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Friday, January 20, 2012

Qur’anic Sharia (laws) on Divorce

Note: Since I began my Journey into finding the truth about life and living, I have found Quraan to be document of  common sense and the broader picture is for the society to coexist in harmony. I would say with the same sincerity that all religions preach the same essence. Prophet Muhammad had reemphasized that Islam is not a new religion, it is the same message delivered in different communities. In the following document, you can see how similar it is to our laws in the United States. - Mike Ghouse


The Qur’anic Sharia (laws) on Divorce. Triple divorce, Temporary Marriage, Halala Stand Forbidden (Haram)
By Muhammad Yunus, NewAgeIslam.com
Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009

Qur’anic concern on the prevalent customs regarding divorce
In Pre-Islamic Arabia, men could abandon their wives at whim by simply declaring, “You are to me like my mother’s back” (58:2).

Since handing down a divorce was a man’s prerogative, he needed no ground and did not even release his abandoned wife, who preferred to stay in her husband’s home for want of any other place to go. There is a tradition from Aisha reported in Sahih al-Bukhari (Acc. 134/Vol.7) that institutionalizes this custom. It reads:

“… the women whose husband does not want to keep her with him any longer, but wants to divorce her and marry some other lady, so she says to him: `Keep me and do not divorce me, and then marry another woman and you may neither spend on me nor sleep with me.”
The Justinian Code that dominated the thoughts of the era, placed a woman under the ownership of a man. After marriage the husband became her owner and treated her as he wished. Thus, he could divorce his wife by simply declaring ‘I divorce thee triply or thrice.’ 

 A system of temporary co-habitation (muta marriage) was also in vogue that permitted a woman to live with different men when their husbands were away from home on trading or any other mission. The Shi‘itee Ithna ‘Ashari school retains the practice. Thus according to the dictum of the theologian, al-Hurr al Amili, “The believer is only perfect when he has experienced a muta [1], though there can be little doubt that the custom virtually conflates legalized prostitution. While this did not raise any question of divorce, the married women who practiced this were virtually temporarily divorced from their husbands and had no means of livelihood for themselves or their children and therefore took to heterosexual habitation as part of social norm.

The Qur’an with its key agenda “to lift from them (humanity) their burdens and shackles that were upon humanity (before)” (7:157) had to deliver the women from the curse of arbitrary divorce, conjugal oppression and lifelong bondage. At a higher plane, it recognizes the serious emotional and financial implications of a divorce for either or both the spouses, as well as the offspring of a broken marriage. It, therefore, discourages divorce by a set of well-guarded stipulations, but allows it if the alternative was life-long unhappiness for the family.

The Qur’an, however, does not consider divorced women as a social burden. It protects their financial interest and those of the children born to them from their broken marriages, permits them to remarry and treats them practically like any other unmarried women.

Context of the Revelation
In the immediate context of the revelation, the Qur’an abolishes the pre-Islamic custom that permitted a man to abandon his wife indefinitely by an oath, but retain her in wedlock, thus preventing her remarriage or freedom. It therefore declares (2:226):

“Those who vow (to abstain) from their wives must wait for four months. Meanwhile if they go back, (remember,) God is Most Forgiving and Merciful” (2:226).

The concluding God’s attribute of Forgiveness and Mercy is suggestive of Qur’anic encouragement for reconciliation between the spouses and restoration of an effective marriage tie. However, if a man remains firm in his decision on divorce, and abandons his wife for four consecutive months, he must terminate the marriage at the end of this period and release his wife (2:227).

“However, if they decide on a divorce, (let them remember that) God is All-Knowing and Aware” (2:227)

Legislation of a Time-frame for a divorce to take effect as norm for humanity
In a legally phrased passage (2:228/229) the Qur’an prescribes, among other things, a three-month waiting period for a woman under divorce notice (2:228), and commands a man who initiates the divorce to formally articulating his intention at least twice over the period (2:229), obviously in the presence of witnesses. The time-framing is reiterated in two other verses (2:231, 65:2).

“Divorced women shall wait by themselves for three monthly periods, for it is not lawful for them, if they believe in God and the Last Day, to conceal what God has created in their wombs…. (2:228). (O men, you must) pronounce the divorce over two occasions. Thereafter live together (with your mates) honorably, or part with (tasrihu) them honorably…. (2:229).
“And if you divorce women, and they reach (the end of) their term, then either live together honorably, or part with (sarrihu) them honorably, but do not keep them to injure them, (or) to exceed limits. Anyone who does that merely wrongs his own soul…” (2:231).

“And when they reach (the end of) their term, then either live together honorably, or part with (fariqu) them honorably, calling to witness two just members from among yourselves and uphold the evidence (as) before God. This is to instruct anyone who believes in God and the Last Day. (Remember,) God will find a way out for anyone who heeds Him” (65:2).
Remarriage after divorce.

