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Strained Relations and TALAQ or Divorce |
FIRST
STAGE OF STRAINED RELATIONSHIP: FRIVOLOUS SWEARING
OR INDECENCIES (IN AN ANGRY MOOD)
One way in
which the relationship between a husband and wife can become
strained is that in an angry mood, a man may call his wife
by a name, which he may regret later. For instance, in his
anger, man may call her his mother, but after this anger
subsides, he regrets. Such name calling is called ZIHAR in
Arabic. About such frivolous swearing, Allah says:
Allah will not
call you to account for your thoughtlessness and frivolous
swearing, but for the intention in your hearts; and He is
Oft-forgiving, Most Forbearing. [2:225]
Allah has not
made for any man two hearts in his (one) body: nor has He
made your wives whom you call by Zihar your mothers [Zihar
means to say one’s wife ‘you are to me like the back of my
mother, i.e. you are not lawful for me as a wife’. The man
who says this estranges himself from his wife]: nor has He
made your adopted sons your sons. Such is (only) your
(manner of) speech by your mouths. But Allah tells (you) the
Truth, and He shows the (right) Way. [33:4]
If any men
among you call their wives their mother by Zihar, they
cannot be their mothers: None can be their mothers except
those who gave them birth. And in fact they use words (both)
iniquitous and false: but truly Allah is one that blots out
(sins), and forgives (again and again).[58:2]
Allah
discourages these kinds of frivolous swearing and calling
wives mothers so much so that He commands atonement before
resuming the conjugal relationship.
But those who call their wives mothers by Zihar, then wish
to go back on the words they uttered,- (It is ordained that
such a one) should free a slave before they touch each
other: Thus are ye admonished to perform: and Allah is
well-acquainted with (all) that ye do. And if any has not
(the wherewithal), he should fast for two months
consecutively before they touch each other. But if any is
unable to do so, he should feed sixty indigent ones, this,
that ye may show your faith in Allah and His Messenger.
Those are limits (set by) Allah. For those who reject (Him),
there is a grievous Penalty.[58:3-4]
SECOND STAGE OF STRAINED RELATIONSHIP: INTENTIONAL SWEARING
TO FALL SHORT OF DOING WHAT IS REQUISITE IN RESPECT OF WIVES
OR SWEARING TO NOT TO GO INTO WIVES
In
such a situation, Quran gives a period of four months to
revert. If they do so, then it will not affect their
conjugal relationship, although they will have to give
something as an atonement which is given in the following
verse:
Allah will not call you to account for what is futile in
your oaths, but He will call you to account for your
deliberate oaths: for expiation, feed ten indigent persons,
on a scale of the average for the food of your families; or
clothe them; or give a slave his freedom. If that is beyond
your means, fast for three days. That is the expiation for
the oaths ye have sworn. But keep to your oaths. Thus doth
Allah make clear to you His signs, that ye may be grateful.
[5:89]
If
man does not revert within four months, then this would mean
that he wants to end the relationship with divorce. Leaving
the wives dangling by neither resuming conjugal relationship
nor divorcing them goes against the education of Quran. They
should make their decision within four months. If the
decision, at the end of the four months, is to divorce then
the divorce procedure should start. If there is no decision
by the man even at the end of the four months, the woman
cannot be left dangling and the court should interfere.
THIRD STAGE OF STRAINED RELATIONSHIP: DECISION TO DIVORCE
And if they have resolved on a divorce, then Allah is surely
Hearing, Knowing.[2:227]
1.
Talaq means freeing oneself from the contract of
Nikah (or the bond of holy matrimony). [The word was used by
the Arabs for a she-camel when it became free or loosened
from it bond or cord by which her fore shank and her arm had
been bound together.]. Marriage is a solemn contract, a
strong commitment and a tenacious bond
[2/235, 2/237,
4/21]. By virtue of this solemn contract a man and a woman
make pledge to accept the rights and obligations laid down
by the Quran in respect of their being husband and wife in
order to lead a life of companionship. Since this contract
was made between two parties, namely a man and a woman, no
one of them has the right to revoke it on one’s own,
whenever one wants, by just saying, “divorce, divorce,
divorce”. The rights of the other person have also to be
safeguarded.
2.
