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The Law of Divorce (1)
Social Issues
Javed Ahmad Ghamidi
(Tr. by:Dr. Shehzad Saleem)


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 you 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 [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 that 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 there remains no chance between a husband and wife to get along with one another, there exists in divine religions the possibility of separation from one another. In religious parlance, this separation is called ‘طلاق’ (talāq: 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.1In 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 Ahzāb, 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’ (idhā talaqqtum al-nisā: when you [people] divorce your wives). In this verse, in the subsequent verses 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 ‘بيده عقدة النكاح’ (bi yadihi ‘uqdata al-nikāh: 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 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: ‘و للرجال عليهن درجه’ (wa li al-rijāli ‘alayhinna darajah: The husbands hold a degree of superiority over them). Consequently, both the nature of the responsibility and 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 protection and subsistence and those of her children, has given herself by a contract in the custody of a man, 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. If 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’2. 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.3


(Translated by Shehzad Saleem)

(To be Continued)




1. Dr Jawad Ali, Al-Mufassal fī Tārīkhi’l-‘Arab Qabla’l-Islām, 2nd ed., vol. 5, (Beirut: Dāru’l-‘Ilm li’l-Malāliyyīn, 1986), p. 548

2. The meaning of this sentence as understood from other narratives in which this incident has been reported is that she did not like the looks of Thābit and that if in spite of this she persisted to live with him, she would not be able to follow the directives the Almighty has given a Muslim wife viz: being faithful to her husband and guarding her own chastity.

3. Bukhārī: No. 5273

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