Divorce in
Islam
Of
all things which have been permitted, divorce is the most hated by Allah and a
man who divorces his wife without a legitimate, genuine cause will be deprived
of the fragrance of
In
brief, if mind is set on divorce from either the husband or wife, a
divorce statement is written and pronounced in the presence of witnesses,
(65:2), and a period for three months in which both the husband and wife stay
together giving them time to reconsider (2:228). During this period of waiting
they can effect reconciliation and the reconciliation must also take place in
the presence of witnesses. After the three month period, if the man initiated
the divorce he can either take the wife back, if he has her consent to remain in
the marriage, or part.
The
footnotes taken from the commentary of Maulana Muhammad Ali: My notes in brackets.
Divorce
is one of the institutions of Islam regarding which much misconception prevails,
so much so that even the Islamic law as administered in the courts, is not free
from these misconceptions. The chief features of the Islamic law of divorce, as
dealt with in the Holy Qur’an, are discussed in vv. 228–233 and 236; the
procedure is laid down in
The
Islamic law has many points of advantage as compared with both the Jewish and
Christian laws as formulated in Deut. and Matt. [Matthew 5:32 “But I tell you that anyone who
divorces his wife, except for marital unfaithfulness, causes her to become
adulteress, and anyone who marries the
divorced woman commits adultery”] The
chief feature of improvement is that the wife can claim a divorce according to
the Islamic law, neither Moses nor Christ conferring that right on the woman,
though it is to be regretted that this very feature is the one that is not
recognized now even in some Muslim countries. Another feature of the Islamic law
of divorce is that it is elastic and does not strictly limit the causes of
divorce. In fact, if the civilized nations of Europe and America, who own the
same religion, are at the same stage of advancement and have an affinity of
feelings on most social and moral questions, cannot agree as to the causes of
divorce, how could a universal religion like Islam, which was meant for all ages
and all countries, for people in the lowest grade of civilization as well as
those at the top, limit those causes, which must vary with the varying
conditions of humanity and society? It may also be added here that, though
divorce is allowed by Islam if sufficient reason exists, yet the right is to be
exercised under exceptional circumstances. The Qur’an itself approves of the
Prophet insisting on Zaid not divorcing his wife notwithstanding a dissension of
a sufficiently long standing (33:37). And the Prophet’s memorable words,
of
all
things
which have been permitted divorce is the most hated by Allah (AD.
13:3),
will always act as a strong check on any loose interpretation of the words of
the Holy Qur’an.
And
if you fear a breach between the two, appoint an arbiter from his people and an
arbiter from her people. If they both desire agreement, Allah will effect harmony between them. Surely Allah is ever Knowing,
Aware. (a) (Qur’an
35a.
This verse lays down the procedure to be adopted when a case for divorce arises.
It is not for the husband to put away his wife; it is the business of the judge
to decide the case. Nor should divorce cases be made too public. The judge is
required to appoint two arbiters, one belonging to the wife’s family and the
other to the husband’s. These two arbiters will find out the facts, but their
objective must be to effect a reconciliation between the parties. If all hopes
of reconciliation fail, a divorce is allowed, but the final decision for divorce
rests with the judge who is legally entitled to pronounce a divorce. Cases were
decided in accordance with the directions contained in this verse in the early
days of Islam. See an instance quoted by Rz regarding ‘Ali’s decision in a case
of breach. The husband was told in plain words that he must abide by the
judgment of the arbiters appointed under this verse.
O
Prophet, when you divorce women, divorce them for their prescribed period,
(a)
and
calculate the period; and keep your duty to Allah, your Lord. Turn them not out
of their houses — nor should they themselves go forth — unless they commit an
open indecency. And these are the limits of Allah. And whoever goes beyond the
limits of Allah, he indeed wrongs his own soul. Thou knowest not that Allah may
after that bring about an event. (b)
2
So
when they have reached their prescribed time, retain them with kindness or
dismiss them with kindness, and call to witness two just ones from among you,
and give upright testimony for Allah. With that is admonished he who believes in
Allah and the Latter Day. And whoever keeps his duty to Allah, He ordains a way
out for him (Qur’an 65:1-2).
1a.
