Wife Abuse in the Muslim Community
by Kamran Memon
(Zawaj.com Editor's Note: many Muslims are uncomfortable with open discussions of this subject, and I understand some of their reservations. One of their objections is, "You're giving a bad name to Islam and making da'wah more difficult." Another is, "This is a very rare phenomenon and it's not worth giving Islam a black eye in public." To be honest, I do think that domestic violence is less common among Muslims than among non-Muslims, primarily because of the absence of alcohol and drugs as catalysts. However, there's no doubt that it does happen, and honestly brothers and sisters, even if it happened to only one woman wouldn't that be too many? After all, didn't 'Umar (may Allah be pleased with him) send an army to the rescue of a single Muslim woman who was abused? Allah has commanded the Muslims to stand up for justice. We must have the courage to confront our shortcomings and to stand up for the oppressed, even if the oppressors are fellow Muslims.)
Wife abuse has hurt many Muslim women, destroyed many Muslim families, and weakened the entire Muslim community. How much longer can Muslims afford to look the other way?
"And among His signs is this, that He created for you mates from among yourselves, that you may dwell in tranquility with them, and he has put love and mercy between your (hearts)..." Qu'ran 30:21
"I recommend that you treat women with goodness. The best of you are those who treat their wives the best." Prophet Muhammed (peace be upon him)
While North American Muslims loudly protest the widely-documented Serbian abuse of Muslim women in Bosnia, the abuse of many Muslim women at the hands of their own husbands in North America is hidden and ignored by the community.
Domestic violence is the single major cause of injury to women in America."Nearly one quarter of women in the United States - more than 12 million- will be abused by a current or former partner some time during their lives," according to the American Medical Association; and, despite Islamic teachings of justice and compassion, many Muslim women in the United States and Canada are no exception.
Based on information from Muslim leaders, social workers, and activists in North America, the North American Council for Muslim Women says that approximately 10 percent of Muslim women are abused emotionally, physically, and sexually by their Muslim husbands. (There are no hard numbers, because community leaders haven't taken the well-known problem seriously enough to research.)
Wife-abuse, which stretches across all ethnic, racial, educational, and socio-economic lines in the Muslim community, results in severe emotional and physical pain for many Muslim women, a stacking up of sins for many Muslim men, and many weak, unhappy Muslim families that fail to contribute adequately to the development of the Muslim community and the rest of North American society.
Despite the severity of the problem, the Muslim community has largely closed its eyes and devoted very few resources to helping the victims and stopping the abusers.
This is doubly unfortunate because family violence is one of America's most critical health problems (according to the American Medical Association and the U.S. Surgeon General), and Islamic leadership is needed to deal with this crisis; but Muslims are clearly in no moral position to lead society because they commit and tolerate abuse within their own community.
FORMS OF ABUSE OF MUSLIM WOMEN
"Domestic violence is an ongoing, debilitating experience of physical, psychological, and/or sexual abuse in the home," says the American Medical Association.
Although Islam promises women protection from such problems, the reality in many Muslim homes is different.
The most common form of abuse is emotional and mental abuse. In Muslim homes, this includes verbal threats to divorce the wife, to remarry, or to take the kids away if she does not do exactly as she is told; intimidation and threats of harm; degradation, humiliation, insults, ridicule, name-calling, and criticism; false accusations and blaming her for everything; ignoring, dismissing, or ridiculing her needs; neglect and the silent treatment; spying on her; telling her she is a failure and will go to hell; twisting Islamic teachings to make her feel worthless because she is a woman; restricting her access to transportation, health care, food, clothing, money, friends, or social services; physical and social isolation; extreme jealousy and possessiveness; lying, breaking promises, destroying trust; etc. Emotional abuse can take place in public or at home.
Although it's completely contrary to the example of Prophet Muhammad, peace be upon him, the Muslim community nonetheless tends to dismiss the seriousness of mental abuse, rationalizing it as a petty argument between husband and wife, and saying it's not serious unless he hits her. In reality, mental abuse does severe psychological harm to many Muslim women. It destroys their self-esteem and makes them question their self-worth; some have mental breakdowns and go insane.
Furthermore, psychological abuse can lead to physical abuse.
Physical abuseincludes pushing, shoving, choking, slapping, punching, kicking, and beating; assault with a weapon; tying up; refusing to help her when she is sick or injured; physically throwing her out of the house; etc. Physical abuse escalates in frequency and severity.
The third form of abuse is sexual abuse, involving forced, violent sex. For example, a wife may not want to have sex for health reasons, but the husband may force her anyway.
These three forms of abuse are usually related and occur of a long period of time. Muslim men, just like non-Muslims, often start with mental abuse and work their way up. Muslim women need to recognize the signs of escalating abuse.
WHY DO SOME MUSLIM MEN ABUSE THEIR WIVES?
There are a number of factors that make some Muslim men abusive.
Abusers are often part of a cycle, picking up the habit after watching their own fathers abuse their mothers in North America or in Muslim countries. And their own children learn this abusive behavior and abuse their wives. (This is an important point because the longer the Muslim community tolerates abuse, the longer it will be passed on from father to son, from generation to generation.)
For cultural reasons, some Muslim men accept the idea that it's normal for a man to hit his wife and that she is no more than a piece of his property.
Some Muslim husbands abuse their wives as a result of frustration resulting from economic hardship, political oppression experienced outside the U.S., problems with the children, or an inferiority complex.
Some abuse their wives because they want them to be more "modern" and less Islamic by removing their hijab (Islamic dress), while others are abusive because they want the opposite.
Some Muslims with superficial ties to Islam don't know that abuse is unacceptable due to their weak faith, poor Islamic knowledge, and lack of interaction with the Muslim community.
Tragically, some Muslim men actually use Islam to "justify" their abusive behavior. Focusing on rituals, considering themselves to be Islamically knowledgeable, and disregarding the spirit of Islam, they wrongly use the Qur'anic verse that says men are the protectors and maintainers of women to go on power trips, demand total obedience, and order their wives around. They disregard the Islamic requirement for the head of the household to consult with other members of the family when making decisions.
Then, if their wives dare to speak up or question their orders, these men misinterpret a Qur'anic verse that talks about how to treat a disobedient wife and use it as a license for abuse.
QURAN AND SUNNAH
In reality, the Qur'an and Sunnah provide clear instructions on what procedures a husband must use in conflict situations where the husband is innocent and the wife is rebellious and at fault.
1. The first step is a peaceful discussion between the two of them about the problem and solutions. This is intended to soften hearts and eliminate misunderstandings.
2. If this doesn't work, the next step is for the husband to tell his wife his expectations in a firm, decisive manner.
3. If the rebelliousness and disobedience continues, the husband is supposed to leave the bed, which is really a punishment for both of them for not being able to resolve their differences.
4. If that fails to solve the problem, representatives of both sides meet to try and arbitrate.
5. As a last resort, if he thinks it will prevent divorce by letting the wife know how serious he is, the husband can use a light slap on the hand or shoulder but not on any other part of the body, and it shouldn't leave a mark or scar.
Anything beyond this is Islamically prohibited.
This procedure is to be followed _only_ when the wife is the cause of a serious problem and the husband is innocent, compassionate, and well-behaved. If the husband is the cause of the problem, he has _no right_ to do any of this.
Unfortunately, Muslim wives often accept un-Islamic treatment from their husbands because they don't know their Islamic rights, and they don't realize their husbands are crossing the Islamic line.
Abusive men are completely disregarding the Islamic teachings of kindness, mercy, gentleness, and forgiveness, just as they are disregarding the example of Prophet Muhammad, peace be upon him, who never hit a woman and was extremely gentle and compassionate with his family.
WHY IS HELP SO SCARCE?
One problem is that many Muslims don't want to get involved in the "private" family affairs of other Muslims. Rather than enjoining good and forbidding evil, rather than trying to stop abuse in a friend's or neighbor's family by offering to mediate between the husband and wife or by encouraging them to speak to Muslim counsellors, many irresponsible Muslims close their eyes and pretend they don't know there's a problem. So the abuse goes on.
Another reason why abuse isn't stopped is that many abused Muslim women simply don't seek out help. They're afraid that if their situation becomes public they will lose their privacy because Muslims gossip so much, and they fear the abusers will become more hostile when the negative publicity gets back to them. Furthermore, many abused Muslim women remain silent because they lack confidence in themselves and believe that they somehow deserve the abuse. Abused Muslim women also keep quiet out of a feeling of hopelessness and a belief that no one will help them, out of financial dependence on their husbands, out of a desire to keep homes together for the children's sake, or out of love for the abusive husbands. Other Muslim women accept the abuse as a fact of life and learn to live with it.
Of those who reach a breaking point and seek help, many Muslim women turn to imams but often find them unhelpful. Imams often tell these women to be patient and pray for the abuse to end. Some imams make the abused Muslim women feel guilty, telling them they have brought the abuse upon themselves and instructing them to go home and please their husbands.
Other imams, who are sincerely but mistakenly misinterpreting Islam by putting the importance of family privacy above any harm that might come to the individual woman, tell the women it is wrong for them to discuss their problems with anyone other than their husbands. The imams's reactions stem from ignorance, cowardice, or friend-ship or blood relationship with the abusive husbands. Relatively few imams have had the wisdom and courage to tackle the problem head-on. As a result of this, many abused women don't bother turning to imams for help.
Looking for other sources of help, many abused Muslim women have turned to relatives only to be told to accept the abuse because making a big deal out of it could hurt the relatives' family honor and reputation.
Finding many imams and relatives to be more cruel than Islamic, abused Muslim women often turn to Muslim female activists and Muslim women's organizations for help. While these activists are often untrained in crisis intervention, they are getting the abused women out of their houses and hiding them until Muslim men can be sent to try to reason with the husbands. They often collect money from other women to give to the abused women until it's safe for them to go back home. When continued attempts to salvage the marriages have proven futile, these activists counsel the abused women on how to get out of their marriages.
As for national Islamic organizations, most have largely ignored the issue of wife abuse, neglecting to highlight the problem and solutions during national conferences or to devote resources to helping abused Muslim women.
Overall, the services provided by the Muslim community for abused Muslim women take care of one-quarter of the need, according to Muslim activists.
Because the Muslim community often leaves them to suffer, many abused Muslim women turn to shelters run by non-Muslims for help. Seeing abused Muslim women at shelters leaves non-Muslim social workers with an ugly picture of Islam. As far as many of them are concerned, Islam is no more just and compassionate than Christianity or Judaism because the Muslim community tolerates wife abuse too. Going to a non-Muslim shelter can result social workers taking children away from troubled Muslim homes if they think it is better for them to be in a more stable environment, which often ends up being a non-Muslim home.
Many women go even further, leaving Islam altogether because the Muslim community fails to live up to the Islamic promise of protection, brotherhood, and sisterhood.
THE COMMUNITY'S ROLE
The Muslim community has clearly failed in its obligations to protect many Muslim women and to bring many cruel Muslim men to justice. The community needs to deal much more effectively with wife abuse in order to stop the immediate suffering of people in abusive situations and to help build healthy Muslim families.
First, the community must accept the fact that there is a problem and that it doesn't know how to deal with it.
Then a core group of trusted, active Muslim men and women in each North American city, who are committed to ending wife abuse in the Muslim community and to strengthening Muslim families, must become knowledgeable about Islamic guidelines on the family and be trained in crisis intervention and counseling. Unfortunately, some community "leaders" will be too ignorant or arrogant to seek such training; but they must not be allowed to get in the way.
Since there aren't yet many Muslims qualified to teach crisis intervention and counseling, several Muslim women throughout North America have started learning these techniques from non-Muslim social service agencies (listed in the phone book under wife abuse, domestic violence, or crisis intervention). Other Muslim women and men need to follow suit. Whatever they learn from these agencies should be cast in the light of their Islamic knowledge of properly functioning Muslim families.
Once they know what they're doing, members of core groups across the continent should recruit and train others in their communities in crisis intervention and the Islamic perspective on the family. There should be a network of at least 100 trained counselors in every major North American city.
A list of trained Muslims and their phone numbers (or one Muslim hotline number) should be circulated throughout the community in each city so that abused women know whom they can turn to for meaningful help.
Most of women approaching the network initially will be physically abused Muslims. Victims of mental abuse will less likely to reach out at first because many have become accustomed to the abuse and accept it as a way of life. But educational programs at community gatherings -- explaining what Islamic family life should be like and explaining that there is help available for abused women -- will let emotionally abused Muslim women know they have a way to stop the pain.
These trained Muslims should give abused women shelter (at people's homes or at community facilities, such as a rented apartment) for periods ranging from several days to several months depending on the extent of the abuse, while counseling them.
Beyond this, taking into account the fact that many Muslim women will still turn to non-Muslim shelters because they don't want to deal with the Muslim community or because the community program is not big enough to help them, the Muslim community should sensitize people running non-Muslim shelters to the particular needs of Muslim women; and trained Muslims should visit the shelters regularly and constantly remind shelter operators that they are available to help whenever a Muslim woman comes
in.
While caring for the abused women, the trained Muslims should counsel the abusers separately, making them aware of the reasons they abuse, of the fact that their actions are truly harming their wives, that such behavior is completely un-Islamic, and that God will hold them accountable.
After separate counselling, the next step would be joint counselling for the husband and wife, and then counselling for the entire family.
The objective should be to heal the family, but divorce may be necessary.
Another option, that some Muslims in New York have tried, is to punish Muslim men for their abusive actions. A "security force" warns, and then beats up, if necessary, Muslim men who continue beating their wives. Usually the abusers get the message; this is the only language many of them understand. Some men have to be beaten before they wake up and are ready to listen to rational, Islamic arguments.
Police and psychiatrists may have to be involved in severe cases of chronic abuse.
Community education is an indispensable factor on top of all this. Starting today, throughout the process outlined above, community leaders and other concerned Muslims need to educate people -- about the problem and about efforts to help victims and prevent future abuse -- through Friday khutbahs (sermons), educational seminars, and workshops. These educational programs can themselves reduce abuse by letting people know the community isn't going to tolerate it anymore. The community isn't going to tolerate it anymore.
Furthermore, the community needs to extablish classes to teach Muslim men, young and old, how to be proper husbands and fathers and to teach Muslim women, young and old, how to be proper wives and mothers. Many Muslims don't know their rights and obligations in these roles.
In addition, in order to prevent future family problems, parents and community leaders must teach children and young adults to be compassionate, to value the family, and to resolve problems in an Islamic, non-violent manner.
It's also important for Muslims to go into fields like psychiatry, women's issues law, social work,and counselling.
No Muslim community in any North American city has taken all these steps. Unfortunately, the entire plan could take years to implement. (Of course, that makes it all the more necissary to start immediately.) But when theses steps are taken, abuse should decrease if not stop in the Muslim community, according to Muslim social workers and activists.
If, once all these steps are taken, there are more abused Muslim women in specific communities than these networks can adequately help, then Muslims should establish good quality, properly staffed, and well funded Muslim shelters. Many communities may not need to go this far, but some may.
DO YOU REALLY CARE?
It sounds like a lot of work, but the problem is serious enough to warrant a lot of work.
The Muslim community has shamefully tolerated abuse for a long time. How much longer will Muslim families (and therefore the Muslim community) be weakened by abuse? How much longer will abusers be allowed to run free and unpunished in the community? How much more abuse will Muslim women have to endure before the community decides that enough is enough?
Sunday 27 February 2011
Wife Beating?
Wife Beating?
