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Islam and Divorce

By: Sayyid Mujtaba Musavi Lari

The first point this chapter must make is that divorce
is contrary to the laws of nature. The annulling of the
marriage-bond and the separation of those who should be
life-partners is a denial of the true nature of man as
created and as at his best. Any society in which divorces
become numerous, with the consequent break-up of
families, evidences its deviation from nature and her
requirements.

Psychologists, jurists and sociologists, concerned by
the effects of divorce on the moral and juridical
personality of those involved, have gone deep into the
subject, and given it as their considered verdict that
the ejection of a man and wife, let alone the children,
from the warmth of home-life into the cold unwelcome of
any substitute establishment they may find, deals a
mortal blow to their spirits and exposes their children
to the onset of moral ailments and psychic traumas
against which family life had immunised and protected
them. These scientists further hold, almost to a man,
that for these reasons divorce should be rendered
practically impossible by severe sanctions, except in a
few cases where some cause, generally from outside, like
the onslaught of insanity or criminality, makes an
exception to the rule.

But what should be done in cases of irreparable
breakdown of relationships? Must the partners stay in the
hell they have made? Or may a way-out be found for them?
Christianity says blankly. No divorce! But
Islam more realistically faces the consequences of
irreparable breakdown as a fact, and provides a way-out.
Every possible safeguard is laid down in the statute book
to prevent such a way-out by divorce being abused. But it
is clear that the bankruptcy of the relationship is only
worsened by forcing the partners to stick together; and
their misery is only increased. Hence divorce, though
stigmatised as the most loathsome of states in the
eyes of the Lord is made possible when it is the
better of two bad roads. It may even be that the very
separation removes the cause of the irritation between
man and wife, while the lapse of time in absence softens
the hearts and recalls the good points which had been
lost under the pains of discord; so that the couple seek
reunion, and in some cases actually start the same
partnership up again in pardon and joy.

Since Islam's aim is the firm establishment of
marriages, in the interests of this objective certain
liberties are denied. The right of divorce is given to
the man only, except in very exceptional cases. This is
to safeguard the best interests of women and save them
from falling victim to passions. Manifestly, if two
people both have the right to institute divorce
proceedings, the basis of confidence is made very shaky
on both sides. What better safeguard can there be,
therefore, than to give the right of divorce proceedings
primarily to the one who has by nature more subjection to
the powers of reason, and patience in the face of lack of
tenderness; and who stands to lose the sum he has given
as a marriage portion, as well as having to undertake the
financial burdens of the children's upbringing?

The differences in the constitution of a man and woman
are manifest. The head takes first place in the man's
decisions and the heart in the woman's. Reason and
emotion are the gifts given to each respectively in their
creation. As Dr. Alexis Carrel puts it: The
differences between men and women are, obviously, the
physical ones : and then, less obviously, the internal
ones like the dispositions of the nerves, the different
mental and emotional talents, both of which are of
supreme importance for the future of civilisation.
Partisans of Women's Liberation aim at a false conception
of equality,. as if that desirable condition meant
precise similarity and identity in upbringing,
employment, responsibilities and duties.
(Man, the Unknown pp. 84-87).

It is for these reasons that Islam's Feqh lays
down: Divorce is in the hand of the man. And
it is in consideration of the woman's delicacy of spirit
that the power of ending a shared life is not granted to
her. Islam, in addition to the manifold measures it has
taken to make it easier for people to enter the married
state and start families, also makes it more difficult to
break up the home. Everything possible is done to ensure
happy sound home-life, for the sake of the family's
members and of the society to which they belong. It is
therefore that it is written in Sura IV: Nisa'a
-The Women, verse 19. O men, live with
your wives in kindness and equity. If you dislike
anything in them, that may be the very point which God
will use to bring about much blessing.

In order to take away such feelings of dislike and
prevent their turning to hatred, and to remove their
discomfort, Islam awakens the man's conscience to live in
kindness and equity with patience, and not to cast off a
wife who is temporarily in disfavour, since it may be
that goodness and blessing may come through those very
wives; so that it would be stupid to end the relationship
hastily. As is written in the same Sura IV Nisa'a
-The Women, verse 128: If a wife fears
cruelty or desertion on her husband's part, there is no
obstacle to their arranging an amicable settlement
between them for which the wife must renounce some of her
rights. But if they return through reconciliation and
peace through such unselfishness, such a settlement is
better than separation and divorce.

