woman based on mutual consent. Ideally, the purpose of marriage is to
foster a state of tranquillity, love and compassion in Islam, but this
is not always the case. Islam discourages divorce but, unlike some
religions, does make provisions for divorce by either party.
Allaah provides general guidelines for the process of divorce with
emphasis on both parties upholding the values of justice and kindness
in formalising the end to their marriage )see ]Quran 2: 224-237[ for
general guidelines regarding divorce(.
Allaah encourages the husband and wife to appoint arbitrators as the
first step to aid in reconciliation in the process of divorce. If the
reconciliation step fails, both the man and woman are guaranteed the
right to divorce as established in the Quran, but the difference lies
in the procedure for each one. When a divorce is initiated by the man,
it is known as Talaaq.
The pronouncement by the husband may be verbal or written, but once
made, there is to be a waiting period of three months )'Iddah( during
which there can be no sexual relations, even though the two are living
under the same roof.
The waiting period helps to prevent hasty terminations due to anger
and allows both parties time to reconsider as well as to see if the
wife is pregnant. If the wife is pregnant, the waiting period is
lengthened until she delivers. At any point during this time, the
husband and wife are free to resume their conjugal relationship,
thereby ending the divorce process.During this waiting period, the
husband remains financially responsible for the support of his wife.
The divorce initiated by the wife is known as Khul' )if the husband is
not at fault( and requires that the wife return her dowry to end the
marriage because she is the 'contract-breaker'. In the instance of
Talaaq, where the husband is the 'contract-breaker', he must pay the
dowry in full in cases where all or part of it was deferred, or allow
the wife to keep all of it if she has already been given it in full.
In the case that the husband is at fault and the woman is interested
in divorce, she can petition a judge for divorce, with cause. She
would be required to offer proof that her husband had not fulfilled
his marital responsibilities. If the woman had specified certain
conditions that are Islamically accepted in her marriage contract,
which were not met by the husband, she could obtain a conditional
divorce.
The controversy regarding the seeming inequity in divorce lies in the
idea that men seem to have absolute power in obtaining a divorce. The
interpretation of scholars in the past has been that if the man
initiates the divorce, then the reconciliation step for appointing an
arbiter from both sides is omitted. This understanding diverges from
the Quranic injunction. Any difference in powers between the husband
and his wife with regard to divorce can be extracted from the
following verse )which means(:}...And due to them ]i.e., the wives[ is
similar to what is expected of them, according to what is reasonable.
But the men have a degree over them ]in responsibility and authority[.
And Allaah is Exalted in Might and Wise.{]Quran: 2:228[
In the following verse, according to existing interpretations, Allaah
gives the reason for the small difference in the verse )which
means(:}Men are in charge of women by ]right of[ what ]qualities[
Allaah has given one over the other and what they spend ]in support[
from their wealth. So righteous women are devoutly obedient, guarding
in ]the husband's[ absence what Allaah would have them guard.{]Quran:
4:34[
Thus, it is clear that there is a 'degree' of difference with regards
to the rights of men and women in divorce, and that the greater right
that men were given is due to their being the leaders and financial
supporters of the household. This, however, does not mean that women
are inferior to men or that they are second-class human beings.
Many of the laws regarding divorce in some Muslim countries are based
upon Quranic references on the subject. As with all human laws, they
must adapt to dynamic circumstances. Issues pertaining to custody have
become controversial. For example, Allaah in the Quran advises the
husband and wife to consult each other in a fair manner regarding
their children's future after divorce, as this verse states )which
means(:}…If they both desire weaning through mutual consent from both
of them and consultation, there is no blame upon either of
them.{]Quran: 2:233[
Some jurists stipulate that custody of the child is awarded to the
mother if the child is under a certain age and to the father if the
child is older. There is no Quranic evidence of age being a
determinant for custody. Similarly with regard to the issue of
alimony, in the Quran the ex-husband's financial obligation to his
ex-wife is mandated, but a specific formula for the amount of support
is missing; Allaah Says )what means(:}And for divorced women is
maintenance according to what is acceptable – a duty on the
righteous.{]Quran 2:241[ This is open for negotiation between parties
and should be in accordance with the husband's financial ability.
There has been much distortion and propagation of misunderstanding
about a woman's rights related to marriage and divorce. Only with
self-education and awareness of the Quranic text are men and women
able to learn the truth that Allaah has prescribed and understand the
scholarly interpretations in order that the spirit of justice is
realised. Allaah Says )what means(:}And when you divorce women and
they fulfil their term ]of their 'Iddah[, either keep them according
to reasonable terms or release them according to reasonable terms, and
do not keep them, intending harm, to transgress ]against them[. And
whoever does that has certainly wronged himself. And do not take the
verses of Allaah in jest. And remember the favour of Allaah upon you
and what has been revealed to you of the Book ]i.e., the Quran[ and
wisdom ]i.e., the Prophet's Sunnah[ by which He instructs you. And
fear Allaah and know that Allaah is Knowing of all things.{]Quran
2:231[
No comments:
Post a Comment