By Dr. Jamal Badawi
In the event of a family dispute, the Qur'an exhorts the husband to treat his wife kindly and not overlook her POSITIVE ASPECTS (see Qur'an 4:19). If the problem relates to the wife's behavior, her husband may exhort her and appeal for reason. In most cases, this measure is likely to be sufficient. In cases where the problem continues, the husband may express his displeasure in another peaceful manner, by sleeping in a separate bed from hers. There are cases, however, in which a wife persists in deliberate mistreatment and expresses contempt of her husband and disregard for her marital obligations. Instead of divorce, the husband may resort to another measure that may save the marriage, at least in some cases. Such a measure is more accurately described as a gentle tap on the body, but NEVER ON THE FACE, making it more of a symbolic measure then a punitive one. Following is the related Qur'anic text:
Men are the protectors and maintainers of women. because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband's) absence what Allah would have them guard. As to those women on whose part you fear disloyalty and ill-conduct, admonish them (first), (next) do not share their beds, (and last) beat (tap) them (lightly); but if they return to obedience, seek not against them means (of annoyance): for Allah is Most High, Great (above you all). (4:34)
Even here, that maximum measure is limited by the following:
a. It must be seen as A RARE EXCEPTION TO THE REPEATED EXHORTATION OF MUTUAL RESPECT, KINDNESS AND GOOD TREATMENT, discussed earlier. Based on the Qur'an and hadith this measure may be used in the cases of lewdness on the part of the wife or extreme refraction and rejection of the husband's reasonable requests on a consistent basis (nushuz). Even then, other measures, such as exhortation, should be tried first.
b. As defined by hadith, it is NOT PERMISSIBLE TO STRIKE ANYONE'S FACE, CAUSE ANY BODILY HARM OR EVEN BE HARSH. What the hadith qualified as dharban ghayra mubarrih, or light striking, was interpreted by early jurists as a (symbolic) use of miswak (a small natural toothbrush)! They further qualified permissible "striking" as that which leaves no mark on the body. It is interesting that this latter fourteen-centuries-old qualifier is the criterion used in contemporary American law to separate a light and harmless tap or strike from "abuse" in the legal sense. This makes it clear that even this extreme, last resort, and "lesser of the two evils" measure that may save a marriage does not meet the definitions of "physical abuse," "family violence, " or "wife battering" in the 20th century law in liberal democracies, where such extremes are so commonplace that they are seen as national concerns.
c. The permissibility of such symbolic expression of the seriousness of continued refraction DOES NOT IMPLY ITS DESIRABILITY. In several ahadith, Prophet Muhammad (P) discouraged this measure. Among his sayings are the following: "Do not beat the female servants of Allah;" "Some (women) visited my family complaining about their husbands (beating them). These (husbands) are not the best of you;" and"[It is not a shame that] one of you beats his wife like [an unscrupulous person] beats a slave and maybe he sleeps with her at the end of the day." (See Riyadh Al-Saliheen, op.cit,p.p. 137-140). In another hadith the Prophet(P) said
...How does anyone of you beat his wife as he beats the stallion camel and then he may embrace (sleep with) her?... (Sahih Al-Bukhari,op.cit., vol.8.hadith 68,pp.42-43).
d. True following of the sunnah is to follow the example of the Prophet Muhammad (P), who NEVER RESORTED TO THAT MEASURE, regardless of the circumstances.
e. Islamic teachings are universal in nature. They respond to the needs and circumstances of diverse times, cultures and circumstances. Some measures may work in some cases and cultures or with certain persons but may not be effective in others. by definition, a "permissible" act is neither required, encouraged or forbidden. In fact it may be BETTER TO SPELL OUT THE EXTENT of permissibility, such as in the issue at hand, rather than leaving it unrestricted and unqualified, or ignoring it all together. In the absence of strict qualifiers, persons may interpret the matter in their own way, which can lead to excesses and real abuse.
f. Any excess, cruelty, family violence, or abuse committed by any "Muslim" can never be traced, honestly, to any revelatory text (Qur'an or hadith). Such EXCESSES AND VIOLATIONS ARE TO BE BLAMED ON THE PERSON(S) HIMSELF, as it shows that they are paying lip service to Islamic teachings and injunctions and failing to follow the true Sunnah of the Prophet (P).
By Dr. Jamal Badawi
In the event of a family dispute, the Qur'an exhorts the husband to treat his wife kindly and not overlook her POSITIVE ASPECTS (see Qur'an 4:19). If the problem relates to the wife's behavior, her husband may exhort her and appeal for reason. In most cases, this measure is likely to be sufficient. In cases where the problem continues, the husband may express his displeasure in another peaceful manner, by sleeping in a separate bed from hers. There are cases, however, in which a wife persists in deliberate mistreatment and expresses contempt of her husband and disregard for her marital obligations. Instead of divorce, the husband may resort to another measure that may save the marriage, at least in some cases. Such a measure is more accurately described as a gentle tap on the body, but NEVER ON THE FACE, making it more of a symbolic measure then a punitive one. Following is the related Qur'anic text:
Men are the protectors and maintainers of women. because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband's) absence what Allah would have them guard. As to those women on whose part you fear disloyalty and ill-conduct, admonish them (first), (next) do not share their beds, (and last) beat (tap) them (lightly); but if they return to obedience, seek not against them means (of annoyance): for Allah is Most High, Great (above you all). (4:34)
Even here, that maximum measure is limited by the following:
a. It must be seen as A RARE EXCEPTION TO THE REPEATED EXHORTATION OF MUTUAL RESPECT, KINDNESS AND GOOD TREATMENT, discussed earlier. Based on the Qur'an and hadith this measure may be used in the cases of lewdness on the part of the wife or extreme refraction and rejection of the husband's reasonable requests on a consistent basis (nushuz). Even then, other measures, such as exhortation, should be tried first.
b. As defined by hadith, it is NOT PERMISSIBLE TO STRIKE ANYONE'S FACE, CAUSE ANY BODILY HARM OR EVEN BE HARSH. What the hadith qualified as dharban ghayra mubarrih, or light striking, was interpreted by early jurists as a (symbolic) use of miswak (a small natural toothbrush)! They further qualified permissible "striking" as that which leaves no mark on the body. It is interesting that this latter fourteen-centuries-old qualifier is the criterion used in contemporary American law to separate a light and harmless tap or strike from "abuse" in the legal sense. This makes it clear that even this extreme, last resort, and "lesser of the two evils" measure that may save a marriage does not meet the definitions of "physical abuse," "family violence, " or "wife battering" in the 20th century law in liberal democracies, where such extremes are so commonplace that they are seen as national concerns.
c. The permissibility of such symbolic expression of the seriousness of continued refraction DOES NOT IMPLY ITS DESIRABILITY. In several ahadith, Prophet Muhammad (P) discouraged this measure. Among his sayings are the following: "Do not beat the female servants of Allah;" "Some (women) visited my family complaining about their husbands (beating them). These (husbands) are not the best of you;" and"[It is not a shame that] one of you beats his wife like [an unscrupulous person] beats a slave and maybe he sleeps with her at the end of the day." (See Riyadh Al-Saliheen, op.cit,p.p. 137-140). In another hadith the Prophet(P) said
...How does anyone of you beat his wife as he beats the stallion camel and then he may embrace (sleep with) her?... (Sahih Al-Bukhari,op.cit., vol.8.hadith 68,pp.42-43).
d. True following of the sunnah is to follow the example of the Prophet Muhammad (P), who NEVER RESORTED TO THAT MEASURE, regardless of the circumstances.
e. Islamic teachings are universal in nature. They respond to the needs and circumstances of diverse times, cultures and circumstances. Some measures may work in some cases and cultures or with certain persons but may not be effective in others. by definition, a "permissible" act is neither required, encouraged or forbidden. In fact it may be BETTER TO SPELL OUT THE EXTENT of permissibility, such as in the issue at hand, rather than leaving it unrestricted and unqualified, or ignoring it all together. In the absence of strict qualifiers, persons may interpret the matter in their own way, which can lead to excesses and real abuse.
f. Any excess, cruelty, family violence, or abuse committed by any "Muslim" can never be traced, honestly, to any revelatory text (Qur'an or hadith). Such EXCESSES AND VIOLATIONS ARE TO BE BLAMED ON THE PERSON(S) HIMSELF, as it shows that they are paying lip service to Islamic teachings and injunctions and failing to follow the true Sunnah of the Prophet (P).
Some Husband and Wife Issues
Some Husband and Wife Issues
By Dr. Muzammil H. Siddiqi
These questions and answers are from Dr. Siddiqi's column, which is published on the Pakistan Link website.
Q 1. A Muslim woman was very badly treated by her husband. For several years she tried to separate from him and asked him for divorce, but he refused to divorce her. Finally she went to the American court and filed for divorce. Now she has received the judgment from the court and her marriage with this husband is dissolved by the American court, but her husband tells her that only a Muslim judge can dissolve the Islamic marriage. The non-Muslim American court has no right to dissolve their Islamic marriage. He insists that they are still married. He has some Fatwas from some 'Ulama in India and Pakistan who support this view. She really does not want to live with him, but he wants to punish her by keeping her in this uncertain condition. What is the solution? Please explain the Islamic position in this matter.
A 1. According to Islamic law only a husband has right to divorce his wife. In case a wife does not want to live with her husband she has a right of Khula', i.e. she should ask her husband to divorce her and in return she may give up her Mahr. If the husband refuses to divorce her and she finds it impossible to live with him, then she can go to a Muslim judge (Qadi) and can ask him for the dissolution of their marriage. Muslim judge has the authority to dissolve Islamic marriage.
The dilemma that Muslims in America face is this that there are no Muslim courts or Muslim judges in this country, and even if some Muslim scholars or imams of some Islamic centers dissolve a marriage according to Islamic laws, the American courts do not recognize Islamic divorces. Until the American court dissolves the marriage, the parties are considered legally married. In America, divorce can only take place by the judgment of the civil court, neither a husband has right to divorce his wife, nor a wife to divorce her husband, nor a religious authority of any religion can dissolve a legal marriage. (To my knowledge the only exception is given to some American Indian groups in their reservations.)
Under these circumstances we can say that Muslims have three options:
In case of marital dispute the husband of wife both should go to a Muslim scholar and both of them should sign an agreement that they would accept his decision. Once the decision is made they should file it in the family court. Such marriage settlement agreement will be according to Islamic law but it is also acceptable under the American family law. Once this agreement is filed it becomes binding on both parties.
Second option is that husband and wife both sign a pre-marital agreement that in case of dispute they will resolve their differences and/or dissolve their marriage according to the Islamic law.
A properly formulated pre-nuptial agreement is acceptable in most of the States and it is binding on both parties. 3. In case they do not have a pre-nuptial agreement or either the husband or the wife refuse to go to an Islamic authority to resolve their disputes, then they have no choice except to go to non-Muslim American courts and because of the necessity and to protect the rights of woman or man, the decision of the American court should be acceptable, as long as it does not contain anything that is clearly forbidden under the Islamic law. Under these circumstances, if a woman obtains a decree of the dissolution of marriage, the Islamic centers should recognize it and should give the woman a letter confirming American court's decision. They may say that under the present circumstances we have no objection to the courts decision and consider this couple no more husband and wife under the Islamic law as well.
Q 2. Can husband and wife or one of them expose themselves in front of each other? (H.Y., Los Angeles)
A 2. Yes, there is no 'awrah (things to be hidden) between the husband and wife. Husband and wife can be naked in front of each other. However, Islam urges human beings to observe haya' (modesty). The Prophet - peace be upon him- said, "The Haya' is part of faith." So one should not be nude unnecessarily. Husband and wife can take their clothes off in front of each other to enjoy their sexual relations at the time of sex, but after that they should cover themselves. It is not good to walk all around the house naked, even in one's privacy what to say in front of others. It is absolutely haram to be nude in front of other people unless it be before the doctor for medical examination and treatment only.
Q 4. Can husband and wife taking bath together?
A 4. Yes, husband and wife are allowed to take bath together.
Q 5. Is husband allowed to drink his wife's milk?
A 5. It is makruh (disliked, not recommended). That milk is for the babies and it should be left for them. However, if, unintentionally, some milk goes into his mouth, it is not forbidden, but he should not plan to drink that milk. Rada'ah or foster relationship and its rules come only when a child under the age of two years drinks a woman's milk several times. If a grown up person drinks a woman's milk, she would not become his foster mother and the rules of rada'ah will not be applicable in this situation.
By Dr. Muzammil H. Siddiqi
These questions and answers are from Dr. Siddiqi's column, which is published on the Pakistan Link website.
Q 1. A Muslim woman was very badly treated by her husband. For several years she tried to separate from him and asked him for divorce, but he refused to divorce her. Finally she went to the American court and filed for divorce. Now she has received the judgment from the court and her marriage with this husband is dissolved by the American court, but her husband tells her that only a Muslim judge can dissolve the Islamic marriage. The non-Muslim American court has no right to dissolve their Islamic marriage. He insists that they are still married. He has some Fatwas from some 'Ulama in India and Pakistan who support this view. She really does not want to live with him, but he wants to punish her by keeping her in this uncertain condition. What is the solution? Please explain the Islamic position in this matter.
A 1. According to Islamic law only a husband has right to divorce his wife. In case a wife does not want to live with her husband she has a right of Khula', i.e. she should ask her husband to divorce her and in return she may give up her Mahr. If the husband refuses to divorce her and she finds it impossible to live with him, then she can go to a Muslim judge (Qadi) and can ask him for the dissolution of their marriage. Muslim judge has the authority to dissolve Islamic marriage.
The dilemma that Muslims in America face is this that there are no Muslim courts or Muslim judges in this country, and even if some Muslim scholars or imams of some Islamic centers dissolve a marriage according to Islamic laws, the American courts do not recognize Islamic divorces. Until the American court dissolves the marriage, the parties are considered legally married. In America, divorce can only take place by the judgment of the civil court, neither a husband has right to divorce his wife, nor a wife to divorce her husband, nor a religious authority of any religion can dissolve a legal marriage. (To my knowledge the only exception is given to some American Indian groups in their reservations.)
Under these circumstances we can say that Muslims have three options:
In case of marital dispute the husband of wife both should go to a Muslim scholar and both of them should sign an agreement that they would accept his decision. Once the decision is made they should file it in the family court. Such marriage settlement agreement will be according to Islamic law but it is also acceptable under the American family law. Once this agreement is filed it becomes binding on both parties.
Second option is that husband and wife both sign a pre-marital agreement that in case of dispute they will resolve their differences and/or dissolve their marriage according to the Islamic law.
A properly formulated pre-nuptial agreement is acceptable in most of the States and it is binding on both parties. 3. In case they do not have a pre-nuptial agreement or either the husband or the wife refuse to go to an Islamic authority to resolve their disputes, then they have no choice except to go to non-Muslim American courts and because of the necessity and to protect the rights of woman or man, the decision of the American court should be acceptable, as long as it does not contain anything that is clearly forbidden under the Islamic law. Under these circumstances, if a woman obtains a decree of the dissolution of marriage, the Islamic centers should recognize it and should give the woman a letter confirming American court's decision. They may say that under the present circumstances we have no objection to the courts decision and consider this couple no more husband and wife under the Islamic law as well.
Q 2. Can husband and wife or one of them expose themselves in front of each other? (H.Y., Los Angeles)
A 2. Yes, there is no 'awrah (things to be hidden) between the husband and wife. Husband and wife can be naked in front of each other. However, Islam urges human beings to observe haya' (modesty). The Prophet - peace be upon him- said, "The Haya' is part of faith." So one should not be nude unnecessarily. Husband and wife can take their clothes off in front of each other to enjoy their sexual relations at the time of sex, but after that they should cover themselves. It is not good to walk all around the house naked, even in one's privacy what to say in front of others. It is absolutely haram to be nude in front of other people unless it be before the doctor for medical examination and treatment only.
Q 4. Can husband and wife taking bath together?
A 4. Yes, husband and wife are allowed to take bath together.
Q 5. Is husband allowed to drink his wife's milk?
A 5. It is makruh (disliked, not recommended). That milk is for the babies and it should be left for them. However, if, unintentionally, some milk goes into his mouth, it is not forbidden, but he should not plan to drink that milk. Rada'ah or foster relationship and its rules come only when a child under the age of two years drinks a woman's milk several times. If a grown up person drinks a woman's milk, she would not become his foster mother and the rules of rada'ah will not be applicable in this situation.
Divorce: Islamic Limits and Regulations
Divorce: Islamic Limits and Regulations
Reprinted from OurDialogue.com
Contents:
Prohibition of divorce during menstruation
Taking an oath of divorce
Where the divorcee resides during the waiting period
Repeated divorce
Reconcile honorably or separate with kindness
The woman's right to demand divorce
The prohibition of ill-treatment to elicit divorce
The prohibition of the oath of desertion
Question from a reader: "Beget children or else ..."
Is conditional divorce valid?
The Islamic Sharee’ah has placed a number of obstacles in the ways of divorce in order to confine it within the narrowest possible compass. Divorce without lawful necessity and without first exhausting all the other means mentioned earlier of resolving the conflict is unlawful and is prohibited in Islam. Some jurists maintain, it is injurious to both husband and wife, unnecessarily damaging the interests of the two, which, like the wasting of property is haram. "Do not harm yourself or others," the Prophet has instructed us.
People who divorce their spouses and marry others in order to enjoy a variety of sexual partners are liked neither by Allah nor by His Messenger. The Prophet called them "the tasters," saying: "I do not like the tasters, men and women," and "Allah does not like the tasters, men and women." Abdullah bin Abbas said, "Divorce is (only) in the case of necessity."
Prohibition of divorce during menstruation
When divorce becomes necessary, it is not permissible for the Muslim to implement it any time he pleases; he must wait for a suitable time. According to the Sharee’ah, this suitable time is when the woman is clean following her menstrual period or the period of perpetual discharge following childbirth and before her husband has resumed sexual relations with her, or when she is pregnant and her husband is aware of her pregnancy.
The reason for prohibiting divorce during menstruation or the period of puerperal discharge is that, since during such periods sexual intercourse is haram, the idea of divorce may come to a man's mind because of sexual frustration and nervous tension. He is therefore advised to wait until his wife is clean and to divorce her then, if he is intent on divorce, before the resumption of marital relations.
