يَاأَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمْ النِّسَاءَ
فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ وَاتَّقُوا اللَّهَ
رَبَّكُمْ لَا تُخْرِجُوهُنَّ مِنْ بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَنْ
يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ وَتِلْكَ حُدُودُ اللَّهِ وَمَنْ يَتَعَدَّ
حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ لَا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ
بَعْدَ ذَلِكَ أَمْرًا فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ
أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوَى عَدْلٍ مِنْكُمْ
وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ ذَلِكُمْ يُوعَظُ بِهِ مَنْ كَانَ يُؤْمِنُ
بِاللَّهِ وَالْيَوْمِ الْآخِرِ وَمَنْ يَتَّقِ اللَّهَ يَجْعَلْ لَهُ مَخْرَجًا
وَيَرْزُقْهُ مِنْ حَيْثُ لَا يَحْتَسِبُ وَمَنْ يَتَوَكَّلْ عَلَى اللَّهِ
فَهُوَ حَسْبُهُ إِنَّ اللَّهَ بَالِغُ أَمْرِهِ قَدْ جَعَلَ اللَّهُ لِكُلِّ
شَيْءٍ قَدْرًا وَاللَّائِي يَئِسْنَ مِنْ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنْ
ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ
وَأُوْلَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ وَمَنْ يَتَّقِ
اللَّهَ يَجْعَلْ لَهُ مِنْ أَمْرِهِ يُسْرًا ذَلِكَ أَمْرُ اللَّهِ أَنزَلَهُ
إِلَيْكُمْ وَمَنْ يَتَّقِ اللَّهَ يُكَفِّرْ عَنْهُ سَيِّئَاتِهِ وَيُعْظِمْ
لَهُ أَجْرًا أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُمْ مِنْ وُجْدِكُمْ وَلَا
تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ وَإِنْ كُنَّ أُولَاتِ حَمْلٍ
فَأَنْفِقُوا عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ فَإِنْ أَرْضَعْنَ لَكُمْ
فَآتُوهُنَّ أُجُورَهُنَّ وَأْتَمِرُوا بَيْنَكُمْ بِمَعْرُوفٍ وَإِنْ
تَعَاسَرْتُمْ فَسَتُرْضِعُ لَهُ أُخْرَى لِيُنفِقْ ذُو سَعَةٍ مِنْ
سَعَتِهِ وَمَنْ قُدِرَ عَلَيْهِ رِزْقُهُ فَلْيُنفِقْ مِمَّا آتَاهُ اللَّهُ
لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا مَا آتَاهَا سَيَجْعَلُ اللَّهُ بَعْدَ
عُسْرٍ يُسْرًا(٦٥ :١-٧)
O Prophet! When you people divorce your wives, divorce
them according to their waiting periods, and count accurately this waiting
period, and fear God your Lord. [During this waiting period] turn them not out
of their houses, nor should they [themselves] leave, except in case they are
guilty of some open lewdness. And [remember] these are the bounds set by Allah
and those who transgresses the bounds of Allah, it is they who wrong their own
souls. You know not that God might thereafter create new circumstances. [Divorce
your wives in this very manner]. Thus when they approach the end of their
waiting period, either take them back on equitable terms or part with them on
equitable terms. And [whether you want to keep them or depart from them, in both
cases] call to witness two honest men among you. And [O you witnesses] establish
this testimony for God. It is this thing to which those are exhorted who believe
in God and in the Last Day. And [if] those who fear God [encounter any
difficulty], God will find a way out for them and will provide them from where
they cannot even imagine. And those who put their trust in God, for them Allah
is enough [to help them]. God is sure to bring about His designs. And God has
set a measure for all things. And those of your women who have ceased
menstruating and they also who have not menstruated [in spite if reaching its
age], if you have any doubts about them, then their waiting period is three
months. And the waiting period of pregnant women is till they deliver the child.
God will ease the hardship of [those among you] who fear Him. Such is the
directive of God He has revealed to you. He who fears God, God shall brush away
his sins and shall richly reward him. [During the waiting period] lodge these
women in your homes according to your means. And do not harass them to make life
intolerable for them. And if they are pregnant, maintain them until they deliver
the child. And if they suckle your [child], give them their remuneration and
decide this matter according to the custom after mutual consultation. And if you
find yourselves in difficulty, another woman will suckle [the child]. Let the
man of means spend according to his means and the man whose resources are
restricted, spend according to what God has given him. God does not burden a
person with more than He has given him. [Rest assured], after some difficulty,
God will soon grant relief. (65:1-7)
If it becomes impossible for a husband and wife to get
along with one another, there exists in divine religions the option of
separation from one another. In religious parlance, this separation is called ‘طلاق’
(t*alāq:
divorce). As per the traditions of Abraham’s creed, the Arabs were fully aware
of it in the Jāhiliyyah period. No doubt certain deviations and innovations had
found their way in their concept, however, a study of their history reveals that
the law of divorce that existed in their society was almost the same as what
Islam presented. In the above quoted
verses of Sūrah Talāq, the Almighty has revived with certain additions and
amendments that very law. Certain details of this law are also mentioned in
Sūrah Baqarah and Sūrah Ah*zāb,
but a little deliberation shows that the basic verses in this regard are those
of Sūrah Talāq stated above.
Preceding Divorce
Before circumstances reach an extent that divorce remains
the only option, it should be the intense desire of every person to keep in tact
the marital relationship as far as possible. On these very grounds, in Sūrah
Nisā the Almighty has permitted the husband to reprimand his wife if she is
guilty of challenging his authority. However, if all efforts of reformation fail
and it becomes evident that this relationship cannot remain intact, the Almighty
has asked Muslims to make a last ditch effort: the relatives of the couple,
their clan and tribe and other well wishers should come forward and use their
influence to set right the situation. The procedure outlined by the Qur’ān in
this regard is that one arbitrator should be appointed from the husband’s family
and another from the wife’s family. Both of these arbitrators should try to
reconcile the two in the hope that what the husband and wife could not
accomplish themselves would be accomplished by the elders and well wishers of
the two families. The Qur’ān says:
وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِنْ
أَهْلِهِ وَحَكَمًا مِنْ أَهْلِهَا إِنْ يُرِيدَا إِصْلَاحًا يُوَفِّقْ اللَّهُ
بَيْنَهُمَا إِنَّ اللَّهَ كَانَ عَلِيمًا خَبِيرًا(٣٥:٤)
If you fear a breach between them two, appoint [two]
arbitrators, one from his family, and the other from hers; if they wish for
peace, Allah will create harmony between them: for Allah has full knowledge, and
is acquainted with all things (4:35)
The last words of the verse subtly urge the couple to
benefit from this scheme. If, instead of severing ties, they wish to create
harmony among themselves they should keep in mind that the Almighty is
benevolent. He will help them in redeeming the situation.