The Qur’an does not permit the marriage of a divorced woman with her ex-husband after the expiry of the three month-timeframe. She must marry a new spouse, live with him as his wife and should this second marriage fail and her new husband divorces her, she could remarry her first husband after the expiry of the three month waiting/notice period (Iddat) (2:230).
“If he (the husband) divorces her (at the end of the waiting period), she becomes unlawful to him afterwards until she marries another man. If he (her new husband) then divorces her, there is no blame on the (former) couple to reunite - provided they feel that they can keep within the limits set by God. These are the limits set by God, and He clarifies them to a people who have knowledge” (2:230).

This was obviously to allow full freedom to a divorced woman to find a new spouse and marry. The absence of this clause would have led many ex-husbands to prevent their divorced wives from marrying a new spouse out of grudge that normally precedes a divorce. Accordingly, the Qur’an warns men:

“And when you have divorced women (after) they have reached their term, you must not obstruct them from marrying (their would be) spouses (azwaj) if they have mutually agreed in a fair manner. This is instructed to anyone among you, who believes in God and the Last Day. (Remember,) this is more appropriate for you and purer; and God knows, yet you do not know” (2.232).

Any permission to remarry an ex-husband after an irrevocable divorce would have led to the continuation of a pre-Islamic practice of a man divorcing his wife at whim and marrying her back at whim thereby never allowing her a separation. It would have totally frustrated the intent of the divorce: to release a woman from the bondage of a failed marriage.
Maintenance of divorced pregnant wife, and the offspring

In a clearly stated verse (2:233) the Qur’an spells out: i) the social and financial responsibilities of a man divorcing a pregnant wife, ii) the moral responsibility of his divorced wife to disclose her pregnancy, iii) the need for mutual consultation between them if they wished to put the child under the care of a foster-mother, and iv) the responsibility of the heir of the father if a child was born posthumously (2:233).

“Mothers shall nurse their children for two whole years if they wish to complete the nursing.” The father (has to) provide for them, and clothe them reasonably. No soul is to be burdened beyond its capacity. A mother should not be made to suffer for her child, nor a father for his child, while the heir (is liable) likewise. If they both wish to wean the child by mutual consent and consultation - there is no blame on them; so if you wish to give your children out to wet-nurses, there is no blame on you, provided you pay what is reasonably expected from you. Heed God and know that God is Observant of what you do” (2:233).

The Qur’an further commands men folk to supporting a divorced pregnant wife (65:6), and that they should spend according to their means (65:7).

“Accommodate them (the women in Iddat) in the manner you lodge, according to your circumstances, and do not harass them to reduce them (to straits). If they are pregnant, meet their expenses until they bring forth their burden; and if they suckle (the baby) for you, give them their due, and consult together honorably. But if you find it difficult (for her health reason, or she intends to remarry), let another woman nurse (it) on behalf of him (the father) (65:6). (In all these matters) the rich should spend (according to) his abundance, but the one whose means is limited should spend of what God has given him. (Remember,) God does not burden anyone beyond what He has given him. Surely God will grant relief after distress” (65:7).

Settlement of dower if neither marriage is consummated nor dower fixed
The Qur'an directs men to give a reasonable provision to their divorced wives, even if the marriage was not consummated (2:236, 33:49).

“There (will be) no blame on you to divorce women before you have consummated (marriage) with them, or fixed their dower (faridah), but provide for them: the rich according to his means, and the poor according to his means – a reasonable provision, a duty binding (haqq), on the compassionate”(2:236).

“You who believe, when you marry believing women and divorce them before you have consummated (marriage) with them, you do not have to count (the waiting) period for them. So make provision for them, and part with (sarrihu) them in a handsome parting”(33:49).
The verse 2:236 uses the term faridah for marriage dower, while the verse 4:4 calls it saduquat.
“Give women their dower (saduquat), as a gift but if they voluntarily favor you with anything from it, take it and enjoy it in good spirit” (4:4).

The former (faridah) connotes with a binding obligation, while the latter (saduqat), with a gift, or charity. Thus, the Qur'an leaves no ambiguity about the legal position of marriage dower: it is a binding obligation of a man towards his wife, and is performed as a gesture of goodwill or charity (saduquat) that s non-refundable. Thus there can be no question about deferring its disbursement and linking it with any other financial or post divorce transaction.
Settlement of dower if marriage is not consummated, but dower is fixed

The Qur’an states:
“If you divorce them before you have consummated (marriage) with them, but you have fixed their dower (faridah), then (give them) half of what you have fixed, unless they (the women) forgo it, or the one in whose (alladhi) hands is the marriage tie forgoes it. To forgo is nearer to heedfulness (taqwa), and do not forget to be generous between yourselves. (Remember,) God is Observant of what you do” (2:237).

