- :Dr. Mir Mustafa Hussain
It has been stated earlier that nikah is an agreement, with full consent between a man and a woman (fully matured and sane) for leading married life. This aims at a happy family life. When possibility of maintaining married life does not remain, both the parties are permitted to cancel their nikah - marital tie; and a relief from this bond is called talaq (divorce).
In the matter of nikah only two individuals-man and woman are involved, and therefore, it is confined to these two individuals only. The matter of talaq is not so confined to two individuals alone; sometimes besides them, their children’s interest will be affected, and thus it becomes a common matter of the society. It is worthy of consideration that at the time of formulation nikah deed consent of both the parties viz. man and woman was necessary; when the same agreement is being terminated, how could only one party namely the husband is given all the rights to terminate the same unilaterally, saying in one breath talaq-talaq-talaq, and driving away the lady from home. At the same time, she is helpless to face innumerable troubles to settle the matters of divorce.
Rights and responsibilities of husband and wife are equal, and the position of both the parties shall be similar in the matter of talaq too. Guidance of the Quran in this respect is that "If you fear a breach between the couple, then appoint an arbiter from the man’s family and an arbiter from the woman’s family. If the two (husband and wife) desire to reach a settlement, God is knowing, the Apprised of all." (14:35) Some of the Islamic scholars say that this is "An excellent plan for settling family disputes, without too much publicity or mud-throwing or resort to the chicaneries of the law. The Latin countries recognise this plan in their legal systems."
In the matter to talaq, irrespective of complaint put forth either by the husband or the wife, it will be the responsibility of the society to appoint a board of arbitration. If the wife feels excesses or negligence from the husband’s side, the better course will be that both husband and wife should sort out their differences or appoint a board of arbitration. (4:128) The woman (wife) can also take her case to the court that she too has got full right for divorce (as per the law). But the efforts of the board will be to settle the matter between the husband and the wife amicably. The Quran has used the term talaq for husband and wife both; it has not used the term khula, which has been coined later. It is said that ‘husband has handed over the right of talaq to the wife, but this is not correct. When the wife too has got the same right of talaq as that owned by the husband, then handing over the right of talaq to the wife by her husband makes no sense.
If a settlement between husband and wife in the matter of talaq could not be reached, then the institution or the court, which has appointed the arbiters, will pronounce the dissolution of the nikah (marriage). This is called talaq. In the matter of talaq, the Quran has addressed the Prophet (S), who was a judge or court (65:1). This indicated that the matter of talaq is not restricted to the two parties i.e. husband and wife only, it has wider horizons. The Prophet (S), who was assigned by the Almighty the role of court, was asked to inform the concerned persons that the matter of iddat (‘waiting period’ during which a divorced woman or a widow cannot marry) carries great significance, and this should always be kept in mind (65:1). As the iddat is based on menstruation, to account for iddat the talaq judgement should not come into effect until the concerned woman has completed three menstrual cycles. Those who do not menstruate due to physical disorder or old age, should wait for three months (65:4); only those women whose marriage is not consummated, have no ‘waiting period’ (33:49). If a woman is pregnant she must declare it, and the ‘waiting period’ for her is until the delivery (65:4). Iddat (‘waiting period’) for a widow is four months and ten days (2:234).
In case the court sees that the husband does not want to continue with his wife, the talaq judgement is given and the (divorced) woman will not give anything to the man. In this respect instructions given are very clear (4:20-21) and that the circumstances have led to the stage of separation. In this case, if a person has given even a whole treasure as mahr to his wife, he should not take back even a fraction of it (when talaq process has been initiated from his side). A portion form the mahr can be taken back when the woman takes initiative for talaq (2:229), or when she is found guilty of open indecency (4:19). This will also help to check a situation under which a woman performs nikah with a view to get mahr and afterwards she takes steps for talaq, then she has to surrender a portion of the mahr. At the same time man has been warned not to accuse or slander a chaste woman of open indecency with an object of compelling her to forego a part of her mahr for the husband. This is such an open sin, which does not require any evidence. The instructions are that whatever one has given her how he can take it back when he has enjoyed marital relations with her. Also at the time of nikah there was a solemn covenant from the husband for complete protection of her rights, and on the basis of this one should respect the agreement (4:20-21).
