Social System of Islam 45 – Dissolution Of Marriage 1
Channel: Jamal Badawi
File Size: 6.94MB
In the Name of God, the beneficence, the Merciful, the creator and Sustainer of the universe, peace and blessings upon servant and messenger Muhammad forever me, I greet you with a greeting that is common in Islam. Assalamu Aleikum, which means peace be unto you. I'm your host Hama Rashid. Today we have our 45th program in our series dealing with the social system of Islam. We'll be continuing our discussion of dissolution of marriage in Islam. I have joining me on the program is usual. Dr. Jamal betawi of St. Mary's University brother Jamal Assalamu alaikum.
Could I have you very quickly summarize the main points that we touched on in our program last week? Okay, the main issue that was raised is that divorce in Islam is not as easy as some people may think of it, and that there are certain preventative measures before divorce even take place like careful selection of the spouses trying to live by the Islamic law in one's relationship to his or her spouse. Secondly, there are certain measures also, in case there is a family dispute, to try to contain it and have certain measures between husband and wife, if not, perhaps involving some relatives in a kind of arbitration. But in no case should swearing or karate could be resorted to.
And we indicated that all of these measures, preventative or otherwise,
do not prejudice, the right of the woman to seek divorce, if there is a good reason.
Well, you made some mention of the wife seeking or initiating divorce. I think the common notion
about Islam is that divorce in Islam is always the exclusive right of the of the husband. Could you perhaps comment and clarify that it's common, but not necessarily true? In fact, this is one of four forms of dissolution of marriage in Islam. In fact, if you look at it,
in terms of the tradition, or most common, yes, most cases the husband, divorce the wife unilaterally, but this is one. There are cases also in Islamic law where the wife unilaterally can divorce her husband. Certainly, there are cases also where the wife can initiate and obtain divorce through an Islamic court. Unfortunately, there are cases also where divorce could be obtained by mutual agreement between the two spouses. So to say it's only the exclusive right of the husband is is a common mistaken notion, the principal have the right to seek an end to unhappy and unsuccessful marriage is established. And it applies both to husband and wife, even though procedures and
particulars might be
under what conditions, may the wife be able to unilaterally divorce her husband? Well, there are two basic cases where the wife can unilaterally use that right. One can be called delegated repudiation, the Islamic term for that is asthma, that if the wife at the time of marriage, or afterwards, agree with the husband, that there would be a transfer of the right to divorce to her. Then if and when she desires, she can divorce her husband unilaterally, but it has to be part of the nuptial contract. That's one. The second case can be called conditional repudiation, which means that at the time of negotiating the marriage contract, the wife could stipulate that the husband should be
obliged to fulfill XYZ duties, or that if the husband commit ABC type of acts against her, let's say Claire with your mistreatment, then she would have the right also to divorce him because as we indicated in a previous program, marriage contract also is a both religious as well as a civil contract where conditions which are not contrary to standard law must be implemented and enforced. There may be differences between Muslim jurists about the nature and the specific format of these two types. But there is basis for this unilateral divorce even by the wife.
We also mentioned that a Muslim wife may seek divorce through the judicial process. What are some of the acceptable grounds to seek such a divorce? There are several grounds let me give seven as exact
To show the spirit of Islamic law in this, first is the inability or refusal of the husband to provide for his wife, even if his wife is rich, because in Islam, it is the responsibility of the husband to maintain his wife. And this is the opinion of the majority of jurist including such towering figures as Malik, Sherry and
some, like hanafy said that if it's just a matter of temporary poverty, or if the person does not have that much, and still able to maintain to the best of his ability, the marriage cannot be dissolved.
A second basis or ground is abuse or mistreatment, such as, for example, cruel or severe beating, or so called wife battering that you hear about in the media, which 10% of women in North America seem to be subjected subjected to this is totally forbidden in Islam, this severe type of chastisement. Likewise, cursing or swearing at one's wife, forcing her to do something which is wrong from an Islamic point of view, this could constitute a base for divorce. A third case could be the case of impotence on the part of the husband. And this is a recognition in Islam of the natural instinct of right of the wife, just as it is recognized for the husband to
a force ground could be the serious
or incurable diseases, which I'm not talking here about the flu or something, but serious, repulsive type of diseases or insanity. If a person becomes insane, for example, why should the wife be stuck with him for the rest of her life, if you choose this, of course, there's no objection, but she has the right fifthly extended absence or desertion by the husband. And there could be two cases they're the case where they were about of the desert desert that husband is or the husband who deserted his wife is known, in which case, a Muslim judge can give him a certain point of time to come back to his wife, or else he can grant her divorce, if she wishes. Or if the husband who deserted his wife
is not not in his head about are not clear.
