Sex, Marriage and Family in World Religions (44 page)

a z i z a h a l - h i b r i a n d r a j a ’ m . e l h a b t i miliation. The relevant meaning is the general meaning common to all uses of this word in the Qur’an, namely, that of keeping distance, staying away, and abandoning. Indeed, keeping distance from the wife, abandoning her, and leaving the home are all required steps in rehabilitating the marital relationship; for deserting the marital bed and home forces the rebelling wife to confront the consequences of her rebellion, disobedience, and discord with her husband, which could be separation and divorce. . . . She then might consider whether divorce is what she wants . . . or whether her actions were just a moment of anger and stubbornness. . . .

Thus, the primary meaning of
darb,
which is relevant to redressing the conjugal relationship . . . is . . . leaving the conjugal residence, separating from the wife, and abandoning her as a . . . message to the wife and as a last resort in the private effort to save the marital relationship and preserve the family unit.

[Abu Sulayman Abdul Hamid Ahmad,
Darb al-Mar’ah Wasilah li Halli al-Khilaafaat
al-Zawjiyah!
(Chastising Wives: A Solution for Conjugal Conflicts!) (Virginia: International Institute of Islamic Thought, 2002), pp. 21–28 (20th century ce)]

DIVORCE

Divorce is a last resort for spouses who cannot live in kindness with each other.

It is permissible but not encouraged; for the Muslim marriage is intended to last. In fact, the Muslim marriage contract is described in the Qur’an as a “solemn covenant” (4:21). However, the Qur’an informs us that if spouses are no longer able to live in kindness with each other, they should part amicably.

Divorce can be initiated in five ways: (a) through the husband’s initiative, (b) through a derivative initiative by the wife if the husband has delegated his right to divorce to her through a stipulation in their marriage contract, (c) through the wife’s independent initiative, (d) by mutual agreement between the two, and (e) through a judicial form of divorce, usually initiated by the wife. Each of these forms has different procedures and legal and financial consequences.

For example, if the husband initiates the divorce, the consequences depend on how many times he has done so. If he has done it once or twice, Islamic law provides a “cooling down” period of three
quru’
(menstrual cycles or months) called
iddah
or “waiting period” during which the wife cannot be removed from her marital home and the husband may return to bed and board without a new marriage contract. If he does, the divorce disappears altogether legally; if he does not, the divorce becomes effective automatically at the end of the waiting period. In that case the woman is paid immediately any deferred amount of her
mahr
and usually keeps the custody of her children if they are young. The children’s age or other criteria that determine a transfer in that custody differ from one country to the other.

There are important issues relating to this form of divorce, as exemplified by the selection from al-Razi below. There are also some important protections
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for the woman under this form of divorce. For example, if a divorce pronouncement is uttered by an angry or drunken husband, it has no legal effect. Further, if during the waiting period it is discovered that the wife is pregnant, the
iddah
period does not end until she delivers. This means that the divorce will not take place while she is pregnant. If the husband divorces his wife three times, then the situation becomes much more complicated. For this reason, jurists disagree whether three pronouncements of divorce uttered in one sitting would count as one or three divorces. After the third divorce the husband is barred from remarrying his former wife, regardless of how sorry he may become for his actions. The wife becomes
ba’in,
that is, the husband may no longer remarry her unless she marries another person and becomes divorced or widowed. In other words, the third divorce makes the two parties strangers to each other.

Thus, while the “cooling down” period is a device to address constructively actions taken rashly by angry males who would later regret their actions and the destruction of their family unit, the Qur’an places a limit. For the preservation of the dignity of the woman, every man knows that on the third divorce he will lose his wife forever.

Where the divorce action by the wife is based on a delegation by the husband of his right to divorce, the rules remain substantially the same. The wife can initiate this form of divorce without the consent of her husband, because such consent was given at the delegation stage when the stipulation was placed in the marriage contract. But where the wife initiates an independent undelegated action for divorce, the rules change drastically. This independent action by the wife is called
khul’. Khul’
allows the wife who has strong feelings of aversion toward her husband through no fault of his own to leave him, provided that she returns to him the
mahr
he gave her. In this case the woman informs the judge that she has such strong aversion toward her husband and that she is concerned about her ability to observe the limits ordained by God while living with him. The judge would then try to reconcile the couple within a period of few months, and if that effort fails he is required to grant the woman her divorce.

In this scenario the husband will not have the option of returning to the wife within the
iddah
period and resuming their marital relations. Further, tradi-tional jurists, such as Ibn Qudamah who is cited below, have imposed the requirement of the consent of the husband to such action before it can be lodged. This point of view, however, is contrary to the clear
sunnah
of the Prophet as exhibited below in the story about the wife of Thabit ibn Qays. But until recently Muslim countries required the consent of the husband in this divorce action. A few years ago, however, the Egyptian al-Azhar which is a major source of Islamic law and jurisprudence in the Muslim world recognized the fact that the prophetic tradition does not require the consent of the husband in a
khul’
form of divorce. As a result, first Egyptian then Jordanian laws were changed to reflect this jurisprudence. Now, women in these countries are no longer expected to gain their husband’s consent in a
khul’
action. Previously, 202

a z i z a h a l - h i b r i a n d r a j a ’ m . e l h a b t i women had to buy such consent at a high price to them and their families.

