Human Rights In Islam
(E) The Right of Divorce in Islam.
Many orientalists criticize the Faith of Islam because it grants the right of divorce to men only. It accordingly behooves us to explain the laws of divorce in Islam clearly and in detail. Many people have either misinterpreted or misunderstood the facts that govern the issue of divorce in Islam and have consequently presented a distorted picture of the matter.
The system of divorce in Islam is the most ideal system of divorce ordained by any religion. If we consider the system of divorce, in the countries of the Western world that adhere to Christianity we must understand the following facts. Christians follow one of three Churches, namely the Catholic, Orthodox or the Protestant Church.
The Catholic Church prohibits divorce and does not permit the annulment of marriage for any reason, however serious the reason may be. Adultery itself is not a justifiable cause for divorce and the only procedure permitted in the event of adultery is a separation between the husband and wife. The state of marriage nevertheless, exists legally between them and accordingly neither of them can marry again, since they would be committing the crime of bigamy.
The Catholic Church ordained this law according to Mathew's Gospel which states: "What therefore God hath joined together, let no man put asunder."[1] Certain groups that seceded from the Catholic Church permit divorce only in the event of adultery being committed by the husband or wife, but they also prohibit them from marrying again.
The Christian Churches that permit divorce in the event of adultery base their ruling on Mathew's Gospel as uttered by Christ : "Whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery".[2]The prohibition of a divorced man and a divorced woman from entering into a second marriage is based upon the following ruling from Mathew's Gospel : "Whosoever shall marry her that is divorced committeth adultery"[3] According to the original laws of Christianity, if discord between a husband and wife reaches a point when reconciliation is an impossibility and marital life becomes intolerable and the life of the whole family, adults and children alike, is threatened with disasterous consequences, they are commanded to remain in their miserable marriage whatever the consequences may be since : "What therefore God hath joined together let no man put assunder".[4]
Even if a husband and wife hate each other and all human attempts fail to reconcile them to each other, since one has no control over one's emotions which are controlled by God alone, they are commanded by the Church to spend the rest of their lives together, however miserable their lives may be. If either a husband or a wife does not abide by the sacred contract of marriage and deviates from morality and all attempts fail to reform him or her, Christianity prohibits divorce and the injured husband or wife is commanded to remain married to the person who has sinned against the Law of God, for the rest of his or her life. Occasionally separation between a husband and wife is permitted, but neither of them is permitted to marry again, according to the aforementioned verses of Mathew's Gospel.
If either a husband or a wife becomes mentally deranged and is a threat and a danger to the family, Christianity does not permit a divorce. If a husband contracts a serious infectious disease for which there is no remedy, or if he is impotent or sterile and cannot father a child, the Christian faith prohibits divorce although the marital relationship between husband and wife and the birth of offspring are the foundation of marriage.
A husband may abandon his wife and family for many years without his family knowing whether he was alive or had died or had been sentenced to life imprisonment, but the Christian faith will not grant the abandoned wife divorce. The same prohibition applies in the event of a husband who cannot or will not support his wife and family that has no other means of maintainance and may accordingly force the wife to lead a life of sin.
An Egyptian Christian woman, Mrs Zahiya`Aziz Murqos, filed a suit of divorce against her husband who had abandoned her without any financial support and had been unable to pay her the money for her maintainance which the court had decreed, as a result of his straitened means. The court refused her suit on the grounds that the laws of Christianity ordain that the bond of marriage is a sacred bond as is stated in the Gospel and is one of the seven secrets of the Church, emphasizing that what God has joined, no human being should set asunder. The court stated that some church officials and members of the general religious board had responded to the demands of people of weak faith and had granted them divorce for reasons which had not been ordained in the Gospel, and that the only reason for divorce permitted by the Gospel was adultery. These were the reasons stated by the Court for refusing a divorce to Mrs. Zahiya `Aziz Murqos.[5]
The Christian faith also prohibits the divorce of a husband and wife whose treatment of each other may lead to their serious harm or injury, after all attempts to reconcile them fail. Even if a husband and wife both feel that their married life has become intolerable and they both desire and agree to terminate their marriage, so that each one of them may begin a new life, they are prohibited from doing so by the Church.