The judge also can give a certain waiting period and divorce the wife if she wishes after that, some say that six months would be enough waiting period like Malik, some say one year is like an ultimate. But in each case, whatever the case, she has the right also talked in divorce
60 by analogy to the previous case, the long imprisonment of the husband, because it's just similar to desertion really.
Whether it's interpreted as divorce, like Malik suggests, or annulment like I might suggest she has the right to get out of it. And finally, there are also all cases of annulment such as deception at the time of marriage by giving false information or concealing important information, in which case a wife still is entitled to seek divorce.
How about the situations of divorce by mutual consent of both sides? When is this applicable? There are two basic cases for that. One is known as MOBA, or mutually agreeing between themselves to release each other from the vow of marriage mutual agreement, in which case they can agree among themselves as to what are the conditions financial or otherwise, for the certain this could be done.
second case is the case of Hola. Some translate that as self redemption, this would be the case of the wife who might be unhappy with her husband, but she cannot really fault him in any legal sense that his his fulfilling his duties and responsibilities. And she fears that if this relationship continues, she may be tempted to you know, fall into some error.
In which case, the rule in Islamic law is that they could agree among themselves, that she can return back to him any financial privilege that she obtained from him by way of gifts, marital gifts, for example, or whatever he gives to her in return for obtaining distribution for the marriage.
There is a difference, by the way in the Quran, to this particular form, or Hola. In chapter two, verse 229, but there are a few observations about that form. One is that a wife should not ask for this self Redemption of Allah, unless there is a good reason inherit at least best
appreciation or understanding because as the Prophet indicated in demand and unnecessary, it is not proper for a woman to seek
This kind of distribution if there is no good reason behind.
Secondly, even if the husband refuses the solution, it must be imposed on him. In fact, there is a story at the time of the Prophet as narrated in Buhari and NSA, a man by the name of sabot hypnotise. And his wife again wanted to use that right. And he loved her he didn't want to, but the Prophet instructed him because it had to cost what Allah catholica because he gave her an orchard. And she offered to return back he says, I take the garden or the orchards from her and divorce Archie she wants it don't you don't have to force it. assert observation is that a man in Islam or the husband is prohibited from trying to oppress or pressure his wife, so that she offers to return
this medicine gifts to him in order to get out of the medicine relationship that's not regarded as fair. And in chapter four, verse 19, in the Quran, there is mentioned out that
the other observation also which is more technical in nature, is that in this particular type of distribution of marriage, it could take place at any time.
No seizures that you vote line does seem to be quite fair, but some people have raised the the argument, why can't the wife have the absolute right of divorce? In any case, unilaterally under any circumstances, the circumstances. One, I think we have to distinguish here between two things. One is the principle established in Islamic law for the right of either husband or wife to seek an end to a miserable or difficult, unsuccessful type of marriage. And that right is for both, and between the specific procedures and the initiation of the process.
First of all, to say that the wife should have exactly the same
right without any reason to divorce her husband unilaterally, except for the cases, of course, that were outlined previously,
might not be to the best interests of the family or even the wife herself.
Aside from the fact that this reduces the opportunity, or the chances for dissolution of marriage, at least four points should be a member. First of all, the purpose of marriage in Islam is continuation is permanency and not just divorce or dissolution. And if this is the case,
we may remark that while men or the husband is capable of being sometimes emotional, or taking a compulsive decision that's not well thought of and divorces wife. However, it is fair to say that a woman on the average in comparative terms seem to be relatively more emotional than men. And this is not a deficiency. In fact, this is part of her function as a wife and more importantly, as a mother, that's not the deficiency to be emotional. But the danger also that emotionality of the wife can divorce at the spur of the moment without any waiting or procedure or certain restriction, that she may destroy her family and future and then regret it when it's too late to to make correction.
Secondly, is that while there is no winner really, in the case of divorce, everybody loses at least psychologically in the short run, and perhaps even longer than that, but still demand in Islam and Islamic law or the husband stands to lose much more in the case of divorce. Why? Because if he divorces, then, the wife would be entitled for the entire medicine gift. Whether the part that she received already or the part that is due to her it becomes due immediately. She is entitled to full maintenance during the waiting period, which could go to three months could go in some cases, like in pregnancy to even nine months.
