Showing posts with label Divorce. Show all posts
Showing posts with label Divorce. Show all posts

Women Protection and Violence against Women & Islam

There is dire need to fully comprehend the issue of domestic violence. The traditional clergy opposes any thing which is not in line with their mindset. They quickly employ the declaration "Un Islamic". Members of the Council of Islamic Ideology (CII) have declared Women Protection Bill, which became law in Punjab recently, against the Islamic teachings.The CII met here under the chair of Maulana Muhammad Khan Sherani.
They always emphasise that Quran is best explained through Sunnah of Prophet (pbuh), known as living Quran by the mother of believers Hazrat Ayesha (R.A). He never beat any one of his wives. Rather he said: “Could any of you beat his wife as he would beat a slave, and then lie with her in the evening?”(Prophet Muhammad (pbuh) Sahih Bukhari;8.68 and Muslim).
There is need to look in to the matter deeply to be careful not to  be like scholars of the people of the book: "There are some among them who distort the Book by the way they speak to make you think that what they say is from the Book, whereas it is not. They say it is from God whereas it is not. Thus they tell a lie about God and they know it." (Quran;3:78) 

Domestic violence is very old menace, Arabs were no exception, and their maltreatment to women is a well known historic fact. They used to beat their women on small matters as it is still vogue in all the underdeveloped as well as the most developed societies of the world, where special laws have been made to discourage it. In the year 1995 in USA alone the lawmakers showed a heightened awareness of and sensitivity to domestic violence, with several states increasing penalties for abusers. New York enacted the omnibus Family Protection and Domestic Violence Act, and Maryland passed three new domestic-violence laws. Colorado passed five domestic-violence bills, including one that mandated arrest for the violation of a restraining order and jail time for a second offense. Virginia passed a number of laws with stiffer penalties for domestic violence, while Michigan had 14 new laws that would help in prevention and prosecution. This menace was handled in Islam objectively, by formulating the guidelines where by men can not resort to use of force against their wives as per their wish every now and then on minor matters. Allah says in Qur’an: “Men are overseers over women because Allah has given the one more strength than other, and because men are required to spend their wealth for the maintenance of women. Honorable women are, therefore, devoutly obedient and guard in the husband's absence what Allah require them to guard their husband's property and their own honor. As to those women from whom you fear disloyalty and ill-conduct, first admonish them, then refuse to share your bed with them, and (and last) if necessary beat them (lightly); Then if they obey you, take no further actions against them and do not make excuses to punish them. Allah is Supremely Great and is aware of your actions.”(Qur’an;4:34). 
It is evident from many authentic Traditions that the Prophet himself intensely detested the idea of beating one’s wife and said on more than one occasion, “Could any of you beat his wife as he would beat a slave, and then lie with her in the evening?”(Sahih Bukhari;8.68 and Muslim). 
According to an other Tradition, he forbade the beating of any woman with the words, “Never beat God’s handmaidens”(Abu Dawood, Nasa’i, Ibn Majah, Ahmad inn Hambal, Ibn Hibban and Hakim, on the authority Ilyas ibn ‘Abd Allah; ibn Hibban, on the authority of ‘Abd Allah ibn Abbas; and Bayhaqi, on the authority of Umm Kulthum). When the above Qur’anic verse, authorizing the beating of a refractory wife was revealed, the Prophet is reported to have said: “I wanted one thing but God has willed another thing – and what God has willed must be best” (Manar V, 74). 

 With all this, he stipulated in his sermon the occasion of the Farewell Pilgrimage, shortly before his death that, beating should be resorted to only if the wife “has become guilty, in an obvious manner, of immoral conduct”, and that it should be done “in such a way as not to cause pain (ghayar mubarrih)”; authentic Traditions to this effect are found in Muslim, Tirmidhi, Abu Dawood, Nasa’I and Ibn Majah. 
On the basis of these Traditions, all the authorities stress that this “beating”, if resorted to at all, should be more or less symbolic – “with a toothbrush (muswak), or some  such thing” (Tibri, quoting the views of scholars of the earliest times), or even “with a folded handkerchief” (Razi); and some of the greatest Muslim scholars (e.g., Ash-Safi’i) are of the opinion that it is just barely permissible, and should preferably be avoided: and they justify this opinion by the Prophet’s personal feelings with regard to this problem. [Commentary by M.Asad]. 

