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 Paradise (Dawud, Tirmidhi)

 

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 4:35, while further questions are dealt with in 33:49 and 65:1–7.

 

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 4:35)

 

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 4:35 that decision in matters of divorce rests with the judges appointed, not with the husband or the wife.      

                                                                                                                       

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.