In the second part of the book, the author has assembled all the prospects which determine that Ayesha was nineteen or twenty nine when she came to the Prophet's home as his wife, though the author is of the opinions that we should not determine the age by ourselves. It is sufficient to prove that Ayesha had attained the age of puberty when she came to the Prophet's home. The following are evidences and prospects regarding it:
a) According to the narrative of Muhammad Bin Ishaq (a contemporary of Hasham Bin Urwah) in 'Seerat Ibn Hasham' Ayesha's name was included in the list of people who embraced Islam in the very beginning. She embraced Islam in the first year after proclamation of Prophethood by Muhammad (sws) along with her sister, Asma. The books like ' Mawahib Ladinah' by Qastalni, 'Sharh-i-Mawahib' by Zarqani and 'Hayat-e-syed-al-Arab' also enlist among those who excelled others in embracing Islam. Obviously, She was wise,grown up girl in the first year of Prophet hood of Muhammad (sws). Had she been in her infancy, she was not expected to accept Islam with all awareness.
b) She has a narrative regarding the verse of Surah Al-Qamar, 'the hour of doom is their appointed time' that she remembered perfectly the time of its revelation. Al-Qamar was revealed in the fourth year of prophet hood. It means she was at an age when one can distnguish between different things and remembers them.
c) The Bukhari registers the narrative about the migrarion of Habsha with refernce to Ayesha. According to this narrative she relates the incident she was an eye witness to and makes a comprehensive commentary on the Makkan period of Islam spanned over thirteen years. The migrarion to Habsha by Abu Bakr mentioned in this narration took place in the fifth year of Prophethood. It is obvious that a sane person only can describe her observation with such detail. Therefore, in the fifth nabavi year Ayesha's age should have been at a stage when an indidual can understand the affairs and express her opinion based on deep observation.
d) After the death of Khadija, his first wife, the Prophet needed a woman to look ater his home. On this occasion, Khaula bint Hakim proposed the Prophet to marry either Sauda or Ayesha. Had Ayesha been under aged at that time, the proposal of Aisha would have been inappropriate at all because the Prophet needed a wife capable enough to sustain the burden of his domestic affirs and not a child to play with dolls. When this proposal was presented to Abu Bakar, he pleaded that Ayesha was just like a spiritual niece of the Prophet. How could she be suitable for Nikah? Had Ayesha been a child at that time, Abu Bakar would have pleaded that she cannont bear the load of the domestic responsibilities because of her young age.
e) The author contains the detailed description regarding the Nikah of Ayesha. It tells us that Ayesha entered into the bond of nikah with Jabeer Bin Muta'am bin Adi before the death of Khadija.Jabeer was very hostile to Islam. His father, Muta;am Bin Adi was avoiding the departure of the bride because of his conflict in faith. When Khaula proposed Ayesha for the Prophet (sws), Abu Bakar went to Muta'am and asked him to take a clear decision about the marriage. Muta'am showed reluctance in accpeting Ayesha as his daughter-in-law owing to his hostility against Islam. Moreover, he was the son of Lord of Makkah and was obviously not short of young girls to marry. There was no justification for him to marry a minor girl and wait for at least ten years so that his bride would attain the age of puberty. It is, therefore, obivious that Ayesha's Nikah with jabeer would have taken place after she had attained puberty as it was customary in Arabia.
f) The migration to Madina has been recorded in 'Tabqat Ibn Sa'ad' related by Ayesha herself. We come to know through it that the Prophet did not brieng the new bride home even after the lapse of some time after the migration. On Abu Bakar's enquiring, the prophet said that he had not yet enough money to pay as dower. It proves that the delay was not because of the underage of Ayesha.
g) A narrative has been registered in different books of Hadith that several immigrants fell ill in the first year of Hijrah (migration to Madina). Ayesha visited some of them. On her return she describes the pitiable conditions of the immigrants to the Prophet and even related verses told by them expressing their misery. It is obvious that such description is beyond the capacity of nine year old girl.
h) According to a narrative recorded in Bukhari and the Muslim Ayesha was present on the war front in the battle of Badar and Uhad and served water to the soldiers even in the most unfavorable circumstances. It is a fact that minor boys were forbidden to take part in these battles. Had Ayesha been under aged she would not have been allowed the arduous tasks meant for the grown ups only. Therefore, the reference to her minor age is untrue.
i) Ayesha was adept in genealogies which was the peculiar art of Abu Bakar. She had learnt several verses by heart and used them according to the situation. Her perfection in the arts of genealogy and poetry shows that she had spent a lot of time with her father and leant all from him. If she had come to the Prophet's home at such a young age, she would not have been so well versed in these arts. It is noteworthy to note that such an art can only be learnt when one is mentally mature.
j) Ayesha was quite at home in the injunctions of Deen, its expediencies and gradual progress. The books of Hadith are full of her opinions on theology. Could such intellectual depth and immensity belong to an under aged girl? We shall have to admit that she was quite mature in mind and intellect and was at the climax of her faculties of thought when married to the Prophet. This is why she went to the root of every affair and understood it in its proper context. This is how she benefited the whole Ummah through her sound opinion.