The same dislike of divorce, as the most detestable of
extreme measures to be adopted only in the direst
emergency, is advanced by all Islam's greatest
jurist-consults and leaders, an attitude summed up in the
sentence in the book Mustadrak (Vol.
3, p.2): Any woman who seeks to be divorced from
her husband, save in cases of extreme necessity, falls
out of the grace and mercy of the Lord. Or again in
Vol. 3 of the Vassa'el (p.144):
Enter upon matrimony. but do not divorce your
wives, since divorce shakes the very throne Of God.

Islam fences in the man's power of divorce with many
limiting safeguards. A man may not put away his wife by
violence, harassment, injury or in a way which may drive
her to a life of immorality and corruption. Thus Islam
has for centuries surpassed anything yet achieved in
Western countries, in its initiative to remove
differences and restore understanding in family life.
This is particularly true of the family courts, where
well-meaning relatives have a large say and everything is
done to bring about reconciliation. Causes of differences
are deeply studied; and, as relatives, they are able to
go deep into confidential matters without either of the
couple feeling that their private secrets are being
exposed or their feelings excoriated in too public an
ambience. When the causes of the difference have been
brought into the light of day the members of the family
court exert all their powers of sincerity and' heart and
affection to bring about reconciliation and to quench the
fires of temper, exhorting both sides to unselfishness,
tolerance, and an effort to understand each other's point
of view. Since both man and wife respect these elders and
have full confidence in their compassionate affection,
they frequently accept the family court' s
recommendations for adjustments they should make in their
relationships and behaviour towards each other. As it is
written in Sura IV. Nisa'a-The Women
(verse 35): Should you fear that division will
arise amongst them, appoint an arbitrator on the
husband's side and an arbitrator on the wife's side from
amongst their relatives and send them to them. As soon as
they desire peace and reconciliation the Lord will
vouchsafe it to them for He is all-knowing and
all-wise.

Should the causes and roots of the initiation of
divorce proceedings prove to be too deep, so that there
is an irreparable breakdown in marital relationships, and
all the efforts of the relatives fail to bring about any
sort of hope of reconciliation, Islam in its realism
recognises that each party must take their own road. It
must be plain that such a family court is far more likely
to succeed than all the public courts of law or marriage
guidance clinics. In fact these only too often, being
strangers to the family and not privy to their inmost
secrets, merely increase the rift, because of the
clumsiness of their well-meaning efforts. A public court
has the duty to hear the evidences produced by both
sides; and then, in the cold dry heartless atmosphere in
which only exact truth and not mercy or clemency reigns,
decide which side has most right and give verdict
accordingly. It has neither the heart nor the spiritual
influence of relatives to press for reconciliation, and
cure the causes of the quarrel. In the Qur'an, Sura LXV
Talaq -Divorce ordains in
verse 2: Two just persons from amongst yourselves
shall bear witness to the evidence before God when a
divorce is settled. Without these two witnesses,
there is no legal divorce. An advantage of their
appointment is that they can exert every pressure of
affection and wisdom to avert the final catastrophe for
quite a period before reluctantly, if they have to do so,
agreeing that there is no other way out. They frequently
succeed in the better course.

It is further laid down that no divorce may be made
absolute save after the woman' s period of purification
after menstruation or childbirth is completed. This need
to wait awhile often proves a breathing-space in which
the man's feelings of tenderness once more assert
themselves over his irritations, and make him decide
against divorce.

Further when a man finds sharing his life with a
particular woman wearisome and irksome and decides on
divorce, this decision of his does not suffice in itself
to end their living together not does it become effective
until the expiry of the Iddat, i.e.
the period fixed by the Feqh during which a
divorced or widowed woman may not be married to another
man: and this period also gives a breathing-space which
frequently results in the man's change of heart and
decision to continue the married bond with the wife he
planned to divorce.

Finally, after the execution of the formalities for a
revocable divorce (Talaq-i-raj') a man
may not expel his wife from the home until the
termination of the period of the iddat
which may last anything up to three months, nor may the
wife quit their joint home except in a desperately
exceptional case during that period. As the Sura LXV
Talaq Divorce enacts
(verse 1): You may not expel women from their
houses, nor may they themselves quit, except if they have
been proven guilty of some open lewdness (during the
iddat period). These are limits set by
God. Should any man transgress these limits he does so at
the peril of his own soul, and to his own harm : for you
know not whether God may bring about some new situation
later (than the decision to divorce).

