ArticlesDivorce in the Shari'ah
Reprinted from "A Journey Through Islam" website
"Generally speaking married couples make their best efforts
to continue their marital relations in cordiality and happiness."(1)
There are those occasions where it becomes impossible for a
couple to maintain a viable relationship (i.e. neglect, abuse,
etc.). In these cases "the Shari'ah takes a very reasonable
view of such an intolerable situation and instead of forcing
the couple to stay together...."(2) it permits a divorce.
There are three kinds of divorce in Islam:
The first is Talaq (by the husband) and the second is Talaq Al-Bida'h (Divorce of Innovation) and Khul' (by the wife).
Talaq
Talaq has two forms:
1. Talaq ar-Raji': (revocable divorce) which has two types:
- Talaq Ahsan: (the most approved divorce). It is meant as a means to heal the breach between a couple and allow for the soothing of frayed nerves. It has three conditions. The husband must only pronounce one Talaq. The Talaq must be only pronounced when the wife is in a state of purity. The husband must abstain from sexual contact with his wife for the 'iddah (the waiting period) which is three months.
- Talaq Hasan: (approved). In this form divorce is pronounced in three successive periods. After the first two the husband has the right to take his wife back if they so desire to reunite but if he pronounces divorce a third time it becomes irrevocable. The wife must marry another at this time.
2. Talaq al-Bain: (irrevocable divorce). This is a divorce that with three pronouncements in successive sittings or at the same sitting or before the consummation of the marriage. There is no return allowed under these circumstances unless the woman has an intervening marriage.
"Talaq is a right available mainly to the husband, but not to the wife. Even though Islam allows divorce, the Prophet (pbuh) says: 'Of all things that Islam has permitted, divorce is the most hated by Allah.' Hasty and wanton use of the right of divorce is regarded as most condemnable in Islam." (3)
Surah Al-Baqarah 229: "A divorce is only permissible twice. After that the parties should either hold together on equitable terms or separate with kindness."
This could be likened to the "three strikes and you're out" policy.
Talaq Al-Bida'h (Divorce of Innovation)
This was a type of divorce that made its appearance after the death of the Prophet (pbuh). It is where the man pronounces Talaq three times at one sitting or sends it in writing to his wife. This is a sin against the precepts of the Shari'ah and was severely denounced by the Prophet and Khalif `Umar would whip a husband who did such a thing.
Khul'
This a divorce that is instigated by the wife. It is where she applies to a Qadi for divorce.
Surah An-Nisa' 128 : If a wife fears cruelty or desertion on 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. But if you practice self-restraint, Allah is well-acquainted with all that you do.
In the case of Khul', the wife must return all or part of the mahr (the dower). A case in point, where the woman would be allowed to keep the mahr, is what Imam Malik said and that was if a wife was forced by her husband to enter Khul', she would be entitled to get the mahr back.
The issue of divorce is covered in more detail in the book "Woman in Shari'ah (Islamic Law)" by 'Abdur Rahman I. Doi.
Footnotes:
1. Woman in Shari'ah (Islamic Law) by 'Abdur Rahman I. Doi; Page 81
2. Woman in Shari'ah (Islamic Law) by 'Abdur Rahman I. Doi; Page 81
3. Woman in Shari'ah (Islamic Law) by 'Abdur
Rahman I. Doi; Page 84