The Right to Divorce
The sūrah begins with the words: ‘إِذَا
طَلَّقْتُمْ النِّسَاءَ’ (when you [people] divorce your wives). In this
verse, in the subsequent ones also and in other verses of the Qur’ān where the
directive of divorce is mentioned, the husband has been regarded as the
initiator of divorce. Moreover, in 2:237, the words ‘ِبيَدِه
عُقْدَةُ الِّنكَاح’ (in his hands is the knot of marriage) are used for
the husband. These words bear clear evidence to the fact that the Sharī‘ah has
granted the husband the right to divorce. The reason for this is quite obvious.
A husband has always been charged with the responsibility of protecting his wife
and providing for her because God has given him the natural ability to fulfill
these responsibilities. On these very grounds, the Qur’ān has regarded him to be
the Qawwām (head of the family) and explicitly stated: ‘وَ
لِلِّرجَالِ عَلَيْهِنَّ دَرَجَه’ (and the husbands hold a degree of
superiority over them). Consequently, both the nature of the responsibility and
the regard for his position entail that he be given the right to divorce. It is
an understood fact that the institution of family is an essential requirement of
a human being. Just as entrusting two parties with different responsibilities
but granting them equal rights to establish an organization or to dismantle it
cannot keep that institution intact, the familial institution also has similar
requirements. If a lady, in lieu of her own protection and subsistence and those
of her children, has given herself in the custody of a man through a contract,
then the right to annul this contract cannot be given to the lady without the
permission of the husband. This is in accordance with justice and fairness. If
any other option is adopted, then this would be against justice, and would
inevitably result in the dismemberment of the institution of family.
As a consequence of the above analysis, if a wife wants to
separate from her husband, she cannot divorce him; on the contrary, she will
demand divorce from him. In general circumstances, it is hoped that every
gentleman, seeing that there is no other way out, would accept this demand.
However, if this does not happen to be the case, a wife can turn to the court of
law. When the state of affairs deteriorates to this extent, then there is a
precedence set by the Prophet (sws) in this regard for the judicial forums: If
it becomes certain that a wife has great aversion to her husband and does not
want to live with him any more, then the court should order the husband to
divorce her and if he wants he can have back all the wealth and property that he
gifted to her except the mahr (dower).
Ibn ‘Abbās narrates that the wife of Thābit Ibn Qays once
came to the Prophet (sws) and said: ‘O Messenger of Allah, I do not have any
complaint regarding his character and person; however, I fear that I will lose
my faith’. When the Prophet heard
this complaint, he said: ‘Would you return his orchard?’. She showed her
consent. At this, the Prophet (sws) directed Thābit to accept the orchard and
separate her by pronouncing one divorce sentence.
The Procedure of Divorce
Whether a husband divorce his wife because of his own
decision or does so at the demand of his wife, in both cases the procedure of
divorce prescribed by the Sharī‘ah is as follows:
1. Divorce should be given keeping in consideration the ‘Iddat (waiting period).
This means that it is incorrect to divorce a wife in a manner that separates her
instantaneously. In all instances, it must be given so that it becomes effective
after a specific waiting period. ‘Iddat (waiting period) in religious parlance
means the period in which a divorced or widowed lady cannot marry any other
person. Since this period has been primarily fixed in order to ascertain whether
a lady is pregnant or not, therefore it is necessary that divorce be given after
a lady has completed her menstrual cycle in that period of cleanliness in which
the husband did not have any sexual intercourse with his wife. Every Muslim
should be fearful of his Lord about emotions of anger which on such instances do
arise against the wife. Consequently, when the Prophet (sws) was told that
‘Abdullāh Ibn ‘Umar had divorced his wife during her menstrual cycle, he was
really annoyed and remarked:
مره فليراجعها ثم ليمسكها حتى تطهر ثم تحيض ثم تطهر ثم إن شاء
أمسك بعد وإن شاء طلق قبل أن يمس فتلك العدة التي أمر الله أن تطلق لها النساء
(بخارى رقم:
٥٢٥١ )
Ask him to take her back and keep her in wedlock until
she is through with her menstrual cycle and then once again passes through this
cycle and then is through with it. After this, he can either detain her [in
wedlock] or divorce her before having sexual intercourse with her. Because it is
this beginning of the ‘Iddat keeping regard of which the Almighty has directed
[believers] to divorce their wives. (Bukhārī, No: 5251)
The Almighty has directed Muslims to carefully keep count
of the period of ‘Iddat. Since divorce is a matter of great consequences, and a
lot of legal issues arise for the man, the woman, their children and their whole
family, it is essential that the time and date of divorce be properly accounted
for. Moreover, it is essential that at the time of divorce, the state of the
woman, the date when the ‘Iddat commenced and the date when it will end be kept
track of. Whether the whole issue is ultimately settled within the family or has
to be taken to court for settlement, in both cases it is this period of ‘Iddat
which dictates the time span within which a husband can revoke his decision and
take back his wife (rujū‘). Similarly, it is this period which will determine
the time for which the husband is liable to keep his wife in the house and
provide for her. Likewise, the time when the inheritance is to be given to her
and the time when the divorce process is complete and the lady is free to marry
again shall be ascertained from the ‘Iddat.
2. Until the ‘Iddat period expires the husband has the
right to take back his wife. The Qur’ānic words: ‘فَإِذَا
بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ’
(thus when they approach their term appointed, either take them back on
equitable terms or part with them on equitable terms (65:2)) refer to this fact.
The Almighty has explained in Sūrah Baqarah that just as the right to give
divorce rests with the husband, the right to take back the wife also rests with
him so that he be granted a superior status in administering the institution of
family which is necessary to maintain order in it.
This of course does not mean that only husbands have rights
and wives have none. People must be aware that just as wives have certain duties
regarding their husbands, they also have some rights. Man is not ignorant of
these rights; he is well aware of them. Consequently, it is the obligation of
the husbands that besides asking their wives to fulfill their obligations
towards them, they must also keep in mind their rights:
وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَلِكَ إِنْ
أَرَادُوا إِصْلَاحًا وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ
وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ وَاللَّهُ عَزِيزٌ حَكِيمٌ (٢ :٢٢٨)
And if their husbands wish to reform affairs, they [—
the husbands— ] have greater right to take them back [in this waiting period]
should they desire reconciliation. And [this is because there is no doubt that]
just as according to [society’s] norms these women have obligations [towards
their husbands], they also have rights, although men [as husbands] have a status
above women. [This is the directive of Allah] and Allah is mighty and wise.