No formalities are necessary to abrogate a revocable
divorce during these months. A mere indication of desire
for renewal of the marriage relationship by the man
suffices.

Should the wife feel such hatred for her husband that
she repays him the statutory portion of marriage
settlement he had given her, or a portion of her own
property, that counts as her divorcing him; but this type
of divorce is revocable within the stated period, so that
if she changes her mind, and her husband agrees, he can
still take her back into their home.

By these many means Islam safeguards the holy estate
of matrimony from shipwreck on the rock of hasty
decisions onto which emotional storms may drive some
couples.

Islam had also done much to protect the wife's rights
and to save her from having to continue to live in an
unhappy environment. Among beneficent measures are the
following:

1. the wife can insert a clause in the marriage
contract ensuring that

(a) incompatibility of temperament

(b) maltreatment

(c) refusal of maintenance

(d) unannounced journeys

(e) the taking of another wife without consultation

are so provided against that if any of the above five
conditions is broken she can approach a lawyer to obtain
a divorce for her through the courts.

2. the wife can make it impossible for her husband not
to divorce her by being intolerably refractory,
vexatiously shrewish or deliberately incompatible in
relationships, familial, sexual or social;

3. the wife can resort to the courts if the husband
has been incapable or negligent in supplying her with
maintenance or has put obstacles in the way of her
obtaining it ; or if either partner deprives the other of
conjugal rights or fails in marital duties; the Muslim Qadhi,
if the woman' s plea is proved, can compel the husband to
treat her right, to be reconciled, to disburse the proper
sums, to confer her rights upon her in every form : and
if the husband proves recalcitrant, or refuses to obey
the judge's orders, the judge can then compel him to
divorce his wife;

4. the wife can enter a plea in the Islamic court and
obtain an injunction if the husband accuses her of
lewdness, unchastity or unfaithfulness, or denies his own
paternity of her child : if the husband cannot prove his
case the judge will order the husband to separate himself
from his wife in accordance with the relevant
legislation;

5. the wife may, in the case of intolerable revulsion
or aversion, in a simple fashion bring about a
discontinuance of their union by renouncing a large part
of her marriage portion, while freeing her husband from
his obligation to pay her alimony during the Iddat
breathing-space period;

6 the wife, if the husband absents himself so that no
news of him reaches her and she falls into financial or
other difficulties, can resort to the courts and request
a divorce. the judge will then perform the necessary
formalities to annul her marriage contract.

It is written in Sura II: Baqara
-The Heifer (verse 229): A divorce is
only permissible twice : after that the parties should
either hold together in equity or separate in kindness.
It is not lawful for you men to take back from your wives
any of that portion which you have given them except when
both parties fear that they would be unable to keep the
God-ordained limits. If you judges have reason to fear
that the parties will be unable to keep the God-ordained
limits, so decree, for there will be no blame on either
of them if she hands over a sum in exchange for her
freedom. These limits are God-ordained so do not
transgress them since that is to wrong yourself as well
as others.

In the Exegetical Collection it is related
in Volume I on page 167 that Ibn Abbas reported that
Jameel, wife of Thabit bin Qais, sought audience of the
Prophet and complained to him: O Apostle of God! I
cannot stand one moment more of life with Thabit bin
Qais, nor shall my head ever rest again on the same
pillow as his. After a pause she added : I am
not accusing him of a lack of faith or of moral and
marital virtues: but I am afraid that I myself will fall
into infidelity and blasphemy if I have to spend another
minute with him. I turned up the tent-skirting and my eye
fell on my husband in the middle of a crowd of other men.
He looked so ugly, a black-avised, dwarfish runt, and I
hated him, and I can't go on. ...! She ran on thus,
and the Prophet, after absorbing her outpouring, tried to
advise and admonish her, but she paid him no heed. So he
sent for Thabit bin Qais and laid the situation before
him. Thabit was deeply attached to Jameel, but
self-sacrificingly and for her sake agreed to take back
the marriage portion he had settled upon her - a
beautiful garden - and give her a khul' divorce.

There are cases in which resort to the court by the
wife is statutory. There are also cases in which she can
divorce her husband without legal aid, as in cases of
certain grave chronic diseases like leprosy or
elephantiasis; or because of the onset of lunacy, or of
physical defects which prevent marital intercourse, like
impotence or castration of the husband. For these Feqh
gives the wife haqq-i-faskh - the right to the
rescinding or annulment of the marriage, which faskh
is not the same as the khul' divorce, and does not
involve the same financial renunciations by the wife as khul'
does.

