marital happiness, without unnecessarily hardening the lot of the marriageable, Islam gave unequivocal preference to piety and integrity as the most commendable criteria of mate selection.
Divorce in islam is designated as the very last and the most detestable recourse. Before the breaking point is reached, certain phases in the marital cycle must pass. First, as soon as the marriage is concluded, the partners are enjoined to do their utmost to implement the teaching of Islam, so as to render their married life an abode of bliss and compassion. If this level of harmony is not attained because of some conflict, attention should be paid to the source of conflict. Secondly, should conflict, overt or covert, originate with the wife, the husband is directed to consider the whole situation carefully, to search his own soul, to judge his wife as a total person, to act patiently, responsibly, and charitably.
Thirdly, if the conflict become chronicle and the husband fears the wife’s defiant recalcitrance, he is instructed to follow a phased a disciplinary course of three steps. He should allow sufficient time intervals and move from one step to the next only after having tried in earnest the previous one and found it of no avail. This disciplinary course has three phases :
(i) kind exhortation,
(ii) temporary abandonment in bed or deliberate abstinence from the usual sexual intimacy,
(iii) symbolic beating without inflicting any physical harm or injury.
Fourthly, in case recalcitrance and conflict persist, the husband may yet consider a severer course of abstention more indicative of his displeasure. This is the course of ila (vow of continence), which means that he may take an oath by Allah to abstain completely from intercourse with his wife. This was a pre-Islamic practice of indefinite suspense, and it may be likened to the contemporary form of ‘legal suspensive separation.’ In Islam, however, after taking the oath of ila, the husband is allowed a maximum period of four months to reconsider the situation and make up his mind. If there has been an improvement sufficient to encourage him to resume his full marital status, a reunion is highly commendable, and the parties are Allah-forgiven. Otherwise, if the period expires without any significant change, a divorce will be acceptable to Allah.
Fifthly, if the conflict originates with the husband and the wife fears his cruelty, desertion, or aversion, it is their joint obligation to settle their differences together for, as the relevant Qur’anic statement has put it, ‘peace is best.’ She may try in her own way to make peace, and he should respond to her initiative. The two together must cooperate to solve their internal problems between themselves.
Sixthly, should these private measures, alternatives, and remedies fail to bring about a viable harmony, one final detour must be taken before the breaking-point of divorce. A family council of two arbitrators representing both sides shall be selected to look into the situation with a view to settling the dispute. If they see any possibility of reconciliation and so recommend, it should be attempted. But if they recommend a divorce as the only solution after the failure of arbitration, then a divorce may be entered into, unless the principles choose otherwise.
The “How” and the Type of Divorce In Islam (Revocable Divorce)
The Sunnah Divorce and Its Variants
Divorce can be classified in various ways along several dimensions. One of these classifications is the Sunnah and the contra-Sunnah divorce. The former has three basic variants.
– The Simple Revocable Divorce
When it becomes clearly evident, after the exhaustion of all the other peaceful means of reconciliation, that divorce is the only recourse left, this should be concluded according to the Sunnah. That is, if eligible, the man will pronounce his freshly pure wife divorced, using specific terms, before two qualified witness, and in a simple revocable divorce. This form of divorce doesn’t terminate the marriage completely, much less does it necessarily entail any resentment or unkindness. The man is obliged, to keep the woman in the same home or at least furnish her with a comfortable residence, which will be easily accessible to him. She may not be evicted from her home nor should she leave it, unless she has committed a manifest offense of indecency. Moreover, he must provide for her adequately as if no divorce had taken place. These particular obligations continue through the probationary “waiting period”, which usually lasts for about three months, except if the wife is pregnant. If pregnant, the woman is forbidden to conceal her condition, because pregnancy may be a good omen for both of them.
“O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah. and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation.” [Ath Thalaaq, 65: 1]
If during the probationary period there develops a desire for reconciliation, which is probable in the light of these conditions, it should be fostered. The man may resume his marital status by simply revoking his previous pronouncement in words or in deeds, e.g., by paying the woman a suggestive compliment, kissing her, etc. To facilitate the reunion, nothing else is required other than this initial revocation. If the probationary period expires without revocation, the divorce becomes ultimate in the sense that she becomes free either to marry a new or reunite with her former husband. But this reunion requires a new marriage contract with all the standard requisites, a stipulation which may deter some rash actions.