(2:228)
Since there is a high probability that in such affairs one
is bound to be governed by emotions and extreme reactions and as a result may
commit one blunder after another, these two attributes – Mighty and Wise –
mentioned at the end of the verse serve a special purpose. While referring to
this purpose, Imām Amīn Ah*san
Is*lāh*ī writes:
The Almighty is ‘Azīz (Mighty); hence, it is only His
right to give this directive and He is also H*akīm (Wise); hence, whatever
directive He gives is based on wisdom. Men should always submit to His
directives without any hesitation whatsoever. If they oppose His directives,
this would amount to challenging His honor and only hasten to invite His wrath.
Similarly, if they are naive enough to think that they are more wise and
sagacious than the Almighty, they will be responsible for ruining the law and
system of the society with their very own hands.
3. If the husband does not take back her wife within the
‘Iddat period, then once this period expires the relationship of wedlock will
cease to exist. Consequently, the husband is directed to make up his mind once
this period is approaching its end. He should decide if he has to revoke his
decision and take her back or is to persist with his decision and sever his
relationship with her. In both cases, the Almighty has directed him to follow
the ma‘rūf (good conventions) of the society. The Almighty comforts them by
saying that those who remain fearful of Him should rest assured that they will
be worthy of His help if they encounter any difficulty.
It is pointed out in Sūrah Baqarah that if the husband
decides to revoke his decision and take back his wife, then this should not be
with the intention of hurting or harassing her. The verse of Baqarah quoted
above refers to this aspect in the words ‘إِنْ أَرَادُوا
إِصْلَاحًا’. The revocation should not be to satisfy one’s desire by
tormenting the wife. In fact, the underlying reason for this revocation should
be to lead a congenial marital life, other wise this would just be an act of
oppression which shall greatly displease the Almighty in the Hereafter:
وَإِذَا طَلَّقْتُمْ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ
فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ وَلَا تُمْسِكُوهُنَّ
ضِرَارًا لِتَعْتَدُوا وَمَنْ يَفْعَلْ ذَلِكَ فَقَدْ ظَلَمَ نَفْسَهُ وَلَا
تَتَّخِذُوا آيَاتِ اللَّهِ هُزُوًا وَاذْكُرُوا نِعْمَةَ اللَّهِ عَلَيْكُمْ وَمَا
أَنزَلَ عَلَيْكُمْ مِنْ الْكِتَابِ وَالْحِكْمَةِ يَعِظُكُمْ بِهِ وَاتَّقُوا
اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِكُلِّ شَيْءٍ عَلِيمٌ (٢ :٢٣١)
And when you have divorced your wives and they have
reached the end of their waiting period, either retain them with kindness or let
them go with kindness. But do not retain them with the intention of harm so that
you commit excesses against them. And [you should know that] whoever does this
wrongs his own soul. Do not make a mockery of Allah’s commandments. Remember the
favors He has bestowed upon you, and the Law and the wisdom which He has
revealed, of which He instructs you. Fear Allah and know that He has knowledge
of all things.
While explaining this verse, Imām Amīn Ah*san
Is*lāh*ī
writes:
In the previous verses, the
implied meanings were stated positively, but here they are stated negatively in
order to caution cruel husbands who could misuse the right of divorce as well as
the right to revoke it in the ‘Iddat period. Such an attitude, of course, is
outright injustice and amounts to playing with the Sharī‘ah. Those who are bold
enough to do this may think that they are oppressing their wives; however, in
fact, they wrong their own selves. This is because those who toy with divine
directives and exceed the limits set by the Almighty shall have to face a
grievous punishment.
In the end, a reminder is sounded regarding the
blessings of the Almighty: He has made Muslims a chosen Ummah and sent a Prophet
to them from among them to guide them. He has also blessed them with a book to
guide them regarding good and evil. It is composed of the precepts of faith and
law. If they repay this great favor by violating the limits of the Almighty and
toying with His Sharī‘ah then they should contemplate the consequences of such a
behavior. The verse goes on to warn Muslims to remain fearful of the Almighty
and to keep in mind that He has knowledge of all their deeds. In other words, He
is granting respite to people in spite of their mischief. However, once He
decides to catch them, no one will be able to run away from His grasp.
Similarly, if a husband decides to
part ways with his wife he is directed to do so in a befitting manner. The words
used in 2:220 are ‘تَسْرِيْحٌ بِاِحْسَان’. In this
regard, the following directives have been given:
Firstly, whatever amount of wealth, property, clothes,
jewellery and other items have been gifted to the wife by the husband, they
should not be confiscated by him. Here it should be clear that the verse is not
referring to the Nafqah (maintenance) and Mahr (dowry), which are the absolute
rights of a wife and confiscating them is unthinkable. What is emphasized is
that a husband should not take back any gifts he may have given her.
There are two exceptions to the above
mentioned directive:
First, if
it is no longer possible to keep a marriage intact according to the limits set
by Allah, and the family elders and society also supports the annulment, but a
husband is unwilling to divorce his wife simply because he is concerned over
losing wealth, property or other gifts he has given his wife, then the issue can
be resolved in the following manner: the wife can give back part or all of the
wealth gifted to her to relieve herself of her marital contract. In such cases,
it would be lawful for the husband to accept these returned gifts.
Second, if the wife is guilty of
open sexual misconduct. Since such a behavior destroys the very basis of the
marital relationship, it is lawful for the husband to take back any gifts or
wealth given to her.
The Qur’ān says:
وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ
شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَإِنْ خِفْتُمْ
أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ
تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ
فَأُوْلَئِكَ هُمْ الظَّالِمُونَ (٢ :٢٢٩)
[If you decide to depart from them, then on this
occasion] it is unlawful for you to take back from them anything you have given
them unless both the husband and wife fear that they may not be able to keep
within the bounds set by Allah. Then if you also feel that they will not be able
to remain within the bounds set by Allah, there shall be no offence for either
of them [regarding the gifts given by the husband] if the wife seeks divorce [by
returning them to him] in ransom . These are the bounds set by Allah; do not
transgress them. [And you should know that] those who transgress the bounds of
Allah are wrongdoers (2:229)
وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا
آتَيْتُمُوهُنَّ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ….
وَإِنْ أَرَدْتُمْ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ
وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا
أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُبِينًا وَكَيْفَ تَأْخُذُونَهُ
وَقَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنْكُمْ مِيثَاقًا غَلِيظًا (٤:
١٩-٢١)
And do not treat them with
harshness that you may take away what you have given them – except where they
have been guilty of open lewdness… And if you decide to take one wife in place
of another, even if you had given the latter a whole treasure of wealth take not
the least bit of it back: Would you take it by slander and usurping [her]
rights? And how could you take it when you have lain with each other and [at the
time of marriage] they have taken from you a solemn covenant? (4:19-21)
For this second situation, a
person has been warned not to dare take back by slander any wealth gifted to his
wife. Imām Amīn Ah*san
Is*lāh*ī writes:
It is absolutely against the
decency and integrity of a man to slander and accuse a lady with whom he had
pledged to live forever under a firm marriage contract. It was she who had
unveiled herself totally to him and both lived intimately and in great harmony
with each other. How unseemly it is on the part of the husband that when
relations had to be severed with her he should try to extract from her what he
so willingly spent on her and should go as far as to malign and accuse her for
this base purpose.
