DIVORCE
Marriage is the mutual agreement
between an adult man and a women to live married life according
to the rules, rights and responsibilities defined by God in the
Quran. But this agreement, called nikaah in the
Quran is not such that having been agreed once it cannot be
cancelled. Since marriage comes into force by mutual consent of
both parties concerned, when either of the individuals withdraws
consent, the agreement then stands cancelled and is called
talaq or divorce.
Talaaq literally means to make free. Cancellation of the agreement has other implications and connotations, and the Quran understandably has laid down conditions for its implementation. To fulfil these conditions, the Quran has left it to the society or the system rather than to the individuals concerned to work out the details. This means that the right to cancel the agreement lies equally with the husband or wife concerned, but the matters arising as a consequence of the dissolution of the marriage are to be referred to the justice system in the prevailing society.
The prevalent idea in some societies is that a husband alone has the right to divorce by pronouncing the word taalaq. This does not get any support from the Quranic injunctions on the subject. Nowhere in the Quran is it stated that by merely saying the word taalaq a husband is able to divorce his wife. It will clear on reading these verse that God has very unambiguously laid down fundamental rules on the subject.
In connection with divorce the matters regarding dower (meher) and the prescribed period after divorce for women (iddat) are also briefly referred to at the end of this article.
God recognises the temporary stresses which can occur in a married relationship and as a result the husband or wife can become emotive and be provoked because of domestic issues. The Quran in this respect says:
1. If a man in ignorance calls his
wife something e.g. mother, which he thinks declares her
forbidden (haram) on him ; this will really not
declare her forbidden:
God has not made for any man two hearts in his body; nor
has He made your wives whom ye divorce by Zihar your mothers; nor
has he made your adopted sons your sons. Such is your speech by
your mouths. But God tells the truth and He shows the right
way (33:4).
In Quranic terminology this is
called zihar. According to the Quran this comes
under:
God will not call you to account for thoughtlessness
in your oaths, But for the intention in your hearts, and he is
Oft-forgiving, Most forbearing (2:225).
To end such a forbidden commitment by the husband the
folloeing is laid down by the Quran:
a. Setting a slave free (This is not applicable in the current
age as there are no more slaves).
b. Keeping fasts for two months, Or
c. If keeping of fasts is not possible then to feed 60 idigent
persons.
'But those who divorce their wives by Zihar, then wish to go back
on the words they uttered, - should free a slave before they
touch each other: this are ye admonished to perform: and God is
well acquainted with (all) that ye do. And if any has not (The
wherewithal) he should fast for two months consecutively before
they touch each other. But if any is unable to do so, he should
feed sixty indigent ones. This, that ye may show your faith to
God and His apostles. Those are limits (set by) God. For those
who reject (Him), there is grievous penalty. (58:3-4)
2. If a husband in a deliberate and
carefully thought manner commits not to go to his wife (called
ailaa) then a period of four months is permitted. If
within that 4 months, he decides to return to his wife, the
marriage stays, otherwise the marriage dissolves and terminates
into divorce:
For those who take an oath for abstention from their wives,
a waiting for four months is ordained: if then they return, God
is Oft-forgiving, Most Merciful. But if their intention is firm
for divorce God heareth and knoweth all things(2:226-227).
However, to break such a
deliberate oath the following are laid down by God in the
Quran:
a. setting a slave free, Or
b. feeding 10 indigent persons or clothing them, Or
c. keeping fasts for three days.
God will not call to account
for what is futile in your oaths, but he will call you to account
for your deliberate Oaths: For expiation, feed 10 indigent
persons, On a scale of the average for the food of your families;
or clothe them; or give a slave his freedom. If that is beyond
your means fast for three days. That is the expiation for the
oaths ye sworn. But keep to your oaths. Thus doth God make clear
to you His signs, that ye may be grateful (5:89).
1. Equal Rights
If there is a serious problem in a marriage, society should
appoint a representative each from the husband and wife, who
should form a board and make efforts to resolve the problem or
tension in the relationship. If the problem is resolved, the
marriage continues otherwise divorce taken place:-
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(4:35).
In this regard both husband
and wife equal rights:
If a wife fears cruelty or desertion on her husbands
part, There is no blame on them if they arrange an amicable
settlement between themselves; and such settlement is best; even
though mens souls are swayed by greed. But if ye do good
and practise self-restraint, God is well-acquainted with all that
ye do(4:128).
And in this regard the wife can also initiate the case for
divorce.
God has indeed heard the statement of the women who pleads
with thee concerning her husband and carries her complaint to
God: and God hears the argument between both sides among you :
For God hears and sees (58:1).