The
prescribed time is ordinarily, according to 2:228, three courses. But in the
case of women with child, and in certain other cases, the prescribed time is
laid down in v. 4 of this chapter. It should be noted how every direction in
connection with the subject of divorce is followed by the injunction,
keep
your duty to Allah,
throughout this chapter. The utmost carefulness must therefore be exercised in
the matter of divorce. Divorce is allowed but the right must be used sparingly
and under exceptional circumstances. It is reported that the directions
contained in this chapter were needed to correct a mistake made in connection
with the law of divorce of Ibn ‘Umar, who divorced his wife when she had her
courses. He was told to take her back, as divorce was ineffective unless
pronounced when the wife was free from the menses (B. 68:1).
1b.
The
amr
or
event
here
means reunion
(JB).
We are here expressly told that a divorced woman is not to be turned out of the
husband’s house, because either party may regret the divorce and a reunion may
be brought about.
Divorced
women shall wait concerning themselves for three monthly periods. (a)Nor is it
lawful for them to hide what Allah Hath created in their wombs, if they have
faith in Allah and the Last Day. And their husbands have the better right to
take them back in that period, if they wish for reconciliation* (b) (Qur’an
2:228)
228a.
The period of waiting, or iddat,
forms
the first condition in the Islamic law of divorce. But for cases in which
marriage is not consummated, no period of waiting is necessary; see
33:49.
228b.
These
words give a clear right to the parties to effect a reconciliation and
re-establish conjugal relations within the period of waiting. No special
procedure is necessary for this but both the divorce and the reconciliation must
take place in the presence of witnesses (IM. 10:5). If, however, the
iddat
is
over and no reconciliation has been effected, the relation of husband and wife
can be re-established by re-marriage, which right is given to the parties by v.
232.
The
period of waiting is really a period of temporary separation during which
conjugal relations may be re-established as clearly stated in the words that
follow. This period of temporary separation serves as a check upon divorce. If
there is any love in the union, its pangs would assert themselves during the
period of temporary separation, bringing about a reconciliation, and the
differences would sink into insignificance. This is the best safeguard against a
misuse of divorce, for in this way only such unions would be ended by divorce as
really deserve to be ended, being devoid of the faintest spark of love. A
conjugal union without love is a body without a soul, and the sooner it is ended
the better.
[In
the days of Ignorance, before Islam, a thousand times could a man divorce his
wife and take her back within a prescribed period (known as 'iddah). Sometimes
he would swear he would not go near her as his mother, thus leaving her in a
state of suspension, being neither wife nor yet divorced. These methods were
adopted simply to harass her. She had no way out of her sad plight. The Qur'an
remedied this standing evil. According to Islam a man who seeks permanent and
irrevocable separation from his wife must pronounce divorce on three different
occasions. The irrevocable divorce cannot be pronounced until a temporary
separation has taken place twice and both experiences have shown that the
marriage relationship cannot be continued. A divorce should actually have taken
place twice, followed each time by reconciliation, then and only then the third
divorce becomes irrevocable.
According
to Nasai, the Holy Prophet was extremely angry when one day he was told that a
person had made all the three pronouncements of divorce at one and the same time
and said: “Is this Book of God
going to be made a plaything while I am yet among you?”
]
Divorce
may be (pronounced) twice; (a)
then
keep (them) in good fellowship or let (them) go with kindness. (b)
And
it is not lawful for you to take any part of what you have given them,
(c)
unless
both fear that they cannot keep within the limits of Allah. Then if you fear
that they cannot keep within the limits of Allah, there is no blame on them for
what she gives up to become free thereby.(d)
These
are the limits of Allah, so exceed them not; and whoever exceeds the limits of
Allah, these are the wrongdoers (Qur’an 2:229).
229a.
The divorce spoken of here is the revocable divorce of v. 228, after which a
reconciliation may be effected in the waiting period. In the days of ignorance a
man used to divorce his wife and take her back within the prescribed time, even
though he might do this a thousand times. Islam reformed this practice by
allowing a revocable divorce on two occasions only, so that the period of
waiting in each of these two cases might serve as a period of temporary
separation during which conjugal relations could be re-established. As shown in
228b,
even re-marriage of the same parties is allowed after the lapse of the waiting
period.
229b.
