Next question requires the meanings of the word ‘Eila’a’ (swearing) used by the Quran. In fact at times, the tension between a husband and wife mounts to that extent that the husband swears not to have any kind of relationship including sexual contact with his wife. God directs that such a man should reach a decision whether to live normally with his wife or divorce her within four months. Husband and wife are not allowed to keep away from each other more than this period. The Quran says:
“Those who swear not to go to their wives must wait for four months. If they change their mind, Allah is forgiving and merciful; but if they decide to divorce them, know that He hears all and knows all”. (Al Baqara 2:226-227).
Next question is what is meant by the Arabic word ‘Zihar’ (Divorce by the formula: Be to me as my mother’s back) used in the Quran?
In fact it was a cultural practice in Arabia during those days that an angry husband used to utter this word for his wife, “You are just like my mother”. Those days it was considered severer than even divorce. It was so because in the Arabian culture, before Islam there was a room for reconciliation after divorce but no chance was left after ‘Zihar’.
Since all this was out for intense rage which ensured repentance for both the parties, God declared it null and void and issed an instruction for that.
We know through the study of the Quran that a woman presented her matter related to ‘Zihar’ before the Prophet. She expressed her fear that the whole of her family would be dismembered if she had been separated from her husband. It is testified through the different narratives that this woman was Khawaila whose husband Aus had done ‘Zihar’ to her. Aus, due to his old age had become short tempered and a bit cynical. Therefore, the Quranic instruction was revealed on this issue. We realize through this instruction that Islam protects the security of unity of a family and saves it from disintegration to every possible extent.
The Quran says:
“Allah has heard the words of that woman who pleaded with you concerning her husband and made her plaint to Allah. Allah has heard the arguments of both of you. He hears all and observes. Those of you who divorce their wives by ‘Zihar’ should know that they are not their mothers. Theirs mothers are those only who give birth to them. The words they utter are unjust and false: but Allah is Pardoning, Forgiving. Those who divorce their wives by ‘Zihar’ and afterwards retract their words shall free a slave before they touch each other again. This you are enjoined to do: Allah cognizant of all your actions. He that does not have (a slave) shall fast two successive months before they touch one another. If he cannot do this, he shall feed sixty of the poor. This is enjoined on you so that you may have faith in Allah and his apostle. Such are the limits set by Allah. A grievous punishment awaits the unbelievers”. (Al-Mujadila 58:1-4)
We believe that the above quoted instructions about ‘Zihar’ if studied minutely testifies indirectly our point of view regarding the grant of three divorce in a state of rage. We suppose that it would be in accordance with the spirit of Islam if declaring the three divorce given at a time as just one divorce and the above mentioned punishment should also be imposed on the husband by the state.
Next question is what is meant by the term ‘La’an’. It means that if a man witnesses his wife with another man in a state of adultery but has no evidence except himself, he and his wife would both appear in the court of law. The husband will swear for five times in support of his claim and wife will also swear for five times if she denies the charges. After that they will be separated from each other forever.
The Quran says:
“And those who accuse their wives and have no witnesses except themselves, let each of them testify by swearing four times by Allah that his charges are true, calling down in the fifth time upon himself the curse of Allah if he is lying. And they shall spare her the punishment if she swears four times by Allah that his charges is fault and call down Allah’s wrath upon herself if it be true”. (Al-Noor 24:6-9)
Next question is that according to the Quran, husband is responsible for all necessities of life required by his wife during the waiting period after divorce (three menstrual periods for an ordinary woman and till delivery of the child for a pregnant). Can a woman stay for the above mentioned period at the residence of her ex-husband and is he responsible for all her necessities after third divorce (after reconciliation is disallowed)?
There are two opinions in this regard. First that man has no obligation to fulfill the requirements of his wife after third divorce. It is argued in its support that Quranic word “When they have reached the end of their waiting period, either retain them in honor or let them go with kindness” tell us that man is not responsible for the requirement of his wife after the final divorce as there are no chances left for reconciliation. It is also argued that the Quran, while mentioning about the responsibility of a husband towards his wife also says, “You never know; after that Allah may bring to pass some new event”. It indicates that husband and wife are directed to live in the same house so that the situation may get reformed. It is obvious that there is no possibility of any such situation after the third divorce. A famous narrative of Fatima binte Qais registered in several authentic books of Hadith is also presented as an argument in favor of this point of view. According to this narrative when Fatima’s husband divorced her for the third time, she went to the Prophet with the plaint for her right of residence and other requirements of life. The Prophet did not declare her deserving for all that and directed to complete her waiting period at the residence of another of his companions.