– The Double Revocable Sunnah Divorce
Having made the first pronouncement of divorce, the man may wait for the woman to recover from her very next monthly course and enter into a new state of fresh purity. Then there will be three lawful alternatives, the first two of which have already been mentioned in connection with the simple revocable Sunnah divorce. The three alternatives are (a) revocation, (b) waiting for the probationary period to expire, at which time the divorce becomes ultimately final, and (c) making another pronouncement in the same way as the first and with the same implications of residence, provision, revocability, etc. Should the third alternative of making another pronouncement be chosen this will be the second revocable Sunnah divorce.
– The Triple Irrevocable Sunnah Divorce
Here again, after the second revocable divorce, the same three alternatives with the same implications obtain. If the third alternative be chosen once more, it will be the triple irrevocable divorce. At this point, it becomes clear that reconciliation is extremely remote, if not impossible. The thrice-divorced woman, whose final waiting period has expired, is free to marry whomever she wishes. But she is absolutely forbidden to her first husband unless she has remarried in a normally consummated union and, for some valid reasons, become divorced or widowed. Only then may she be lawful again to her first husband through a new full-fledged marriage contract.
The Contra-Sunnah Deviant Divorce
Any divorce pronouncement which is not made in accordance with the Sunnah procedures, as outlined here, is considered contra-Sunnah, unprecedented, or bid’ah (innovation). Such a pronouncement is both religiously forbidden and legally void according to some schools of law. The majority of Jurists hold it as religiously forbidden, but formally valid. Some of these maintain, however, that, while it is formally valid, the man must rescind it even by a court order. Others among these hold that it is highly commendable, but not necessary, for the man to rescind his contra-Sunnah pronouncements. Those Jurists who viewed as legally valid such unprecedented pronouncements followed Umar’s discretion. When people were abusing divorce, he, in consultation with other leading Companions, decided to punish the thoughtless by holding them accountable for their careless pronouncements. This check, it is believed, was effective at the time because marriage then was a costly undertaking, a situation which no longer obtains. For this reason, some contemporary Muslims question the relevance of Umar’s decision to the modern scene.
Irrevocable Divorce in Islam
Level of Irrevocability
The unprecedented contra-Sunnah ‘divorce’ is, in certain instances, merely nominal; it entails no actual divorce formula, yet in most cases it dissolves the marriage bond irrevocably. However, irrevocability is not peculiar to this type. It may result also from some forms of the Sunnah divorce. Thus there are the four logical possibilities:
– revocable Sunnah divorce
– revocable contra-Sunnah divorce
– irrevocable Sunnah divorce
– irrevocable contra-Sunnah divorce.
Irrevocability itself is of two levels: intermediate and ultimate. The intermediate means, among other things, that resumption of the broken marital relationship is forbidden without a new marriage contract. This arises, for example, in the case of ila (the vow of continence) or khul’ (divestiture). The ultimate irrevocability means that resumption of the broken marital relationship is absolutely forbidden, as in the case of a triple divorce, unless there has been a tahlil (a normal marriage to a second man followed by a valid dissolution through divorce or death).
The Basic Variants of Irrevocable Divorce/ Dissolution
Irrevocable dissolution of marriage may take one of several forms with different consequences.
– Ila (Vow of Continence). It was customary before Islam that some men took vows of continence for various reasons and abstained from intercourse with their wives for unspecified periods of time. As a measure of discipline and also as an indirect deterrent to divorce, Islam retained the practice in a significantly modified way. The maximum term of the vow is set at four months. If reconciliation is reached within this period, the vow is nullified, and the parties are Allah-forgiven. But if the terms expires before reconciliation, the marriage becomes irrevocably dissolved with or without a confirmatory pronouncement of divorce, according to different schools of law. The term ila was so defined because it was believed that a wife could tolerate her husband’s abstention up to four months without abnormal reactions. And for this reason, Umar decided not to separate the fighting soldier from their wives more than four months.