2. Marriage
Marriage (nikah) takes place by mutual consent of the
man and women:
If ye fear that ye shall not be able to deal justly with
the orphans, marry women of your choice, two or three or four,
But if ye fear that ye shall not be able to deal justly (with
them), then only one, or that your right hands possess. That will
be more suitable, to prevent you from doing injustice
(4:3).
Please pay attention to
justly and your choice.
O ye who believe! Ye are forbidden to inherit women against
their will, nor should ye treat them with harshness, that ye may
take away part of the dower ye have given them, except where they
have been guilty of open lewdness; on the contrary live with them
on a footing of kindness and equality. If ye take a dislike a
thing, and God brings about through it a great deal of good
(4:19).
Therefore for divorce to take place the refusal to continue together by either party is enough to end the relationship. However, in this regard it is advised not to be provocative or hasty as stated in (4:19). When mediation efforts fail then in this regard further investigation is not required. The courts will only adjudicate for the matters arising out of the dissolution of the marriage (nikah).
3. Dowery
If divorce is desired by the husband then the wife does not have
to pay back anything e.g. dower, except where a women is involved
in any indecent act:
But if ye decide to take one wife in place of
another, even if ye had given the latter a whole treasure for
dower, take not the least bit of it back. Would ye take it by
slander and a manifest wrong? (4:20).
NB. The Quran nowhere asks the women to bring a dowry with her at the time of marriage. The prevalent tradition of bringing a dowry by the women (in some Muslim country) is against the teaching of the Quran.
4. Be Fair
If divorce is desired by the women then court can order some kind
of compensation from her side to the husband:
A divorce is only permissable twice, after that,
parties should either hold together on equitable terms, or
separate with kindness. It is not lawful for you (men), to take
back any of your gifts (from your wives) except when both parties
fear that they would unable to keep the limits ordained by God.
If ye (judges) do indeed fear that they would be unable to keep
the limits ordained by God, There is not blame on either of them
if she gives something for her freedom. These are the limits
ordained by God, so do not transgress them if any do transgress
the limits ordained by God, such persons wrong (themselves as
well as others) (2:229).
5. Intentions
For a man it is immoral that he has the intention of divorce but
that he should force the women to initate the case for divorce by
ill-treatment so that he can later demand compensation. (See 4:20
above).
6. Waiting
After divorce (iddat means counting) a
prescribed period commences for the women to wait before getting
remarried in order to determine whether she is pregnant or not:
Divorce women shall wait concerning themselves for
three monthly periods. Nor is it lawful for them to hide what God
hath created in their wombs, If they have faith in God an the
Last Day and their husbands have the better right to take them
back in that period, if they wish for reconciliation. And women
shall have rights against them, according to what is equitable.
But men have a degree over them. And God is exalted in Power,
Wise (2:228).
This is the only clause where man does not have to wait and is different from women as per the Quran.
7. Maintenance
During iddat the prescribed period of waiting for the women, the
man is responsible for the maintenance of the women.
For divorced women maintenance (should be provided)
on a reasonable (scale). This is a duty on the righteous
(2:241).
O Prophet! When ye do divorce women, Divorce them at
their prescribed periods, And count (accurately) their prescribed
periods, And fear God your Lord. Turn them not out of their
houses, nor shall they (themselves) leave, Except in case they
are guilty of open lewdness, Those are limits set by God, and any
Who transgresses the limits of God, does verily wrong his (own)
soul. Thou knowest not if perchance God will bring about
thereafter some new situation (65:1).
8. Reconcile
The divorce can be taken back during the prescribed period of
waiting (iddat) except where paragraph no 11 is applicable. For
example, where the women has initiated divorce she can withdraw
it and if the man has initiated divorce he can withdraw it, if
the women agrees. However, in doing so the man should not have
the intention to tease or harass the women (2:229), (2:231) and
(65:2). Verses (2:232) and (65:2) are quoted here:
When ye divorce women, and they fulfil the term of
their (Iddat) either take them back on equitable terms or set
them free on equitable terms, But do not take them back to injure
them, (or) to take undue advantage, if any one does that, he
wrongs his own soul. Do not treat Gods signs as a jest. But
solemnly rehearse Gods favours on you, and the fact that He
sent down to you the Book and Wisdom, for your instruction. And
fear God, and know that God is well acquainted with all
things (2:231).
