By permitting divorce has not the Qur’an involved itself in creating
helpless women and children?
The general objective of the Qur’anic laws is the preservation
of the marital relationship unto death. However, by no means does it
seek to remain in the dark with regard to the difficulties associated
with human nature. It may be that there exist quarrels and incompatibilities
amongst spouses. These can even lead to the disruption of the
family. The thirty - fourth verse of surah Nisa deals with the measures
that a man has to undertake in order to save the family from
disintegration in the event that the problem has been due to the woman’s
lack of discipline and obedience…Counsel, advice, separation
from bed, beating – all of these are meant to save the family from
breaking up. The Qur’an has further commanded that no punishment
must be carried out against the spouse who, with other measures taken
against her, turns away from indiscipline. “Men are the protectors and
maintainers of women, because God has given the one more (strength)
than the other, and because they support them from their means. Therefore
the righteous women are devoutly obedient, and guard in (the husband’s) absence what God would have them guard. As to those
women on whose part ye fear disloyalty and ill-conduct, admonish
them (first), (next), refuse to share their beds, (and last) beat them
(lightly); But if they return to obedience, seek not against them means
(of annoyance): For God is Most High, Great (above you all).” (4: 34).
The Qur’an has provided for measures that would save the
family from disintegration. It is, however, not the Qur’an’s injunction
that divorce must be resorted to as soon as it is seen that problems
continue to persist even after all other measures have been taken. On
the other hand, it stresses upon the need for the other family members
to sincerely mediate between the estranged spouses and help them to
come closer. Indeed, the Qur’an does say that when an attempt at
reconciliation is being made in all sincerity, Allah will provide ways
and means for the purpose. “If ye fear a breach between them twain,
appoint (two) arbiters, one from his family, and the other from hers; if
they wish for peace, God will cause their reconciliation : for God hath
full knowledge, and is acquainted with all things.” (H.Q 4: 35).
It is also true that the Qur’an permits the dissolution of the
marriage tie if all such attempts at reconciliation between the spouses
fail. Indeed, when the partners are forced to live together as husband
and wife even when all attempts at reconciliation fail it will be more
the case of a bondage, rather than a bond, that will exist between the
two. Leaving such bondages untied will only lead to a situation where
it will have to be cut through. This is what transpires in communities
wherein divorce is not permitted. It is in such circumstances, where
the bondage is to be untied, that the Qur’an has permitted divorce. It
can also be seen that besides permitting divorce in such situations, the
Prophet had also instructed that both partners must exert to their utmost
to avoid such an eventuality. He had said: “In the sight of Allah
the most hated amongst the permissible things is divorce.” (Abu
Dawood, Ibn Majah).
The Qur’an had, as in the case of all other matters, only served
to improve upon and civilize the practice of divorce as it existed at that
time so that it may be made as acceptable and suitable for mankind as
possible. It is quite true that almost all legal codes in the world do
permit divorce. Several legal codes, however, see divorce as a weapon
that can be used indiscriminately by man against woman. The Qur’an
has brought about a change in such a state of affairs and has presented
divorce as an option that is permitted only in the most critical of
eventualities.
Manu spoke of divorce thus:
“Vandhyasta medhi vedhyabdhe deshamedumrthepraja
ekadashe sthreejanam satyasta priya vaadiui”
(Manusmrithi 9:81).
“A barren wife may be superseded in the eighth year; one
whose children have died, in the tenth; one who bears (only) daughters,
in the eleventh; but one who says unpleasant things (may be superseded)
immediately”
It is especially relevant that the Qur’an does not instruct one to
discard one’s wife if she be barren or is suffering from other ailments.
It is cruel that the woman be divorced for no crime of hers for, after
all, barreness, giving birth to a stillborn, or to female off springs alone:
these are all cases that go beyond her control and she can have no
part, whatsoever. The Qur’an does not stand by such cruelty. It is also
unjust that the woman who displeases is discarded straight away. The
Qur’anic recommendation is that she be allowed the opportunity to
correct herself and she be divorced if, and only if, she refuses to comply,
thereby, leading to a situation where such a course of action is
made expedient. The Qur’an further instructs that the woman be given
a further remuneration at the time of the divorce. “For divorced women
maintenance (should be provided) on a reasonable (scale). This is a
duty on the righteous.”(H.Q 2:241). Thus, the prescription of the
Manu smrithi that the ‘divorced women are to be given nothing’ is
quite alien to the Qur’an.
