Islam and Divorce
- :Sayyid Mujtaba Musawi
Islam and Divorce
By : Sayyid Mujtaba Musavi Lari
The first point this chapter must make is that divorce is contrary to the laws of nature. The annulling of the marriage-bond and the separation of those who should be life-partners is a denial of the true nature of man as created and as at his best. Any society in which divorces become numerous, with the consequent break-up of families, evidences its deviation from nature and her requirements.
Psychologists, jurists and sociologists, concerned by the effects of divorce on the moral and juridical personality of those involved, have gone deep into the subject, and given it as their considered verdict that the ejection of a man and wife, let alone the children, from the warmth of home-life into the cold unwelcome of any substitute establishment they may find, deals a mortal blow to their spirits and exposes their children to the onset of moral ailments and psychic traumas against which family life had immunised and protected them. These scientists further hold, almost to a man, that for these reasons divorce should be rendered practically impossible by severe sanctions, except in a few cases where some cause, generally from outside, like the onslaught of insanity or criminality, makes an exception to the rule.
But what should be done in cases of irreparable breakdown of relationships? Must the partners stay in the hell they have made? Or may a way-out be found for them? Christianity says blankly. "No divorce!" But Islam more realistically faces the consequences of irreparable breakdown as a fact, and provides a way-out. Every possible safeguard is laid down in the statute book to prevent such a way-out by divorce being abused. But it is clear that the bankruptcy of the relationship is only worsened by forcing the partners to stick together; and their misery is only increased. Hence divorce, though stigmatised as " the most loathsome of states in the eyes of the Lord" is made possible when it is the better of two bad roads. It may even be that the very separation removes the cause of the irritation between man and wife, while the lapse of time in absence softens the hearts and recalls the good points which had been lost under the pains of discord; so that the couple seek reunion, and in some cases actually start the same partnership up again in pardon and joy.
Since Islam's aim is the firm establishment of marriages, in the interests of this objective certain liberties are denied. The right of divorce is given to the man only, except in very exceptional cases. This is to safeguard the best interests of women and save them from falling victim to passions. Manifestly, if two people both have the right to institute divorce proceedings, the basis of confidence is made very shaky on both sides. What better safeguard can there be, therefore, than to give the right of divorce proceedings primarily to the one who has by nature more subjection to the powers of reason, and patience in the face of lack of tenderness; and who stands to lose the sum he has given as a marriage portion, as well as having to undertake the financial burdens of the children's upbringing?
The differences in the constitution of a man and woman are manifest. The head takes first place in the man's decisions and the heart in the woman's. Reason and emotion are the gifts given to each respectively in their creation. As Dr. Alexis Carrel puts it: "The differences between men and women are, obviously, the physical ones : and then, less obviously, the internal ones like the dispositions of the nerves, the different mental and emotional talents, both of which are of supreme importance for the future of civilisation. Partisans of Women's Liberation aim at a false conception of equality,. as if that desirable condition meant precise similarity and identity in upbringing, employment, responsibilities and duties." ("Man, the Unknown" pp. 84-87).
It is for these reasons that Islam's Feqh lays down: "Divorce is in the hand of the man." And it is in consideration of the woman's delicacy of spirit that the power of ending a shared life is not granted to her. Islam, in addition to the manifold measures it has taken to make it easier for people to enter the married state and start families, also makes it more difficult to break up the home. Everything possible is done to ensure happy sound home-life, for the sake of the family's members and of the society to which they belong. It is therefore that it is written in Sura IV: Nisa'a -"The Women", verse 19. "O men, live with your wives in kindness and equity. If you dislike anything in them, that may be the very point which God will use to bring about much blessing."
In order to take away such feelings of dislike and prevent their turning to hatred, and to remove their discomfort, Islam awakens the man's conscience to live in kindness and equity with patience, and not to cast off a wife who is temporarily in disfavour, since it may be that goodness and blessing may come through those very wives; so that it would be stupid to end the relationship hastily. As is written in the same Sura IV Nisa'a -"The Women", verse 128: "If a wife fears cruelty or desertion on her husband's part, there is no obstacle to their arranging an amicable settlement between them for which the wife must renounce some of her rights. But if they return through reconciliation and peace through such unselfishness, such a settlement is better than separation and divorce."
