divorce in islam

Women and Divorce From The Islam­ic Perspective

Intro­duc­tion

The posi­tion of women in an Islam­ic mar­riage insti­tu­tion has always been a ques­tion among the crit­ics out­side Mus­lim world. Islam is accused for not giv­ing the fair right to women as com­pared to their hus­bands, and this include in the mat­ter of divorce. It is often claimed that the easy divorce pro­ce­dure in Islam results in the oppres­sion among Mus­lim wives, with­out real­is­ing the fact explained in a hadith by the Prophet Muham­mad(P), who said that the halaal mat­ter which is most hat­ed by God is the talaaq.See Ahmad ibn Naqib al-Mis­ri (transl. Nuh Ha Mim Keller), The Reliance of the Trav­el­er : A Clas­sic Man­u­al of Islam­ic Sacred Law, Amana Pub­li­ca­tions, 1997, p. 556. Although the sta­tus of this hadith is itself mur­sal and can­not be sound­ly attrib­uted to the Prophet, its mean­ing is sound as com­ment­ed upon by Ibn Uthaymeen, Liqa at al-bab il-Maftooh, no. 55, ques­tion no. 3 In short, a divorce is not encour­aged in Islam for as long as a bet­ter solu­tion can be obtained. This brief arti­cle is intend­ed to out­line the basic prin­ci­ples in the reg­u­la­tions con­cern­ing divorce in Islam, and at the same time tries to exam­ine the view of the so-called oppres­sion” towards women with regard to this mat­ter.See also our arti­cle : Divorce and Rec­on­cil­i­a­tion of Mar­riage in Islam

Why a Divorce ?

Islam con­sid­ers a mar­riage insti­tu­tion is built based on mutu­al trust between hus­band and wife, and is for the ben­e­fit of both women and men. This is out­lined in the fol­low­ing verse :

And among His signs is this, that He cre­at­ed for you mates from among your­selves, that ye may dwell in tran­quil­li­ty with them and He has put love and mer­cy between your (hearts), ver­i­ly in that are Signs for those who reflect.” (Qur’an, Sura’ Ar-Rum : 21

It is essen­tial there­fore, for both hus­band and wife to try to ful­fil the rights of each oth­er, so as to make the mar­riage insti­tu­tion ben­e­fi­cial and more mean­ing­ful to both par­ties. How­ev­er, it is some­times the case where both par­ties are not able to come to an under­stand­ing and agree­ment in order to con­tin­ue their mar­riage fur­ther. As a result, there often is the case where they lost their love and mer­cy pre­vi­ous­ly exist­ing in the mar­riage, and even worse, wives are left hang­ing by their hus­bands while their hus­bands enjoy their life with oth­er women.

Islam how­ev­er, specif­i­cal­ly men­tions that women are not to be left hang­ing, as indi­cat­ed in the fol­low­ing verse :

Ye are nev­er able to be fair and just as between women, even if it is your ardent desire. But turn not away (from a woman) alto­geth­er, so as to leave her hang­ing. If you come to a friend­ly under­stand­ing, and prac­tice self-restraint, God is Oft for­giv­ing, Most Mer­ci­ful.” (Qur’an, Sura’ An-Nisa’: 129 ) 

In the above verse, it is clear­ly indi­cat­ed that the first step is to try to solve the prob­lem between hus­band and wife in a friend­ly man­ner, so as to keep the mar­riage insti­tu­tion intact, and the hus­band and wife are not separated.

Anoth­er exam­ple where­by God pro­hibits a hus­band to leave his wife hang­ing is shown in verse 226 – 227 of Sura’ Al-Baqarah. These vers­es was sent down to abol­ished the jahiliyah tra­di­tion with rela­tion to ila’, where­by the hus­bands leave their wives hang­ing with­out the nec­es­sary pro­vi­sion for main­te­nance, but did not divorce them. This sort of tra­di­tion is oppres­sive towards women, and the Holy Qur’an pro­vides the nec­es­sary solu­tion for the women, in order to pro­tect their rights to live in a hap­py man­ner as a human being.

