Women In Islam versus Judaeo-Christian Tradition The Myth & The Reality
11. Divorce
The three religions have remarkable differences in their attitudes
towards divorce. Christianity abhors divorce altogether. The New
Testament unequivocally advocates the indissolubility of marriage. It
is attributed to Jesus to have said, "But I tell you that anyone who
divorces his wife, except for marital unfaithfulness, causes her to
become adulteress, and anyone who marries the divorced woman commits
adultery" (Matthew 5:32). This uncompromising ideal is, without a
doubt, unrealistic. It assumes a state of moral perfection that human
societies have never achieved. When a couple realises that their
married life is beyond repair, a ban on divorce will not do them any
good. Forcing ill-mated couples to remain together against their wills
is neither effective nor reasonable. No wonder the whole Christian
world has been obliged to sanction divorce.
Judaism, on the other hand, allows divorce even without any cause. The
Old Testament gives the husband the right to divorce his wife even if
he just dislikes her: "If a man marries a woman who becomes
displeasing to him because he finds something indecent about her, and
he writes her a certificate of divorce, gives it to her and sends her
from his house, and if after she leaves his house she becomes the wife
of another man, and her second husband dislikes her and writes her a
certificate of divorce, gives it to her and sends her from his house,
or if he dies, then her first husband, who divorced her, is not allowed
to marry her again after she has been defiled" (Deut. 24:1-4).
The above verses have caused some considerable debate among Jewish
scholars because of their disagreement over the interpretation of the
words "displeasing", "indecency", and "dislikes" mentioned in the
verses. The Talmud records their different opinions: "The school of
Shammai held that a man should not divorce his wife unless he has found
her guilty of some sexual misconduct, while the school of Hillel say he
may divorce her even if she has merely spoiled a dish for him. Rabbi
Akiba says he may divorce her even if he simply finds another woman
more beautiful than she" (Gittin 90a-b).
The New Testament follows the Shammaites opinion while Jewish law has
followed the opinion of the Hillelites and R. Akiba. Since the
Hillelites view prevailed, it became the unbroken tradition of Jewish
law to give the husband freedom to divorce his wife without any cause
at all. The Old Testament not only gives the husband the right to
divorce his "displeasing" wife, it considers divorcing a "bad wife" an
obligation: "A bad wife brings humiliation, downcast looks, and a
wounded heart. Slack of hand and weak of knee is the man whose wife
fails to make him happy. Woman is the origin of sin, and it is through
her that we all die. Do not leave a leaky cistern to drip or allow a
bad wife to say what she likes. If she does not accept your control,
divorce her and send her away" (Ecclesiasticus 25:25).
The Talmud has recorded several specific actions by wives which obliged
their husbands to divorce them: "If she ate in the street, if she drank
greedily in the street, if she suckled in the street, in every case
Rabbi Meir says that she must leave her husband" (Git. 89a). The Talmud
has also made it mandatory to divorce a barren wife (who bore no
children in a period of ten years): "Our Rabbis taught: If a man took a
wife and lived with her for ten years and she bore no child, he shall
divorce her" (Yeb. 64a). Wives, on the other hand, cannot initiate
divorce under Jewish law. A Jewish wife, however, could claim the right
to a divorce before a Jewish court provided that a strong reason
exists. Very few grounds are provided for the wife to make a claim for
a divorce. These grounds include: A husband with physical defects or
skin disease, a husband not fulfilling his conjugal responsibilities,
etc. The Court might support the wife's claim to a divorce but it
cannot dissolve the marriage. Only the husband can dissolve the
marriage by giving his wife a bill of divorce. The Court could scourge,
fine, imprison, and excommunicate him to force him to deliver the
necessary bill of divorce to his wife. However, if the husband is
stubborn enough, he can refuse to grant his wife a divorce and keep her
tied to him indefinitely. Worse still, he can desert her without
granting her a divorce and leave her unmarried and undivorced. He can
marry another woman or even live with any single woman out of wedlock
and have children from her (these children are considered legitimate
under Jewish law). The deserted wife, on the other hand, cannot marry
any other man since she is still legally married and she cannot live
with any other man because she will be considered an adulteress and her
children from this union will be illegitimate for ten generations. A
woman in such a position is called an agunah (chained woman). In
the United States today there are approximately 1000 to 1500 Jewish
women who are agunot (plural for agunah), while in Israel their number
might be as high as 16000. Husbands may extort thousands of dollars
from their trapped wives in exchange for a Jewish divorce.
