Social System of Islam 46 – Dissolution Of Marriage 2
Channel: Jamal Badawi
File Size: 7.22MB
In the name of God, even ever since the Merciful, the creator and Sustainer of the universe, peace and blessings upon his servant and messenger Muhammad forever. I mean, I greet you with a greeting that is common in Islam assalamu Aleikum, which means peace beyond to you. I'm your host Hama Rashid. Today we have our 46th and concluding program in this series dealing with the social system of Islam. Today we will be concluding our discussion of dissolution of marriage. I have joining me on the program as usual. Dr. Jamal better we have St. Mary's University brother Jamal assalamu Aleikum, Ronnie from said, Mr. Can I ask you to summarize and highlight the main points we touched
on in our last program? Certainly, first of all, it was emphasized that the right to seek dissolution, or divorce. For some unsuccessful an unhappy marriage is a principle which applies in Islam to both wife and husband. And it's not like some people think it's the exclusive light of the husband. In all cases, we talk about the four different cases. Secondly, we said that within this broad principle, the mechanism and procedures of divorce may vary in the case of husband and the wife might be similar in some cases, but it may not necessarily be identical. And we described some of the reasons for this variations and that it basically relates to the question of equity.
Thirdly, we start the discussion of the conditions or some of the main conditions and restrictions that Islam imposes on the process of divorce, some of which is related to anger, divorce under the state of anger, and to what extent can that be effective or valid, and also, about the prohibition of divorce during certain periods, such as the, during the monthly cycle of the wife, she could not be divorced during the postnatal confinement after childbirth, which could extend to 40 days as a maximum, or even divorcing a wife during the so called fresh purity that is, after even the end of the feminine cycle, if intimate relationship has taken place during this freshers purity.
Well, maybe we could begin today's program with some discussion as to why divorce is prohibited during these times that you've just referred to. Well, first of all, prohibition of divorce during the feminine monthly cycle, as a very good reason. Because during the cycle, the woman is likely to be in a state of fatigue, irritation,
some degree of tension, it varies Of course from one person to the other, but there is likely to be this kind of difficulty. And that's why the Quran calls the monthly cycle as event or hurt something that really bothers
that appears. For example, in chapter two and verse 222 in the Quran.
Now, mind you, in addition to the irritation, and possible tension on the part of the of the wife during this cycle, in Islam, it is prohibited for the husband to have any matrimonial intimate relationship with his wife. And that might generate tension on the other side too. Under this circumstances, it is quite possible that Miss judgment or haste may take place and one or the other, or both rush into a rash decision to end their marital relationship and destroy the family unit. So, in Islamic law, this mandatory requirement that you should not divorce during this period might give some chance to overcome this particular period and just see whether really, the two sides or one or
the other are really serious about divorce. You cannot even utter divorce connect to the law.
The reason for prohibition of divorce during the period following the childbirth has similar reasons because also during the recovery period
Have the the mother after childbirth.
intimate matrimonial relationship also is not permissible. And a woman has even more need at this time for cares, both physically and psychologically. And the last thing she wants in this circumstances is divorce. So that's why again, Islam does not permit
divorce during this period, even during the period of pregnancy, so long as the woman is pregnant, the the divorce could be attorney, but it cannot become effective until the child is actually born.
The third aspect that is prohibition of divorce, even after the end of the monthly cycle, or the period of the so called fresh purity, if matrimonial relationship, intimate relationship took place, the reason being is that it is quite possible that in this relationship,
In this case, it would be wise to wait first until we find out whether the wife is actually pregnant or not. And this would be quite important for two reasons. One is to make sure about the linnaean identity of the child who is the father of the of the child to make just make sure. And secondly, that if the husband, let's say planning to divorce, his wife discovers that she is pregnant and gets excited about the birth of a new baby. Maybe some change of mind might take place on his part or her part or both of them depending on the nature of the distribution of marriage that we discussed last time. That's why a beautiful reference to that is made in the Quran in chapter 65. In the first
verse, it says letter de la la la jolla Delica Umrah that is you should give this waiting period because you don't know maybe God will bring about a new situation some new situations, which could possibly mean reconciliation.
But now, if all of the conditions that you've just mentioned, are observed, does the divorce then become effective immediately? Not necessarily. Even here, there's a certain waiting period called the static terminology,
which is referred to in the chapter I quoted before chapter 65. In the Quran,
the three this waiting period before even after entering the divorce, there must be some waiting period before that utterance become actually effective. That period, most commonly, is about three months. I say most commonly because it's defined in the Quran in chapter two, verse 228, as telethia takuro are three cycles, whether it's interpreted beginning or ending of monthly feminine cycles, it amounts, in most cases to about three months waiting period.
