In my live interview in “NewsEye” with Dawn TV last month,
I was unaware that Q.4:34 had been cited earlier to critique the Council of
Islamic Ideology (CII) recommendations on divorce. Any sound exegesis will show
that this verse points out why a husband who fulfils his responsibilities
(specifically his financial responsibility) deserves to be obeyed and respected
by his wife.
How this verse relates to the divorce procedure is a fascinating mystery to me.
It seems the critics of CII recommendations had either not read the
recommendations or had simply misunderstood their implications. The impression
that they seemed to give was that if these recommendations are accepted, a woman
may just wake up one day and say to her hubby: “You see, it so happened that
last week I suddenly fell for this other guy in my office, and now I don't
particularly feel attracted to you anymore. So, won’t you please be a good boy
and accept this last piece of my belle-lettres, which means that I am giving
you the boot and you now have 90 days to buzz off.” This is a classic case of
the fallacy of irrelevant conclusion. This is not what the CII has recommended.
Now imagine another situation: a wife -- who has been
battered, shattered, clobbered, and wronged in the worst possible way and,
therefore, under all laws of God and humans, has the moral and ethical right to
request the court for divorce and the right to obtain one -- goes to a court of
law, files her case, and returns to the “hallowed sanctity” of her husband’s
home. In our society, if she doesn't already belong to a rich, powerful family
or is not a direct descendent of Bruce Lee or Superman, we all know what is
likely to happen. In many cases, she might not even get a chance to “sneak out”
of “her home” again. In consideration of the situation, if the court, after she
has sent her request, summons the husband and he uses the flimsiest of excuses
(so effective in our society if you have the right connections) to delay the
matter unnecessarily while the court is fully aware of the general tendency in
our society of how perfect a gentleman to his wife he’s likely to be in the
meantime, would it be against any verse of the Qur’ān or any directive in the
Sunnah if the court also informed him of its decision on non-compliance of the
court order: “If you don’t turn up to respond to the complaint in a reasonable
period of time (say 90 days), the decision will be taken in absentia”? In such
cases, the decision often goes against the person who is absent without any just
or reasonable cause. On the other hand, if the person turns up with a reasonable
cause to have matters settled first, he has all the right to demand that
proceedings for resolution of various related matters be initiated. Now let’s
suppose that, in consideration of our social malaise, the Parliament enacts a
law prescribing a similar, general procedure. The big question here would be:
Has the Qur’ān or the Sunnah prescribed any specific procedure for the woman to
obtain divorce?
We all know that the Qur’ān has given a husband the right
to divorce his wife and the wife the right to ask for it. But what is she to do
if the husband refuses to grant her the divorce (even if she genuinely deserves
it)? Since the Qur’ān does not spell out this detail, the Muslim jurists grant
her the right to approach the imām (Head of the State) to whom the matter will
then be referred. The court of law actually acts on behalf of the imām, who
speaks on behalf of the Muslim collectivity (now represented through the
parliament in matters pertaining to the enactment of law). In usual
circumstances, the court of law will quite obviously give its verdict separately
on each individual request. But then, does not the imām have the right to make
general laws for deviant situations that pervade the society? For example,
despite some contrary verdicts by the Prophet (sws) himself, Sayyidinā ‘Umar (rta)
decreed that three pronouncements of divorce made at the same time should not be
counted as one but as three.
He took that decision owing to what he described as a change in people’s
attitude.
In case of the divorce procedure in question, no specific detail is given in the
foundational text and the question relates to the judicious and just application
of the court’s given right to give a verdict. A fortiori, this is clearly a
matter which the foundational sources have left for ijtihād (independent
reasoning). The recommendations by the CII do not take away the husband’s right
to divorce his wife; they do not grant the wife the right to divorce the
husband; they do not circumvent the wife’s obligation to request the state for
divorce should the husband refuse to grant it. These recommendations prescribe
the procedure for the State response to her request in the given circumstances
to ensure that there is no or little possibility of exploitation of women that
generally results owing to various social, cultural, legal, and administrative
factors in our society.
A person might argue that these recommendations are unwise;
for example, someone might hold that 90 days are not sufficient to resolve
financial or other matters in a divorce case and recommend more time. However,
how the recommendations are a negation of the sharī‘ah is inexplicable. In this
context, let us consider the views of the CII as expressed by one of its
members, Jāvīd Aḥmad Ghāmidī:
Marriage is not just about bringing the physical
relationship between man and woman within the bounds of law. It is a contract
that lays the foundation of a family. This institution of family is an
indispensable human requirement. Without it, many basic physiological,
psychological, and social needs remain unfulfilled. The institution is founded
on a woman’s decision to accept her bond with a man not as his friend but as his
wife. The decision implies that she has accepted the man as the head of the
institution that their matrimonial bond will create. Just as this institution
makes it incumbent upon the man that he take the financial responsibility of his
wife and children, it also entails that, in the unfortunate case of the need for
divorce, the woman not take any step to end marriage without first resolving
matters with the man. Therefore, in a situation requiring dissolution of
marriage, she will not divorce the husband; she will ask for divorce. In usual
circumstances, it is expected that a decent husband will not refuse his wife’s
request in a situation where no reasonable possibility of reconciliation exists.