In the case where there is no solu­tion obtained to con­tin­ue the mar­riage in a bet­ter man­ner, a fair solu­tion on divorce is allowed as out­lined in the fol­low­ing verse :

But if they dis­agree (and must part), God will pro­vide abun­dance for all from His all-reach­ing boun­ty : for God is He that careth for all and is wise.” (Qur’an An-Nisa’ :130)

The rea­son why a mar­riage can be ter­mi­nat­ed is to avoid unnec­es­sary pain to either par­ty, be it the hus­band or the wife, if a bet­ter solu­tion can­not be found. Although a divorce is allowed in An-Nisa’ verse 130 when­ev­er a friend­ly under­stand­ing can­not be reached between a hus­band and his wife, there is a fur­ther sug­ges­tion indi­cat­ed via the Qur’an in an attempt to rec­on­cile the mar­riage before the deci­sion for a divorce is obtained :

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.” (Qur’an An-Nisa’:35 )

This verse shows that divorce is the very final solu­tion. As far as pos­si­ble, a mar­riage insti­tu­tion is to be main­tained, and the cou­ple should try every pos­si­ble way to try to rec­on­cile the mar­riage in order to avoid a divorce.

Iddah As a Means of Reconciliation

The reg­u­la­tion on iddah comes from the fol­low­ing verse :

Divorced women shall wait con­cern­ing them­selves 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 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 over them. And God is Exalt­ing in Pow­er, Wise.” (Qur’an Al-Baqarah : 228

Iddah is the 3 cycles of month­ly peri­ods (or three months for women with­out menses) enforced on the wife after the divorce. Dur­ing this peri­od, the hus­band still has the respon­si­bil­i­ties towards his wife as if they are still tied in a wed­lock (except sex­u­al inter­course), includ­ing her pro­vi­sion for main­te­nance. The rea­son for the iddah on woman upon divorce is to ensure that she’s free from car­ry­ing any­thing in her womb. If she’s preg­nant dur­ing the divorce, then the peri­od of iddah is extend­ed until she gives birth to the baby, as required in Sura’ Al-Talaq verse 6. This reg­u­la­tion is to pro­tect the woman, in which it guar­an­tees that the needs of the wife will be pro­vid­ed ful­ly by the hus­band through­out the period.

The ben­e­fit for the iddah is for the hus­band and wife to rethink and rec­on­cile their mar­riage. The fact that the hus­band and the wife need to be togeth­er dur­ing the peri­od of iddah often helps to rec­on­cile the mar­riage. There will always be space for the cou­ple to do things togeth­er and talk to each oth­er, and this might help to regain love between each oth­er and the cou­ple could be reunit­ed. That is the beau­ty of the law of God, and the rea­son why a cou­ple is giv­en two chances to rec­on­cile their mar­riage as can be seen from Sura’ Al-Baqarah verse 229.

Are Women Aban­doned or Oppressed Upon A Divorce ?

Often, a woman is the vic­tim as a con­se­quence of divorce. The Holy Qur’an how­ev­er pro­vides reg­u­la­tion that should be fol­lowed by the cou­ple fol­low­ing a divorce, in order to pro­tect the women from being oppressed.

When ye divorce women, and they ful­fil the term of their (iddah) either take them back on equi­table terms or set them free on equi­table terms, but do not take them back to injure them or to take undue advan­tage, if any one does that, He wrongs his own soul. Do not treat God signs as a jest, but solemn­ly rehearse God’s favours on you, and the fact that He sent down to you the Book and Wis­dom, for your instruc­tion. And fear God, and know that God is well acquaint­ed with all things.” (Qur’an Al-Baqarah : 231)

The above verse out­lines the reg­u­la­tions set by God bind­ing the husband :

-A hus­band is allowed to take his wife again on equi­table terms
‑A hus­band is allowed to set the wife free from him on equi­table terms
‑The hus­band is not allowed to cause injury to the wife, nor can he abuse her, nor can he take advan­tage of her out of her weaknesses. 

This reg­u­la­tion pro­tects a wife from being abused by her hus­band upon divorce. Apart from that, Islam guar­an­tees the right of the wife with regard to her maintenance.