When the Christians in the countries of the Western world realized that they could not adhere to the rigid laws of divorce as ordained by the Gospel, they introduced civil laws which permitted them to annul the marriage contract in certain cases. The great English philosopher, Bentham, expressed his opinion on the matter of divorce in his book "The Principles of Legislation", in which he wrote that a permanent marriage is undoubtably the ideal state for people and the most suitable for their needs, in addition to being the most favourable for the welfare of the family. He then stated that if a woman should stipulate that her husband should never be separated from her even if hatred should replace love, that would be an intolerable situation.
He continued to state that this stipulation exists without women demanding it, since the laws of the Church declare to the bride and bridegroom that they marry in order to be happy, but that they must understand that they have entered a prison the door of which is locked and that they will never be allowed to leave the prison, even if they fight each other with the weapons of enmity and hatred. The English philosopher also declared that if death alone could terminate a marriage the number of murders would have increased greatly.
Christians have introduced civil laws which permit divorce and thus deliver them from having to resort to murder or suicide in order to liberate themselves from this prison.
Abiding by civil law in matters of marriage and divorce and abandoning the laws of their faith is a unique manifestation of the Christians of the Western world. People of other religions including the Brahmas, Budhists and even the Magians and Pagans adhere or adhered to the laws of their faith in matters of marriage and divorce even if they introduced laws in other matters. They were accordingly able to live their lives without the problems that arise from the prohibition of divorce.
Some Christians however disregarded the laws of theifaith marriage and divorce after realizing that these laws do not take human nature, with all its inherent weakness, into consideration.
The Christian priests and clergymen could not stem the opposition to the laws of the Christian faith concerning divorce, nor could they deny the logic of man's natural needs, so they let matters drift and passed judgement on divorce only in the most serious and critical circumstances concerning royal families or other symbols of authority. They also chose the most opportune time from the political perspective in order to demonstrate their power and status.
When King Edward the Eighth of England declared his intention to marry a divorced woman and the policy of the government was opposed to this marriage, the Church refused to grant him permission to marry Mrs Simpson and remain on the throne of Great Britain. He was consequently obliged to choose between his throne and the woman he loved, and he chose the woman he loved and relinquished the throne.
It beloves us to mention that neither the Church nor the nation objected to their king having an illicit relationship with Mrs Simpson but that they only objected to his intention of marrying her.
When Princess Margaret Rose, sister of Queen Elizabeth the Second of Great Britain, declared that she intended to marry Captain Townsend whom she loved, the Church refused to permit her to marry him as he had divorced his wife. The fact that Captain Townsend's divorce had been granted him by civil and religious law, since his wife had been found guilty of adultery for which sin, the Protestant Church of England permits divorce, had no influence upon the Church's refusal. In Europe and in North America, the courts grant divorce to husbands and wives according to man-made civil laws, thereby violating the laws of their faith. The people who advocate that we abandon our Islamic laws of divorce and abide by these civil laws do not realize that such a procedure would result in chaos and corruption.
Although thousands of cases of divorce were filed and granted in Europe and in the United States of America, the Church did not object and did nothing to prevent such a phenomenum. An example of the Church's policy, which takes into consideration the political circumstances of the land, is that when the British Prime Minister, Sir Anthony Eden, divorced his wife, who had eloped with her lover to the United States of America, and married another wife, the Church did not object to his second marriage since it was not an opportune time to oppose the marriage.
The laws of Christianity concerning divorce and man-made civil laws concerning divorce are deficient with the result that the welfare of the family has invariably been sacrificed. There are two trends in the civil laws concerning divorce, the first of which is extremely lax in its attitude towards the sacred bond of marriage, and permits divorce on the slightest pretext. This is the case in certain states in the United States of America. It was therefore quite an ordinary occurrence in these states for a woman to be married in the morning and to be granted a divorce in the evening. Such laws of divorce are undoubtably responsible for the breaking up of family life.
The second trend in the laws of divorce bases its rulings upon the spirit of the Chritian faith although it is not as rigid in its rulings. It only permits divorce in certain cases with extremely complicated procedures. Accordingly such divorces are only valid after a lengthy period as is the case in France and most Catholic countries.
The French civil law only permits divorce in three cases, the first of which is in the event of the adultery of either the husband or wife. The second case is in the event of either the husband or the wife being subjected to brutal treatment. The third instance is if either the husband or wife is sentenced to imprisonment for a criminal offence.
