Women and Divorce From The Islamic Perspective
Rafidah Abdul Jamal
Introduction
The position of
women in an Islamic marriage institution has always been a
question among the critics outside Muslim world. Islam is accused
for not giving the fair right to women as compared to their
husbands, and this include in the matter of divorce. It is often
claimed that the easy divorce procedure in Islam results in the
oppression among Muslim wives, without realising the fact
explained in a hadith by the Prophet Muhammad(P),
who said that the halal matter which is most hated by God
is the talaaq (Abu Dawud). In short, a divorce is not
encouraged in Islam for as long as a better solution can be
obtained. This brief article is intended to outline the basic
principles in the regulations concerning divorce in Islam, and at
the same time tries to examine the view of the so-called
"oppression" towards women with regard to this matter.
Why a Divorce?
Islam considers a
marriage institution is built based on mutual trust between
husband and wife, and is for the benefit of both women and men.
This is outlined in the following verse:
"And
among His signs is this, that He created for you mates from
among yourselves, that ye may dwell in tranquillity with them
and He has put love and mercy between your (hearts), verily in
that are Signs for those who reflect."
(Qur'ân, Ar-Rum: 21)
It is essential
therefore, for both husband and wife to try to fulfil the rights
of each other, so as to make the marriage institution beneficial
and more meaningful to both parties. However, it is sometimes the
case where both parties are not able to come to an understanding
and agreement in order to continue their marriage further. As a
result, there often is the case where they lost their love and
mercy previously existing in the marriage, and even worse, wives
are left hanging by their husbands while their husbands enjoy
their life with other women.
Islam however,
specifically mentions that women are not to be left hanging, as
indicated in the following verse :
"Ye
are never able to be fair and just as between women, even if it
is your ardent desire. But turn not away (from a woman)
altogether, so as to leave her hanging. If you come to a
friendly understanding, and practice self-restraint, God is Oft
forgiving, Most Merciful." (Qur'ân, An-Nisa': 129 )
In the above
verse, it is clearly indicated that the first step is to try to
solve the problem between husband and wife in a friendly manner,
so as to keep the marriage institution intact, and the husband
and wife are not separated.
Another example
whereby God prohibits a husband to leave his wife hanging is
shown in verse 226-227 of Sura' Al-Baqarah. These verses was sent
down to abolished the jahiliyah tradition with relation to
ila', whereby the husbands leave their wives hanging without
the necessary provision for maintenance, but did not divorce
them. This sort of tradition is oppressive towards women, and the
Holy Qur'ân provides the necessary solution for the women, in
order to protect their rights to live in a happy manner as a
human being.
In the case where
there is no solution obtained to continue the marriage in a
better manner, a fair solution on divorce is allowed as outlined
in the following verse:
"But
if they disagree (and must part), God will provide abundance
for all from His all-reaching bounty: for God is He that careth
for all and is wise." (Qur'ân, An-Nisa' :130)
The reason why a
marriage can be terminated is to avoid unnecessary pain to
either party, be it the husband or the wife, if a better solution
cannot be found. Although a divorce is allowed in An-Nisa' verse
130 whenever a friendly understanding cannot be reached between a
husband and his wife, there is a further suggestion indicated via
the Qur'ân in an attempt to reconcile the marriage before the
decision for a divorce is obtained:
"If ye
fear a breach between them twain, appoint (two) arbiters, one
from his family, and the other from hers, if they wish for
peace, God will cause their reconciliation. For God hath full
knowledge, and is acquainted with all things." (Qur'ân,
An-Nisa':35 )
This verse
shows that divorce is the very final solution. As far as
possible, a marriage institution is to be maintained, and the
couple should try every possible way to try to reconcile the
marriage in order to avoid a divorce.
'Iddah As a Means of Reconciliation
The regulation on
iddah comes from the following verse :
"Divorced women shall wait concerning themselves three monthly
periods. Nor is it lawful for them to hide what God hath
created in their wombs, if they have faith in God and the Last
Day. And their husbands have better right to take them back in
that period, if they wish for reconciliation. And women shall
have rights similar to the rights against them, according to
what is equitable. But men have a degree over them. And God is
Exalting in Power, Wise." (Qur'ân, Al-Baqarah: 228)
'Iddah is
the 3 cycles of monthly periods (or three months for women
without menses) enforced on the wife after the divorce. During
this period, the husband still has the responsibilities towards
his wife as if they are still tied in a wedlock (except sexual
intercourse), including her provision for maintenance. The reason
for the 'iddah on woman upon divorce is to ensure that
she's free from carrying anything in her womb. If she's pregnant
during the divorce, then the period of 'iddah is extended
until she gives birth to the baby, as required in Sura' Al-Talaq
verse 6. This regulation is to protect the woman, in which it
guarantees that the needs of the wife will be provided fully by
the husband throughout the period.