What is the stand of Marxism, which itself claimed to be the
ideology of the twentieth century, on this issue? Let the Marxist
ideologues speak for themselves: “It is not possible for any to say how
long the individual tendencies for sexual love will last for each person,
particularly for the man. It is better that divorce be resorted to as soon as it becomes clear that all love has drained away or that it has been
channeled into another receptor. If that be done, it will be a blessing
for the partners themselves and for the society as a whole.” (Marx,
Engels: Selected Writings, Volume 3, P.319)
It is the stand of communism that divorce be resorted to as
soon as all love drains off. The Qur’an disagrees with this attitude. In
the Qur’anic vision, love is never a material commodity that exhausts
itself. It is, in fact, a divine gift. It ceases to exist only because of the
changes that take place in the material world. Lust and love are never
the same. It is not the recommendation of the Qur’an that the marriage
bond be dissolved on the mere pretext that all love has dissipated
owing to problems between the spouses. The Qur’an has chalked out
the ways in which those problems can be resolved after they have
been properly identified. In the Qur’an’s view divorce becomes the
better option only when all attempts at reconciliation fail and the spouses
keep on growing apart from each other. Marxism sees love as a material
commodity and recommends divorce as a solution as soon as it
dissipates. Indeed, it is a solution that is part and parcel of its vision of
society. It was about just such a society that the greatest Marxist
ideologue of India had commented thus: “They are free to chose the
mate of their liking and to live the married life so long as it suits them.
If any of the partners were to dislike the arrangement, divorce could
be had and, if so desirous, they could chose another mate and settle
down to yet another married life. It is just to bring about such a state
of affairs that Democracy as well as Socialism, which is its higher
form, functions.” (E.M.S: Chinda weekly, 25th November, 1983)
It is clear that divorce will be a daily occurrence in a society as
envisioned by communism. It is never such a society which Islam
conceives. It is for the same reason, therefore, that the Qur’an introduces
divorce as an option that is permitted only in the most inevitable
of circumstances.
It is clear from the Old Testament of the Bible that divorce was
permitted in Israeli society. It was a divorce that was not subject to
any conditions, whatsoever. The only condition that did exist was that
if the divorced woman was again divorced by her next husband she
could not be married to her first husband again. Observe how this is
explained in the Old Testament of the Bible:
“When a man takes a wife and marries her, and it happens that
she finds no favor in his eyes because he has found some uncleanness
in her, and he writes her a certificate of divorce, puts it in her hand, and
sends her out of his house,when she has departed from his house and
goes and becomes another man’s wife, if the latter husband detests her
and writes her a certificate of divorce, puts it in her hand, and sends her
out of his house, or if the latter husband dies who took her as his wife,
then her former husband who divorced her must not take her back to be
his wife after she has been defiled; for that is an abomination before the
Lord, and you shall not bring sin on the land which the Lord our God is
giving you as an inheritance.” (Deuteronomy24:14)
The same idea can be found in the book of Jeremiah (3:1,2).
From this it may be understood that divorce was prevalent amongst
the Jews.
This is, however, not the case with the New Testament. There
are verses in the gospels and the words of Paul, which explicitly prohibits
divorce.
“And I say to you, whoever divorces his wife, except for sexual
immorality, and marries another, commits adultery; and whoever marries
her who is divorced commits adultery.” (Mathew 19:9)
“So He said to them, ‘Whoever divorces his wife and marries
another commits adultery against her.’And if a woman divorces her
husband and marries another, she commits adultery.” (Mark 10 :11,12)
“But I say to you that whoever divorces his wife for any reason
except sexual immorality causes her to commit adultery; and whoever
marries a woman who is divorced commits adultery.” (Mathew
5:32)
“Now to the married I command, yet not I but the Lord: A wife
is not to depart from her husband.But even if she does depart, let her
remain unmarried or be reconciled to her husband. And a husband is
not to divorce his wife.” (1 Corinthians 7:10,11)
It need not be emphasized that these are instructions that make
divorce quite impossible. The only thing that makes divorce possible
is adultery on the part of the woman. According to the laws of the
New Testament it is also a sin to marry a woman who has been divorced
by her husband. Cases wherein divorce becomes impossible
will further lead to extremely dangerous situations. For it is possible
that, at least in a few instances, the wedlock actually turns out to be a
burden and a bondage. In such instances the lack of freedom to untie
the knots of such bondage can lead to grave dangers. In fact, the
Christian community is indeed, facing such dangers presently.
