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that "during the time of the Prophet, and during the
caliphate of Abu Bakr, and for two years during the
caliphate of 'Umar, the 'three divorces' meant only one
divorce, but Hadrat 'Umar said: that although people were
entitled to delay divorce, they did not wish to wait, and
so, seeing no obstacle in the way, we granted permission
for them to carry it out" (that is, he recognized
the validity of irrevocable divorce after pronouncing
divorce three times in one sitting).
The Holy Quran is itself unambigious in this matter:
"Divorce (shall be lawful) only twice, then (you
should) either keep her in fairness or send her away with
kindness." (2:229) After this, God, the Almighty,
says: "So if he divorces her (for a third time),
then she shall not be lawful to him until she weds
another husband." (2:230) We have tried to give a
brief account of the causes of divorce; if more details
are required, one may refer to the books of Islamic
jurisprudence..
* * * * *
There are also other causes of separation such as
defects and diseases in either party. If the man is
sexually impotent or becomes insane, the woman has the
right to divorce him. Certain diseases of a woman's
sexual organs entitle the man to divorce his wife. Zihar
and illa' (kinds of oaths of rejection of the woman on
the part of the man, common amongst the Arabs before the
coming of Islam) may also be a cause of separation.
The various kinds of "iddah" and other
allied matters are dealt with comprehensively in more
specialized works of fiqh. Suffice it to say that after
the death of the husband, it is compulsory for the wife
to observe "iddah" even if she is
"ya'isah" (past the menopause), or is a minor,
or has not had coition with her husband. In divorce,
"iddah" is compulsory in cases other than the
three mentioned above. In unlawful coition (adultery),
there is no 'iddah. The necessary waiting period after
the death of the husband is four months and ten days,
but, in case the woman is pregnant, she must wait until
delivery. This, of course, may be less or more than the
four months and ten days. The duration of the
"iddah" after the divorce is three months, and
for the pregnant woman, it is till delivery and for the
kaniz, or slave girl, it is half the period of the free
woman. If the divorce has not accrued twice before and
there is no 'khul', the husband can resume conjugal
relations at any time during the period of 'iddah. The
man no longer has the right to return to the wife unless
the two parties are willing to make a new act of marriage
(and only then under certain conditions). It is not
considered necessary by the Shi'a that two witnesses be
present for the resumption of marriage (as it is in the
case of divorce), but it is desirable; it is not
necessary moreover to recite anything specific. Such
words and signs as serve the purpose are sufficient.
As we have already made clear, the relationship of
marriage cannot be broken unless one or both partners
expresses dislike for the other; if the dislike is from
the side of the husband, he has the right to talaq,
through which he can, if he desires, divorce his wife;
and if the wife detests him, she can, on payment of some
money, demanded by the husband, (it may be equal to or
more than the dower) and after reciting the prescribed
words (sighah), be released from the bond of wedlock.
This latter is called khul' and it is only valid if all
conditions of divorce are fulfilled and there is very
strong ill-feelings on the part of the woman for the
husband. This is in accordance with what the Holy Qur'an
says:
"And if you fear that they shall not (be able) to
keep (themselves) within the limits (fixed) by God, there
shall be no sin on either of them about what she gives up
to get herself free (from the wedlock). These are the
limits ordained by God. Beware! Exceed them not."
(2:229)
The commentary of the ahlu 'l-bayt about this verse is
that it concerns the wife who says to her husband,
"I will not believe in your swearing; I will not
respect the divine code concerning marriage conduct as
far as you are concerned. I will not allow coition; and
will bring undesirable people into your house." This
obviously shows extreme hatred on the part of the wife
and there would then appear to be no possibility of
harmonious relations between her and her husband.
If, however, the feeling of dislike is equally strong
on both sides, any divorce which takes place is called a
"mubarat" divorce. This kind of divorce is
likewise only valid if all the conditions of talaq
(divorce) are fulfilled, but in this case, the husband
has no right to claim more than the dower money that he
has paid to the wife. In khul' and 'mubarat', the
divorces is irrevocable. After it, the husband cannot
assume conjugal relations. If however the woman takes
back the money she gave the husband at the time of
'khal", they may resume the conjugal alliance as
long as the period of "iddah" has not come to
an end.
