You are on page 1of 8

How is one supposed to digest a 1400 year old ideology which

supposedly came from a nomad Arab who could scarcely read or write?
This might be the case now but Islam since its very inception faced
opposition from the elites. The obvious reason for such an opposition
was its critique of the basic social structure of the elite. History has it
that the earliest followers of Islam were the poor and weaker part of
the Meccan society. Gradually Islam spread and earned converts who
could give it the much needed military strength and the community
which had fled Mecca established themselves in Medina and Islam was
soon to become the state religion of Arabia till eternity. Within two
centuries of the utterance of the first words of the Quran, Islam in faith
and in arms ruled one-third of the then known world, arguably one of
the largest empires on the face of earth. The initial opposition to Islam
was more militant and the Muslim armies where the real defenders of
the deen, this, however, has transformed into an intellectual war
now, more so since the growth of Orientalists. Critiques of Islam leave
no stone unturned to malign Islams beautiful face and many a times
they are successful due to malpractice of religion by Muslims
themselves. One such aspect of Islam which has seen malpractice
since ages is the act of Divorce. Due to the malpractice of Muslims
round the globe and throughout the ages, Islam has come under heavy
criticism from the other fractions of society. It is generally held that
divorce in Islam is very easy; a man only has to say to his wife: You
are divorced, three times and it is all over. Moreover Muslim women
are often portrayed as being oppressed due to their being denied the
right to divorce. Due to the length of the paper the discussion on
Divorce will be taken in more than one part. In this paper of mine we
will have a look at this important topic, shedding light on the right to
divorce and later we will try to respond to some criticisms. The
upcoming part(s) will deal with the proper method of divorce as
outlined by the actual source(s) of Islam and some other tidbits.
Marriage:
Islam, on one hand, is against fornication and adultery, and it strives to
block all the ways leading to them. On the other hand, Islam is also
against suppressing the sexual urge and hence it calls people to
marriage. The relationship of sexes in pre-Islamic Arabia was in an

uncertain state. Regular form of marriage (in the sense as we


understood today) was very rare. The form which flourished back then
can only be termed as prostitution or adultery today. Islam reformed
these old marriage laws in sweeping and far reaching way. With the
advent of Islam woman was no more treated as a chattel. In fact, the
institution of marriage was now taken as something having both of the
nature of Ibadat or devotional acts and muamlat or dealings among
men.
The immediate effects of a valid marriage are that the sexual
intercourse between the couple becomes lawful and the children born
of such a union are legitimate; the wife becomes entitles to dower;
mutual rights to inheritance are established; and the wife becomes
entitled to maintenance by the husband.
..the wife becomes entitled to maintenance by the husband..
In the context of what we are having discussion on, the effect of the
marriage contract that the wife becomes entitled to maintenance is
worthy of some explanation.
Due to obvious biological differences, men and women are different. It
is this difference which gives men superiority over women in certain
aspects and women superiority over men in certain aspects. When it
comes to family affairs, the perfect Islamic family is very much like a
small state. Just like a state needs a ruler, a guardian or a leader, the
Islamic family in its respective realm also needs a leader, a guardian or
a ruler. This responsibility can either be given to the husband or to the
wife. In Muslim law this responsibility rests with the husband. God says
in Quran 4:34:
Men are the guardians of women
It is incumbent on a husband to maintain his wife, whether she is
Muslim or Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old.
When a man and a woman pledge to marry, it is the man who takes
the financial responsibility of the woman he is bringing home (Mehr i.e.
dower is one such symbolic expression of this responsibility). Apart
from being driven by biological differences man acting as guardian of a