Quran does not leave the matter of divorce to an
individual. The society is ordered to take up this
matter which decides on the disputed issue. Now a days, this
is either called a government or a court. Quran says in 4:35
If
you fear a breach between them twain, appoint (two)
arbiters, one from his family, and the other from hers; if
they wish for agreement, Allah will cause their
reconciliation: For Allah hath full knowledge, and is
acquainted with all things. [4:35]
If we
see the above verse carefully, the addressees are neither
the arbiters nor the husband or wife but Islamic Authority
or the Court.
If
the arbiters succeed to persuade them to come together, then
well and good, but if their efforts fail, they will have to
report to the court that appointed them. This court will
decide whether a divorce should become effective and what
the conditions should be. When the prophet [p.b.u.h] was
alive, he himself was the judge (of such a court).
The
first verse of Sura At-Talaq reads:
O
Nabi (p.b.u.h), when you divorce your women then… [65:1]
In
65:1, Nabi has been ordered to make the divorce effective.
Nabi never divorced his own wife. This order from Allah is
for deciding the divorce cases for believers. In 4:59, the
believers have been commanded by Allah to refer their
disputes to Allah and Rasool. The verse 4:65 also makes this
point clear.
O
you who believe! Obey Allah, and obey the Messenger, and
those charged with authority among you. If you dispute in
anything among yourselves, refer it to Allah and His
Messenger, if you do believe in Allah and the Last Day: That
is best, and most suitable for final determination. [4:59]
But no! by your Lord! they do not believe (in reality) until
they make you a judge of that which has become a matter of
disagreement among them, and then do not find any resistance
in their hearts as to what you have decided and submit with
entire submission. [4:65].
Now
if we come back again to verse 65:1, the key word used for
divorce is “Tallaqtum” which is a plural word. This
signifies that the prophet [p.b.u.h] may not be the only one
to affect the decisions about divorce. Those who he charged
with authority could also make such decisions when and where
the prophet [p.b.u.h] would not be present, as is also
suggested by 4:59. From this, it is clear that in respect
of divorce, it is the Islamic Authority i.e. the Islamic
Court that makes the final decision and the husband and wife
cannot do so individually. The court should announce its
decision when the monthly period of the woman expires,
because ‘IDDAT’ will be counted from onwards.
3.
When the couple has been divorced in the prescribed way, the
woman cannot marry anyone else during the period of IDDAT.
But if they reconcile then the ex-husband can marry her
again during this period. However, there is no limitation on
the man. If he wants could marry another woman the very next
day after the divorce. This is the only one respect men have
an advantage over women (2:228).
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
in Power, Wise. [2:228]
4.
If the divorced couple does not get re-married during the
three month period then after the announcement of the
completion of IDDAT in the presence of two just witnesses,
the woman is free to marry any other man. This would be
called the first divorce. It must also be made clear
that the former husband and wife could remarry after the
period of “IDDAT”.
5.
If following their re-marriage after the first divorce, they
cannot sustain their second marriage and get divorced again,
then this would be counted as their second divorce.
If they desire, they would even be allowed to marry again
after the second divorce. However, if they re-marry and
divorce again, then this would be their third divorce.
After the third divorce, they cannot marry each other again,
whether during or after “IDDAT”. This is what the verse
2:229 means.
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 give 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).[2:229]
If
after the third divorce, the woman is married to another
man, and is then either widowed or divorced, then she can
thereafter re-marry her former husband [2:230]
So
if a husband divorces his wife (three times), 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.[2:230]
6.
An important point that must be remembered is that following
the first divorce, the man should not intend to trap or
pester that woman (2:231)
And when you divorce women and they reach their prescribed
time, then either retain them in good fellowship or set them
free with liberality, and do not retain them for injury,
so that you exceed the limits, and whoever does this, he
indeed is unjust to his own soul; and do not take Allah's
communications for a mockery, and remember the favor of
Allah upon you, and that which He has revealed to you of the
Book and the Wisdom, admonishing you thereby; and be careful
(of your duty to) Allah, and know that Allah is the Knower
of all things.[2:231]
7.
Another point to remember is that if a woman wants to
re-marry her former husband, nobody can forbid her from
doing so as long as it is in accordance to the commands of
Allah
When ye
divorce women, and they fulfil the term of their ('Iddat),
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. [2:232]
8.
