Islam
and Divorce
By: Sayyid Mujtaba Musavi Lari
The first point this chapter must
make is that divorce is contrary to the laws of nature. The annulling of the marriage-bond
and the separation of those who should be life-partners is a denial of the true nature of
man as created and as at his best. Any society in which divorces become numerous, with the
consequent break-up of families, evidences its deviation from nature and her requirements.
Psychologists, jurists and
sociologists, concerned by the effects of divorce on the moral and juridical personality
of those involved, have gone deep into the subject, and given it as their considered
verdict that the ejection of a man and wife, let alone the children, from the warmth of
home-life into the cold unwelcome of any substitute establishment they may find, deals a
mortal blow to their spirits and exposes their children to the onset of moral ailments and
psychic traumas against which family life had immunised and protected them. These
scientists further hold, almost to a man, that for these reasons divorce should be
rendered practically impossible by severe sanctions, except in a few cases where some
cause, generally from outside, like the onslaught of insanity or criminality, makes an
exception to the rule.
But what should be done in cases
of irreparable breakdown of relationships? Must the partners stay in the hell they have
made? Or may a way-out be found for them? Christianity says blankly. "No
divorce!" But Islam more realistically faces the consequences of irreparable
breakdown as a fact, and provides a way-out. Every possible safeguard is laid down in the
statute book to prevent such a way-out by divorce being abused. But it is clear that the
bankruptcy of the relationship is only worsened by forcing the partners to stick together;
and their misery is only increased. Hence divorce, though stigmatised as " the most
loathsome of states in the eyes of the Lord" is made possible when it is the better
of two bad roads. It may even be that the very separation removes the cause of the
irritation between man and wife, while the lapse of time in absence softens the hearts and
recalls the good points which had been lost under the pains of discord; so that the couple
seek reunion, and in some cases actually start the same partnership up again in pardon and
joy.
Since Islam's aim is the firm
establishment of marriages, in the interests of this objective certain liberties are
denied. The right of divorce is given to the man only, except in very exceptional cases.
This is to safeguard the best interests of women and save them from falling victim to
passions. Manifestly, if two people both have the right to institute divorce proceedings,
the basis of confidence is made very shaky on both sides. What better safeguard can there
be, therefore, than to give the right of divorce proceedings primarily to the one who has
by nature more subjection to the powers of reason, and patience in the face of lack of
tenderness; and who stands to lose the sum he has given as a marriage portion, as well as
having to undertake the financial burdens of the children's upbringing?
The differences in the
constitution of a man and woman are manifest. The head takes first place in the man's
decisions and the heart in the woman's. Reason and emotion are the gifts given to each
respectively in their creation. As Dr. Alexis Carrel puts it: "The differences
between men and women are, obviously, the physical ones : and then, less obviously, the
internal ones like the dispositions of the nerves, the different mental and emotional
talents, both of which are of supreme importance for the future of civilisation. Partisans
of Women's Liberation aim at a false conception of equality,. as if that desirable
condition meant precise similarity and identity in upbringing, employment,
responsibilities and duties." ("Man, the Unknown" pp. 84-87).
It is for these reasons that
Islam's Feqh lays down: "Divorce is in the hand of the man." And it is in
consideration of the woman's delicacy of spirit that the power of ending a shared life is
not granted to her. Islam, in addition to the manifold measures it has taken to make it
easier for people to enter the married state and start families, also makes it more
difficult to break up the home. Everything possible is done to ensure happy sound
home-life, for the sake of the family's members and of the society to which they belong.
It is therefore that it is written in Sura IV: Nisa'a -"The Women", verse
19. "O men, live with your wives in kindness and equity. If you dislike anything in
them, that may be the very point which God will use to bring about much blessing."
In order to take away such
feelings of dislike and prevent their turning to hatred, and to remove their discomfort,
Islam awakens the man's conscience to live in kindness and equity with patience, and not
to cast off a wife who is temporarily in disfavour, since it may be that goodness and
blessing may come through those very wives; so that it would be stupid to end the
relationship hastily. As is written in the same Sura IV Nisa'a -"The
Women", verse 128: "If a wife fears cruelty or desertion on her husband's part,
there is no obstacle to their arranging an amicable settlement between them for which the
wife must renounce some of her rights. But if they return through reconciliation and peace
through such unselfishness, such a settlement is better than separation and divorce."