We find certain scholarly discussions on the knowledge of Hadith in this book. The author has laid down the principles for the acceptance of Hadith. According to the author, the narrative of Hasham regarding the marriage of Ayesha does not qualify these principles.
The author has, quiet diligently in the first chapter determined the period of gradual progress in the Knowledge of Hadith. According to his research, during the time of companions of the Prophet and their successors, there was just a trend to asses the narratives but they were not analyzed critically. This is why different narratives got intermixed on a large scale during that period. Owing to the non-existence of the art of cricticizing Hadith, several MURSAL Hadiths (where a link is missing) were included in the initially compiled books of Hadith like Mauta Imam Malik and Masnud Imam Abi Hanifa and these scholars accepted such narratives as true and reliable. The art of critically analyzing Hadith was brought to practice around 180 Hijra and was used for the compilation of the such books of Hadith considered as most authentic. But the previous intermixed narratives were also included in them regarding them reliable.
A characteristic of this book is that it trains an intelligent reader how to learn the way of making a research in Hadith. The way, the author scrutinized the books of Hadith, the sources adopted to argue on the narrators and detected such narrators, these information’s we get through this book which are helpful in practical training for research in Hadith.
The honourable scholar deserves our appreciation and congratulations for this valuable work. He, not only, highlighted the person of Ayesha but also eradicated all allegations made against her by the enemies of Islam in order to distort the image of the Prophet (sws) . Such a book was greatly needed in this era. May God reward the author for his valuable task. "
There could be a question in this context. At times, in some families the elders decide mutually about the marriage of their children even when they are minors. Can they refuse such a decision when they grow up to a sane age? The answer is that since a marriage is a free contract between an adult man and an adult woman, they are not bound to accept any such agreements made by their elders. As the complications arising by such agreements have been witnessed by the people therefore now this has become almost obsolete in the society. It is necessary that an engagement or Nikah of a minor should be declared illegal by the state.
The next question is whether a wife can refuse physical relationship with her husband. The answer is that she can't do so in normal circumstances. It is against the basic spirit of the contract made between them. Both husband and wife have satisfaction and peace from each other if they are bound with fibre of strong physical contact. According to the Quran a woman must be obedient to her husband. As per narrative registered in the Bukhari the Prophet said:
“If a woman avoids her husband even for a single night and keeps him away from fulfilling his sexual desire, she is cursed by the angles until she tends towards her husband”.
According to a narrative of Ibn Majah the Prophet said:
“After the fear of God there is no other blessing of God favourable for a Muslim man than a nice wife who obeys him, receives him with a smile, does not refuse to what he demands, and protects her chastity and her husband’s property in his absence”.
The situation when she is unwell or is having a psychological problem requires a different treatment. Islam directs man in such circumstances to take all these conditions into account, treat well with her and avoid bothering her. Hence, this is an aspect of their life where both have to regard each other, as it is extremely a private affair.
Next question deals with the matter of the marriages in exchange (when a person marrying a woman gets his sister married to his wife’s brother). What is the Islamic point of view here? The answer of Islam is very clear. Islam believes that it is in fact a deceit and has been forbidden. The Prophet forbade doing so in clear terms. It is not allowed in any shape and every one must avoid it. There must be legislation to stop this practice.
Can a woman be married to the Quran?
The reality is that such customs are nonexistent in Islam, rather they are a serous crime. According to the Quran, a woman can be married with a man only and vice versa.
Is a man allowed to marry more than once by Islam?If so, what is the logic behind it and what are the terms for that?
According to the Quran, it is advisable for a man to marry just one woman. This is the logic that God has created men and women almost equal in number, he created just one wife for Adam, It is quite natural for a man and a woman to form a joint home. The Quran says in Allah ‘Aaraf:
‘’It was he who created you from single being. From that he created his mate, so that he might find comfort in her. And when he had covered her, she conceived, and for a time her burden was light. She crried it with ease, but when it grew heavy, they both cried to Allah, their Lord: ‘Grant us a goodly child and we will be truly thankful. (Al-A’ raraf-7,189).
However, if the social situation goes unusual as innumerable women becomes widows or a wife is unable to give birth to a child or the wife suffers from a disease that hampers her from looking after her home, a man may marry another woman even in the presence of his first wife. But the Quran has imposed two conditions in such circumstances. First that the man must maintain justice among his wives and second that no man can marry more than four women at a time.
