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... the science of peace |
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By: Sayyid Mujtaba Musavi Lari The first point this chapter must make is that divorce is contrary to the
laws of nature. The annulling of the marriage-bond and the separation of
those who should be life-partners is a denial of the true nature of man as
created and as at his best. Any society in which divorces become numerous,
with the consequent break-up of families, evidences its deviation from nature
and her requirements. Psychologists, jurists and sociologists, concerned by the effects of
divorce on the moral and juridical personality of those involved, have gone
deep into the subject, and given it as their considered verdict that the
ejection of a man and wife, let alone the children, from the warmth of
home-life into the cold unwelcome of any substitute establishment they may
find, deals a mortal blow to their spirits and exposes their children to the
onset of moral ailments and psychic traumas against which family life had
immunised and protected them. These scientists further hold, almost to a man,
that for these reasons divorce should be rendered practically impossible by
severe sanctions, except in a few cases where some cause, generally from
outside, like the onslaught of insanity or criminality, makes an exception to
the rule. But what should be done in cases of irreparable breakdown of
relationships? Must the partners stay in the hell they have made? Or may a
way-out be found for them? Christianity says blankly. "No divorce!"
But Islam more realistically faces the consequences of irreparable breakdown
as a fact, and provides a way-out. Every possible safeguard is laid down in
the statute book to prevent such a way-out by divorce being abused. But it is
clear that the bankruptcy of the relationship is only worsened by forcing the
partners to stick together; and their misery is only increased. Hence
divorce, though stigmatized as " the most loathsome of states in the
eyes of the Lord" is made possible when it is the better of two bad
roads. It may even be that the very separation removes the cause of the
irritation between man and wife, while the lapse of time in absence softens
the hearts and recalls the good points which had been lost under the pains of
discord; so that the couple seek reunion, and in some cases actually start
the same partnership up again in pardon and joy. Since Islam's aim is the firm establishment of marriages, in the interests
of this objective certain liberties are denied. The right of divorce is given
to the man only, except in very exceptional cases. This is to safeguard the
best interests of women and save them from falling victim to passions.
Manifestly, if two people both have the right to institute divorce
proceedings, the basis of confidence is made very shaky on both sides. What
better safeguard can there be, therefore, than to give the right of divorce
proceedings primarily to the one who has by nature more subjection to the
powers of reason, and patience in the face of lack of tenderness; and who
stands to lose the sum he has given as a marriage portion, as well as having
to undertake the financial burdens of the children's upbringing? The differences in the constitution of a man and woman are manifest. The
head takes first place in the man's decisions and the heart in the woman's.
Reason and emotion are the gifts given to each respectively in their
creation. As Dr. Alexis Carrel puts it: "The differences between men and
women are, obviously, the physical ones : and then, less obviously, the
internal ones like the dispositions of the nerves, the different mental and
emotional talents, both of which are of supreme importance for the future of
civilisation. Partisans of Women's Liberation aim at a false conception of
equality,. as if that desirable condition meant precise similarity and
identity in upbringing, employment, responsibilities and duties."
("Man, the Unknown" pp. 84-87). It is for these reasons that Islam's Feqh lays down: "Divorce
is in the hand of the man." And it is in consideration of the woman's
delicacy of spirit that the power of ending a shared life is not granted to
her. Islam, in addition to the manifold measures it has taken to make it
easier for people to enter the married state and start families, also makes
it more difficult to break up the home. Everything possible is done to ensure
happy sound home-life, for the sake of the family's members and of the
society to which they belong. It is therefore that it is written in Sura IV: Nisa'a
-"The Women", verse 19. "O men, live with your wives in
kindness and equity. If you dislike anything in them, that may be the very
point which God will use to bring about much blessing." In order to take away such feelings of dislike and prevent their turning
to hatred, and to remove their discomfort, Islam awakens the man's conscience
to live in kindness and equity with patience, and not to cast off a wife who
is temporarily in disfavour, since it may be that goodness and blessing may
come through those very wives; so that it would be stupid to end the
relationship hastily. As is written in the same Sura IV Nisa'a
-"The Women", verse 128: "If a wife fears cruelty or desertion
on her husband's part, there is no obstacle to their arranging an amicable
settlement between them for which the wife must renounce some of her rights.
But if they return through reconciliation and peace through such
unselfishness, such a settlement is better than separation and divorce."
