. The Law and Practice of Divorce in Islam.
We have already seen, in an earlier chapter in this book that Abu Dawud recorded a tradition to the effect that of all the things made lawful to men by Allah, divorce displeased him most.
Divorce, though allowed, is considered blamable (mubah) and, if possible, to be avoided. (Klein, The Religion of Islam , p. 191).
The Qur'an has two sections which deal exclusively with the subject of divorce. Although the book does make divorce openly permissible, it hedges in its sanction of the practice with many safeguards. In the Suratul-Talaq (the Arabic word for divorce being talaq), it is said:
O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately) their prescribed periods: and fear God 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 limits set by God: and any who transgresses the limits of God, does verily wrong his (own) soul: Thou knowest not if perchance God will bring about thereafter some new situation. Surah 65.1
Divorce is thus not primarily sinful in Islam as it is in Christianity (Matthew 19. 8-9), yet it has considerable restrictions. There has to be an 'iddah, a "prescribed period" of three monthly courses (Surah 2.228), before the divorce becomes final. The husband, after declaring to his wife on three occasions that he intends to divorce her (anti talaq - "you are dismissed"), must wait three months thereafter before he can finally separate from her, and the wife likewise must remain in the home during this period to see whether she is pregnant and to see whether a reconciliation can be made.
Divorce is a process beginning with the cessation of marital relations and ending with the actual divorce when the 'idda has run its course. This is to be carefully reckoned and divorce is not actually to take place until it has expired. Meanwhile no overt steps are to be taken. The woman is not to leave her husband's house, nor is he to send her away unless in the interval she has been guilty of some public scandal. Thus outwardly the spouses are to continue living together as before, in the hope that before the end of the waiting period some reconciliation may take place, or as the Qur'an expresses it, Allah may cause something to happen. (Bell, "Muhammad and Divorce in the Qur'an , The Muslim World, Vol. 29, p. 62).
The Qur'an also urges husbands to be very considerate when divorcing their wives. They are to set them free on equitable terms (Surah 2.231), are not to take them back purely to spite or injure them, and are not to prevent them from being married to a former husband (Surah 2.232). Despite these detailed exhortations, the Qur'an does not stipulate that there need be any specific grounds for a divorce. There is no suggestion that desertion or adultery must first take place, or that the husband must have some valid cause before divorcing his wife. The Qur'an's silence on this point has led some scholars to conclude that the husband may divorce his wife at will.
Since no justification for divorcing his wife is demanded from the husband by the Koran, he is permitted to divorce her at his own will or caprice. But no such privilege is accorded to the wife, an inequality which has had the consequence of gravely lowering the status of women in Islam. (Levy, The Social Structure of Islam, p. 121).
Muslim scholars are quick to rise to such challenges and one well-known writer states:
The impression that a Muslim husband may put away his wife at a mere caprice, is a grave distortion of the Islamic institution of divorce. (Ali, The Religion of Islam, p. 551).
The writer goes on to give a list of occasions where the wife has the right to divorce her husband, namely, where her husband is completely missing and cannot be found, by returning her dowry, and where she is a convert to Islam with a non-Muslim husband. An objective study of the Qur'anic teaching on divorce yields the impression that, while no particular ground for divorce is necessary, it is not to be taken lightly and to be avoided wherever possible. Nevertheless the general rule in Islam is that divorce is the husband's right. Hanafi law is particularly dogmatic at this point:
And in this matter of dissolution of marriage the accepted Hanafi rules are more rigid and retrogressive than those of any other school, for they virtually deny the wife any right of divorce whatever, judicial or otherwise, while they not only leave the power of the husband unilaterally to repudiate his wife completely unfettered, as do all the Sunni schools, but go further than any other in regarding as valid, binding and even final various expressions of divorce never really intended to have that effect. Thus the wife can never divorce her husband or divorce herself from him unless he has expressly given her this right (tafwid al- talaq), while even the offer to redeem herself for a financial consideration is absolutely dependent on his consent: nor has she any right to the judicial dissolution of her marriage, however long she has been deserted or severely she has been maltreated, or even if she finds herself unwittingly married to one afflicted with some loathsome and infectious disease. (Anderson, "Recent Developments in Shari 'a Law V", The Muslim World , Vol. 41, p. 271).
The Qur'an has one law regarding divorce that is truly hard to commend or understand. It is found in these words:
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. Surah 2.230
In the previous verse it is said that "divorce is only permissible twice" (Surah 2.229) and Islamic jurists have concluded that a man is entitled to divorce his wife twice and duly remarry her but, after divorcing her a third time, may not remarry her until she has married another man and has become divorced from him. The object of this teaching is clearly to inhibit men from divorcing their wives frivolously or abusing divorce as a means of causing their wives constant insecurity. In the end, however, it seems to fail in its purpose by obliging the wife to enter into a second union before the first may be resumed. The Hadith, true to the letter of the law, make this teaching more absurd than ever:
Narrated Aisha: A man divorced his wife thrice (by expressing his decision to divorce her thrice), then she married another man who also divorced her. The Prophet was asked if she could legally marry the first husband (or not). The Prophet replied, "No, she cannot marry the first husband unless the second husband consummates his marriage with her, just as the first husband had done". (Sahih al- Bukhari, Vol. 7, p. 136).
In passing it is interesting to note that this tradition is interpreted to mean, not that three separate divorces must first take place, but that on the required threefold declaration of divorce the first time, the husband may not take his wife back before she marries again. A Western scholar interprets this subject in the same way: "An absolute divorce, or Talaq i Mutlaq, consists of the mere repetition of the words 'Thou art divorced' three times. A woman so divorced cannot be restored to her husband until she has been married to another and again divorced" (Hughes, Notes on Muhammadanism , p. 122). Either way one cannot help being taken aback by the rigid stipulation that the second marriage must first be consummated. Here indeed the letter of the law has made no allowances for the reflections, misgivings or regrets of the parties ant appears to force on the woman what Jesus regarded adultery (Matthew 5.32), even though she is willing to return to her true husband without violating the intimate relationship she has enjoyed with him. The same tradition in the Sahih al-Bukhari is also found in the other great work of Hadith and here it is said that Muhammad's answer was "No, until the second one has tasted her sweetness as the first one had tastes" (Sahih Muslim, Vol. 2, p. 730), even though the second husband had already divorced her. This seems to be a gross injustice calculated to punish the first husband for being double-minded once too often about his relationship
In some Muslim communities, especially in