Ismail Adam Patel
The Prophet (Peace be upon him) said: “Divorce is the most hateful of all lawful things in the sight of Allah”. Although Islam emphasises the importance of marriage, it is a humane and practical religion which recognises the fact that there may be situations in which dissolving the marriage bond may be in the better interests of the individuals concerned and of society at large. Divorce is allowed as a last resort, rather as amputation or major surgery may be the unpleasant but a necessary step needed to save a person’s life. If divorce were forbidden, then animosity and adultery may become rampant.
To save individuals and society from the greater evils, divorce has been permitted. However, it is not a step to be taken lightly or hastily. Sincere attempts at reconciliation are to be made first and – as in the case of marriage – the rights and welfare of women are to be upheld. Imam al Ghazzali (b.1058 CE) who is honoured with the title of Hujjat al Islam ‘The Proof of Islam’ states, the greatest care should be taken to avoid divorce, for, though divorce is permitted, yet Allah disapproves of it. If divorce becomes essential then the woman should be divorced kindly, not through anger or contempt, and not without a valid reason. After divorce a man should give his former wife a present and not announce to others any of her shortcomings. The Qur’an advises a couple who are facing difficulties in their marriage to appoint arbiters: “If you fear a breach between them twain, appoint (two) arbiters, one from his family and the other from hers; if they wish for peace, Allah will cause their reconciliation…” [Surah An-Nisa’, 4:35] But if the attempts at reconciliation fail, then the couple is permitted to separate, “But if they disagree (and must part), Allah will provide abundance for all from His All-Reaching bounty…” [Surah An-Nisa’, 4.130] In order to dissolve a marriage, it is essential to pronounce a declaration of talaq. There are three types of talaq (divorce) that are practiced among Muslims: Talaq ahsan – (the preferable type of divorce): After issuing one pronouncement of divorce, the couple wait for the ‘iddah (waiting period, which consists of three menstrual cycles of the wife, usually three months). During this time, all possible attempts at reconciliation should be made. The husband may take his wife back at any time during the ‘iddah period. During the period of iddah the man must oblige to either keep the woman in the same home or at least furnish her with a comfortable apartment, which is easily accessible to him. Further, the man must provide for her as if no divorce has taken place. At the end of the iddah or waiting period if reconciliation has failed then the marriage is broken. Talaq hasan – is a divorce where a man pronounces talaq to his wife in three consecutive state of purity. Talaqid’i- (bid’i or innovative divorce) is talaq where the husband issues three pronouncements of divorce at one time. According to the majority of jurists, this talaq is valid but it is against the spirit of the Shari’ah and so the man is an offender in the eyes of the law. Talaq bid’i is considered a serious act against the Islamic teachings. Umar (may Allah be pleased with him), a close companion of the Prophet (Peace be upon him) and the second Caliph of Islam, used to whip the husband who pronounced divorce thrice at one and the same sitting. “When you divorce women, and they fulfil the term of their (‘Iddah), either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them, (or) to take undue advantage; if any one does that, he wrongs his own soul. Do not treat Allah’s Signs as a jest, but solemnly rehearse Allah’s favours on you, and the fact that He sent down to you the Book and Wisdom, for your instruction. And fear Allah, and know that Allah is well-acquainted with all things.” [Surah Al-Baqarah, 2:231] During the ‘iddah period, the couple should stay together, which gives greater opportunity for reconciliation. The woman cannot be evicted from the marital home unless she has committed an indecent act, such as adultery. “… And fear Allah, your 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 Allah: and any who transgresses the limits of Allah, does verily wrong his (own) soul: you know not if perchance Allah will bring about thereafter some new situation.” [Surah At-Talaq, 65:1] When it comes to divorce, Islam treads the middle ground, and safeguards the rights of women. It neither prohibits divorce, thereby imprisoning women as is the case in Hinduism and historical Christianity; neither does it regard divorce as insignificant, as in pre Islamic Arabia and in the present time. The right to divorce is not restricted to the husband. The woman may also seek a dissolution of the marriage by means of a process known as faskh, whereby she applies to the Qadi (Judge) for an annulment of the marriage. The wife may seek faskh in several cases, including: apostasy (renunciation of Islam) by the husband; lack of equality of status (kafi’ah); lack of compatibility; spoiling of marriage (fasad); incurable impotence on the part of the husband and if the husband ill-treats the woman (nushuz). The above cases present valid grounds for a woman to seek divorce from her husband. If the couple come to a mutual agreement for separation and get divorced then this is called khula. “If the wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best….” [Surah An-Nisa’, 4:128] Islam has decreed justice for both sexes in the case of divorce. Although the act of divorce is disliked, it is permitted for the sake of weak human souls who cannot always find comfort and solace in the marriage relationship. This is mainly due to lower tolerance levels, high expectations in others and needless desires.