A person's chronic malady, physical disability and insanity itself even if it results in harmful and cruel treatment to the spouse, are not, according to French law, legitimate reasons for divorce. Absence from one's husband or wife for a lengthy period of time and extreme discord between a husband and wife are also not considered legitimate reasons for divorce according to the French law, even if both the husband and wife desire the divorce.
In order that divorce be granted if one's husband or wife is sentenced to prison, the crime committed must be a major crime. Proof of brutal and cruel treatment of wives and husbands is also a very difficult matter to prove to the court. Accordingly, most people who file for divorce do so on the grounds of adultery. The concerned party presents the evidence of the adultery of his or her spouse to convince the court that adultery has been committed. On the other hand a husband and wife often present false evidence of adultery and perjure themselves in court in order to be granted a divorce. Divorce which is granted on the grounds of adultery brings disgrace upon the husband, wife and their children. In addition to this, divorce invariably incurs exorbitant expenses which can only be afforded by the wealthy. The final decree of divorce also takes years before it becomes valid during which time the husband and wife are separated from one another. As a result of these complications and the lengthy period that the divorce takes to become legalized, many men take mistresses and women lovers thereby completely destroying any family life that had previously existed. Such relationships have become so common in the United States of America and in Europe, that they are regarded as ordinary occurrences. In addition to the fact that the family has lost its value in society, the fatherhood of many children is unascertained and a source of doubt.
Thus the civil laws of divorce either destroy the sacredness of the bond of marriage by permitting divorce on the slightest pretext, or are so rigid that divorce is only granted after disgracing the family concerned and subjecting its members to a most complicated and expensive procedure. In both cases the family is sacrificed.
After presenting the laws of Christianity concerning divorce and the civil laws introduced in the matter of divorce and the complications of both the religious and the civil laws, it behoves us to present the laws of divorce as ordained by the Faith of Islam. These laws have been severely criticized by non-Muslims who claim that these laws are not based upon equality between men and women.
The Faith of Islam permits divorce because it ordains laws that take human nature into consideration and divorce is sometimes the only solution to serious problems of marital discord.
However, Islam does not permit divorce without enforcing definite terms which ensure safeguarding the rights of both the husband and wife and guarantee the execution of their obligations and duties in a just and fair manner.
The bond of marriage in Islam is a sacred bond which is venerated and solemnly respected. The following Quranic verse refers to the marriage bond "And how could ye take it when ye have gone in unto each other, and they have taken from you a solemn covenant ?"[6]Such a bond is thus regarded with the utmost veneration.
Islam does its utmost to make people detest divorce and urges Muslims not to resort to it as far as is humanly possible. The Prophet Muhammad, blessings and peace be upon him, said "Divorce is the most detested permissible legitimate act in the eyes of God". He also said "Marry and do not resort to divorce, for the Throne of God Almighty shakes with every divorce[7] In addition to discouraging divorce on principle, Islam ordained certain rulings that guaranteed avoiding divorce except when it was the only solution to marital discord.
Islam states that one should not resort to divorce as a result of any matter that can be remedied or that might improve in the future. Even if a husband dislikes some qualities in his wife's nature, Islam does not consider this a justification for divorce. He should not contemplate divorce if his feelings for his wife have undergone a change or if he has begun to dislike her. Any minor matters that aggravate a husband in his wife's conduct-providing that this does not include immorality or disobedience of the Faith - are not justifiable reasons for divorce, since one's emotions are fickle and inconstant. One should consequently never allow oneself to be controlled by one's whims when making decisions concerning important matters upon which the future of one's family depends, for a person whom one dislikes today may be beloved on the morrow. A husband who dislikes a certain trait in his wife might discover that she possesses other qualities that appeal to him. This is mentioned in the following Quranic verse : "...live with them on a footing of kindness and equity. If ye take a dislike to them, it may be that ye dislike a thing, and God brings about through it, a great deal of good".[8]
The Prophet Muhammad, blessings and peace be upon him, said that a believer should not hate his believing wife for if he dislikes a certain quality in her, she may possess another quality that pleases him.[9]
A man went to `Omar ben Al Khattab, the Second Rightly Guided Caliph, to ask for his advice about divorcing his wife. `Omar told him not to divorce her and when the man replied that he did not love her, `Omar said "Woe betide you ! Are homes built only upon love? Where then is the role of care, affection and avoiding censure ?" He meant that if a marriage were not built upon love, it could be built upon two other important factors, one of which includes the care, affection and consideration which binds the members of the family to one another and teaches them their rights and their obligations. The other important factor is avoiding being the object of censure or blame for one's actions such as breaking up a home and family and being the cause of their misery.