There are also other causes of prohibition (for
instance, if the husband calls his wife 'mother' or
'sister' or likens her to either, the wife becomes
prohibited to him till he performs an act of atonement.
This is called zihar.These are explained in the relevant books. Such incidents
seldom take place today as they were particular to the
Arabs of pre-Islamic days.
9. Inheritance
After a person's death, the transfer of his or her
property, or rights, to another person by virtue of their
blood relationship or some other tie, is called
inheritance.
The living relative is called the "warith"
(heir), the deceased is called the "muruth"
(one who bequeaths), and the right is called
"irth" (inheritance). The relationship between
a person born of another, or that of two persons who are
born of a third, is called a blood relationship (nasab).
If the right of an heir is fixed in the Qur'an, he or
she shall be counted in the category of those who receive
inheritance as a matter of obligation, otherwise he or
she shall be entitled to receive inheritance by virtue of
blood relationship.
In the Holy Qur'an, the chief shares are six. The
description of the shares and the inheritors is as
follows:
1. The half-share (nisf):a) the husband, provided that the wife has no son.b) one daughter; here too the absence of a son is a
condition.c) a sister; here also the same condition applies
2. The quarter-share (rub'):a) the husband, when the deceased wife's son inherits.b) the wife, provided that the husband does not leave
behind a son.
3. The eighth share (thamin): the wife, when the
husband leaves a son.
4. The third-share (thulth). the mother, when there is
no son; also some inheritors from the mother's side.
5. The two-thirds share: two daughters when there is
no son.
6. The sixth-share (sudus): each of the father and the
mother in the presence of a son; also an inheritor from
the mother's side whether man or woman.
Those who are not included in the above settlements
shall be inheritors on account of their blood
relationship with the deceased, observing the rule that
the share of the man is double that of the woman.
The heirs who are in a state of blood relationship
with the deceased are divided into three groups:(i) the mother, the father, sons, daughters (or failing
these, their descendants).(ii) grandfathers, grandmothers, brothers and sisters (or
failing this, their descendants) (iii) paternal uncles and aunts, maternal uncles and
aunts (or failing this, their descendants)
The universal principle is that the presence of
members of group (i) prevents members of group (ii)
presents members of group (iii) inheriting. Thus, the one
closer in blood-relationship acts as a barrier to the
remoter, and this principle also holds within each group.
The only really significant difference between the
Shi'ah and Sunni schools of jurisprudence in the laws of
inheritance concerns the principles of "
"awl" and "ta'sib" 3. The Imamiyah
jurisprudents have proved by means of ahadith from the
Ahlu'l-bayt (a.s.) that there is no 'awl or ta'isb in the
matter of inheritance. This was also the opinion held by
the great companions of the Holy Prophet. The well-known
statement of Ibn 'Abbas in which he speaks against 'awl
and ta'sib can be taken as authoritative. There are also
other grounds of proof for negating these two principles.
10. Endowments (waqf); Gifts (nibah)
and Charities (sadaqah):
If someone owns some property and wishes to relinquish
possession of it, his transference of it may be such that
it is final. That is, now only will it go out of his
possession, but he can never claim it back, whether,
e.g., he frees a slave, or gives up possession of a house
or some land to make it a place of worship, a mosque, or
a place for use in pilgrimages. By such an act, the
property can never again return to the ownership of that
person again. In such a case, in fact, the item can never
again be anyone's property.
On the other hand, the person may relinquish
possession of some property which then passes into the
hands of another. Such a transaction may be based on
exchange or a monetary transaction, it may be part of a
peace treaty, etc.
Thirdly, he may relinquish ownership without any
exchange taking place, but solely with regard to the
world to come and recompense therein. This is what is
commonly known as "sadaqah", and this is in
turn divided into two parts:
a) if the property is durable and the donor's
intention is that it should last and any profits from it
used in good acts, it will then be called an endowment
(waqf);
b)if it is not durable or the donor has not stipulated
any conditions for its being permanently kept and
utilised, it will then be called sadaqah proper
(charity).