On pronouncement of talaq by the court, iddat commences for the woman; during this period she cannot marry (as stated earlier). She will remain there only where she was living with her husband before the talaq, and the cost of her maintenance will be borne by her (previous) husband with a provision to have the same standard of living she was enjoying before the talaq (65:6-7). If the woman is pregnant at the time of talaq, her expenditure will be borne by her previous husband till the delivery. After the delivery if she suckles baby, and if the man cannot make any other arrangement for this, she should be paid for the suckling, details for payment have to be settled mutually and under the provisions of the prevailing law. If this arrangement causes hardship to the man, separate arrangement is made for suckling through some other woman. While fixing the amount of expenditure of the divorced woman during the ‘waiting period’ or for suckling, it has to be done as per the paying capacity of the husband. If a person is financially depressed he should pay whatever he can (65:6-7). Further instructions of the Quran in this respect are: "Reverting to family laws, men should leave a will behind stating that their widows should be given maintenance for a year without requiring them to leave their homes. However, if during this period, the women of their own accord leave their home and make a decision regarding their further life, you are not to be blamed for it. And remember that these laws are given by Allah who is Almighty Wise". (2:240).
When the iddat is nearing its end, the husband may either take the (divorced) wife back on equitable terms or part with her on equitable terms (65:2). If the husband initiated termination of Nikah and he desired to resume the martial relationship, with the consent of the woman he may do so even during the iddat.
Two things are very clear in this respect (I) if the wife had initiated dissolution of marriage, it means that she does not want to cohabit with the husband. Therefore the husband cannot take her forcibly; it is altogether a different matter that she makes her mind to join her husband again; (ii) if the husband had initiated talaq, though the wife wanted to continue with him and the man corrects himself, then the martial relationship could be resumed. Under such a situation, the Quran warns that resumption of marital relationship should not be with a malign intention to do harm to her or to transgress the limits of Divine law and whosoever harms her harms him. (2:231) When both the spouses desire to reunite, they should not be prevented (2:232).
When reunion between the spouses has taken place, a question arises that for stabilisation of the martial relation whether renewal of nikah will be necessary or the same old agreement of marriage will be enough. This matter has been left to the society that if it wants it can recognise the previous nikah agreement, and if the society decides otherwise fresh nikah agreement has to be made. The State has to consider necessary that renewal of the union during iddat should be done in such a way that this is considered as nikah.
If the spouses have decided again to live as husband and wife, the above procedure will be adopted. If they have decide for separation, then two witnesses will be required who should not allow any concession to either of them. These witnesses should stand considering their service as duty to Allah (65:2). And that consideration (for reunion) which was an available to the man and the woman during iddat will not remain.
For these individuals (husband and wife), Whether they reunite or get separated, this step will amount to pronouncing one talaq.
If this couple has resolved to continue as husband and wife (whether during the iddat or thereafter), and again they have resorted for separation, the same procedure as given above has to be adopted. This will be treated the second talaq.
After the third talaq, neither during the iddat nor afterwards, they can cohabit as husband and wife (2:229). In case the woman gets married elsewhere and leads regular married life, and there also such a situation develop leading to talaq, or she becomes a widow, then the woman can re-marry her previous husband (2:229-30) In the light of the above explanation, it becomes quite clear that pronouncement of talaq thrice (at three different times) means final termination of the nikah i.e. married life.
With regard to suckling the infant (baby), it is not necessary for mother to suckle for a specific period of time. The parents depending on the conditions of the baby could take the decision in this matter. In this regard the Quran observes that the mother carries the baby in her womb and suckles it after delivery for a period of two years (2:233; 46:15), then expenses for the maintenance of the mother will have to be borne by the father, and these charges will not be beyond the father’s capacity. If both of them agree that the mother is relieved from suckling of the baby, they may do so. If the father desires to arrange another woman for suckling the baby, there is no harm in it, but whatever had been promised to the mother, that should be fulfilled accordingly. If the father dies during this period, the maintenance cost of the baby should be borne by his heirs.
On separation of husband and wife, children should stay with whom is the matter to be decided by the competent court or the State. It is to be kept in view that neither the father nor the mother or the heirs should suffer unnecessarily in this regard. The State could formulate rules for this purpose.
Adapted from: "Family Life in Islam" by: "Dr. Mir Mustafa Hussain"
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