The same dislike of divorce, as the most detestable of extreme measures to
be adopted only in the direst emergency, is advanced by all Islam's greatest
jurist-consults and leaders, an attitude summed up in the sentence in the
book "Mustadrak" (Vol. 3, p.2): "Any woman who seeks to
be divorced from her husband, save in cases of extreme necessity, falls out
of the grace and mercy of the Lord." Or again in Vol. 3 of the "Vassa'el"
(p.144): "Enter upon matrimony. but do not divorce your wives, since
divorce shakes the very throne Of God." Islam fences in the man's power of divorce with many limiting safeguards.
A man may not put away his wife by violence, harassment, injury or in a way
which may drive her to a life of immorality and corruption. Thus Islam has
for centuries surpassed anything yet achieved in Western countries, in its
initiative to remove differences and restore understanding in family life.
This is particularly true of the family courts, where well-meaning relatives
have a large say and everything is done to bring about reconciliation. Causes
of differences are deeply studied; and, as relatives, they are able to go
deep into confidential matters without either of the couple feeling that
their private secrets are being exposed or their feelings excoriated in too
public an ambience. When the causes of the difference have been brought into
the light of day the members of the family court exert all their powers of
sincerity and' heart and affection to bring about reconciliation and to
quench the fires of temper, exhorting both sides to unselfishness, tolerance,
and an effort to understand each other's point of view. Since both man and
wife respect these elders and have full confidence in their compassionate
affection, they frequently accept the family court' s recommendations for
adjustments they should make in their relationships and behaviour towards
each other. As it is written in Sura IV. Nisa'a-"The Women"
(verse 35): "Should you fear that division will arise amongst them,
appoint an arbitrator on the husband's side and an arbitrator on the wife's
side from amongst their relatives and send them to them. As soon as they
desire peace and reconciliation the Lord will vouchsafe it to them for He is
all-knowing and all-wise." Should the causes and roots of the initiation of divorce proceedings prove
to be too deep, so that there is an irreparable breakdown in marital
relationships, and all the efforts of the relatives fail to bring about any
sort of hope of reconciliation, Islam in its realism recognises that each
party must take their own road. It must be plain that such a family court is
far more likely to succeed than all the public courts of law or marriage
guidance clinics. In fact these only too often, being strangers to the family
and not privy to their inmost secrets, merely increase the rift, because of
the clumsiness of their well-meaning efforts. A public court has the duty to
hear the evidences produced by both sides; and then, in the cold dry
heartless atmosphere in which only exact truth and not mercy or clemency
reigns, decide which side has most right and give verdict accordingly. It has
neither the heart nor the spiritual influence of relatives to press for
reconciliation, and cure the causes of the quarrel. In the Qur'an, Sura LXV
"Talaq" -"Divorce" ordains in verse 2: "Two
just persons from amongst yourselves shall bear witness to the evidence
before God when a divorce is settled." Without these two witnesses,
there is no legal divorce. An advantage of their appointment is that they can
exert every pressure of affection and wisdom to avert the final catastrophe
for quite a period before reluctantly, if they have to do so, agreeing that
there is no other way out. They frequently succeed in the better course. It is further laid down that no divorce may be made absolute save after
the woman' s period of purification after menstruation or childbirth is
completed. This need to wait awhile often proves a breathing-space in which
the man's feelings of tenderness once more assert themselves over his
irritations, and make him decide against divorce. Further when a man finds sharing his life with a particular woman
wearisome and irksome and decides on divorce, this decision of his does not
suffice in itself to end their living together not does it become effective
until the expiry of the "Iddat", i.e. the period fixed by
the Feqh during which a divorced or widowed woman may not be married
to another man: and this period also gives a breathing-space which frequently
results in the man's change of heart and decision to continue the married
bond with the wife he planned to divorce. Finally, after the execution of the formalities for a "revocable
divorce" (Talaq-i-raj') a man may not expel his wife from the
home until the termination of the period of the "iddat"
which may last anything up to three months, nor may the wife quit their joint
home except in a desperately exceptional case during that period. As the Sura
LXV "Talaq" "Divorce" enacts (verse 1): "You
