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Conflict between the husband and the wife – the Divorce 

The Islamic Sharee’ah has placed a number of obstacles in the ways of divorce in order to confine it within the narrowest possible compass. Divorce, without lawful necessity and without first exhausting all the other means of resolving the conflict, is unlawful and is prohibited in Islam.  Some Jurists maintain that it is injurious to both husband and wife, unnecessarily damaging the interests of the two, which is Haraam.  

Islam has prescribed a procedure in case of serious disagreement and conflict between the husband and the wife. It includes effort at reconciliation through arbitration by a Family Council composed of one representative from each side. The Holy Quraan says: “And if you (O Muslims) fear a breach between them twain (i.e., the husband and the wife), appoint two arbiters, one from his family, and the other from hers (the two knowing the mentalities, the faults and the merits of both); then if the two (arbiters) wish for rectification (i.e. strive for reconciliation earnestly and justly), Allah shall bring about harmony between the twain: For Allah has full knowledge, and is acquainted with all things.” (4: 35)  

While lending its weight to the sanctity of the marriage-relation, the Holy Quraan gives due consideration to the weaknesses and aberrations of human nature. Therefore, it allows divorce as a necessary evil, when that becomes the only remedy for rectifying a situation of irreconcilable incompatibility. Sayyiduna Rasoolullah (sallal laahu alaihi wasallam) said: “Of all things permitted by law, divorce is the most hateful in the sight of Allah.” [1]  

In allowing the divorce, however, the Holy Quraan prescribes a procedure which aims at eliminating the evils of idiosyncrasy and availing every possible opportunity and means for reconciliation before the final rupture, - the procedure consisting in abstention from pronouncing divorce during the menstrual period, which is the period of least mutual husband-wife attraction, and pronouncing it in three stages at intervals of one month each, thereby preventing hasty steps and providing the parties repeated opportunity for cool deliberation. 

Though pronouncement of divorce has been placed in the hands of the husband, the wife has also been given the right to sue for and obtain divorce. A marriage, being a social contract, the Islamic Law gives to the wife also the right to deprive the husband of the prerogative of pronouncing the divorce at his will. [2]  

In case of divorce, again, the Holy Quraan emphasizes with full force the safeguarding of the welfare of the wife and the treatment of the wife with generosity. 

When the marriage tie has been finally dissolved, the husband is not permitted to take back his wife, until she has married someone else sincerely, and thereafter, become a widow or a divorcee. This injunction is meant to check husbands from making fun of marriage, which is a serious affair according to the Holy Quraan.  

A period of waiting, or probation, has been prescribed for the divorced women as a healthy gap in their sexual life, and for saving them from taking any hasty decision in connection with their next marriage (which is necessary after the emotional disturbance caused by the shock of divorce), and for safe-guarding the interests of the unborn child, if any. 

Cessation of relations with the wife without freeing her from the marriage-tie has been prohibited.  

The following verses of the Holy Quraan contain injunctions in respect of the above: “O Prophet! When you (the Muslims) do divorce women, divorce them at their prescribed periods, and count (accurately) their prescribed periods; and fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness; those are the limits set by Allah; and any who transgresses the limits of Allah, does verily wrong his (own) soul: perchance Allah will bring about thereafter some new situation. 

“Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah. Such is the admonition given to him who believes in Allah and the Last Day. And for those who fear Allah, He (ever) prepares a way out…  

“Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubt, is three months, and for those who have no courses (it is the same): For those who carry (life within their wombs), their period is until they deliver their burdens: and for those who fear Allah, He will make their path easy…. 

“Let the women live (in Iddat), in the same style as you live, according to your means: Annoy them not, so as to restrict them. And if they carry (life in their wombs), then spend (your substance) on them until they deliver their burden: And if they suckle your (offspring), give them their recompense: And take mutual counsel together, according to what is just and reasonable, and if ye find yourselves in difficulties, let another woman suckle (the child) on the (father’s) behalf. 

“Let the man of means spend according to his means: And the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him. After a difficulty, Allah will soon grant relief." (45: 1-7).  