The system ordained by Islam aims at avoiding divorce and the husband and wife who are at discord with each other are commanded to do their utmost to overcome their differences by dealing with each other compassionately and considerately as is mentioned in the following Quranic verse "If a 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". [10]
When a husband and wife fail to reconcile their differences with each other, Islam ordains that the matter of their discord be discussed at a family meeting in which the husband and the wife are each represented by a member of their families. These representatives act as mediators, and it is their duty to discuss and consider the problems that had caused the discord and to do their utmost to reconcile the points of view of the husband and wife until a reconciliation between them is effected. The Faith of Islam, in its concern for the happiness of the family, does not wait until discord actually takes place, in order to resort to this method of reconciliation, but it commands the husband and wife to do so if they fear that discord may occur and they feel that they are unable to deal with the matter. This is stated in the following Quranic verse : "If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers ; if they wish for peace, God will cause their reconciliation : for God hath full knowledge, and is acquainted with all things".[11]
The Faith of Islam has also ordained certain financial and social obligations in the event of divorce, so as to discourage people from resorting to it. Islam ordains that when a man divorces his wife, he must pay her the delayed dowry agreed upon in the marriage contract, in addition to the expense of her maintainance of food, drink and living quarters for a certain period of time, known as the " iddat ". The custody of the children is granted to the mother until they grow up. In the event of her death or inability to look after her children, the custody of her children is granted to her relations. The husband is legally and religiously charged with his children's financial maintainance, and for wet nurses to breast feed them even if their mother breast feeds them herself, as is stated in the following Quranic verse "And if they suckle your (offspring) give them their recompense "[12]
If all attempts at reconciliation made by the mediators of both families fail, and the husband insists upon divorce, that in itself signifies that the stability of the family is in danger and that the chief elements upon which a marriage is founded no longer exist. In such circumstances Islam permits divorce and at the same time guarantees the welfare and the future of the family. Even if a divorce takes place, Islam grants the husband an opportunity to reconsider the divorce if there is the slightest possibility that married life be resumed.
The Faith of Islam ordains that after a husband divorces his wife once, he is given two options, one of which is to restore his wife during her " iddat " or period of waiting which is approximately three months for a wife who is not pregnant. The wife's return to her husband in this case needs no legal procedure and is valid as soon as the husband utters the words "I have restored my wife", or words to that effect. In order to encourage a husband to restore his divorced wife, Islam ordains that she live in her marital home during her period of waiting. This is stated in the following Quranic verse "O Prophet When ye do divorce women,divorce them at their prescribed periods,. and count (accurately) their prescribed periods and fear God 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" .[13]
Islam also favours restoring one's divorced wife as is stated in the following Quranic verse : "And their husbands have the better right to take them back in that period, if they wish for reconciliation "[14]The Quranic verse describes the restoration of the divorced wife to her marital life as redressing the divorce.
If a husband does not restore his wife during her period of waiting, she will have been divorced for the second time. Islam, which always guards the welfare of the family, permits the husband after the second divorce to restore his wife, but charges him with paying her a new dowry and contracting a new marriage contract.
In the event of the husband restoring his wife during her period of waiting or marrying her for the secondtime with a new marriage contract and a new dowry, and then deciding to divorce her, he is permitted the same opportunities of restoring his wife that he had previously been granted.
After a husband divorces his wife twice he is left with the right to divorce her only one more time. A third divorce signifies that married life has become intolerable and that the husband and wife have failed to make a success of their marriage. It is at this stage that the Faith of Islam ordains permanent divorce between them. The only chance of their remarrying is if the wife marries another man after her final divorce from her first husband and is divorced by her second husband. If she and her first ex-husband believe that after their long separation from one another, and after the change in their circumstances, they can succeed in living a happily married life, Islam permits them to do as, as is expressed in the following Quranic verses "So if a husband divorces his wife (irrevocably), he cannot after that, re-marry her until she has another husband and he has divorced her. In that case there is no blame on either of them if they re-unite, 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".[15]
The Imam Malik related that during the lifetime of the Prophet Muhammad, blessings and peace be upon him, Abdullah, the son of `Omar ben Al Khattab divorced his wife during her menstrual period, and Omar asked the Prophet, blessings and peace be upon him, his opinion on the matter. He told `Omar that his son must restore his wife until her menstrual course be terminated and she purifies herself from it then to wait till she purifies herself from the following menstrual course, after which he can divorce her or restore her.[16]
Such is the system of divorce in Islam and these are the laws ordained according to the Quran and the Traditions of the Prophet, Divorce that does not adhere to the laws of Islam is not valid. This is clear from the ruling given by the Prophet - blessings and peace be upon him - concerning `Omar ben Al Khattab's son who had divorced his wife during her menstrual course, which is not considered a period during which divorce can be pronounced. Ibn Jurayh related through Abu Al Zubayr that he had heard `Abdel Rahman ben Ayman ask Abdullah ben `Omar about this matter and that `Abdullah had replied that the Prophet, blessings and peace be upon him, had told him that his utterance of divorce had not been legitimate.
