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’s (sws) time, the procedure that has been adopted for this purpose
is that the woman then approaches the court. In our times, 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 of divorce to
the woman. However, such a 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.
(Translated by Asif Iftikhar) |