The same dislike of divorce, as the most detestable of extreme measures to be adopted only in the direst emergency, is advanced by all Islam's greatest jurist-consults and leaders, an attitude summed up in the sentence in the book "Mustadrak" (Vol. 3, p.2): "Any woman who seeks to be divorced from her husband, save in cases of extreme necessity, falls out of the grace and mercy of the Lord." Or again in Vol. 3 of the "Vassa'el" (p.144): "Enter upon matrimony. but do not divorce your wives, since divorce shakes the very throne Of God."
Islam fences in the man's power of divorce with many limiting safeguards. A man may not put away his wife by violence, harassment, injury or in a way which may drive her to a life of immorality and corruption. Thus Islam has for centuries surpassed anything yet achieved in Western countries, in its initiative to remove differences and restore understanding in family life. This is particularly true of the family courts, where well-meaning relatives have a large say and everything is done to bring about reconciliation. Causes of differences are deeply studied; and, as relatives, they are able to go deep into confidential matters without either of the couple feeling that their private secrets are being exposed or their feelings excoriated in too public an ambience. When the causes of the difference have been brought into the light of day the members of the family court exert all their powers of sincerity and' heart and affection to bring about reconciliation and to quench the fires of temper, exhorting both sides to unselfishness, tolerance, and an effort to understand each other's point of view. Since both man and wife respect these elders and have full confidence in their compassionate affection, they frequently accept the family court' s recommendations for adjustments they should make in their relationships and behaviour towards each other. As it is written in Sura IV. Nisa'a-"The Women" (verse 35): "Should you fear that division will arise amongst them, appoint an arbitrator on the husband's side and an arbitrator on the wife's side from amongst their relatives and send them to them. As soon as they desire peace and reconciliation the Lord will vouchsafe it to them for He is all-knowing and all-wise."
Should the causes and roots of the initiation of divorce proceedings prove to be too deep, so that there is an irreparable breakdown in marital relationships, and all the efforts of the relatives fail to bring about any sort of hope of reconciliation, Islam in its realism recognises that each party must take their own road. It must be plain that such a family court is far more likely to succeed than all the public courts of law or marriage guidance clinics. In fact these only too often, being strangers to the family and not privy to their inmost secrets, merely increase the rift, because of the clumsiness of their well-meaning efforts. A public court has the duty to hear the evidences produced by both sides; and then, in the cold dry heartless atmosphere in which only exact truth and not mercy or clemency reigns, decide which side has most right and give verdict accordingly. It has neither the heart nor the spiritual influence of relatives to press for reconciliation, and cure the causes of the quarrel. In the Qur'an, Sura LXV "Talaq" -"Divorce" ordains in verse 2: "Two just persons from amongst yourselves shall bear witness to the evidence before God when a divorce is settled." Without these two witnesses, there is no legal divorce. An advantage of their appointment is that they can exert every pressure of affection and wisdom to avert the final catastrophe for quite a period before reluctantly, if they have to do so, agreeing that there is no other way out. They frequently succeed in the better course. It is further laid down that no divorce may be made absolute save after the woman' s period of purification after menstruation or childbirth is completed. This need to wait awhile often proves a breathing-space in which the man's feelings of tenderness once more assert themselves over his irritations, and make him decide against divorce.
Further when a man finds sharing his life with a particular woman wearisome and irksome and decides on divorce, this decision of his does not suffice in itself to end their living together not does it become effective until the expiry of the "Iddat", i.e. the period fixed by the Feqh during which a divorced or widowed woman may not be married to another man: and this period also gives a breathing-space which frequently results in the man's change of heart and decision to continue the married bond with the wife he planned to divorce. Finally, after the execution of the formalities for a "revocable divorce" (Talaq-i-raj') a man may not expel his wife from the home until the termination of the period of the "iddat" which may last anything up to three months, nor may the wife quit their joint home except in a desperately exceptional case during that period. As the Sura LXV "Talaq" "Divorce" enacts (verse 1): "You may not expel women from their houses, nor may they themselves quit, except if they have been proven guilty of some open lewdness (during the "iddat" period). These are limits set by God. Should any man transgress these limits he does so at the peril of his own soul, and to his own harm : for you know not whether God may bring about some new situation later (than the decision to divorce)."