– Zihar (Injurious Dissimulation). This also was a pre-Islamic form of divorce, in which a man said to his wife, “Be thou to me as the back of my mother.” Some Muslims are reported to have done it. The Qur’an refers to an encounter between a woman who was affected by this form of divorce and the Prophet (pbuh), whose instructions were sought by the woman. The exchange is thus reported. “Allah has indeed heard (and accepted) the statement of the woman who pleads with thee concerning her husband and carries her complaint (in prayer) to Allah. and Allah (always) hears the arguments between both sides among you: for Allah hears and sees (all things). Those among you who make their wives unlawful to them by saying to them “You are like my mother’s back.” They cannot be their mothers. None can be their mothers except those who gave them birth. And verily, they utter an ill word and a lie. And verily, Allah is Oft-Pardoning, Oft-Forgiving.” [Al Mujaadila 58, 1-2]
Islam condemned the practice. But if a man makes this pronouncement, his wife becomes forbidden to him until he atones for his wrong deed. He must : (1) free a slave, if he has the means, (2) observe day-time fasting for two consecutive months before touching his wife, (3) if unable to fast, feed sixty needy persons. If he doesn’t make the atonement Islam condemned the practice. But if a man makes this pronouncement, his wife becomes forbidden to him until he atones for his wrong deed. He must : (1) free a slave, if he has the means, (2) observe day-time fasting for two consecutive months before touching his wife, (3) if unable to fast, feed sixty needy persons. If he doesn’t make the atonement voluntarily, he must be forced by some proper authority to comply before he is permitted to resume his full marital status. Some schools, however, give him a period of four months, as in the case of ila. If no atonement takes places within this period, the zihar pronouncement amounts to an irrevocable divorce.
– Li’an (Double Testimony/ Recrimination). This form of mutual imprecation was apparently a familiar practice in the ancient Near East. The Code of Hammurabi, the Old Testament, and the Qur’an all make reference to the practice. However, Islam’s approach to the problem is somewhat different. When a man accuses his wife of adultery, but has no witnesses other than himself, he must testify by God four times that he is of the truthful, and a fifth time that the curse of Allah shall be upon him, if he should be of the liars. To avert chastisement, she shall testify by Allah four times that he is of the liars, and a fifth time that the wrath of Allah shall be upon her, if he should be of the truthful. At this point, the marriage becomes dissolved and absolutely irrevocable; they could not be expected to live peaceably together after having reached such extremities.
– Khul (Divestiture/ Self-Redemption). This is another irrevocable form of divorce, which is initiated by the wife rather than the husband. If she is unhappy in her marriage for her own reasons, and he has no overt fault or guilt, she may seek a divorce from him. She shall return to him the dowry and other marriage gifts, to compensate for his material and/ or moral losses. He may, however, waive his right of compensation and simply agree to divorce her in compliance with her request. In fact, there are instances in which women sought the divorce, and their requests were granted by their mates without asking for or getting anything in return. The Qur’an refers to Khul’ says,
“A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah. so do not transgress them if any do transgress the limits ordained by Allah, such persons wrong (Themselves as well as others).” [Al Baqarah, 2: 229]
Whenever the husband is clearly at fault, he must be directed to discharge his full duty to his wife. But should a man mistreat his innocent spouse or pressure her to seek self-redemption- and she so desires- the marriage will be dissolved, and she will not return anything to him of what he has given her. Nor will he be permitted to take anything from her. Conversely, she is forbidden to request a divorce from her innocent husband unless she has some valid, even though personal justifications, because, as the Prophet has put it, for any wife who so acts the smell of Paradise will be forbidden.
– Divorce Before Marriage Consummation. A man may choose to divorce a woman after the conclusion of the contract but before the final consummation of the marriage. This divorce will be irrevocable and no waiting period is required. According to the Qur’an,
“There is no blame on you if ye divorce women before consummation or the fixation of their dower; but bestow on them (A suitable gift), the wealthy according to his means, and the poor according to his means;- A gift of a reasonable amount is due from those who wish to do the right thing. And if ye divorce them before consummation, but after the fixation of a dower for them, then the half of the dower (Is due to them), unless they remit it or (the man’s half) is remitted by him in whose hands is the marriage tie; and the remission (of the man’s half) is the nearest to righteousness. And do not forget Liberality between yourselves. For Allah sees well all that ye do.” [Al Baqarah, 2: 236-237]
– From Revocable to Irrevocable Divorce. If a revocable divorce, simple or double, was pronounced, and the waiting period expired before revocation, the divorce becomes irrevocable.
– The Triple Divorce. This is the ultimately irrevocable divorce. Any resumption of the broken marital relationship is absolutely forbidden without tahlil.
– Figurative Pronouncements. Many Jurists insist that the divorce pronouncements should be made in clear, direct, and unequivocal terms while other Jurists maintain that if the terms are figurative, i.e., indirect or equivocal, and the man actually means to divorce his wife, the divorce becomes valid and irrevocable.
