ISLAMIC APPROACH TO DIVORCE
Natural and Impartial
“Childless couples tend to have higher divorce rates than couples with children”. So says the Encyclopaedia Britannica on the basis of data collected in western countries. A western divorce court judge confirms that “every little youngster born to a couple is an added assurance that their marriage will never be dissolved in a divorce court.”
IN spite of these apparently favourable psychological factors and natural attachments of parents and children, the rising incidence of divorce is a new and observable phenomenon of the modern world. One of the highest contributing factors for this is the ease with which women can now make a living. On this, the Encyclopaedia Britannica says:
“Industrialization has made it easier for women to support themselves, whether they are single, married, divorced, or widowed. In this connection, it is interesting to note that the Great Depression of the 1930s stopped the rise in the number of divorces in the United States for a time”.
Divorce should be sought only under unavoidable circumstances. The Prophet spoke of it as being the most unpleasant of all the lawful things in the eyes of God.
While marriage is the rule of life and divorce only an exception, the latter must also be accepted as a reality. Indeed, there are commandments to deal accordingly, with such cases in both divine and human laws. The authentic representation of divine law now exists in the form of the Quran, it having been preserved in its entirety by God, and, therefore, free from all human interpolations. In the Quran and the Hadith (the sayings of the Prophet), there are various commandments regarding divorce, the main point being that divorce should be sought only under unavoidable circumstances. The Prophet spoke of it as being the most unpleasant of all the lawful things in the eyes of God and said that when it does take place, it should be done in an atmosphere of goodwill. In no way should one harbour ill-will against the other.
The Meaning of ‘Provision’
In Islamic jurisprudence, the material arrangements which a man
makes for his divorced spouse is termed ‘divorce provision’. There is a consensus among Muslim scholars that this provision in no way a
means of lifelong maintenance, there being absolutely no basis for this
in the divine scriptures. The concept of maintenance for life is, in fact,
a product of modern civilization. It was never at any time enshrined in
divine laws, either in Islam, Judaism or Christianity. In material terms,
‘provision’ simply takes the form of a gift handed over by the man on
parting, so that the woman’s immediate needs may be catered for, and
in all cases, this is to be commensurate with his means.
But the Quran makes it explicit that the parting must above all be humane, and that justice must be done: “Make fair provision for them, the affluent according to his means and the straitened according to his means; this is binding on righteous men.” (2: 236)
If divorce takes place before the settling of the dower (a sum of money which the groom hands over to the bride at the time of marriage, which is a token of his willing acceptance of the responsibility of bearing all necessary expenses of his wife) and the consummation of the marriage, even then the man must give the woman money or goods as a gesture of goodwill. The Quran is also quite explicit on this: “Believers, if you marry believing women, and divorce them before the marriage is consummated, you are not required to observe a waiting period: make provision for them and release them in an honourable way.” (33: 49)
The concept of maintenance for life is, in fact, a product of modern civilization. It was never at any time enshrined in divine laws, either in Islam, Judaism or Christianity.
This “waiting period” actually applies to a woman who has been married for some time and who may, subsequent to the divorce, discover that she is pregnant. This statutory waiting period of three months makes her position clear, and then the man is required to pay her additional compensation if she is expecting his child. But again, there is no question of maintenance for life, for the Quran seeks a natural solution to all human problems. It would, therefore, be wholly against the spirit of the Quran for a woman to be entitled to lifelong maintenance from the very man with whom she could not coexist. Such a ruling will surely create a negative mentality in society. The Quran again has the answer: “If they decide to separate, God will compensate both out of His own abundance: God is bountiful and wise.” (4: 130). The munificence of God refers to the vast provision which God has made for His servants in this world.
In various ways, God helps such distressed people. For example, when a woman is divorced, it is but natural that the sympathy of all her blood relations should be aroused. And, as a result, without any pressure being put on them, they are willing to help and look after her. Besides, a new will-power is awakened in such a woman and she sets about exploiting her hidden potentialities, thus solving her problems independently. Furthermore, previous experiences having left her wiser and more careful, she feels better equipped to enter into another marital relationship with greater success.
After Divorce
The question that arises immediately after divorce is of ways and
means to meet one’s necessary expenses. One answer is to resort to
the Islamic law of inheritance. If women were to be given their due
share according to Islamic law, there would be no question of woman
becoming destitute. But, sad to say, the majority of Muslim women fail
to get their due share of inheritance from their deceased fathers and
husbands as stipulated by Islamic Law. If this could happen, this would
be more than enough to meet such emergencies.