Just as divorce during menstruation is haram, it is likewise haram between menstruation periods (i.e. "the period of purity") if the husband has had intercourse with his wife following the termination of her previous period. Because it is possible that she may have become pregnant from this union, the husband may change his mind concerning divorce when he knows that his wife is carrying a child, desiring to stay married to her for the sake of the embryo in her womb. However, when the wife is in the period of purity but he has not had intercourse with her following the termination of her menses, or when she is pregnant and he is aware of it, he will be able to ascertain that his intention to divorce her is the result of deep-seated antipathy, and accordingly is permitted to carry through with the divorce. In the Saheeh of Al-Bukhari, it is transmitted that 'Abdullah bin Umar mentioned [such a]matter to the Messenger of Allah, he became angry, saying: "He must take her back. If he still wishes to divorce her, he may do so when she is clean of the menstrual discharge before having intercourse with her, for that is the period of waiting which Allah has prescribed for divorce." He then referred to the ayat, "O Prophet, when you (men) divorce women, divorce them during the prescribed periods." (65:1). Another version of this hadith reads: "He commanded him to take her back and then divorce her when she is clean from the menstrual discharge or (otherwise) is pregnant."
A question now remains: If a person does divorce his wife during these prohibited periods, does the divorce become effective or not? The prevailing opinion is that it does become effective, although the husband will be considered sinful. However, some jurists hold that, it does not become effective, as Allah did not legislate it so and whatever is not legal cannot be correct or enforced. Abu Dawood, on sound authority, has transmitted that when Abdullah bin Umar was asked, "What would you say if a man were to divorce his wife during menstruation?" he related his own story of divorcing his wife during her period and the Prophet's commanding him to take her back, disregarding his pronouncement of divorce.
Taking an oath of divorce
It is not permissible for Muslims to take an oath of divorce, vowing that if particular event does not occur, his wife will be divorced, or to threaten her by saying that if she does this or that particular thing, she will be divorced. In Islam an oath may be expressed only in one specific manner, that is, in the name of Allah alone. Apart from this, no other form of oath-taking is permitted. The Prophet said, "Anyone who swears by (anything) other than Allah, has committed shirk." and "Whosoever wants to take an oath should take it in the name of Allah or keep silent."
Where the Divorcee resides during the waiting period
The Islamic Sharee’ah requires that the divorced woman remains in her home, her husband's house, for the duration of her iddah (waiting period). It is not permissible for her to move from the house, as it is likewise not permissible for her husband to evict her without a just cause. This requirement leaves the way open, during the iddah following a first or second pronouncement of divorce, for the husband to revert to his wife without the requirement of remarriage. Her presence in the same house with him makes it quite probable that the mutual sympathy and love between them may be rekindled. If she is pregnant, the passing of months will make her pregnancy obvious, which may be a further inducement to him to change his mind. In any case, ample time is at their disposal to reconsider the whole situation. With the healing effect of time, feelings of antipathy may give place to affection and reconciliation, and the revitalization of their love may occur.
"...And fear Allah, your Lord. Do not turn them out of their houses, nor shall they leave (of their own accord) unless they commit some clear immorality; and these are the limits set by Allah. And whoever transgresses Allah's limits indeed wrongs his own soul. Thou knowest not; it may be that Allah will afterwards bring some new thing to pass." (65:1)
"If they must separate, it should be done with dignity and kindness, without mutual abuse, injury, recrimination, or infringement of rights, Says Allah Ta'ala: "Either retain them in kindness or part with them in kindness..." (2:229).
"For divorced women a provision (shall be made) in kindness, a duty for those who are conscious of Allah." (2:241).
Repeated divorce
The Muslim is allowed three chances, that is to say, three pronouncements or acts of divorce on three different occasions, provided that each divorce is pronounced during the time when the wife is in the period of purity and he has had no intercourse with her.
A husband may divorce his wife once and let the iddah pass. During the period of iddah, the two have the options of being reconciled without the necessity of remarriage. If, however, this waiting period expires without reconciliation, they are now fully divorced. Each of them is free to marry someone else or to remarry each other; should they want to remarry each other, a new marriage contract is required.
If after the first divorce the husband is reconciled with his wife but later the hostility and conflict begin all over again, all efforts at reconciliation and arbitration resulting in failure, he may divorce her a second time in the same manner as described above. In this case, too, he can return to her during the iddah without remarriage, or after the iddah has expired through a new marriage contract.
But it may happen that although he is reconciled with his wife again after the second divorce, he may later divorce her for the third time. This will then be a clear proof that the hostility between the two of them runs very deep and that they are incapable of living together. If this third divorce takes place, it is not possible for the husband to return to his wife during her iddah nor may he remarry her after the iddah unless she has been married to another man, to live with him as a permanent and true wife, and he then subsequently divorces her. It is, however, totally prohibited for the other man to marry and divorce her simply in order to make her halal for her first husband.
Those Muslims who utter three divorce pronouncements at one time or in one statement are rebels against Allah's law and are deviating from the straight path of Islam. Once the Prophet was informed about a man who had pronounced three divorces at one time. He got up in anger, saying, "Is sport being made of the Book of Allah while I am (yet) among you?" As a result, a man stood up and said, "O Messenger of Allah, shall I not kill him?"
Reconcile honorably or separate with kindness
When the husband has divorced his wife and the period of iddah is passing, he has two alternatives : either to reconcile with her honorably - that is, to return to her with the intention of living in peace and harmony, and not in order to torment or harm her - or to free her and part with her in kindness by allowing the iddah to expire without arguments and harsh words, and without setting aside any of their mutual rights.
It is unlawful for him to return to her just because the iddah is due to expire in order to torment her by prolonging the waiting period, thus depriving her of the opportunity to marry someone else. This was something that was done in the period of jahiliyyah. Allah Ta'ala then prohibited this injury to women in a very decisive manner, using a style of expression which makes the heart quake:
"And when you have divorced women and they have fulfilled the term (of their iddah), either retain them honorably or release them honorably; but do not retain them in order to injure them, for this is transgression, and whoever does this has wronged his own soul. And do not take the revelations of Allah in mockery, but remember Allah's favor upon you and what He has sent down to you of the Book and the Wisdom, to instruct you by means of it. And be conscious of Allah, and know that Allah is aware of everything." (2:231)
A little reflection upon this noble ayat of seven phrases, containing warning after warning, reminder after reminder, ought to be sufficient for anyone who has any feeling in his heart or any hearing when it is recited.
The woman's right to demand divorce
The woman who cannot bear to live with her husband has the right to free herself from the marriage bond by returning to her husband the mahr (required marriage gift) and gifts he has given her, or more or less than that according to their mutual agreement. It is, however, preferable that he should not ask for more than he has given her. Allah Ta'ala says:
"...And if you fear that the two may not be able to keep to the limits ordained by Allah, there is no blame on either of them if she redeems herself ..." (2:229)
The wife of Thabit bin Qais came to the Prophet and said, "O Messenger of Allah, I do not approach Thabit bin Qais in respect of character and religion, but I do not want to be guilty of showing anger to him." The Prophet asked her about what she had received from him. She replied, "A garden". He asked, "Will you give him back his garden?" "Yes", she said. The Prophet then told Thabit, "Accept the garden and make one declaration of divorce."
It is not permissible for a woman to seek divorce from her husband unless she has borne ill-treatment from him or unless she has an acceptable reason which requires their separation. Said the Prophet, "If any woman asks her husband for a divorce without some strong reason, the fragrance of the Garden will be forbidden to her."
The prohibition of ill-treatment to elicit divorce
It is haram for the husband to torment and mistreat his wife in order to compel her to seek a divorce so that she will return to him all or part of the property he has given her. Only if the wife is guilty of clear immorality, may her husband demand the return of all or part of the mahr to him. In this regard Allah Ta'ala says:
"...Nor should you treat them with harshness in order that you may take away part of what you have given them, unless they are guilty of open lewdness." (4:19).
It is also haram for a husband to take back anything from his wife because he hates her and wants to divorce her so he can marry another woman. As Almighty Allah says:
"But if you decide to take one wife in place of another, even if you have given one of them a heap of gold, do not take (back) anything of it; would you take it back by slander and a manifest wrong: And could you take it back, when each of you has been privately with the other, and they (the wives) have taken a solemn covenant from you?" (4:20-21)
The prohibition of the oath of desertion
One of the aspects of Islam's concern for the rights of women is that it prohibits a man to be so angry with his wife as to discontinue sexual relations with her for a period which she cannot bear. If this abandonment of sexual relations is accompanied by an oath on his part, he is given a limit of four months in which to calm down and revert to her. If he comes to his norms and resumes sexual relations before the expiration of the four months, it is possible that Allah may forgive him for his excesses and open the door of repentance to him; however, he must still do the penance prescribed for a broken oath. If, on the other hand, this period expires and he has not returned to her, his wife is divorced from him as a just punishment for his neglect of her rights.
Some jurists hold that the divorce is automatic at the expiry of four months and no judgment from a court is needed. Others, however, require that at the end of the period the matter should be referred to the judicial authority, who will then give them the option of reconciliation or divorce. [Added: That is variable in keeping the laws of various countries, but religiously they are automatically divorced.]
Such an oath of abstention from the wife is technically known in the Sharee’ah as eela. Concerning it Allah Ta'ala says:
"For those who take an oath of abstention from their wives, a waiting period of four months (is ordained); if they return, indeed, Allah is Forgiving, Merciful. But if their intention is firm for divorce, then, indeed, (Allah) is Hearing, Knowing." (2:226-227)
This period of four months has been specified to give the husband ample time to calm himself and to restore the relationship of his volition. Moreover, four months is normally regarded as the maximum period a woman can endure separation from her husband. Commentators on the Qur'an narrate the following incident in support of this opinion:
Caliph Umar found that a woman's husband had been gone on a military expedition for a long time. He then asked his daughter Hafsah, the widow of the Prophet, "How long can a woman endure separation from her husband?" She replied, "Four months." Subsequently, the caliph of the Believers decided that he would not send a married man away from his wife for a period exceeding four months.
Question from a Reader: "Beget children or else ..."
QUESTION: I have been married for four years during which my parents-in law have put too much pressure on me to beget children, going to the extent of forcing me to have surgery and to try to conceive through the test-tube baby technique. We even have three frozen embryos waiting to be placed inside me for gestation. I went through too much stress and agony right from the beginning. However, the cause for my failure to conceive lies with my husband and this is clear from tests carried out on both of us. He had promised me never to divorce me, but now he is saying that he cannot refuse his parents’ request to divorce me. He also says that he obtained a ruling from scholars in Deoband that he must obey his parents in this request. I have told him that it is better for the two of us to live in our own house, but he has not provided me with that, although it is not difficult for him to do so. He says that there is much pressure on him, with his father threatening to disinherit him. Furthermore, the father is insisting that I will have to spend my waiting period in my parents’ home. It is now several months since we are separated with him living abroad, and he has not yet acted on his parents’ request. I will be grateful for your advice.
ANSWER: I am not sure whether an outline of the Islamic view on the different aspects of this problem will go a long way in helping the parties to sort it out. It appears to me that at least some of the parties are not interested even to find out the Islamic view. The husband’s father, for example, threatens to disinherit his son if he does not divorce his wife. Has he bothered to find out whether this option is open to him under the Islamic law? The fact is that no parent, or anyone for that matter, may disinherit an heir for any reason. The identity of the heirs and their respective shares are a matter that Allah Himself has determined in a very elaborate system of inheritance which He has laid down in the Qur’an. For anyone to try to disinherit any one of his heirs is an act of aggression on Allah’s authority. It represents a claim of equality with Allah, since a law can be amended only by one who is either equal or superior to the one who made the law. That is not accepted from anyone.
On the other hand, begetting children is also something that Allah determines in His wisdom. He says in the Qur’an: "He grants whosoever He wills female offspring, and He gives male offspring to whomever He wills; Or He may give them both male and female, and He may leave others sterile. He is All-Knowing, Able.." (42: 49-50) These two verses spell out very clearly the fact that the creation of human being, or any other creatures, is a matter of Allah’s will which is free of all restrictions and influences. If He has determined that a certain couple will not have children, there is no way that they will get a child, no matter what medical treatment and technology is available to them. On the other hand, if He decides to give a couple a child against all indications that show that the couple could not have a child, nothing will prevent His will. There was a case of a woman in Scotland who had an operation to stop her getting pregnant. This operation is practically the total answer to unwanted pregnancies. Yet she was pregnant in a few months. I have a friend who was told by a top specialist in Britain that there was no possibility that his wife would ever get pregnant, and before the year was out she had given birth to the first of her children. With her background, my reader should fully understand this. It is certainly wrong that her husband’s family are putting so much pressure on her in the matter of having a child.
I do not know whether it is wise to use the test-tube technique in this case, but then again, it was not the Islamic view that the family sought before deciding on a particular line of action. To determine whether the embryos that have been produced though this technique should be placed in the woman’s womb for gestation or left to die is an intricate question that could be answered only after a thorough study of the case. However, if she conceives through this method, the child is illegitimate unless both the sperms and the egg were taken from the couple themselves. The use of a third party is not acceptable.
On the question of divorce, I think my reader should review her situation with her husband and his family very carefully. From what she writes, it appears that it may be in her interest that this marriage is dissolved. However, the way she is trying to keep her marriage suggests that she has not given up on her husband yet, and that she believes that if left to themselves, she and her husband can still make their marriage successful. That is perhaps the reason for her attempt to settle with her husband in their own home. I can tell her that this is her right if her husband can afford that. It is also her right to be given a chance to solve her problems in consultation with her husband, or through the appointment of two arbiters, one from her family and the other from her husband’s family.
As for the rulings her husband claims to have had from the scholars of Deoband, I feel that, if true, the ruling does not take all factors into consideration. What we need to remember is that a scholar gives his ruling on the basis of the question which is put to him. If he is asked whether a husband should obey his father when he tells him to divorce his wife, the scholar is likely to answer that he should, provided all other methods have been exhausted. If the question is qualified with the introduction of certain factors that affect the case, the answer is likely to differ. Therefore, our reader should request her husband to agree that the two of them should apply together for a ruling, after both of them agree on the phraseology of the question. He will be surprised that the answer is certain to be different. Hence, we should not read too much in the answer he has already got.
What I should say when a reader puts to me a general question whether he should obey his father if he asks him to divorce his wife is to tell him that his wife also has rights which he must make sure to respect and fulfill. Judging only by the information my reader has supplied, I feel that if her husband divorces her for the reason he has given, he may be guilty of injustice. Allah does not accept injustice, even when it is the result of a son obeying his parents.
The Prophet, peace be upon him, says: "No creature may be obeyed in what constitutes disobedience to the Creator." In a Qudsi Hadith, Allah is quoted as saying: "My servants, I have forbidden Myself injustice, and have made injustice forbidden among you. Do not be unjust to one another."
If her husband divorces my reader only to please his parents, without considering her rightful claims, then he could easily be guilty of injustice. It is wrong of him to do that. The least he is expected to do is to try to give his wife her full rights, including a fair chance to look at what is needed to make their marriage successful. That could be through proper discussion between the two of them, or through the mediation of two arbiters, or in consultation with other people who could give a neutral opinion. Whatever is decided at the end should be based on full justice on both parties.
As to what her husband tells our reader of the pressure and stress he is under, may I remind him that in Islam, a man is considered a shepherd in his own household. He should take care of his family as a shepherd takes care of his flock. He must not let that pressure produce injustice at his own hands to those who he is supposed to look after. It is he who will be asked by Allah on the Day of Judgment whether he has taken care of his flock, or his wife in this case. As he remembers his duty toward his parents, he should also remember that the Prophet, peace be upon him, has told us all: "Take care of your women."
Is he acting on the Prophet’s advice when he divorces his wife to please his parents when she has done them no wrong?
Is Conditional Divorce Valid?
Having tried hard to discipline his wife, without much success, a man writes down what he wants her to do. He gives her that paper after he has written clearly at the bottom of it: "Disobedience of these instructions would be tantamount to divorce." She nevertheless disobeys his instructions and he immediately stops his marital relationship with her. Is she actually divorced? Do they require a remarriage, if they wish to resume their marital relationship?
Islam views marriage and divorce very seriously. The Prophet says that there are three matters which must be taken seriously, whether they are said in earnest or jest. These are: "marriage, divorce and freeing of a slave." If we reflect for a moment on this wisdom of making all talk on the freeing of slaves serious, we understand how much Islam cares for the feelings of those who are in a position which makes them vulnerable to abuse by other people. Let us imagine for a moment a slave whose master tells him that he would be free after three days or when he has completed a particular assignment, etc. Then three days later, or on the completion of the assignment, the master tells the slave that he was only joking and that he did not expect him to take his words seriously. The slave would be broken-hearted and he could easily harbor ill feelings toward his master. Now that slavery has disappeared, thanks to Allah, such a cruelty does not take place. We can appreciate, however, how Islam cares for the feelings of those who are vulnerable.
