Islam Welcomes Every Factor Which Helps Checking Divorce

From what we have written some people may wrongly conclude that we are in favour of allowing men to divorce their wives at their will and pleasure. Of course, that is not the idea. What we mean is that Islam does not want to use legal force against the husband. Otherwise, Islam welcomes every action which may dissuade him from divorce. Islam has intentionally prescribed such a procedure and has laid down such conditions for the validity of divorce that they automatically delay the dissolution of marriage and, in many cases, persuade the husband to give up the whole idea of separation.

Islam has advised those who pronounce the divorce formula, and the witnesses and others, to do their best to dissuade the husband from the idea of divorce. Furthermore, a divorce is not valid unless it is pronounced in the presence of two qualified 'Adil" (Just) witnesses, who are expected to make their utmost efforts to reconcile the couple.

The present day custom that the divorce formula is often pronounced in the presence of two just persons, who may not even know the couple concerned except their names, is totally un-Islamic.

Anyhow, the necessity of the presence of two qualified witnesses is one of those factors which may dissuade the husband from divorce, provided this condition is observed strictly in its true sense. Islam does not regard the presence of two qualified witnesses as an essential condition for the validity of marriage, which is the beginning of the marital contract, because it does not want to delay a good deed. But it regards the presence of two qualified just witnesses necessary for divorce, which is the end of the contract.

Similarly, according to Islam, divorce is not effective during the woman's menstrual period, though there is no objection to the solemnisation of marriage during that period. Apparently menstruation, being a hindrance in sexual intercourse, should affect marriage and not divorce. But as Islam encourages union and discourages separation, it has allowed marriage during the monthly period and has disallowed divorce during that period. In certain circumstances, it is necessary to wait for three months before a divorce is allowed.

All these hindrances and obstacles are meant to allow enough time for the tension, which had led to the decision of divorce, to subside, and to enable the husband and the wife to resume their normal life.

Furthermore, in the case of revocable divorce, the husband is permitted to resume conjugal relations during the period of probation iddah (waiting period).

Islam has placed another obstacle in the way of the husband, by imposing on him the expenses of marriage as well as those of the period of post-divorce probation for wife and of the care of children. If a man wants to divorce his wife and marry another woman, he has first to pay the maintenance of the first wife, to undertake the responsibility to bear the expenses of the children, and to fix the dower of the new wife. Furthermore, he has to shoulder the responsibility of supporting the second wife and the children which may subsequently be born.

Apart from the responsibility of looking after the children, their woeful plight offers the husband a fearful prospect and prevents him from taking a decision to resort to divorce.

In addition to all this, Islam regards it necessary that in the case of the apprehension of breach and dissolution of family life, a family court consisting of two arbiters, one representing the husband and the other representing the wife, is constituted to arbitrate between them.

The arbiters should do their utmost to settle the dispute between the husband and the wife and, if necessary, they should consult them for this purpose. They can dissolve the marriage only if they find that reconciliation is impossible. As far as practicable, the arbiters should be selected from among the relatives of the couple, provided suitable people are available among them.

The Holy Qur'an says: "If you fear a breach between the two, appoint an arbiter from his relatives and another from hers. If they both desire compromise, Allah will afford harmony between them. Surely Allah is Ever-Knowing, Aware', (Surah an-Nisa, 4 : 35).

The author of the Kashshaf, explaining the word, 'arbiter' says that the person selected to arbitrate should be trustworthy, eloquent and capable of bringing about a reconciliation and doing justice to both the parties. He further says that it is preferable to select the arbiters from among the relatives of the couple because they are expected to know the causes of the dispute better and both the parties can talk to them freely and repose confidence in them.

The jurists differ on the question whether arbitration is obligatory or only desirable. The most eminent among them are of the view that it is the job of the government to appoint the arbiters. Shaheed Thani in his book, 'Masalik' has formally expressed the legal opinion that arbitration is obligatory and it is to be arranged by the government.

Sayyid Muhammad Rashid Riza, the author of the Qur'anic Commentary, 'Al-Manar', after giving the opinion that arbitration is obligatory, refers to the difference of opinion among the jurists on this question and says that, practically, the Muslims do not follow this wise rule and thus are deprived of its unlimited benefits. The scholars unnecessarily waste their energy on arguing whether arbitration is obligatory or only desirable, while nobody takes steps to implement it. If a rule is not to be implemented, then what difference does it make whether it is obligatory or desirable?

Regarding the conditions which the arbiters can impose on the husband to secure a reconciliation, Shaheed Thani says that they can for example bind him to keep his wife in a particular town or a particular house; not to accommodate his mother or his other wife in the same house not even in a separate room; to make prompt cash payment of the dower fixed at the time of marriage; or to make immediate payment of any loan he might have taken from his wife.

In short, any suitable action to dissuade the husband from repudiating the marriage bond is valid and desirable.

This is the answer to the question we raised earlier i.e. whether or not, the judiciary which represents society has the right to intervene and prevent the dissolution of marriage.

The judiciary can intervene because the husband's decision to divorce his wife is not, in all cases, a sign of the final collapse of the conjugal bond. Such a decision may be taken in a fit of rage or may be the result of some misunderstanding. Any action taken by the society to prevent the implementation of such a decision is welcomed by Islam.

A court of arbitration, being the representative of the society, can direct the divorce offices not to finalise the action on a divorce case, till the court intimates them of its failure in bringing about peace and harmony between the husband and the wife.

Adapted from the book: "Woman and Her Rights" by: "Shahid Murtaza Mutahhari