The benefit for
the 'iddah is for the husband and wife to rethink and
reconcile their marriage. The fact that the husband and the wife
need to be together during the period of 'iddah often
helps to reconcile the marriage. There will always be space for
the couple to do things together and talk to each other, and this
might help to regain love between each other and the couple could
be reunited. That is the beauty of the law of God, and the reason
why a couple is given two chances to reconcile their marriage as
can be seen from Sura' Al-Baqarah verse 229.
Are Women Abandoned or Oppressed Upon A Divorce?
Often, a woman is
the victim as a consequence of divorce. The Holy Qur'ân however
provides regulation that should be followed by the couple
following a divorce, in order to protect the women from being
oppressed.
"When
ye divorce women, and they fulfil the term of their (iddah)
either take them back on equitable terms or set them free on
equitable terms, but do not take them back to injure them or to
take undue advantage, if any one does that, He wrongs his own
soul. Do not treat God signs as a jest, but solemnly rehearse
God's favours on you, and the fact that He sent down to you the
Book and Wisdom, for your instruction. And fear God, and know
that God is well acquainted with all things."
(Qur'ân, Al-Baqarah: 231)
The above verse
outlines the regulations set by God binding the husband:
- A husband
is allowed to take his wife again on equitable terms
- A husband
is allowed to set the wife free from him on equitable terms
- The husband
is not allowed to cause injury to the wife, nor can he abuse
her, nor can he take advantage of her out of her weaknesses.
This regulation
protects a wife from being abused by her husband upon divorce.
Apart from that, Islam guarantees the right of the wife with
regard to her maintenance.
"Let
the women live (in 'iddah) in the same style as ye live,
according to your means, annoy them not, so as to restrict
them. And if they carry (life in their wombs) then spend on
them until they deliver their burden. And if they suckle your
offspring, give them their recompense, and take mutual counsel
together, according to what is just and reasonable. And if ye
find yourselves in difficulties, let another women suckle the
child on behalf."
(Qur'ân, Al-Talaq: 6)
According to
the sharia' regulation, a woman in 'iddah is still
considered as the responsibility of the husband, and therefore
still has the right to get the provision for her maintenance
throughout the period. This is the period whereby the wife will
be able to prepare herself for her future life.
In addition, a
husband is not allowed to take back anything that has been given
to his wife as a gift throughout their marriage upon a divorce,
as has been outlined in the Holy Qur'ân, in Sura An-Nisa', verse
20-21 as follows:
"But
if ye decide to take one wife in place of another, even if ye
had given the latter a whole treasure for dower, take not the
least bit of it back. Would ye take it by slander and manifest
wrong? And how could ye take it when ye have gone in unto each
other, and they have taken you a solemn covenant?"
A husband is
also required to give a settlement or gift (mut'ah) to his wife
upon divorce for her future use, as shown in Sura' Al-Baqarah
241:
"For
divorced women mut'ah (should be provided) on a reasonable
(scale). This is a duty on the righteous."
Concerning the
children, Islam protects the right of both husband and wife to
have the right to take care of their children, although the
mother has an advantage over the father to take care of the
children, so long that she is still not remarry. This is
explained in the hadith, "From Abdullah bin Amar, who said, a
woman asked Prophet Muhammad 'O Apostle of God, I am the one who
carried my son in my womb, and gave him protection on my lap and
I suckled him with my breasts, and now his father wants to take
him away from me'. Then The Apostle said, 'You have greater right
over him, so long that you are not remarry'." (Abu Dawud)
However, both
father and mother still have the right over their children, and
this right is protected in Sura' Al-Baqarah verse 233:
"No
soul shall have a burden laid on it greater than it can bear.
No mother shall be treated unfairly on account of her child.
Nor father on account of his child, and heir shall be
chargeable in the same way."
As can be seen
from the above facts, the rights of both husband and wife are
protected in Islam, in a manner in which the divorce can be done
peacefully, without resulting any unnecessary pain to any party.
Can A Wife Divorce her Husband?
Often, it is
argued that Islam gives the exclusive right for a husband to
divorce his wife , but similar right is not given to a wife
therefore this gives a wide space for the husband to misuse the
power given to him which results in unnecessary pain to his wife.