Thirdly, she would be entitled to child support
if she has the custody of the child, which is usually the case when the child is small.
Firstly, according to some jurist, she's also entitled to another conciliation type of payment as a result of divorce some extended as one years type of maintenance or to complete one year under at the expense of the hussmann.
If you look at it the other way around, do you find that the wife does not suffer financial losses as a result of divorce. Her property before marriage remained intact and does not transfer to a husband whether she's married or divorced. Anything that she earns
on her property during marital life, she's not responsible to pay a penny to her
Spent or spent on household. So this really shows that
in the case of divorce, it is men really, who stands to lose a lot more financially, at least in the context of Islamic law. And this may act as a natural deterrent,
on the husband taking a compulsive action towards divorce is 10 students a great deal more than the wife does. And on the other hand, it would be unfair for is all the financial securities and privileges given to the wife but not to the husband and Islamic law, that she can at any time divorce her husband and still keep all of the gifts and property that He has given to her whether or not, she has a good reason for for divorce. In fact, a third point perhaps would be raised here, that if Islamic law did not provide some control on this, any unscrupulous woman
could get married and divorced so many times as she wishes and every time she gets the marital gift you could, which could be substantial to get all the expenditure, she doesn't have to spend a penny and just keep doing that, and perhaps exploited also, Islam. And Islamic law does not only protect the wife, it also protects the husband, I mean, he's infected all sorts of some protection against possible exploitation like this. The first point is that with all of these controls, even as indicated before, if the woman has a genuine reason to ask for divorce, the avenues are open in the variety of ways that has been already been described. For many people who are not familiar with the
Islamic system of law, it's surprising that in some circumstances, parties may be able to obtain a divorce without resort to the legal process. They ask the question, Well, why aren't both sides required to seek divorce only through a court of law? even know, you know, that's run by either side? Or even excluding agreements? Yes. Well, first of all, if there is an agreement between both sides, and they find that this is mutually beneficial to them, like the various case we described mobile or Cola, the various techniques, why should the court impose their will on them? Okay, that's one. I'm not saying that society has nothing to say. But there are cases where it's mutually
advantageous for both of them. But more importantly, I think, is that to have divorce through courts. It results in lots of delays as any judge family judge can tell the delays and waiting long time. And during this period, a wife is prohibited from remarrying. And sometimes it takes years and litigation.
Secondly, to go to court in a family problem, without really a strong justification
generates a situation where every side would have to justify to the judge that his or her spouse is at fault, and trying to reveal all kinds of weaknesses, rightly or wrongly, which, of course, is not a very pleasant situation. In fact, this bitterness resulting from legal litigation, if, if they were permitted in a widespread manner,
could destroy any opportunity for future reconciliation. Another reason is that divorce and marriage is something that is very personal, it could be a very personal and private reason for a man or woman to seek divorce.
And the psychological reasons for people who are not uninvolved directly in the marital relationship might be very difficult to appreciate, and evaluate. There are cases of course, however, where injustice could be inflicted, unless the law or the court of law, and the court of law can step in, in which case, we said that there's the door open, but Islam does not encourage having every case, just being presented before a court of law. And we have seen in a previous program, that in some cases, family arbitration could solve the problem, even private arrangement between husband and wife to agree on certain arrangement might save the marriage without undue interference on the part of
others. But mind you even in the case where the husband uses the unit, unilateral right to divorce his wife, it is not just something that takes place on the spur of the moment like that. There are certain restrictions and controls also conditions
to be valid.
Well, could we perhaps have you comment on some of these conditions that are necessary for the validity of divorce, okay, for divorce to be valid. The husband, uttering the divorce, must be sane, must be conscious, under no compulsion, so not that his father say you have to do
Of course, your wife or something, no compulsion, and he should really mean fully what he says when he utters divorce. A second condition is that the word used for divorce should be clear and unequivocal. And terms you know the terms should be unequivocal. Whether the divorces are the word is direct or indirect in writing or orally, in person or through a messenger it has to be clear and unequivocal.
A third condition is that a person cannot divorce his wife at any time, there are certain restrictions and certain periods where divorces is forbidden.
it should be noted that the first the condition automatically eliminates from validity of divorce the case of a person who is under the influence of drugs or alcohol, a person who is intoxicated which is prohibited them in any way. But if that happens, and he divorces, that's not regarded as valid. Secondly, it also exclude people who utter divorce. And seriously just like in some cultures, a person say, Oh, you must be my guest, or else I'd divorce my wife, you must do this or that or is it a divorce my wife, this is regarded as law or just vain talk which is not to be taken seriously. And some jurist said that the atonement for attending this would be to feed 10 poor people are too
fast three days to atone for it, but divorce will not take place. And this also eliminates or excludes the case of divorce under certain types or states of anger, where the person does not appreciate what he says. Now, that is an interesting area.