Islam occupies the middle ground between Christianity and Judaism with
respect to divorce. Marriage in Islam is a sanctified bond that should
not be broken except for compelling reasons. Couples are instructed to
pursue all possible remedies whenever their marriages are in danger.
Divorce is not to be resorted to except when there is no other way out.
In a nutshell, Islam recognises divorce, yet it discourages it by all
means. Let us focus on the recognition side first. Islam does recognise
the right of both partners to end their matrimonial relationship. Islam
gives the husband the right for Talaq (divorce). Moreover, Islam,
unlike Judaism, grants the wife the right to dissolve the marriage
through what is known as Khula'. 36 If the husband dissolves the
marriage by divorcing his wife, he cannot retrieve any of the marriage
gifts he has given her. The Quran explicitly prohibits the divorcing
husbands from taking back their marriage gifts no matter how expensive
or valuable these gifts might be: "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 by
slander and a manifest wrong?" (4:20). In the case of the wife choosing
to end the marriage, she may return the marriage gifts to her husband.
Returning the marriage gifts in this case is a fair compensation for
the husband who is keen to keep his wife while she chooses to leave
him. The Quran has instructed Muslim men not to take back any of the
gifts they have given to their wives except in the case of the wife
choosing to dissolve the marriage: "It is not lawful for you (Men) to
take back any of your gifts except when both parties fear that they
would be unable to keep the limits ordained by Allah. There is no blame
on either of them if she give something for her freedom. These are the
limits ordained by Allah so do not transgress them" (2:229). Also, a
woman came to the Prophet Muhammad seeking the dissolution of her
marriage, she told the Prophet that she did not have any complaints
against her husband's character or manners. Her only problem was that
she honestly did not like him to the extent of not being able to live
with him any longer. The Prophet asked her: "Would you give him his
garden (the marriage gift he had given her) back?" she said: "Yes". The
Prophet then instructed the man to take back his garden and accept the
dissolution of the marriage (Bukhari). In some cases, A Muslim wife
might be willing to keep her marriage but find herself obliged to claim
for a divorce because of some compelling reasons such as: Cruelty of
the husband, desertion without a reason, a husband not fulfilling his
conjugal responsibilities, etc. In these cases the Muslim court
dissolves the marriage. In short, Islam has offered the Muslim woman
some unequalled rights: she can end the marriage through Khula' and she
can sue for a divorce. A Muslim wife can never become chained by a
recalcitrant husband. It was these rights that enticed Jewish women who
lived in the early Islamic societies of the seventh century C.E. to
seek to obtain bills of divorce from their Jewish husbands in Muslim
courts. The Rabbis declared these bills null and void. In order to end
this practice, the Rabbis gave new rights and privileges to Jewish
women in an attempt to weaken the appeal of the Muslim courts. Jewish
women living in Christian countries were not offered any similar
privileges since the Roman law of divorce practiced there was no more
attractive than the Jewish law.