The Holy Quraan observes: “Divorced women shall wait concerning themselves for three monthly periods. 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. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. And Allah is Exalted, Wise. 

“A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness. It is not lawful for you (men) to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah; so do not transgress them. If any do transgress the limits ordained by Allah, such persons wrong (themselves as well as others).

“So if a husband divorces his wife (irrevocably), he cannot, after that, re-marry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah, which He makes plain to those who understand.         

“When ye divorce women, and they fulfil their term, either take them back on equitable terms or set them free with kindness; but do not take them back to injure them, or to take undue advantage; if anyone does that, he wrongs his own soul. Do not treat Allah’s Signs as a jest, but solemnly rehearse Allah’s favours on you, and the fact that He sent down to you the Book and the Wisdom for your instruction. And fear Allah, and know that Allah is well acquainted with all things.         

“When you divorce women, and they fulfil their term, do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms. This instruction is for all amongst you, who believe in Allah and the Last Day. That is (the course making for) most virtue and purity amongst you. And Allah knows, and ye know not.” (2:228-232) 

The Holy Quraan further says: “For divorced women maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous.” (2:241)         

“There is no blame on you if you divorce women before consummation or the fixation of their dower; but bestow on them (a suitable gift), the wealthy according to his means, and the poor according to his means; - a gift of a reasonable amount is due from those who wish to do the right thing.

“And if you divorce them before consummation, but after the fixation of a dower for them, then the half of the dower (is due to them), unless they remit it or the man’s half is remitted by him in whose hands is the marriage tie; and the remission (of the man’s half) is nearest to righteousness. And do not forget liberality between yourselves. For Allah sees well all that you do.” (2: 236-237).         

“But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit back: would you take it by slander and a manifest wrong? 

“And how could you take it when you have gone in unto each other, and they have taken (from you) a solemn covenant?” (4:20-21). 

“If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though men’s souls are swayed by greed. And if you do well and practise self-restraint, Allah is well acquainted with all that ye do. 

“You are never able to be fair and just as between women even if it is your ardent desire: But turn not away (from a woman) altogether, so as to leave her (as it were) hanging (in the air). If you come to a friendly understanding and practise self-restraint, Allah is Oft-Forgiving, Most Merciful. 

“If they disagree (and must part), Allah will provide abundance for all from His all-reaching bounty: For Allah cares for all and is Wise.” (4: 128-130) 

The Woman’s Right to Demand Divorce 

The woman who cannot bear to live with her husband has the right to free herself from the marriage bond by returning to her husband the Mehr (required marriage gift) and gifts he has given her, or more or less than that according to their mutual agreement. It is however, preferable that he should not ask for more than he has given her.  Almighty Allah says: “And if ye fear that the two may not be able to keep to the limits ordained by Allah, there is no blame on either of them if she redeems herself…” (2: 229) 

The wife of Sayyiduna Thaabit bin Qais (radi Allahu anhu) came to the Holy Prophet (sallal laahu alaihi wasallam) and said: “O Messenger of Allah (sallal laahu alaihi wasallam)! I do not approach Thaabit bin Qais (radi Allahu anhu) in respect of character and religion, but I do not want to be guilty of showing anger to him.” The Holy Prophet (sallal laahu alaihi wasallam) asked her about what she had received from him. She replied: “A garden”. He said: “Will you give him back his garden?” “Yes”, she said. The Holy Prophet (sallal laahu alaihi wasallam) then told Sayyiduna Thaabit (radi Allahu anhu): “Accept the garden and make one declaration of divorce.”         

It is not permissible for a woman to seek divorce from her husband unless she has borne ill treatment from him or unless she has an acceptable reason, which requires their separation. The Glorious Prophet of Islam (sallal laahu alaihi wasallam) said: “If any woman asks her husband for a divorce without some strong reason, the fragrance of the Garden will be forbidden to her.”

[1] Abu Da’ood

[2] Refer to Fatawa-e-Radawiyya or Bahaare-Sharee’at for more details in this matter