Most people are ignorant of the proper way of divorcing wives. It is generally thought that a wife stands separated from her husband if the divorce is declared thrice. This notion is against the Qur’ān which says that a lady must be divorced by just one declaration to the effect.
Moreover, there are many other misconceptions regarding divorce giving rise to the following questions:
i. Do women have a right to divorce?
ii. Should the wife pay money for seeking divorce?
iii. What is the correct way of divorce?
iv. How should wrongly given divorces be tackled?
v. In whose custody should the children be given?
i. The Right to Divorce
When a man and a woman marry each other, it is their utmost wish to remain in this relation of wedlock forever. They are desirous of the fact that the change in times not change their commitment to each other and only death separate them in this world. But then, sometimes there does arise a situation when part they must. Differences become so pronounced that it becomes necessary to sever this relationship. If such circumstances do arise i.e. that a husband and wife must separate permanently, Islam lays down a specific procedure for this separation. In Islamic terminology, this dissolution of marriage is called divorce. It says that both a man and a woman have an equal right to it. The only difference is that a man divorces a woman while a woman demands divorce from her husband. In verses such as(65:1) إِذَا طَلَّقْتُمْ النِّسَاءَ(when you [people] divorce your wives (65:1)), the husband has been regarded as the initiator of divorce. Moreover, the Qur’ān has used the following words to seek divorce by returning the husband’s gifts and wealth:
فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ (2:229)
Then if you also feel that they will not be able to remain within the bounds set by Allah, there shall be no offence for either of them [regarding the gifts given by the husband] if the wife seeks divorce [by returning them to him] in ransom. (2:229)
These words bear clear evidence to the fact that the sharī‘ah has granted the husband the right to divorce. Women, however, can seek divorce if they want to.If the husband refuses, she has the right to take the matter to court. The matter will then be decided by the ruling of the court.
The right to divorce, sense and reason demand, should go to the head of the family. According to the Qur’ān, itis the husband who is the head of a family, therefore, he has been given this right. In other words, this right is not “gender specific” it is “authority specific”: whoever is entrusted with the authority of being the head should possess this right. Had women been more suitable to head a family, they would have been given this right.
ii. Should the Wife pay money for seeking Divorce?
A common misconception when a woman seeks divorce from her husband is that she must give some wealth to her husband on this occasion of separation. This has no basis in the Qur’ān; on the contrary, the Qur’ānsays that it is not at all permissible for the husband to demand anything from his wife on this occasion. However, there are two exceptions to this:
Firstly, if a husband has gifted a lot of wealth and property to his wife and is afraid that in divorcing her he would lose all his riches, the Qur’ānsays that she can forgo some or all of her share and return it to her husband to end the whole affair. It is clear that this is only an exception and not a general principle as is generally held and practiced. It is allowed when only wealth is the husband’s reason for not divorcing his wife. The Qur’ān says:
وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَأُوْلَئِكَ هُمْ الظَّالِمُونَ(2:229)
And [if you decide to depart from them, then on this occasion] it is unlawful for you to take back from them anything you have given them unless both husband and wife fear that they may not be able to keep within the bounds set by Allah. Then if you also feel that they will not be able to remain within the bounds set by Allah, there shall be no offence for either of them [regarding the gifts given by the husband] if the wife seeks divorce [by returning them to him] in ransom. These are the bounds set by Allah; so do not transgress them. And [you should know that] those who transgress the bounds of Allah are wrongdoers (2:229)
Secondly, if the wife is guilty of open sexual misconduct. Since such a behaviour destroys the very foundation of marriage, a husband has been allowed to take back any gifts or wealth given to her. The Qur’ān says:
وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ… وَإِنْ أَرَدْتُمْ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُبِينًا وَكَيْفَ تَأْخُذُونَهُ وَقَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنْكُمْ مِيثَاقًا غَلِيظًا (4:19-21)
And do not treat them with harshness that you may take away some of what you have given them – except where they have been guilty of open lewdness … and if you decide to take a wife in place of another, even if you had given the latter a whole treasure of wealth take not the least bit of it back: Would you take it by slander and usurping [her] rights? And how can you take it when you have lain with each other and [at the time of marriage] they have taken from you a solemn covenant? (4:19-21)
iii. The Procedure of Divorce
If a husband has decided to divorce his wife, he should first wait until she has completed her menstrual cycle and then, desisting from any further carnal relationship, he should utter the divorce sentence just once. The wife, after she has been divorced in this way, must stay in her husband’s house for a period of three menstrual cycles. This period is called ‘iddat. If a woman does not have menstrual cycles owing to age, disease or any other reason, and still there is a chance of pregnancy, then she must wait for three months. For a pregnant woman this period is up to the birth of the child, while for a newly married couple who have had no contact, divorce does not entail any period of ‘iddat for the wife. According to the Qur’ān, there is one basic reason for this waiting period: to ascertain whether a wife is pregnant or not so that the lineage of the child does not remain a matter of doubt. Another thing which is achieved through it is that it affords the husband and other family members a chance to rectify the situation, for matters in which emotions and feelings run high, sometimes only time is needed for recovery.