Secondly, the husband shall not be
responsible to give the dower if the wife is divorced such that the husband has
not touched her or her dower had not been fixed. However, if the dower had been
fixed but a lady was divorced before having sexual relations with the husband,
then the husband is liable to pay half the amount of the dower fixed except if
the wife willingly forgoes the total amount or the husband pays the full amount.
The Qur’ān says:
لَا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمْ النِّسَاءَ مَا لَمْ
تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً وَإِنْ طَلَّقْتُمُوهُنَّ مِنْ
قَبْلِ أَنْ تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا
فَرَضْتُمْ إِلَّا أَنْ يَعْفُونَ أَوْ يَعْفُوَ الَّذِي بِيَدِهِ عُقْدَةُ
النِّكَاحِ وَأَنْ تَعْفُوا أَقْرَبُ لِلتَّقْوَى وَلَا تَنسَوْا الْفَضْلَ
بَيْنَكُمْ إِنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ (٢
:٢٣٦-٧)
There is no blame on you in the matter of dower if you
divorce women before touching them or before fixing their dower and if you
divorce them before touching them but after the fixation of a dower for them,
then the half of this fixed dower should be given to them, unless they forgo it
or he forgoes it in whose hands is the marriage knot; and if you [men] forgo
your right, it is nearer to piety. And do not forget your superiority among
yourselves. For Allah sees well all that you do. (2:236-7)
While commenting on this verse,
Imām Amīn Ah*san
Is*lāh*ī writes:
Although the fact that the
husband has divorced the wife before conjugal contact was made is one motive for
her wife to forgo her right, the Qur’ān here has urged the husband with regard
to his honour and forbearance and his status as a husband to not desire from his
wife to forfeit her share. Instead he should show magnanimity in paying her the
full amount. The Qur’ān has appealed to him on three grounds to make this
sacrifice: Firstly, the Almighty has given him the right to untie the marital
knot just as he had the right to tie it. Secondly, it is more befitting for the
stronger sex to show sacrifice and selflessness – the manifestations of true
piety. Thirdly, the one degree of superiority a husband has been blessed with by
being made the head of the family unit since he was naturally suited for this
task requires that he take into account this aspect while dealing with the
weaker sex. Its natural requirement is that he should be on the giving end
rather than being on the receiving end.
Thirdly, a wife at the time of parting should be given some
resources of life. The Qur’ān says that this is an obligation of those who fear
God and those who are righteous. If a lady is divorced even without going near
her, a husband is exhorted to fulfill this obligation. The Qur’ān says:
وَلِلْمُطَلَّقَاتِ مَتَاعٌ بِالْمَعْرُوفِ حَقًّا عَلَى
الْمُتَّقِينَ (٢ :٢٤١)
And divorced women should in all cases be given some
resources according to the norms of the society when they are sent off. This is
an obligation on those who are fearful of God. (2:241)
In Sūrah Ah*zāb, the words ‘فَمَتِّعُوْهُنَّ
وَ سَرِّحُوْهُنَّ سِرَاحاً جَمِيْلَا’ (But give them some resources [of
life] and part with them in a befitting manner) are used to convey this meaning.
In Sūrah Baqarah, this same directive has been given to husbands for wives whom
they divorced without touching them or without fixing their dower. According to
the Qur’ān, the amount of these resources should be ascertained keeping in view
the norms of the society and the financial status of the husband:
وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ
قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ (٢ :٢٣٦)
And bestow on them some resources of life, the wealthy
according to his means, and the poor according to his means. This is an
obligation on those who are righteous. (2:236)
It is evident from these words that this is an obligation
on the husband. If a person does not fulfill it, he might not be liable to any
legal action because this is something which pertains to a person’s inner piety
and virtue, but he would definitely be held liable in the Hereafter before his
Lord, and in the Hereafter the weight and import of his virtuous deeds would
suffer.
4. If a husband revokes his decision
within the ‘Iddat, the lady will continue to remain his wife, but does
this mean that a husband can divorce his wife repeatedly in this fashion
whenever he wants and then revoke the decision within the ‘Iddat. The Qur’ān has
answered this question by saying that a person can only twice exercise this
right of divorcing his wife in the ‘Iddat and then revoking the decision in his
marriage with one lady. The Qur’ānic words are: ‘الطَّلَاقُ
مَرَّتَانِ فَإمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ’ (This
divorce may be pronounced twice, and then a woman must be retained with kindness
or allowed to go with kindness). That is if a person divorces his wife and
revokes his decision within the ‘Iddat, then he can
exercise this right one more time in his life in his marriage. However, once he
has used this authority twice, he can no longer use it again the third time. In
such a situation, his wife would be permanently separated from him except if she
marries some other person and he then also divorces her:
فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى
تَنكِحَ زَوْجًا غَيْرَهُ فَإِنْ طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَنْ
يَتَرَاجَعَا إِنْ ظَنَّا أَنْ يُقِيمَا حُدُودَ اللَّهِ وَتِلْكَ حُدُودُ اللَّهِ
يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ (٢:
٢٣٠)
If a husband divorces his wife [for the third time], he
cannot marry her until she has wedded another man. But if this [second husband]
also divorces her, it shall be no offence for either of them to return to each
other, if they think that they can [now] keep within the limits set by Allah.
Such are the bounds of Allah. He makes them clear to men who want to gain
knowledge. (2:230)
In case the same husband and wife
want to remarry one another, the Qur’ān has imposed three restrictions on them:
Firstly, the wife should formalize
her Nikāh* (marriage contract) with someone else.
Secondly, the second husband
divorces her because for some reason the marriage cannot be pulled along.
Thirdly, the two think that after
re-marriage the two would be able to remain within the bounds set by the
Almighty.
In the first and second conditions, the word ‘Nikāh*’ only
implies the legal marital knot and the word ‘divorce’ implies the divorce that
one gives one’s wife when it is no longer possible to keep the marriage intact. Imām Amīn Ah*san
Is*lāh*ī writes:
The real thing is that Nikāh* is a known term referring
to a marriage contract which takes place between a man and a woman with the
intention of living together forever in the bond of matrimony. If this intention
does not exist in a Nikāh*, then in reality it is not a Nikāh*; it is more of a
plot conspired by a man and a woman. The option of divorce in marriage, upheld
by the Sharī‘ah, is not part of the original scheme; it is only a last resort to
deal with insolvable situations. Consequently, the true nature of a Nikāh* is
that it should be solemnized with the intention of living together as husband
and wife permanently. If a person honors a Nikāh* only for a certain fixed
period, then this is called ‘Muta‘h’, and it is totally prohibited in Islam.