In countries, which have accepted the Christian way of life,
voices are now being raised for relaxing the laws prohibiting divorce.
It is now being said that one of the reasons for laxity in the moral
plane, in these lands, is the very existence of such laws. What is it that
is happening in those lands? The husband and wife both harbour mutual
animosity towards each other. Indeed, such animosity often prevails
in families and it prevents them from living in harmony together.
They continue to grow apart from each other. All sorts of problems
and quarrels take place. The man, in order to satisfy his sexual desires,
finds gratification with call girls or his girl friends. The woman
takes recourse to giglo (male prostitutes) or incest to satisfy her sexual
desire. Both remain as husband and wife! There are with them their
children as well! But is it possible to call this group a family? What will
be the condition of the children belonging to this family? Studies have
revealed that the tendency for crime and other mental ailments that
develop in children are all primarily because of such a disturbed family
atmosphere.
Take the case of India itself. As far as the Christians are concerned,
the only way for divorce is to prove that the husband or the
wife has indulged in adultery. For those who yearn for separation it
then becomes possible to create circumstances that can make of the
other half an adulterer (or an adulteress). Even if there are those
who can prove their innocence under these circumstances, evidence
to brand them as adulterers is then fabricated. Righteous men and
women are finally branded as adulterers with not a little help from the
silver tongued oratory of the lawyer who argues successfully against
them in the courtroom. In the event that even this proves useless and
the defendant manages to cross the scrutiny of the court of laws, a
‘solution’ for the problem is quickly found in an exploding gas stove or
through food poisoning. It is the contention of the Qur’an that such a
state of affairs can never be allowed to transpire. It is, thus, that we
feel the laws of divorce that it envisages to be strict, at the same time,
yet practicably easy.
The atmosphere of love, compassion and peace that must reign
within the family is, however, not one that is to be enforced with the
rod of law. It should emanate from that love which binds two hearts
together. Indeed, it is futile to even try to reconcile hearts that have
grown apart simply through the use of law. It is necessary, in all such
instances, to identify the causes for this loss of love and to treat them
accordingly. It is this treatment that the Qur’an recommends when
cracks develop within the institution of the family. In the view of the
Qur’an divorce must be resorted to only when all such methods of
treatment fail. In such a situation all solutions other than separation
quite often complicates the problem even further and leads to unfavourable
and unsavoury incidents. More than the man, it is the woman
who suffers the most owing to such incidents. It can, therefore, be
asserted in the most unambiguous of terms that by permitting divorce
under inevitable circumstances, the Qur’an has, far from putting the
woman in any difficulty, actually protected her. Contemporary events,
too, provide for lessons in this direction.
Does not the Qur’an see the wife as a mere instrument that can
be disposed off by uttering Talaq thrice?
No. It is from the misunderstanding about Talaq that this doubt
find its origin. Technically, Talaq refers to that act of the man whereby
he uses his authority to dissolve the marriage tie. It is the Qur’an’s
position that all efforts must be made to avoid situations that will lead
to Talaq. It commands that even in the case where the man dislikes
his mate, he is to strive to share his life with her to the extent that it is
possible to do so. “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
maybe that ye dislike a thing, and God brings about through it a great
deal of good.”(4:19). In the Qur’an’s view everything must be done to
maintain the unity of the spouses. However, there is no harm in their
separating from each other in situations wherein all love and unity
dissipates and the very purpose of marital itself is not served. When it
is the man who initiates procedures for this separation the process is
referred to as Talaq.
Islam has prohibited the divorcing of women during periods of
their menstrual cycle. It has been proven that the mental and physical
faculties of the woman undergo perceptible changes during this period.
She will, during such periods, be short tempered and prone to
lapses of memory. It is thus quite possible that there will ensue quarrels
between the spouses during periods of the menstrual cycle. This
quarrel cannot be allowed to lead to divorce. Furthermore, sexual activity
between the spouses, which serve the function of generating
mutual interest and goodwill between the two, is rendered prohibitive
during this period.
It is in the bedroom that, after all, most quarrels are resolved.
