The first point this chapter must make is that divorce is contrary to the laws of nature. The annulling of the marriage bond and the separation of those who should be life partners is a denial of the true nature of man as created and at his best. Any society, in which divorces become numerous, with the consequent break-up of families, evidences its deviation from nature and its requirements.
Psychologists, jurists and sociologists, concerned by the effects of divorce on the moral and juridical personality of those involved, have gone deep into the subject and given it as their considered verdict that the ejection of a man and wife, let alone the children, from the warmth of home-life into the cold unwelcome of any substitute establishment they may find, deals a mortal blow to their spirits and exposes their children to the onset of moral ailments and psychic traumas against which family life had immunized and protected them.
These scientists further hold, almost to a man, that for these reasons divorce should be rendered practically impossible by severe sanctions, except in a few cases where some cause, generally from outside, like the onslaught of insanity or criminality, makes an exception to the rule.
But what should be done in cases of irreparable breakdown of relationships? Must the partners stay in the hell they have made? Or, may a way-out be found for them? Christianity says blankly. “No divorce!”
However, Islam more realistically faces the consequences of irreparable breakdown as a fact and provides a way-out. Every possible safeguard is laid down in the statute book to prevent such a way-out by divorce being abused.
But, it is clear that the bankruptcy of the relationship is only worsened by forcing the partners to stick together; and their misery is only increased. Hence divorce, though stigmatized as ” the most loathsome of states in the eyes of the Lord” is made possible when it is the better of two bad roads.
It may even be that the very separation removes the cause of the irritation between man and wife, while the lapse of time in absence softens the hearts and recalls the good points which had been lost under the pains of discord; so that the couple seek reunion, and in some cases actually start the same partnership up again in pardon and joy.
Since Islam’s aim is the firm establishment of marriages, in the interests of this objective certain liberties are denied. The right of divorce is given to the man only, except in very exceptional cases. This is to safeguard the best interests of women and save them from falling victim to passions.
Manifestly, if two people both have the right to institute divorce proceedings, the basis of confidence is made very shaky on both sides. What better safeguard can there be, therefore, than to give the right of divorce proceedings primarily to the one who has by nature more subjection to the powers of reason, and patience in the face of lack of tenderness; and who stands to lose the sum he has given as a marriage portion, as well as having to undertake the financial burdens of the children’s upbringing?
The differences in the constitution of a man and woman are manifest. The head takes first place in the man’s decisions and the heart in the woman’s. Reason and emotion are the gifts given to each respectively in their creation.
As Dr. Alexis Carrel puts it: “The differences between men and women are, obviously, the physical ones and then, less obviously, the internal ones like the dispositions of the nerves, the different mental and emotional talents, both of which are of supreme importance for the future of civilization. Partisans of Women’s Liberation aim at a false conception of equality. as if that desirable condition meant precise similarity and identity in upbringing, employment, responsibilities and duties. (1)
It is for these reasons that Islam’s Fiqh lays down: “Divorce is in the hand of the man.” And it is in consideration of the woman’s delicacy of spirit that the power of ending a shared life is not granted to her. Islam, in addition to the manifold measures it has taken to make it easier for people to enter the married state and start families, also makes it more difficult to break up the home.
Everything possible is done to ensure a happy sound home-life, for the sake of the family’s members and of the society to which they belong. It is therefore that it is written in Surah Nisa’a “O men, live with your wives in kindness and equity. If you dislike anything in them, that may be the very point which God will use to bring about much blessing. (2)
In order to take away such feelings of dislike and prevent its turning to hatred, and remove their discomfort, Islam awakens the man’s conscience to live in kindness and equity with patience, and not to cast off a wife who is temporarily in disfavour, since it may be that goodness and blessing may come through those very wives; so that it would be stupid to end the relationship hastily.
As is written in the same Surah Nisa’a: “If a wife fears cruelty or desertion on her husband’s part, there is no obstacle to their arranging an amicable settlement between them for which the wife must renounce some of her rights. But if they return through reconciliation and peace through such unselfishness, such a settlement is better than separation and divorce.”(3)
The same dislike of divorce, as the most detestable of extreme measures to be adopted only in the direst emergency, is advanced by all Islam’s greatest jurist-consults and leaders, an attitude summed up in the sentence in the book “Mustadrak Al-Vassael”: “Any woman who seeks to be divorced from her husband, save in cases of extreme necessity, falls out of the grace and mercy of the Lord.”(4) Or again: “Enter upon matrimony. but do not divorce your wives, since divorce shakes the very throne of God.”(5)
Islam fences in the man’s power of divorce with many limiting safeguards. A man may not put away his wife by violence, harassment, injury or in a way that may drive her to a life of immorality and corruption. Thus, Islam has for centuries surpassed anything yet achieved in Western countries, in its initiative to remove differences and restore understanding in family life.