Let us now focus our attention on how Islam discourages divorce. The
Prophet of Islam told the believers that: "among all the permitted
acts, divorce is the most hateful to God" (Abu Dawood). A Muslim man
should not divorce his wife just because he dislikes her. The Quran
instructs Muslim men to be kind to their wives even in cases of
lukewarm emotions or feelings of dislike: "Live with them (your wives)
on a footing of kindness and equity. If you dislike them it may be that
you dislike something in which Allah has placed a great deal of good"
(4:19). Prophet Muhammad gave a similar instruction: "A believing man
must not hate a believing woman. If he dislikes one of her traits he
will be pleased with another" (Muslim). The Prophet has also emphasized
that the best Muslims are those who are best to their wives:
"The believers who show the most perfect faith are those who have the
best character and the best of you are those who are best to their
wives" (Tirmidthi). However, Islam is a practical religion and it does
recognize that there are circumstances in which a marriage becomes on
the verge of collapsing. In such cases, a mere advice of kindness or
self restraint is no viable solution. So, what to do in order to save a
marriage in these cases? The Quran offers some practical advice for the
spouse (husband or wife) whose partner (wife or husband) is the
wrongdoer. For the husband whose wife's ill-conduct is threatening the
marriage, the Quran gives four types of advice as detailed in the
following verses: "As to those women on whose part you fear disloyalty
and ill-conduct, (1) Admonish them, (2) refuse to share their beds, (3)
beat them; but if they return to obedience seek not against them means
of annoyance: For Allah is Most High, Great. (4) If you fear a break
between them, appoint two arbiters, one from his family and the other
from hers; If they wish for peace, Allah will cause their
reconciliation" (4:34-35). The first three are to be tried first. If
they fail, then the help of the families concerned should be sought. It
has to be noted, in the light of the above verses, that beating the
rebellious wife is a temporary measure that is resorted to as third in
line in cases of extreme necessity in hopes that it might remedy the
wrongdoing of the wife. If it does, the husband is not allowed by any
means to continue any annoyance to the wife as explicitly mentioned in
the verse. If it does not, the husband is still not allowed to use this
measure any longer and the final avenue of the family-assisted
reconciliation has to be explored.
Prophet Muhammad has instructed Muslim husbands that they should not
have recourse to these measures except in extreme cases such as open
lewdness committed by the wife. Even in these cases the punishment
should be slight and if the wife desists, the husband is not permitted
to irritate her: "In case they are guilty of open lewdness you may
leave them alone in their beds and inflict slight punishment. If they
are obedient to you, do not seek against them any means of annoyance"
(Tirmidthi) Furthermore, the Prophet of Islam has condemned any
unjustifiable beating. Some Muslim wives complained to him that their
husbands had beaten them. Hearing that, the Prophet categorically
stated that: "Those who do so (beat their wives) are not the best among
you" (Abu Dawood).It has to be remembered at this point that the
Prophet has also said: "The best of you is he who is best to his
family, and I am the best among you to my family" (Tirmidthi).The
Prophet advised one Muslim woman, whose name was Fatimah bint Qais, not
to marry a man because the man was known for beating women: "I went to
the Prophet and said: Abul Jahm and Mu'awiah have proposed to marry me.
The Prophet (by way of advice) said: As to Mu'awiah he is very poor and
Abul Jahm is accustomed to beating women" (Muslim).
It has to be noted that the Talmud sanctions wife beating as
chastisement for the purpose of discipline. 39 The husband is not
restricted to the extreme cases such as those of open lewdness. He is
allowed to beat his wife even if she just refuses to do her house work.
Moreover, he is not limited only to the use of light punishment. He is
permitted to break his wife's stubbornness by the lash or by starving
her. For the wife whose husband's ill-conduct is the cause for the
marriage's near collapse, the Quran offers the following advice: "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" (4:128).
In this case, the wife is advised to seek reconciliation with her
husband (with or without family assistance). It is notable that the
Quran is not advising the wife to resort to the two measures of
abstention from sex and beating. The reason for this disparity might be
to protect the wife from a violent physical reaction by her already
misbehaving husband. Such a violent physical reaction will do both the
wife and the marriage more harm than good. Some Muslim scholars have
suggested that the court can apply these measures against the husband
on the wife's behalf. That is, the court first admonishes the
rebellious husband, then forbids him his wife's bed, and finally
executes a symbolic beating.
To sum up, Islam offers Muslim married couples much viable advice to
save their marriages in cases of trouble and tension. If one of the
partners is jeopardising the matrimonial relationship, the other
partner is advised by the Quran to do whatever possible and effective
in order to save this sacred bond. If all the measures fail, Islam
allows the partners to separate peacefully and amicably.