`Omar ben Al Khattab, the Second Rightly Guided Caliph legalized a certain system of divorce which was not founded upon the aforementioned laws of divorce. This included considering a divorce irrevocable if a man uttered the vow of divorce three consecutive times in one sitting. The reason for enforcing this ruling was that `Omar ben Al Khattab noticed that many men had made light of the sanctity of marriage and had underestimated the gravity of divorce. These men had often uttered the oath of divorce in order to intimidate their wives or to force them to obey them, so `Omar ben Al Khattab punished them by introducing this new system of divorce to make them realize the sanctity of marriage so that they would not utter false threats of divorce. He told them that God had granted them an opportunity for tolerance and deliberation in the Islamic laws of divorce, but that they had not heeded them, so they deserved a penalty in keeping with their sin. `Omar's ruling was only temporary as a remedy for the ill use of divorce that had spread and was thus a disciplinary measure.
The Egyptian law 25 of the year 1929 decreed that any oath of divorce that specifies more than one divorce is considered only one divorce. In fact there is no valid law of divorce that is not mentioned in the Qur'an or the Traditions of the Prophet.
The laws of divorce in Islam guarantee every person his or her rights and it is sinful for any man to believe that he can divorce his wife whenever he pleases, since the laws of divorce in Islam are based upon a precise and just system which God ordained for mankind, men and women alike, in order to remedy the discord and misery to which some families are subjected.
The laws ordained by Islam concerning divorce are divine laws and the following Quranic verses dealing with divorce invariably state that the laws are ordained by God who prohibits breaking these laws and warns against the harm that ensues "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)." [17]
Also "Such are the limits ordained by God, which He makes plain to those who understand".[18] "Those are limits set by God and any who transgresses the limits of God, does verily wrong his own soul.. "[19] "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 God's Signs as a jest,..." [20]"And know that God knoweth what is in your hearts, and take heed of Him ..."[21]
The Faith of Islam ordains certain provisions and stipulations concerning divorce so that it would not be the result of a whim. Islam grants the husband the opportunity of reconsidering his decision and grants the relations of the husband and wife an opportunity to intercede and reconcile them. Even after the failure of all the aforementioned attempts at reconciliation, the Qur'an states that two witnesses must witness the divorce : "Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms ; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before God. Such is the admonition given to him who believes in God and the Last Day. And for those who fear God, He (ever) prepares a way out ....".[22]
"A way out" can be interpreted to mean a way out of divorce.
The Shiites decree that there must be witnesses to a divorce, and that this is an essential factor without which the divorce is not valid and has no consequences. This opinion adheres to the Quranic verses and grants the husband a final opportunity to reconsider his intention and not finalize the divorce. It is also an opportunity for the two witnesses who are summoned to witness the divorce, and are usually close friends or relatives of the husband and wife, to make a final attempt to deter the husband from concluding the divorce.
If divorce occurs, the Faith of Islam does its utmost to ensure generous and compassionate treatment of the divorced woman in addition to guaranteeing her her rights and safeguarding her from any harm to which she might be subjected.