Because you know, almost any divorce is going to involve some level of of anger and upset, how can you distinguish between the various states of anger which may result in the validation or invalidity of a divorce or divorce? Well, a very nice subdivision was suggested by one of the grid jurists.
And he said, there are three possible cases or degrees of anger. I know the lines might be hazy, but he said there is the case of anger, which is very extreme, to the point that the person does not really want to say what he's saying does not appreciate or understand even what is uttering stinkies. And he said that the consensus of Muslim jurists is that this type of divorce is invalid, because it is just analogous to a person who is really out of his mind. So it does not result in automatic dissolution of the family.
The second case is the case of moderate degree of anger. And of course, nobody divorces unless there is some anger, you're right. But there is a type of anger where the person fully understand what he says has the premeditated intention to end the medicine relationship. And again, if not kind of say that the consensus among Muslim jurists that this is a valid divorce. There's no problem with it.
But the one that is rather controversial is what might be called a medium degree of anger, where the person is not totally out of his mind. But he utters divorce, without appreciating the consequences of this uttering or utterance. And
as soon as he utters divorce, he started again regretting or shortly afterwards you start regretting and wondering why, why did it do such a
bad thing? And this, the jury is different, some said, the divorce is valid, some said it is invalid. The opinion that seems to be more consistent with various facets of Islamic law is that it does not validate the marriage in other words, marriage under this model, or medium degree of anger should not take place, the
divorce should not take well surely divorce should not take place. And there are a number of reasons behind giving more credence or weighing more weight to this interpretation. First is that there are several saying of the Prophet peace be upon him, some are narrated, for example, in a Buddha would attack him and if the measure in which the Prophet say that there is no divorce, or freedom in the case of Allah and Allah was interpreted by a Buddha who to me in
the case where the person is under strong state of anger.
In fact, in another thing of the Prophet narrated in Buhari, he said, he said in number two laquan waters that is divorce is only when there is deliberate intention is not just something casual or out of the spirit of the law.
Or outburst of emotions. Secondly, in the Quran, the principle is established the in the case of OAuth, for example, which could be analogous. And then chapter two verses, verse 225. It says, like a hippo, Kamala, who we know who is a medical God does not hold you responsible for something you utter, just out of, you know, not really with clear intention or deliberate intention.
So, the point is that under medium degree of anger, who is the person, it does not appreciate the consequences of actions like this, he may be somewhat analogous to a person who is under intoxication, which we indicated, would invalidate the pronouncement of divorce.
And finally, the lack of acceptance of this as a base or a basis for divorce seems to be consistent with the main purpose of Islamic law, and that is to protect the family and maintain its integrity as much as it is realistic and possible to do.
You mentioned a bit earlier that there are specific times when divorce is not permissible. Could I have you comment, clarify when those what those times are? Well, first of all, a husband cannot divorce his wife when she is during her monthly cycle.
Secondly, except of course, in the case of cola or self redemption that we talked about before, which we said it could take place anytime but other than that, he cannot divorce at the time I die, sorry at the time of hate or
menses. Secondly, even if the life is not going through her monthly cycle,
which is the case which is called according to underwriter fresh purity that's after the cycle is finished. He cannot also divorce her during this period if intimate, matrimonial relationship took place.
So that period also the excluded has to wait until the following cycles and then after the cycle is over, then he can pronounce divorce.
Thirdly, a husband in Islam cannot divorce his wife during the postnatal recovery period after childbirth.
Divorce under this circumstances or this particular period, is regarded as contra Sunnah, divorce or bitter, which means divorce which is contrary to the path of the prophet or contrary to the Islamic law.
Some jurist go to the point of saying that it is invalid and the husband would be required to repeal it and then pronounce it or other in the permissible
So these are
the times where divorce could not be regarded as as legitimate. But of course, if divorce has taken place, and if the required waiting period has elapsed, the husband has no right to keep his wife or force her to stay without
releasing harsh, like Quran indicates in chapter two and verse 230, that you should not hold your wife just for the purpose of hurting heart or oppressing her or pressuring her. Once the various requirements and waiting period has already elapsed. They will enter that dead for today. We want to thank you for watching our program and invite you back next week. Assalamu alaikum peace be unto you