 In case all the efforts fail the family council is recommended in the next verse: 

 “If you fear a breach of marriage between a man and his wife, appoint one arbiter from his family and another from hers; if they wish to reconcile, Allah will create a way of reconciliation between them. Allah is the Knowledgeable, Aware.”(Qur’an;4:35).

 Allah says: “You have indeed, in the life of Messenger of Allah, the 'Best Model' for him whose hope is in Allah and the Day of the Hereafter, and who engages himself much in the remembrance of Allah.”(Qur’an;33:21), “Obey Allah and obey His messenger;” (Qur’an;64:12). Prophet Muhammad (peace be upon him) is not reported to have used force against his wives. In fact he has been very kind to them. Narrated Aisha, Ummul Mu'minin: Habibah daughter of Sahl was the wife of Thabit ibn Qays Shimmas. He beat her and broke some of her part. So she came to the Prophet (peace be upon him) after morning, and complained to him against her husband. The Prophet (peace be upon him) called on Thabit ibn Qays and said (to him): Take a part of her property and separate yourself from her. He asked: Is that right, Apostle of Allah? He said: Yes. He said: I have given her two gardens of mine as a dower, and they are already in her possession. The Prophet (peace be upon him) said: Take them and separate yourself from her. (Sunan of Abu-Dawood, Hadith Number. 915). Narrated Laqit ibn Sabirah: Messenger of Allah, I have a wife who has something (wrong) in her tongue, i.e. she is insolent. He said: Then divorce her. I said: Messenger of Allah, she had company with me and I have children from her. He said: Then ask her (to obey you). If there is something good in her, she will do so (obey); and do not beat your wife as you beat your slave-girl. (Sunan of Abu-Dawood, Hadith Number. 72).
Narrated Mu'awiyah ibn Haydah: I said: Apostle of Allah, how should we approach our wives and how should we leave them? He replied: Approach your tilth when or how you will, give her (your wife) food when you take food, clothe when you clothe yourself, do not revile her face, and do not beat her. (Sunan of Abu-Dawood, Hadith Number. 878). 

 It may be reasonable to conclude that it is permissible (not compulsory,  undesirable) for the husband to use force lightly under extreme circumstance involving disloyalty and ill-conduct by his wife but only after fulfilling certain conditions i.e. first admonishing, then declining to share  bed with her. It is obvious that these are not abrupt or emotional acts but, rational and gradual actions which should result in corrective positive response from the wife. If she obeys, then it is forbidden to take any  further actions against her or to make excuses to punish, since the matter stands resolved. However if she does not improve her conduct, then the other option is divorce, but prior to it a light coercive action (just barely permissible, and should preferably be avoided) may save the marriage. It is obvious that any pious and sane woman will not create such conditions; she may desist during first two steps. The killing of women on suspicion of ill-conduct termed as ‘Honor Killing’ (karokari) prevalent in many societies is totally against teachings of Islam. 

  1. The Islamic Response to Domestic Violence — EthnoMed

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Woman granted right of Divorce , Khula

There could be a situation where it is difficult to continue with the marriage, then the option of divorce is available to both husband and wife. If the matter persists resulting to the breach of marriage, use of council by arbitrator form family of woman and man is to be arranged for reconciliation: “If a women fears cruelty or desertion from her husband, there is no blame if both of them agree to reconcile by means of a compromise, after all compromise is better. Human souls are prone to narrow- mindedness, but if you show generosity and fear Allah in your dealings, surely Allah is well aware of your actions.”(Qur’an;4:128). The lawful but most undesirable act is divorce (Sunan of Abu-Dawood, Hadith Number. 893). The doors of reconciliation remain open for some time. Allah says: “Divorced women must keep themselves waiting for three menstrual periods; it is not lawful for them to hide what Allah has created in their wombs if they believe in Allah and the Last Day. In such cases their husbands have a right to take them back in that period if they desire reconciliation. Women have rights similar to those exercised against them in an equitable manner, although men have a status (degree of responsibility) above them. Allah is Mighty, Wise.”(Qur’an;2:228).