As we all know, Islam has allowed divorce because it is needed as a solution for social problems. However, a husband who wishes to divorce his wife must abide by the rules which Allah has laid down, and the Prophet has explained and elaborated, for the divorce to be proper and valid. For example, a husband must make sure that the time is appropriate for him to divorce his wife. It is forbidden for a man to divorce his wife when she is in her menstruation period or after they had sexual intercourse during a period of cleanliness from menstruation. It is also forbidden to divorce her three times on the same occasion. But hardly any divorcing husband pauses to consider whether the time is right for him to divorce. The majority of people tend to think that unless they pronounce the word of divorce three times, the divorce is not valid. They thus hasten to utter something which Allah has forbidden. They earn his displeasure and land themselves in trouble. When the Prophet was told that a man divorced his wife three times together, he was very angry. He said to his companions: "Is Allah's book to be taken lightly when I am still alive among you?" (Related by An-Nassaie). Abdullah ibn Abbas reports that Rukana ibn Abd Yazeed divorced his wife three times on the same occasion, and he was very sad for having done so. The Prophet asked him: "How have you divorced her?" He answered: I have divorced her thrice. The Prophet asked: "On the same occasion?" When the man answered in the affirmative, the Prophet said: "That is a single divorce. You may remarry her if you wish."
The Islamic system does not allow for conditional divorce. Thus, if someone says to his wife, "you are divorced in three months time, or at the end of the year, or when I have arrived at my office, etc." she continues to be his wife at the end of the period he has specified or on his arrival at his office. This is simply unacceptable as a way of divorce. Many prominent scholars are of the view that a conditional divorce is not valid. The family law of Egypt which has been based on the Islamic law, does not recognize such a divorce.
I am more inclined to the ruling given by Imam ibn Taimiyah, that a conditional divorce is considered on the basis of the circumstances of each case. When a man tells his wife that she is divorced if she does something he specifies, then he will have to answer a simple question: would he prefer to see his marriage terminated rather than see his wife do what he told her not to do? Or was he simply using the threat of divorce in order to frighten her into obeying his instructions? If he says that his statement was only meant as a warning, then no divorce takes place as a result of her disobedience. On the other hand, if he insists that he meant his statement as divorce, because he would rather divorce her than see her doing what she did, then that is a divorce. In this latter case, the man has clearly meant his words to be a divorce. Hence, the divorce takes place. This means that each case is treated on its merits and according to the intention of the husband.
[If we apply this rule to the case in question, the husband should judge his intentions at the time he wrote the note and come to his own conclusion.]
Reprinted from OurDialogue.com
Contents:
Prohibition of divorce during menstruation
Taking an oath of divorce
Where the divorcee resides during the waiting period
Repeated divorce
Reconcile honorably or separate with kindness
The woman's right to demand divorce
The prohibition of ill-treatment to elicit divorce
The prohibition of the oath of desertion
Question from a reader: "Beget children or else ..."
Is conditional divorce valid?
The Islamic Sharee’ah has placed a number of obstacles in the ways of divorce in order to confine it within the narrowest possible compass. Divorce without lawful necessity and without first exhausting all the other means mentioned earlier of resolving the conflict is unlawful and is prohibited in Islam. Some jurists maintain, it is injurious to both husband and wife, unnecessarily damaging the interests of the two, which, like the wasting of property is haram. "Do not harm yourself or others," the Prophet has instructed us.
People who divorce their spouses and marry others in order to enjoy a variety of sexual partners are liked neither by Allah nor by His Messenger. The Prophet called them "the tasters," saying: "I do not like the tasters, men and women," and "Allah does not like the tasters, men and women." Abdullah bin Abbas said, "Divorce is (only) in the case of necessity."
Prohibition of divorce during menstruation
When divorce becomes necessary, it is not permissible for the Muslim to implement it any time he pleases; he must wait for a suitable time. According to the Sharee’ah, this suitable time is when the woman is clean following her menstrual period or the period of perpetual discharge following childbirth and before her husband has resumed sexual relations with her, or when she is pregnant and her husband is aware of her pregnancy.
The reason for prohibiting divorce during menstruation or the period of puerperal discharge is that, since during such periods sexual intercourse is haram, the idea of divorce may come to a man's mind because of sexual frustration and nervous tension. He is therefore advised to wait until his wife is clean and to divorce her then, if he is intent on divorce, before the resumption of marital relations.
Just as divorce during menstruation is haram, it is likewise haram between menstruation periods (i.e. "the period of purity") if the husband has had intercourse with his wife following the termination of her previous period. Because it is possible that she may have become pregnant from this union, the husband may change his mind concerning divorce when he knows that his wife is carrying a child, desiring to stay married to her for the sake of the embryo in her womb. However, when the wife is in the period of purity but he has not had intercourse with her following the termination of her menses, or when she is pregnant and he is aware of it, he will be able to ascertain that his intention to divorce her is the result of deep-seated antipathy, and accordingly is permitted to carry through with the divorce. In the Saheeh of Al-Bukhari, it is transmitted that 'Abdullah bin Umar mentioned [such a]matter to the Messenger of Allah, he became angry, saying: "He must take her back. If he still wishes to divorce her, he may do so when she is clean of the menstrual discharge before having intercourse with her, for that is the period of waiting which Allah has prescribed for divorce." He then referred to the ayat, "O Prophet, when you (men) divorce women, divorce them during the prescribed periods." (65:1). Another version of this hadith reads: "He commanded him to take her back and then divorce her when she is clean from the menstrual discharge or (otherwise) is pregnant."
A question now remains: If a person does divorce his wife during these prohibited periods, does the divorce become effective or not? The prevailing opinion is that it does become effective, although the husband will be considered sinful. However, some jurists hold that, it does not become effective, as Allah did not legislate it so and whatever is not legal cannot be correct or enforced. Abu Dawood, on sound authority, has transmitted that when Abdullah bin Umar was asked, "What would you say if a man were to divorce his wife during menstruation?" he related his own story of divorcing his wife during her period and the Prophet's commanding him to take her back, disregarding his pronouncement of divorce.
Taking an oath of divorce
It is not permissible for Muslims to take an oath of divorce, vowing that if particular event does not occur, his wife will be divorced, or to threaten her by saying that if she does this or that particular thing, she will be divorced. In Islam an oath may be expressed only in one specific manner, that is, in the name of Allah alone. Apart from this, no other form of oath-taking is permitted. The Prophet said, "Anyone who swears by (anything) other than Allah, has committed shirk." and "Whosoever wants to take an oath should take it in the name of Allah or keep silent."
Where the Divorcee resides during the waiting period
The Islamic Sharee’ah requires that the divorced woman remains in her home, her husband's house, for the duration of her iddah (waiting period). It is not permissible for her to move from the house, as it is likewise not permissible for her husband to evict her without a just cause. This requirement leaves the way open, during the iddah following a first or second pronouncement of divorce, for the husband to revert to his wife without the requirement of remarriage. Her presence in the same house with him makes it quite probable that the mutual sympathy and love between them may be rekindled. If she is pregnant, the passing of months will make her pregnancy obvious, which may be a further inducement to him to change his mind. In any case, ample time is at their disposal to reconsider the whole situation. With the healing effect of time, feelings of antipathy may give place to affection and reconciliation, and the revitalization of their love may occur.
"...And fear Allah, your Lord. Do not turn them out of their houses, nor shall they leave (of their own accord) unless they commit some clear immorality; and these are the limits set by Allah. And whoever transgresses Allah's limits indeed wrongs his own soul. Thou knowest not; it may be that Allah will afterwards bring some new thing to pass." (65:1)
"If they must separate, it should be done with dignity and kindness, without mutual abuse, injury, recrimination, or infringement of rights, Says Allah Ta'ala: "Either retain them in kindness or part with them in kindness..." (2:229).
"For divorced women a provision (shall be made) in kindness, a duty for those who are conscious of Allah." (2:241).
Repeated divorce
The Muslim is allowed three chances, that is to say, three pronouncements or acts of divorce on three different occasions, provided that each divorce is pronounced during the time when the wife is in the period of purity and he has had no intercourse with her.
A husband may divorce his wife once and let the iddah pass. During the period of iddah, the two have the options of being reconciled without the necessity of remarriage. If, however, this waiting period expires without reconciliation, they are now fully divorced. Each of them is free to marry someone else or to remarry each other; should they want to remarry each other, a new marriage contract is required.
If after the first divorce the husband is reconciled with his wife but later the hostility and conflict begin all over again, all efforts at reconciliation and arbitration resulting in failure, he may divorce her a second time in the same manner as described above. In this case, too, he can return to her during the iddah without remarriage, or after the iddah has expired through a new marriage contract.
But it may happen that although he is reconciled with his wife again after the second divorce, he may later divorce her for the third time. This will then be a clear proof that the hostility between the two of them runs very deep and that they are incapable of living together. If this third divorce takes place, it is not possible for the husband to return to his wife during her iddah nor may he remarry her after the iddah unless she has been married to another man, to live with him as a permanent and true wife, and he then subsequently divorces her. It is, however, totally prohibited for the other man to marry and divorce her simply in order to make her halal for her first husband.
Those Muslims who utter three divorce pronouncements at one time or in one statement are rebels against Allah's law and are deviating from the straight path of Islam. Once the Prophet was informed about a man who had pronounced three divorces at one time. He got up in anger, saying, "Is sport being made of the Book of Allah while I am (yet) among you?" As a result, a man stood up and said, "O Messenger of Allah, shall I not kill him?"
Reconcile honorably or separate with kindness
When the husband has divorced his wife and the period of iddah is passing, he has two alternatives : either to reconcile with her honorably - that is, to return to her with the intention of living in peace and harmony, and not in order to torment or harm her - or to free her and part with her in kindness by allowing the iddah to expire without arguments and harsh words, and without setting aside any of their mutual rights.
It is unlawful for him to return to her just because the iddah is due to expire in order to torment her by prolonging the waiting period, thus depriving her of the opportunity to marry someone else. This was something that was done in the period of jahiliyyah. Allah Ta'ala then prohibited this injury to women in a very decisive manner, using a style of expression which makes the heart quake:
"And when you have divorced women and they have fulfilled the term (of their iddah), either retain them honorably or release them honorably; but do not retain them in order to injure them, for this is transgression, and whoever does this has wronged his own soul. And do not take the revelations of Allah in mockery, but remember Allah's favor upon you and what He has sent down to you of the Book and the Wisdom, to instruct you by means of it. And be conscious of Allah, and know that Allah is aware of everything." (2:231)
A little reflection upon this noble ayat of seven phrases, containing warning after warning, reminder after reminder, ought to be sufficient for anyone who has any feeling in his heart or any hearing when it is recited.
The woman's right to demand divorce
The woman who cannot bear to live with her husband has the right to free herself from the marriage bond by returning to her husband the mahr (required marriage gift) and gifts he has given her, or more or less than that according to their mutual agreement. It is, however, preferable that he should not ask for more than he has given her. Allah Ta'ala says:
"...And if you fear that the two may not be able to keep to the limits ordained by Allah, there is no blame on either of them if she redeems herself ..." (2:229)
The wife of Thabit bin Qais came to the Prophet and said, "O Messenger of Allah, I do not approach Thabit bin Qais in respect of character and religion, but I do not want to be guilty of showing anger to him." The Prophet asked her about what she had received from him. She replied, "A garden". He asked, "Will you give him back his garden?" "Yes", she said. The Prophet then told Thabit, "Accept the garden and make one declaration of divorce."
It is not permissible for a woman to seek divorce from her husband unless she has borne ill-treatment from him or unless she has an acceptable reason which requires their separation. Said the Prophet, "If any woman asks her husband for a divorce without some strong reason, the fragrance of the Garden will be forbidden to her."
The prohibition of ill-treatment to elicit divorce
It is haram for the husband to torment and mistreat his wife in order to compel her to seek a divorce so that she will return to him all or part of the property he has given her. Only if the wife is guilty of clear immorality, may her husband demand the return of all or part of the mahr to him. In this regard Allah Ta'ala says:
"...Nor should you treat them with harshness in order that you may take away part of what you have given them, unless they are guilty of open lewdness." (4:19).
It is also haram for a husband to take back anything from his wife because he hates her and wants to divorce her so he can marry another woman. As Almighty Allah says:
"But if you decide to take one wife in place of another, even if you have given one of them a heap of gold, do not take (back) anything of it; would you take it back by slander and a manifest wrong: And could you take it back, when each of you has been privately with the other, and they (the wives) have taken a solemn covenant from you?" (4:20-21)
The prohibition of the oath of desertion
One of the aspects of Islam's concern for the rights of women is that it prohibits a man to be so angry with his wife as to discontinue sexual relations with her for a period which she cannot bear. If this abandonment of sexual relations is accompanied by an oath on his part, he is given a limit of four months in which to calm down and revert to her. If he comes to his norms and resumes sexual relations before the expiration of the four months, it is possible that Allah may forgive him for his excesses and open the door of repentance to him; however, he must still do the penance prescribed for a broken oath. If, on the other hand, this period expires and he has not returned to her, his wife is divorced from him as a just punishment for his neglect of her rights.
Some jurists hold that the divorce is automatic at the expiry of four months and no judgment from a court is needed. Others, however, require that at the end of the period the matter should be referred to the judicial authority, who will then give them the option of reconciliation or divorce. [Added: That is variable in keeping the laws of various countries, but religiously they are automatically divorced.]
Such an oath of abstention from the wife is technically known in the Sharee’ah as eela. Concerning it Allah Ta'ala says:
"For those who take an oath of abstention from their wives, a waiting period of four months (is ordained); if they return, indeed, Allah is Forgiving, Merciful. But if their intention is firm for divorce, then, indeed, (Allah) is Hearing, Knowing." (2:226-227)
This period of four months has been specified to give the husband ample time to calm himself and to restore the relationship of his volition. Moreover, four months is normally regarded as the maximum period a woman can endure separation from her husband. Commentators on the Qur'an narrate the following incident in support of this opinion:
Caliph Umar found that a woman's husband had been gone on a military expedition for a long time. He then asked his daughter Hafsah, the widow of the Prophet, "How long can a woman endure separation from her husband?" She replied, "Four months." Subsequently, the caliph of the Believers decided that he would not send a married man away from his wife for a period exceeding four months.
Question from a Reader: "Beget children or else ..."
QUESTION: I have been married for four years during which my parents-in law have put too much pressure on me to beget children, going to the extent of forcing me to have surgery and to try to conceive through the test-tube baby technique. We even have three frozen embryos waiting to be placed inside me for gestation. I went through too much stress and agony right from the beginning. However, the cause for my failure to conceive lies with my husband and this is clear from tests carried out on both of us. He had promised me never to divorce me, but now he is saying that he cannot refuse his parents’ request to divorce me. He also says that he obtained a ruling from scholars in Deoband that he must obey his parents in this request. I have told him that it is better for the two of us to live in our own house, but he has not provided me with that, although it is not difficult for him to do so. He says that there is much pressure on him, with his father threatening to disinherit him. Furthermore, the father is insisting that I will have to spend my waiting period in my parents’ home. It is now several months since we are separated with him living abroad, and he has not yet acted on his parents’ request. I will be grateful for your advice.
ANSWER: I am not sure whether an outline of the Islamic view on the different aspects of this problem will go a long way in helping the parties to sort it out. It appears to me that at least some of the parties are not interested even to find out the Islamic view. The husband’s father, for example, threatens to disinherit his son if he does not divorce his wife. Has he bothered to find out whether this option is open to him under the Islamic law? The fact is that no parent, or anyone for that matter, may disinherit an heir for any reason. The identity of the heirs and their respective shares are a matter that Allah Himself has determined in a very elaborate system of inheritance which He has laid down in the Qur’an. For anyone to try to disinherit any one of his heirs is an act of aggression on Allah’s authority. It represents a claim of equality with Allah, since a law can be amended only by one who is either equal or superior to the one who made the law. That is not accepted from anyone.
On the other hand, begetting children is also something that Allah determines in His wisdom. He says in the Qur’an: "He grants whosoever He wills female offspring, and He gives male offspring to whomever He wills; Or He may give them both male and female, and He may leave others sterile. He is All-Knowing, Able.." (42: 49-50) These two verses spell out very clearly the fact that the creation of human being, or any other creatures, is a matter of Allah’s will which is free of all restrictions and influences. If He has determined that a certain couple will not have children, there is no way that they will get a child, no matter what medical treatment and technology is available to them. On the other hand, if He decides to give a couple a child against all indications that show that the couple could not have a child, nothing will prevent His will. There was a case of a woman in Scotland who had an operation to stop her getting pregnant. This operation is practically the total answer to unwanted pregnancies. Yet she was pregnant in a few months. I have a friend who was told by a top specialist in Britain that there was no possibility that his wife would ever get pregnant, and before the year was out she had given birth to the first of her children. With her background, my reader should fully understand this. It is certainly wrong that her husband’s family are putting so much pressure on her in the matter of having a child.
I do not know whether it is wise to use the test-tube technique in this case, but then again, it was not the Islamic view that the family sought before deciding on a particular line of action. To determine whether the embryos that have been produced though this technique should be placed in the woman’s womb for gestation or left to die is an intricate question that could be answered only after a thorough study of the case. However, if she conceives through this method, the child is illegitimate unless both the sperms and the egg were taken from the couple themselves. The use of a third party is not acceptable.
