Divorce is Release in a Sense
- :Shahid Murtaza Mutahhari
The anti-Islamic elements say that divorce should definitely have a judicial form and not that of a release or relief. The fact is that divorce has an aspect of release, because marriage has an aspect of appropriation. It is not possible to change the law of mate-seeking, according to which male and female have separate roles, and the natural state of marriage apparently resembles appropriation. As far as sexual relations are concerned, nature has prescribed distinct roles to a male and a female, both in the case of human beings and animals. Divorce could have been deprived of its aspect of release only if it had been possible to change the law of nature.
A critic says that generally the Shiah jurists describe the marriage contract as a binding contract, but it appears that according to Islamic law it is binding only in the case of the wife, for the husband can annul it at his will and pleasure. He adds that it is disgraceful to give the husband the right of divorce during this age of the atom, artificial moons and democracy.
It appears that this gentleman and others, who think on similar lines, do not differentiate between annulment of a marriage and divorce. When it is said that the contract of marriage is a binding contract, it means that neither the husband nor the wife has the right to annul it. If a marriage is annulled (as it happens in certain exceptional cases) it is treated as if it was never contracted and no legal effects flow from it. The woman cannot claim her dower. The man has no responsibility to support her during the period of probation. On the other hand, in the case of divorce, the marriage bond is dissolved, but its legal effects are not totally nullified. For instance, if a man divorces his wife after even one day's conjugal life, he has to pay the full dower and has to maintain her during the period of probation. In case he divorces after contracting the marriage, but before its consummation, he will have to pay half the dower. As in this case woman has no period of probation and the question of maintenance does not, therefore, arise. Thus, it is clear that divorce does not nullify all the legal effects of a marriage contract. It is also clear that divorce is different from the annulment of a marriage and that the right of divorce is not contradictory to the fact that a marriage contract is binding. There are two aspects specified in Islam annulment of marriage and divorce. A marriage may be annulled owing to a serious physical defect being discovered in either husband or wife. In this regard, both of them have equal rights. Only the right of divorce belongs exclusively to man.
The fact that there are separate rules for divorce and the annulment of marriage shows that Islam has not accorded the right of divorce to man because it wanted to give him any preferential treatment.
Penalty for Divorce
With a view to preventing divorce, certain legal systems prescribed a penalty. We do not know whether any such law still exists anywhere in the world. Anyhow, the historians say that the Christian Emperors of Rome imposed a fine on those who divorced their wives without any valid reason.
Obviously it is another form of the use of force for the maintenance of family life, and hence cannot be of much avail.
Delegation of the Right of Divorce to Wife
We have so far dealt with the natural right of divorce which belongs exclusively to the husband. But he can confer the power of divorce on the wife. This delegation of power can either be general or limited to certain specified circumstances. To make it irrevocable it is included in the marriage contract as a binding clause, according to which the wife is empowered to dissolve the marriage in the specified circumstances already agreed upon.
It has been customary since the olden days that the women, who feel, in any way, apprehensive of the conduct of their husbands, insist on the inclusion of such a clause in the marriage contract and exercise the power delegated to them, if necessary.
Thus, according to the Islamic law, though woman does not have the natural right of divorce, she can have the contractual right of the dissolution of marriage.
Hence, it is not correct to say that the right of divorce is unilateral and Islam has given it only to man.
Adapted from the book: "Woman and Her Rights" by: "Shahid Murtaza Mutahhari
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