But this period, however, could be longer. As indicated in the answer to the previous question. If a person divorces his wife while she is pregnant, then the waiting period extends until after she delivers the new baby, which could extend even to close to nine months. And this is also indicated in chapter 65. In verse four,
however, that waiting period could conceivably be less than three months. For example, if a person divorces his wife during the end of the fresh purity, just one day before the new cycle start, that waiting period could be reduced to close to two months, or possibly a little less, depending of course on the match natural cycle for every woman which could be a little different from the others.
In some rare cases like Hola,
or self redemption that we discussed in a previous program,
jurist like if not best, and if not, and if the Tamia based on a saying of the Prophet narrated in an essay, say that the period in the case of such redemption could be reduced to one cycle or nearly one month.
Well, this period that I talked about,
are waiting periods presumes that marriage has been consummated. However, if marriage has not been consummated, and divorce took place, like a person contracting a marriage signing the contract, but before consummation,
divorce take place. If that is the case, there is no waiting period. The Quran is clear on that in chapter 33 verse 49, says that if this divorce takes place, then they they
No mandatory waiting period. I should add also, maybe I should be frank on this, that in Islamic law during this waiting period, that is after the utterance of divorce and before it becomes effective, yes,
intimate relationship or matrimonial relationship would be forbidden.
And if that takes place, it would be tantamount to reconciliation and revocation of the divorce.
Well, now, in those instances where you have a waiting period involved, where would the woman stay, or the wife stay? And who would be responsible for her, her upkeep and living expenses? Okay, that's how it's quite clear in the Quran on this question in chapter 65, it makes it clear that a woman after the utterance of divorce during this waiting period,
is entitled to remain in her own household. As the same as if divorce really didn't take place. In terms of maintenance, at least, she would not be or should not be, according to the verse be forced out of her house. Nor should she should even leave unless of course, there is necessity. In other words, she cannot, for example, go and say, All right, I'm going to my Daddy's home and just leave the house like that. Of course, you can go out for necessity, and come back, but still, she's part of the household.
As far as the second portion of your question, the responsibility,
full responsibility for maintenance during this waiting period, falls on the shoulder of the husband, again, as if she's still his wife, because technically, actually, she's his wife. Not only this in the same chapter 65, it makes it clear that not only is the wife divorced,
wife entitled to this kind of financial support, but she's entitled also to good treatment. Like one verse in the Quran, verse six, in the same chapter says that you should provide them housing from your own according to your own means that you should not annoy them, to restrict them, or in order to restrict them.
Such as affected to both kindness as well as provision.
There's a good reason behind that, or good reasons behind. First, the Why is during the waiting period would be closest to her husband. And if she's close to him in the same household, this might act as a test of love. And if there is true love between both and it was just a matter of, you know, getting angry against each other or
having a rash decision to divorce. This waiting period could be a chance for reconciliation.
Reconciliation could be by stating that, that divorce is revoked, you could say by a tender touch or a nice word or as indicated before, if matrimonial intimate relationship take place during the waiting period, it will be regarded legally as revocation of that divorce. So, in other words, you don't have to keep them away from each other.
If this things happen, revocation take place, then there is no need for having a new marriage contract. They can just revocation without even having a
decision by any court, even though some jurors say it is desirable to have
witnesses, if this revocation takes place.
However, one should also add that
a wife and wife
who is divorced
according to this method, and that the divorces that divorce is revoked during the waiting period
would be deemed as her as using up or have used up already one of those two possible revocable divorces. In other words, even though the husband may get back to his wife during the waiting period, he would be deemed as using one of the two permissible revocable divorces.
Another possible reason for for this waiting period is again to make sure whether the wife is pregnant or not. So that establishes the lineage of the of the child.
A third possible reason perhaps can be added here
is that even after the waiting period, if both parties are determined
to end their marital relationship, the waiting period can serve as a transitional period in which both sides get ready and get adjusted to the kind of situation that they bound to face after their marriage is ended.
As I indicated earlier, and this is an important technical point that during the waiting period, the wife, technically is regarded as still a wife. In fact, jurists say that if the husband, for example, dies, or the wife dies during this waiting period, they will be treated as husband and wife in terms of law of inheritance.
what is the
Islamic position from the point of Islamic law in terms of the after a wife has been divorced or concerning remarriage? Is it permissible? Or is it or is it considered to be a sin? No, it's, it's not regarded as a sin in Islam, to remarry, because divorce cannot be presumed automatically to be here on error. It could be as a result of her own fault, the fault of her husband, the fault of both of them are no fault of both of them, it could be simply a case of mismatch.