Fourthly, if possession of some property is handed
over to someone else without there taking place any
exchange and without any thought of Divine recompense
(e.g. for the sake of friendship), the donation is called
hibah (gift). If, however, some exchange takes place,
e.g. one man gives another his shirt on the condition
that the second man gives a book to him, it is called
" 'iwad" (a consideration). ,If the second
party accepts, the gifting will become binding and
neither party will have the right to take his property
back, except if they both agree to break their agreement.
It is necessary that the something gifted must be in the
possession of the donor. If the gifting was without any
'iwad, the item (s) may be taken back. Naturally, this
does not apply to gifts given between close relatives or
between husband and wife, or if the item(s) is (are) lost
or damaged.
This contrasts with the situation in the case of
sadaqah; for here, once possession has been relinquished,
the thing(s) cannot be taken back. The declaration of
intention to donate is enough to make the taking back
unlawful. This is called the sighatu 'l-waqf, and the
property then passes to the trustee, who may be the
original owner himself. It may not be taken back, sold,
divided, pawned, or otherwise pledged, whether it be a
"waqf khass" (special endowment), for
descendents, for example, or a "waqf 'amm"
(general endowment), for the poor, the needy, a mosque or
a school.
There are, of course, some occasions when exceptions
can be made and the trust property can be sold. This may
happen, for instance, if the property has become damaged,
but the damage should be to an extent that prevents the
property from being of any use. The waqf property can
also be sold if there is serious fear of its being
destroyed, in which case it should be such that no profit
would accrue from it. The property can also be sold if
there are acute differences among those who are in
possession of it and there is danger of loss of life and
property or loss of honour and respect.
In spite of all these conditions, no one can take the
decision to sell the property or divide it. The decision
rests entirely with the hakimu "sh-shar" (the
mujtahid) The hakimu 'sh-shar" alone has the right
to pass the necessary decree after assessing all the
prevailing conditions. But it is a pity that in the
matter of endowments, people have become extremely
apathetic. They pay no attention to the limitations of
the Divine Law. God is aware of all their intentions and
actions.
This was a brief account of sadaqah as it is generally
understood.
11. Passing Judgement (qadawah)
The rank of qadi (judge), and that of the
administrator of justice have great importance, and in
fact these are ranks worthy of great respect. In the
Imamiyah sect, the responsibility of the judiciary is
considered an adjunct of the prophethood, the imamate and
the state in general.
God, the Almighty has said, "O David. We have
appointed you vicegerent in the earth; so judge between
the people with justice." (38:26) And again He says,
"By the Lord (O Prophet), they believe not until
they have set you up as their judge in all that they
dispute about among themselves, and thereafter find not
in their selves any vexation against what you decide, and
submit with total submission." (4:65)
The qadi and judge are the nawamisu' th-thalathah
(custodiansof three things - life, property and honour).
That is why there are serious dangers in this rank at
every step, and if the texts of the traditions are
carefully studied, we shall find that it is so exalted a
rank that even the mountains seem to be insignificant
before it.
Hadrat Amir al-Mu'mimin (a.s.) says, "The qadi
should be considered to be on the brink of Hell. The
qadi's tongue is between two balls of fire. O Shurayh,
you are sitting at a place where sits either a prophet or
his "wasiy" (successor) or else some wicked
person." It is stated in a tradition of the Prophet
(s.a.w.), "If somebody is made a qadi it means that
he has been slaughtered without a knife." There are
many traditions of this nature.
If a ruling which a "faqih" (expert in
jurisprudence) deduces from proofs concerns some general
principle, it is called a "fatwa"; for
instance, it is unlawful to use someone else's property
without his or her permission, the wife of a man is
lawful to him but she is unlawful to a stranger. But if
the order pertains to some particular case it is called a
judgement (qada). for instance, "This woman is the
wife. "This woman is a stranger." "This is
Zayd's property. "That is the property of such and
such a person."
Whether it is a "fatwa" or a
"qada", both of them are duties of a just
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