Islam and Divorce 3

Islam and Divorce 3

Islam had also done much to protect the wife's rights and to save her from having to continue to live in an unhappy environment. Among beneficent measures are the following:

1. the wife can insert a clause in the marriage contract ensuring that:

(a) incompatibility of temperament
(b) maltreatment
(c) refusal of maintenance
(d) unannounced journeys
(e) the taking of another wife without consultation

are so provided against that if any of the above five conditions is broken she can approach a lawyer to obtain a divorce for her through the courts.

2. the wife can make it impossible for her husband not to divorce her by being intolerably refractory, vexatiously shrewish or deliberately incompatible in relationships, familial, sexual or social;

3. the wife can resort to the courts if the husband has been incapable or negligent in supplying her with maintenance or has put obstacles in the way of her obtaining it ; or if either partner deprives the other of conjugal rights or fails in marital duties; the Muslim Qadhi, if the woman' s plea is proved, can compel the husband to treat her right, to be reconciled, to disburse the proper sums, to confer her rights upon her in every form : and if the husband proves recalcitrant, or refuses to obey the judge's orders, the judge can then compel him to divorce his wife;

4. the wife can enter a plea in the Islamic court and obtain an injunction if the husband accuses her of lewdness, unchastity or unfaithfulness, or denies his own paternity of her child : if the husband cannot prove his case the judge will order the husband to separate himself from his wife in accordance with the relevant legislation;

5. the wife may, in the case of intolerable revulsion or aversion, in a simple fashion bring about a discontinuance of their union by renouncing a large part of her marriage portion, while freeing her husband from his obligation to pay her alimony during the "Iddat" breathing-space period;

6 the wife, if the husband absents himself so that no news of him reaches her and she falls into financial or other difficulties, can resort to the courts and request a divorce. the judge will then perform the necessary formalities to annul her marriage contract. It is written in Surah "Baqarah": "A divorce is only permissible twice: after that the parties should either hold together in equity or separate in kindness. It is not lawful for you men to take back from your wives any of that portion which you have given them except when both parties fear that they would be unable to keep the God-ordained limits. If you judges have reason to fear that the parties will be unable to keep the God-ordained limits, so decree, for there will be no blame on either of them if she hands over a sum in exchange for her freedom. These limits are God-ordained so do not transgress them since that is to wrong yourself as well as others."(1)

In the "Exegetical Collection" it is related that Ibn Abbas reported that Jameel, wife of Thabit bin Qais, sought audience of the Prophet and complained to him: "O Apostle of God! I cannot stand one moment more of life with Thabit bin Qais, nor shall my head ever rest again on the same pillow as his." After a pause, she added: "I am not accusing him of a lack of faith or of moral and marital virtues: but I am afraid that I myself will fall into infidelity and blasphemy if I have to spend another minute with him. I turned up the tent-skirting and my eye fell on my husband in the middle of a crowd of other men. He looked so ugly, a black-avised, dwarfish runt, and I hated him, and I can't go on. ...!" She ran on thus, and the Prophet, after absorbing her outpouring, tried to advise and admonish her, but she paid him no heed. So he sent for Thabit bin Qais and laid the situation before him. Thabit was deeply attached to Jameel, but self-sacrificingly and for her sake agreed to take back the marriage portion he had settled upon her - a beautiful garden - and give her a khul' divorce.(2)

There are cases in which resort to the court by the wife is statutory. There are also cases in which she can divorce her husband without legal aid, as in cases of certain grave chronic diseases like leprosy or elephantiasis; or because of the onset of lunacy, or of physical defects which prevent marital intercourse, like impotence or castration of the husband. For these Feqh gives the wife haqq-i-faskh-the right to the rescinding or annulment of the marriage, which "faskh" is not the same as the khul' divorce, and does not involve the same financial renunciations by the wife as khul' does.

Germany and Switzerland, in Europe, also recognize lunacy as grounds for the annulment of a marriage or for separation. France does not admit either grave chronic disease or lunacy as an adequate ground, and insists that the healthy spouse must care for the leprous or lunatic partner. Undoubtedly, such longsuffering and loving kindness is highly praise worthy. While extolling it as a counsel of perfection, Islamic realism prefers to leave the partners free to choose separation or continued care, according to their own conscience.

The West is suffering terribly from the laxity it has allowed in the break-up of marriages and the violently increasing incidence of divorce. These disasters are really reactions to over-pressure by the churches, which prohibited and condemned divorce one hundred percent for many centuries, while the secular governments gave recognition to it. For instance, divorce was totally prohibited in France until the French Revolution of October 1789. In 1804, in response to popular demand, divorce was legalized; but in the following 12 years it increased so appallingly that the religious bodies brought renewed pressure to bear, until in 1816 the law legalizing divorce was rescinded though physical separation of the parties was permitted. However, public pressure built up again so much that in 1884 divorce within certain limits was legalized once more.

Continue in the next article: ( Islam and Divorce 4 )

NOTES:

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1. (2:229)

2. (Vol. 1, PP. 167)