Let the women live (in iddah) in the same style as ye live, accord­ing to your means, annoy them not, so as to restrict them. And if they car­ry (life in their wombs) then spend on them until they deliv­er their bur­den. And if they suck­le your off­spring, give them their rec­om­pense, and take mutu­al coun­sel togeth­er, accord­ing to what is just and rea­son­able. And if ye find your­selves in dif­fi­cul­ties, let anoth­er women suck­le the child on behalf.” (Qur’an Al-Talaq : 6

Accord­ing to the shari­a’reg­u­la­tion, a woman in iddah is still con­sid­ered as the respon­si­bil­i­ty of the hus­band, and there­fore still has the right to get the pro­vi­sion for her main­te­nance through­out the peri­od. This is the peri­od where­by the wife will be able to pre­pare her­self for her future life.

In addi­tion, a hus­band is not allowed to take back any­thing that has been giv­en to his wife as a gift through­out their mar­riage upon a divorce, as has been out­lined in the Holy Qur’an in Sura An-Nisa’, verse 20 – 21 as follows :

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 man­i­fest wrong ? And how could ye take it when ye have gone in unto each oth­er, and they have tak­en you a solemn covenant?”

A hus­band is also required to give a set­tle­ment or gift (mut’ah) to his wife upon divorce for her future use, as shown in Sura’ Al-Baqarah 241 :

For divorced women mut’ah (should be pro­vid­ed) on a rea­son­able (scale). This is a duty on the righteous.”

Con­cern­ing the chil­dren, Islam pro­tects the right of both hus­band and wife to have the right to take care of their chil­dren, although the moth­er has an advan­tage over the father to take care of the chil­dren, so long that she is still not remar­ry. This is explained in the hadith, From Abdul­lah bin Amar, who said, a woman asked Prophet Muham­mad O Apos­tle of God, I am the one who car­ried my son in my womb, and gave him pro­tec­tion on my lap and I suck­led him with my breasts, and now his father wants to take him away from me’. Then The Apos­tle said, You have greater right over him, so long that you are not remar­ry’.” (Abu Dawud)

How­ev­er, both father and moth­er still have the right over their chil­dren, and this right is pro­tect­ed in Sura’ Al-Baqarah verse 233 :

No soul shall have a bur­den laid on it greater than it can bear. No moth­er shall be treat­ed unfair­ly on account of her child. Nor father on account of his child, and heir shall be charge­able in the same way.”

As can be seen from the above facts, the rights of both hus­band and wife are pro­tect­ed in Islam, in a man­ner in which the divorce can be done peace­ful­ly, with­out result­ing any unnec­es­sary pain to any party.

Can A Wife Divorce her Husband ?

Often, it is argued that Islam gives the exclu­sive right for a hus­band to divorce his wife , but sim­i­lar right is not giv­en to a wife. There­fore, the claim con­tin­ues, this gives a wide space for the hus­band to mis­use the pow­er giv­en to him which results in unnec­es­sary pain to his wife. This is def­i­nite­ly a lie cre­at­ed by the igno­rant crit­ics, when the fact is that Islam gives equal rights for a wife to divorce her hus­band in order to pro­tect her from any mis­con­duct by her husband. 

And how is done in Islam ? There are two meth­ods for such a divorce, name­ly the fasakh and the khu­lu’.

1) Fasakh

The pro­vi­sion for fasakh is explained in the fol­low­ing verse :

If a wife fears cru­el­ty or deser­tion on her 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 soul are swayed by greed. But if ye do good and prac­tice self restraint, God is well acquaint­ed with all ye do.” (Qur’an An-Nisa’:128)

This right is also giv­en to a wife to get a divorce through the pow­er of judges, or qad­hi to sep­a­rate the wife from her hus­band. A wife is giv­en right to request for fasakh if any of the fol­low­ing (to men­tion a few) prob­lems occur in the marriage :

a) The hus­band failed to pro­vide for the main­te­nance of his wife for four months, or any of his respon­si­bil­i­ties towards his marriage.

b) The hus­band abused his wife by way of the following :

  • phys­i­cal abuse to the wife result­ing in unnec­es­sary oppres­sion in her dai­ly life.
  • to force the wife to live in unhealthy man­ner, e.g. by forc­ing his wife to be a prostitute.
  • pre­vent his wife from doing her respon­si­bil­i­ty towards her religion.
  • the hus­band failed to be fair and just to his wives (in the case of polygamy) accord­ing to the require­ment in sharia’ that will cause a wife to be abandoned.