may not expel women from their houses, nor may they themselves quit, except
if they have been proven guilty of some open lewdness (during the "iddat"
period). These are limits set by God. Should any man transgress these limits
he does so at the peril of his own soul, and to his own harm : for you know
not whether God may bring about some new situation later (than the decision
to divorce)." No formalities are necessary to abrogate a revocable divorce during these
months. A mere indication of desire for renewal of the marriage relationship
by the man suffices. Should the wife feel such hatred for her husband that she repays him the
statutory portion of marriage settlement he had given her, or a portion of
her own property, that counts as her divorcing him; but this type of divorce
is revocable within the stated period, so that if she changes her mind, and
her husband agrees, he can still take her back into their home. By these many means Islam safeguards the holy estate of matrimony from
shipwreck on the rock of hasty decisions onto which emotional storms may
drive some couples. Islam had also done much to protect the wife's rights and to save her from
having to continue to live in an unhappy environment. Among beneficent
measures are the following: 1. the wife can insert a clause in the marriage contract ensuring that (a) incompatibility of temperament are so provided against that if any of the above five conditions is broken
she can approach a lawyer to obtain a divorce for her through the courts. 2. the wife can make it impossible for her husband not to divorce her by
being intolerably refractory, vexatiously shrewish or deliberately
incompatible in relationships, familial, sexual or social; 3. the wife can resort to the courts if the husband has been incapable or
negligent in supplying her with maintenance or has put obstacles in the way
of her obtaining it ; or if either partner deprives the other of conjugal
rights or fails in marital duties; the Muslim Qadhi, if the woman' s
plea is proved, can compel the husband to treat her right, to be reconciled,
to disburse the proper sums, to confer her rights upon her in every form :
and if the husband proves recalcitrant, or refuses to obey the judge's
orders, the judge can then compel him to divorce his wife; 4. the wife can enter a plea in the Islamic court and obtain an injunction
if the husband accuses her of lewdness, unchastity or unfaithfulness, or
denies his own paternity of her child : if the husband cannot prove his case
the judge will order the husband to separate himself from his wife in
accordance with the relevant legislation; 5. the wife may, in the case of intolerable revulsion or aversion, in a
simple fashion bring about a discontinuance of their union by renouncing a
large part of her marriage portion, while freeing her husband from his
obligation to pay her alimony during the "Iddat"
breathing-space period; 6 the wife, if the husband absents himself so that no news of him reaches
her and she falls into financial or other difficulties, can resort to the
courts and request a divorce. the judge will then perform the necessary
formalities to annul her marriage contract. It is written in Sura II: "Baqara" -"The
Heifer" (verse 229): "A divorce is only permissible twice : after
that the parties should either hold together in equity or separate in
kindness. It is not lawful for you men to take back from your wives any of
that portion which you have given them except when both parties fear that
they would be unable to keep the God-ordained limits. If you judges have
reason to fear that the parties will be unable to keep the God-ordained
limits, so decree, for there will be no blame on either of them if she hands
over a sum in exchange for her freedom. These limits are God-ordained so do
not transgress them since that is to wrong yourself as well as others." In the "Exegetical Collection" it is related in Volume I on page
167 that Ibn Abbas reported that Jameelé, wife of Thabit bin Qais, sought
audience of the Prophet and complained to him: "O Apostle of God! I
cannot stand one moment more of life with Thabit bin Qais, nor shall my head
ever rest again on the same pillow as his." After a pause she added :
"I am not accusing him of a lack of faith or of moral and marital
virtues: but I am afraid that I myself will fall into infidelity and
blasphemy if I have to spend another minute with him. I turned up the
tent-skirting and my eye fell on my husband in the middle of a crowd of other
men. He looked so ugly, a black-avised, dwarfish runt, and I hated him, and I
can't go on. ...!" She ran on thus, and the Prophet, after absorbing her
outpouring, tried to advise and admonish her, but she paid him no heed. So he
sent for Thabit bin Qais and laid the situation before him. Thabit was deeply
attached to Jameelé, but self-sacrificingly and for her sake agreed to take
back the marriage portion he had settled upon her - a beautiful garden - and
give her a khul' divorce. There are cases in which resort to the court by the wife is statutory.