Similarly, if a person solemnizes a Nikāh*
with a lady and then divorces her just to provide her with a legal excuse to
marry the first husband, then in religious parlance this is called ‘H*alālah’ and, like ‘Muta‘h,’
it is also totally prohibited in Islam. A person who does such a despicable
thing is like a pimp or pander or as a H*adīth says that such a person plays the role of ‘a
rental male species for breeding’ and a person who does this and he who has it
done are cursed by the Almighty’.
The third condition has been
imposed in order to make divorce a very serious affair so that people do not
carelessly indulge in it. They should only divorce their wives while remaining
fearful of the Almighty and when they think that there is no possibility of
keeping the marriage intact. Similarly, when they embark upon marrying someone,
they should do so with sincerity of purpose and with the intention of creating a
harmonious relationship. It is not befitting for a believer to adopt an attitude
contrary to this.
Our jurists add to the above mentioned three conditions and
say that a lady can only be divorced from this second husband once the two have
had sexual intercourse. Without this, she is not legally allowed to become the
wife of her first husband. They generally present the following three reasons in
support of their view:
Firstly, the verb ‘تَنْكِحَ’ (she
marries) has been used by the Qur’ān. In this verb, the act of marriage has been
attributed to the lady. However, since a lady does not contract marriage, rather
a man does, so, ‘تَنْكِحَ’ here necessarily imply
sexual intercourse.
Secondly, the word ‘زُوْجاً غَيْرَهُ’
(another husband) are used after ‘تَنْكِحَ’. The word
‘زُوْجاً’ is clearly pointing to the fact that the
marriage has already been taken place; hence, it is imperative that ‘تَنْكِحَ’
here necessarily imply sexual intercourse.
Thirdly, it has been reported that once the Prophet (sws)
stopped a lady from marrying her first husband by saying that she is not legally
allowed to marry him until she has had sexual intercourse with the first.
The answer to the first and the second of these arguments
is clearly given by the Qur’ān:
وَإِذَا طَلَّقْتُمْ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا
تَعْضُلُوهُنَّ أَنْ يَنكِحْنَ أَزْوَاجَهُنّ (٢:
٢٣٢)
And when you have divorced your wives and they have
reached the end of their waiting period, do not prevent them from marrying their
future husbands. (2:232)
It is evident from this verse that the act of marriage has
been attributed to the lady and the word ‘أَزْوَاجَهُنّ’
are used in the same sense as ‘زُوْجاً غَيْرَهُ’, but
it is obvious that the words ‘أَنْ يَنكِحْنَ’ refer to
the marital knot and cannot in any way be construed for sexual intercourse.
Moreover, it is quite strange to contend that the act of
marriage cannot be attributed to the lady. One might dare ask that if this is
not possible, then can sexual intercourse be attributed to her. Viewed on
similar grounds, it is a man who in fact does it and not a woman.
As far as the third argument is concerned, it has arisen
because of not understanding a H*adīth. The way Imam Bukhārī has narrated it in
his S*ah*īh* clearly shows that the lady had gotten married only to become
legally permissible for the first husband. Consequently, when she lied by saying
that her husband was unable to establish marital contact with her, the Prophet (sws)
scolded her and told her that she could now only go back to her first husband
after tasting her second husband. This of course is not a condition that he
imposed but it is the case of stating an impossibility: the implied meaning
being that if according to her, her second husband does not have the ability to
copulate with her then she can only be divorced from him after he copulates with
her – which of course he will never since, according to her, he is not capable
of it. Thus if anything can be adduced from this H*adīth,
it is prohibition of H*alālah. It does not in anyway support the view of the jurists.
The text of the H*adīth is as follows:
عَنْ عِكْرِمَةَ أَنَّ رِفَاعَةَ طَلَّقَ امْرَأَتَهُ
فَتَزَوَّجَهَا عَبْدُ الرَّحْمَنِ بْنُ الزَّبِيرِ الْقُرَظِيُّ قَالَتْ عَائِشَةُ
وَعَلَيْهَا خِمَارٌ أَخْضَرُ فَشَكَتْ إِلَيْهَا وَأَرَتْهَا خُضْرَةً بِجِلْدِهَا
فَلَمَّا جَاءَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَالنِّسَاءُ
يَنْصُرُ بَعْضُهُنَّ بَعْضًا قَالَتْ عَائِشَةُ مَا رَأَيْتُ مِثْلَ مَا يَلْقَى
الْمُؤْمِنَاتُ لَجِلْدُهَا أَشَدُّ خُضْرَةً مِنْ ثَوْبِهَا قَالَ وَسَمِعَ
أَنَّهَا قَدْ أَتَتْ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَجَاءَ
وَمَعَهُ ابْنَانِ لَهُ مِنْ غَيْرِهَا قَالَتْ وَاللَّهِ مَا لِي إِلَيْهِ مِنْ
ذَنْبٍ إِلَّا أَنَّ مَا مَعَهُ لَيْسَ بِأَغْنَى عَنِّي مِنْ هَذِهِ وَأَخَذَتْ
هُدْبَةً مِنْ ثَوْبِهَا فَقَالَ كَذَبَتْ وَاللَّهِ يَا رَسُولَ اللَّهِ إِنِّي
لَأَنْفُضُهَا نَفْضَ الْأَدِيمِ وَلَكِنَّهَا نَاشِزٌ تُرِيدُ رِفَاعَةَ فَقَالَ
رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَإِنْ كَانَ ذَلِكِ لَمْ
تَحِلِّي لَهُ أَوْ لَمْ تَصْلُحِي لَهُ حَتَّى يَذُوقَ مِنْ عُسَيْلَتِكِ قَالَ
وَأَبْصَرَ مَعَهُ ابْنَيْنِ لَهُ فَقَالَ بَنُوكَ هَؤُلَاءِ قَالَ نَعَمْ قَالَ
هَذَا الَّذِي تَزْعُمِينَ مَا تَزْعُمِينَ فَوَاللَّهِ لَهُمْ أَشْبَهُ بِهِ مِنْ
الْغُرَابِ بِالْغُرَابِ(بخاري رقم:
٥٣٧٧)
‘Ikramah narrates that Rafā‘ah divorced his wife.
