ArticlesTalaaq: Divorce
on the Scales of Islamic Sharia'h
By Bilal Abu Aisha
Reprinted from Nida 'ul Islam (islam.org.au), January 2003 edition
When a person wishes to worship Allah truly and properly, he must submit to Allah’s commands regardless of whether the commands are related to prayers, fasting, business transactions, marriage or divorce. And when not equipped with authentic Islamic knowledge (or when knowledge and understanding are not translated into action), and the person chooses to follow desires and whims over what’s prescribed in the noble guidance of Qur’an and the Prophet (saw), this will inevitably lead to problems in the various facets of the person’s life, especially in marital affairs.
Marital discord is not only exhibited by husbands but, in many cases, by wives, especially those influenced by the feminist movement or materialistic West, and who failed to turn completely to the Quran and Sunnah to live their lives. Such attitudes led to a great deal of marital discord among couples. Unfortunately, in many instances couples do not realise the steps needed to be taken to bring an end to such discord without hatred and desire for revenge; or for their marriage to return to its proper state, have been stipulated in the Quran and Sunnah over 1400 years ago.
The Prophet (saw) said: The lawful thing which Allah hates most is divorce. This hadith shows divorce is among the legal things that are Halal but not good. It is Halal because sometimes the situation is so complicated that a man is compelled to divorce, when it is reasonable and there is no way out. Divorce is not good because it is a cause of enmity and also a cause of Satans delight. The commonly quoted hadith, Marry and do not divorce for verily divorce causes the arsh (throne of Allah) to shake, is a fabricated and daeef (weak) narration deserving no consideration. Before delving into the key areas of divorce, it is worth pointing out that Divorce is a serious matter with no room for mockery or treating it lightly. The Prophet (saw) said: There are three matters in which it is not permissible to joke: marriage, divorce and emancipation (of slave).
The linguistic definition of Talaaq is the setting free. In the view of Islam, divorce means the immediate and future annulment of the marriage contract. This is confirmed in a plain declaration saying: I hereby divorce you! or indirectly saying, I hereby consider you unlawful to me! It can also be confirmed by a judge or in the absence of judge, a Muslim leader, on basis of the wifes request. This is known as Khulu. Divorce sometimes relieves the husband or wife of difficulty, when one of the two has a corrupt nature and a deficient faith; when the two do not agree in temper and purpose; or when their hearts repel and never go well together. Without love or agreement, the family structure collapses. The aim of the Shariah (Islamic law) is to establish a healthy family unit through marriage. If for some reasons it fails, there is no need to linger on under false hopes. Islam does not keep a couple tied in a loathsome chain to a painful and agonising position; instead, it allows divorce. It should only be resorted to when it becomes humanly impossible and due to unavoidable circumstances.
Marriage is a co-operation aiming at creating a happy home and harmonious family. To achieve intimate relations, affection, and mercy, both husband and wife must abide by the laws of Shariah, committed to the teachings and orders of Allah and His Messenger. Marital discord and divorce rates are on the rise on a daily basis, due to the heedlessness of spouses towards the rights of Allah and the rights of each other. There are many contributing factors leading up to this bitter reality. Divorce rates have increased first and foremost as a result of transgressing the boundaries, not fulfilling the rights and duties set by Allah. And so Allah punishes a person or a married couple by causing destablisation within the marital relationship.
Divorce is increasing due to:
- Spouses disrespecting one another.
- Irresponsibility on the part of the husband. The Prophet (saw) said: &and the husband is the guardian of his household. Divorce is increasing due to the husband not treating his wife with kindness. The Prophet (saw) said during the farewell sermon: Treat your women well and be kind to them for they are your partners and committed helpers.
- Spouses not acknowledging each others good actions. The Prophet (saw) said: Whoever does not thank people, is not thankful to Allah.
- Women disobeying their husbands with regards to lawful or permissible matters. The Prophet said: If a woman prays her five obligatory prayers, fasts her month, guards her chastity, and obeys her husband, it will be said to her: Enter paradise from any door you desire.
In addition, divorce rates are on the increase because of:
- Parents getting involved with the affairs of their married children, where they shouldnt be getting involved.
- Transgressing the boundaries Allah has set with regard to gambling-consuming intoxicants such as alcohol and illicit drugs, attending mixed weddings, music and singing, not adhering to the correct Islamic apparel, purchasing houses and cars through riba (usury and interest), in addition to insuring them through prohibited means.
- More and more Muslims are refraining from paying zakaat, and due to their neglect and abandonment of Salaat, which the scholars of Islam said is one of the fundamental contributors towards divorce.
There are two ways by which divorce takes place. One is known as Talaaq BidI (an innovated divorce), and the other is known as Talaaq Sunni (divorce carried out in accordance with the teachings of Muhammad (saw)). Talaaq Sunni entails the man uttering divorce at a time when he has not engaged in any sexual relations with her after her last menstruation, whilst his wife is in a state of purity. In other words, she is not menstruating or in a state of nifaas (post natal bleeding) and that he declares the divorce once only. And so if one of the previously mentioned conditions is violated, the divorce process is considered as having been carried out in an innovated manner.
Talaaq Bidi, is where a man divorces his wife while she is menstruating or is in a state of post natal bleeding, or that he divorces her after having sexual relations with her after her last menstruation, or that he divorces her by verbalising the divorce three times in one utterance or one same sitting. This is the overwhelming opinion of the majority of the scholars, except that Imaam Ash-Shafidid not consider the utterance of divorce at one time as an act of innovation. Imaam ash-Shafis opinion is refuted by hadith colleted from Bukhari and Muslim, whereby ibn Umar, the son of Umar ibn Al-Khataab (ra), divorced his wife when she was menstruating. So Umar (ra) asked the Prophet (saw) about his sons actions, to which he replied: Command him to take her back, and keep her till she is purified, then has another period, then is purified. If he wishes he may keep her and if she wishes he may divorce her before having sexual intercourse, for that is the iddah (period of waiting) which Allah commanded for the divorce of a woman.
This hadith provides many clear insights: It is prohibited to divorce during menstruation period; without the consent of a woman, a man can withdraw his decision within the specified waiting period (iddah); and it is an act of heresy (bidah) to divorce a woman in the state of purification after menses, in which sexual intercourse is carried out. Islamic scholars have differed on the issue of whether divorce uttered while a woman is in menses is actually counted. The majority of the scholars say divorce has taken place and it is to be counted. This is the opinion of Abu Hanifa, ash-Shafi, Maalik, Ahmad ibn Hanbal, An-Nawawi, and Al-Zaidiyyah. Those saying divorce has not taken place include the Dhaahiriyyah (the literalist school of thought), ibn Taymiyyah, his student ibn al-Qayim, and As-Sanaani. The correct opinion (and Allah knows best) is that of the majority of the scholars. That is, the one who divorces his wife whilst she is in a state of menses is counted as one divorce. This is in light of what ibn Umar himself has proclaimed in Saheeh Muslim and Bukhari that it was counted as one divorce against him.