Divorce or Dissolution of Marriage
Marital life ought to begin with
earnestness and should continue happily under the shadow of love,
tolerance and self-sacrifice. But practically speaking marriage
contract and conjugal relations do not in all cases continue to exist till
the end of life. In certain cases it becomes impossible for two
parties to live together in peace and harmony for various reasons such as
their emergence of deep rooted differences. In such circumstances,
there must be a suitable way of dissolving a marriage legally, otherwise
if the parties are forced to continue to live together, their life is
likely to become unbearable. In many cases, the consequences may be
most regrettable and even tragic. Anyway, it is evident that as
marriage in itself is a social need, in certain circumstances its
dissolution is also a social necessity. The social compulsions have
forced even the Christians to frame and enforce laws concerning divorce,
though their present religious book forbids it except in the case of
unchastely and though their Church has for long opposed it
vehemently. "But I say unto you, that whosoever shall put away his
wife, saving for the cause of fornication, causeth her to commit adultery:
and whosoever shall marry her that is divorced committeth adultery".
(Matthew, V:32). The divorce act is even passed in Italy, which is
the seat of the Pope.
Divorce in
Islamic Law
Divorce is the dissolution of
permanent marriage resulting in the end of al responsibilities of the
husband and the wife in regard to the rights and obligations connected
with it.
From the Islamic point of view the
disintegration of family bond is very undesirable on principle. It
is the worst and the most detestable act in the eyes of
Allah.
The Holy Prophet (s.a.w.) has
said:
- The most detestable thing before
Allah is divorce.
-
Allah likes most, the house which is inhabited in the wake of
a marriage and dislikes most the house which is abandoned in the
wake of separation.
In fact divorce may be regarded as
an unpleasant and bitter pill which has to be taken in the case of
need. Resort to it should not be made unnecessarily and for the sake
of caprice. Islamic traditions have described unnecessary divorce as
a cause of remoteness from the blessings of Allah.
Islam has suggested certain
precautionary measures to ward off divorce as far as possible. For
example:
- Much stress has been laid on
the careful selection of the wife.
- Repeated recommendations have been
made to treat her well and connive at her minor mistakes which are common
in life.
-
Self-control against sudden outbursts of rage and hasty
actions.
-
Formation of an internal family court to resolve the differences arising
between husband and wife.
It is possible that the relations
between the husband and the wife might sometimes become strained
consequent on differences and scolding remarks. Islam suggests that
in such cases a suitable way should be found at the earliest to resolve
the differences and there should be no talk of separation so easily.
All cases of strained relations are not such that we should be
disappointed of the restoration of love and affection. In most cases
it is possible to rectify the position.
Whenever it is not possible for the
husband and wife to sort out their differences themselves, their case
should be considered by a family court consisting of two arbiters, one
selected from the family of the husband and the other from the wife.
The arbiters should be sympathetic and experienced so that they may listen
to the point of view of both the parties, and try to reconcile
them.
In this respect the Qur’an
says:
"If you fear
a breach between the two (husband and wife), appoint an arbiter from his
people and another from hers. If they desire amendment, Allah will
make them of one mind". (Surah al-Nisa, 4:35)
Obviously an arbiter should be a
trust worthy person, a good conversationalist and fit for making a just
arbitration. The two arbiters are to be selected from among the
members of the two families because as such they are expected to have a
knowledge of the temperament of the husband and wife as well as of their
domestic affairs; and also because they will normally be interested in
settling their differences.
Effects of
divorce
From the psychological, legal and
social point of view, divorce produces varied effects, some of them being
related to the husband and wife themselves and some of them to their
families. If there are children, separation between their parents
will affect their position also in many ways.
In view of these results, special
conditions have been visualized for divorce so that it may be warded off
as far as possible, for if it is taken easy, the future of children will
certainly be threatened.
What should be the condition of a
woman to be divorced:
* Her periods must not be
on.
* After the last
sexual intercourse, she must have had her periods at least
once.
* If the woman
having been pregnant has been delivered of a child, her rest period after
delivery (ceremonial purification from child birth) must have come to an
end.
Of course if a woman is pregnant or
does not menstruate, the above conditions do not apply to her. In
cases other than these two, the question of divorce should be postponed
till these conditions materialize.
Conditions of
the effectiveness of divorce
Divorce is valid and operative only
if the following conditions are fulfilled:
* The husband who divorces must be of mature
age and must be possessed of understanding. Divorce pronounced by a
minor, a lunatic or an idiot is invalid.