– Miscellanea. Although most of these divorce forms are considered contra- Sunnah and unprecedented, there are a few miscellaneous formulas which have been excessively abused and strongly condemned. Such formulas have one characteristic in common. Such formulas have one characteristic in common; they are conspicuous deviations from the expected behavior patterns of conscientious, responsible men. On this account they have been the subject f condemnation by Muslim scholars and criticism by others. It is relatively easy for Muslim zealots to condemn (1) the lightness with which some Muslims take the whole question of divorce, (2) the substitution of a divorce formula for an ordinary oath in the market place or during a casual conversation, (3) the use of a triple divorce formula in the same sitting or in the same breath, (4) the acceptance by some late Jurists of divorce pronouncements made under the influence of intoxication, pressure or in jest, and (5) the casuistic recourse to the tahlil. Such practices are easy targets because they contradict the spirit of Islamic law and defeat the purpose of divorce in Islam. They are indicative of serious lack of conscientiousness and moral integrity. These sensational practices have occupied many Jurists for several centuries and have crowded the files of litigation before the courts of law. And it is these very deviations which seem to have drawn disproportionate attention from non-Muslim critics. They take these practices or ‘malpractices’ as though they were typical of Muslim society ad essential to the family system of Islam.
The Agents of Divorce
It’s probably a serious misconception to say, as some Westerners and especially Muslim feminists seem to imply that the exercise of divorce is the exclusive right of men. It’s also a misconception to hold, as some Muslim scholars may be tempted to do, that both men and women have ‘equal’ rights of divorce in every respect. What appears equally bestowed upon the is the right to seek and obtain the dissolution of an unsuccessful marriage. To be sure, the mechanism or channels vary in kind and accessibility from case to case. Some channels are open to the man only; some to woman only, with or without judicial intervention; and some to both, directly or through judicial process, with or without the partners’ consent.
The Man’s Right to Divorce
Rightly or wrongly, it’s the assumed general nature of the male to court the female. In terms of human relations, man usually initiates the marriage by proposing to the woman. In Islam, he further settles a dower on her, maintains her, and assumes guardianship over the household. In recognition of these factors, he is allowed in certain cases to initiate and pronounce the dissolution of the marriage tie. But he is enjoined to do so with discretion, kindness and equity. Considering (1) the general detestability of divorce in Islam, (2) the Prophet (pbuh)’s description of a good spouse as the greatest joy of life, (3) the man’s investment in marriage, and (4) the increase of divorce rates as a partial result of the woman’s right of divorce in modern times, it is unlikely that a husband would ordinarily want to part with his spouse for trivial reasons. At any rate, the Muslim man’s right in this respect isn’t absolute, nor may he abuse it. Only in certain limited cases may he independently dissolve the marriage tie without the consent of the wife or the permission of a court of law. These cases are :
(1) Divorce proper or repudiation in accordance with the Sunnah procedures and with the conditions, stipulations, and implications outlines above
(2) Ila, or voa of continence, which is not repealed before the expiration of the probationary period of four months,
(3) Zihar, or injurious dissimulation.
The Woman’s Right to Divorce and Marriage Dissolution
Since marriage is described by the Qur’an as a partnership of peace and compassion, and since every right corresponds with an obligation, the wife is entitled, like the husband, to initiate and actually dissolve the marriage tie independently. In certain cases she may do so without the permission of any court of law or the husband’s consent. These cases are :
(1) What is commonly called ‘delegated divorce’, in which the man agrees in the marriage contract to transfer, irrevocably, his right of divorce to the woman, so as to empower her to free herself from the marriage bond if and when she so desires,
(2) What is also commonly called ‘suspended’ or ‘conditional’ divorce, in which a man stipulates at the time of marriage that if he does a certain thing (s) contrary to his wife’s wish, she will be free to divorce herself from him. It should be pointed out that some of these forms of divorce are unacceptable to certain Jurists who, nevertheless, accord through alternative channels. Moreover, if the wife is aggrieved or betrayed, she may initiate and actually obtain a divorce through the proper judicial processes. The husband’s consent to her request is immaterial if she has valid reasons for divorce. It becomes the duty of the proper authorities to enable her to gain her freedom from the marital bond. Grounds for such action include :
(a) The so-called ‘option of puberty’, in which the wife is entitled at puberty to either retain or dissolve a marriage that was previously contracted on her behalf by a fully qualified guardian,
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