The detail of the permission granted by the Quran is that several Muslims were martyred in the Battle of Uhad waged by the pagans of Makkah upon Madinah. Resultantly, several women became widows and many children became orphans. It was feared that such children would experience a sense of deprivation as young men preferred to marry unmarried women or those who had no children before. So, the Quran encouraged the people to resolve this issue in this manner:
“(Believers) if you fear that you cannot treat orphans (as a result of Battle of Uhad) with fairness, then you may marry such women (these widowers) as seem good to you: two, three or four of them. But if you fear that you cannot do justice, marry only one or those you possess.” (Al-Nisa-4,3).
The Quran says:
“In no way you can treat your wives in a just manner, even though you may wish to do that. Do not set yourself altogether against any of them, leaving her, as it were, in suspense. If you do what is right and guard yourself against evil, (you will find) Allah is Forgiving and Merciful”. (Al-Nisa-4,129).
Hence a man is allowed to marry more than one woman but he can’t do that just at his sweet will rather there are two very clear conditions for that. First that it is meant for unavoidable circumstances only and second that justice be maintained among all wives to maximum possible level.
Here an important question arises keeping in view the present circumstances. This permission is being misused in the present Muslim societies and people marry more than one woman without any prerequisite. They don’t maintain justice between the two wives, rather don’t give them even their due sights. Is a state authorized to make laws for the rights of woman and to protect them against the atrocities when such conditions exist in the society?
The fact is that a Muslim society can make legislation to stop any kind of atrocity in the society. A Muslim state has its foremost duty to maintain justice in the society and eradicate injustice from it. This instruction has been issued by the Quran on various stages in clear terms (for example Al-Nisa-4, 54 and Al-Hajj-22, 41). It is, therefore necessary under present circumstances that legislations is done binding a man to seek the permission of the court before marrying for the second, third or fourth time. He should prove before the court of law that such a step is being taken by him under the most unavoidable circumstances. Secondly the court should make him bound to maintain justice among his wives practically and he would be punished in case of violation and would be forced to grant all rights to his wives.
Besides women should develop awareness by demanding addition of the condition in the Nikah form that the husband would not marry further or would face certain restrictions in case of more marriages.
There could be a question in certain minds why a woman is not allowed to marry more than one man under special circumstances when a man is granted such permission. The principled stand in this regard is that man is the head of the tiny state of family. As there can’t be two heads of state therefore a home can’t accommodate two husbands. So far as the special conditions are concerned like husband is azoospermic, the wife may obtain separation and such a man may marry a woman who already has kids of her previous husband. A woman may obtain separation in some other cases as well for example if the husband is a chronic patient. However, we must admit the fact that a woman is bestowed upon by God such a wonderful spirit of loyalty, sacrifice and sympathy that normally she does not leave such a husband, rather feels happiness and satisfaction in looking after him. But we do not mean to say that a woman should sacrifice her happiness on the alter of her loyalty with her husband.
Law of Divorce
According to Islam the relation between a husband and a wife is very sacred and quit significant and therefore it should stay intact to the maximum possible extent. However at times the circumstances bring the couple at a stage where they find it impossible to pull on together. For example conflicts occur due to contrary temperaments; both the parties violate the rights of each other or any other similar kind of situation takes place when the separation becomes inevitable. Hence, in such a situation Islam allows the husband and wife to sever every contact with each other by observing a particular procedure meant for such conditions. However, it must be borne in mind that divorce is the most undesirable thing among all admissible ones.
Here we need to know the practical procedure of granting divorce.
The Quran has issued the instructions about the divorce in great detail. Thus, we, first of all, shall present a summary of these and then they would be explained through some concerned Quranic verses and relevant narratives.
If a man intends to divorce his wife, he should not do so when she is passing through her menstrual period. He should, rather give the first divorce to her after the lapse of her menstrual period when he has not yet slept with her. After this divorce the woman should stay at her husband’s home till the lapse of three more consecutive menstrual periods. The man is bound to fulfill all the requirements of his wife during this period. During this period (Three months approximately), the man may reconcile with his wife if he desires so. They many resume their life as husband and wife.
If the husband does not tend to his wife during these three menstrual periods, they will separate from each other after the lapse of this time. But they may remarry each other afterwards whenever they decide so.
If the husband ever wants to divorce his wife for the second time, he will adopt the same procedure.
However, if he divorces his wife for the third time, they will not be able to remarry each other. If the woman marries another man after the third divorce and her second husband dies or divorces her, she may remarry her previous husband. The detail about it would come on the forthcoming pages.
Unlike man, if the wife wants separation, she will demand one divorce from her husband. If the husband does not agree, she can get divorce through the court of law. The court has only to verify whether the woman seeks the divorce at her own will. The court would not trace the reasons for the request for divorce and would order the husband to divorce his wife. This way husband and wife will be separated from each other.
They may remarry each other if they freely desire so.