On the question of divorce, I think my reader should review her situation with her husband and his family very carefully. From what she writes, it appears that it may be in her interest that this marriage is dissolved. However, the way she is trying to keep her marriage suggests that she has not given up on her husband yet, and that she believes that if left to themselves, she and her husband can still make their marriage successful. That is perhaps the reason for her attempt to settle with her husband in their own home. I can tell her that this is her right if her husband can afford that. It is also her right to be given a chance to solve her problems in consultation with her husband, or through the appointment of two arbiters, one from her family and the other from her husband’s family.
As for the rulings her husband claims to have had from the scholars of Deoband, I feel that, if true, the ruling does not take all factors into consideration. What we need to remember is that a scholar gives his ruling on the basis of the question which is put to him. If he is asked whether a husband should obey his father when he tells him to divorce his wife, the scholar is likely to answer that he should, provided all other methods have been exhausted. If the question is qualified with the introduction of certain factors that affect the case, the answer is likely to differ. Therefore, our reader should request her husband to agree that the two of them should apply together for a ruling, after both of them agree on the phraseology of the question. He will be surprised that the answer is certain to be different. Hence, we should not read too much in the answer he has already got.
What I should say when a reader puts to me a general question whether he should obey his father if he asks him to divorce his wife is to tell him that his wife also has rights which he must make sure to respect and fulfill. Judging only by the information my reader has supplied, I feel that if her husband divorces her for the reason he has given, he may be guilty of injustice. Allah does not accept injustice, even when it is the result of a son obeying his parents.
The Prophet, peace be upon him, says: "No creature may be obeyed in what constitutes disobedience to the Creator." In a Qudsi Hadith, Allah is quoted as saying: "My servants, I have forbidden Myself injustice, and have made injustice forbidden among you. Do not be unjust to one another."
If her husband divorces my reader only to please his parents, without considering her rightful claims, then he could easily be guilty of injustice. It is wrong of him to do that. The least he is expected to do is to try to give his wife her full rights, including a fair chance to look at what is needed to make their marriage successful. That could be through proper discussion between the two of them, or through the mediation of two arbiters, or in consultation with other people who could give a neutral opinion. Whatever is decided at the end should be based on full justice on both parties.
As to what her husband tells our reader of the pressure and stress he is under, may I remind him that in Islam, a man is considered a shepherd in his own household. He should take care of his family as a shepherd takes care of his flock. He must not let that pressure produce injustice at his own hands to those who he is supposed to look after. It is he who will be asked by Allah on the Day of Judgment whether he has taken care of his flock, or his wife in this case. As he remembers his duty toward his parents, he should also remember that the Prophet, peace be upon him, has told us all: "Take care of your women."
Is he acting on the Prophet’s advice when he divorces his wife to please his parents when she has done them no wrong?
Is Conditional Divorce Valid?
Having tried hard to discipline his wife, without much success, a man writes down what he wants her to do. He gives her that paper after he has written clearly at the bottom of it: "Disobedience of these instructions would be tantamount to divorce." She nevertheless disobeys his instructions and he immediately stops his marital relationship with her. Is she actually divorced? Do they require a remarriage, if they wish to resume their marital relationship?
Islam views marriage and divorce very seriously. The Prophet says that there are three matters which must be taken seriously, whether they are said in earnest or jest. These are: "marriage, divorce and freeing of a slave." If we reflect for a moment on this wisdom of making all talk on the freeing of slaves serious, we understand how much Islam cares for the feelings of those who are in a position which makes them vulnerable to abuse by other people. Let us imagine for a moment a slave whose master tells him that he would be free after three days or when he has completed a particular assignment, etc. Then three days later, or on the completion of the assignment, the master tells the slave that he was only joking and that he did not expect him to take his words seriously. The slave would be broken-hearted and he could easily harbor ill feelings toward his master. Now that slavery has disappeared, thanks to Allah, such a cruelty does not take place. We can appreciate, however, how Islam cares for the feelings of those who are vulnerable.
As we all know, Islam has allowed divorce because it is needed as a solution for social problems. However, a husband who wishes to divorce his wife must abide by the rules which Allah has laid down, and the Prophet has explained and elaborated, for the divorce to be proper and valid. For example, a husband must make sure that the time is appropriate for him to divorce his wife. It is forbidden for a man to divorce his wife when she is in her menstruation period or after they had sexual intercourse during a period of cleanliness from menstruation. It is also forbidden to divorce her three times on the same occasion. But hardly any divorcing husband pauses to consider whether the time is right for him to divorce. The majority of people tend to think that unless they pronounce the word of divorce three times, the divorce is not valid. They thus hasten to utter something which Allah has forbidden. They earn his displeasure and land themselves in trouble. When the Prophet was told that a man divorced his wife three times together, he was very angry. He said to his companions: "Is Allah's book to be taken lightly when I am still alive among you?" (Related by An-Nassaie). Abdullah ibn Abbas reports that Rukana ibn Abd Yazeed divorced his wife three times on the same occasion, and he was very sad for having done so. The Prophet asked him: "How have you divorced her?" He answered: I have divorced her thrice. The Prophet asked: "On the same occasion?" When the man answered in the affirmative, the Prophet said: "That is a single divorce. You may remarry her if you wish."
The Islamic system does not allow for conditional divorce. Thus, if someone says to his wife, "you are divorced in three months time, or at the end of the year, or when I have arrived at my office, etc." she continues to be his wife at the end of the period he has specified or on his arrival at his office. This is simply unacceptable as a way of divorce. Many prominent scholars are of the view that a conditional divorce is not valid. The family law of Egypt which has been based on the Islamic law, does not recognize such a divorce.
I am more inclined to the ruling given by Imam ibn Taimiyah, that a conditional divorce is considered on the basis of the circumstances of each case. When a man tells his wife that she is divorced if she does something he specifies, then he will have to answer a simple question: would he prefer to see his marriage terminated rather than see his wife do what he told her not to do? Or was he simply using the threat of divorce in order to frighten her into obeying his instructions? If he says that his statement was only meant as a warning, then no divorce takes place as a result of her disobedience. On the other hand, if he insists that he meant his statement as divorce, because he would rather divorce her than see her doing what she did, then that is a divorce. In this latter case, the man has clearly meant his words to be a divorce. Hence, the divorce takes place. This means that each case is treated on its merits and according to the intention of the husband.
[If we apply this rule to the case in question, the husband should judge his intentions at the time he wrote the note and come to his own conclusion.]
Divorce in the Shari'ah
Divorce in the Shari'ah
Reprinted from "A Journey Through Islam" website
"Generally speaking married couples make their best efforts to continue their marital relations in cordiality and happiness."(1) There are those occasions where it becomes impossible for a couple to maintain a viable relationship (i.e. neglect, abuse, etc.). In these cases "the Shari'ah takes a very reasonable view of such an intolerable situation and instead of forcing the couple to stay together...."(2) it permits a divorce.
There are three kinds of divorce in Islam:
The first is Talaq (by the husband) and the second is Talaq Al-Bida'h (Divorce of Innovation) and Khul' (by the wife).
Talaq
Talaq has two forms:
1. Talaq ar-Raji': (revocable divorce) which has two types:
Talaq Ahsan: (the most approved divorce). It is meant as a means to heal the breach between a couple and allow for the soothing of frayed nerves. It has three conditions. The husband must only pronounce one Talaq. The Talaq must be only pronounced when the wife is in a state of purity. The husband must abstain from sexual contact with his wife for the 'iddah (the waiting period) which is three months.
Talaq Hasan: (approved). In this form divorce is pronounced in three successive periods. After the first two the husband has the right to take his wife back if they so desire to reunite but if he pronounces divorce a third time it becomes irrevocable. The wife must marry another at this time.
2. Talaq al-Bain: (irrevocable divorce). This is a divorce that with three pronouncements in successive sittings or at the same sitting or before the consummation of the marriage. There is no return allowed under these circumstances unless the woman has an intervening marriage.
"Talaq is a right available mainly to the husband, but not to the wife. Even though Islam allows divorce, the Prophet (pbuh) says: 'Of all things that Islam has permitted, divorce is the most hated by Allah.' Hasty and wanton use of the right of divorce is regarded as most condemnable in Islam." (3)
Surah Al-Baqarah 229: "A divorce is only permissible twice. After that the parties should either hold together on equitable terms or separate with kindness."
This could be likened to the "three strikes and you're out" policy.
Talaq Al-Bida'h (Divorce of Innovation)
This was a type of divorce that made its appearance after the death of the Prophet (pbuh). It is where the man pronounces Talaq three times at one sitting or sends it in writing to his wife. This is a sin against the precepts of the Shari'ah and was severely denounced by the Prophet and Khalif `Umar would whip a husband who did such a thing.
Khul'
This a divorce that is instigated by the wife. It is where she applies to a Qadi for divorce.
Surah An-Nisa' 128 : If a wife fears cruelty or desertion on husband's part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though men's souls are swayed by greed. But if you practice self-restraint, Allah is well-acquainted with all that you do.
In the case of Khul', the wife must return all or part of the mahr (the dower). A case in point, where the woman would be allowed to keep the mahr, is what Imam Malik said and that was if a wife was forced by her husband to enter Khul', she would be entitled to get the mahr back.
The issue of divorce is covered in more detail in the book "Woman in Shari'ah (Islamic Law)" by 'Abdur Rahman I. Doi.
Reprinted from "A Journey Through Islam" website
"Generally speaking married couples make their best efforts to continue their marital relations in cordiality and happiness."(1) There are those occasions where it becomes impossible for a couple to maintain a viable relationship (i.e. neglect, abuse, etc.). In these cases "the Shari'ah takes a very reasonable view of such an intolerable situation and instead of forcing the couple to stay together...."(2) it permits a divorce.
There are three kinds of divorce in Islam:
The first is Talaq (by the husband) and the second is Talaq Al-Bida'h (Divorce of Innovation) and Khul' (by the wife).
Talaq
Talaq has two forms:
1. Talaq ar-Raji': (revocable divorce) which has two types:
Talaq Ahsan: (the most approved divorce). It is meant as a means to heal the breach between a couple and allow for the soothing of frayed nerves. It has three conditions. The husband must only pronounce one Talaq. The Talaq must be only pronounced when the wife is in a state of purity. The husband must abstain from sexual contact with his wife for the 'iddah (the waiting period) which is three months.
Talaq Hasan: (approved). In this form divorce is pronounced in three successive periods. After the first two the husband has the right to take his wife back if they so desire to reunite but if he pronounces divorce a third time it becomes irrevocable. The wife must marry another at this time.
2. Talaq al-Bain: (irrevocable divorce). This is a divorce that with three pronouncements in successive sittings or at the same sitting or before the consummation of the marriage. There is no return allowed under these circumstances unless the woman has an intervening marriage.
"Talaq is a right available mainly to the husband, but not to the wife. Even though Islam allows divorce, the Prophet (pbuh) says: 'Of all things that Islam has permitted, divorce is the most hated by Allah.' Hasty and wanton use of the right of divorce is regarded as most condemnable in Islam." (3)
Surah Al-Baqarah 229: "A divorce is only permissible twice. After that the parties should either hold together on equitable terms or separate with kindness."
This could be likened to the "three strikes and you're out" policy.
Talaq Al-Bida'h (Divorce of Innovation)
This was a type of divorce that made its appearance after the death of the Prophet (pbuh). It is where the man pronounces Talaq three times at one sitting or sends it in writing to his wife. This is a sin against the precepts of the Shari'ah and was severely denounced by the Prophet and Khalif `Umar would whip a husband who did such a thing.
Khul'
This a divorce that is instigated by the wife. It is where she applies to a Qadi for divorce.
Surah An-Nisa' 128 : If a wife fears cruelty or desertion on husband's part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though men's souls are swayed by greed. But if you practice self-restraint, Allah is well-acquainted with all that you do.
In the case of Khul', the wife must return all or part of the mahr (the dower). A case in point, where the woman would be allowed to keep the mahr, is what Imam Malik said and that was if a wife was forced by her husband to enter Khul', she would be entitled to get the mahr back.
The issue of divorce is covered in more detail in the book "Woman in Shari'ah (Islamic Law)" by 'Abdur Rahman I. Doi.
Divorce in Islam
Divorce in Islam
By Reem Sultan
Reprinted from the Islamic Information Center of America website, iica.org
Divorce in every religion is controversial. On one hand, it brings about the disintegration of family life with consequent unhappiness for the children born of that marriage. On the other hand, dissolution of marriage might be desirable when the spouses can no longer live in harmony and have lost all mutual respect for one another. Continuance of an unhappy marriage breeds hate and disgust and is likely to ruin the emotional well- being of the children, or of the either one of the spouses. Islam tends to take a realistic a sympathetic view of human affairs, and thus stresses on the happiness of both spouses. If a husband and wife cannot live happily together in peace and harmony and are not satisfied with their matrimonial life, in these sense that they have physical, emotional, and sexual problems with each other, the Quran prescribes them "Divorce", only if the problems are severe.
"If they disagree and must part, Allah (The God) will provide abundance for all from His all reaching bounty. For Allah is He who cares for all and is wise.” (Quran sura 4, aya 130).
However, every attempt should be made to solve these differences, since Islam does not approve of divorce on frivolous grounds. There must be a valid and significant reason for a disruption of this sacred bond to occur.
The Prophet Muhammad (PBUH) said: "Of all the permitted things divorce is the most abominable by God." and "Marry and do not divorce, undoubtedly the throne of the beneficent Lord shakes due to divorce."
Before the advent of Islam, divorce was considered to be a frivolous affair by which an angry man could throw his wife out of the house without any valid reason, leaving the unfortunate woman with no recourse to any legal procedure nor any right to maintenance from him. Pagan Arabs used to divorce their wives at any time, arbitrarily. They also used to revoke the divorce, and then pronounce divorce again and repeat the game as many times as they could ' They would, at their pleasure, mistreat the wife, and accuse her of adultery, misconduct, or disobedience. Thus smearing her reputation, which would deter other suitors.
In the midst of these customs Islam introduced to mankind a code for life, which laid down rules and regulations that must be followed in order to live a righteous and noble life. If we thoroughly examine these Islamic laws, under the four schools of jurisprudence, we can see that they take into account the different tentative aspects and situations of divorce to guide the Muslim "Ummah" towards a decision that will affect them for rest of their lives.
The legal term for divorce in Islam is "Talaq". In its literal sense it means "undoing of, or release from a knot". It is a ten-n used by many Muslim jurists to denote the release of a woman from a marital tie. The process of "Talaq" consists of many, components, which are essential to the proper and valid breakage of a marital bond. As part of this intricate process, the Quran prescribes that, if a man decides to repudiate his wife, he should call two men of justice (preferably Muslims) to witness his action:
"And take for witnesses. Two persons from among you, endued with justice. And establish the evidence." (Quran sura 65, aya 2)
There are no specific prescribed words in the Quran that are to be used by a husband to pronounce divorce to his wife. However, the words should convey the intention of the husband to dissolve the marriage. It is necessary that he must be of sound mind, not a minor, and be capable of using his own discretion to reach such a decision. Therefore, a divorce pronounced by an insane man or a child is not considered to be valid.
The Prophet Mohammed (PBUH) said: "Any divorce is lawful except the divorce given by a person whose intellect is overpowered." This leads us to the question of whether divorce is valid if given without proper intention, that is, under the influence of alcohol, or drugs, or in a state of extreme anger, or by way of jest, or even without free choice (if he is under a threat of his life or property). According to the Malikite, Shafites, and Hanbalite school of jurisprudence, such a divorce is invalid and unacceptable in the eyes of Islamic law. However, the Hanifite school, on the contrary, accepts such a divorce and constitutes it to be valid. It is also essential that when a man expresses his intention to annul a marriage, his wife is not to be in her monthly menstrual cycle, since Allah (The God), does not approve of any hasty decision regarding her future to take place in her period of sexual incapacitation.
Thus, once the conditions are met, "Talaq" can fall under two broad categories; "Talaq al Raji", which is revocable divorce and "Talaq al Bidi", which is irrevocable divorce.
In "Talaq al Raji", the husband pronounces "Talaq" once or at the most twice. This is based on the following Quranic injunction:
"A divorce is only permissible twice. After that the parties should either hold together on equitable terms or separate with kindness." (Quran sura 2, aya 29).
After the first pronouncement, the period of waiting starts immediately. This is an important component in the process of divorce in Islam. It is basically, in this case, a waiting period of three months in which their is abstinence of sexual intercourse between the husband and the wife The purpose of fixing such a long period of waiting is to determine if the wife is pregnant or not, and to encourage attraction in the husband towards the wife. This period gives him an opportunity to reconsider his decision about the divorce. Thus, the husband has the right to exercise "Raja" which is the return of the wife to him. The Holy Quran says:
"And the husband has the better right to take them back in that period if they wish for reconciliation” (Quran sura 4, aya 130).
It suffices just to utter words such as, "I take you back" or to resume sexual relations to constitute reconciliation. According to the Shafites, however, return is not possible without uttering specific wordings. The Malikites, Hanbalites, and the Hanifites, on the contrary, do not require any sort of specific wordings.