The guidelines for the nuptial gift (MEHER), in case of
divorce are as follow:
A.
If woman wants to continue the marriage but man insists on
divorce, then nothing should be returned from the MEHER. See
4:20.
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 of it back: Would you take it by slander and
manifest wrong? [4:20]
B.
If the divorce happens before the consummation of marriage,
then man has to give one half of what was fixed as MEHER.
However, the woman or her attorney may agree to forgo
something out of it, and the man, too, may decide to pay her
the full MEHER. See 2:237.
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 is remitted by him in whose
hands is the marriage tie; and the remission (of the man's
half) is the nearest to righteousness. And do not forget
Liberality between yourselves. For Allah sees well all that
you do. [2:237]
C.
If the divorce happens before the consummation of marriage,
but due to some reason MEHER was not fixed, then the man
will have to pay according to what he can afford. See
2:236.
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
the duty on the doers of the good [2:236].
D.
If the cause of the divorce is the woman’s lewd behaviour,
then a part of the MEHER may be withheld. A court will
decide on it. See 4:19.
O ye who
believe! Ye are forbidden to inherit women against their
will. Nor should ye treat them with harshness, that ye may
Take away part of the dower ye have given them,-except where
they have been guilty of open lewdness; on the contrary live
with them on a footing of kindness and equity. If ye take a
dislike to them it may be that ye dislike a thing, and Allah
brings about through it a great deal of good. [4:19]
E.
If man wants to keep his marriage but the woman insists on
divorce, then a portion of her MEHER would stand forfeited.
See 2:229. This, too, will be decided by the court.
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 for what she gives up to become free
(of the marital bond) thereby. 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). [2:229]
WOMEN CAN ALSO
TAKE THEIR CASE FOR DIVORCE TO THE COURT
The following
verse alludes to the right of a woman to go to the court to
complain against her husband
"Allah has
indeed heard the woman who was disputing with you concerning
her husband, and complaining to Allah (about the
maltreatment she was receiving at the hands of her husband)
and Allah was hearing the contentions of both of you. Surely
Allah hears and sees (all things)."[58:1]
The Quran has
used the term "Talaaq" (Divorce) both in respect of
the husband and the wife. The term "Khul'ah" (divorce
obtained by a wife against a ransom by herself or through an
attorney) is nowhere to be found in the Quran. Moreover,
when it is said that a husband has delegated his right of
divorce to his wife this is not correct; according to the
Holy Quran because husband and wife have equal rights of
divorce. Delegating the right of divorce by husband ("Tafweez"
in juristic terminology) makes no sense.
WAITING PERIOD
AFTER A DIVORCEE (IDDAT)
A. 'Iddat' is the name given to a period in
which a divorced woman or a widow cannot remarry. In fact it
is meant to make sure if she is pregnant; and in case of
pregnancy, the would-be child shall be the legitimate
offspring of the former husband. There is no 'Iddat' for
man. The Quran says: (2:228)"Women have the right relative
to their obligations, but men have an advantage over them".
The advantage is that there is no 'Iddat' for man. He can
marry another woman immediately after divorce.
B. The 'Iddat' for a divorced woman is three
menstrual periods (2:228). The divorce comes into effect
after the menstrual period comes to an end. This is for the
sake of certainty in the counting of 'Iddat' (65:1).
C. For old women who have reached menopause or
for those who do not menstruate on account of a disease, 'Iddat'
shall be three calendar months instead of three monthly
cycles:(65:4)
D. 'Iddat' for a pregnant woman is until the
termination of pregnancy. (65:4) "For those who are
pregnant, 'Iddat' is until they deliver (their burdens)."
They should declare, in the event of divorce, that they are
pregnant: (2:228) "Nor is it lawful for them to hide what
Allah has created in their wombs."
E. There is no 'Iddat' for a woman who is divorced
before sexual intercourse: (33:49)
"O You who
believe! When you marry believing women and then divorce
them before you have touched them, it is not required of you
to count the Iddat in respect of them (during which period
the responsibility of their sustenance lies with you and the
women cannot marry any other husband), so give them suitable
provision and part from them in a goodly manner". [Marriage
is a contract. When you find it difficult to carry out the
contract, end it in a lawful manner. There is no need to
create bitterness __ (2:228-236); (65:1-4)].