* The husband must be exercising his own free
will. Divorce under compulsion is not valid.
* Presence of two
witnesses.
According to the Shiah school of
thought and as expressly mentioned in the Qur’an (second verse of Surah
al-Talaq), divorce must be pronounced in the presence of at least two
trustworthy and righteous witnesses.
This condition automatically implies
that two righteous persons should become aware of the decision of the
spouses to dissolve marriage. In many cases their intervention and
help may save the situation, and they may find a suitable way of
reconciling the husband and wife. Further, their knowledge and
presence may be helpful in settling financial and other questions and
finding a most appropriate arrangement for looking after the
children.
Kinds of
divorce
After the enforcement of divorce it
is possible to resume conjugal relations in some cases without contracting
marriage anew. In some other cases a fresh marriage is required
before the resumption of these relations. Hence divorce is of two
kinds; revocable and irrevocable.
In the case of revocable divorce if
the man regrets and wants to resume conjugal relations, the tie is
automatically restored and there is no need of contracting marriage again,
provided he revokes his act within the period of probation (iddah) which
is normally three months.
In the case of irrevocable divorce
it is not possible to resume conjugal relations in this way.
Kinds of
irrevocable divorce
There are several kinds of
irrevocable divorce.
(1) If the husband agrees to dissolve
the marriage at the request of the wife, it is called khul’a.
(2) If the marriage is dissolved
because both the husband and the wife have asked each other to terminate
it, it is called mubarat, that is mutual release.
(3) The divorce pronounced by the husband on
his own is regarded as irrevocable in the following
circumstances:
(a) If the dissolution of marriage
has been brought about before its consummation.
(b) If the divorcee is a girl whose periods
have not commenced or an old woman who does not menstruate, because she
has reached the age of menopause i.e. is no longer capable of bearing
children.
(c) If the
divorce has been pronounced for the third time.
In all these cases if the two
parties decide to resume conjugal partnership, they should remarry, for
the first marriage is no longer effective.
NOTES:
(1) Remarriage with a woman, who has
been divorced three times, by her former husband who divorced her is
possible only on the condition that she is married to another man first
and that such second marriage is terminated after consummation.
(This condition precedent to reunion has been laid down to deter and
discourage the people from taking the question of divorce too easy.)
If divorces take place between the husband and wife again, and again (till
nine times) they cannot remarry under any circumstances. This
restriction also ensures that as far as possible divorces on frivolous
grounds may be avoided.
2) In the case of khul’a and mubarat
reunion is possible only if the woman demands back what she had
surrendered to the husband. Such demand must be made before the
period of probation expires.
In other cases, if they are inclined
to resume conjugal partnership, they should remarry in accordance with the
conditions they agree to.
Iddah of
divorce
In the case of separation between
the husband and the wife an important question is to find out whether she
is pregnant by her former husband. To ascertain this point, the
Islamic law has laid down that during a period of probation the woman
should not marry another person. This period is called
iddah.
Period of
Iddah
The period of iddah for a woman who
is not pregnant is the period covered by three menstrual courses, which is
normally three months. The iddah of a pregnant woman is till she is
delivered.
Rules regarding
the period of iddah
During the period of iddah the woman
cannot take a new husband, and nobody should make an offer of marriage to
her. She is to be maintained by her former husband like a married
woman.
In the case of
revocable divorce if the husband or the wife dies during the period of
probation, the survivor will inherit the deceased.
Right of
guardianship of children
One of the important questions that
crop up on the dissolution of marriage is that of the guardianship of the
children which is called the right of hizanah.
The Islamic law gives the custody
and care of the children in the early years of their life to the mother,
even if the father is competent enough and willing to look after
them. The limit for a boy is two years and for a girl, seven
years.
In case the mother is not capable or
fit to take care of the child, the responsibility of guardianship devolves
on the father. In both cases the father has to bear the expenses of
the child, As the right of guardianship is recognized solely for the
benefit of the infant, it should be in the custody of the person who can
look after it the best. On this principle the Islamic law has given
priority in the matter to the mother in the first years of the life of the
child. If both the parents are unable to look after it, some other
suitable arrangements should be made to ensure the welfare of the
child. If the father and the mother agree, the infant may be given
in the custody of a third person under whose guardianship it can, in their
view, make proper physical and spiritual progress.