During this ‘iddat period:
(a) The husband cannot turn his wife out from the house except if she is guilty of adultery, nor should she leave the house herself.
(b) The wife, if she is pregnant, must not hide her pregnancy.
(c) The husband should continue to provide for her.
(d) A husband, if he changes his mind, can revoke his decision. The only thing required, according to the Qur’ān, is that he should call in two persons to testify to his decision.
If after this period of ‘iddat, a man is still firm in his stance, his wife shall be considered as separated permanently. She is now a free woman and if she wishes to marry some other person, she has all the right to do so and must not be inhibited in any way. If circumstances change, she can even remarry her former husband. Furthermore, the Qur’ānstresses that on this occasion of parting it is not at all lawful for a husband to take back any property or asset gifted to her. This, it must be kept in consideration, does not pertain to mahr (dower) only, but to every type of gift given to the wife. Not only should a husband not take back these gifts, he should, in fact, give her something on this occasion of separation. Even if her mahr has not been fixed, it is better for him to give her something. If the mahr has been fixed but the divorce occurs before the husband and wife have had contact, he must pay half the money, unless the wife even forgoes this. In this case also, it is better that he should give her the whole money.
However, in case the husband revokes his decision during the ‘iddat period, there is no need for re-marriage. The two shall be considered as husband and wife once again. If after annulment of this divorce, due to some reason, the untoward situation arises a second time that the husband intends to divorce his wife, the Qur’ānsays that the husband can exercise his right of divorce for the second time as well. He should pronounce just one divorce sentence to repudiate his wife. Again, the post-divorce period shall be observed in the manner just described. Once again, if the husband wishes, he has the chance to revise his decision during this period, in which case the divorce shall be considered null and void and the two shall once again become husband and wife. If, unfortunately, for the third time, the situation arises that divorce becomes inevitable, the Qur’ānsays that a husband can exercise his right for the third time as well and pronounce the divorce sentence. After the expiry of ‘iddat during which a husband will have to support and provide shelter to his wife (though the two are not required to live together), the wife shall be permanently separated from him. After divorcing his wife for the third time, he cannot re-marry her now, unless and until, the wife marries some other person and owing to some reason gets divorced from him – not under a planned strategy, but on account of naturally arisen circumstances. This last measure, actually, is meant to prevent this affair from becoming mere child play.
In the words of the Qur’ān:
الطَّلَاقُ مَرَّتَانِ فَإمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ(2:229)
This divorce [in which the husband can revoke his decision in the ‘iddat period] is permitted twice only, and then a woman must be retained with kindness or allowed to go with kindness. (2:229)
It is evident from these details that the Qur’ānonly prescribes one divorce sentence and stresses that a husband has the right to divorce his wife three times in one marriage contract. It does not at all approve the utterance of three divorce sentences in one go. Consequently, it is clear from these details that the two prevailing procedures of divorce i.e. (1) pronouncing three consecutive divorces in one instance, and (2) pronouncing each of the three sentences in three separate months are not at all prescribed by the Qur’ān. When the Prophet (sws) came to know that a certain person had divorced his wife by pronouncing three divorce sentences one after the other, he stood up in anger and said:
أَيُلْعَبُ بِكِتَابِ اللَّهِ وأنا بين أَظْهُرِكُمْ
In my presence, such playful attitude has been adopted with the Book of Allah.
