Divorce or Dissolution of Marriage [Electronic resources] نسخه متنی

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Divorce or Dissolution of Marriage [Electronic resources] - نسخه متنی

Behishti; Bahonar

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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)

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