Sex that follows after the end of the menstrual cycle usually proves
sufficient to set aside quarrels that arise during that period. Thus, the
Prophet taught that it is not permissible to divorce one’s wife during
her periods and that it is obligatory for those who have done so to take
her back.
The man who divorces his wife after her menstrual period must,
however, not turn her out of his house. She must not on her own leave
her husband’s house either. She is to remain in the house for a period
that covers three menstrual cycles. This period is three months for
those women who are past their menstrual courses and for the pregnant
it covers the period upto childbirth. This period is technically
termed as Idha period. It is the legislation of the Qur’an that the
divorced woman is to live this period in the house of her husband
itself.
“Divorced women shall wait concerning themselves for three
monthly periods. Nor is it lawful for them to hide what God hath created
in their wombs, if they have faith in God and the last day. And
their husbands have the better right to take them back in that period, if
they wish for reconciliation. The 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 God is exalted in Power,
Wise.”(2:228).
“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.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 God. Such is the admonition given to him who
believes in God and the last day. And for those who fear God, he
(ever) prepares a way out.”(65:1,2)
The man and the woman do not really live as husband and wife
during the Idha period. But nor are they strangers either. After all, it is
in the house of the man that she continues to live. It will be of use in
helping the partners to change their minds if the woman remains in the
house of her husband even after divorce. Two people who, till yesterday,
had slept together, today stays apart from each other. Furthermore,
he continues to live watching her. This would, indeed, serve to
generate in him old desires and perhaps even to bring down his temper
as well. The man has the right to take her back during the period of
the Idha. This is quite unconditionally possible for him. How scientific,
indeed, is the path adopted by the Qur’an in saving the institution
of the family from disruption; and all this even while not taking recourse
to the implementation of a more drastic measure.
Consider the case where divorce has been solemnized. Further,
the woman completes the period of the three menstrual cycles in the
house of her husband. There is, however, no way of getting them to be
together once again. There can then be no option here but that of
separation. It is, however, the Qur’an’s instruction that even this divorce
has to be carried out in the most amicable way. “But if ye decide
to take one wife in place of another, even if ye had given the
latter a whole treasure for dower, take not the least bit of it back:
Would ye take it by slander and a manifest wrong?” (4:20).
But if the divorce takes place even before one comes into physical
contact with one’s wife, she needs to be given only half the dowry
that was agreed upon. (2:237).
The Qur’an further instructs that the woman should be given a
fair compensation at the time of the divorce. “For divorced women
maintenance (should be provided) on a reasonable (scale). This is a
duty on the righteous.” (2:241).
If a man divorces a woman and after a while he regrets his
action. Further, the divorced woman has not been remarried yet. He is
filled now with the longing to have her back as his wife. Here the
Qur’an permits him to remarry her. Supposing now that he divorces
the woman yet again after having remarried her. He then has the right
to have her back just one more time. If he were to divorce her again
for a third time he cannot take her back again. This is the three Talaq
system that has been mentioned by the Qur’an. Let the Qur’an itself
speak:
“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 God. If ye (judges) do indeed fear that
they would be unable to keep the limits ordained by God, there is no
blame on either of them if she give something for her freedom. These
are the limits ordained by God; so do not transgress them. If any do
transgress the limits ordained by God, such persons wrong (themselves
as well as others). So if a husband divorces his wife (irrevocably),
he cannot, after that remarry 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 God. Such are the limits ordained by God,
which he makes plain to those who understand.”(2:229,230).
This is the three-Talaq system that finds mention in the Qur’an.
All three are divorces that take place at three separate instances.
There is no difference of opinion amongst the vast majority of the
leading Muslim jurists over the ruling that it is prohibited to pronounce
three talaqs in one go. Umar (R) ordered the whipping of a man who
had uttered all three talaqs at the same time and instructed that he be
beaten for doing so. The great aversion, in Islam, to this form of pronouncement
may be understood from this one incident. In reality, the
three-talaq system of divorce is most-suited to the nature of woman.
A man who lives with his wife in accordance with the dictates of the
Qur’an and has, in his heart, even the least iota of love, will not be able
to pronounce talaq the third time. He would definitely strive to seek
out, and employ, ways and means to continue living with his wife before
he even attempts to pronounce talaq a third time. Indeed, he
would be ever conscious of the pain of separation that he had undergone
on two earlier occasions. He would, therefore, divorce her a
third time only under the influence of the most intense conviction that
they can never again get along together with their lives.