Thereafter she married ‘Abdu’l-Rah*mān Ibn Zubayr Qurz*ī. A^’ishah says that she
came to her wearing a green cloak and complained of her husband and showed her
her bruises – women do help one another – so when the Prophet (sws) came by,
A^’ishah said: ‘I have only seen Muslim women being treated in such a way. Her
skin is greener than her cloak’. ‘Ikramah says that when her husband came to
know that she had complained to the Prophet (sws), he also came over to the
Prophet (sws) along with his two sons from his other wife. Upon seeing her
husband, she got hold of the end of her cloak letting it hang from her hand and
remarked: My only complaint is that whatever he has is no more than this [soft
cloth]. At this, ‘Abdu’l-Rah*mān said: ‘O Prophet (sws) of Allah she has told a
lie! I am very strong and can satisfy her; the truth of the matter is that she
is disobedient and wants to go back to Rafā‘ah’. When the Prophet (sws) heard
this, he said: ‘If this is the case then you shall not be permissible for
Rafā‘ah unless ‘Abdu’l-Rah*mān
tastes you’. Then, upon seeing the sons of ‘Abdu’l-Rah*mān, the Prophet (sws)
remarked: ‘Are these your sons?’ When he replied in the affirmative, the Prophet
said: ‘Do you tell such lies [O ‘Abdu’l-Rah*mān’s
wife]. By God, these [young boys] resemble ‘Abdu’l-Rah*mān
more than a crow resembles another crow. (Bukhārī, No: 5377)
5. Whether the husband decides to divorce his wife or to
take her back, in both cases the Qur’ān directs him to call in two Muslim
witnesses on his decision. The witnesses are directed to remain steadfast on the
evidence they give. The reason for this directive is to ensure that either of
the parties is not able to refute a decision made and to resolve any other
dispute that may arise in this regard. Moreover, this would make the matter very
transparent for the people and settle doubts and confusions that may surface.
The above paragraphs explain the correct way of divorce. If
a person divorces his wife according to this prescribed way or takes her back
during the ‘Iddat period, then his decisions shall stand legally implemented.
However, if divorce is given in violation of the prescribed way, then this is a
legal case that would require a court ruling. Two similar cases of importance
which came before the Prophet (sws) are as follows:
The first of these is the case of ‘Abdullāh Ibn ‘Umar (rta).
When he divorced his wife during her menstrual cycle, ‘Umar (rta) presented his
case before the Prophet (sws). The Prophet (sws) expressed his answer when he
was informed of these details and said: ‘Ask him to take her back and retain her
in wedlock until she enters her period of purity and then again passes through
her menstrual cycle and is pure again. Then, if he wants, he can permanently
retain her or divorce her without having intercourse with her because this is
the beginning of ‘Iddat keeping regard of which the Almighty has directed a
husband to divorce his wife.
The second case is that of Rukānah Ibn ‘Abdi Yazīd. By
gathering all the narratives of this case, the whole situation that comes to
light is that he had divorced his wife three times in one go. He then felt
ashamed and presented his case before the Prophet (sws). The Prophet (sws)
inquired: ‘How did you divorce her?’ He replied: ‘I divorced her three times in
one go’. The Prophet (sws) again inquired: ‘What was your intention?’ He
answered that he wanted to divorce her once only. The Prophet (sws) told him to
reply on oath which he did and then said: ‘If this is the matter, then take her
back. Only one divorce has been implemented’. Rukānah remarked: ‘O Prophet of
Allah I had divorced her three times’. The Prophet said: ‘I know, take her back
and this is not the proper way of divorcing a wife. The Almighty has said that
if one must divorce his wife, he should do so keeping in consideration the
‘Iddat’.
The foundations on which the decisions of the Prophet (sws)
are based in both the above quoted cases are:
i. If divorce is not given according to the prescribed
procedure but there is a possibility to make amends for the violation, then the
sanctity of the law demands that amends be made.
ii. A person has the right to explain his statements. If he
says that a particular statement was uttered by him without any intention or
with full intention, his explanation can be accepted. The following words of the
Prophet (sws) also relate to this very foundation: ‘Divorce given in a state of
rage is not to be legally enforced and neither is the decision to liberate a
slave in such a situation’ (Abū Dā’ūd, No: 2193).
iii. If a person says that he has divorced his wife three
times, then this can mean that he has in fact divorced her three times and this
can also be a statement that portrays the severity and intensity of his
decision. Since both these possibilities exist when these words are said, hence
any explanation of the speaker regarding the meaning in which he used them
should also be acceptable. However, this does not mean that if there exist
evidence contrary to the explanation made that such an explanation be accepted.
A court has full authority to reject such an explanation if it is not satisfied.
Consequently, when ‘Umar (rta) observed that people were no longer careful in
uttering the divorce sentence he declared that he would not even accept a
statement of explanation from the husband and three divorces pronounced would be
counted as three.
The Directive of ‘Iddat
Sūrah T*alāq says that divorce should be given keeping in
view the ‘Iddat (waiting period). At another place, the Qur’ān has explained
that period of ‘Iddat is three menstrual cycles:
وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ
قُرُوءٍ (٢:
٢٢٨)
And divorced women must keep
themselves waiting for three menstrual cycles. (2:228)
In this verse, the Arabic word ‘قُرُوْء’
is the plural of ‘قَرْءٌ’. In Arabic, this word means
both the ‘menstrual period’ and the ‘non-menstrual period’. While presenting his
research on this word, Imām Amīn Ah*san
Is*lāh*ī writes:
After much deliberation on the root of the word and its
derived forms, I have come to the conclusion that its real meaning is that of
‘menstruation’. However, since every menstrual period is followed by a period of
purity (طُهْر), the word is also used in this meaning.
This is similar to the usage of words ‘day’ for ‘night’ and vice versa. Every
language has such words.
The word ‘قَرْءٌ’ in the opinion
of this writer as well means ‘menstruation’ because in these verses the real
issue is to ascertain whether a lady is pregnant or not. It is the ‘period of
menstruation’ which actually ascertains this and not the ‘period of purity’.
Moreover, women are asked to wait in this period and this waiting period can
only be ascertained through the menstrual cycle because its beginning can be
known with certainty.
In normal circumstances, the ‘Iddat
period is three menstrual cycles; however, if a woman does not menstruate
because of advancing age or in spite of reaching puberty,
then the Qur’ān has specified in Sūrah T*alāq that the ‘Iddat period would be
three months. It has also been stated that the ‘Iddat period of a pregnant lady
extends to childbirth. In Sūrah T*alāq, for women who do not menstruate because
of old age, there also exists the condition of ‘إِنْ
ارْتَبْتُمْ’ (if you are doubtful). While
explaining this condition, Imām Amīn Ah*san
Is*lāh*ī writes:
It seems to me that the condition of
‘إِنْ ارْتَبْتُمْ’ (if you
are doubtful) is to differentiate between a lady who does not menstruate
because of age but has had sexual intercourse with her husband and a lady in
similar state but who did not have sexual intercourse with her husband. For if a
lady who does not menstruate because of age has had sexual intercourse with the
husband there might be a chance of pregnancy if her state was temporary for some
reason. A same situation may arise for a lady who has not menstruated in spite
of reaching the age and she has sexual intercourse with her husband … It is
possible that the question may arise in the mind of a person that if this was
the case, then why did the Qur’ān not explicitly state that the ‘Iddat of a lady
who does not menstruate because of age and who has had sexual intercourse is
three months. The answer to this question is that such a statement of the Qur’ān
would not have pointed to the underlying reason of ‘Iddat – which was essential
to be highlighted. This underlying reason is not merely the fact that whether a
lady has had sexual intercourse or not: it is the doubt that she may be
pregnant.
يَاأَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمْ الْمُؤْمِنَاتِ
ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ
مِنْ عِدَّةٍ تَعْتَدُّونَهَا (٤٩:٣٣)
O you who believe! when you marry believing women, and
then divorce them before you have touched them, no period of ‘Iddat have they
for you which you can ask them to complete. (33:49)
The directives of ‘Iddat which are mentioned in the
relevant verses of Sūrah T*alāq are:
Firstly, during ‘Iddat neither should a wife leave her
house nor is the husband authorized to turn her out from her house. Living
together might hopefully be beneficial for both and they might reconcile and
thus save a family from breaking. The Qur’ānic words ‘لَعَلَّ
اللَّهَ يُحْدِثُ بَعْدَ ذَلِكَ أَمْرًا’ (You know not that God might
thereafter create new circumstances) point to this very aspect. Further, a
warning is sounded that the directives mentioned are the bounds set by Allah and
any one who tries to exceed them would not harm Allah in any way; on the
contrary, he would only harm his own well-being. It is not that the Almighty has
set these bounds for His own benefit. It is for the welfare of His creation that
He has set them forth; so any one who violates them only wrongs his own soul.
The only exception to the above directive is if the basis
on which a divorce has been given is open lewdness which the Qur’ān has termed
as ‘فَاحِشَة مُبَيِّنَة’. In the Arabic language, this
expression implies fornication and other lesser forms of sexual contact.
Obviously, in such a situation neither is it proper to demand from the husband
to keep the wife in the house nor can the benefit be attained for which this
directive had been given.
Secondly, it is stated that a husband should provide
residence and maintenance to his divorced wife according to his status. After
divorce, a husband can be very stingy in this regard. Consequently, he has been
directed not to provide her in a manner that damages her self-esteem. He should
provide according to his resources and the social status he is maintaining. It
is further stated that in this period a husband should in no way try to make
life difficult for his wife so that she is forced to leave her house herself.
It is obvious that after the pronouncement of the third
divorce also, a husband shall be responsible to provide residence and
maintenance to the divorced wife. The reason is that a lady accepts to remain in
‘Iddat only to ascertain whether she is the mother of his child or not. It is to
protect his lineage that she undertakes this wait. The words ‘فَمَا
لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ’ (no period of ‘Iddat have they for you
which you can ask them to complete) of the above quoted verse of Sūrah Ah*zāb
clearly point to the fact that if there pregnancy is a possibility then
observing the ‘Iddat is an obligation imposed on the wife from the husband.
Indeed, after the third divorce, a husband does not have any right to revoke his
decision and take back his wife; however, as a result of this, the only thing
that can be revoked is their living together. In no way can the responsibility
to provide her with residence and maintenance be revoked. Consequently, this is
absolutely certain that whether ‘Iddat is three menstrual cycles, three months
or extend to the birth of the child, a husband is liable to provide her wife
with residence as well as maintenance.
Here some people may object to the above view of this
scribe by presenting the case of Fāt*imah bint Qays. It is narrated that her
husband Abū ‘Amr had already divorced her twice. Then when he was sent to Yemen
with ‘Alī (rta), he sent her the third divorce pronouncement as well. During her
‘Iddat, when she demanded residence and maintenance, the relatives of the
husband refused this demand. At this, she came to the Prophet (sws), who decided
that she has neither the right to be given residence nor any maintenance.
The above referred to narrative is quoted in some books of
H*adīth, but it is evident from certain other narratives that when her case was
presented before the Caliph ‘Umar (rta), he too refused her demand by saying
that he could not accept the verdict of a lady which is against the Book of God
and the Sunnah of his Prophet (sws).
When in the time of Marwān Ibn H*akam, this case came into discussion for a
third time, Ā’ishah (rta) severely criticized this narrative. Qāsim Ibn Muh*ammad
inquired from Ā’ishah (rta): ‘Are you not aware of the case of Fāt*imah bint
Qays’. She replied: ‘It is better if you do not mention her matter.
In another narrative, Ā’ishah’s words are: ‘What has happened to Fāt*imah; does
she not fear God. A third
narrative is from ‘Urwah Ibn Zubayr. He says that Ā’ishah said: Nothing will
benefit Fāt*imah if she narrates this H*adīth.
In still another narrative, ‘Urwah says that Ā’ishah expressed her anger for Fāt*imah
and said: ‘She was in an empty house where none whom she knew lived and hence
the Prophet (sws), for her own protection, had directed her to change her
residence.
This is the real background of this narrative; hence, no
one should consider it of worthy of any importance.
Besides the above mentioned directives, the Almighty has
given a further directive in Sūrah Baqarah that no lady should try to conceal
her pregnancy during her ‘Iddat. It has been indicated a number of times earlier
in this article that the very directive to observe the ‘Iddat has been given for
ascertaining whether a lady is pregnant or not. Consequently, it is an essential
outcome of this directive and the Almighty has forcefully directed us to observe
it:
وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ
قُرُوءٍ وَلَا يَحِلُّ لَهُنَّ أَنْ يَكْتُمْنَ مَا خَلَقَ اللَّهُ فِي
أَرْحَامِهِنَّ إِنْ كُنَّ يُؤْمِنَّ بِاللَّهِ وَالْيَوْمِ الْآخِرِ)
٢:٢٢٨)
And divorced women must keep themselves waiting for
three menstrual courses. And it is unlawful for them, if they believe in Allah
and the Last Day to hide what He has created in their wombs. (2:228)
After Divorce
Once a divorce is actualized, one issue that can become a
source of dispute is suckling of young children. In the under discussion verses
of Sūrah T*alāq, the Almighty has said that if their mother is willing to suckle
them, then the husband shall pay her for this service and this remuneration
shall be ascertained through mutual consultation and in a befitting manner. If
such an agreement is not reached between the parents, then according to the
Qur’ān any woman can be asked to feed the children. It is also told that a rich
person should spend according to his means and resources and a poor one
according to his. Neither is it permitted for the rich person to deal with
others in a manner that is below his status and neither should a poor person be
burdened beyond his means. The Almighty holds a person responsible to obey His
directives according to his capacity and status.