The selection from the Moroccan king’s speech shows that the Moroccan government opted to equalize divorce rights within the family by decreeing that, as a matter of public policy, the delegation of the man’s right to divorce to the woman will no longer be a matter of private negotiations, but rather a matter of law. Thus, women in Morocco will now automatically have the delegated right to divorce as part of their marriage contract.

Finally, if the husband has harmed his wife, then the preferred form of divorce should be the judicial one. If harm is shown, the wife is then entitled to both divorce from her husband and her
mahr
as well.

Document 3–82

q u r ’ a n 2 : 2 2 8 – 2 3 0

Divorced women shall wait concerning themselves for three monthly periods.

Nor is it lawful for them to hide what God Has created in their wombs, if they have faith in God and 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 similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. And God is Exalted in Power, Wise.

A divorce is only permissible twice: after that, the 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 be 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 no blame on either of them if she gives something away 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).

So if a husband divorces his wife (irrevocably), he cannot, after that, remarry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they reunite; provided they feel that they can keep the limits ordained by God. Such are the limits ordained by God, which he makes plain to those who understand.

[Al-Baqarah, The Cow]

Document 3–83

q u r ’ a n 6 5 : 1 – 2

O Prophet! When you do divorce women, divorce them at their prescribed periods, and count (accurately) their prescribed periods: And fear God your
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Lord and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by God.

[Al-Talaq, Divorce]

Document 3–84

q u r ’ a n 4 : 2 0

But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit of it back: Would you take it back by slander and manifest wrong?

[Al-Nisa’, The Women]

Document 3–85

The Prophet said, “Verily, the most hateful to God of lawful things is divorce.”

[Hadith narrated by Ibn ‘Umar in Abu Dawud,
Sunan Abu Dawud,
bk. Talaq (Divorce) nos. 2177 and 217833 by Ibn Majah in
Sunan Ibn Majah,
bk. Talaq (divorce), no. 2018. (9th century ce)]

Document 3–86

The wife of Thabit Ibn Qays came to the Prophet and said, “O God’s Apostle!

I do not blame Thabit for defects in his character or his religion, but I am afraid I will violate God’s law if I remain with him.” On that God’s Apostle said to her, “Would you give him back the garden he has given you as
mahr
?” She said, “Yes.” Then the Prophet said to Thabit, “Take the garden and divorce her at once.”

[Hadith narrated by Ibn Abbas, in Al-Bukhari,
Sahih Al-Bukhari,
bk. 63, Talaq (divorce), no. 198 (9th century ce)]

Document 3–87

a b u b a k r m u h a m m a d i b n a b d i l l a h i b n a l - ‘ a r a b i a l m a l i k i “And it is not lawful to you to take any part of what you gave them.”

Some scholars said that this verse refers to the
mahr,
but to me it includes everything he gave her. Although the dower
(mahr)
is a free marital gift, anything else given during the marriage is similar to it, because it is an intentional gift. This is a general rule in all marriages and divorces. . . .

This verse has been subject to many interpretations that are false altogether.

It refers to the conviction of each of the concerned parties that they may not 204

a z i z a h a l - h i b r i a n d r a j a ’ m . e l h a b t i be able to fulfill the marital rights of the other party because of some feeling of dislike. In this case there is no harm or blame upon her for paying her way out of the marital contract or for him to take back the returned gift.

God made it clear, however, that the husband cannot touch the divorced wife’s wealth in cases in which he was the one who instigated the divorce process, as in the verse “and if you decide to take one in place of another . . .”

because it is an instance in which people get greedy and the husband wants to take back what he has given his wife as a marital gift. You might think that whatever you gave her was for having her as wife, and since you are leaving her, then it is fully legitimate to take it back. God therefore prohibited it. . . .

[Ibn al-‘Arabi al-Maliki,
Ahkam al-Qur’an,
1:193–194 (12th century ce)]

Document 3–88

m u h a m m a d f a k h r a l - d i n a l - r a z i “O Prophet! When you do divorce women divorce them at their prescribed period and count (accurately) their prescribed period.” . . .

There are several issues in this verse:

First: What is the difference between a
sunnah
divorce and a
bid’a
34 divorce?

We say that it was called a
bid’a
divorce because, if she had her period, here menstruation days were not to be counted in her waiting period, which would otherwise exceed then the three cycles she is required to observe. It will become more like four cycles. During this whole time she was suspended, so much so she was neither married nor divorced, and this was harmful to her. Also if she was divorced while not menstruating, but after having had intercourse with her husband, she could be pregnant, and the husband would not have divorced her if he knew and might regret divorcing her while she is bearing his child. Divorce during menstrual periods is harmful to the woman; for it makes her waiting period longer. Divorce after having intercourse, with the possibility of pregnancy for the woman, could be harmful to the husband; for he might regret it.

Therefore it is always recommended to divorce her after the menstrual period and before any new intercourse. In this case she will uncompromisingly count three cycles and he will have the assurance that she bears him no child.

Second: does the divorce that is contrary to
sunnah
have legal effect? We say that it actually does, despite being sinful. The evidence is in the
hadith
that suggests that a man divorced his wife thrice in the presence of the Prophet, so the Prophet asked him, “Are you playing with the book of God while I am still amongst you?” . . .

“And turn them not out” means that the divorced woman shall not be chased out of her house during her three-cycle waiting period. If the house was rented and the lease has ended, it is obligatory upon the husband to buy or rent another suitable house for this purpose. This is also binding on the wife. She shall not
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