In case they get separated for the second time, they can even then remarry if they like but they can’t remarry after the grant of divorce for the third time. Now there is only one situation in which they can remarry, which would be discussed later. Thus the husband gives the divorce and a woman obtains it. This Quranic law has been described through Al-Baqara-228, 229,236,237,241. Al-Ahzab-49, AlTalaq-6, 14 and Al-Nisa-19, 21.
Now we shall present some relevant references. The Quran says:
“Divorced women must wait, keeping themselves from men for three menstrual courses. It is unlawful for them, if they believe in Allah and the Last Day, to hide what He has created in their wombs: in which case their husband would do well to take them back, should they desire reconciliation. Women shall with justice have rights similar to those exercised against them, although men have an edge above women (being husband). Allah is Mighty and Wise. Divorce (after which the men may reconcile during the waiting period) may be pronounced twice, and then a woman must be retained in honor or allowed to go with kindness. It is unlawful for husbands to take that from them anything they have given them, unless both fear that they may not be able to keep within bounds set by Allah; in which case it shall be no offence for either of them if the wife ransom herself. These are the bounds set by Allah; do not transgress them. Those that transgress the bounds of Allah are wrongdoers. If a man divorces (for the third time) his wife, he cannot remarry her until she has wedded another man and been divorced by him; in which case it shall be no offence for either of them to return to the other, if they think that they can keep within the limits set by Allah. Such are the bounds of Allah. He makes them plain to men of understanding (who know the consequences of transgressing His bounds). When you have divorced your wives and they have reached the end of their waiting period, either retain them in honor or let them go with kindness. But you shall not retain them in order to harm them in honor or to wrong them. Whoever does this, wrongs his soul.”(Al-Baqara-2: 228-231).
At another place it says:
“If you (believers) divorce your wives, divorce them at (the end) of their waiting period. Complete their waiting period and have fear of Allah, your Lord. Do not expel them from their homes or let them go away unless they commit a proven immorality (adultery). Such are the bounds set by Allah; he that transgresses Allah’s bounds wrongs his own soul. You never know after that Allah may bring to pass some new events”. (Al-Talaq-65: 1).
After the above explanation about the law of divorce we shall take into account some issue arising out of them.
Firstly if a man divorces his wife during her pure days (other than menstrual period) when they have met in private as well, what is the instruction of the religion in such position?
According to the instruction of the Quran the waiting period must be carefully accounted. Since it is difficult to account for the waiting period in the above mentioned condition the husband should wait for her menses in order to confirm whether the woman is pregnant or not. He may divorce her when she is purified for such condition.
The prophet says:
“That man should not divorce his wife when he has slept with her”(the Muslim: Kitab-ul-Talaq).
Secondly can a woman be divorced during her menstrual periods?
The reply to this question is that Islam intends to prevent divorce to the maximum possible level and tries to save a home from dismemberment. This is why God has ordered to give divorce in a proper way and calculate the days of the waiting period truly He has ordered the husband and the wife to live together in the same home during the waiting period.
The Quran says:
“You never know; after that Allah may bring to pass some new event’’(Al-Talaq-65:1)
As the menstrual period brings a kind of distance between a husband and wife therefore there is a possibility that the husband postpones the decision of divorce. Therefore the prophet forbade the Muslims to divorce their wives during their menstrual periods in the light of Quranic instructions. When Abdullah bin Umar divorced his wife during her menstrual period the Prophet said:
“Tell him to meet his wife and divorce her when she is purified or it becomes clear whether she is pregnant or not:’’
It is important to know whether such kind of divorce would be counted as described in the above two situations. The answer is that there would have been no instruction for reconciliation if this divorce had to be counted. The reconciliation matters only when the divorce is not counted. The two narratives quoted above prove the same. However two arguments can be given against it. Firstly, in the narratives Younas says:
“I asked Ibn Umar if he had counting that divorce. He answered, ‘what was hurdle in committing it? Was Ibn Umar foolish or he could not count it? (The Muslim).
However, it is proved through it that it was not said by the Prophet himself.
Secondly according to ‘Al-Mughni’ ‘La-bin-Qadamat: Kitab-ul-Talaq, when the Prophet directed Ibn Umar to reconcile with his wife, he said to the Prophet” what would have been your instructions if I had given three divorces? The Prophet said, ‘In that case you would have disobeyed your God and your wife would have been unlawful for you.”
The real answer to this is that it is absolutely against the narrative of Ibn Abbas registered in the Muslim, so this is unacceptable.
Next is the question that some people utter the words of divorce for three times or more than that when they get enraged with their wives and regret soon after that. This is so because there was no such strong intention nor it was a well thought action. Does the divorce get enacted?
The issue has taken a serious turn now a days because thousands of families are undergoing anxiety and pain due to it.
