In pre-Islamic
times divorce was a weapon used against the woman solely in a man's hands; when
he wanted to harm the wife he would seek to divorce her and then take her back
as he pleased. There were no set rules and the woman had no rights in the
matter. So Allah (The Almighty) invalidated this injustice by revealing the
verse which says:
(Divorce is
two times: then one may retain with goodness (and reasonable terms), or let go
with goodness (and reasonable terms).) [2-229]
As a way to help
preserve the marriage even when some differences occur, a Muslim man following
the Sunnah (way)of
the Prophet (Peace be upon Him) may only divorce his wife while she is clean
from menses wherein he has not had sexual relations with her in that month.
Since this requires some waiting period before the pronouncement of divorce,
this allows time for any anger to subside or misunderstandings to be cleared
up, and gives time to other family members or mediators to help in
reconciliation. If they continue on the path towards divorce, then she must
wait three menstrual periods. During this time, he may take her back honorably
into marriage. This will be counted as the first divorce and return. If the
time lapses and he lets her go her way, she will be fully divorced for the first
time, and is free to marry another man.
Her first
husband may remarry her with a new contract, if they both choose that option.
If he does, and he then again divorces her, he may take her back her within the
three menstrual periods, and this will be two divorces and returns. After two
divorces and returns, if he divorces her a third time this is called the final
and separating divorce wherein they are not allowed to remarry unless she waits
the specified time of three menstrual cycles and then freely marries a
different man with no intention of availing herself to this means in order to
be able to lawfully marry her previous husband . If, for any reason, she
becomes divorced from that man, only then, and on the condition that no shady
pre-arranged dealings were made to circumvent this rule, can she re-marry her
first husband. All these measures are designed to help protect the family and
sanctity of the marriage bond, and the rights of the man and the woman. The
waiting period is to determine that she is free from pregnancy. In case of
pregnancy, the woman has to wait until after delivery before she marries a
second husband.
Divorce is
ultimately allowed in Islam to escape from any harm caused by the
irreconcilable differences. It may become necessary in certain cases. There are
strict rules about divorce to protect the interests and rights of the parties
involved: the husband, wife and children. Some of them have been mentioned
above. Divorce might be forbidden in the case where it would not solve the
problem and cause undue harm to one of the two marriage partners, without
achieving a needed benefit.
Islamic
jurisprudence obligates that in order to avoid divorce, solutions should be
sought when critical disputes and differences occur between husband and wife;
Allah, the Exalted, states in the Glorious Qur'an:
(And if a
women fears cruelty or desertion from her husband, there is no sin on both of
them if they make terms of peace between themselves; and making peace is
better.) [4:128]
Allah, the Exalted,
also says:
(If you fear a
breach between them appoint two arbitrators, one from his family and the other
from her family: if the two of them both wish for correction, Allah will cause
their reconciliation. Indeed Allah is Omniscient and Well-Acquainted with all
things.) [4:35]
One of the most
natural and logical ways to help maintain a successful marriage is to let the
man have more control over the divorce process than the woman because it is the
man who is financially obliged to take care of his wife, household and family,
and has ultimate responsibility of their welfare. Therefore, he must rationally
assess the situation, grave consequences, and huge financial and emotional loss
that will result from a divorce. The husband will lose the dowry he spent for
the marriage, and will have to pay the alimony and child support, as well as
any newly acquired expenses from a new marriage on top of that. Thus, with all
these considerations, he will not act just out of quick anger, fickleness or
passing emotion.
A man is more
capable - at least theoretically - of controlling his flitting emotions and
personal reactions when upset about the smaller issues in life, especially in
terms of disputes with his wife. Divorce should never be a quick reaction for
some suffering, misunderstandings, or differences of viewpoints, but only as a
last resort and final solution when life becomes dangerously problematic and
intolerable, wherein both spouse are afraid that they will not be able to abide
by the limits set by Allah and His Prophet about respectable behavior with one
another.
Islamic
jurisprudence permits the wife to have her marriage nullified upon her request
if the husband abuses her physically or verbally. She is also entitled to have
the marriage nullified for the following general reasons:
1. if the husband is impotent and cannot
perform his marital duties,
2. or if the husband for any reason,
refuses to have sexual relations with his wife and fulfill her lawful needs,
3. or is afflicted with a disabling
terminal illness after the marriage,
4. or
contracts any type of venereal or reproductive disease that may harm the wife
or make her lose her desire to be with her husband. Thus, we see that the woman
is given the right to seek separation from her husband for legitimate reasons
in many situations, exactly as the man has the right to seek divorce. If a wife
reaches the extreme limits of patience and abhors her husband, feeling that
life is unbearable, then she has the right to divorce. This form of divorce is
called annulment, or "Khula",
wherein she pays compensation by returning her dowry or some other property. A
competent Muslim judge will look into the individual case if the husband
refuses to accept the wife's request and if the request is considered sound and
valid, will pass a judgment in favor of the woman.