If women were to be given their due share according to Islamic law, there would be no question of woman becoming destitute.
However, Islam has not just left women’s financial problems to the vagaries of inheritance, because parents are not invariably in possession of property which can be divided among their children. Further arrangements have been made under the maintenance law, but this has no connection with the law of divorce. The answer to this question must be sought therefore in the Islamic law of maintenance. The following is a brief description of some of its aspects:
1. In case the divorced woman is childless or the children are not earning, according to Islamic law the responsibility for her maintenance falls on her father. That is, her situation will be the same as it was before marriage.
To quote from Fath al-Qadeer (a standard book on Islamic law): “The father is responsible for bearing the expenses of his daughter till her marriage, in the event of her having no money. The father has no right to force her to earn, even if she is able to. When the girl is divorced and the waiting period is over, her father shall again have to bear her expenses.”
2. If the divorced woman has a son who is an earning member of the family, the responsibility for her maintenance falls entirely upon him. “All that rightfully belongs to a wife will be the duty of the son to provide, that is, food, drink, clothes, house and even servants, if possible.”
3. In the case of father being deceased and where even her children are unable to earn, her nearest relatives, such as brothers or uncles, are responsible for her upkeep. In the absence of even this third form, the Islamic Shariah holds the State Treasury responsible for bearing her expenses. She will be entitled to receive the money for her necessities.
Because of the number of provisions made under Islamic law for women, it has never been the case in Islamic history that Muslim divorced women have been cast adrift, helpless, with no one to look after them. The late writer Khushwant Singh remarked that we do not hear of Muslim women committing suicide or being tortured, which is a proof that Islam has already given them adequate liberty and has made enough provision for them to be supported in times of emergencies.
Because of the number of provisions made under Islamic law for women, it has never been the case in Islamic history that Muslim divorced women have been cast adrift, helpless, with no one to look after them.
A new dimension has been added to the issue since the women of the present age can leave their homes to work, and are therefore not entirely dependent on men as they used to be in the past. There is no need then to make laws in order to provide for them. They can now look after themselves. They receive equal pay. Only in exceptional cases they may need to be looked after. Ways and means of doing so can generally be worked out quite satisfactorily on a personal level.
The Problem of Modern Civilization
The modern civilization has been beset by many problems, many of
which are more artificial than real. In many things modern civilization
has adopted unnatural ways, thus giving rise to unnatural problems.
The matter has further been worsened by attempts to solve them
unnaturally. Problems have thus gone on increasing, instead of
decreasing. The problem of divorce is one of them. The initial stimulus
of the women’s lib movement was not wrong, but its leaders did not
care to define its limits. In a bid to create a free society, their efforts
culminated in the creation of a permissive society. Affairs between men and women knew no limits, and this had the effect of weakening the
marriage bond. Men and women were no more husbands and wives.
In the words of the Prophet, they became sensual, pleasure-seeking
people. This, state of affairs was given a boost by industrialization, as
a woman could easily procure an independent livelihood for herself.
This had never before been possible. Because of this, a large number
of social problems have emerged, one of them being greatly increased
rates of divorce.
The philosophers who wanted to check divorce, advocated legal curbs on men, which would legally bind them to provide maintenance to the wife after divorce. This maintenance sum was fixed according to living standards, so that in most cases, divorce meant that the man had to part with a fair amount of his hard-earned money for the rest of his life.
One victim of this unnatural state of affairs was Bertrand Russell (d. 1970), one of the most intelligent and outstanding intellectuals of his time. Soon after his marriage, he discovered that his wife no longer inspired any feelings of love in him. Although realizing this incompatibility, he did not seek an immediate separation. In spite of severe mental torture, he tried to bear with this situation for many years. He refers to this period as one of “darkest despair”. Finally, he had to separate and remarry, but he was not satisfied even with the second match, and he married for the third time. Two divorces were a costly bargain. According to English law, the amount of alimony and maintenance he had to pay his wives upset him greatly. He writes in his Autobiography:
“ ... the financial burden was heavy and rather disturbing: I had given £ 10,000/- of my Nobel Prize cheque for a little more than £ 11,000/- to my third wife, and I was now paying alimony to her and to my second wife as well as paying for the education of my younger son. Added to this, there were heavy expenses in connection with my elder son’s illness; and the income taxes which for many years he had neglected to pay now fell to me to pay.” (Bertrand Russell, Autobiography, Unwin Paperbacks (London) 1978).
