Divorce: Islamic Limits and Regulations

Reprinted from OurDialogue.com

Contents:

• Prohibition of divorce during menstruation
• Taking an oath of divorce
• Where the divorcee resides during the waiting period
• Repeated divorce
• Reconcile honorably or separate with kindness
• The woman's right to demand divorce
• The prohibition of ill-treatment to elicit divorce
• The prohibition of the oath of desertion
• Question from a reader: "Beget children or else ..."
• Is conditional divorce valid?

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 mentioned earlier of resolving the conflict is unlawful and is prohibited in Islam. Some jurists maintain, it is injurious to both husband and wife, unnecessarily damaging the interests of the two, which, like the wasting of property is haram. "Do not harm yourself or others," the Prophet has instructed us.

People who divorce their spouses and marry others in order to enjoy a variety of sexual partners are liked neither by Allah nor by His Messenger. The Prophet called them "the tasters," saying: "I do not like the tasters, men and women," and "Allah does not like the tasters, men and women." Abdullah bin Abbas said, "Divorce is (only) in the case of necessity."

Prohibition of divorce during menstruation

When divorce becomes necessary, it is not permissible for the Muslim to implement it any time he pleases; he must wait for a suitable time. According to the Sharee’ah, this suitable time is when the woman is clean following her menstrual period or the period of perpetual discharge following childbirth and before her husband has resumed sexual relations with her, or when she is pregnant and her husband is aware of her pregnancy.

The reason for prohibiting divorce during menstruation or the period of puerperal discharge is that, since during such periods sexual intercourse is haram, the idea of divorce may come to a man's mind because of sexual frustration and nervous tension. He is therefore advised to wait until his wife is clean and to divorce her then, if he is intent on divorce, before the resumption of marital relations.

Just as divorce during menstruation is haram, it is likewise haram between menstruation periods (i.e. "the period of purity") if the husband has had intercourse with his wife following the termination of her previous period. Because it is possible that she may have become pregnant from this union, the husband may change his mind concerning divorce when he knows that his wife is carrying a child, desiring to stay married to her for the sake of the embryo in her womb. However, when the wife is in the period of purity but he has not had intercourse with her following the termination of her menses, or when she is pregnant and he is aware of it, he will be able to ascertain that his intention to divorce her is the result of deep-seated antipathy, and accordingly is permitted to carry through with the divorce. In the Saheeh of Al-Bukhari, it is transmitted that 'Abdullah bin Umar mentioned [such a]matter to the Messenger of Allah, he became angry, saying: "He must take her back. If he still wishes to divorce her, he may do so when she is clean of the menstrual discharge before having intercourse with her, for that is the period of waiting which Allah has prescribed for divorce." He then referred to the ayat, "O Prophet, when you (men) divorce women, divorce them during the prescribed periods." (65:1). Another version of this hadith reads: "He commanded him to take her back and then divorce her when she is clean from the menstrual discharge or (otherwise) is pregnant."

A question now remains: If a person does divorce his wife during these prohibited periods, does the divorce become effective or not? The prevailing opinion is that it does become effective, although the husband will be considered sinful. However, some jurists hold that, it does not become effective, as Allah did not legislate it so and whatever is not legal cannot be correct or enforced. Abu Dawood, on sound authority, has transmitted that when Abdullah bin Umar was asked, "What would you say if a man were to divorce his wife during menstruation?" he related his own story of divorcing his wife during her period and the Prophet's commanding him to take her back, disregarding his pronouncement of divorce.

Taking an oath of divorce

It is not permissible for Muslims to take an oath of divorce, vowing that if particular event does not occur, his wife will be divorced, or to threaten her by saying that if she does this or that particular thing, she will be divorced. In Islam an oath may be expressed only in one specific manner, that is, in the name of Allah alone. Apart from this, no other form of oath-taking is permitted. The Prophet said, "Anyone who swears by (anything) other than Allah, has committed shirk." and "Whosoever wants to take an oath should take it in the name of Allah or keep silent."

