-- AN EXPOSITION
BY ATHAR HUSAIN
Published by the All India
Personal Law Bpard,
As we have already seen, Islam has taken all possible measures to make marriage a happy companionship and a solid foundation for continuous harmony and mutual satisfaction. To recapitulate these measures, it may be mentioned that:
1 The two parties have been advised to acquire a fair knowledge of each other, particularly their way of life, their manners and traditions, the standards of their living, their education and upbringing. decency and behaviour before the marriage. In particular, they are to ensure that the proposal is not activated by any immoral, deceptive or exploitative behaviour.
2 Man in particular is exhorted to choose his partner of life on the basis of her permanent values i.e., religious devotion and piety, moral integrity and character etc. and not on the basis of her wealth and family prestige or mere physical attraction.
3 [A woman] is given the right to make sure that the proposing man is a suitable match worthy of her respect and love and capable of making her happy. She may reject the proposal of a man whom she finds below her level and unfit for her, for that would hinder the fulfilment of her obligation as a wife and may even break up her would-be marriage.
4 The consent for the parties is essential. Even a father giving away h[is] minor daughter has to act in her best interest and if he fails to do that, the marriage can be revoked by her on attaining majority.
5 The marriage is to be solemnised in public and to be celebrated in a joyful manner. Testimony of two witnesses is essential.
With all these safeguards and measures, marriage should make a happy companionship. But Islam takes a realistic view and makes provisions for unexpected events for man's behaviour is changeable and at times unpredictable. Marriage, as [has been] said before, has decent and noble purposes, which have to be fulfilled. “Islam does not recognise or accept any marriage which is not functional or effective. There can be no nominal or idle marriage. Marriage is too solemn a contract to be stationary or non-effective" .
There is no point in keeping a nominal and worthless contract or only [the] appearance thereof. A man or a woman would only be deceiving himself or herself if they have to maintain pretense[s] and are tied down to a vow which cannot be honoured. When serious differences or obstacles arise in [a] way which cannot be overcome by reconciliation, the contract has to be terminated by divorce with [the] conservation of the rights of the parties concerned.
In such a situation, divorce is applicable but it has to be [the] last resort as the Prophet has described it as the most detestable of all lawful things in the sight of God.
There is much hullabaloo about the provision of divorce in Islamic laws, particularly in quarters who are ignorant of the detailed priorities in this regard or are out to defame Islam by any means possible. The so-called educated English people who have never cared to look at Shariat Law [don’t] have the foggiest notion thereof. [They] join the ranks of detractors to demonstrate their modernity. Much is said against the uncontrollable right of a husband to divorce his wife by pronouncing the statement of divorce three times in a row. They never bothered to analyse the position and the objective behind it.
Before taking this final and desperate step, the Quran exhorts man to make serious attempts at reconciliation in the following order:
1 The partners must try to
settle their disputes and solve their problems between themselves;
"If you fear a breach between the couple, then appoint an arbiter from the man's family and an arbiter from the woman's family if the two (man and wife) desire to reach a settlement, God will effect a reconciliation between them." (Q. 4: 35)3 If their efforts also fail, divorce may be applied. Muhammadan law concedes to the husband the right to dissolve the marriage as his uncontrolled option and the wife may do so if a stipulation to that effect had been made in the [marriage or prenuptial] contract, otherwise she has to get the marriage annulled through the court.
Hindu Law does not provide for divorce. Hindu women suffered from a number of disabilities, chief among them being monogamy for women only but not for men, adoption of [a] son could be made by men only but not widows and women could not inherit property. The Government of India realized the ignominy of women and the discrimination and hardship that Hindu Law imposes upon them. They brought out a number of enactments in the recent past. The Hindu Marriage Act introduced monogamy. The Hindu Succession Act enforced property rights on women, on widows and daughters in the presence of sons. [The] Hindu Minority and Guardianship Act is another ameliorative measure.
In his address delivered in a Seminar on "Women's Rights and Social Justice" held at Kanpur on September 15, 1985, the Chief Justice of Allabad High Court said: "History presents a strange paradox. The Hindu women, on one hand, in society had been glorified and lauded to sky; but on the other hand they were also treated by Society as mere objects for men's carnal satisfaction." Mere enactment of laws does not go far. Unless social consciousness is aroused and moral preparedness is achieved, centuries-old traditions do not die out. Man-made laws do not generate fear of God and unless there is fear of God, people go on perpetrating cruelty and atrocities and shameful acts. The Chief Justice mentioned it at in a single locality of Chamanganj of Kanpur ten thousand women were in colossal distress as victims of family and social injustice."