The authors, in this regard are of the opinion that such a divorce would be counted for just once. The brief argumentation in its support is as under:
Firstly, the faith is based on convenience and not on inconvenience. It has been repeatedly laid down in the Quran as follow:
“Allah desires your well-being, not your discomfort. (Al-Baqara-2: 185).
“Allah has laid on you no burdens in the observance of your faith. (Al-Hajj-22: 78).
There are several Quranic verses giving the sense that God burdens a man according to his capacity. He does not want to give discomfort to him and that He wants to lessen the burdens of man as He has been created weak (For example Al-Maida-6, Al-Nisa-4: 28 and several others).
Since the issue of divorce is very delicate and grave which ensues several complications for the couple and their families, the new legislation regarding it should be based on the comfort of the human beings. The law of divorce formulated by God has been based upon the same principle. Therefore the detailed legislation in this regard and the judicial decisions should be made keeping this principle in view. There should not be any discomfort for them. The same has been described by the Prophet, “Faith is very easy” and, “make convenience for people and don’t put them in inconvenience.” (The Bukhari).
Secondly, it is proved through the Quranic verses and the narratives studied in the light of the Quran that divorce is an issue of serious nature and it should be decided after much reflection and not under the immediate circumstances.
According to the Holy Quran God, appreciated a lot the understanding between husband and wife and declared them apparel of each other (Al-Bukhari-2: 187).
A husband is asked to pull on with his wife even if he observes certain weakness in her (Al-Nisa-4: 19). In case of a dispute carrying too long, they should be brought to a compromise after appointing one representative from both sides (Al-Nisa-35). If the situation leads to divorce, husband must keep a record of the waiting period properly (Al-Talaq-1). After the divorce, neither the husband should expel the wife from his house nor is admissible for the wife to leave the home herself. Both husband and wife are directed to live in the same house together after the divorce so that they might reconcile if possible. While explaining the same Quranic verse, the Prophet told that divorce is the most undesirable to God among the admissible things. (Abu Daud-Kitab-al-Talaq).
This is why the Holy Prophet forbade men to divorce their wives during their menstrual period. Since man and woman live apart during these periods, they don’t display the usual mutual love and there is a strong possibility that the husband changes his mind after the passage of this period. (The Muslim: Kitab-al-Talaq).
The Prophet forbade a man to divorce his wife during her purified period when he has met his wife in private as it is difficult to count the days of the waiting period in such case. Whenever such a matter was presented before the Prophet, he directed the man to reconcile (withdraw divorce) and decide it afterwards in a proper way. (The Muslim: Kitab-al-Talaq, Abu-Daud: Kitab-Talaq).
Not only this but the Quran directs man also that the divorced woman should be sent from his house after having paid her due in a proper way (Al-Baqara-2: 241) and that he should appoint two responsible evidences while sending her or reconciling at the end of the waiting period.
The Quran goes a step further. If the husband and the wife do not reconcile during the waiting period ensuing the first divorce, the Quran allows them to restart their life as husband and wife so that the family gets united again. Not only this the Quran keeps also the door for Nikah open for the third time if they fail to reconcile during the waiting period after the second divorce. However, after the third divorce they can’t remarry directly.
The above instructions and rules are worth reading, rather worth considering repeatedly. One should try to understand, in the eight of these instructions, the real spirit of the religion in this matter.
Is it the spirit of Islam to to destroy the family the moment the husband utters the words of divorce thrice or unlike this provides the couple an opportunity to unite again by going relexation to them to the maximum? Obviously, every right mined person’s conscience would acknowledge that it is against the spirit of Islam to punish severely for such a mistake without providing an opportunity to reform the situation.
Another factor must be kept in mind. Divorce can only be valid if the husband has expressed his decision with all sanity. If he lost his temper and got his sanity damaged, the divorce would stand invalid. Keeping this principle in view, the Prophet told that neither divorce accorded by a minor, insane and mad nor the divorce given by a man while he was intoxicated or he was pressurized, would be considered valid. If the immediate and intense rage is analyzed on the standered of the same principle, we would come to know that the individual is not in his senses completely, loses control upon himself and becomes delirious in such condition. Thus, he utters such words, which he would avoid in normal circumstance. Therefore a person uttering such words for many times in such a condition should be given relaxation. Under the prevalent circumstances when people are experiencing a frequent state of anxiety due to several psychological problems, the significance of such a relaxation increases manifold.
On the basis of the above three arguments, the authors of this books believe that the divorce accorded under an immediate and intense rage should be counted as a single divorce. Thus such a person would lose one chance but he would still have a chance for reconciliation.
Two things can be said in dissidence to the above discussion. Firstly, divorce is always accorded in a state of anger. It is not true. Just refresh the second argument in the context of the above discussion, which tells us to divorce a woman after much consideration and reaching the conclusion that the couple cannot live together anymore.