Germany and Switzerland, in Europe, also recognise
lunacy as grounds for the annulment of a marriage or for
separation. France does not admit either grave chronic
disease or lunacy as an adequate ground, and insists that
the healthy spouse must care for the leprous or lunatic
partner. Undoubtedly such longsuffering and
lovingkindness is highly praise worthy. while extolling
it as a counsel of perfection, Islamic realism prefers to
leave the partners free to choose separation or continued
care, according to their own conscience.

The West is suffering terribly from the laxity it has
allowed in the break-up of marriages and the violently
increasing incidence of divorce. These disasters are
really reactions to over-pressure by the churches, which
prohibited and condemned divorce one hundred percent for
many centuries, while the secular governments gave
recognition to it. For instance, divorce was totally
prohibited in France until the French Revolution of
October 1789. In 1804, in response to popular demand,
divorce was legalised; but in the following 12 years it
increased so appallingly that the religious bodies
brought renewed pressure to bear, until in 1816 the law
legalising divorce was rescinded though physical
separation of the parties was permitted. However, public
pressure built up again so much that in 1884 divorce
within certain limits was legalised once more.

Here follow the conditions on which in Western lands
divorce for wife and husband was legal until recent
times:

1. a criminal act committed by either party which
involves the penalty of life-imprisonment, exile, loss of
civil rights or temporary imprisonment with hard labour.

2. physical violence, mercenary prostitution, and a
few other similar criminal acts of the one partner
against the other.

3. adultery by either partner - though in such cases
the wife has the right of divorce only if the man commits
adultery with another woman in the house which belongs to
his wife and himself.

The following is the road by which a wife's infidelity
was proved : note it well! The infidelity of a wife
must be proved completely in the eyes of the police. The
wife or the husband plan to be in different places for
however a short time. They must agree about some third
person to be cited as co-respondent and this person must
be prepared to undertake this service. And then at the
stated hour the wife must be caught in flagrante delictu
with the third party', and the husband must have the
police on the spot to catch her out and so prove her
infidelity. Thus the police accompany the husband to the
trysting-place; and when they catch the wife in flagrante
delictu this is accounted adequate grounds for her
husband divorcing her. (The Law of Divorce and
Renewal of Marriage p.99).

See what a mass of further impurities the impurity
which wrought the need for divorce in the first place has
carried in its train. And this is the
civilised world of the West, which allows
women entry into public and political life, and with the
other hand takes away her honour, her femininity and the
high standards which it should be her privilege to set,
and turns her chastity into a mercenary bargaining-point.
It must be admitted that since I first put pen to paper
on this matter, efforts have been made in many Western
lands to eradicate the worst of these abominations.

America makes divorce easier for both parties. It is
not surprising, therefore, that American divorce figures
are the highest of all.

The wise tremble at the results : the wisdom of
Islamic dispositions shines by contrast like the sun in
darkness. At a conference in Strasburg, statistics of one
year's divorces which could be attributed to the
overwhelming desire of wives to be in the
fashion a la mode, comme il
faut and to keep up with the Joneses in
modernity of garb and guise were quoted as being:

1. in France, 27% of all divorces;

2. in Germany, 33%;

3. in Holland, 36%;

4. in Sweden, 17%.

Not every Parisienne is an excessive slave of fashion.
Nonetheless it is reckoned that the costs of unnecessary
purchases made by women simply to keep up with
mode come to no less than 5,000 tomans per
head (300-400 per head per annum). Yet all this
expenditure adds nothing to the woman's natural beauty,
moral stature, ease of spirit or calm mind!

European statesmen, and responsible thinkers
everywhere, are well aware of the danger, and fear it
acutely. All who possess the slightest sense of
philanthropy must seek the means of stemming the sweeping
tide of this flood of evil through the world.

Islam offers its regulations on family life,
matrimony, and the respective positions of men and women,
as a way which all nations might do well to follow
remembering that it was a Westerner Voltaire, who said:
The Prophet Muhammad reduced the unlimited harems
of unfortunate women maintained by pre-Islamic potentates
to a maximum of four wives: and his legislation on
marriages and divorces is the most noble and effective
ever conceived, formulated and enacted by any authority
at any time in the world's history, religious, political
or social.