There are also cases in which she can divorce her husband without legal aid,
as in cases of certain grave chronic diseases like leprosy or elephantiasis;
or because of the onset of lunacy, or of physical defects which prevent
marital intercourse, like impotence or castration of the husband. For these Feqh
gives the wife haqq-i-faskh - the right to the rescinding or annulment
of the marriage, which "faskh" is not the same as the khul'
divorce, and does not involve the same financial renunciations by the wife as
khul' does. Germany and Switzerland, in Europe, also recognise lunacy as grounds for
the annulment of a marriage or for separation. France does not admit either
grave chronic disease or lunacy as an adequate ground, and insists that the
healthy spouse must care for the leprous or lunatic partner. Undoubtedly such
longsuffering and lovingkindness is highly praise worthy. while extolling it
as a counsel of perfection, Islamic realism prefers to leave the partners
free to choose separation or continued care, according to their own
conscience. The West is suffering terribly from the laxity it has allowed in the break-up
of marriages and the violently increasing incidence of divorce. These
disasters are really reactions to over-pressure by the churches, which
prohibited and condemned divorce one hundred percent for many centuries,
while the secular governments gave recognition to it. For instance, divorce
was totally prohibited in France until the French Revolution of October 1789.
In 1804, in response to popular demand, divorce was legalised; but in the
following 12 years it increased so appallingly that the religious bodies
brought renewed pressure to bear, until in 1816 the law legalising divorce
was rescinded though physical separation of the parties was permitted.
However, public pressure built up again so much that in 1884 divorce within
certain limits was legalised once more. Here follow the conditions on which in Western lands divorce for wife and
husband was legal until recent times: 1. a criminal act committed by either party which involves the penalty of
life-imprisonment, exile, loss of civil rights or temporary imprisonment with
hard labour. 2. physical violence, mercenary prostitution, and a few other similar
criminal acts of the one partner against the other. 3. adultery by either partner - though in such cases the wife has the
right of divorce only if the man commits adultery with another woman in the
house which belongs to his wife and himself. The following is the road by which a wife's infidelity was proved : note
it well! "The infidelity of a wife must be proved completely in the eyes
of the police. The wife or the husband plan to be in different places for
however a short time. They must agree about some third person to be cited as
co-respondent and this person must be prepared to undertake this service. And
then at the stated hour the wife must be caught in flagrante delictu
with the third party', and the husband must have the police on the spot to
catch her out and so prove her infidelity. Thus the police accompany the
husband to the trysting-place; and when they catch the wife in flagrante
delictu this is accounted adequate grounds for her husband divorcing
her." (The Law of Divorce and Renewal of Marriage p.99). See what a mass of further impurities the impurity which wrought the need
for divorce in the first place has carried in its train. And this is the
"civilised" world of the West, which allows women entry into public
and political life, and with the other hand takes away her honour, her
femininity and the high standards which it should be her privilege to set,
and turns her chastity into a mercenary bargaining-point. It must be admitted
that since I first put pen to paper on this matter, efforts have been made in
many Western lands to eradicate the worst of these abominations. America makes divorce easier for both parties. It is not surprising, therefore,
that American divorce figures are the highest of all. The wise tremble at the results : the wisdom of Islamic dispositions
shines by contrast like the sun in darkness. At a conference in Strasburg,
statistics of one year's divorces which could be attributed to the
overwhelming desire of wives to be "in the fashion" "a la
mode", "comme il faut" and to "keep up with the
Joneses" in modernity of garb and guise were quoted as being: 1. in France, 27% of all divorces; Not every Parisienne is an excessive slave of fashion. Nonetheless it is
reckoned that the costs of unnecessary purchases made by women simply to keep
up with "mode" come to no less than 5,000 tomans per head
(£300-£400 per head per annum). Yet all this expenditure adds nothing to the
woman's natural beauty, moral stature, ease of spirit or calm mind! European statesmen, and responsible thinkers everywhere, are well aware of
the danger, and fear it acutely. All who possess the slightest sense of
philanthropy must seek the means of stemming the sweeping tide of this flood
of evil through the world. Islam offers its regulations on family life, matrimony, and the respective
positions of men and women, as a way which all nations might do well to
follow remembering that it was a Westerner Voltaire, who said: "The
Prophet Muhammad reduced the unlimited harems of unfortunate women maintained
by pre-Islamic potentates to a maximum of four wives: and his legislation on
marriages and divorces is the most noble and effective ever conceived,
formulated and enacted by any authority at any time in the world's history,
religious, political or social."
(b) maltreatment
(c) refusal of maintenance
(d) unannounced journeys
(e) the taking of another wife without consultation
2. in Germany, 33%;
3. in Holland, 36%;
4. in Sweden, 17%.