woman is a direct consequence of the Islamic Social setup where all


the financial responsibilities rest on the shoulder of the men and that
the women live a sheltered life.
The outcome is that a woman in Islamic society is always looked after
by a male. From birth, this responsibility rests with her father until her
marriage. If the father dies, her grandfather or her uncle or her
grownup brother has to look after her until her marriage. During
marriage, it is the duty of her husband to maintain her. If the marriage
ends in divorce or the husband dies she returns to the responsibility of
her family. If no one is available her sons have to look after her and if
she has no sons, she becomes the responsibility of the head of state.
[1]
During these times she enjoys having no financial responsibilities, her
share of inheritance from her premarital and post marital guardians
and her Mehr to which she is entitled to after marriage.
The Right to Divorce:
There is misconception among Muslims and Non-Muslims alike that
Divorce is the sole right of the husband. Though this sentence is half
correct, it is half incorrect as well. In usual every day circumstances the
Shariah does rest the right to pronounce a divorce with husband only
(This however doesnt mean that a wife cant divorce) but as a special
case (which will be discussed later) the right may lie with the wife as
well. The reason for resting this right with the husband is quite obvious.
A husband has always been charged with the responsibility of
protecting his wife and providing for her because God has given him
the natural ability to fulfill these responsibilities. In view of the
responsibilities as described above and the very fact that husband is
the head of the family this right seems obvious. The comparison can
again be drawn between a state and a family. The head of an
institution always has a right to terminate any employee not working
under the guidelines of the institution. This doesnt mean that an
employee cant resign. He surely can, but this resignation is to be
approved by the head of the institution. If the reason is genuine and
the head of the institution is not allowing the employee to resign, the

employee can knock the doors of a court of justice. This is exactly what
happens in an Islamic society.
As a consequence of the above analysis, if a wife wants to separate
from her husband, she cannot divorce him; on the contrary, she will
demand divorce from him. In general circumstances, it is hoped that
every gentleman, seeing that there is no other way out, would accept
this demand. However, if this does not happen to be the case, a wife
can turn to the court of law. The judge sees a just cause can act on her
behalf and institute a khula divorce which has a waiting period of only
one menstrual cycle. [1] When the state of affairs deteriorates that it
becomes certain that a wife has an aversion to her husband and does
not want to live with him anymore, then the court can order the
husband to divorce her. [2][3]
A special case:
In the previous section I wrote, ..as a special case (which will be
discussed later) the right may lie with the wife as well. This might be
something new to many but this actually is the case which comes into
place as a consequence of the Marital contract. In Islamic law it is
lawful to append certain conditions to a marriage conduct. Prophet
Muhammad (saw) is reported to have said, The best entitled to
fulfillment of all conditions that you may fulfill, are the conditions by
which sexual union is legalized. However, these conditions must be
legal, reasonable and not opposed to the spirit of Islam. Under such
freedom of attaching conditions with the marital contract, one legal
condition can be (and is) that the wife shall have the right to divorce
for a specified reason or for that matter any reasonable reason and so
on.
In this regards Justice Iyer says:
It is a popular fallacy that a Muslim male enjoys, under the Quranic
law, unbridled authority to liquidate the marriage the view that the
Muslim husband enjoys an arbitrary, unilateral power to inflict divorce
does not accord with Islamic injunctions. [4]
Divorce in Islam is easy!

Now that we have talked about the rights to divorce we move on to


something that is also part of severe criticism, The divorce in Islam is
easy. This comes from the misconception that the three utterances of
the word Talak nullify a marriage. Far from reality, the divorce in
Islam is not actually so easy. Islam has permitted divorce reluctantly;
neither liking it nor commending it, the Prophet (saw) is reported to
have said:
Among all lawful things, divorce is most hated by God.
Thus divorce though lawful is detested by God, which in turn means
that it is permissible only under unavoidable circumstances. Thus, the
Islamic Law has placed a number of obstacles in the way of divorce in
order to confine it within the narrowest possible compass.
Firstly, divorce cannot be pronounced while a woman is menstruating.
The reasons for the same are many. It may be that the idea of divorce
came into mans mind because of sexual frustration and nervous
tension that may arise due to prohibition of sexual intercourse during
menses. Or the thought about divorce may come into the husbands
mind because of wife suffering from mood swings and becoming
cranky. These are established psychological changes that are
commonly called PMS or PreMenstrual Syndrome.
Secondly, the divorce cannot be pronounced during a period between
menses in which the couple has had sexual relations. The reasons for
this can range from ascertaining the pregnancy to rational morality. It
is possible that the wife may have become pregnant from the union
and the husband may change the idea of the divorce for the very sake
of the child or the thought of having ones seed in the wifes womb.
Moreover, if the man cared enough about the woman to have sexual
relations with her, he needs to reflect such care in his decisions as well.
Thirdly, the pronouncement of divorce is considered invalid if the man
was in rage. This comes directly from the Prophets statement,
The divorce pronouncement is not valid at the time of [mental]
seizure.