Where the Divorcee resides during the waiting period

The Islamic Sharee’ah requires that the divorced woman remains in her home, her husband's house, for the duration of her iddah (waiting period). It is not permissible for her to move from the house, as it is likewise not permissible for her husband to evict her without a just cause. This requirement leaves the way open, during the iddah following a first or second pronouncement of divorce, for the husband to revert to his wife without the requirement of remarriage. Her presence in the same house with him makes it quite probable that the mutual sympathy and love between them may be rekindled. If she is pregnant, the passing of months will make her pregnancy obvious, which may be a further inducement to him to change his mind. In any case, ample time is at their disposal to reconsider the whole situation. With the healing effect of time, feelings of antipathy may give place to affection and reconciliation, and the revitalization of their love may occur.

"...And fear Allah, your Lord. Do not turn them out of their houses, nor shall they leave (of their own accord) unless they commit some clear immorality; and these are the limits set by Allah. And whoever transgresses Allah's limits indeed wrongs his own soul. Thou knowest not; it may be that Allah will afterwards bring some new thing to pass." (65:1)

"If they must separate, it should be done with dignity and kindness, without mutual abuse, injury, recrimination, or infringement of rights, Says Allah Ta'ala: "Either retain them in kindness or part with them in kindness..." (2:229).

"For divorced women a provision (shall be made) in kindness, a duty for those who are conscious of Allah." (2:241).

Repeated divorce

The Muslim is allowed three chances, that is to say, three pronouncements or acts of divorce on three different occasions, provided that each divorce is pronounced during the time when the wife is in the period of purity and he has had no intercourse with her.

A husband may divorce his wife once and let the iddah pass. During the period of iddah, the two have the options of being reconciled without the necessity of remarriage. If, however, this waiting period expires without reconciliation, they are now fully divorced. Each of them is free to marry someone else or to remarry each other; should they want to remarry each other, a new marriage contract is required.

If after the first divorce the husband is reconciled with his wife but later the hostility and conflict begin all over again, all efforts at reconciliation and arbitration resulting in failure, he may divorce her a second time in the same manner as described above. In this case, too, he can return to her during the iddah without remarriage, or after the iddah has expired through a new marriage contract.

But it may happen that although he is reconciled with his wife again after the second divorce, he may later divorce her for the third time. This will then be a clear proof that the hostility between the two of them runs very deep and that they are incapable of living together. If this third divorce takes place, it is not possible for the husband to return to his wife during her iddah nor may he remarry her after the iddah unless she has been married to another man, to live with him as a permanent and true wife, and he then subsequently divorces her. It is, however, totally prohibited for the other man to marry and divorce her simply in order to make her halal for her first husband.

Those Muslims who utter three divorce pronouncements at one time or in one statement are rebels against Allah's law and are deviating from the straight path of Islam. Once the Prophet was informed about a man who had pronounced three divorces at one time. He got up in anger, saying, "Is sport being made of the Book of Allah while I am (yet) among you?" As a result, a man stood up and said, "O Messenger of Allah, shall I not kill him?"

Reconcile honorably or separate with kindness

When the husband has divorced his wife and the period of iddah is passing, he has two alternatives : either to reconcile with her honorably - that is, to return to her with the intention of living in peace and harmony, and not in order to torment or harm her - or to free her and part with her in kindness by allowing the iddah to expire without arguments and harsh words, and without setting aside any of their mutual rights.

It is unlawful for him to return to her just because the iddah is due to expire in order to torment her by prolonging the waiting period, thus depriving her of the opportunity to marry someone else. This was something that was done in the period of jahiliyyah. Allah Ta'ala then prohibited this injury to women in a very decisive manner, using a style of expression which makes the heart quake:

"And when you have divorced women and they have fulfilled the term (of their iddah), either retain them honorably or release them honorably; but do not retain them in order to injure them, for this is transgression, and whoever does this has wronged his own soul. And do not take the revelations of Allah in mockery, but remember Allah's favor upon you and what He has sent down to you of the Book and the Wisdom, to instruct you by means of it. And be conscious of Allah, and know that Allah is aware of everything." (2:231)

A little reflection upon this noble ayat of seven phrases, containing warning after warning, reminder after reminder, ought to be sufficient for anyone who has any feeling in his heart or any hearing when it is recited.