The laws of financial support for the divorced wife and her children, the custody of the children, financial support during the period of waiting, financial maintenance for nursing the children are all in the divorced woman's favour and this is verified by the following Quranic verses : "When ye divorce women, and they fulfil the term of their (Iddat), 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 God's Signs as a jest, but solemnly rehearse God's favours on you, and the fact that He sent down to you The Book and Wisdom for your instruction. And fear God, and know that God is well acquainted with all things. When ye divorce women, and they fulfil the term of their (Iddat), do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms. This instruction is for all amongst you, who believe in God, and the Last Day. That is (the course making for) most virtue and purity amongst you. And God knows and ye know not."[23]
Also : "O Prophet ! When ye do divorce women, divorce them at their prescribed periods, and count (accurately) their prescribed periods and fear God 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 God : and any who transgresses the limits of God, does verily wrong his (own) soul : thou knowest not if perchance God will bring about thereafter some new situation. Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms ; ..." [24]
Also : "Let the women live (In Iddat) in the same style as ye live, according to your means annoy them not, so as to restrict them. And if they carry (life in their wombs), then spend (your ) on them until they deliver their burden and if they suckle your (offspring), give them their recompense : and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves in difficulties, let another woman suckle (the child) on the (father's) behalf ".[25]
Also : "But if ye 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 ye take it by slander and a manifest wrong ? And how could ye take it when ye have gone in unto each other, and they have taken from you a solemn covenant ?"[26]
In addition to divorce between a man and his wife who consumated their marriage and lived together as man and wife, Islam permits the divorce of a man and his bride who have signed the marriage contract, but have not consumated their marriage, if there is a good reason to do so, so that each one of them can begin a new life with the Grace of God. In such a situation, Islam ordains that the man must pay the girl or woman half the dowry agreed upon, in addition to compensation for divorcing her. This procedure is ordained as compensation for the divorced bride and the compensation is estimated by the ruler of the state according to the means of the husband and the extent of the injury caused to the bride by the divorce.[27]
The following Quranic verses mention this matter : "There is no blame on ye if ye divorce women before consumation or the fixation of their dower ; but bestow on them (a suitable gift), the wealthy according to his means, and the poor according to his means ; - a gift of a reasonable amount is due from those who wish to do the right thing. And if ye divorce them before consumation, but after the fixation of a dower for them, then the half of the dower (is due to them), unless they remit it or (the man's half) is remitted by him in whose hands is the marriage tie ; and the remission (of the man's half) is the nearest to righteousness. And do not forget liberality between yourselves . For God sees well all that ye do."[28]
In addition to the aforementioned cases of divorce there are four other kinds of divorce, the first of which is if a wife stipulates in her marriage contract that the right of divorce be in her hand and her husband agrees to the condition, she has the right to divorce her husband according to some schools of jurisprudence with certain provisions.
The second kind of divorce occurs and is legal if there is a breach of one of the terms stipulated by the wife in the marriage contract. If the husband is responsible for this breach, certain schools of jurisprudence consider this sufficient to legalize the divorce, provided that the term stipulated does not violate the basic elements of marital life or the laws ordained by God Almighty.
The third kind of divorce is pronounced by the judge in a court of law as the result of the husband's failure to support his family or in order to safeguard his wife and family against any harm that might threaten them. The absence of a husband from his wife and home for a lengthy duration is also another reason for this kind of divorce and the Egyptian law, number twenty five, for the year 1920 legalized divorce for the aforementioned reasons.
The fourth kind of divorce occurs by the mutual consent of a husband and wife. In this case, the wife usually renounces all or some of her rights as a divorced woman, or grants her husband a sum of money upon which they both agree. This kind of divorce is known as divorce by compensation, and takes place when a wife feels that her marital life has become intolerable and fears that if she is not divorced she may not be able to abide by the laws ordained by God. This kind of divorce is mentioned in the following Quranic verse: "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 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)." [29]
The objections and criticism concerning the system of divorce in Islam is based upon the claim that it constitutes a violation of equality since the right of divorce is granted to men and not to women. It is claimed that since a husband and wife are partners in a marriage and in their life together, granting the right of divorce to only one of them is inconsistent with the basis of the marriage contract and with the equality that should be granted to both sexes in that respect. People who criticize the Islamic system of divorce claim that the marriage contract should only be annulled by the mutual consent of both parties, namely the husband and the wife.
These people misunderstood many important facts in this matter, such as that when a Muslim girl or woman agrees to the contract of marriage with her prospective husband she does so in full knowledge of the laws ordained by God Almighty, one of which is that the man alone has the right of divorce in accordance with the laws of the Faith of Islam. By signing the marriage contract, she is quite aware of and agrees to renouncing her right of divorce of her own free will.