Thus when they fulfil their terms appointed either take them back equitable terms or part with them on equitable terms. And take for witness two persons from among you, endued with justice, and establish the evidence (as) before God such is the admonition given to him who believes in God and the Last Day. And for those who fear God, He (ever) prepares a way out (65:2)
9. Remarriage
During iddat, the withdrawal of divorce will, either involve
remarriage through a formal ceremony (nikah) or not
the Quran has used the word (bemaroof)
at two places (2:229) and (65:2) i.e. this is a procedure which
the Islamic Society should work out and lay down. At one place
the word nikah is used:
When ye divorce women, and they fulfil the term of
their (iddat) do not prevent them from marrying their (former)
husbands, if they mutually agree on equitable terms. This
instruction is for all amongst you, who believe in God and the
last Day. That is (the course making for) most virtue and purity
amongst you. And God knows, and ye know not (2:232).
The finer details should be worked out by the Islamic Society.
10. Witness
If divorce is withdrawn, there is nothing further to proceed
with. However, in the eventuality of finalising and witnessing
the divorce, then two witnesses will be required (see 65:2 above)
11. Final
If according to section (1), the divorce is finalised, this will
be considered to be the first divorce. If after this, according
to (8) the man and the women re-establish a married relationship
and then again decide to divorce this will be considered
as the second divorce. After this man and the women can again
marry as per section (8). However, after this it will be the
third divorce for which the injunction stated in (2:229-230) will
apply. According to this the women will have to marry elsewhere
and if subsequently a divorce takes place at some stage she may
then go back to her first husband for re-marriage.
12. Consumate
Where after a formal proclamation of marriage (nikah) if
consummation does not take place between the husband and wife
divorce according to the procedure above will have to be.
(See 2:236-237 and 33:49).
13. Injunctions
There are specific injunctions for the messenger of Allah.
(33:50-52, 33:28 and 66:5)
14. Islamic
The messenger has been addressed in the Quran regarding the
proclamation of the injunctions cited above.
The Messenger of Allah was the court for the implementation of
these injunctions in an Islamic society and after his death the
governments in Islamic societies should carry out their
implementation
(65:1-7).
IDDAT THE WAITING
PERIOD
1. For divorced women three (menstruation) periods are specified
after the commencement of divorce (2:228). Therefore, divorce
should be initiated when the women is free from her period
(65:1).
2. For the women who is
post-menopausal or amenorrheoic(has no periods) their period of
waiting is also three months (65:4).
3. An expectant mothers period is until the birth of her child (65:4). She is to declare her pregnant state and let her husband know she is with child (2:228).
4. In the case of an unconsummated
marriage there is no period of waiting and the women can marry
anytime (33:49).
5. A widow has to wait for four
months and 10 days before she can re-marry (2:224). For an
expectant widow there is no separate rule and the rule in section
III(3) will apply.
MEHER (DOWER)
1. After declaring which women are forbidden for
marriage in (4:23-24) the Quran has allowed other women for
marriage provided something has been paid (4:34) and
(5:5). This paying of something in kind is termed
meher (dower). However, the word meher has not been
used by the Quran anywhere. Instead the terms
sadqa, ajoor or fareeza have
been used. These words are used according to the Arabic style,
otherwise ajoor does not mean that meher
is the compensation for some service. The Quran clearly
states that meher is a gift from man to a women at the time of
marriage. For this the Quran has used the word
nehla (4:4), which means giving a gift without
expecting anything in return:
And give the women (On
marriage) their dower as a free gift, but if they of their own
pleasure, remit any part of it to you, take it and enjoy it with
right good cheer (4:4).
It is also referred as fareeza in (2:236),
which means a duty.
2. The Quran has not fixed any specific amount for meher. Whatever is fixed by mutual consultation between the parties is meher. Since its payment is compulsary, therefore it should be according to the ability to pay of the man intending to get married (4:20) and also (2:236).
3. Meher should be paid at the time of holding of nikaah. If it is not fixed prior to the nikaah the question of its payment will not arise (2:236).
4. Meher wholly belongs to the women getting married. However, if she wishes she can forgo any or whole of it (4:4) or by mutual consultation it can be increased or decreased. However, it should not be done by force (4:24).
5. After nikaah but before consummation of the marriage if divorce takes place as stated earlier then:
a) If meher was not fixed then man according to his ability to pay should give something to women (2:236)
b) If meher was fixed half will be paid to women. However, women or her guardian or the court making a decision for the dissolution of the marriage, can decide to forgo the payment (2:237)
6. If women is involved in any indecent act the meher can be reduced (4:19)
7. If women asks for dissolution of
her marriage then if the court considers it necessary, she may
have to pay something (2:229). But this does not necessarily mean
the repayment of meher.
To conclude, the Quran states:
If any do fail to judge by what Allah has revealed, they
are those who rebel (5:47).