iv. Tackling wrongly given Divorces
Mentioned above is the sharī‘ah as far as the concept of divorce is concerned. However, as it often happens with prescribed laws and procedures, situations arise in which a person is guilty of breaching the law and deviating from the right course. Human nature is prone to extreme emotional conditions in which it deviates from the path set forth by the Almighty. These deviations, it is extremely evident, are not part of the sharī‘ah; they fall into breach of law category and it is up to the legislature of a country to enact laws about such departures. At times, such cases are even left to the discretion of the judge and at other times the judge himself is bound by the legislation done in this regard by the parliament.
In case of divorce, keeping in view various precedents, this deviation is generally of two types:
i) A husband divorces his wife during her menstrual period, or divorces her after he has had contact with her in her period of purity.
ii) A husband divorces his wife by pronouncing the divorce sentence thrice.
As far as the first deviation is concerned, an Islamic government can ask the husband to revoke his decision and carry it out in the proper manner at the proper time. The Prophet (sws) in his own times dealt with the case of ‘Abdullāh ibn ‘Umar (rta) in a similar manner. When he was told that ‘Abdullāh ibn ‘Umar (rta) had divorced his wife during her menstrual cycle, he was really annoyed and remarked:
مُرْه فَلْيُرَاجِعْهَا ثُمَّ لِيُمْسِكْهَا حتى تَطْهُرَ ثُمَّ تَحِيضَ ثُمَّ تَطْهُرَ ثُمَّ إن شَاءَ أَمْسَكَ بَعْدُ وَإِنْ شَاءَ طَلَّقَ قبل أَنْ يَمَسَّ فَتِلْكَ الْعِدَّةُ التي أَمَرَ الله أَنْ تُطَلَّقَ لها النِّسَاءُ
Ask him to take her back and keep her in wedlock until she is through with her menstrual cycle and then once again passes through this cycle and then is through with it. After this, he can either detain her [in wedlock] or divorce her before having sexual intercourse with her. Because it is this beginning of the ‘iddat keeping regard of which the Almighty has directed [believers] to divorce their wives.
In case of the second deviation, a deliberation on the injunctions of divorce, particularly on their linguistic aspects, reveals that there are three possible solutions:
(a) The husband can be called to court and asked to testify to the nature of these pronouncements: if he testifies that he had pronounced the three sentences in anger to only strongly assert his decision or that he had thought that pronouncing three sentences was the correct procedure of divorce, the court, if satisfied by his statement, can re-unite the husband and wife. If on the other hand, a person testifies that he had consciously uttered the three sentences knowing that he was exercising his three rights in one time, the wife, of course, shall be divorced from him. The case of Rukāna ibn ‘Abdi Yazīd (rta) was decided in a similar manner by the Prophet (sws).
(b) A second possible solution in this regard is that a state, while observing that people have adopted a carefree attitude in following this procedure, legislates that three divorce sentences shall be considered as three whether pronounced in anger or in a normal emotional state. A precedent of this solution can be found in the times of the caliph ‘Umar (rta). He himself, in the capacity of a ruler in consultation with the members of the shūrā, upon seeing that people had adopted a very careless attitude in this regard, as a punishment, promulgated three divorce sentences as final.
(c) A third possible solution in this regard is that the state while observing the fact that people are mostly ignorant of the correct procedure, and in their ignorance think that the correct way of divorce is to pronounce the sentence three times, legislates that the three pronouncements shall be considered as one.
Any of these three ways can be adopted keeping in view the welfare of the Muslims. However, in adopting the second or third solutions, it is necessary that legislation be enacted in their favour, but as far as adopting the first solution is concerned, no prior legislation is needed and the matter can be left to the discretion of the judge.
v. The Custody of Minors
In post-divorce scenarios, the matter of the custody of minor children has not been touched upon in the sharī‘ah. In other words, it is dependant upon the welfare of the children. In case of a dispute, a judge should make this ruling after analyzing the situation of a case in the light of this principle.
Perhaps the reason for which nothing has been fixed in the sharī‘ah in this regard is the varying circumstances which may be found in different cases.