Divorce or Dissolution of
Marriage
Marital life ought to begin with
earnestness and should continue happily under the shadow of love,
tolerance and self-sacrifice. But practically speaking marriage
contract and conjugal relations do not in all cases continue to exist
till the end of life. In certain cases it becomes impossible for two
parties to live together in peace and harmony for various reasons such
as their emergence of deep rooted differences. In such circumstances,
there must be a suitable way of dissolving a marriage legally, otherwise
if the parties are forced to continue to live together, their life is
likely to become unbearable. In many cases, the consequences may be
most regrettable and even tragic. Anyway, it is evident that as
marriage in itself is a social need, in certain circumstances its
dissolution is also a social necessity. The social compulsions have
forced even the Christians to frame and enforce laws concerning divorce,
though their present religious book forbids it except in the case of
unchastely and though their Church has for long opposed it vehemently.
"But I say unto you, that whosoever shall put away his wife, saving for
the cause of fornication, causeth her to commit adultery: and whosoever
shall marry her that is divorced committeth adultery".
(Matthew, V:32). The divorce act is even passed in Italy, which is the
seat of the Pope.
Divorce in Islamic Law
Divorce is the dissolution of permanent marriage resulting in the end of
al responsibilities of the husband and the wife in regard to the rights
and obligations connected with it.
From the Islamic point of view the
disintegration of family bond is very undesirable on principle. It is
the worst and the most detestable act in the eyes of Allah.
The Holy Prophet (s.a.w.) has said:
- The most detestable thing before
Allah is divorce.
- Allah likes most, the house which is inhabited in the wake of a
marriage and dislikes most the house which is abandoned in the wake of
separation.
In fact divorce may be regarded as an
unpleasant and bitter pill which has to be taken in the case of need.
Resort to it should not be made unnecessarily and for the sake of
caprice. Islamic traditions have described unnecessary divorce as a
cause of remoteness from the blessings of Allah.
Islam has suggested certain
precautionary measures to ward off divorce as far as possible. For
example:
- Much stress has been laid on the
careful selection of the wife.
- Repeated recommendations have been made to treat her well and connive
at her minor mistakes which are common in life.
- Self-control against sudden outbursts of rage and hasty actions.
- Formation of an internal family court to resolve the differences
arising between husband and wife.
It is possible that the relations
between the husband and the wife might sometimes become strained
consequent on differences and scolding remarks. Islam suggests that in
such cases a suitable way should be found at the earliest to resolve the
differences and there should be no talk of separation so easily. All
cases of strained relations are not such that we should be disappointed
of the restoration of love and affection. In most cases it is possible
to rectify the position.
Whenever it is not possible for the
husband and wife to sort out their differences themselves, their case
should be considered by a family court consisting of two arbiters, one
selected from the family of the husband and the other from the wife.
The arbiters should be sympathetic and experienced so that they may
listen to the point of view of both the parties, and try to reconcile
them.
In this respect the Qur’an says:
"If
you fear a breach between the two (husband and wife), appoint an arbiter
from his people and another from hers. If they desire amendment, Allah
will make them of one mind".
(Surah al-Nisa, 4:35)
Obviously an arbiter should be a trust
worthy person, a good conversationalist and fit for making a just
arbitration. The two arbiters are to be selected from among the members
of the two families because as such they are expected to have a
knowledge of the temperament of the husband and wife as well as of their
domestic affairs; and also because they will normally be interested in
settling their differences.
Effects of divorce
From the psychological, legal and
social point of view, divorce produces varied effects, some of them
being related to the husband and wife themselves and some of them to
their families. If there are children, separation between their parents
will affect their position also in many ways.
In view of these results, special
conditions have been visualized for divorce so that it may be warded off
as far as possible, for if it is taken easy, the future of children will
certainly be threatened.
What should be the condition of a
woman to be divorced:
* Her periods must not be on.
* After the last sexual intercourse, she must have had her periods at
least once.
* If the woman having been pregnant has been delivered of a child, her
rest period after delivery (ceremonial purification from child birth)
must have come to an end.
Of course if a woman is pregnant or
does not menstruate, the above conditions do not apply to her. In cases
other than these two, the question of divorce should be postponed till
these conditions materialize.
Conditions of the effectiveness
of divorce
Divorce is valid and operative only
if the following conditions are fulfilled:
* The husband who divorces must
be of mature age and must be possessed of understanding. Divorce
pronounced by a minor, a lunatic or an idiot is invalid.