We believe that all three arguments quoted above are not very sound. Firstly, because after the verses 1-2 of Al-Talaq the matter of the residence, feeding and clothing of a woman has been repeated through the verse 6 before winding up the matter. This repetition intends to make this right of a woman clear. Secondly, the Quranic word, “You never know; after that Allah may bring to pass some new event” have a vast connotation. It has an indication in case of third divorce that God will open new dimensions for man and woman both after that interim period. It also indicates that a woman, however needs her requirements to be met with during that interim and emergent period. Thirdly, God would have revealed it clearly in the Quran if there was no obligation upon man towards the woman after the third divorce. So far as the narrative of Fatima binte Qais is concerned, prominent scholars like Umar (second Caliph of Islam) and Aysha (The Prophet’s wife) have refused to accept it despite its valid reference. Umar said,
“We cannot overlook a Quranic verse and the Sunnah of the Holy Prophet just because of the saying of a woman, who does not know what she remembered and what forgot. I have heard myself from the Prophet’s mouth that a woman divorced for the third time deserves residence and feeding too”.
This narrative of Umar is registered in the Muslim too along with other books of Hadith. Ayesha also believed that Fatima had misunderstood the matter by going out of the context. This is why Aysha used to say,
“It is better not to mention the narrative of Fatima. There is no good in mentioning it, what has gone wrong with Fatima? Does she not fear from God?” (The Bukhari)
Various other narrative make us realize that Fatima binte Qais was sharp tongued and impertinent. This was the reason that her case was decided in an unusual way.
The above discussion makes it clear that a woman deserves the facilities of residence and living expenses during the waiting period even after the third divorce.
Next question is whether there could be some legislation for the protection and compensation of the right of a woman.
The answer is that Islam has only accorded the guideline and has left the matter of detailed legislation upon the time and circumstances. In fact circumstances differ with the passage of time. So it is necessary that different legislation is done according to the requirement of time. The Quran has given the guiding principle that whenever a woman is divorced:
“Must be retained in honor or allowed to go with kindness”. (Al-Baqara 2:229)
It further says:
“When they have reached their prescribed time, either keep them honorably or part with them honorably”. (Al-Talaq 65:2)
There are two important Arabic words in the above quoted Quranic verses; ‘Ihsan’ and ‘Ma’aroof’. ‘Ihsan’ means doing something in the best possible way so as to satisfy the other person completely. ‘Ma’aroof’ has a large connotation. It gives the sense of every such good, virtue and work of excellence which has been declared as virtuous step by the religion which is determined as welfare according to the intellect, wisdom and mass observation and experience of man. According to this, every responsible statute of law, custom and constitution is also called as ‘Ma’aroof’.
Hence, the Quran directs that such an appropriate procedure should be adopted in the matter of divorce, keeping in view the prevalent circumstances which should guarantee the protection of the rights and career of a woman. If such a system already exists, there is no need for further steps. If such a system is non-existent in the society, it is the responsibility of the state to legislate and get it enacted in the required form under ‘Ma’aroof’.
We observe that there was no need for any such legislation during the period of the Prophet. Every divorce woman was offered many proposals for marriage immediately after her waiting period had been over and she used to accept one of them. It was considered good for divorced woman to marry anew immediately after the lapse of her waiting period, nor men were hesitant to marry a divorced woman. There are innumerable narrative in the books of Hadith and countless events in the manuscripts of history that approve the above fact.
The situation of the Subcontinent’s Muslim society today is quite different. Here divorce is looked down upon. Generally, no man is ready to marry her. Mostly a woman is divorced when her parents are dead and all of her brothers and sisters are well settled in their respective homes. Hence she becomes all alone and appears to be a picture of intense grief and misery. It is, therefore necessary that proper laws are made for her future. Such legislation can have two forms. First that the first husband must be made bound to pay some suitable amount on monthly basis till the woman marries a new man. Second that man should hand over some reasonable amount to the woman at the time of divorce. The first method does not conform to the spirit of Islam as it might tempt the woman not to marry again whereas an Islamic society asserts that every adult man and woman must get married. Moreover, a woman remains dependent upon her previous husband permanently under this method, old memories die hard and the woman can’t plan in a proper manner to proceed in her life according to her capability. We, therefore consider the second method as more proper. It means that there should be a law making the man bound to pay a reasonable sum of amount to the woman at the time of third divorce. The court may make changes in the amount after viewing all circumstances. The court will have to keep numerous factors in view like fixing the main responsibility, the duration of couple’s joint stay as the woman would have served her husband free of cost for that duration and she would face much difficulty in searching a new husband now and the financial conditions of both husband and wife individually etc.