The husband must make his choice after the second divorce either to retain the
wife permanently or to bring about a final separation. The object of a true
marriage union is indicated in the simple words keep
them in good fellowship.
Where the union is characterized by quarrels and dissensions instead of good
fellowship, and two experiences of a temporary separation show that there is no
real love in the union, and good fellowship is
therefore entirely absent; the only remedy that remains is to let the woman
go
with kindness.
It is both in the interests of the husband and the wife and in the interests of
society itself that such a union should be brought to a termination, so that the
parties may seek a fresh union. But even in taking this final step the woman
must be treated kindly.
229c.
The full payment of the dowry to the woman is another condition relating to the
Islamic law of divorce, and it serves as a very strong check upon the husband in
resorting to unnecessary divorce.
229d.
These words give the wife a right to claim a divorce. It is one of the
distinguishing characteristics of Islam that it gives the wife the right to
claim a divorce, if she is willing to forgo the whole or part of her dowry. The
case of Jamilah, wife of Thabit Ibn Qais, is one that is reported in numerous
reports of the highest authority. Here it was the wife who was dissatisfied with
the marriage. There was not even a quarrel, as she plainly stated in her
complaint to the Prophet: “I do not find any fault with him on account of his
morals (i.e., his treatment) or his religion”. She only hated him. And the
Prophet had her divorced on condition that she returned to her husband the
orchard which he had made over to her as her dowry (B. 68:12). It is even said
that the husband’s love for the wife was as intense as her hatred for him (Rz).
If, then, a woman could claim a divorce for no reason other than the
unsuitableness of the match, she had certainly the right to claim one if there
was ill-treatment on the part of the husband or any other satisfactory reason,
and among the early Muslims it was an established right. Even now it is a right
which is maintained in many Muslim countries. Technically such a divorce is
called Khul‘.
It will be noted that though this verse forms the basis of the law relating to
Khul‘,
the words indicate an unwillingness on the part of both spouses to continue the
marriage relation — unless
both fear that they cannot keep within the limits of All?.
This is explained as meaning their inability to perform towards each other their
marital obligations and to maintain good fellowship (B. 68:13). The reason for
this, apparently, is that the passage follows one requiring a permanence of
relationship that can no more be broken when the husband has adopted this choice
after a second divorce, so that the relation can only be broken if the wife
finds it unbearable. Another reason seems to be that the woman is usually the
last to be willing to break up the marriage relationship. The words
if
you fear evidently
refer to the properly constituted authorities and this shows that the
authorities can interfere in the matter. Cases are actually on record in which a
wrong done by an unjust divorce was mended by the
authorities.
Bukhari
63:198 Narrated By 'Ikrima: The sister of 'Abdullah bin Ubai narrated (the above
narration, 197) with the addition that the Prophet said to Thabit's wife, "Will
you return his garden?" She said, "Yes," and returned it, and (then) the Prophet
ordered Thabit to divorce her. Narrated Ibn 'Abbas: The wife of Thabit bin Qais
came to Allah's Apostle and said, "O Allah's Apostle! I do not blame Thabit for
any defects in his character or his religion, but I cannot endure to live with
him." On that Allah's Apostle said, "Will you return his garden to him?" She
said, "Yes."
So
if he divorces her (the third time), (a)
she
shall not be lawful to him afterwards until she marries another husband. If he
divorces her, there is no blame on them both if they return to each other (by
marriage), if they think that they can keep within the
limits of Allah. (b)
And
these are the limits of Allah which He makes clear for a people who know (Qur’an
2:230).
230a.
The words refer to the “putting off with kindness” of the previous verse, and
hence by divorce
here
is meant the irrevocable divorce pronounced a third time, i.e., after there has
been a divorce and a restitution of conjugal rights twice.
230b.