The same dislike of divorce, as
the most detestable of extreme measures to be adopted only in the direst emergency, is
advanced by all Islam's greatest jurist-consults and leaders, an attitude summed up in the
sentence in the book "Mustadrak" (Vol. 3, p.2): "Any woman who seeks
to be divorced from her husband, save in cases of extreme necessity, falls out of the
grace and mercy of the Lord." Or again in Vol. 3 of the "Vassa'el"
(p.144): "Enter upon matrimony. but do not divorce your wives, since divorce shakes
the very throne Of God."
Islam fences in the man's power
of divorce with many limiting safeguards. A man may not put away his wife by violence,
harassment, injury or in a way which may drive her to a life of immorality and corruption.
Thus Islam has for centuries surpassed anything yet achieved in Western countries, in its
initiative to remove differences and restore understanding in family life. This is
particularly true of the family courts, where well-meaning relatives have a large say and
everything is done to bring about reconciliation. Causes of differences are deeply
studied; and, as relatives, they are able to go deep into confidential matters without
either of the couple feeling that their private secrets are being exposed or their
feelings excoriated in too public an ambience. When the causes of the difference have been
brought into the light of day the members of the family court exert all their powers of
sincerity and' heart and affection to bring about reconciliation and to quench the fires
of temper, exhorting both sides to unselfishness, tolerance, and an effort to understand
each other's point of view. Since both man and wife respect these elders and have full
confidence in their compassionate affection, they frequently accept the family court' s
recommendations for adjustments they should make in their relationships and behaviour
towards each other. As it is written in Sura IV. Nisa'a-"The Women"
(verse 35): "Should you fear that division will arise amongst them, appoint an
arbitrator on the husband's side and an arbitrator on the wife's side from amongst their
relatives and send them to them. As soon as they desire peace and reconciliation the Lord
will vouchsafe it to them for He is all-knowing and all-wise."
Should the causes and roots of
the initiation of divorce proceedings prove to be too deep, so that there is an
irreparable breakdown in marital relationships, and all the efforts of the relatives fail
to bring about any sort of hope of reconciliation, Islam in its realism recognises that
each party must take their own road. It must be plain that such a family court is far more
likely to succeed than all the public courts of law or marriage guidance clinics. In fact
these only too often, being strangers to the family and not privy to their inmost secrets,
merely increase the rift, because of the clumsiness of their well-meaning efforts. A
public court has the duty to hear the evidences produced by both sides; and then, in the
cold dry heartless atmosphere in which only exact truth and not mercy or clemency reigns,
decide which side has most right and give verdict accordingly. It has neither the heart
nor the spiritual influence of relatives to press for reconciliation, and cure the causes
of the quarrel. In the Qur'an, Sura LXV "Talaq" -"Divorce"
ordains in verse 2: "Two just persons from amongst yourselves shall bear witness to
the evidence before God when a divorce is settled." Without these two witnesses,
there is no legal divorce. An advantage of their appointment is that they can exert every
pressure of affection and wisdom to avert the final catastrophe for quite a period before
reluctantly, if they have to do so, agreeing that there is no other way out. They
frequently succeed in the better course.
It is further laid down that no
divorce may be made absolute save after the woman' s period of purification after
menstruation or childbirth is completed. This need to wait awhile often proves a
breathing-space in which the man's feelings of tenderness once more assert themselves over
his irritations, and make him decide against divorce.
Further when a man finds sharing
his life with a particular woman wearisome and irksome and decides on divorce, this
decision of his does not suffice in itself to end their living together not does it become
effective until the expiry of the "Iddat", i.e. the period fixed by the Feqh
during which a divorced or widowed woman may not be married to another man: and this
period also gives a breathing-space which frequently results in the man's change of heart
and decision to continue the married bond with the wife he planned to divorce.
Finally, after the execution of
the formalities for a "revocable divorce" (Talaq-i-raj') a man may not
expel his wife from the home until the termination of the period of the "iddat"
which may last anything up to three months, nor may the wife quit their joint home except
in a desperately exceptional case during that period. As the Sura LXV "Talaq"
"Divorce" enacts (verse 1): "You may not expel women from their houses, nor
may they themselves quit, except if they have been proven guilty of some open lewdness
(during the "iddat" period). These are limits set by God. Should any man
transgress these limits he does so at the peril of his own soul, and to his own harm : for
you know not whether God may bring about some new situation later (than the decision to
divorce)."