This method is fruitful for both man and woman, as man gets relieved of his obligations for ever and the woman can also start her new life instantly.It is, therefore obligatory upon every Muslim state to introduce legislation in this context immediately. It would close the door of oppression and would open the gates of “Ma aroof” and “Ihsan”. However, people should enter this term in the bond of Nikah as long as the state does not take a step in this direction.
Next question is whether a married couple can remarry each other even after the third divorce. It is possible just in one situation. If the woman marries another man but is divorced by him too or he dies, she can remarry her first husband.
The Quran says;
“ If a man divorces his wife (finally), 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 stay within the limits set by Allah”. (Al Baqara-2:230).
It gives us the message that our religion is so particular about keeping a family intact that it always keeps a door open even after the repeated separation.
Next question requires the meaning and description of “Halalah”. The religious sense of the word “Halalah” has been described in the above paragraph. Now a days, it is used to mean that when a man divorces hiswife for three times in the same wake in a state of rage but repents later, conspires with his wife to get her married to another person in a fake manner and plans her divorce after she has passed one or two nights with her new husband. This way he marries his first wife after the waiting period is lapsed.
It is obviously a conspiracy and not a marriage. The term “Nikah” is known for the contract of marriage in which man and woman vow to live together as husband and wife forever. A relationship without this vow is merely adultery and not a “Nikah”. This is why, according to a narrative in Ibne Majah, the Prophet assimilated such a man to a hired bull. According to a narrative registered in Tirmizi and the Nisai the Holy Prophet said:
“The one who does “Hala’la’ and the one who gets it done are both cursed by God”.
Such a ‘Hala’ la’ is a plot against the dignity of mankind. Therefore it is necessary that there should be some strong legislative measure to counter this malpractice.
Next thing to be known is what should be done of kids in case of a divorce. It is desirable that the man and woman reach some mutual decision otherwise the court can make any judgment about the children keeping in view their circumstances. However, it should be kept in mind, in this context that the mother is more suitable for the look after and brought up of infants and small kids. A narrative registered in Abu Daud says:
“A woman said to the Prophet, ‘O Prophet this is my son who was born to me, fed by me, brought up in my lap and now his father has divorced me. He wants to acquire this child too’. The Prophet said, you deserve more to keep the child until you marry. (it means that in such a situation court will have to consider the case of father and mother both)”
If the child is sensible, his choice would be preferred. The Prophet decided some cases according to the desire of the child.
It looks proper to discuss another issue as well after a comprehensive discussion on the Islam’s concept of family. The Prophet married for several times during the last nine years of his life (fifty four to sixty four years of age) whereas he lived with only one wife during the first twenty-five years of his married life. It is noteworthy that his first wife, Khadija was fifteen years older than him. At the time of Khadija’s death the Prophet was fifty. He married another old widow who remained as his sole wife for the next three years. He married several times during the last nine years of his life after he had come to Madinah. What is the justification of this apparently strange action?
In fact, after the first two, rest of all marriages of the Prophet were for the accomplishment of the Prophethood. The whole matter of these marriages was in direct control of God. This is why the Quran declared it a process of the performance of the Prophethood and made the specific laws regarding these marriages clear. The Prophet was not allowed to marry outside a particular circle. He was not allowed to divorce any of his wives. His wives were also not allowed to remarry after the death of the Prophet. They were declared as the mothers of all Muslims and were imposed some additional restrictions as compared to other Muslim woman. All this has been described in detail in Al-Ahzab.
Khadija was the first wife of the Prophet. The Holy Prophet was just twenty-five while Khadija was forty years old at the time of their marriage. Khadija had become widow thrice before this marriage. All her three husbands died in succession. She had been the only wife of the Holy Prophet for the next twenty-four years. Thus the Prophet spent the whole period of his youth with an old widow. He loved her the most which he always expressed.
The Prophet married Saudah a few months after the death of Khadija. It was still the Makkan period of the Prophet. Saudah was also a mature widow of fifty.