Fourthly, the divorce does not come into effect until the woman has
had three subsequent menstrual cycles. The first cycle is to ensure that
the wife is not pregnant and the second two provide enough period for
reconciliation during which counseling may be sought. During this
period the woman is not supposed to leave the home and the husband
has to maintain her.
Fifthly, dower to some extent restricts divorce. A husband thinks thrice
before divorcing a wife when he knows that upon divorce the whole of
the dower would be payable immediately. Same applies to the woman
seeking divorce. However, concessions in this regard may be granted
under mutual understanding.
Sixthly, an effective check placed by Islam on frequent divorce and
remarriage was that in case of irrevocable separation, it is essential for
remarriage that the wife should marry another man, and this marriage
should be consummated lawfully. If this marriage also ends in a
divorce, and the wife observes iddat, only then does she become
lawful for the first husband to remarry.
Malpractice by Muslims:
The notion that Islamic way of divorcing is easy has found its place in
the minds of common people due to the malpractice of Muslims as
well. The practice of Triple Talaak where the husband may pronounce
talak three times is most commonly practiced in India and the courts
have refused to derecognize it. This form of divorce, Talaak-ul-Biddat,
according to V. P. Bharatiya, was an escape from the restrictions
imposed by Islam. [5] Ameer Ali, in his Spirit of Islam observes, the
Omayyad monarchs finding that the checks imposed by Islam on the
facility of repudiation interfered with the indulgence of their caprice,
endeavored to find an escape from the strictness of law and Triple
Talaak was what they found. It is from here that the practice became
rampant.
Those in support of triple talak hold on to the fact that Umar (RA) had
permitted it. The truth however remains that the triple divorce was not
allowed during the Prophets (saw) lifetime, neither during Caliph Abu
Bakrs (RA) reign and nor during the initial stages of Caliph Umars (RA)

reign and that Umar (RA) allowed it on account of a particular situation.


This is narrated by V. P. Bharatiya in the following words,
When the Arabs conquered Syria, Egypt, Persia, etc., they found
woman there much more beautiful than their own women and hence
tempted to marry them. But those woman not knowing about Islams
abolition of triple divorce in one sitting, would insist that before
marrying them they should pronounce divorce thrice to their existing
wives which they would readily accept to do (as they knew Islam had
abolished triple divorce and that it would not be effective) and marry
the Syrian or Egyptian women and would also retain their earlier wives.
When the Egyptian and Syrian women discovered that they had been
cheated, they complained to Umar. The Caliph then enforced triple
divorce again in order to prevent misuse by the Arabs. He had done so
to meet an emergency situation and not to enforce it permanently. [6]
He continues,
The Hadith literature records that when the Prophet was told that so
and so had divorced his wife thrice in one sitting his face turned red
with anger and he stood up and said he was ridiculing the divine law in
the Prophets own life time and required that the man took back his
wife. [6] (See Note)
If the Shariah is truly based on Quran and Sunnah (which it is) then
there is no place for the pronouncement of triple divorce in one sitting.
Imam Ibn Tayimiyyah (RA), a jurist of 14 th century and his disciple Ibn
Qayyim Jawzi had also held that the triple divorce is an innovation
(biddah) and hence sinful.
Conclusion:
From the discussion above four broad conclusions arise:
1. The law of divorce comes into play under unavoidable
circumstances and that Islam severely discourages divorce.
2. Both men and women have the right to divorce.
3. Islam tries to maintain the married state as far as possible. It will
check hasty action as far as possible, and leave the door to
reconciliation open at many stages.

4. Reconciliation is recommended but divorce is allowed because if


the couple is really determined against reconciliation, it is unfair
to keep them tied indefinitely.
The coming part(s) on this topic will deal with the proper method of
divorcing as outlined by authentic source(s) of Islam and the idea of
divorce throughout the world history.
References:
[1] Contemporary Issues; Dr. Abu Ameenah Bilal Philips; p 10-11
[2] The Lawful And The Prohibited In Islam; Yusuf Al-Qaradawi; p 218
[3] Islam A Comprehensive Introduction; Javed Ahmed Ghamidi; p
412
[4] A. Yusuf v. Sowramma, AIR 1971 Ker 261
[5] Muslim Law; V. P. Bharatiya; p 102
[6] ibid; p 131
Note: I tried to search for the Hadith but couldnt find it. But the Hadith
is quoted in two more books by two scholars of eminence. S. A. Kader
(former High Court Judge) cites it on page 37-38 of his Muslim Law of
Marriage and Succession in India and Ameer Ali cites it in his Spirit of
Islam as well. The Hadith is also cited by Syed Khalid Rashid in his
Muslim Law.