The Holy Qur’an out­lined the prob­lem in the fol­low­ing verse :

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 of them it may be that ye dis­like a thing, and God brings about through it a great deal of good.” (Qur’an An-Nisa’:19)

c) The wife did not give her con­sent to their mar­riage, or her per­mis­sion is not valid as she was forced, or she has a men­tal prob­lem at the time of the mar­riage. This is to be in line with the fol­low­ing hadith :

Nar­rat­ed Abu Hurairah r.a, that the Prophet(P) said, A divorcee can­not be forced to mar­ry before she agrees, and a vir­gin can­not be forced to mar­ry before her per­mis­sion is obtained. The Saha­ba’ asked How can we obtain her per­mis­sion?” The Prophet(P) said, Her per­mis­sion is when she keeps qui­et.” (Mus­lim)

d) The con­di­tion of hus­band, such as being impo­tent or hav­ing a men­tal prob­lem in which is not known to the wife pri­or to the mar­riage, if such a prob­lem can affect the con­di­tion of the marriage. 

2) Khu­lu’

Khu­lu’ is a set­tle­ment made by a wife to the hus­band in order to get a divorce. This pro­vi­sion is allowed in the fol­low­ing verse :

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 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 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 gives 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.” (Qur’an Al-Baqarah : 229

Khu­lu’ is the pro­vi­sion for the woman to get a divorce, but is not able to do it by way of fasakh. This pro­vi­sion is explained in the fol­low­ing hadith, The wife of Tsabit bin Qais came to meet the Prophet of God(P) and said O Prophet of God, I am not down­grad­ing his behav­iour and his reli­gion, but I do not want to belit­tle the teach­ings of Islam’. The Prophet(P) asked : ’ Do you want to return his farm?’ and she answered Yes’. There­fore, the Prophet(P) said ’ Accept the farm, Tsabit, and give her one talaaq’.” (Abu Dawud)

The above case hap­pened when the wife want­ed Tsabit to divorce her, when in actu­al fact there was noth­ing wrong with Tsabit. She was not able to keep the mar­riage intact because she feared that she will not be able to ful­fil her respon­si­bil­i­ties as a wife which will give rise to fur­ther prob­lems with­in the mar­riage, and there­fore she request­ed for khu­lu’ as a set­tle­ment. The farm was orig­i­nal­ly owned by Tsabit, but was giv­en to her as a gift dur­ing their marriage.

The set­tle­ment for khu­lu’ is lim­it­ed to the amount giv­en by the hus­band to the wife dur­ing their mar­riage, as a gift or dowry. This is explained in Sura’ Al-Baqarah, verse 229 as stat­ed above.

Con­clu­sion

Islam has pro­vid­ed clear guid­ance with regard to mar­riage and divorce, in which both par­ties are treat­ed equal­ly and a clear solu­tion is pro­vid­ed to avoid any mis­con­duct by any par­ties, and to pro­tect the rights of both men and women alike. Regard­less, Islam does not encour­age divorce, so long as a bet­ter solu­tion can be found to keep the mar­riage intact.

And only God knows best ! Women and Divorce From The Islamic Perspective 1Endmark

Cite this arti­cle as : Rafi­dah Abdul Jamal, Women and Divorce From The Islam­ic Per­spec­tive,” in Bis­mi­ka Allahu­ma, Sep­tem­ber 22, 2005, last accessed Feb­ru­ary 28, 2024, https://​bis​mikaal​lahu​ma​.org/​i​s​l​a​m​/​w​o​m​e​n​-​i​n​-​i​s​l​a​m​/​d​i​v​o​r​c​e​-​i​n​-​i​s​l​am/

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2 responses to “Women and Divorce From The Islam­ic Perspective”

  1. Fatima Avatar
    Fatima

    Your arti­cle did not men­tion ver­bal or finan­cial abuse.
    I want to divorce my hus­band for He told me he only mar­ried me because he felt sor­ry for me. He nev­er laved me and with out love there can be no harmony

  2. farah Avatar
    farah

    its real­ly appre­cia­tive effort on ur part to pro­vide such use­ful infor­ma­tion .…good job n thanku

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