This is particularly true of the family courts, where well-meaning relatives have a large say and everything is done to bring about reconciliation. Causes of differences are deeply studied; and, as relatives, they are able to go deep into confidential matters without either of the couple feeling that their private secrets are being exposed or their feelings excoriated in too public an ambience.
When the causes of the difference have been brought into the light of day the members of the family court exert all their powers of sincerity and heart and affection to bring about reconciliation and to quench the fires of temper, exhorting both sides to unselfishness, tolerance, and an effort to understand each other’s point of view. Since both man and wife respect these elders and have full confidence in their compassionate affection, they frequently accept the family court’s recommendations for adjustments they should make in their relationships and behaviour towards each other.
As it is written in Surah Nisa’a: “Should you fear that division will arise amongst them, appoint an arbitrator on the husband’s side and an arbitrator on the wife’s side from amongst their relatives and send them to them. As soon as they desire peace and reconciliation the Lord will vouchsafe it to them for He is all-knowing and all-wise.”(6)
Should the causes and roots of the initiation of divorce proceedings prove to be too deep, so that there is an irreparable breakdown in marital relationships, and all the efforts of the relatives fail to bring about any sort of hope of reconciliation, Islam in its realism recognizes that each party must take their own road.
It must be plain that such a family court is far more likely to succeed than all the public courts of law or marriage guidance clinics. In fact, these only too often, being strangers to the family and not privy to their inmost secrets, merely increase the rift, because of the clumsiness of their well-meaning efforts.
A public court has the duty to hear the evidence produced by both sides; and then, in the cold dry heartless atmosphere in which only exact truth and not mercy or clemency reigns, decide which side has the most right and give a verdict accordingly.
It has neither the heart nor the spiritual influence of relatives to press for reconciliation and cure the causes of the quarrel. The Qur’an ordains: “Two just persons from amongst you shall bear witness to the evidence before God when a divorce is settled.” (7)
Without these two witnesses, there is no legal divorce. An advantage of their appointment is that they can exert every pressure of affection and wisdom to avert the final catastrophe for quite a period before reluctantly if they have to do so, agreeing that there is no other way out. They frequently succeed in the better course.
It is further laid down that no divorce may be made absolute save after the woman’s period of purification after menstruation or childbirth is completed. This need to wait awhile often proves a breathing space in which the man’s feelings of tenderness once more assert themselves over his irritations, and make him decide against divorce.
Furthermore, when a man finds sharing his life with a particular woman wearisome and irksome and decides on divorce, this decision of his does not suffice in itself to end their living together nor does it become effective until the expiry of the “Iddat”, i.e. the period fixed by the Fiqh during which a divorced or widowed woman may not be married to another man: and this period also gives a breathing-space which frequently results in the man’s change of heart and decision to continue the married bond with the wife he planned to divorce.
Finally, after the execution of the formalities for a “revocable divorce” (Talaq-i-raj’) a man may not expel his wife from the home until the termination of the period of the “iddat” which may last anything up to three months, nor may the wife quit their joint home except in a desperately exceptional case during that period.
As the Surah “Talaq” enacts: “You may not expel women from their houses, nor may they themselves quit, except if they have been proven guilty of some open lewdness (during the “iddat” period).
These are limits set by God. Should any man transgress these limits he does so at the peril of his own soul, and to his own harm: for you know not whether God may bring about some new situation later (than the decision to divorce).”(8)
No formalities are necessary to abrogate a revocable divorce during these months. A mere indication of a desire for a renewal of the marriage relationship by the man suffices.
Should the wife feel such hatred for her husband that she repays him the statutory portion of the marriage settlement he had given her, or a portion of her own property, that counts as her divorcing him; but this type of divorce is revocable within the stated period so that if she changes her mind, and her husband agrees, he can still take her back into their home.
By these many means, Islam safeguards the holy estate of matrimony from shipwrecking on the rock of hasty decisions onto which emotional storms may drive some couples.
Continued in the next article: http://Islam and Divorce 2
NOTES:
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1. “Man, the Unknown” pp. 84-87.
2. Qur’an 4:19.
3. Qur’an 4:128.
4. Vol. 3, p.2.
5. “Wassa’il Al-Shia, vol. 3, p.144.
6. Qur’an 4:35.
7. Qur’an 65:2.
8. Qur’an 65:1.