Talaq al Raji may take one of the two forms:
"Ahsan" or "Hasan", "Talaq al Ahsan" is "the most approved" form of Talaq. It is so named because of the approval it received from the Prophet Mohammed (PBUH). "Ahsan" is effected by a single declaration of repudiation, during a woman's “clean period", and by subsequent abstention from intercourse with her, during her period waiting. In this period, however, repudiation is revocable and the husband may resume conjugal relations with his wife. Until the period of waiting has expired, the marriage tie is not dissolved. The husband retains marital authority over the wife, and if during this period either party dies the other may inherit. The right to revoke repudiation before waiting expires exists only in the cases where the marriage has been consummated. Repudiation of a wife with whom the marriage has not been consummated is irrevocable.
"Talaq al Hasan", on the other hand, is a less approved form of divorce. It is so named because it commands a degree less in the approval of the Prophet (PBUH) as compared to "Talaq al Ahsan". It is effected by three repudiations in three successive "clean periods". After the first and the second repudiation the situation is the same as in the "Ahsan" form of divorce, that is, the repudiation is revocable. It becomes absolute when the third repudiation has been pronounced or when the period of iddah has expired without revocation of repudiation.
Another category of divorce is "Talaq al Bidi which is irrevocable divorce. It is a form which is not approved or recognized by the Prophet (PBUH). It is effected by three repudiations, which may be pronounced at any time and without definite intervals. Although Islamically this method of divorce is regarded sinful, it is nevertheless recognized as effective and produces the same results as "Talaq al Hasan".
It is reported that on a certain occasion when news was brought to the Prophet (PBUH), that one of his disciples had divorced his wife, pronouncing the three repudiations (talaqs) at one and the same time, the Prophet stood in anger on his carpet and declared that the man was making a playing of the words of God and made him take back his wife.
Once the "Talaq" process is underway, the question of responsibility of maintenance of the wife arises. The Holy Quran points out in Surat al Talaq:
"Let women in iddah live in the same style as you live, according to your means. Trouble them not in such a way as to make things difficult for them." (Quran sura 65, aya 6).
Thus the husband's responsibility for the maintenance of his wife and his children by her, pertains not only when they are living with him, but continues in the event of divorce. There are some selfish people who may mistreat their wives and make their lives miserable after pronouncing divorce while they are still in iddah. This is forbidden. A wife must be provided for in the same standard of living as her husband's standard. There is still hope of reconciliation, and even if there is not, the parting must still be honorable. According to the Maliki, Hanifi, Hanbali, and Shafii jurists, it is the duty of the husband to provide financial security and accommodation to the wife during her period of waiting, only if the marriage has been consummated.
However, no maintenance is due to a finally divorced woman, nor is she entitled to any past maintenance except under the Shafii school. In fixing the sum to be paid for maintenance, all the schools lay down the rule that the Qadi (Judge) will exercise his discretion considering the rank and circumstances of both the spouses. This principle is based on the following Quranic verse:
"Let the man of means spend according to his means, and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him." (Quran sura 65, aya 7).
In the event of pregnancy, the Holy Quran imposes additional responsibility. No separation is permissible until after the child is born. Hence she must be properly maintained. As for the child, its nursing, welfare, and similarly, the care of the mother remains the father’s responsibility. All four jurists agree unanimously on this principle, as it is stated in the Holy Quran:
"Mothers shall give suck to their offspring for two whole years, if the father wishes to complete the term, but he shall bear the cost of their food and clothing on equitable terms." (Quran sura 2, aya 233).
It should be noted that in Islam the wife also has the right to demand of her husband a divorce. However, instead of "Talaq" it is termed "Khul" and in its literal sense it means releasing or removing the dress from the body. This is an appropriate allusion to the verse of the Holy Quran, which says:
"Women are your garment and you are their garment." (Quran sura 2, aya 182).
The Maliki jurists define "Khul" as "a divorce by giving something in return. According to the Hanifi, Shafii and Hanbali jurists," it is the end of a marital relationship with consent and with the utterance of the word "Khul".
The Holy Quran permits a wife to ask for a divorce only on legitimate grounds, such as fears of cruelty or desertion. It states:
"If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best." (Quran sura 4, aya 128).
Thus, when a wife feels that her husband is failing to perform his marital duties, she can obtain her release from the marriage by giving up all or some of the dower she received at the time of her marriage. In consideration of this, the husband agrees to the "khul", and the divorce is complete. However "Khul" case has to go to court, where the Qadi must first of all ascertain whether the wife really dislikes her husband so much that she cannot live with him anymore. If the court is satisfied, it will fix as compensation anything that it considers proper, and the husband will have to accept this and divorce his wife. All four jurists are generally of the option that the compensation should not exceed the dowry given by the husband at the time of marriage.
Thus, by analyzing the divorce laws, we can see that Islam provides an equal and fair opportunity of the husband and wife to leave a marital relationship that they consider to be detrimental to their well being. These rules and laws that have been laid down by the Holy Quran and sunnah to enables Muslims to make a rational judgment regarding their future. Islam encourages the Muslim "Ummah" to take their time and make an intelligent decision that is free of anger and misunderstanding. It is obviously preferred by Allah that Muslims refrain from divorce and try to live together in peace and tranquillity, since such a choice leads to a healthy family and a healthy Muslim society.
By Reem Sultan
Reprinted from the Islamic Information Center of America website, iica.org
Divorce in every religion is controversial. On one hand, it brings about the disintegration of family life with consequent unhappiness for the children born of that marriage. On the other hand, dissolution of marriage might be desirable when the spouses can no longer live in harmony and have lost all mutual respect for one another. Continuance of an unhappy marriage breeds hate and disgust and is likely to ruin the emotional well- being of the children, or of the either one of the spouses. Islam tends to take a realistic a sympathetic view of human affairs, and thus stresses on the happiness of both spouses. If a husband and wife cannot live happily together in peace and harmony and are not satisfied with their matrimonial life, in these sense that they have physical, emotional, and sexual problems with each other, the Quran prescribes them "Divorce", only if the problems are severe.
"If they disagree and must part, Allah (The God) will provide abundance for all from His all reaching bounty. For Allah is He who cares for all and is wise.” (Quran sura 4, aya 130).
However, every attempt should be made to solve these differences, since Islam does not approve of divorce on frivolous grounds. There must be a valid and significant reason for a disruption of this sacred bond to occur.
The Prophet Muhammad (PBUH) said: "Of all the permitted things divorce is the most abominable by God." and "Marry and do not divorce, undoubtedly the throne of the beneficent Lord shakes due to divorce."
Before the advent of Islam, divorce was considered to be a frivolous affair by which an angry man could throw his wife out of the house without any valid reason, leaving the unfortunate woman with no recourse to any legal procedure nor any right to maintenance from him. Pagan Arabs used to divorce their wives at any time, arbitrarily. They also used to revoke the divorce, and then pronounce divorce again and repeat the game as many times as they could ' They would, at their pleasure, mistreat the wife, and accuse her of adultery, misconduct, or disobedience. Thus smearing her reputation, which would deter other suitors.
In the midst of these customs Islam introduced to mankind a code for life, which laid down rules and regulations that must be followed in order to live a righteous and noble life. If we thoroughly examine these Islamic laws, under the four schools of jurisprudence, we can see that they take into account the different tentative aspects and situations of divorce to guide the Muslim "Ummah" towards a decision that will affect them for rest of their lives.
The legal term for divorce in Islam is "Talaq". In its literal sense it means "undoing of, or release from a knot". It is a ten-n used by many Muslim jurists to denote the release of a woman from a marital tie. The process of "Talaq" consists of many, components, which are essential to the proper and valid breakage of a marital bond. As part of this intricate process, the Quran prescribes that, if a man decides to repudiate his wife, he should call two men of justice (preferably Muslims) to witness his action:
"And take for witnesses. Two persons from among you, endued with justice. And establish the evidence." (Quran sura 65, aya 2)
There are no specific prescribed words in the Quran that are to be used by a husband to pronounce divorce to his wife. However, the words should convey the intention of the husband to dissolve the marriage. It is necessary that he must be of sound mind, not a minor, and be capable of using his own discretion to reach such a decision. Therefore, a divorce pronounced by an insane man or a child is not considered to be valid.
The Prophet Mohammed (PBUH) said: "Any divorce is lawful except the divorce given by a person whose intellect is overpowered." This leads us to the question of whether divorce is valid if given without proper intention, that is, under the influence of alcohol, or drugs, or in a state of extreme anger, or by way of jest, or even without free choice (if he is under a threat of his life or property). According to the Malikite, Shafites, and Hanbalite school of jurisprudence, such a divorce is invalid and unacceptable in the eyes of Islamic law. However, the Hanifite school, on the contrary, accepts such a divorce and constitutes it to be valid. It is also essential that when a man expresses his intention to annul a marriage, his wife is not to be in her monthly menstrual cycle, since Allah (The God), does not approve of any hasty decision regarding her future to take place in her period of sexual incapacitation.
Thus, once the conditions are met, "Talaq" can fall under two broad categories; "Talaq al Raji", which is revocable divorce and "Talaq al Bidi", which is irrevocable divorce.
In "Talaq al Raji", the husband pronounces "Talaq" once or at the most twice. This is based on the following Quranic injunction:
"A divorce is only permissible twice. After that the parties should either hold together on equitable terms or separate with kindness." (Quran sura 2, aya 29).
After the first pronouncement, the period of waiting starts immediately. This is an important component in the process of divorce in Islam. It is basically, in this case, a waiting period of three months in which their is abstinence of sexual intercourse between the husband and the wife The purpose of fixing such a long period of waiting is to determine if the wife is pregnant or not, and to encourage attraction in the husband towards the wife. This period gives him an opportunity to reconsider his decision about the divorce. Thus, the husband has the right to exercise "Raja" which is the return of the wife to him. The Holy Quran says:
"And the husband has the better right to take them back in that period if they wish for reconciliation” (Quran sura 4, aya 130).
It suffices just to utter words such as, "I take you back" or to resume sexual relations to constitute reconciliation. According to the Shafites, however, return is not possible without uttering specific wordings. The Malikites, Hanbalites, and the Hanifites, on the contrary, do not require any sort of specific wordings.
Talaq al Raji may take one of the two forms:
"Ahsan" or "Hasan", "Talaq al Ahsan" is "the most approved" form of Talaq. It is so named because of the approval it received from the Prophet Mohammed (PBUH). "Ahsan" is effected by a single declaration of repudiation, during a woman's “clean period", and by subsequent abstention from intercourse with her, during her period waiting. In this period, however, repudiation is revocable and the husband may resume conjugal relations with his wife. Until the period of waiting has expired, the marriage tie is not dissolved. The husband retains marital authority over the wife, and if during this period either party dies the other may inherit. The right to revoke repudiation before waiting expires exists only in the cases where the marriage has been consummated. Repudiation of a wife with whom the marriage has not been consummated is irrevocable.
"Talaq al Hasan", on the other hand, is a less approved form of divorce. It is so named because it commands a degree less in the approval of the Prophet (PBUH) as compared to "Talaq al Ahsan". It is effected by three repudiations in three successive "clean periods". After the first and the second repudiation the situation is the same as in the "Ahsan" form of divorce, that is, the repudiation is revocable. It becomes absolute when the third repudiation has been pronounced or when the period of iddah has expired without revocation of repudiation.
Another category of divorce is "Talaq al Bidi which is irrevocable divorce. It is a form which is not approved or recognized by the Prophet (PBUH). It is effected by three repudiations, which may be pronounced at any time and without definite intervals. Although Islamically this method of divorce is regarded sinful, it is nevertheless recognized as effective and produces the same results as "Talaq al Hasan".
It is reported that on a certain occasion when news was brought to the Prophet (PBUH), that one of his disciples had divorced his wife, pronouncing the three repudiations (talaqs) at one and the same time, the Prophet stood in anger on his carpet and declared that the man was making a playing of the words of God and made him take back his wife.
Once the "Talaq" process is underway, the question of responsibility of maintenance of the wife arises. The Holy Quran points out in Surat al Talaq:
"Let women in iddah live in the same style as you live, according to your means. Trouble them not in such a way as to make things difficult for them." (Quran sura 65, aya 6).
Thus the husband's responsibility for the maintenance of his wife and his children by her, pertains not only when they are living with him, but continues in the event of divorce. There are some selfish people who may mistreat their wives and make their lives miserable after pronouncing divorce while they are still in iddah. This is forbidden. A wife must be provided for in the same standard of living as her husband's standard. There is still hope of reconciliation, and even if there is not, the parting must still be honorable. According to the Maliki, Hanifi, Hanbali, and Shafii jurists, it is the duty of the husband to provide financial security and accommodation to the wife during her period of waiting, only if the marriage has been consummated.
However, no maintenance is due to a finally divorced woman, nor is she entitled to any past maintenance except under the Shafii school. In fixing the sum to be paid for maintenance, all the schools lay down the rule that the Qadi (Judge) will exercise his discretion considering the rank and circumstances of both the spouses. This principle is based on the following Quranic verse:
"Let the man of means spend according to his means, and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him." (Quran sura 65, aya 7).
In the event of pregnancy, the Holy Quran imposes additional responsibility. No separation is permissible until after the child is born. Hence she must be properly maintained. As for the child, its nursing, welfare, and similarly, the care of the mother remains the father’s responsibility. All four jurists agree unanimously on this principle, as it is stated in the Holy Quran:
"Mothers shall give suck to their offspring for two whole years, if the father wishes to complete the term, but he shall bear the cost of their food and clothing on equitable terms." (Quran sura 2, aya 233).
It should be noted that in Islam the wife also has the right to demand of her husband a divorce. However, instead of "Talaq" it is termed "Khul" and in its literal sense it means releasing or removing the dress from the body. This is an appropriate allusion to the verse of the Holy Quran, which says:
"Women are your garment and you are their garment." (Quran sura 2, aya 182).
The Maliki jurists define "Khul" as "a divorce by giving something in return. According to the Hanifi, Shafii and Hanbali jurists," it is the end of a marital relationship with consent and with the utterance of the word "Khul".
The Holy Quran permits a wife to ask for a divorce only on legitimate grounds, such as fears of cruelty or desertion. It states:
"If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best." (Quran sura 4, aya 128).
Thus, when a wife feels that her husband is failing to perform his marital duties, she can obtain her release from the marriage by giving up all or some of the dower she received at the time of her marriage. In consideration of this, the husband agrees to the "khul", and the divorce is complete. However "Khul" case has to go to court, where the Qadi must first of all ascertain whether the wife really dislikes her husband so much that she cannot live with him anymore. If the court is satisfied, it will fix as compensation anything that it considers proper, and the husband will have to accept this and divorce his wife. All four jurists are generally of the option that the compensation should not exceed the dowry given by the husband at the time of marriage.
Thus, by analyzing the divorce laws, we can see that Islam provides an equal and fair opportunity of the husband and wife to leave a marital relationship that they consider to be detrimental to their well being. These rules and laws that have been laid down by the Holy Quran and sunnah to enables Muslims to make a rational judgment regarding their future. Islam encourages the Muslim "Ummah" to take their time and make an intelligent decision that is free of anger and misunderstanding. It is obviously preferred by Allah that Muslims refrain from divorce and try to live together in peace and tranquillity, since such a choice leads to a healthy family and a healthy Muslim society.
Introduction to Tafseer of Surat At-Talaq
Introduction to Tafseer of Surat At-Talaq
By Syed Abu Al-Ala Al-Maududi
From the introduction to Surat At-Talaq in Maududi's Tafseer of the Qur'an
Name of the Surah
At-Talaq is not only the name of this Surah but also the title of its subject matter, for it contains commandments about Talaq (divorce) itself. Hadrat `Abdullah bin Mas`ud has described it as Surah an-Nisa al-qusra also, i.e. the shorter Surah an-Nisa.
Period of Revelation
Hadrat Abdullah bin Masud has Pointed out, and the internal evidence of the subject matter of the Surah confirms the same, that it must have been sent down after those verses of Surah Al-Baqarah in which commandments concerning divorce were given for the first time. Although it is difficult to determine precisely what is its exact date of revelation, yet the traditions in any case indicate that when the people started making errors in understanding the commandments of Surah Al-Baqarah, and practically also they began to commit mistakes, Allah sent down these instructions for their correction.
Theme and Subject Matter
In order to understand the commandments of this Surah, it would be useful to refresh one's memory about the instructions which have been given in the Qur'an concerning divorce and the waiting period (Iddat) above.
"Divorce may be pronounced twice; then the wife may either be kept back in fairness or allowed to separate in fairness." (Al Baqarah 229 )
"And the divorced women (after the pronouncement of the divorce) must wait for three monthly courses... and their husbands are fully entitled to take them back (as their wives) during this waiting period, if they desire reconciliation." (Al Baqarah228)
"Then, if the husband divorces his wife (for the third time), she shall not remain lawful for him after this divorce, unless she marries another husband..." (Al-Baqarah :230)
"When you marry the believing women, and then divorce them before you have touched them, they do not have to fulfill a waiting period, the completion of which you may demand of them." (Al-Ahzab :49)
"And if those of you who die, leave wives behind, the women should abstain (from marriage) for four months and ten days." (Al-Baqarah 234)
The rules prescribed in these verses were as follows:
1 . A man can pronounce at the most three divorces on his wife.