No formalities are necessary to abrogate a revocable divorce during these months. A mere indication of desire for renewal of the marriage relationship by the man suffices. Should the wife feel such hatred for her husband that she repays him the statutory portion of marriage settlement he had given her, or a portion of her own property, that counts as her divorcing him; but this type of divorce is revocable within the stated period, so that if she changes her mind, and her husband agrees, he can still take her back into their home. By these many means Islam safeguards the holy estate of matrimony from shipwreck on the rock of hasty decisions onto which emotional storms may drive some couples.
Islam had also done much to protect the wife's rights and to save her from having to continue to live in an unhappy environment. Among beneficent measures are the following :
1. the wife can insert a clause in the marriage contract ensuring that
- (a) incompatibility of temperament
(c) refusal of maintenance
(d) unannounced journeys
(e) the taking of another wife without consultation
2. the wife can make it impossible for her husband not to divorce her by being intolerably refractory, vexatiously shrewish or deliberately incompatible in relationships, familial, sexual or social;
3. the wife can resort to the courts if the husband has been incapable or negligent in supplying her with maintenance or has put obstacles in the way of her obtaining it ; or if either partner deprives the other of conjugal rights or fails in marital duties; the Muslim Qadhi, if the woman' s plea is proved, can compel the husband to treat her right, to be reconciled, to disburse the proper sums, to confer her rights upon her in every form : and if the husband proves recalcitrant, or refuses to obey the judge's orders, the judge can then compel him to divorce his wife;
4. the wife can enter a plea in the Islamic court and obtain an injunction if the husband accuses her of lewdness, unchastity or unfaithfulness, or denies his own paternity of her child : if the husband cannot prove his case the judge will order the husband to separate himself from his wife in accordance with the relevant legislation;
5. the wife may, in the case of intolerable revulsion or aversion, in a simple fashion bring about a discontinuance of their union by renouncing a large part of her marriage portion, while freeing her husband from his obligation to pay her alimony during the "Iddat" breathing-space period;
6. the wife, if the husband absents himself so that no news of him reaches her and she falls into financial or other difficulties, can resort to the courts and request a divorce. the judge will then perform the necessary formalities to annul her marriage contract.
It is written in Sura II: "Baqara" -"The Heifer" (verse 229): "A divorce is only permissible twice : after that the parties should either hold together in equity or separate in kindness. It is not lawful for you men to take back from your wives any of that portion which you have given them except when both parties fear that they would be unable to keep the God-ordained limits. If you judges have reason to fear that the parties will be unable to keep the God-ordained limits, so decree, for there will be no blame on either of them if she hands over a sum in exchange for her freedom. These limits are God-ordained so do not transgress them since that is to wrong yourself as well as others."
In the "Exegetical Collection" it is related in Volume I on page 167 that Ibn Abbas reported that Jameel?wife of Thabit bin Qais, sought audience of the Prophet and complained to him: "O Apostle of God! I cannot stand one moment more of life with Thabit bin Qais, nor shall my head ever rest again on the same pillow as his." After a pause she added : "I am not accusing him of a lack of faith or of moral and marital virtues: but I am afraid that I myself will fall into infidelity and blasphemy if I have to spend another minute with him. I turned up the tent-skirting and my eye fell on my husband in the middle of a crowd of other men. He looked so ugly, a black-avised, dwarfish runt, and I hated him, and I can't go on. ...!" She ran on thus, and the Prophet, after absorbing her outpouring, tried to advise and admonish her, but she paid him no heed. So he sent for Thabit bin Qais and laid the situation before him. Thabit was deeply attached to Jameel?but self-sacrificingly and for her sake agreed to take back the marriage portion he had settled upon her - a beautiful garden - and give her a khul' divorce.
There are cases in which resort to the court by the wife is statutory. There are also cases in which she can divorce her husband without legal aid, as in cases of certain grave chronic diseases like leprosy or elephantiasis; or because of the onset of lunacy, or of physical defects which prevent marital intercourse, like impotence or castration of the husband. For these Feqh gives the wife haqq-i-faskh - the right to the rescinding or annulment of the marriage, which "faskh" is not the same as the khul' divorce, and does not involve the same financial renunciations by the wife as khul' does.