The common gender pronoun alladhi, rendered above as whose, is traditionally identified with a husband, implying that only the husband can terminate a marriage that is yet to be consummated. But this purports to revoke a woman’s Qur’anic privilege to dissolve a marriage unilaterally under compelling circumstances (2:229). Therefore the pronoun alladhi must be interpreted in its common gender form, implying that either of the couple - husband or wife can lawfully dissolve an unconsummated marriage. Based on this, the pronouncements of the verse may be broken down into the following simple tenets:

• If a man initiates a divorce, he has to pay half the dower to the woman, unless she forgoes it.
•  If a woman breaks the marriage from her side, she has to forgo her claim on half the dower that she would have received if the man divorced her.
•  A man, who gives a divorce, has the option to forgo the exempted ‘half' part, and give full contracted dower as a gesture of generosity (fadl).
•   Both the partners of a divorce should be generous to each other, and refrain from exploiting one another.

Maintenance for a divorced woman

The Qur’an declares:
“(There shall be) a reasonable maintenance for divorced women - a duty (haqq) binding on the heedful (muttaqin) (2:241). Thus does God clarify His messages to you, that you may use your reason” (2:242).

The Qur’anic injunction is in broad terms: it does not say whether a man is required to make a one off provision, or give a maintenance allowance to his divorced wife until she remarries. The Qur'an, however, asks the menfolk to use reason. Thus, if a man is required to make a provision, commensurate to his income, to a woman with whom he has only contracted marriage but not yet consummated it (2:236 above), he must be fair and considerate to the woman he is divorcing after living together as a husband and wife. He must therefore arrange spousal maintenance, commensurate to his income, and to the financial need, age, health and circumstances of his spouse. This obviously is a matter for the court to decide, depending upon the merit of the case, the prevalent social conditions and securities, and the relative financial positions of the partners in a divorce case.
The Qur’an forestalls any manipulative interpretation of its commandments
The Qur’anic dictates on divorce as discussed above date from two different periods of its revelation. The passage 2:226-242 dates from early Medinite period, while the passage 65:1-7 from mid Medinite period. The passages, separated chronologically by at least three to four years, complement each other with immaculate consistency and clarity in spelling out a husband’s obligations during a divorce. This Qur'anic repetition is understandably to help avoid (i) any misinterpretation by later generation scholars and (ii) any ambiguity on the subject.

Conclusion: The Qur’an deals with the process of divorce in a balanced and phased manner comprising a three month time frame, so that this most agonizing experience in a person’s life is faced in a balanced, phased and harmonious manner, and there is no bitterness and ill feelings between the erstwhile spouses. The institution of temporary marriage (muta) and triple divorce are in direct contradiction to the Qur’anic message and therefore stand haram. Some local customs such as Halala that allows a man to divorce his wife at the spur of the moment, such as in a state of anger or drunkenness and then force her into marriage and sexual intercourse with a friend and get him to divorce her to marry her back the next day or so totally disregarding the three month time for his divorce and that of his friend to take effect also stands utterly haram and sexually shameful sadistic. These practices that remain part of the Classical Islamic Law have defiled and demonized Islam, no matter how few Muslims practice it, and how the Muslims glorify their faith, and reduced Islam to a medieval misogynist cult in the eyes of a section of Western people as summed up By Newt Gringer the 2012 Presidential candidate from the Republicans in a speech to the American Enterprise Institute in Washington in July 2010: “I believe Shariah is a mortal threat to the survival of freedom in the United States and in the world as we know it.” It is time for the Islamic doctors of law to treat the Classical Islamic Law as a closed corpus - and draw a Modern Law of Islam based on its divine Sharia (the Qur’an) and not the Classical Islamic Law, which is not a word of God and contradicts the Qur’anic paradigms on many counts as detailed in a recent article:

http://www.newageislam.com/NewAgeIslamIslamicShariaLaws_1.aspx?ArticleID=5714
http://www.newageislam.com/NewAgeIslamIslamicShariaLaws_1.aspx?ArticleID=5723

Final Comment: Muslim Ulema in India are sticking to the personal law that their pre-Islamic ancestors established under the behest of Hanafi law. For the medieval era, when women were grievously oppressed in the non-Muslim word, these brazenly anti-Qur’anic laws held sway. With the liberation and empowerment of women and a quantum change in gender dynamics in the non-Muslim world – much in line with the Qur’anic message (I am not suggesting they copied it from the Qur’an for if that was so, why couldn’t the Ulema do it), it is time for the Muslim Ulema to reform their laws in line with the Qur’anic paradigms.
One wonders why a section of the Muslim Ulema in India pass Fatwas or stick to rulings that patently contradict the Qur’an, are highly misogynistic, grievously violate international human rights and so immensely preposterous (condoning incest, forcing Indian Government to pass a law to limit the maintenance of a woman after more than 30 years of wedlock.) that one finds it hard to make any candid comment lest it could be too unsavory. The least one may say about the practice of Halala is that a time may also come that a Maulvi from some obscure village of India may insist on watching and filming it as hard core evidence?? God save us from that day.
Notes
1.         Azaf A.A.Fyzee, Our lines of Mohammedan Law, Oxford University Press, Fifth Edition, 2005, p. 117.

Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.


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