Such a law had been passed in order to ensure justice for women who had to resort to divorce. But when people began to realize that divorce inevitably led one into financial straits, the marriage bond began to be dispensed with altogether. Men and women simply started to live together without going through the formality of a marriage ceremony. Now more than fifty percent of the younger generation [in some countries] prefers to live in the unmarried state.
It was only natural that a reaction should have set in against a law which so patently disfavoured men and brought corruption, perversion and all kinds of misery in its wake. Children—even new-born babies— were the greatest sufferers.
Now take the situation prevailing in communities in which the extreme difficulty of divorce acts as a deterrent. Obviously, this was a bid to reform, but this has served only to aggravate the matter. The ancient Indian religious reformers had held separation as being illegal. They even prohibited women from remarrying so that they would be left with no incentive to seek divorce. The laws were made in such a way that once marriage ceremonies were finalized, neither could a man divorce his wife, nor was it possible for a woman to remarry after leaving her former husband.
But such reformations have been generally detrimental to individuals of the society. When a man and a woman are unable to continue to live with each other, the whole of their lives is passed in great bitterness because of there being no provision for remarriage. They are doomed to continue to live a tormented life alongside partners with whom they have nothing in common.
Khushwant Singh wrote in detail about Manu, who was his cousin. He narrated her ordeal in his With Malice towards One and All column (12 October 1985). Manu had a flourishing business selling ready-made garments in Los Angeles. As she did not want to marry a foreigner, she decided to come to India to find a husband and return with him to the States. She found her husband in a tall, handsome, powerfully-built man who was anxious to go abroad.
Separation is strongly advised against in the case of minor provocations. It is meant only as a last resort, when it has become truly unavoidable. We are commanded by God to be tolerant and forgiving.
The marriage took place with all pomp and splendour in a five-star hotel. It took her some months to arrange for her husband’s visa, during which time she maintained him and paid for his passage. The marriage was a disaster. The man turned out to be an alcoholic, prone to violence and averse to doing any work. Manu sought her parent’s consent to wind up her business, divorce her husband and return to India. Her parents travelled to America and tried to persuade her not to be hasty. A few days after her mother returned to Delhi, Manu’s husband strangled her and dumped her body in a deserted spot. He collected all he could in the house and was planning to flee the United States when the police caught up with him. He was eventually jailed on charges of murder.
It is obvious that Manu was not careless in selecting her partner. She travelled from America to find a suitable match in her birthplace. But all that glitters is not gold. Our human limitations make it impossible for us to understand every facet of a person’s character before entering into a relationship with them. The question arises if, after such revelations, should one feel forced to respect a marriage bond even at the cost of one’s life?
The provisions of Islam are thus a great blessing to couples who realize only too late that they have erred in making their choice of a partner. Islam provides for them the convenience to separate amicably, in a spirit of goodwill.
When society considers separation taboo or the laws on this show no leniency, the only alternatives left for such incompatible couples are either to commit suicide or to waste away the whole of their lives in “darkest despair”. Even when one dares to surmount the hurdle of divorce, it is very difficult to get remarried in societies where divorcees are looked down upon. One can at best marry someone beneath one’s social status. But in Islam remarriage is not a taboo. The Prophet himself married a widow. The provisions of Islam are thus a great blessing to couples who realize only too late that they have erred in making their choice of a partner. Islam provides for them the convenience to separate amicably, in a spirit of goodwill.
Just think of the couples wasting away the whole of their lives in mental torment only because the conditions of separation and its consequences are hard to meet. It is as unnatural as anything can be. Islam is a religion of nature. That is why such a situation has not developed in Muslim communities because Islamic law on marriage and divorce provides for all, or almost all, eventualities. For example, when a woman wishes to divorce her husband, she has to put her case before a religious scholar, or a body of religious scholars. This facility is available to her in all the great madrasas or Islamic seminaries in India. They then give consideration to her circumstances in the light of the Quran and the Hadith, and, if they find that there are reasonable grounds for separation, they decide in her favour. The reason that the woman must have scholars to act on her behalf is that women are more emotional than men—as has been proved by scientific research— and it is to prevent hasty and ill-considered divorces taking place that she is thus advised. If we seldom hear of Muslim women committing suicide or being murdered by their in-laws, it is because they have an alternative—separation.
Separation, of course, is strongly advised against in the case of minor provocations. Are we not commanded by God to be tolerant and forgiving? It is meant only as a last resort, when it has become truly unavoidable.
Islamic law is thus fair to both husband and wife, unlike occidental law, which places an undue burden on the man.