The Quran provides him further two chances for reconciliation even in this condition. Hence it has no foundation in religion.
Secondly, it is said that Umar had declared to punish the individual who would accord three divorces at a time and would implement all the three divorces.
It is necessary to keep certain things in mind, in this context. First that Umar was a ruler. A ruler has to formulate some laws in order to tackle with some immediate problems but these laws are of temporary nature and do not assume the status of permanent laws. The only everlasting thing is Quran and Sunnah. We should, therefore keep in view those circumstances under which Umar gave his verdict. In fact, during the regime of the Holy Prophet, Abu Baker and Umar (for some time) when people, after having divorced their wives thrice, stated that they intended to divorce just once, they were granted the right of reconciliation, implementing just one divorce. Later, Umar realized that people were exploiting the rights of women on the basis of this relaxation. It was so that they used to expel women from their houses after having divorced them thrice and placed them in a state of shock. When the women decided to start their new lives by marrying, their old husbands used to give statements in the court that they, in fact intended to give just one divorce. This way they used to strike women with double shocks. Therefore, Umar took an administrative measure to save women from that oppression. Every Muslim government has a right to devise such administrative measures. For example Valima (the feast in connection with the marriage accorded by the bridegroom) is a practice according to the Sunnah but it can be cut to a limit by the state if it becomes a source for display of wealth and a mental torture for the poor. However, it would be a temprory decision and a government can change it with the change of circumstances.
Second important thing to note is that Umar’s above quoted decision has nothing to do with the divorce given in a state of rage. Wherever it has been quoted, there is no mention of rage. Therefore, this decision is not implemented on such divorce.
Third important and noteworthy point is that Umar made this law to save women from oppression whereas under the present circumstances legislation is required quite otherwise in order to save women from oppression. People, in those times were well versed with the law of divorce and used to exploit it for their personal interests while people of the present time are hardly aware of this law of divorce and consequently cause trouble for themselves and for the whole family. Therefore, Umar’s decision cannot be accepted as a precedent nowadays.
In the light of the above discussion, the authors of this book are of the opinion that the divorce given under the state of rage which ensues repentance would be considered just one, irrespective of the fact that the husband uttered these words for more than twice at a time.
Next, we have to understand that if a man grants three divorces to his wife at a time after much reflection, would it be considered as just one divorce or it should be realized that the individual has availed at the same time the right of all the three divorces for the whole life and has, thus separated himself from his wife forever?
In fact it is a very complicated issue. However, we would try to express our point of view by making it easy to some extent.
We noticed through the above pages that God told us a particular procedure for divorce. Now if a person violates it, he will be committing a major sin and would act contrary to the instructions of God. It is required to know that what is to be done if an individual happens to do so. God has left it to the state and society to find a solution to such an issue according to the circumstances. The state may decide to declare it just one divorce or punish the person who violates the law or separate the husband and wife permanently by imposing all the three divorces considering them as distinct event.
Obviously, the welfare of the family and society would be kept in view while taking a decision in this context. The condition of woman must be kept in observation so that their rights be safeguarded and they should not be troubled undue. Since God has left the collective organization of Ummah free in this issue, the instructions in this context kept changing with the circumstances throughout the period of the Holy Prophet (sws) and the pious caliphs. According to a narrative of Abu Daud and the Bukhari a man got himself separated from his wife after having divorce her for thrice at time. The Prophet called him and asked him to reconcile with his wife. The man argued that he had given three divorces to his wife. The Prophet said, “I know that yet you must reconcile”. After this, the Prophet recited the verse Al-Talaq.
Hence, the Prophet told that man that it was not the proper way to divorce. In the likewise manner when the Prophet was once told that some person had granted three divorces to his wife at a time, he stood up in anger and said, “People are playing with the Holy Book even in my presence”. Seeing the anger of the Prophet, a person stood up and said, “O Prophet of God! Should I kill this man?”
The Prophet, even in his own life adopted a different view as well. The incident of a companion of Prophet Rukana bin Abu Yazeed registered in Tirmizi, Masnad Ahmad and Abu Daud tells that he swore before the Prophet and said that he intended to give just one divorce to his wife although he had used the word of divorce thrice. Therefore the Prophet declared it just one divorce.
Afterward, Umar made legislation according to his own circumstances. He observed that people were violating the right of women. People were in a habit of giving the impression of complete separation after having divorced their wives thrice at a time. When those women made up their mind to remarry (it is proven fact according to the books of Hadith and history that it was not inconvenient for women to marry a new husband after the expiry of the waiting period, in ensuing divorce by their previous husband rather it was a general practice). Their previous husbands declared in the court that they intended to give just one divorce. This used to lead long judicial proceedings which was harmful for women. Therefore, in order to save women from this trouble, Umar made the law that all the three divorces will be implemented if done so by individual and the women will be free to settle down for a new husband after the expiry of their waiting periods.