That's why for example, the Quran in chapter four, verse 30, it says what you call your vanilla, aka lemon Sati, that if divorce really takes place, and they separate from each other, maybe God will provide each of them from his bounty, ie, maybe they might both start a new life with a new spouse and still have a happy, marital
life. But even if you assume that the divorce was mainly because of her own fault,
the Islamic attitude towards that is that she should be given another chance we all make fault mistakes, falling lots of these holes. So another chance should be, should be given.
And let's remember also that, as indicated in some previous programs, marriage is very much encouraged, and Islam. Islam does not encourage people to remain unmarried for the rest of their lives. What happened to
a wife was divorced while she was 22 years old, why she should be condemned to live as a single person for the rest of her life, even though it may not even be her fault. For that reason, in Islam, there is no stigma attached to the question of remarriage. And mind you there may be some cultures Muslim or non non Muslim, which regard with suspicion and stigmatize a divorced wife or divorce husband, for that matter. But this has nothing to do with the teaching of Islam, Islam looks at it as a very simple matters, you know,
probably mismatch and without implying that remarriage is sinful in itself. Perhaps, if I may add two more observations that relate to this particular question.
First is that remarriage is not only permissible
with another person that has to get married to another person, other than the ex husband.
But it could also be permissible
in the case of the same husband, ex husband, in other words, the wife after the elapse of the waiting period, where there is no conciliation, and that's the first divorce, let's say became effective, she would be permitted, in fact, jury married to the same husband for the second and even third and final time.
The other observation is that
not only remarriage is permissible in the case of divorce or annulment. But the Quran also, according to chapter two, particularly verse two, to 32,
prohibits anyone to try to forbid or prevent the wife or the woman from reconciling to her ex husband. Of course, within the permissible limits, that's second or maximum third time, that one should not stop her if they decide to get back together and try and you life again. But in any case, as I indicated earlier, if divorce takes place, and the period, the waiting period has already elapsed, and they want to reconcile it must be with a new contract, new marital gift given to the wife, and possibly even new conditions if they wish to be added to their contract. I'm curious,
have you comment on the situation where you have a woman who's divorced from the same husband, for the third time?
I gather from what you've said there can be no reconciliation after that. That's correct. You see the if divorce has already taken place, twice before between the same husband and wife. And after each of these divorces, there was reconciliation. So there was divorce, reconciliation, second, divorce, reconciliation, and then divorce takes place till for the third time then this
is an evidence of one of two things. Either that there is a serious problem, a lack of match ability, or reconcile ability between husband and wife, or that one of them or both, is not too serious, and does not have enough respect for marriage relationship and take it to lightly in which case some stuff or you know, have to put your foot down, get some, put some stuff to that.
So whether whatever reason might be there behind it.
restoration of the solemnity and Respect for Marriage is needed. And that's why in Islamic law, if a person divorces the same wife, for the third time, after all these procedures, it becomes irrevocable divorce. There's only one rare case, very rare case where they may get back together after the third divorce. And that is specified also in the Quran, that is
after the third divorce. That's why if get married, to another person, for the purpose of permanence, not just to go around the law, for the purpose of permanence, and it's so happened without any deliberate, premeditated intention, that that other husband, second husband divorced her, or died, let's say, maybe in that case, she can come back, and she would be entitled to remarry her
ex husband. But Islam again made it clear that it should never be done just for the purpose of the so called, you know, to heal in this non permissible way that you should not just make a kind of formal contract just for the purpose of letting the wife come back to her husband without really having a real intention on both sides to live permanently. So of course, if you follow the standard law in that, it would be a very, very rare cases just the probability would be very, very small.
There is one case that should also be mentioned there.
if the husband divorces his wife, let's say three times in the same breath, like say, I divorce you I diversify, diversify. The question was raised as to whether this would make it irrevocable, that this is final because he said this already three times or whether it should be counted as one time. There was a weekend to petition Actually, it was a personal interpretation of one of the great caliphs after the Prophet Ahmad. To punish people who used to use that frequently said, Alright, if you say three times it would be irrevocable. But many other jurists like ignore him, and others did not agree with him. And they refer to a variety of the sayings of Prophet Muhammad peace be upon
him, as narrated in math, for example, and a Buddha would have a man who divorced his wife three times in the same breath in the same setting. And he came to the prophet and say, you know, I love how could I, you know, revoke that? He said, Did you say it all at the same time? He said, Yes, he said, you could return back to her, if you wish. So they conclude from that, that even if you say it 100 times,
in the same press or the same occasion, it still would be counted one. And I think that makes sense, because the purpose of Islamic law is to provide opportunity for
reconciliation, and even some majorities like Abu hanifa.