No formalities are necessary to
abrogate a revocable divorce during these months. A mere indication of desire for renewal
of the marriage relationship by the man suffices.
Should the wife feel such hatred
for her husband that she repays him the statutory portion of marriage settlement he had
given her, or a portion of her own property, that counts as her divorcing him; but this
type of divorce is revocable within the stated period, so that if she changes her mind,
and her husband agrees, he can still take her back into their home.
By these many means Islam
safeguards the holy estate of matrimony from shipwreck on the rock of hasty decisions onto
which emotional storms may drive some couples.
Islam had also done much to
protect the wife's rights and to save her from having to continue to live in an unhappy
environment. Among beneficent measures are the following:
1. the wife can insert a clause
in the marriage contract ensuring that
(a) incompatibility of
temperament
(b) maltreatment
(c) refusal of maintenance
(d) unannounced journeys
(e) the taking of another wife without consultation
are so provided against that if
any of the above five conditions is broken she can approach a lawyer to obtain a divorce
for her through the courts.
2. the wife can make it
impossible for her husband not to divorce her by being intolerably refractory, vexatiously
shrewish or deliberately incompatible in relationships, familial, sexual or social;
3. the wife can resort to the
courts if the husband has been incapable or negligent in supplying her with maintenance or
has put obstacles in the way of her obtaining it ; or if either partner deprives the other
of conjugal rights or fails in marital duties; the Muslim Qadhi, if the woman' s
plea is proved, can compel the husband to treat her right, to be reconciled, to disburse
the proper sums, to confer her rights upon her in every form : and if the husband proves
recalcitrant, or refuses to obey the judge's orders, the judge can then compel him to
divorce his wife;
4. the wife can enter a plea in
the Islamic court and obtain an injunction if the husband accuses her of lewdness,
unchastity or unfaithfulness, or denies his own paternity of her child : if the husband
cannot prove his case the judge will order the husband to separate himself from his wife
in accordance with the relevant legislation;
5. the wife may, in the case of
intolerable revulsion or aversion, in a simple fashion bring about a discontinuance of
their union by renouncing a large part of her marriage portion, while freeing her husband
from his obligation to pay her alimony during the "Iddat" breathing-space
period;
6 the wife, if the husband
absents himself so that no news of him reaches her and she falls into financial or other
difficulties, can resort to the courts and request a divorce. the judge will then perform
the necessary formalities to annul her marriage contract.
It is written in Sura II: "Baqara"
-"The Heifer" (verse 229): "A divorce is only permissible twice : after
that the parties should either hold together in equity or separate in kindness. It is not
lawful for you men to take back from your wives any of that portion which you have given
them except when both parties fear that they would be unable to keep the God-ordained
limits. If you judges have reason to fear that the parties will be unable to keep the
God-ordained limits, so decree, for there will be no blame on either of them if she hands
over a sum in exchange for her freedom. These limits are God-ordained so do not transgress
them since that is to wrong yourself as well as others."
In the "Exegetical
Collection" it is related in Volume I on page 167 that Ibn Abbas reported that
Jameelé, wife of Thabit bin Qais, sought audience of the Prophet and complained to him:
"O Apostle of God! I cannot stand one moment more of life with Thabit bin Qais, nor
shall my head ever rest again on the same pillow as his." After a pause she added :
"I am not accusing him of a lack of faith or of moral and marital virtues: but I am
afraid that I myself will fall into infidelity and blasphemy if I have to spend another
minute with him. I turned up the tent-skirting and my eye fell on my husband in the middle
of a crowd of other men. He looked so ugly, a black-avised, dwarfish runt, and I hated
him, and I can't go on. ...!" She ran on thus, and the Prophet, after absorbing her
outpouring, tried to advise and admonish her, but she paid him no heed. So he sent for
Thabit bin Qais and laid the situation before him. Thabit was deeply attached to Jameelé,
but self-sacrificingly and for her sake agreed to take back the marriage portion he had
settled upon her - a beautiful garden - and give her a khul' divorce.
There are cases in which resort
to the court by the wife is statutory. There are also cases in which she can divorce her
husband without legal aid, as in cases of certain grave chronic diseases like leprosy or
elephantiasis; or because of the onset of lunacy, or of physical defects which prevent
marital intercourse, like impotence or castration of the husband. For these Feqh
gives the wife haqq-i-faskh - the right to the rescinding or annulment of the
marriage, which "faskh" is not the same as the khul' divorce, and
does not involve the same financial renunciations by the wife as khul' does.