However, if the husband does not accept her request, what is the woman to do?
The sharī‘ah does not answer this question; instead, as with many other matters
related to life, it leaves this matter also to our discretion (ijtihād). Since
the Prophet time (sws), the procedure that has been adopted for this purpose is
that the woman then approaches the court. In our times [in societies as ours],
this step is often fraught with innumerable difficulties for the woman. One
suggestion to resolve this problem is that the man be asked to delegate his
authority in divorce to the woman. However, such demand is again not easy to
make in our society, especially on the occasion of marriage. Furthermore, such
stipulation also negates the spirit and the wisdom in not giving a woman the
right to divorce her husband. Therefore, in our opinion, a law should be enacted
at the level of the State that, after a woman’s request for termination of
marriage, if the husband refuses to divorce her in the next 90 days, the
marriage will stand dissolved; if there are any unresolved matters pertaining to
wealth or maintenance, either party may approach the court for resolution.
Another possibility is that, in the current marriage form, the section for the
option of transferring the right of divorce to the wife be replaced with the
following statement:
“This marriage contract takes effect with the proviso
that, if the wife ever makes a written request for divorce, the husband shall be
obliged to divorce her within 90 days. If he does not do that, it shall be
deemed that an irrevocable divorce from his side has taken effect. Thereafter,
if the husband demands the return of any property or wealth that she received
from him, she shall be obliged to return him that property or wealth except her
mahr (bridal gift that the husband gives as a token of his commitment) and
maintenance. In case of any difference of opinion regarding the return of this
property or wealth, she shall refer the matter to the court.”
It is expected that this form will save the woman and her
family the embarrassment of laying down this condition as a demand from their
side on the occasion of the marriage ceremony. If and when the divorce
proceedings are initiated in accordance with this stipulation, the husband will
get a 90-day period to convince the woman [and her family] to withdraw her
request. The divorce, nevertheless, will be from the husband’s side, and,
therefore, the sanctity and the wisdom in the Divine law will be preserved.
As for the conditions generally prescribed by the jurists
for dissolving marriage on the woman’s request (as cruelty, impotence,
irresponsibility, etc.), it is interesting to note that the Prophet (sws)
himself and decided a case of the wife of Thābit Ibn Qays primarily on the
grounds of her personal dislike of her husband.
On the other hand, the Prophet (sws) refused the request for divorce by the wife
of ‘Abd al-Raḥmān Ibn al-Zubayr al-Quraẓiyy when the Prophet (sws) confirmed
that she had falsely accused her husband of impotence.
The Hadīth sources also indicate that she was a rebellious wife, who just wanted
to return to her previous husband.
These examples show that the court can give different verdicts on the same
matter in consideration of the varying circumstances. In CII recommendations,
since the husband has sufficient time to bring any pertinent matter to the
court’s notice for a stay, the possibility of reversing the decision in the
husband’s favour is not precluded.
It is ironic how some critics from the traditionalist
quarters will so easily accept the resilience of their own ‘ulama (religious
scholars) in matters pertaining to ijtihād, but will immediately jump to the
conclusion that any other scholar involved in the same exercise, regardless of
how competent or sensible that person may be, has negated the directives in the
foundational sources of Islam. For example, one can well imagine what would have
happened if it had been the CII that had recommended that, contrary to the
general Ḥanafī position, apostasy by the wife should not dissolve the marriage
in our times. But, no problems here as it was Mawlānā Ashraf ‘Alī Thānawī (d.
1943) who made this suggestion in British India where the apostate-wife could no
longer be forced, in accordance with the dominant Ḥanafī view, to reconvert to
Islam and remarry the same spouse.
Nevertheless, the CII has now done something so abominable that this body,
rather than marriage of a helpless woman, should be dissolved. Prof. Dr Khalid
Masud, despite being one the most accomplished Pakistani scholars of
international repute, must be replaced by a traditionalist muftī to safeguard
the frontiers of Islam. Otherwise … well, in the end, argumentum ad baculum
(argument by the stick) is the most well-known and well-publicized form of
reasoning in our society. We have all seen in the recent Lāl Masjid tragedy how
helpful such approach can be to Islam and the Muslims. And speaking of the
religious champions of chauvinism who often quote (but seldom understand) Q.4:34
to assert male dominance, I wonder if their remarkable hermeneutics might lead
them to infer from the same book that on the Day of Judgment, the Pakistani
Muslim woman might stand up and ask: “For what sin was I wronged?”
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