Divorce from an Islamic perspective
الطلاق في الإسلام
Divorce from an Islamic perspective
The missionary and orientalist invasion of the previous age focused its attack on two issues that were meant to criticize the Islamic attitude concerning women. These issues were divorce and polygamy. The reality is that Islam is proud of housing these two social solutions which are usually considered, by those who are short sighted, to be problems.
It is regrettable, indeed, 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 belittling manner that is in fact a form a criticism to the Islamic law that has been sent down by Allaah (Azza Wa Jall).
The fact is that Islam, only made laws regarding these two issues, to cure many problems in the lives of men and women, as well as the family and society. The genuine problem is in misunderstanding what Allah has decreed, or in misapplying it. If anything is misused, it leads to harmful disservice.
Not every divorce is commendable in Islam. Some cases of divorce are disliked or even forbidden because they entail the destruction of the family, which Islam ensures to form and build. 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 they learn from these two (Harut and Marut) how to create discord between a man and his wife". 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 every one of them from His Bounty".
What Allaah decrees is what reason, wisdom, and Muslims interests dictate. 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. In olden times a wise man said, "One of the great calamities is to live with someone who does not agree with you, yet does not leave you."
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.
Islam, however, does not decree divorce at all times or in all cases. Divorce is permissible, according to the Qur'an and the Sunnah (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 purified of her menses (i.e. between her periods) and he had intercourse with her, he should not divorce her until she has completed her next menstrual period.] This will ensure she is not pregnant. If he did, his divorce would not be according to the teachings of the Prophet (Blessings and Peace be upon him) and thus 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 does an action that is not in accordance with this affair of ours shall have it rejected". [Transmitted by Muslim (1718) on the authority of Aisha.] 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 to 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- Aisha.]
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 of the early 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 woman 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 divorced 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 ruling of the Qur'an. That is what is indicated and illustrated by the Sheikh of Islam Ibn Taymeya and his disciple ibn 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 has no menses. 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 even without her permission. 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. 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)".
Moreover, Islam does 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".
She also has the right to receive a certain amount of money which can be decided by a social convention. " And for divorced women, maintenance (should be provided) on reasonable (scale). This is a duty on Al-Mutaqeen (the pious)". That is something general for every divorced woman to appease and compensate her.
It is also forbidden for the divorced man to spread rumors about his ex-wife or to scandalize her or offend her or her family after divorce: "either you retain her on reasonable terms or release her with kindness" "And do not forget liberality between yourselves".
That is the 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.
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.
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". (agreed upon) according to 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)". , the iddah of the wife who got her khulo(خلع) is one menstruation not three as the talaq
According to the prophetic traditions, Thabet Ibn Qais's wife complained to the Prophet (blessings and peace be upon him) of her strong dislike of her husband. The Prophet (blessings and peace be upon him) asked her, "Would you give back his orchard?' 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".
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 physical impotence. 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".
The Almighty also says: "either you retain her on reasonable terms or release her with kindness".
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.(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 judgment than Allah for a people who have firm Faith".
...but, in accordance with justice, the rights of the wives (with regard to their husbands) are equal to the (husbands;) rights with regard to them, although men have precedence over them (in this respect). And God is almighty wise. (Qur'an 2:228)
It is in the next verse, according to existing interpretations, the reason for the small difference:
Men shall take full care of women with the bounties which God has bestowed more abundantly on the former than on the latter, and with what they may spend out of their possessions. And the righteous women are the truly devout ones, who guard the intimacy which God has (ordained to be) guarded. (Qur'an 4:34)
It is clear that the Qur'an states there is a "degree" of difference with regards to the rights of men and women in divorce, but it is not clear "how much" and "what" privileges a man is entitled to. This is what has been interpreted by the jurists. It should also be noted if the difference is due in part to the man being the financial supporter, then it must follow that if the woman shares or is the main financial contributor to the family that this privilege should apply to her as well.
Many of the laws regarding divorce are the scholars' interpretations of the relatively few Qur'anic references. As with all human laws, they must adapt to dynamic circumstances. Issues like custody have become controversial. For example, the Qur'an advises the husband and wife to consult each other in a fair manner regarding their children's future after divorce (2:232-3)
Various laws regarding custody of the children have been legislated by a few of the jurists. Some jurists have stipulated that custody of the child is awarded to the mother if the child is under a certain age and to the father if the child is older. There is no Qur'anic text to substantiate the arbitrary choosing of age as a determinant for custody. Similarly with regard to the issue of alimony, the Qur'an addresses the ex-husband's financial obligation to his ex-wife but it does not provide a specific formula for the amount of support (2:241, 65:4-7). This is open for negotiation between parties and should be in proportion with the husband's financial income.
There has been much distortion and propagation of mistruth about a woman's rights in the matters of marriage and divorce. It is only with self-education and awareness of the Qur'anic text that both men and women can come to know the truth of what God has prescribed and to evaluate the scholarly interpretations closely to ensure that the spirit of justice is carried out:
When you divorce women and they fulfill the term of their (Iddah), either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them, (or) to take undue advantage; if anyone does that, he wrongs his own soul. Do not treat God's Signs as a jest, but solemnly rehearse God's favors on you, and the fact that He sent down to you the Book and Wisdom, for your instruction. And fear God, and know that God is well-acquainted with all things.
Among the details that are worth noting when it comes to divorce are the following:
1-Divorce from a drunken or un-sane man is invalid
2-The repetition of the word Talaaq(divorce) three times does not count as three but only one.
3-It is recommended that the Talaaq is noted upon uttering it to avoid forgetfulness.
4-Having sexual intercourse during iddah entails the return of the wife to her husband
5-The Iddah of the young girls who have no menstruation or the old who reached menopause is three months.
Edited and Revised
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