The Religion Of Islam vol.2
Inequality Of The
Two Sexes Regarding Divorce
Marriage being regarded as a civil contract and as such not indissoluble, the Islamic Law naturally recognizes the right of both parties to dissolve the contract under certain given circumstances. Divorce, then, is a naturally corollary to the conception of marriage as a contract, and it is regrettable that it may have furnished European critics with a handle for attack. They seem to entertain the view that the Islamic Law permits a man to repudiate his wife “even on the slightest disgust.” Whether the law permits or favours repudiation on the slightest disgust, we shall presently see. But there is another point raised by these critics, namely the inequality of the two sexes in regard to the right of obtaining a divorce, which inequality is in fact more seeming than real. The theory of marriage, no doubt, points to a subordination of the wife to her husband, because of her comparative inferiority in discretionary powers; but in practice the hands of the husband are fettered in more ways than one. The theoretical discretion must not be understood as given a tacit sanction to the excesses of a brutal husband; on the other hand, it is intended to guard against the possible dangers of an imperfect judgment. The relation between the members of the opposite sex which marriage legalizes are, however, so subtle and delicate and require such constant adjustment, involving the fate and well-being of the future generations, that in their regulation the law considers it expedient to allow the voice of one partner, more or less, predominance over that of the other.
Perhaps it is here worthy of notice that in Europe the two sexes are not placed on the equal footing in respect of the right of divorce. Lord Helier, P.C., K.C.B., who was president of the Probate, Divorce and Admiralty Division of the High Court of Justice, 1892-1905, observes on this point thus: “Much comment has been made on the different grounds, on which divorce is allowed to a husband and to a wife – it being necessary to prove infidelity in both cases, but a wife being compelled to show either an aggravation of that offence or addition to it. Opinions probably will always differ whether the two sexes should be placed on an equality in this respect, abstract justice being invoked, and the idea of marriage as a mere contract, pointing in one direction, and social consideration in the other. But the reason of the legislature for making the distinction is clear. It is that the wife is entitled to an absolute divorce only if her reconciliation with her husband is neither to be expected nor desired. This was no doubt the view taken by the House of Lords” ([1])
Limitation of Divorce
A Muslim is not free to exercise the right divorce on “the slightest disgust.” The law has put many limitations upon the exercise of this power. Then again the example and precepts of the Prophet in this particular have rendered divorce most repellent to the Muslim mind. A Muslim is permitted to have recourse to divorce, provided that there is ample justification for such an extreme measure. The Koran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remain faithful and obedient to him in matters recommended by the law:
“If women obey you (i.e. in lawful matters), then do not seek a way against them,” that is seek not a pretext for separation.
The law gives man, primarily, the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy, but in the absence of serious reasons, no Muslim can justify a divorce either in the eyes of religion or the law. If he abandons his wife or puts her away from simple caprice, he draws upon himself the divine anger, for “the curse of God.” Said the Prophet, “rests on him who repudiates his wife capriciously.”
In the Koran, there is most edifying verse which is generally overlooked by the critics of Islam: “Associate with your wives,” so runs the verse, “with goodness; and if ye dislike them, it may be that ye dislike a thing and God may put abundant good in it.” Thus the Koran enjoins forbearance, even with a wife the husband does not like. One really wonders at the boldness of the critic is who presume that the Islamic Law permits divorce on “even the slightest disgust.”
Many and various are the sayings of the Prophet of Islam that teach love, untiring patience, forgiving disposition and, above all, fear of God in the treatment of women.
“The man who bears the ill-manners of his wife,” said the Prophet, “shall receive from God rewards equivalent to what the Lord gave to Sob, when he suffered his affliction. And to the woman who bears the ill-manners of her husband, God granteth rewards equivalent to what He granted to Assiyah, the righteous wife of Pharaoh.”
“It is to be rightly observed that divorce in Islam is allowable only when the object is not to trouble the wife by divorcing her without just grounds, such as refractory or unseemly behaviour on her part, or extreme necessity on the part of the husband.
Islam discourages divorce in principle, and permits it only when it has become altogether impossible for the parties to live together in peace and harmony. It avoids, therefore, greater evil by choosing the lesser one, and opens a way for the parties to seek agreeable companions and, thus, to accommodate themselves more comfortably in their new homes.
For, under Islam, a divorced woman, like the husband who divorces her, acquires the right of marrying any person she likes, the moment the separation is recognized by the law([2]).
Fully recognizing the evils that arise from divorce, the Prophet of Islam took very cautious steps in framing the law; and the ruling idea seems to be that divorce is justified only when marriage fails in its effects and the parties cease to fulfill the duties that spring from the marriage relations. There is, in fact, no justification for permanently yoking together two hostile souls, who might make themselves quite comfortable in new homes, if they were permitted to effect a separation. To compel them to live together in pursuance of a most vexatious law under a yoke of the heaviest slavery – for such is marriage without love – would be a hardship more cruel than any divorce whatever. God, therefore, gave laws of divorce, in their proper use, most equitable and human.
If a woman is chaste and mindful of her duties as wife, the Islamic Law makes it obligatory upon the husband to associate with her on the best terms, and with kindness and courtesy. But if she proves refractory in her behaviours, the law confers on the husband the power of correction if exercised in moderation. ([3])
Finally, it is to be remembered that the abuse likely to arise from the laxity of the laws, may conveniently be contracted by other lawful impositions. The wife or her guardian or attorney may stipulate, at the time of marriage, against the arbitrary exercise of the power of divorce by the husband. The right of dissolution of the marriage contract, which is in all cases a civil contract, may be stipulated to be with the wife, instead of with the husband, if necessary. The same object may also be achieved indirectly, by fixing the dowry at a large sum payable to the wife in case of a divorce by the husband, such as may be beyond the means of the husband to liquidate. The wife may also, by stipulation, reserve to herself the power of dissolving the marriage under certain legitimate circumstances, for example, if the husband marries a second wife.
Again, in the event of a divorce, the Islamic Law is very particular in providing for the protection of the wife’s property against the avarice of the husband: if the divorce is due to a cause imputable to the husband, he has to make over to her all her property, and pay off the dower that had been settled upon her. If, however, the divorce has been resorted to at the instance of the wife, without any justifiable cause, she has simply to abandon her claim to the dower. The wife thus occupies a decidedly more advantageous position than the husband.
The Islamic Law institutes also a procedure known as tafriq, which legally means dissolution of the status of marriage by a judicial verdict. Here are some causes for which the wife can demand a divorce by authority of the court: -
(a) Habitual ill-treatment of the wife.
(b) Non–fulfillment of the terms of marriage contract.
(c) Insanity.
(d) Incurable Incompetency.
(e) Quitting the conjugal domicile without making provision for the wife.
(f) Any other causes which in the opinion of the court would justify a divorce.
[1]) ) Cp. Review of Religions, April 1913.
[2]) ) With Christians the case is different; “Whosoever shall put away his wife, save for the cause of fornication, causes her to commit adultery; and whosoever shall marry her that is divorced commits adultery” (Matt. V: 32).
[3])) The law of England similarly vested in the husband the right of chastising his wife for levity of conduct (vide Holland’s Jurisprudence, p. 240).