According to a narrative of the Muslim: “Ibne Abbas said that during the regime of the Prophet, Abu Bakar and the first two years of Umar it was the practice that all three divorces given by an individual at a time were considered as one divorce. Afterwards Umar said, people were showing haste in the matter where they should have been showing much care and tolerance. Why should we not impose three divorces upon them? Thus he did so”.
The statement of the Muslim is the most authentic on this matter. It becomes clear trough this narrative that Shariah has done no legislation in this matter. Thus Umar was free to issue an order contrary to the practice carried on during the time of the Prophet and Abu Bakar.
Hence, it is our duty, now to think what sort of legislation would be suitable for the society, family and women in particular according to the present circumstances. In the present situation, people are generally ignorant of the procedural measures of granting divorce. This is the reason that it is a general impression that the divorce does not get enacted unless the word of divorce are uttered for three times. The other worth noticing fact is that people have been stricken with anxiety, restlessness and dejection to such an extent that they start thinking of divorce even at trifles. Further, the word of divorce has assumed the status of abuse for divorced women and hence they find it almost impossible to marry a new husband in present circumstances. It is, therefore obligatory upon us to invoke the order of the Prophet in the present circumstances, which says that all divorces granted at a time would be considered as just one. Hence, it is essential that it should be enforced as a law on the state level and all judicial documentation be made accordingly.
Next, is the question that some people declare it for thousands or two thousands while granting divorce; what should be done to this?
The direct answer is that it is a sin to utter such word and an open violation of the rule of God. Such a man should be punished by the state for uttering such vulgar word. However it should be considered just one divorce from the legal point of view.
What is Khula’a?
In fact the Quran has granted woman the right to get divorce through Al-Baqara. The reference of the verses 228-231 has already been given in this context. This right has been named as “Khula’a’ in some of the narrative. If a woman reaches the conclusion that she can no more live with her husband, she may demand divorce from her husband. It is obligatory upon her husband to give her one divorce in such a situation. However, he may demand from his wife to pay back a part of what he has already given to her. It is desirable that the issue of ‘Khula’a’ is settled within the four-walls of a house. If a woman surrenders all of her dower, no obstacle is left in her way. However, the woman has a right to approach the court of law in case of a dispute. The court has simply to perform two functions: To give enough time to both the parties so as to create an opportunity for reconciliation and to decide what portion of dower given by husband to wife should be paid back to him keeping in view all requirements of justice, circumstances and the future of man and woman.
There are two further important issues in this context. First, whether it is essential for a woman to tell some reason while demanding ‘Khula’a’?. For example, a woman accuse her husband of oppression, injustice, lack of virility or immorality and prove it in the court of law to get ‘Khula’a’.?
Islam believes that it is not at all required. It is proved through the several incidents found in many narratives that whenever a case of ‘Khula’a, was presented before the Prophet. He investigated in a normal way, tried for reconciliation and set the couple apart when it was proved that the wife was reluctant to remian as the wife of her husband any more. Those who consider that woman must prove a serious allegation against her husband, they are of the opinion that husband and wife should be set apart when they fail to respect the limit of God. It means that first it should be proved that the husband crossed the limits of Allah. In fact, it is just a misunderstanding. The Quran never said so. The Quran, on the contrary says that when the nature of the husband-wife relationship reaches a stage where it is feared that both parties would not be able to remain within the limits of Allah, either of them can get separation. Hence the Quran talks of future, not of the past. It would be appropriate to study the translation Al-Baqara, 2:229.
“It is unlawful for husbands to take from them any thing they have given them, unless both fear that they may not be able to keep within the bounds set by Allah; in which case it shall be no offence for either of them if the wife ransom herself”. (Al-Baqara 2:229)
Next question is whether a man can keep the decision of divorce hanging in the balance when asked for his wife or by the court. Is it his prerogative to divorce his wife or not?
The answer is in negative. If the man refuses to divorce his wife and decline the court order, the court can give the verdict of separation by itself and can even punish him for disobeying the court. If we study the above Quranic verse again, we shall come to know that woman has a right to get divorce by paying back a portion of what has been paid to her by her husband.
It is essential that some sort of legislation done on the state level making it clear that a woman need not prove some serious allegation against her husband in the court in order to acquire ‘Khula’a. It should also be ascertained that the court would grant Khula’a, to her within two to three months after the filling of the petition so that the woman start her life a new as soon as possible.