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 mahr (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. Allah Ta'ala says:

"...And if you 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 Thabit bin Qais came to the Prophet and said, "O Messenger of Allah, I do not approach Thabit bin Qais in respect of character and religion, but I do not want to be guilty of showing anger to him." The Prophet asked her about what she had received from him. She replied, "A garden". He asked, "Will you give him back his garden?" "Yes", she said. The Prophet then told Thabit, "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. Said the Prophet, "If any woman asks her husband for a divorce without some strong reason, the fragrance of the Garden will be forbidden to her."

The prohibition of ill-treatment to elicit divorce

It is haram for the husband to torment and mistreat his wife in order to compel her to seek a divorce so that she will return to him all or part of the property he has given her. Only if the wife is guilty of clear immorality, may her husband demand the return of all or part of the mahr to him. In this regard Allah Ta'ala says:

"...Nor should you treat them with harshness in order that you may take away part of what you have given them, unless they are guilty of open lewdness." (4:19).

It is also haram for a husband to take back anything from his wife because he hates her and wants to divorce her so he can marry another woman. As Almighty Allah says:

"But if you decide to take one wife in place of another, even if you have given one of them a heap of gold, do not take (back) anything of it; would you take it back by slander and a manifest wrong: And could you take it back, when each of you has been privately with the other, and they (the wives) have taken a solemn covenant from you?" (4:20-21)

The prohibition of the oath of desertion

One of the aspects of Islam's concern for the rights of women is that it prohibits a man to be so angry with his wife as to discontinue sexual relations with her for a period which she cannot bear. If this abandonment of sexual relations is accompanied by an oath on his part, he is given a limit of four months in which to calm down and revert to her. If he comes to his norms and resumes sexual relations before the expiration of the four months, it is possible that Allah may forgive him for his excesses and open the door of repentance to him; however, he must still do the penance prescribed for a broken oath. If, on the other hand, this period expires and he has not returned to her, his wife is divorced from him as a just punishment for his neglect of her rights.

Some jurists hold that the divorce is automatic at the expiry of four months and no judgment from a court is needed. Others, however, require that at the end of the period the matter should be referred to the judicial authority, who will then give them the option of reconciliation or divorce. [Added: That is variable in keeping the laws of various countries, but religiously they are automatically divorced.]

Such an oath of abstention from the wife is technically known in the Sharee’ah as eela. Concerning it Allah Ta'ala says:

"For those who take an oath of abstention from their wives, a waiting period of four months (is ordained); if they return, indeed, Allah is Forgiving, Merciful. But if their intention is firm for divorce, then, indeed, (Allah) is Hearing, Knowing." (2:226-227)

This period of four months has been specified to give the husband ample time to calm himself and to restore the relationship of his volition. Moreover, four months is normally regarded as the maximum period a woman can endure separation from her husband. Commentators on the Qur'an narrate the following incident in support of this opinion:

Caliph Umar found that a woman's husband had been gone on a military expedition for a long time. He then asked his daughter Hafsah, the widow of the Prophet, "How long can a woman endure separation from her husband?" She replied, "Four months." Subsequently, the caliph of the Believers decided that he would not send a married man away from his wife for a period exceeding four months.

Question from a Reader: "Beget children or else ..."

QUESTION: I have been married for four years during which my parents-in law have put too much pressure on me to beget children, going to the extent of forcing me to have surgery and to try to conceive through the test-tube baby technique. We even have three frozen embryos waiting to be placed inside me for gestation. I went through too much stress and agony right from the beginning. However, the cause for my failure to conceive lies with my husband and this is clear from tests carried out on both of us. He had promised me never to divorce me, but now he is saying that he cannot refuse his parents’ request to divorce me. He also says that he obtained a ruling from scholars in Deoband that he must obey his parents in this request. I have told him that it is better for the two of us to live in our own house, but he has not provided me with that, although it is not difficult for him to do so. He says that there is much pressure on him, with his father threatening to disinherit him. Furthermore, the father is insisting that I will have to spend my waiting period in my parents’ home. It is now several months since we are separated with him living abroad, and he has not yet acted on his parents’ request. I will be grateful for your advice.