2 . In case the husband has pronounced one or two divorces he is entitled to keep the woman back as wife within the waiting period and if after the expiry of the waiting period the two desire to re-marry, they can re- marry there is no condition of legalization (tahlil). But if the husband has pronounced three divorces, he forfeits his right to keep her as his wife within the waiting. period, and they cannot re-marry unless the woman re-marries another husband and he subsequently divorces her of his own free will.
3 . The waiting period of the woman who menstruates and marriage with whom has been consummated, is that she should pass three monthly courses. The waiting period in case of one or two divorces is that the woman is still the legal wife of the husband and he can keep her back as his wife within the waiting period. But if the husband has pronounced three divorces, this waiting period cannot be taken advantage of for the purpose of reconciliation, but it is only meant to restrain the woman from re-marrying another person before it comes to an end.
4 . There is no waiting. period for the woman, marriage with whom has not been consummated, and who is divorced even before she is touched. She can re-marry, if she likes, immediately after the divorce.
5 . The waiting period of the woman whose husband dies, is four months and ten days.
Here, one should understand well that Surah At- Talaq was not sent down to annul any of these rules or amend it, but it was sent down for two purposes:
First, that the man who has been given the right to pronounce divorce should be taught such judicious methods of using this right as do not lead to separation, as far as possible. However, if separation does take place, it should only be in case all possibilities of mutual reconciliation have been exhausted. For in the Divine Law provision for divorce has been made only as an unavoidable necessity; otherwise Allah does not approve that the marriage relationship that has been established between a man and a woman should ever break. The Holy Prophet (upon whom be Allah's peace) has said, "Allah has not made lawful anything more hateful in His sight than divorce." (Abu Daud). And: "Of all the things permitted by the Law, the most hateful in the sight of Allah is the divorce." (Abu Daud)
The second object was to complement this section of the family law of Islam by supplying answers to the questions that had remained after the revelation of the commandments in Surah Al-Baqarah. So answers have been supplied to the following questions:
What would be the waiting period of the women, marriage with whom has been consummated and who no longer menstruate, or those who have not yet menstruated, in case they are divorced?
What would be the waiting period of the woman, who is pregnant, or the woman whose husband dies, if she is divorced?
And what arrangements would be made for the maintenance and lodging of the different categories of divorced women, and for the fosterage of the child whose parents have separated on account of a divorce?
By Syed Abu Al-Ala Al-Maududi
From the introduction to Surat At-Talaq in Maududi's Tafseer of the Qur'an
Name of the Surah
At-Talaq is not only the name of this Surah but also the title of its subject matter, for it contains commandments about Talaq (divorce) itself. Hadrat `Abdullah bin Mas`ud has described it as Surah an-Nisa al-qusra also, i.e. the shorter Surah an-Nisa.
Period of Revelation
Hadrat Abdullah bin Masud has Pointed out, and the internal evidence of the subject matter of the Surah confirms the same, that it must have been sent down after those verses of Surah Al-Baqarah in which commandments concerning divorce were given for the first time. Although it is difficult to determine precisely what is its exact date of revelation, yet the traditions in any case indicate that when the people started making errors in understanding the commandments of Surah Al-Baqarah, and practically also they began to commit mistakes, Allah sent down these instructions for their correction.
Theme and Subject Matter
In order to understand the commandments of this Surah, it would be useful to refresh one's memory about the instructions which have been given in the Qur'an concerning divorce and the waiting period (Iddat) above.
"Divorce may be pronounced twice; then the wife may either be kept back in fairness or allowed to separate in fairness." (Al Baqarah 229 )
"And the divorced women (after the pronouncement of the divorce) must wait for three monthly courses... and their husbands are fully entitled to take them back (as their wives) during this waiting period, if they desire reconciliation." (Al Baqarah228)
"Then, if the husband divorces his wife (for the third time), she shall not remain lawful for him after this divorce, unless she marries another husband..." (Al-Baqarah :230)
"When you marry the believing women, and then divorce them before you have touched them, they do not have to fulfill a waiting period, the completion of which you may demand of them." (Al-Ahzab :49)
"And if those of you who die, leave wives behind, the women should abstain (from marriage) for four months and ten days." (Al-Baqarah 234)
The rules prescribed in these verses were as follows:
1 . A man can pronounce at the most three divorces on his wife.
2 . In case the husband has pronounced one or two divorces he is entitled to keep the woman back as wife within the waiting period and if after the expiry of the waiting period the two desire to re-marry, they can re- marry there is no condition of legalization (tahlil). But if the husband has pronounced three divorces, he forfeits his right to keep her as his wife within the waiting. period, and they cannot re-marry unless the woman re-marries another husband and he subsequently divorces her of his own free will.
3 . The waiting period of the woman who menstruates and marriage with whom has been consummated, is that she should pass three monthly courses. The waiting period in case of one or two divorces is that the woman is still the legal wife of the husband and he can keep her back as his wife within the waiting period. But if the husband has pronounced three divorces, this waiting period cannot be taken advantage of for the purpose of reconciliation, but it is only meant to restrain the woman from re-marrying another person before it comes to an end.
4 . There is no waiting. period for the woman, marriage with whom has not been consummated, and who is divorced even before she is touched. She can re-marry, if she likes, immediately after the divorce.
5 . The waiting period of the woman whose husband dies, is four months and ten days.
Here, one should understand well that Surah At- Talaq was not sent down to annul any of these rules or amend it, but it was sent down for two purposes:
First, that the man who has been given the right to pronounce divorce should be taught such judicious methods of using this right as do not lead to separation, as far as possible. However, if separation does take place, it should only be in case all possibilities of mutual reconciliation have been exhausted. For in the Divine Law provision for divorce has been made only as an unavoidable necessity; otherwise Allah does not approve that the marriage relationship that has been established between a man and a woman should ever break. The Holy Prophet (upon whom be Allah's peace) has said, "Allah has not made lawful anything more hateful in His sight than divorce." (Abu Daud). And: "Of all the things permitted by the Law, the most hateful in the sight of Allah is the divorce." (Abu Daud)
The second object was to complement this section of the family law of Islam by supplying answers to the questions that had remained after the revelation of the commandments in Surah Al-Baqarah. So answers have been supplied to the following questions:
What would be the waiting period of the women, marriage with whom has been consummated and who no longer menstruate, or those who have not yet menstruated, in case they are divorced?
What would be the waiting period of the woman, who is pregnant, or the woman whose husband dies, if she is divorced?
And what arrangements would be made for the maintenance and lodging of the different categories of divorced women, and for the fosterage of the child whose parents have separated on account of a divorce?
Talaaq: Divorce
Talaaq: Divorce
on the Scales of Islamic Sharia'h
By Bilal Abu Aisha
Reprinted from Nida 'ul Islam (islam.org.au), January 2003 edition
When a person wishes to worship Allah truly and properly, he must submit to Allah’s commands regardless of whether the commands are related to prayers, fasting, business transactions, marriage or divorce. And when not equipped with authentic Islamic knowledge (or when knowledge and understanding are not translated into action), and the person chooses to follow desires and whims over what’s prescribed in the noble guidance of Qur’an and the Prophet (saw), this will inevitably lead to problems in the various facets of the person’s life, especially in marital affairs.
Marital discord is not only exhibited by husbands but, in many cases, by wives, especially those influenced by the feminist movement or materialistic West, and who failed to turn completely to the Quran and Sunnah to live their lives. Such attitudes led to a great deal of marital discord among couples. Unfortunately, in many instances couples do not realise the steps needed to be taken to bring an end to such discord without hatred and desire for revenge; or for their marriage to return to its proper state, have been stipulated in the Quran and Sunnah over 1400 years ago.
The Prophet (saw) said: The lawful thing which Allah hates most is divorce. This hadith shows divorce is among the legal things that are Halal but not good. It is Halal because sometimes the situation is so complicated that a man is compelled to divorce, when it is reasonable and there is no way out. Divorce is not good because it is a cause of enmity and also a cause of Satans delight. The commonly quoted hadith, Marry and do not divorce for verily divorce causes the arsh (throne of Allah) to shake, is a fabricated and daeef (weak) narration deserving no consideration. Before delving into the key areas of divorce, it is worth pointing out that Divorce is a serious matter with no room for mockery or treating it lightly. The Prophet (saw) said: There are three matters in which it is not permissible to joke: marriage, divorce and emancipation (of slave).
The linguistic definition of Talaaq is the setting free. In the view of Islam, divorce means the immediate and future annulment of the marriage contract. This is confirmed in a plain declaration saying: I hereby divorce you! or indirectly saying, I hereby consider you unlawful to me! It can also be confirmed by a judge or in the absence of judge, a Muslim leader, on basis of the wifes request. This is known as Khulu. Divorce sometimes relieves the husband or wife of difficulty, when one of the two has a corrupt nature and a deficient faith; when the two do not agree in temper and purpose; or when their hearts repel and never go well together. Without love or agreement, the family structure collapses. The aim of the Shariah (Islamic law) is to establish a healthy family unit through marriage. If for some reasons it fails, there is no need to linger on under false hopes. Islam does not keep a couple tied in a loathsome chain to a painful and agonising position; instead, it allows divorce. It should only be resorted to when it becomes humanly impossible and due to unavoidable circumstances.
Causes behind Marital Discord and Divorce
Marriage is a co-operation aiming at creating a happy home and harmonious family. To achieve intimate relations, affection, and mercy, both husband and wife must abide by the laws of Shariah, committed to the teachings and orders of Allah and His Messenger. Marital discord and divorce rates are on the rise on a daily basis, due to the heedlessness of spouses towards the rights of Allah and the rights of each other. There are many contributing factors leading up to this bitter reality. Divorce rates have increased first and foremost as a result of transgressing the boundaries, not fulfilling the rights and duties set by Allah. And so Allah punishes a person or a married couple by causing destablisation within the marital relationship.
Divorce is increasing due to:
Spouses disrespecting one another.
Irresponsibility on the part of the husband. The Prophet (saw) said: &and the husband is the guardian of his household. Divorce is increasing due to the husband not treating his wife with kindness. The Prophet (saw) said during the farewell sermon: Treat your women well and be kind to them for they are your partners and committed helpers.
Spouses not acknowledging each others good actions. The Prophet (saw) said: Whoever does not thank people, is not thankful to Allah.
Women disobeying their husbands with regards to lawful or permissible matters. The Prophet said: If a woman prays her five obligatory prayers, fasts her month, guards her chastity, and obeys her husband, it will be said to her: Enter paradise from any door you desire.
In addition, divorce rates are on the increase because of:
Parents getting involved with the affairs of their married children, where they shouldnt be getting involved.
Transgressing the boundaries Allah has set with regard to gambling-consuming intoxicants such as alcohol and illicit drugs, attending mixed weddings, music and singing, not adhering to the correct Islamic apparel, purchasing houses and cars through riba (usury and interest), in addition to insuring them through prohibited means.
More and more Muslims are refraining from paying zakaat, and due to their neglect and abandonment of Salaat, which the scholars of Islam said is one of the fundamental contributors towards divorce.
Procedure of Divorce
There are two ways by which divorce takes place. One is known as Talaaq BidI (an innovated divorce), and the other is known as Talaaq Sunni (divorce carried out in accordance with the teachings of Muhammad (saw)). Talaaq Sunni entails the man uttering divorce at a time when he has not engaged in any sexual relations with her after her last menstruation, whilst his wife is in a state of purity. In other words, she is not menstruating or in a state of nifaas (post natal bleeding) and that he declares the divorce once only. And so if one of the previously mentioned conditions is violated, the divorce process is considered as having been carried out in an innovated manner.
Talaaq Bidi, is where a man divorces his wife while she is menstruating or is in a state of post natal bleeding, or that he divorces her after having sexual relations with her after her last menstruation, or that he divorces her by verbalising the divorce three times in one utterance or one same sitting. This is the overwhelming opinion of the majority of the scholars, except that Imaam Ash-Shafidid not consider the utterance of divorce at one time as an act of innovation. Imaam ash-Shafis opinion is refuted by hadith colleted from Bukhari and Muslim, whereby ibn Umar, the son of Umar ibn Al-Khataab (ra), divorced his wife when she was menstruating. So Umar (ra) asked the Prophet (saw) about his sons actions, to which he replied: Command him to take her back, and keep her till she is purified, then has another period, then is purified. If he wishes he may keep her and if she wishes he may divorce her before having sexual intercourse, for that is the iddah (period of waiting) which Allah commanded for the divorce of a woman.
This hadith provides many clear insights: It is prohibited to divorce during menstruation period; without the consent of a woman, a man can withdraw his decision within the specified waiting period (iddah); and it is an act of heresy (bidah) to divorce a woman in the state of purification after menses, in which sexual intercourse is carried out. Islamic scholars have differed on the issue of whether divorce uttered while a woman is in menses is actually counted. The majority of the scholars say divorce has taken place and it is to be counted. This is the opinion of Abu Hanifa, ash-Shafi, Maalik, Ahmad ibn Hanbal, An-Nawawi, and Al-Zaidiyyah. Those saying divorce has not taken place include the Dhaahiriyyah (the literalist school of thought), ibn Taymiyyah, his student ibn al-Qayim, and As-Sanaani. The correct opinion (and Allah knows best) is that of the majority of the scholars. That is, the one who divorces his wife whilst she is in a state of menses is counted as one divorce. This is in light of what ibn Umar himself has proclaimed in Saheeh Muslim and Bukhari that it was counted as one divorce against him.
Pages / 1 / 2 / 3 / 4 / Next >
on the Scales of Islamic Sharia'h
By Bilal Abu Aisha
Reprinted from Nida 'ul Islam (islam.org.au), January 2003 edition
When a person wishes to worship Allah truly and properly, he must submit to Allah’s commands regardless of whether the commands are related to prayers, fasting, business transactions, marriage or divorce. And when not equipped with authentic Islamic knowledge (or when knowledge and understanding are not translated into action), and the person chooses to follow desires and whims over what’s prescribed in the noble guidance of Qur’an and the Prophet (saw), this will inevitably lead to problems in the various facets of the person’s life, especially in marital affairs.
Marital discord is not only exhibited by husbands but, in many cases, by wives, especially those influenced by the feminist movement or materialistic West, and who failed to turn completely to the Quran and Sunnah to live their lives. Such attitudes led to a great deal of marital discord among couples. Unfortunately, in many instances couples do not realise the steps needed to be taken to bring an end to such discord without hatred and desire for revenge; or for their marriage to return to its proper state, have been stipulated in the Quran and Sunnah over 1400 years ago.
The Prophet (saw) said: The lawful thing which Allah hates most is divorce. This hadith shows divorce is among the legal things that are Halal but not good. It is Halal because sometimes the situation is so complicated that a man is compelled to divorce, when it is reasonable and there is no way out. Divorce is not good because it is a cause of enmity and also a cause of Satans delight. The commonly quoted hadith, Marry and do not divorce for verily divorce causes the arsh (throne of Allah) to shake, is a fabricated and daeef (weak) narration deserving no consideration. Before delving into the key areas of divorce, it is worth pointing out that Divorce is a serious matter with no room for mockery or treating it lightly. The Prophet (saw) said: There are three matters in which it is not permissible to joke: marriage, divorce and emancipation (of slave).
The linguistic definition of Talaaq is the setting free. In the view of Islam, divorce means the immediate and future annulment of the marriage contract. This is confirmed in a plain declaration saying: I hereby divorce you! or indirectly saying, I hereby consider you unlawful to me! It can also be confirmed by a judge or in the absence of judge, a Muslim leader, on basis of the wifes request. This is known as Khulu. Divorce sometimes relieves the husband or wife of difficulty, when one of the two has a corrupt nature and a deficient faith; when the two do not agree in temper and purpose; or when their hearts repel and never go well together. Without love or agreement, the family structure collapses. The aim of the Shariah (Islamic law) is to establish a healthy family unit through marriage. If for some reasons it fails, there is no need to linger on under false hopes. Islam does not keep a couple tied in a loathsome chain to a painful and agonising position; instead, it allows divorce. It should only be resorted to when it becomes humanly impossible and due to unavoidable circumstances.
Causes behind Marital Discord and Divorce
Marriage is a co-operation aiming at creating a happy home and harmonious family. To achieve intimate relations, affection, and mercy, both husband and wife must abide by the laws of Shariah, committed to the teachings and orders of Allah and His Messenger. Marital discord and divorce rates are on the rise on a daily basis, due to the heedlessness of spouses towards the rights of Allah and the rights of each other. There are many contributing factors leading up to this bitter reality. Divorce rates have increased first and foremost as a result of transgressing the boundaries, not fulfilling the rights and duties set by Allah. And so Allah punishes a person or a married couple by causing destablisation within the marital relationship.
Divorce is increasing due to:
Spouses disrespecting one another.
Irresponsibility on the part of the husband. The Prophet (saw) said: &and the husband is the guardian of his household. Divorce is increasing due to the husband not treating his wife with kindness. The Prophet (saw) said during the farewell sermon: Treat your women well and be kind to them for they are your partners and committed helpers.