 Maintenance Allowance for Divorced Women:

 Islam safeguards the interest of a divorcee woman, by making it obligatory for the provision of maintenance allowance, Allah says: “Reasonable provisions (maintenance allowance) must also be made for divorced women (till she remarries). That is an obligation upon those who fear Allah.”(Qur’an;2:241). “Let those women, during their waiting period ('Iddat), live where you yourselves live according to your means. You shall not harass them so as to make life intolerable for them. If they are pregnant, maintain them until their delivery: and if, after that, they suckle your offspring, compensate them and settle the matter of compensation with mutual consultation and in all fairness. But if you cannot bear with each other then let another woman suckle the baby for you. Let the rich man give according to his means, and the poor man give according to what Allah has given him. Allah does not charge a man with more than He has given him; soon Allah may bring ease after hardship.”( Qur’an;65:6-7).
Women Granted the Right to Divorce (Khula): 

 Islam granted the right of divorce to women 1400 years ago, once no woman could dream of this freedom. In the procedure for divorce by man, it was ensured that sufficient checks and balances are in built to avoid impulsive decision which may have to be regretted later. Allah says in Qur’an: “Pronouncement of revocable divorce is only allowed twice: then she should be allowed to stay with honor or let go with kindness after the third pronouncement. It is not lawful for husbands to take anything back which they have given them except when both parties fear that they may not be able to follow the limits set by Allah; then if you fear that they both will not be able to keep the limits of Allah, there is no blame if, by mutual agreement the wife compensates the husband to obtain divorce. These are the limits set by Allah; do not transgress them, and those who transgress the limits of Allah are the wrongdoers.”(Qur’an;2:229). 
Where divorce for mutual incompatibility is allowed, there is danger that the parties might act hastily, then repent, and again wish to separate.  To prevent such capricious action repeatedly, a limit is prescribed; two divorces (with reconciliation between) are allowed.  After that the parties must definitely make up their minds, either to dissolve their union permanently, or to live honourable lives together in mutual love and forbearance - to "hold together on equitable terms," neither party worrying the other nor grumbling or evading the duties and responsibilities of marriage. However If a separation is inevitable, the parties should not throw mud at each other, but recognize what is right and honourable on a consideration of all the circumstances. 
In any case a man is not allowed to ask back for any gifts or property he may have given to the wife. This is for the protection of the economically weaker sex.  Lest that protective provision itself work against the woman's freedom, an exception is made. All the prohibitions and limits prescribed are in the interest of good and honourable lives for both sides, and in the interests of a clean and honourable social life, without public or private scandals. If there is any fear that in safeguarding her economic rights, her very freedom of person may suffer, the husband refusing the dissolution of marriage, and perhaps treating her with cruelty, then, in such exceptional cases, it is permissible for the woman to seek divorce (Khula) but she has to return the dower she received form the husband at the time of marriage as she is breaking the contract.
A divorce of this kind is called Khula. Divorce is most undesirable act, narrated by Muharib :The Prophet (peace be upon him) said: Allah did not make anything lawful more abominable to Him than divorce. (Sunan of Abu-Dawood, Hadith Number. 893). The women are free to marry any one else after divorce on completion of waiting period: “When you have divorced women and they have reached the end of their waiting period do not prevent them from marrying other men if they have come to an honorable agreement. This is enjoined on everyone amongst you who believes in Allah and the Last Day. This is more virtuous and chaste for you; Allah knows what you do not know.”(Qur’an;2:232)
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    Pronouncing three Times divorce [Talaq] in one go is un-Islamic

    Islam does not hold Tripple Talaq as Lawful
    There is a common misconception that a man can say Talaq, Talaq, Talaq to his wife in a row and it will lead to Talaq. This is totally an unIslamic practice.