ANSWER: I am not sure whether an outline of the Islamic view on the different aspects of this problem will go a long way in helping the parties to sort it out. It appears to me that at least some of the parties are not interested even to find out the Islamic view. The husband’s father, for example, threatens to disinherit his son if he does not divorce his wife. Has he bothered to find out whether this option is open to him under the Islamic law? The fact is that no parent, or anyone for that matter, may disinherit an heir for any reason. The identity of the heirs and their respective shares are a matter that Allah Himself has determined in a very elaborate system of inheritance which He has laid down in the Qur’an. For anyone to try to disinherit any one of his heirs is an act of aggression on Allah’s authority. It represents a claim of equality with Allah, since a law can be amended only by one who is either equal or superior to the one who made the law. That is not accepted from anyone.

On the other hand, begetting children is also something that Allah determines in His wisdom. He says in the Qur’an: "He grants whosoever He wills female offspring, and He gives male offspring to whomever He wills; Or He may give them both male and female, and He may leave others sterile. He is All-Knowing, Able.." (42: 49-50) These two verses spell out very clearly the fact that the creation of human being, or any other creatures, is a matter of Allah’s will which is free of all restrictions and influences. If He has determined that a certain couple will not have children, there is no way that they will get a child, no matter what medical treatment and technology is available to them. On the other hand, if He decides to give a couple a child against all indications that show that the couple could not have a child, nothing will prevent His will. There was a case of a woman in Scotland who had an operation to stop her getting pregnant. This operation is practically the total answer to unwanted pregnancies. Yet she was pregnant in a few months. I have a friend who was told by a top specialist in Britain that there was no possibility that his wife would ever get pregnant, and before the year was out she had given birth to the first of her children. With her background, my reader should fully understand this. It is certainly wrong that her husband’s family are putting so much pressure on her in the matter of having a child.

I do not know whether it is wise to use the test-tube technique in this case, but then again, it was not the Islamic view that the family sought before deciding on a particular line of action. To determine whether the embryos that have been produced though this technique should be placed in the woman’s womb for gestation or left to die is an intricate question that could be answered only after a thorough study of the case. However, if she conceives through this method, the child is illegitimate unless both the sperms and the egg were taken from the couple themselves. The use of a third party is not acceptable.

On the question of divorce, I think my reader should review her situation with her husband and his family very carefully. From what she writes, it appears that it may be in her interest that this marriage is dissolved. However, the way she is trying to keep her marriage suggests that she has not given up on her husband yet, and that she believes that if left to themselves, she and her husband can still make their marriage successful. That is perhaps the reason for her attempt to settle with her husband in their own home. I can tell her that this is her right if her husband can afford that. It is also her right to be given a chance to solve her problems in consultation with her husband, or through the appointment of two arbiters, one from her family and the other from her husband’s family.

As for the rulings her husband claims to have had from the scholars of Deoband, I feel that, if true, the ruling does not take all factors into consideration. What we need to remember is that a scholar gives his ruling on the basis of the question which is put to him. If he is asked whether a husband should obey his father when he tells him to divorce his wife, the scholar is likely to answer that he should, provided all other methods have been exhausted. If the question is qualified with the introduction of certain factors that affect the case, the answer is likely to differ. Therefore, our reader should request her husband to agree that the two of them should apply together for a ruling, after both of them agree on the phraseology of the question. He will be surprised that the answer is certain to be different. Hence, we should not read too much in the answer he has already got.

What I should say when a reader puts to me a general question whether he should obey his father if he asks him to divorce his wife is to tell him that his wife also has rights which he must make sure to respect and fulfill. Judging only by the information my reader has supplied, I feel that if her husband divorces her for the reason he has given, he may be guilty of injustice. Allah does not accept injustice, even when it is the result of a son obeying his parents.

The Prophet, peace be upon him, says: "No creature may be obeyed in what constitutes disobedience to the Creator." In a Qudsi Hadith, Allah is quoted as saying: "My servants, I have forbidden Myself injustice, and have made injustice forbidden among you. Do not be unjust to one another."

If her husband divorces my reader only to please his parents, without considering her rightful claims, then he could easily be guilty of injustice. It is wrong of him to do that. The least he is expected to do is to try to give his wife her full rights, including a fair chance to look at what is needed to make their marriage successful. That could be through proper discussion between the two of them, or through the mediation of two arbiters, or in consultation with other people who could give a neutral opinion. Whatever is decided at the end should be based on full justice on both parties.