There is another important question whether a woman can be granted the right of direct divorce while preparing the bond of Nikah. It means that a woman also get the right to divorce her husband when she desire. Generally, it is assumed that it is possible. Unlike this, we believe that this is contrary to the Quran’s concept of Nikah. It is an interesting fact, in the context of this question that our point of view, except on this matter is generally in favor of women’s rights on all important issue. On this particular issue our opinion differs from general opinion. The real cause here is that we have the Quran as a source of guidance. Since we believe that the Quran has granted all those rights to women which are being denied today in the general muslim society, we have expressed the opinion found through the study of the Holy Quran. We find that the Quranic instructions, in this matter is quite different from the generally conceived notion. Hence we are making this matter clear.
According to the Quran, the marriage tie is in hands of man. He plays the active role in Nikah and the authority of divorce too, rests with him. Whereas a woman enters into the bond of Nikah with the man and can get divorce if she desires. The Quran, while describing the law of the dower in a special matter makes it clear that the marriage tie lies in the hand of man. The law says that if the man and woman have entered into the bond of Nikah and the dower has been determined but divorce takes place before the bride’s departure from her home, the man will have to surrender half of the dower.
The Quran syas:
“If you divorce them before the marriage is consummated but after their dower has been settled, give them half of their dower, unless they or the man in whose hands is the marriage tie agree to forgo it. But it is more pious that he (husband) should forgo it (whole dower). Do not forget to show kindness to each other. Allah observes your actions”. (Al-Baqara 2:237)
In the light of the above quoted Quranic instruction, we believe that a woman cannot be granted the right of divorce through the bond of Nikah.
Contrary to our opinion expressed above, the argument in favor of general point of view is that God instructed the Holy Prophet through Al-Ahzab: 28 to set his wives free from the bond of Nikah in a proper way after giving them their due if they were desirous of this world and its ornaments. The Prophet, thus put option before his wives. Hence, every Muslim can also grant the right of divorce to his wife. This argument is not justified; because the special principle mentioned in Al-Ihzab were meant for the Prophet and his wives only and they had nothing to do with general Muslims. The right of separation given to the Prophet’s wives here does not meant, according to the Quran itself that it was a right meant for all muslims. The Quran explained it by telling that the path of the Prophet was difficult and needed much tolerance. If any of the Prophet wives was unable to pace with him in that uphill task, she could get separation.
The Quran says:
“O Prophet, say to your wives: if you seek this life and its finery, come, I will make provision for you and release you honourably” (Al-Ihzab 33:28)
It is obvious that the world and its finery is, according to the Quran’s clear explanation, admissible for general lot of mankind. It was disallowed for the Prophet and his wives only. This is why the special status of the Prophet’s wives determined further in the Quran:
“O wives of the Prophet! You are not like the ordinary woman”.
Next the Prophet has been told, in the context of his wives,
“This is only for you and not any other believer”.
The careful study of Al-Ahzab makes it clear that the law of marriage and divorce for the Holy Prophet were different from those meant for ordinary Muslims. Thus they cannot be applied in normal circumstances. Therefore, it must be acknowledged as a fact that man has a right to give divorce and woman has a right to take divorce (Khula’a). When a woman has this right, there is no justification of granting this authority to her.
Next question is whether a woman is bound to return the whole dower in case she obtains ‘Khula’a.
The answer is in negative. It is proven through the Quran and Hadith that a part of what has been granted by the husband to wife may be returned to the husband through a proper accord and the rest should be left with the wife. It is good if this accord takes place within the house or its terms are a part of the bond of Nikah. However, if the matter reaches the court of law, the court will do justice in every matter keeping in view all circumstances. The Quran says:
“It is unlawful for husbands to take from them anything that they have given them, unless both fear that they may not be able to keep within the bounds set by Allah; in which case it shall not be offence for either of them if the wife ransom herself. These are the bounds set by Allah; do not transgress them. Those that transgress the bounds of Allah are wrongdoers. (Al-Baqara 2:229)
An incident from the Bukhari Kitab-ul-Talaq throws light upon the above verse. According to this narrative,
“The wife of Sabit bin Qais came to the Prophet and said, “O Prophet of God! I do not want objection to the faith or character of Sabit but I myself fear to run contrary to Islam”. The Prophet inquired of her whether she would return the garden given to her by her husband. She replied in affirmative and agreed to returned it in fact. Therefore, the Prophet ordered for separation between the two”.
In the above quoted narrative, a sentence has been uttered by the woman, “I, myself fear to run contrary to Islam”. She, in fact wanted to express that she might not be able to observe the instructions given by God about remaining obedient and loyal to her husband if she continued living with him despite her hatred for him.
The second important thing in this narrative is that Sabit had given a precious gift of a garden in the form of dower. It is obvious that she had no justification for keeping that garden with her when she did not want to live with him. This is why the Prophet inquired whether she was ready to surrender that garden. We conclude through this narrative that the court of law should decide to return parts of such a gift of dower by the wife keeping in view various factors when such a case is registered for hearing. These factors may include the duration of husband-wife relationship, children, the temperament of husband and wife, given circumstances and other important things.