After the migration to Madina some important requirements were realized from the women‘s point of view. First the Muslim population started growing rapidly. There was a dire need of some women who should have been trained directly by the Prophet so that they should be able to impart the same to the women who newly entered the circle of Islam. Second that the Muslims had been embattled by some very important tribes. The only way to merge these tribes in Muslim Ummah was to develop their relationship with the Holy Prophet. It was also necessary that there should be some women able to impart Islamic social values to other Muslim women. There were certain malpractices in the Arab Society, which needed reformation. The Prophet married several women during his last ten years for the accomplishment of all these objectives. Among all these wives of the Prophet, Ayesha was the only woman who was unmarried before entering into the bond of Nikah with the Holy Prophet. Rest were all widows or divorced. Each of these marriages was a source of help for the promotion and propagation of Islam.
It should also be remembered that some of the Prophet’s wives kept on educating muslim women for almost half century after the death of the Prophet. In fact, the same was the background of the marriages of the Prophet.
To sum up the whole chapter the important points are given as under:.
1. Any sexual relationship outside the bond of marriage is disallowed.
2. Nikah is an open, free and subtle contract between an adult man and an adult woman.
3. Ideal married couple is like apparel for each other. They take care of each other. They have equal rights and obligation in usual circumstances.
4. Man is bound to fulfill all valid requirements of his wife. He is not allowed to tease her and be cruel to her. He has to adopt a nice attitude towards her.
5. A wife has to be obedient and loyal to her husband. She will keep his secrets.
6. Man is the head of family who is responsible to meet all the requirements of family and accord protection to it.
7. In normal circumstances, a husband is not allowed to strike his wife physically even if he gets intensely enraged due to her negligence.
8. The husband can punish his wife mildly for the larger interest of the unit of family if the wife revolts against him by taking interest in other men.
9. In case of a dispute, one representative from each party should decide the matter together.
10.Dower is the right of the wife.
11.Some close relatives cannot marry each other.
12.Some specific conditions can be included in the bond of “Nikah” for the grant of sense of security to a wife.
13.It is proper to get the consent of the family regarding a marriage. But the couple has the final authority in this matter.
14.The age of “Nikah” commences after the attainment of the age of puberty.
15.A wife cannot, normally decline the request of her husband for a physical contact but a husband should also respect his wife’s desire.
16.A marriage in exchange is forbidden.
17.A man can marry more than once in case of a just reason only. The husband is bound to maintain justice between his wives.
18.When the co-existence is impossible, a man may divorce his wife and a wife may get divorce as well.
19.The right of divorce is for three times only.
20.It is forbidden for a husband to divorce his wife when she is passing through her menstrual period or when he has slept with he in purified state and her next menstrual period is not yet approached.
21.All three divorces given at a time should be considered as one and a man guilty of such act should be penalized.
22.Khula’a is the right of a woman. It is not obligatory upon her to accuse her husband for this purpose. She may surrender a part of her dower on this occasion through mutual consultation.
23.A wife cannot be granted the right of divorce through the bond of Nikah.
24.The maximum period of Eala is four months and ten days.
25.A divorce does not fall at the time of Zahar. However, the husband will have fast for sixty consecutive days or feed sixty poor persons.
26.La’an, would be decided on the basis of the swearing.
27.The man is responsible for the residence, food and other requirements of his wife during her waiting period even after the final divorce.
28.The religious concept of Hala’la is altogether different from the generally misunderstood concept nowadays. The present practice of Halala is, in fact a farce.
29.The matter of the children should be decided according to the existing circumstances in case of a divorce between their parents.
30.All marriages of the Holy Prophet during the last nine years of his life had taken place on the direct orders of God for the proper accomplishment of the objectives of his Prophethood.
Some proposals have been made in this chapter for the Government to have legislation in this context. Here is a summery of them all:
1. There should be a law against the violence at domestic level.
2. A new Nikah from should be devised mentioning clearly all such terms that grant a sense of security to a woman.
3. The court should declare instantly a court marriage.
4. The right of a woman towards marriage should be made clearly part of law.
5. The marriage of a minor should be strictly banned.
6. A marriage in exchange or a marriage with the Quran and all such unislamic practices should be declared against the law.
7. There should be a law that a man must seek the permission of the court of law before marrying more than once. The court should impose some restrictions upon him for the maintenance of justice between his wives.
8. Proper law should be made declaring that in case of the grant of even all their divorce at the same time; only one divorce will be enacted.
9. It should be clearly indicated in law that a woman needs not accuse her husband or prove an allegation against him for the acquisition of Khula’ a.
10.There should be legislation for the safe future of a divorce woman.
11.The real concept of Hala’la’ should be made clear through law and the malpractice nowadays carried on in this regard should be declared illegal.