As to what her husband tells our reader of the pressure and stress he is under, may I remind him that in Islam, a man is considered a shepherd in his own household. He should take care of his family as a shepherd takes care of his flock. He must not let that pressure produce injustice at his own hands to those who he is supposed to look after. It is he who will be asked by Allah on the Day of Judgment whether he has taken care of his flock, or his wife in this case. As he remembers his duty toward his parents, he should also remember that the Prophet, peace be upon him, has told us all: "Take care of your women."

Is he acting on the Prophet’s advice when he divorces his wife to please his parents when she has done them no wrong?

Is Conditional Divorce Valid?

Having tried hard to discipline his wife, without much success, a man writes down what he wants her to do. He gives her that paper after he has written clearly at the bottom of it: "Disobedience of these instructions would be tantamount to divorce." She nevertheless disobeys his instructions and he immediately stops his marital relationship with her. Is she actually divorced? Do they require a remarriage, if they wish to resume their marital relationship?

Islam views marriage and divorce very seriously. The Prophet says that there are three matters which must be taken seriously, whether they are said in earnest or jest. These are: "marriage, divorce and freeing of a slave." If we reflect for a moment on this wisdom of making all talk on the freeing of slaves serious, we understand how much Islam cares for the feelings of those who are in a position which makes them vulnerable to abuse by other people. Let us imagine for a moment a slave whose master tells him that he would be free after three days or when he has completed a particular assignment, etc. Then three days later, or on the completion of the assignment, the master tells the slave that he was only joking and that he did not expect him to take his words seriously. The slave would be broken-hearted and he could easily harbor ill feelings toward his master. Now that slavery has disappeared, thanks to Allah, such a cruelty does not take place. We can appreciate, however, how Islam cares for the feelings of those who are vulnerable.

As we all know, Islam has allowed divorce because it is needed as a solution for social problems. However, a husband who wishes to divorce his wife must abide by the rules which Allah has laid down, and the Prophet has explained and elaborated, for the divorce to be proper and valid. For example, a husband must make sure that the time is appropriate for him to divorce his wife. It is forbidden for a man to divorce his wife when she is in her menstruation period or after they had sexual intercourse during a period of cleanliness from menstruation. It is also forbidden to divorce her three times on the same occasion. But hardly any divorcing husband pauses to consider whether the time is right for him to divorce. The majority of people tend to think that unless they pronounce the word of divorce three times, the divorce is not valid. They thus hasten to utter something which Allah has forbidden. They earn his displeasure and land themselves in trouble. When the Prophet was told that a man divorced his wife three times together, he was very angry. He said to his companions: "Is Allah's book to be taken lightly when I am still alive among you?" (Related by An-Nassaie). Abdullah ibn Abbas reports that Rukana ibn Abd Yazeed divorced his wife three times on the same occasion, and he was very sad for having done so. The Prophet asked him: "How have you divorced her?" He answered: I have divorced her thrice. The Prophet asked: "On the same occasion?" When the man answered in the affirmative, the Prophet said: "That is a single divorce. You may remarry her if you wish."

The Islamic system does not allow for conditional divorce. Thus, if someone says to his wife, "you are divorced in three months time, or at the end of the year, or when I have arrived at my office, etc." she continues to be his wife at the end of the period he has specified or on his arrival at his office. This is simply unacceptable as a way of divorce. Many prominent scholars are of the view that a conditional divorce is not valid. The family law of Egypt which has been based on the Islamic law, does not recognize such a divorce.

I am more inclined to the ruling given by Imam ibn Taimiyah, that a conditional divorce is considered on the basis of the circumstances of each case. When a man tells his wife that she is divorced if she does something he specifies, then he will have to answer a simple question: would he prefer to see his marriage terminated rather than see his wife do what he told her not to do? Or was he simply using the threat of divorce in order to frighten her into obeying his instructions? If he says that his statement was only meant as a warning, then no divorce takes place as a result of her disobedience. On the other hand, if he insists that he meant his statement as divorce, because he would rather divorce her than see her doing what she did, then that is a divorce. In this latter case, the man has clearly meant his words to be a divorce. Hence, the divorce takes place. This means that each case is treated on its merits and according to the intention of the husband.

[If we apply this rule to the case in question, the husband should judge his intentions at the time he wrote the note and come to his own conclusion.]

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