Spouses not acknowledging each others good actions. The Prophet (saw) said: Whoever does not thank people, is not thankful to Allah.
Women disobeying their husbands with regards to lawful or permissible matters. The Prophet said: If a woman prays her five obligatory prayers, fasts her month, guards her chastity, and obeys her husband, it will be said to her: Enter paradise from any door you desire.
In addition, divorce rates are on the increase because of:
Parents getting involved with the affairs of their married children, where they shouldnt be getting involved.
Transgressing the boundaries Allah has set with regard to gambling-consuming intoxicants such as alcohol and illicit drugs, attending mixed weddings, music and singing, not adhering to the correct Islamic apparel, purchasing houses and cars through riba (usury and interest), in addition to insuring them through prohibited means.
More and more Muslims are refraining from paying zakaat, and due to their neglect and abandonment of Salaat, which the scholars of Islam said is one of the fundamental contributors towards divorce.
Procedure of Divorce
There are two ways by which divorce takes place. One is known as Talaaq BidI (an innovated divorce), and the other is known as Talaaq Sunni (divorce carried out in accordance with the teachings of Muhammad (saw)). Talaaq Sunni entails the man uttering divorce at a time when he has not engaged in any sexual relations with her after her last menstruation, whilst his wife is in a state of purity. In other words, she is not menstruating or in a state of nifaas (post natal bleeding) and that he declares the divorce once only. And so if one of the previously mentioned conditions is violated, the divorce process is considered as having been carried out in an innovated manner.
Talaaq Bidi, is where a man divorces his wife while she is menstruating or is in a state of post natal bleeding, or that he divorces her after having sexual relations with her after her last menstruation, or that he divorces her by verbalising the divorce three times in one utterance or one same sitting. This is the overwhelming opinion of the majority of the scholars, except that Imaam Ash-Shafidid not consider the utterance of divorce at one time as an act of innovation. Imaam ash-Shafis opinion is refuted by hadith colleted from Bukhari and Muslim, whereby ibn Umar, the son of Umar ibn Al-Khataab (ra), divorced his wife when she was menstruating. So Umar (ra) asked the Prophet (saw) about his sons actions, to which he replied: Command him to take her back, and keep her till she is purified, then has another period, then is purified. If he wishes he may keep her and if she wishes he may divorce her before having sexual intercourse, for that is the iddah (period of waiting) which Allah commanded for the divorce of a woman.
This hadith provides many clear insights: It is prohibited to divorce during menstruation period; without the consent of a woman, a man can withdraw his decision within the specified waiting period (iddah); and it is an act of heresy (bidah) to divorce a woman in the state of purification after menses, in which sexual intercourse is carried out. Islamic scholars have differed on the issue of whether divorce uttered while a woman is in menses is actually counted. The majority of the scholars say divorce has taken place and it is to be counted. This is the opinion of Abu Hanifa, ash-Shafi, Maalik, Ahmad ibn Hanbal, An-Nawawi, and Al-Zaidiyyah. Those saying divorce has not taken place include the Dhaahiriyyah (the literalist school of thought), ibn Taymiyyah, his student ibn al-Qayim, and As-Sanaani. The correct opinion (and Allah knows best) is that of the majority of the scholars. That is, the one who divorces his wife whilst she is in a state of menses is counted as one divorce. This is in light of what ibn Umar himself has proclaimed in Saheeh Muslim and Bukhari that it was counted as one divorce against him.
Pages / 1 / 2 / 3 / 4 / Next >
Laws of Divorce in Islam
Laws of Divorce in Islam
by Amani Aboul Fadl Farag, from IslamOnline.net
September 3, 2002
I'll try to supply as much information in this big subject as our small page can allow. In case you need more details, I refer you to a useful book - Fiqh as-Sunnah - by Sayyed Sabiq – is originally in Arabic, but you can find its English translation if you want.
Divorce as a last option:
Although divorce being allowed in Islam is a sign of the lenience and practical nature of the Islamic legal system, keeping the unity of the family is considered a priority for the sake of the children. For this reason, divorce is always a last choice, after exhausting all possible means of reconciliation. For example, Allah addresses men asking them to try hard to keep the marriage, even if they dislike their wives:
... live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and God brings about through it a great deal of good.
- Surah 4 Verse 19
Also the following verse is addressed to women asking them the same thing:
If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves; ...
- Surah 4 Verse 128
Again, the following verse is addressed to the family or the society for the same purpose of rescuing this bond, which God did not make easy to break:
If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, God will cause their reconciliation: For God hath full knowledge, and is acquainted with all things.
- Surah 4 Verse 35
But, if after exhausting all methods of reconciliation, the hatred between the husband and wife is still greater than tolerance, then divorce becomes inevitable. Here comes the genius of the Islamic law, which holds practical, rather than unrealistic approaches, towards real situations. The ultimate aims of marriage, as well as any other aspect of human life, are to achieve happiness and virtue. So, when people are denied their right to end an unhappy marriage, these two aims are seriously violated. This is, as the couple will live in suffering, which may lead them to marital infidelity. Thus divorce in this case – if weighed up to the disaster of family disintegration - will be less disastrous.
Methods of divorce:
Men have the right to divorce. If a man dislikes keeping his marriage for any reason, he divorces his wife and compensates her financially by paying her what is termed mut'a payment. This is in addition to the regular financial sustenance for her living, in case she has the custody of their children.
Divorce becomes in effect once the husband utters or writes down any of the legal formulae of divorce such as: ‘I divorce you’ or ‘you are divorced’…etc. The husband can do these either by himself or through a messenger.
In case it is the woman's desire to end the marriage, the situation becomes different. Her reasons might be that she has received ill treatment, the husband is unable to sustain her financially or he is sexually impotent. She can prove these defects in front of the judge, then the judge grants her divorce with a full access to all her financial rights.
Also, if the husband was good to her but she does not want to keep on for an emotional reason, then she asks for what is termed khul'. This means to be granted divorce but without any access for financial rights, plus paying back the husband the dowry that he already paid on marrying her.
Categories of divorce:
Divorce is of three categories:
raj'i (returnable)
baynounah soghra (minor separation)
or baynouna kobra (major separation).
In case divorce happens through the husband, he can take his wife back within three months. This is without any legal procedures, if they decide it - like they regret their rushing in divorce. In this case, the divorce is termed as raj'i or returnable divorce.
But in case of khul', which is the second category, the husband can't remarry his divorcée till all the legal procedures are done, all over again, and the husband pays new dowry for her.
Divorce can happen three times in the couple's lifetime. The third divorce falls in the third category, because they cannot go back to one another, till after the wife ‘happens’ to marry someone else, then ‘happens’ to get divorced by him. In this case, she can go back to her first husband. Such a tough rule was made as a punishment and a way of preventing people from misusing this tolerant ruling of permitting divorce. The word ‘happens’ is parenthesized because the woman's new marriage and divorce should come naturally without planning, as many people might do to legalize her return to the first husband!
When does divorce become invalid?
In some cases, uttering the words of divorce become invalid. Among these cases is when the husband is:
Drunk.
Forced to utter them by someone else.
In a complete loss of temper to the extent that he is unaware of what he is saying.
In an abnormal state of mind, such as temporary madness, epilepsy or in a coma.
In such cases, divorce is null and void.
Post divorce procedures:
After divorce, it is obligatory for the woman not to get married to another man, except after three complete mentruation cycles, if she is not pregnant. If she is, then she has to wait till she gives birth, so that the paternity of the child is not confused. This period of time is termed as ‘iddah. However, even if the woman no longer has menstruations (e.g. after menopause), she should still wait for three months. So there is more to the 'iddah than just the issue of paternity
by Amani Aboul Fadl Farag, from IslamOnline.net
September 3, 2002
I'll try to supply as much information in this big subject as our small page can allow. In case you need more details, I refer you to a useful book - Fiqh as-Sunnah - by Sayyed Sabiq – is originally in Arabic, but you can find its English translation if you want.
Divorce as a last option:
Although divorce being allowed in Islam is a sign of the lenience and practical nature of the Islamic legal system, keeping the unity of the family is considered a priority for the sake of the children. For this reason, divorce is always a last choice, after exhausting all possible means of reconciliation. For example, Allah addresses men asking them to try hard to keep the marriage, even if they dislike their wives:
... live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and God brings about through it a great deal of good.
- Surah 4 Verse 19
Also the following verse is addressed to women asking them the same thing:
If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves; ...
- Surah 4 Verse 128
Again, the following verse is addressed to the family or the society for the same purpose of rescuing this bond, which God did not make easy to break:
If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, God will cause their reconciliation: For God hath full knowledge, and is acquainted with all things.
- Surah 4 Verse 35
But, if after exhausting all methods of reconciliation, the hatred between the husband and wife is still greater than tolerance, then divorce becomes inevitable. Here comes the genius of the Islamic law, which holds practical, rather than unrealistic approaches, towards real situations. The ultimate aims of marriage, as well as any other aspect of human life, are to achieve happiness and virtue. So, when people are denied their right to end an unhappy marriage, these two aims are seriously violated. This is, as the couple will live in suffering, which may lead them to marital infidelity. Thus divorce in this case – if weighed up to the disaster of family disintegration - will be less disastrous.
Methods of divorce:
Men have the right to divorce. If a man dislikes keeping his marriage for any reason, he divorces his wife and compensates her financially by paying her what is termed mut'a payment. This is in addition to the regular financial sustenance for her living, in case she has the custody of their children.
Divorce becomes in effect once the husband utters or writes down any of the legal formulae of divorce such as: ‘I divorce you’ or ‘you are divorced’…etc. The husband can do these either by himself or through a messenger.
In case it is the woman's desire to end the marriage, the situation becomes different. Her reasons might be that she has received ill treatment, the husband is unable to sustain her financially or he is sexually impotent. She can prove these defects in front of the judge, then the judge grants her divorce with a full access to all her financial rights.
Also, if the husband was good to her but she does not want to keep on for an emotional reason, then she asks for what is termed khul'. This means to be granted divorce but without any access for financial rights, plus paying back the husband the dowry that he already paid on marrying her.
Categories of divorce:
Divorce is of three categories:
raj'i (returnable)
baynounah soghra (minor separation)
or baynouna kobra (major separation).
In case divorce happens through the husband, he can take his wife back within three months. This is without any legal procedures, if they decide it - like they regret their rushing in divorce. In this case, the divorce is termed as raj'i or returnable divorce.
But in case of khul', which is the second category, the husband can't remarry his divorcée till all the legal procedures are done, all over again, and the husband pays new dowry for her.
Divorce can happen three times in the couple's lifetime. The third divorce falls in the third category, because they cannot go back to one another, till after the wife ‘happens’ to marry someone else, then ‘happens’ to get divorced by him. In this case, she can go back to her first husband. Such a tough rule was made as a punishment and a way of preventing people from misusing this tolerant ruling of permitting divorce. The word ‘happens’ is parenthesized because the woman's new marriage and divorce should come naturally without planning, as many people might do to legalize her return to the first husband!
When does divorce become invalid?
In some cases, uttering the words of divorce become invalid. Among these cases is when the husband is:
Drunk.
Forced to utter them by someone else.
In a complete loss of temper to the extent that he is unaware of what he is saying.
In an abnormal state of mind, such as temporary madness, epilepsy or in a coma.
In such cases, divorce is null and void.
Post divorce procedures:
After divorce, it is obligatory for the woman not to get married to another man, except after three complete mentruation cycles, if she is not pregnant. If she is, then she has to wait till she gives birth, so that the paternity of the child is not confused. This period of time is termed as ‘iddah. However, even if the woman no longer has menstruations (e.g. after menopause), she should still wait for three months. So there is more to the 'iddah than just the issue of paternity
`Iddah (Waiting Period After Divorce or Death of Husband):
`Iddah (Waiting Period After Divorce or Death of Husband):
Wisdom & Rulings
By IslamOnline.net, Reprinted from their Fatwa Bank
Date: 10/Jun/2003
Name of Counsellor: A Group of Islamic Researchers
Topic: 'Iddah, the Waiting Period After Divorce in Islam
Name of Questioner: Faizah from Malaysia
Question: As-Salamu `Alaykum. Is the term `Iddah applicable to the widow and the divorcee? What is the need of `Iddah and for how long should this "waiting period" be? Please help. Thank you!
Answer:
Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear sister in Islam, we commend your keenness on getting your self well-acquainted with Islam and its teachings, and we implore Allah Almighty to help us serve His cause and render our work for His Sake.
As regards your question, we'd like to explain that `Iddah or a woman's post marital waiting period, is the period in which a woman waits before she may remarry to verify that she is not pregnant, or out of mourning for her deceased husband. (See: Ahmad ibn Naqeeb Al-Misri, The Reliance of the Traveler)
Wisdom of 'Iddah and its Legitimacy:
To discern whether the woman is pregnant or not.
Shari`ah has ordained the period of `Iddah to avoid any confusion of lineage which may result from the woman's pressing need of marriage.
The period a woman spends in `Iddah whether short or otherwise sheds light on the seriousness of marriage and how far it is a sacred bond.
It allows the man and the woman to think twice before breaking up the family tie, especially in cases where divorce is revocable. (Source: The Kuwaiti Encyclopedia of Fiqh)
Rulings Pertaining to `Iddah:
Widowed Woman:
If a woman is widowed and is not pregnant, her waiting period ends after completing four months and ten days. Allah Almighty says,
"Such of you as die and leave behind them wives, they (the wives) shall wait, keeping themselves apart, four months and ten days…" (Al-Baqarah: 234)
Widowed Woman Who is Pregnant:
As for the widowed woman whom her husband dies while leaving her pregnant, her waiting period ends with the delivery of her baby. Allah Almighty says,
"...And for those with child, their period shall be till they bring forth their burden" (At-Talaq: 4)
Divorced Woman:
As for a divorced woman, her waiting period ends when three intervals between menstruations have finished, if she is not pregnant. Allah Almighty says:
"Women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah hath created in their wombs if they are believers in Allah and the Last Day. And their husbands would do better to take them back in that case if they desire reconciliation. And they (women) have rights similar to those (of men) over them in kindness, and men are a degree above them. Allah is Mighty, Wise." (Al-Baqarah: 228)
If the divorced woman - like the widowed one - is pregnant, her waiting period ends with the delivery of her baby.
(`Abdul-Karim Zidan, Nazarat fi ash-Shari`ah al-Islamiyyah)
Wisdom & Rulings
By IslamOnline.net, Reprinted from their Fatwa Bank
Date: 10/Jun/2003
Name of Counsellor: A Group of Islamic Researchers
Topic: 'Iddah, the Waiting Period After Divorce in Islam
Name of Questioner: Faizah from Malaysia
Question: As-Salamu `Alaykum. Is the term `Iddah applicable to the widow and the divorcee? What is the need of `Iddah and for how long should this "waiting period" be? Please help. Thank you!
Answer:
Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear sister in Islam, we commend your keenness on getting your self well-acquainted with Islam and its teachings, and we implore Allah Almighty to help us serve His cause and render our work for His Sake.
As regards your question, we'd like to explain that `Iddah or a woman's post marital waiting period, is the period in which a woman waits before she may remarry to verify that she is not pregnant, or out of mourning for her deceased husband. (See: Ahmad ibn Naqeeb Al-Misri, The Reliance of the Traveler)
Wisdom of 'Iddah and its Legitimacy:
To discern whether the woman is pregnant or not.
Shari`ah has ordained the period of `Iddah to avoid any confusion of lineage which may result from the woman's pressing need of marriage.
The period a woman spends in `Iddah whether short or otherwise sheds light on the seriousness of marriage and how far it is a sacred bond.
It allows the man and the woman to think twice before breaking up the family tie, especially in cases where divorce is revocable. (Source: The Kuwaiti Encyclopedia of Fiqh)
Rulings Pertaining to `Iddah:
Widowed Woman:
If a woman is widowed and is not pregnant, her waiting period ends after completing four months and ten days. Allah Almighty says,
"Such of you as die and leave behind them wives, they (the wives) shall wait, keeping themselves apart, four months and ten days…" (Al-Baqarah: 234)
Widowed Woman Who is Pregnant:
As for the widowed woman whom her husband dies while leaving her pregnant, her waiting period ends with the delivery of her baby. Allah Almighty says,
"...And for those with child, their period shall be till they bring forth their burden" (At-Talaq: 4)
Divorced Woman:
As for a divorced woman, her waiting period ends when three intervals between menstruations have finished, if she is not pregnant. Allah Almighty says:
"Women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah hath created in their wombs if they are believers in Allah and the Last Day. And their husbands would do better to take them back in that case if they desire reconciliation. And they (women) have rights similar to those (of men) over them in kindness, and men are a degree above them. Allah is Mighty, Wise." (Al-Baqarah: 228)
If the divorced woman - like the widowed one - is pregnant, her waiting period ends with the delivery of her baby.
(`Abdul-Karim Zidan, Nazarat fi ash-Shari`ah al-Islamiyyah)
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