They say that they should be about one month period between each divorce. In other words, the person can divorce his wife and return the heart. If he divorces, it has to wait again, allow for some time, not just reconcile and next day, divorce again. So the wisdom of legislation in Islam here is to give a chance for reconciliation if it's possible at all. How about the
financial matters in the questions of custody after divorce? Are there any guarantees for the wife? Well, first of all, if divorce takes place before consummation of marriage,
the answer comes in the Quran Chapter Two, in verse 237, it says that if you divorce your wife
before touching her, which is a symbol of marriage being consummated,
then she would be entitled to one half of the marital gift. So if the marital gift agreed to for example, is, let's say $5,000 should be entitled to 2500. Unless of course he forgives, even though there was no consummation of money. It's a kind of consolation to her.
If divorce take place after marriage is consummated, then the wife would be entitled to a number of things. One, she would be entitled for the entire amount of marital gifts, whether she has received part of it or didn't receive any part of it before.
Whatever it was a great, whether she has taken that in full or in part, she would be entitled to the full amount that comes to you.
Secondly, she would be entitled for all marital gifts,
or gifts that she was giving during the time of engagement, or afterwards, she doesn't have to return anything. That's what talking about gift that's given.
Certainly, she would be entitled for the full maintenance, housing, accommodation, clothing, medication, everything, during the waiting period, which we indicated is usually about three months could extend to nine months in case of pregnancy. That would be the full responsibility of the husband. Firstly, if she happened to have a suckling baby, and they agree that she would second the baby, which of course is her right, if they agree on some mutually
fair conditions, she would be entitled for some fair payment for providing that service to her child, even though it's an instinctive thing, but again, just just to divorce, the husband would be responsible to provide for her so that she can keep in good health. And, you know, look after the baby, seriously, if she has the custody of the baby or a small child, which is usually the case, she would be entitled also for child support all the needs of the child
60 some jurist but not all, believe also that she would be entitled for
are entitled to some kind of divorce consolation gift. Or matter. As the Quran mentioned, it was mentioned for example, in the Quran, in chapters two and two verses 236 and 241.
Some inserted that verse in the Quran of providing some kind of consolation as desirable, highly loadable or encouraged. Others took it as a requirement. And some laws even like I read, for example, the personal law in Syria, provide even for up to one years maintenance of a divorced wife, even after she has taken all the other financial
privileges. As far as the final part was on the custody, right. The custody
the rules on custody in Islam, basically, is that the mother is more entitled to the custody of a small child, how small, there are difference of opinion on that some say, for example, up to the age of seven, the mother would be more entitled.
Some jurist even say that in the case of adultery, the mother is entitled to custody of the daughters until she becomes adolescent. And Some even say, until she gets married because she needs guidance and education from her mother to prepare her Of course, for her future role as a wife and a mother. The there are two basic conditions for this, however, first, that the mother should be set by sets will not only affect the physical fitness effects, both in terms of her mental capacity, for example, if the wife or the mother happened to have some mental disease that would endanger or affect the child, she does not get the custody a fitness also could refer to good reputation. So a
wife was reputation is in question. a divorcee, she she she would not be entitled automatically to the custody of the child because again, it might affect his or her moral upbringing. A second major condition is that, according to one saying of the Prophet peace be upon him, that she's entitled to the custody so long as she does not remarry. Because, of course, the marriage, whichever case, of course, remarriage In any case, endangered the interest of the child. But even in the case of a mother who is married to another man, the danger even might be greater as the man being more dominating force in the household
may not give sufficient care or good treatment to a child of another person. Of course, it applies also to the other side. But in the case of a wife, the danger might be greater even for the for the child.
In fact, if I may add one quick comment here because the question of custody is a very big field in Islamic law, that if you study Santa Claus and the question of custody, you notice that there is more bias towards the female side, even though the responsibility for custody is both for husband and wife, but the bias is more towards the female side and even the male side from the wife side before the custody passes on to another female side from the husband's family. Or if no female is available, perhaps a male could also take custody of the child. The idea of course being that the female is assumed to have more compassion.
Tilt towards the child.
Well, we have to stop. That's our program for today. We've enjoyed doing this series. It was a long 146 programs we want to invite you back next week we will start a new series. We'll be talking about the economic system of Islam. Thank you for watching Assalamu alaikum peace be unto you