Germany and Switzerland, in Europe, also recognise lunacy as grounds for the annulment of a marriage or for separation. France does not admit either grave chronic disease or lunacy as an adequate ground, and insists that the healthy spouse must care for the leprous or lunatic partner. Undoubtedly such longsuffering and lovingkindness is highly praise worthy. while extolling it as a counsel of perfection, Islamic realism prefers to leave the partners free to choose separation or continued care, according to their own conscience.
The West is suffering terribly from the laxity it has allowed in the break-up of marriages and the violently increasing incidence of divorce. These disasters are really reactions to over-pressure by the churches, which prohibited and condemned divorce one hundred percent for many centuries, while the secular governments gave recognition to it. For instance, divorce was totally prohibited in France until the French Revolution of October 1789. In 1804, in response to popular demand, divorce was legalised; but in the following 12 years it increased so appallingly that the religious bodies brought renewed pressure to bear, until in 1816 the law legalising divorce was rescinded though physical separation of the parties was permitted. However, public pressure built up again so much that in 1884 divorce within certain limits was legalised once more.
Here follow the conditions on which in Western lands divorce for wife and husband was legal until recent times:
1. a criminal act committed by either party which involves the penalty of life-imprisonment, exile, loss of civil rights or temporary imprisonment with hard labour.
2. physical violence, mercenary prostitution, and a few other similar criminal acts of the one partner against the other.
3. adultery by either partner - though in such cases the wife has the right of divorce only if the man commits adultery with another woman in the house which belongs to his wife and himself.
The following is the road by which a wife's infidelity was proved : note it well! "The infidelity of a wife must be proved completely in the eyes of the police. The wife or the husband plan to be in different places for however a short time. They must agree about some third person to be cited as co-respondent and this person must be prepared to undertake this service. And then at the stated hour the wife must be caught in flagrante delictu with the third party', and the husband must have the police on the spot to catch her out and so prove her infidelity. Thus the police accompany the husband to the trysting-place; and when they catch the wife in flagrante delictu this is accounted adequate grounds for her husband divorcing her." (The Law of Divorce and Renewal of Marriage p.99).
See what a mass of further impurities the impurity which wrought the need for divorce in the first place has carried in its train. And this is the "civilised" world of the West, which allows women entry into public and political life, and with the other hand takes away her honour, her femininity and the high standards which it should be her privilege to set, and turns her chastity into a mercenary bargaining-point. It must be admitted that since I first put pen to paper on this matter, efforts have been made in many Western lands to eradicate the worst of these abominations.
America makes divorce easier for both parties. It is not surprising, therefore, that American divorce figures are the highest of all. The wise tremble at the results : the wisdom of Islamic dispositions shines by contrast like the sun in darkness. At a conference in Strasburg, statistics of one year's divorces which could be attributed to the overwhelming desire of wives to be "in the fashion" "a la mode", "comme il faut" and to "keep up with the Joneses" in modernity of garb and guise were quoted as being:
1. in France, 27% of all divorces;
2. in Germany, 33%;
3. in Holland, 36%;
4. in Sweden, 17%.
Not every Parisienne is an excessive slave of fashion. Nonetheless it is reckoned that the costs of unnecessary purchases made by women simply to keep up with "mode" come to no less than 5,000 tomans per head (?300-?400 per head per annum). Yet all this expenditure adds nothing to the woman's natural beauty, moral stature, ease of spirit or calm mind! European statesmen, and responsible thinkers everywhere, are well aware of the danger, and fear it acutely. All who possess the slightest sense of philanthropy must seek the means of stemming the sweeping tide of this flood of evil through the world.
Islam offers its regulations on family life, matrimony, and the respective positions of men and women, as a way which all nations might do well to follow remembering that it was a Westerner Voltaire, who said: "The Prophet Muhammad reduced the unlimited harems of unfortunate women maintained by pre-Islamic potentates to a maximum of four wives: and his legislation on marriages and divorces is the most noble and effective ever conceived, formulated and enacted by any authority at any time in the world's history, religious, political or social."
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