How has Hindu society got over the difficulty that Hindu Law does not permit divorce. A section of it has resorted to the most heinous, inhuman and bestial act of burning the bride alive. That the gruesome murder in the most painful way is not committed by the husband in an overpowering rage or under vengeance or grave provocation, it is a cool and calculated crime against humanity to which the whole family either acquiesces or actually abets. The poor hapless victim may beg for mercy, but in the absence of fear of God, and with deadened conscience[s], none in the family listens to her hair-raising cries and most pathetic requests.
It was broadcast in the National Programme of Indian Television on September 15, 1985, that in Delhi alone as many as 611 brides were burnt alive as reported to the Lok Sabha. If it is any indication, the all-India figure for a year will be staggering and colossal. In many cases, the young brides are so harassed that they prefer to commit suicide. The harassment is mostly due to the grouse [complaint] of the husband's family that her parents could not afford to give [a] larger dowry and this grouse is entertained even after [the] requisition of considerable money by way of Tilak from the wife's father.
In virtually every known society and religion, there are ways to terminate a marriage. Some have enacted special laws for the purpose and they are being increasingly liberalised. There can be only two ways of termination of a marriage -- either [the] exercise of power conferred on the persons themselves by [the] law or as stipulated in the contract or it can be obtainable by interference of the court on behalf of the wronged party. In the latter case justification for the termination has to be proved. Generally, only two grounds are accepted as justification, that is, adultery and cruelty. When the ground is adultery, it is so humiliating to human dignity and detrimental to mortality that a person should commit adultery or pretend to have committed adultery in order to obtain a divorce. In most cases people are not divorced because they have committed adultery but they commit adultery or pretend to have committed it just to obtain a divorce.
Cruelty can exist and some people may be prone to do it but in most cases, highly exaggerated versions are given and [a] recourse to falsehood is taken to achieve their purpose at any cost. Where adultery has to be proved, much dirty linen is washed in public and more often than not, the character of the woman is slandered and her reputation becomes mud. It is not necessary for Muslims to separate from his or her partner some years before divorce [is to] be granted nor is the granting of divorce conditional on adultery. Many systems endorse separation, which can and certainly does involve immorality. The couple continue[s] to be officially married without enjoyment of marital relationship or fulfilling of any obligations to each other.
The partners are tied as tightly as they can be, but these are so loose that no restrictions can affect them. What a blot to morality and [what a] high price they have to pay. Islam provides capital punishment for adultery. It can never accept [n]or endorse such a system. In many cases, it is good for both the partners to end the farce of [their] marriage. They are the cases where the two partners are incompatible in temperament, where unfaithfulness on the part of any partner has soared their relations where bickering and distrust is the routine of the day and where the whole atmosphere of the house gets sullied by frequent quarrels and bickering, where it is having [a] baneful effect on the children and their upbringing.
In such a situation, where mutual agreement is ruled out, or reconciliation through arbiters is either not resorted to, for it requires the consent of both the parties, or where it has failed, is it not necessary and useful that the partnership should be broken in a dignified and graceful manner without forcing any person to lower his or her dignity and gathering a blot upon morality?
In Islam the whole marital context from beginning to end is centred around and oriented to the belief in God. The Quranic verses dealing with divorce are not dry legal stipulations, they commence and conclude with moral exhortations of a high order. The moral commitments of the parties extend far beyond the divorce date and the entire question is incorporated into a highly moral system.
The dissolution of the marriage by the husband is called talaq which means ‘repudiation, divorce.’ The husband cannot exercise this right unless he is of mature age and possessed of understanding.
Talaq is of two kinds:
A divorce which is revocable in the beginning becomes irrevocable if the period of iddat or probation is allowed to lapse without the husband having revoked it either by express words or conduct.
In giving divorce. two things are important:
1 The husband should be in proper
state of mind. If a person [is] given to epileptic fits, [and] gives talaq
the state of fit, it will be invalid. If a person who is not used to intoxicants,
takes some intoxicants not knowing its effect, or as a remedy for some
illness, and loses his balance of mind, a divorce given by him will have
From a divorce given in writing, intention will be presumed whether it was intended or not. If a wife asks her husband to give her divorce and he does not say anything but raises his three fingers or breaks a thread, it will not be taken as talaq. The case will be different if the husband is dumb. Divorce given in jest and anger will be treated as valid divorce.