This is definitely a lie created by the ignorant critics, when
the fact is that Islam gives equal rights for a wife to divorce
her husband in order to protect her from any misconduct by her
husband. And how is done in Islam? There are two methods for such
a divorce, namely the fasakh and the khulu'.
1)
Fasakh
The provision
for fasakh is explained in the following verse:
"If a
wife fears cruelty or desertion on her husband's part, there is
no blame on them if they arrange an amicable settlement between
themselves, and such settlement is best, even though men's soul
are swayed by greed. But if ye do good and practice self
restraint, God is well acquainted with all ye do."
(Qur'ân, An-Nisa':128)
This right is
also given to a wife to get a divorce through the power of
judges, or qadhi to separate the wife from her husband. A
wife is given right to request for fasakh if any of the
following (to mention a few) problems occur in the marriage:
a) The
husband failed to provide for the maintenance of his wife for
four months, or any of his responsibilities towards his
marriage.
b) The
husband abused his wife by way of the following:
- physical
abuse to the wife resulting in unnecessary oppression in her
daily life.
- to force
the wife to live in unhealthy manner, e.g. by forcing his wife
to be a prostitute.
- prevent
his wife from doing her responsibility towards her religion.
- the
husband failed to be fair and just to his wives (in the case of
polygamy) according to the requirement in sharia' that
will cause a wife to be abandoned.
The Holy
Qur'ân outlined the problem in the following verse:
"O ye
who believe! Ye are forbidden to inherit women against their
will. Nor should ye treat them with harshness, that ye may take
away part of the dower ye have given them, except where they
have been guilty of open lewdness, on the contrary, live with
them on a footing of kindness and equity. If ye take a dislike
of them it may be that ye dislike a thing, and God brings about
through it a great deal of good."
(Qur'ân, An-Nisa':19)
c) The wife
did not give her consent to their marriage, or her permission
is not valid as she was forced, or she has a mental problem at
the time of the marriage. This is to be in line with the
following hadith:
Narrated
Abu Hurairah r.a, that the Prophet(P)
said, "A divorcee cannot be forced to marry before she agrees,
and a virgin cannot be forced to marry before her permission is
obtained. The Sahaba' asked "How can we obtain her permission?"
The Prophet(P)
said, "Her permission is when she keeps quiet." (Muslim)
d) The
condition of husband, such as being impotent or having a mental
problem in which is not known to the wife prior to the
marriage, if such a problem can affect the condition of the
marriage.
2) Khulu'
Khulu'
is a settlement made by a wife to the husband in order to get a
divorce. This provision is allowed in the following verse:
"A
divorce is only permissible twice, after that the parties
should either hold together on equitable terms or separate with
kindness. It is not lawful for you to take back any of your
gifts (from your wives) except when both parties fear that they
would be unable to keep the limits ordained by God. If ye do
indeed fear that they would be unable to keep the limits
ordained by God, there is no blame on either of them if she
gives something for her freedom. These are the limits ordained
by God, so do not transgress them if any do transgress the
limits ordained by God, such persons wrong." (Qur'ân,
Al-Baqarah: 229)
Khulu'
is the provision for the woman to get a divorce, but is not able
to do it by way of fasakh. This provision is explained in
the following hadith, "The wife of Tsabit bin Qais came to
meet the Prophet of God(P)
and said 'O Prophet of God, I am not downgrading his behaviour
and his religion, but I do not want to belittle the teachings of
Islam'. The Prophet(P)
asked : ' Do you want to return his farm?' and she answered
'Yes'. Therefore, the Prophet(P)
said ' Accept the farm, Tsabit, and give her one talaaq'."
(Abu Dawud)
The above case
happened when the wife wanted Tsabit to divorce her, when in
actual fact there was nothing wrong with Tsabit. She was not able
to keep the marriage intact because she feared that she will not
be able to fulfil her responsibilities as a wife which will give
rise to further problems within the marriage, and therefore she
requested for khulu' as a settlement. The farm was
originally owned by Tsabit, but was given to her as a gift during
their marriage.
The settlement
for khulu' is limited to the amount given by the husband
to the wife during their marriage, as a gift or dowry. This is
explained in Sura' Al-Baqarah, verse 229 as stated above.
Conclusion
Islam has
provided clear guidance with regard to marriage and divorce, in
which both parties are treated equally and a clear solution is
provided to avoid any misconduct by any parties, and to protect
the rights of both men and women alike. Regardless, Islam does
not encourage divorce, so long as a better solution can be
found to keep the marriage intact.
And only God
knows best!