* The husband must be exercising his own free will. Divorce under
compulsion is not valid.
* Presence of two witnesses.
According to the Shiah school of
thought and as expressly mentioned in the Qur’an (second verse of Surah
al-Talaq), divorce must be pronounced in the presence of at least two
trustworthy and righteous witnesses.
This condition automatically implies
that two righteous persons should become aware of the decision of the
spouses to dissolve marriage. In many cases their intervention and help
may save the situation, and they may find a suitable way of reconciling
the husband and wife. Further, their knowledge and presence may be
helpful in settling financial and other questions and finding a most
appropriate arrangement for looking after the children.
Kinds of divorce
After the enforcement of divorce it is
possible to resume conjugal relations in some cases without contracting
marriage anew. In some other cases a fresh marriage is required before
the resumption of these relations. Hence divorce is of two kinds;
revocable and irrevocable.
In the case of revocable divorce if the
man regrets and wants to resume conjugal relations, the tie is
automatically restored and there is no need of contracting marriage
again, provided he revokes his act within the period of probation (iddah)
which is normally three months.
In the case of irrevocable divorce it
is not possible to resume conjugal relations in this way.
Kinds of irrevocable divorce
There are several kinds of irrevocable
divorce.
(1) If the husband agrees to dissolve the marriage at the
request of the wife, it is called khul’a.
(2) If the marriage is dissolved because both the husband and the
wife have asked each other to terminate it, it is called mubarat, that
is mutual release.
(3) The divorce pronounced by the husband on his own is regarded
as irrevocable in the following circumstances:
(a)
If the dissolution of marriage has been brought about before its
consummation.
(b) If the divorcee is a girl whose periods have not commenced or
an old woman who does not menstruate, because she has reached the age of
menopause i.e. is no longer capable of bearing children.
(c) If the divorce has been pronounced for the third time.
In all these cases if the two parties
decide to resume conjugal partnership, they should remarry, for the
first marriage is no longer effective.
NOTES:
(1)
Remarriage with a woman, who has been divorced three times, by her
former husband who divorced her is possible only on the condition that
she is married to another man first and that such second marriage is
terminated after consummation. (This condition precedent to reunion has
been laid down to deter and discourage the people from taking the
question of divorce too easy.) If divorces take place between the
husband and wife again, and again (till nine times) they cannot remarry
under any circumstances. This restriction also ensures that as far as
possible divorces on frivolous grounds may be avoided.
2)
In the case of khul’a and mubarat reunion is possible only if the woman
demands back what she had surrendered to the husband. Such demand must
be made before the period of probation expires.
In other cases, if they are inclined to
resume conjugal partnership, they should remarry in accordance with the
conditions they agree to.
Iddah of divorce
In the case of separation between the
husband and the wife an important question is to find out whether she is
pregnant by her former husband. To ascertain this point, the Islamic
law has laid down that during a period of probation the woman should not
marry another person. This period is called iddah.
Period of Iddah
The period of iddah for a woman who is
not pregnant is the period covered by three menstrual courses, which is
normally three months. The iddah of a pregnant woman is till she is
delivered.
Rules regarding the period of
iddah
During the period of iddah the woman
cannot take a new husband, and nobody should make an offer of marriage
to her. She is to be maintained by her former husband like a married
woman.
In the case of revocable divorce if the husband or the wife dies during
the period of probation, the survivor will inherit the deceased.
Right of guardianship of children
One of the important questions that
crop up on the dissolution of marriage is that of the guardianship of
the children which is called the right of hizanah.
The Islamic law gives the custody and
care of the children in the early years of their life to the mother,
even if the father is competent enough and willing to look after them.
The limit for a boy is two years and for a girl, seven years.
In case the mother is not capable or
fit to take care of the child, the responsibility of guardianship
devolves on the father. In both cases the father has to bear the
expenses of the child, As the right of guardianship is recognized
solely for the benefit of the infant, it should be in the custody of the
person who can look after it the best. On this principle the Islamic
law has given priority in the matter to the mother in the first years of
the life of the child. If both the parents are unable to look after it,
some other suitable arrangements should be made to ensure the welfare of
the child. If the father and the mother agree, the infant may be given
in the custody of a third person under whose guardianship it can, in
their view, make proper physical and spiritual progress.
(Taken from Philosophy of Islam by Dr.
Behishti and Dr. Bahonar) |