People who object to the laws of divorce in Islam have also overlooked the recognized fact that women are more emotional and temperamental than men and are frequently unable to control their feelings. In addition to this, by the laws of Islam, they incur no financial responsibilities on themselves in the event of their divorce. If the right of divorce were granted to women, their emotions might affect their better judgement, and trifling misunderstandings might provoke them to divorce their husbands, thereby ruining their lives and the future of their families.
As a rule, men are not as temperamental as women and are seldom motivated by their emotions. A husband who resorts to divorce also incurs grave financial responsible for the welfare and maintenance of his family. It is therefore only natural that he be granted the right of divorce with the restrictions of the aforementioned provisions and rulings which are ordained in order to safeguard the wife and the family against any harmful consequences.
Recently a suggestion has been forwarded to deny the husband and wife the right of divorce and to grant the right of divorce to the judge in a court of law. By this system a wife could only be divorced after she had filed for divorce in a court of law and had convinced the judge that she had the right to be divorced. Such a system would mean that the French civil law would replace the laws of God Almighty.
We have mentioned how the French civil laws of divorce were responsible for breaking up the families involved in divorce suits and how this led to the deterioration of the morals of the community. Most divorce suits involve sordid details and embarrassing situations which ought not to be made public. If a husband and wife have no other option but to publicly announce embarrassing and sordid details in order to be granted a divorce, by doing so they would disgrace themselves and ruin their reputation and the reputation of their family. If on the other hand they feared for their reputation and the reputation of their family and refused to mention the sordid details which would have enabled them to win a divorce case, they would spend the rest of their lives in an intolerable mabased upon deceit and infidel.
Although the Faith of Islam establishes the system of arbitration by mediators between the husband and wife in matters of discord between them, it guarantee! the dignity and privacy of their personal life. The arbitrators or mediators according to the rulings of Islam are persons chosen by the wife and husband. They are chosen for this specific purpose and accordingly neither the husband nor the wife are subjected to any embarrassment when they declare the reasons of the discord. The arbitrators accordingly safeguard the reputation of the husband and wife and everything that is mentioned is strictly confidential. The dignified conduct of the mediators is only natural since their relationship with the husband and wife is that of trust and confidence.
The laws of divorce as ordained by the Faith of Islam are just and fair. They have been ordained for the welfare of the husband and wife, the family and the community. These laws preserve and guarantee the rights of both the husband and wife and do not wrong either of them. These divine laws grant the husband certain rights and grant the wife certain rights to compensate her in the event of divorce. This is mentioned in the following Quranic verse "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.''[30]
Divorce in Islam is the solution to problems that cannot otherwise be solved just as surgery is the only remedy to certain maladies. Islam takes a medium course that does not prohibit divorce as does Catholicism, nor does it abuse the sanctity of the marriage contract as does the civil law in some countries in Europe and North America, which more often than not subjects the husband, wife and the family to humiliation and disgrace.
[1] St. Mathew, Chapter 19. verse 6.
[2] St. Mathew, Chapter 5, verse 32.
[3] St. Mathew, Chapter 5, verse 32.
[4] St. Mathew, Chapter 5, verse 32.
[5] See Al Ahram newspaper. 1/3/56/ page 4.
[6] Surah IV, verse 21
[7]Al Kasabany in Badi' Al Sana'i' in the Chapter on divorce.
[8] Surah IV, verse 19.
[9] Muslim's Authentic Traditions of the Prophet.
[10] Surah IV, verse 128.
[11] Surah IV, verse 35.
[12] Surah LXV, verse 6.
[13] Surah LXV, verse 1.
[14] Surah II, verse 228.
[15] Surah II, verses 229-230.
[16] Authentic Traditions of the Prophet by Al Bukhari and Muslim, through Malik.
[17] Surah II, verse 229.
[18] Surah II, verse 230.
[19] Surah LXV, verse 1.
[20] Surah II, verse 231.
[21] Surah II, verse 235.
[22] Surah LXV, verse 2.
[23] Surah II, verses 231-232.
[24] Surah LXV, verses 1-2.
[25] Surah LXV, verse 6.
[26] Surah IV, verses 20-21.
[27] Abu Hanifa decreed that the husband must grant his wife a complete trousseaux as compensation for divorce.
[28] Surah II, verse 236-237
[29] Surah II, verse 229. Also see the System of Divorce in Islam by Sheihk Ahmed Mohammed Shakir.
[30] Surah II. verse 228.