Islam and Divorce 2

In continuation of the discussion on the topic titled “Islam and Divorce”, we shall focus on other relevant aspects of the topic here.

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 is so provided that if any of the above five conditions are 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 the 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 your judge has 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 an 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 the 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 Fiqh 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 are highly praiseworthy. 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 overpressure 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 through 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.

Here follow the conditions on which in Western lands divorce for wife and husband was legal until recent times:

1. a criminal act committed by either party which involves the penalty of life imprisonment, exile, loss of civil rights or temporary imprisonment with hard labour.
2. physical violence, mercenary prostitution, and a few other similar criminal acts of one partner against the other.
3. adultery by either partner – though in such cases the wife has the right of divorce only if the man commits adultery with another woman in the house which belongs to his wife and himself.

The following is the road by which a wife’s infidelity was proved: note it well! “The infidelity of a wife must be proved completely in the eyes of the police. The wife or the husband plan to be in different places for however a short time.

They must agree about some third person to be cited as co-respondent and this person must be prepared to undertake this service. And then at the stated hour, the wife must be caught in flagrante delicate with the third party, and the husband must have the police on the spot to catch her and so prove her infidelity.

Thus the police accompany the husband to the trysting place, and when they catch the wife in flagrant delicate this is accounted adequate grounds for her husband divorcing her.”(3)

See what a mass of further impurities the impurity which wrought the need for divorce in the first place has carried in its train. And this is the “civilized” world of the West, which allows women entry into public and political life, the other hand takes away her honour, her femininity and the high standards which it should be her privilege to set, and turns her chastity into a mercenary bargaining-point.

It must be admitted that since I first put pen to paper on this matter, efforts have been made in many Western lands to eradicate the worst of these abominations.

America makes divorce easier for both parties. It is not surprising, therefore, that American divorce figures are the highest of all. The wise tremble at the results: the wisdom of Islamic dispositions shines by contrast like the sun in the darkness.

At a conference in Strasburg, statistics of one year’s divorces, which could be attributed to the overwhelming desire of wives to be “in the fashion” “a la mode”, “comme il faut” and to “keep up with the Joneses” in the modernity of garb and guise were quoted as being:

1. in France, 27% of all divorces;
2. in Germany, 33%;
3. in Holland, 36%;
4. in Sweden, 17%.

Not every Parisienne is an excessive slave of fashion. Nonetheless, it is reckoned that the costs of unnecessary purchases made by women simply to keep up with “mode” come to no less than 5,000 tomans per head (300-400 per head per annum).

Yet all this expenditure adds nothing to the woman’s natural beauty, moral stature, ease of spirit or calm mind! European statesmen, and responsible thinkers everywhere, are well aware of the danger and fear it acutely.

All who possess the slightest sense of philanthropy must seek the means of stemming the sweeping tide of this flood of evil through the world.

Islam offers its regulations on family life, matrimony, and the respective positions of men and women, as a way which all nations might do well to follow remembering that it was a Westerner Voltaire, who said: The Prophet Muhammad reduced the unlimited harems of unfortunate women maintained by pre-Islamic potentates to a maximum of four wives: and his legislation on marriages and divorces is the most noble and effective ever conceived, formulated and enacted by any authority at any time in the world’s history, religious, political or social.”

By: Sayyid Mujtaba Musavi Lari

NOTES:

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1. Qur’an 2:229.
2. Vol. 1, PP. 167.
3. The Law of Divorce and Renewal of Marriage p.99.