Germany and Switzerland, in
Europe, also recognise lunacy as grounds for the annulment of a marriage or for
separation. France does not admit either grave chronic disease or lunacy as an adequate
ground, and insists that the healthy spouse must care for the leprous or lunatic partner.
Undoubtedly such longsuffering and lovingkindness is highly praise worthy. while extolling
it as a counsel of perfection, Islamic realism prefers to leave the partners free to
choose separation or continued care, according to their own conscience.
The West is suffering terribly
from the laxity it has allowed in the break-up of marriages and the violently increasing
incidence of divorce. These disasters are really reactions to over-pressure by the
churches, which prohibited and condemned divorce one hundred percent for many centuries,
while the secular governments gave recognition to it. For instance, divorce was totally
prohibited in France until the French Revolution of October 1789. In 1804, in response to
popular demand, divorce was legalised; but in the following 12 years it increased so
appallingly that the religious bodies brought renewed pressure to bear, until in 1816 the
law legalising divorce was rescinded though physical separation of the parties was
permitted. However, public pressure built up again so much that in 1884 divorce within
certain limits was legalised once more.
Here follow the conditions on
which in Western lands divorce for wife and husband was legal until recent times:
1. a criminal act committed by
either party which involves the penalty of life-imprisonment, exile, loss of civil rights
or temporary imprisonment with hard labour.
2. physical violence, mercenary
prostitution, and a few other similar criminal acts of the one partner against the other.
3. adultery by either partner -
though in such cases the wife has the right of divorce only if the man commits adultery
with another woman in the house which belongs to his wife and himself.
The following is the road by
which a wife's infidelity was proved : note it well! "The infidelity of a wife must
be proved completely in the eyes of the police. The wife or the husband plan to be in
different places for however a short time. They must agree about some third person to be
cited as co-respondent and this person must be prepared to undertake this service. And
then at the stated hour the wife must be caught in flagrante delictu with
the third party', and the husband must have the police on the spot to catch her out and so
prove her infidelity. Thus the police accompany the husband to the trysting-place; and
when they catch the wife in flagrante delictu this is accounted adequate grounds
for her husband divorcing her." (The Law of Divorce and Renewal of Marriage p.99).
See what a mass of further
impurities the impurity which wrought the need for divorce in the first place has carried
in its train. And this is the "civilised" world of the West, which allows women
entry into public and political life, and with the other hand takes away her honour, her
femininity and the high standards which it should be her privilege to set, and turns her
chastity into a mercenary bargaining-point. It must be admitted that since I first put pen
to paper on this matter, efforts have been made in many Western lands to eradicate the
worst of these abominations.
America makes divorce easier for
both parties. It is not surprising, therefore, that American divorce figures are the
highest of all.
The wise tremble at the results :
the wisdom of Islamic dispositions shines by contrast like the sun in darkness. At a
conference in Strasburg, statistics of one year's divorces which could be attributed to
the overwhelming desire of wives to be "in the fashion" "a la mode",
"comme il faut" and to "keep up with the Joneses" in modernity of garb
and guise were quoted as being:
1. in France, 27% of all
divorces;
2. in Germany, 33%;
3. in Holland, 36%;
4. in Sweden, 17%.
Not every Parisienne is an
excessive slave of fashion. Nonetheless it is reckoned that the costs of unnecessary
purchases made by women simply to keep up with "mode" come to no less than 5,000
tomans per head (£300-£400 per head per annum). Yet all this expenditure adds nothing to
the woman's natural beauty, moral stature, ease of spirit or calm mind!
European statesmen, and
responsible thinkers everywhere, are well aware of the danger, and fear it acutely. All
who possess the slightest sense of philanthropy must seek the means of stemming the
sweeping tide of this flood of evil through the world.
Islam offers its regulations on
family life, matrimony, and the respective positions of men and women, as a way which all
nations might do well to follow remembering that it was a Westerner Voltaire, who said:
"The Prophet Muhammad reduced the unlimited harems of unfortunate women maintained by
pre-Islamic potentates to a maximum of four wives: and his legislation on marriages and
divorces is the most noble and effective ever conceived, formulated and enacted by any
authority at any time in the world's history, religious, political or social."
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