There is a Tradition of the Prophet which says that in three things jesting is not allowed. They are marriage, divorce and manumission. Men cannot be allowed to trifle in such solemn affairs. But if the anger of a husband was in the nature of rage in which he had completely lost his balance of mind, divorce given by him will be void.
According to jurists Talaq can be of three kinds : (1) Semi-obligatory or Wajib, (2) Unlawful or Haram, (3) Loathsome. A husband is not permitted to divorce his wife for no reason!
Talaq is semi-obligatory on the husband if he is incapable of fulfilling conjugal rights by reason of impotency, etc., or cannot maintain his wife and incur [the] requisite expenditure or the wife has become apostate. In that case, the wife can demand [a] divorce and the husband is bound to give it. A divorce becomes unlawful or Haram if, as a result of it, the husband takes In adultery or a life of sin with the same woman or with some others. It also becomes unlawful if it becomes an instrument for denying lawful rights to others. A divorce is loathsome if it is given for no valid reason. It becomes commendable if the wife is immoral and has illicit connections, is insolent and ill-mannered and arrogant and has given up obligatory duties like prescribed prayers and fasting imposed by Islam.
There are two types of Talaq - one that is approved by Mohammadan Law and the other which is an innovation (bida't). In the approved form, it is again divided into hasan and ahsan. In the hasan form, the husband pronounces one sentence of repudiation during tuhr or [the] period of purity of the wife and repeats it in two successive periods of purity. In the ahsan from the husband, [he] should pronounce [it] during a period of purity and let the divorce become absolute after two successive periods of parity. This ensures that the action taken by the husband is not hasty [n]or ill-advised.
But if the husband makes the pronouncement while the wife is in menses, or if the divorce is expressed in irrevocable terms i.e., 'I divorce thee irrevocably' or by [the] pronouncement of three sentences at one and the same time 'I have divorced thee' or by saying 'I have divorced thee three times,' the result will be irrevocable divorce though it is viewed with disapproval as being an innovation (bida't).
If the parties wish to remarry after an irrevocable divorce, the law permits them to do so but lays down a condition[al] precedent. The woman has to marry another person and the second marriage has to be lawfully terminated after consummation and the period of probation on account of the second marriage should have expired. The purpose of this stringent condition is two-fold: The husband should realise that the divorce is not an ordinary matter but a very grave step and the second is that the woman gets an option whether to live with the second husband or with the first. The second husband cannot refuse divorce if the wife demands it.
In some cases the conduct of the husband will have the effect of divorce even though he does not pronounce it. This happens when he swears that he will have nothing to do with his wife and abstains from her society for four months. It is called Aila and its its legal effect is a single irrevocable divorce. But if the husband only expresses his dissatisfaction by comparing his wife to the back of his mother or any other female relative within the prohibited degrees of marriage, it will not have the effect of divorce but renders the husband liable to atonement (kaara) for his improper behaviour. It is called Zihar.
As stated before, the husband can confer on the wife [the] power of dissolving the marriage. The power thus given cannot be retracted. If he does so in exchange for money or property it is called khida.
Separation -- Besides the authority of the husband to divorce or the delegated authority of the wife to do so, a marriage can be dissolved, in certain cases, by a decree of a court. It is called furqat or separation. If the separation is ordered due to a cause imputable to wife, it has the effect of fiskh or annulment of the marriage. The difference [between] the two lies in liability to pay [the] Mehr or dower or observance of Iddat.
If a divorced woman is not having [her] courses due to young or old age or any other cause, the iddat is three lunar months. Rijaat or returning to the divorced wife Rifaat means restitution; in law it signifies a husband's returning or taking back his wife after divorce and restoring her to [her] former situation. This is permissible only if the wife has been repudiated by one or two revocable divorces, provided he does so before the expiration of her iddat.
Rijaat is of two kinds: one is express and other is implied. If the husband takes back his wife after expressing his desire in so many words, it is express. It is implied if he has carnal connection with her or takes conjugal liberties by viewing such parts of the body as are generally concealed.
In the event of divorce whatever has been given to the wife by her parents and whatever might have been given to her by her husband, all belongs to her and she can take them away with her. [In] verse 20 of Surah 4, God commands:
"If you wish to dispense with a wife for the sake of another, and if you have given her a talent of gold, do not take back aught of it. Would you have it by slandering her or charging her with an open sin."A foolish question is sometimes asked: Why [does] Islam grant to the husband alone the right to give divorce and not to the wife? The answer is obvious. The wife lives with and is maintained by the husband. If she was allowed to pronounce divorce, it would be she who would be leaving the husband's house and forgo everything that the law allows to a divorced woman.