F. 'Iddat' for a widow is four months and ten days.
(2:234)
"If any of you dies and leaves his widows behind, they shall
wait for four months and ten days (for second marriage).
When the 'Iddat' ends, they are free to make a decision
about themselves according to law. They have the right to do
so. There shall be no blame on them that they have done this
way or that way. Remember, Allah knows all that you do."
In case she is pregnant, there is no separate injunction in
the Quran for it. But it can be deduced from the injunctions
regarding divorced (pregnant) women, that their Iddat shall
also be until they give birth.
RIGHTS OF A
DIVORCED WOMAN
A.
During the period of 'Iddat' the responsibility for
providing daily requirements and shelter shall be on the man
and its standard shall be the same as during normal life. It
is said in Surah At-Talaaq (65th Chapter of the Quran):
[(65:6-7); (2:241)] "Let the women live (during 'Iddat'
period) in the same style as you live, according to your
means; annoy them not so as to tease them. And if they are
pregnant, you have to provide their sustenance until their
delivery, and if they suckle your (offspring) for your sake
[i.e., if you cannot make any arrangement for the suckling
and by mutual consent it is settled that she herself shall
suckle], give them their due recompense, and enjoin one
another to do good; and if you disagree, another will suckle
for him."
In determining the scope of providing sustenance to
divorcees or compensation for suckling, be considerate of
the financial status of the husband. 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 been given. If a difficulty arises for the man on
account of the extra expenses, a relief can be obtained
according to the Divine Law. (The court shall keep this in
view).
But if during this period the woman commits an act of
immodesty, the man then, is no more responsible. (65:1) "O
Nabi! When you decide the cases of divorce, tell the people
that the matter of 'Iddat' is of great importance. It must
be accomplished adequately. For this, it is necessary that
an accurate count of the prescribed period be kept, so as to
submit totally to the injunctions laid down by your
Sustainer (2:228-236; 33-49). During this period do not turn
out the divorced women from your houses (65:2)."
During the period of 'Iddat' these are still their own
homes. Nor shall they (themselves) leave without a proper
excuse. However, in case they are guilty of some open
immodesty, they can be turned out of the house. These are
the limits laid down by Allah, and any one who transgresses
the limits of Allah, besides doing wrong to others, he also
wrongs his own self.
As stated above, the woman should not leave home and go to
some other place during Iddat. But if conditions are not
favourable to stay there, she can stay at some other place
by permission of the court. This is our deduction from the
Quranic verse, in which it is said: (4:130) "And if they
separate, Allah will render them both free from want out of
His ampleness". Allah shall make arrangement for the
fulfillment of their needs, i.e. the society (established
under the Divine Order) shall shoulder this responsibility.
B. For one year's provision of daily needs and
residence, the husband should leave a testament. But if
before this, the widow leaves, of her own choice to some
other place, this responsibility (of the late husband) comes
to an end: (2:240) "Those of you who die and leave widows,
should make a bequest for their widows for a year's
maintenance and residence, but if they leave (the residence)
of their own and make some other arrangement for themselves
according to the law, there is no blame on you for what they
do with themselves. Remember! The Divine Law is exalted in
power and is based on wisdom."
C. During 'Iddat' a widow is not allowed to marry
another person but there is no restriction on discussing the
possibility of marriage in the meantime: (2:235) "There is
no blame on you if you make an offer of betrothal or hold it
in your hearts. Allah knows that you would fancy to marry
them: but do not take any hidden promise of marriage from
them, negotiate with them in a recognised manner, but do not
resolve on marriage during the period of Iddat: and always
remain conscious of the fact that Allah is aware of the
ideas that flash across your mind. You should know that
Allah does not want to inflict any hardship on you by means
of these limitations. The object of these restrictions is to
protect your society from the injuries of wrong attitudes.
He does not get angry by your mistakes, so as to entangle
you in strict laws. This is done by tyrant rulers, not by
Allah.
If (during 'Iddat' or afterwards) a woman intends to
re-marry her former husband, do not stand in her way:
(2:232) "When you divorce women and they are nearing the
completion of their Iddat do not prevent them form marrying
their former husbands if they mutually agree to do so in the
recognised manner."
Note: This does not apply after the third divorce).
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