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 Qur’an. But this agreement, called ‘nikaah’ in the Qur’an 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 Qur’an understandably has laid down conditions for its implementation. To fulfil these conditions, the Qur’an 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 Qur’anic injunctions on the subject. Nowhere in the Qur’an 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 Qur’an 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 Qur’anic terminology this is called ‘zihar’. According to the Qur’an 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 Qur’an:
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 Qur’an:
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 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 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 Qur’an 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 Qur’an.      

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 Qur’an.  

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 God’s signs as a jest. But solemnly rehearse God’s 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 Qur’an 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 Qur’an 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 mother’s 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 Qur’an 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 Qur’an 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 Qur’an clearly states that meher is a gift from man to a women at the time of marriage. For this the Qur’an 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 Qur’an 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 Qur’an states:
‘If any do fail to judge by what Allah has revealed, they are those who rebel’ (5:47).