In Sūrah Baqarah, this directive has been mentioned in
detail:
وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ
كَامِلَيْنِ لِمَنْ أَرَادَ أَنْ يُتِمَّ الرَّضَاعَةَ وَعَلَى الْمَوْلُودِ لَهُ
رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ لَا تُكَلَّفُ نَفْسٌ إِلَّا وُسْعَهَا
لَا تُضَارَّ وَالِدَةٌ بِوَلَدِهَا وَلَا مَوْلُودٌ لَهُ بِوَلَدِهِ وَعَلَى
الْوَارِثِ مِثْلُ ذَلِكَ فَإِنْ أَرَادَا فِصَالًا عَنْ تَرَاضٍ مِنْهُمَا
وَتَشَاوُرٍ فَلَا جُنَاحَ عَلَيْهِمَا وَإِنْ أَرَدْتُمْ أَنْ تَسْتَرْضِعُوا
أَوْلَادَكُمْ فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلَّمْتُمْ مَا آتَيْتُمْ
بِالْمَعْرُوفِ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِمَا تَعْمَلُونَ
بَصِيرٌ (٢:٢٢٣)
And [after divorce also] mothers shall suckle their
offspring for two whole years, for those who desire to complete the term. And
the child’s father [in such a case] shall have to bear the cost of their food
and clothing according to the norms. No one should be burdened beyond his
capacity. Neither shall the mother be treated unfairly because of her child, nor
the father on account of his child – and an heir shall be accountable in the
same way – But if they both decide on weaning by mutual consent and after due
consultation, there is no blame on them. And if you decide to engage someone
else to suckle upon your offspring, there is no blame on you, provided you pay
[the mother] in accordance with the norms [of the society] what you promised.
But fear Allah and know that Allah sees well what you do.(2:223)
Imām Amīn Ah*san
Is*lāh*ī, while summarizing the directives
of suckling that these verses mention, writes:
i) It is the responsibility of a divorced lady to suckle
her offspring for two full years in case the husband wants her to complete the
total suckling period.
ii) During this period, it is the responsibility of the
father to provide his divorced wife with food and clothing, keeping in view the
norms of the society. In other words, the status of the husband, the needs of
the divorced wife and her own status shall be kept in consideration while
providing her this maintenance.
iii) Neither of the parties shall be burdened beyond
their capacity. Neither the mother shall be harmed in any way by taking
advantage of the fact that she is the mother of the child nor the father be
unduly pressurized in any way on the pretext that he is the father of the
child.
iv) If the father of the child is dead, his heirs will
be responsible for all the above mentioned rights and obligations.
v) If through mutual consent and consultation, the
estranged husband and wife decide to terminate the suckling period before two
years, they can do so.
vi) If the child’s father or, in his absence, the heirs
of the child want to suckle the child from through some other lady instead of
the mother, they are authorized to do so provided what has been agreed with the
mother regarding her maintenance is fully honored.
The second thing which can become a source of dispute is
the husband’s attitude of hindering further marriage of his former wife. This
attitude whether in the form of open forbiddance on his part or in the form of
covert and stealthy schemes has been strictly prohibited by the Almighty in
Sūrah Baqarah. He has counseled people that once a lady has been divorced, her
former husband has no right to cause hindrance in any decision she makes. She
has the liberty to marry wherever and whenever she wants. If her decision to
marry is in accordance with the norms of the society, it cannot be objected to
in any way. The Qur’ān uses the word ‘الْمَعْرُوف’ to
convey this meaning. This word implies that though a man and a woman are totally
free to take their decision, they must remember not to do anything that is
against the norms of decency and which may damage the honour and repute of the
former or future husband or of the family of the woman herself. The Qur’ān says:
وَإِذَا طَلَّقْتُمْ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا
تَعْضُلُوهُنَّ أَنْ يَنكِحْنَ أَزْوَاجَهُنَّ إِذَا تَرَاضَوْا بَيْنَهُمْ
بِالْمَعْرُوفِ ذَلِكَ يُوعَظُ بِهِ مَنْ كَانَ مِنْكُمْ يُؤْمِنُ بِاللَّهِ
وَالْيَوْمِ الْآخِرِ ذَلِكُمْ أَزْكَى لَكُمْ وَأَطْهَرُ وَاللَّهُ يَعْلَمُ
وَأَنْتُمْ لَا تَعْلَمُونَ (٢:
٢٣٢)
And when you have divorced your wives and they have
reached the end of their waiting period, do not prevent them from marrying their
future husbands if they have come to an agreement according to the norms [of
decency]. These words of advice are given to every one of you who believes in
Allah and the Last Day; this is more decent for you and more chaste. And [in
reality] Allah knows, but you do not. (2:232)
While explaining the last part of
the verse Imām Amīn Ah*san
Is*lāh*ī writes:
These sound words of advice are being given to those who
believe in Allah and the Last Day. In other words, those who have belief in
Allah and the Last Day should follow what is being advised since this is the
outcome of true belief. Such an attitude is more pure and seemly. If a lady is
impeded in anyway to re-marry, this may result in great evils in the family and
society. It is from here that back doors to clandestine relations and
fornication are opened, eventually bringing great disrepute to those whose false
pride induces them to obstruct natural emotions through worthless customs. The
words ‘And Allah knows, but you do not’, at the end imply that man’s knowledge
and vision is very limited. He cannot fully grasp the ups and downs of life;
therefore, he should follow what the Almighty is directing him to do.
Besides the above mentioned two issues, a third matter that
can cause dissension between the divorced couple is the custody of children. The
Sharī‘ah has not given any directive in this regard because this matter can only
be decided keeping in view the welfare of the children and the circumstances of
the parents, which of course vary a lot. However, those in authority can obtain
a lot of guidance in this regard from the various cases decided by the Prophet (sws).
Following is an account of some of them.
‘Abdullah Ibn ‘Umar (rta) narrates that a lady came to the
Prophet (sws) and said: ‘For this son of mine, it is only my belly which was his
abode, and my breasts which were his vessel and my lap which was his dwelling
place. Now his father has divorced me and wants to take him away from me. The
Prophet replied: ‘You are more entitled to keep him until you marry again’.
Abū Hurayrah (rta) narrates that in his presence once a
lady came to the Prophet. I heard her saying: ‘My husband wants to take away
from me this child even though he has brought over water for me from the well of
Abū ‘Anbah and given me a lot of benefit’. The Prophet replied: ‘Both of you can
cast a lot on this’. [Upon hearing this], the husband said: ‘Who will quarrel
with me regarding this son of mine’. The Prophet asserted: ‘O son! This is your
father and this is your mother; grasp the hand of the one you want to hold’. The
child grasped the mother’s hand and she took him away.
(Translated from ‘Mīzān’ by Shehzad
Saleem)
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