When the wife has been divorced twice, after each of which reconciliation has
been effected and has failed, the third divorce becomes irrevocable, and the
husband cannot remarry the divorced wife until she has been married elsewhere
and divorced. The verse abolishes the immortal custom of halalah,
or temporary marriage gone through with no other object than that of legalizing
the divorced wife for the first husband, a custom prevalent in the days of
Ignorance, but abolished by the Prophet, according to a report which speaks of
his having cursed those who indulge in the evil practice (Tr. 9:25). There must
be a genuine marriage and a genuine divorce. This restriction makes the third
divorce a very rare occurrence, and thus acts as another check against frequent
divorce. Muir’s remarks as to the hardship which this rule involves not only for
“the innocent wife” but also for the “innocent children”, for “however desirous
the husband may be of undoing the wrong, the decision cannot be recalled”, are
totally unjustified. The irrevocable divorce cannot be pronounced until a
temporary separation has taken place twice and both experiences have shown that
the marriage relationship cannot be continued. It is not simply by repeating the
pronouncement of divorce thrice that the third pronouncement becomes
irrevocable. A divorce should actually have taken place twice, followed each
time by reconciliation, then and only then the third divorce becomes
irrevocable. It would, in fact, be very rare. The case of Rukanah affords an
illustration. He divorced his wife in the time of the Prophet thrice but this
was counted as a single divorce, and he took back his wife by the Prophet’s
order. Then he divorced her in the time of ‘Umar and reconciliation was again
effected, and finally he divorced her in the time of
‘Uthman (AD. 13:3).
And
when you divorce women and they reach their prescribed time, then retain them in
kindness or set them free with kindness and retain them not for injury
a
so
that you exceed the limits. And whoever does this, he indeed wrongs his own
soul. And take not Allah’s messages for a mockery, b
and
remember Allah’s favour to you, and that which He has revealed to you of the
Book and the Wisdom, admonishing you thereby. And keep your duty to Allah, and
know that Allah is the Knower of all things (Qur’an 2:231).
231a.
Hence, if the husband is proved to give injury to the wife, he cannot retain
her, and she can claim a divorce.
Injury to the wife may be of a general nature or one given with the object of
compelling her to remit the whole or part of her dowry to obtain a divorce. This
practice was resorted to by the pre-Islamic Arabs, and the words are meant to
abolish the evil (Rz). It is for the judge to see that the husband is not taking
undue advantage of his position. On the other hand, the husband is enjoined to
show liberality to the divorced wife, and the judge would no doubt see that the
injunctions of the Holy Book were observed. It is made clear in
231b.
The injunctions relating to the kind treatment of women must not be taken
lightly, we are told here. Retaining women to cause them injury has already been
declared to be a transgression and emphasis is now laid on the proper observance
of these injunctions by stating that these are most serious matters relating to
the welfare of society as a whole.
Women
have the right to be divorced with kindness:
And
when you divorce women and they end their term, prevent them not from marrying
their husbands if they agree among themselves in a lawful manner. (a)
With
this is admonished he among you who believes in Allah and the Last Day. This is
more profitable for you and purer. And Allah knows while you know not. (Qur’an
2:232).
232a.
It has already been stated that when a divorce is pronounced, the conjugal
relations can be re-established within the period of waiting. Here it is stated
that if the period of waiting has elapsed, even then the former husband can
remarry the divorced wife. The sister of Ma‘qil ibn Yasar was
divorced by her husband and when the iddah
was over, the husband again approached Ma‘qil to give her in marriage to
him. She was willing but Ma‘qil did not agree. Then this verse was
revealed (B. 65:ii, 40). Thus the marriage of a
divorced woman with her former husband is clearly allowed, and going through the
mock ceremony of marriage with another person is an
innovation.
Divorced
women have the right to have a just provision from their former
husbands
And
for the divorced women, provision (must be made) in kindness. This is incumbent
on those who have regard for duty (a)
(Qur’an 2:241).
241a.
Note that this provision is in addition to the dowry which must be paid to them.
Just as in the previous verse the widow is given an additional benefit, here a
provision in addition to her dowry is recommended for the divorced woman. This
shows how liberal are the injunctions of the Holy Qur’an regarding
women.
Bashir
Ahmad’s commentary: Just as the preceding verse bestowed an additional favour on
widows (a years maintenance and residence), the present one bestows an
additional favour on divorced women. The injunction is particularly essential in
the case of divorced women, because in moments of bitterness, which is the
inevitable aftermath of a dissolved marriage, people are liable to be unjust and
cruel towards their former wives. The verse warns them not to lose sight of the
fear of God on such occasions and to act towards their former spouses not only
with justice but with positive benevolence and kindness.