     While marriage is the rule of life, and divorce only an exception, the latter must also be accepted as a reality. Indeed there already exist commandments to deal, accordingly, with such cases in both divine and human laws.
    The only true, authentic representation of divine law now exists in the form of the Qur’an, it having been preserved in its entirety by God and free, therefore, from all human interpolations. In the Qur’an, and in the Hadith, 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 hateful 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 good will. In no way should one harbor ill will against the other. Abu Dawud, Sunan, Kitab at-Talaq, 2/255

     Just think of 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 natural religion. 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. They then give consideration to her circumstances in the light of the Qur’an and the Hadith, and, if they find that there are reasonable grounds for separation, they decide in her favor. 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 the alterative - 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, while Hindu society forces the woman into familial rejection, destitution and social ostracism.

     Divorce in Islam

     Nature demands that men and women lead their lives together. The ideal way of leading such a life is, according to the shari‘ah, within the bonds of marriage. In Islam, marriage is both a civil contract entered into by mutual consent of the bride and groom, and a highly sacred bond to which great religious and social importance is attached.

     However, in the knowledge that an excess of legal constraints can lead to rebellion, such injunctions have been kept to a realistic minimum and have been formulated to be consistent with normal human capabilities. Moreover, their enforcement is less relied upon than the religious conditioning of the individual to ensure the maintenance of high ethical standards and appropriate conduct in marital affairs and family life.

     The state of marriage not only lays the foundations for family life, but also provides a training ground for individuals to make a positive adjustment to society. When a man and woman prove to be a good husband and a good wife, they will certainly prove to be good citizens in the broad spectrum of their social group. This has been aptly expressed in a Hadith: “The best of you is one who is best for his family.” Ibn Majah, Sunan, Kitab an-Nikah, 1/636

     The family being the preliminary unit for the training of human beings, its disintegration has an injurious effect on the society to which those human beings must individually make a positive contribution, if collectively they are to form a good and just nation. If the family no longer exists, it is the whole of humanity, which suffers.

     Once a man and a woman are tied together in the bonds of matrimony, they are expected to do their utmost, till the day they die to honor and uphold what the Qur’an calls their firm contract, or pledge. (Qur’an, 4:21) To this end, the full thrust of the Shariah is leveled at preventing the occurrence of divorce; the laws it lays down in this regard exist primarily, therefore, as checks, not incentives.

     Islam regards marriage as an extremely desirable institution, hence its conception of marriage as the rule of life, and divorce only as an exception to that rule. According to a Hadith, the Prophet Muhammad said, “Marriage is one of my Sunnah (way). One who does not follow it does not belong to me.” Ibn Majah, Sunan, Kitab an-Nikah.

     When a mail and a woman live together as husband and wife, it is but natural that they should have their differences, it being a biological and psychological fact that each man and each woman born into this world are by their very nature quite different from each other. That is why the sole method of having unity in this world is to live unitedly in spite of differences. This can be achieved only through patience and tolerance; virtues advocated by the Prophet not only in a general sense, but, more importantly, in the particular context of married life. Without these qualities, there can be no stability in the bond of marriage. According to Abu Hurayrah, the Prophet said, “No believing man should bear any grudge against a believing woman. If one of her ways is not to his liking, there must be many things about her that would please him. “Muslim, Sahih, Kitab ar-Rada’, 2/1091

     It is an accepted fact that everyone has his strengths and his weaknesses, his plus points and his minus points. This is equally true of husbands and wives. In the marital situation, the best policy is for each partner to concentrate on the plus points of the other, while ignoring the minus points. If a husband and wife can see the value of this maxim and consciously adopt it as the main guiding principle in their lives, they will have a far better chance of their marriage remaining stable.

     However, it sometimes happens, with or without reason, that unpleasantness crops up, and goes on increasing between husband and wife, with no apparent indication of their being able to smooth things out by themselves. Their thinking about each other in a way that is conditioned by their maladjustment prevents them from arriving at a just settlement of their differences, based on facts rather than on opinions. In such a case, the best strategy according to the Qur’an is to introduce a third party who will act as an arbiter. Not having any previous association with the matters under dispute, he will remain dispassionate and will be able to arrive at an objective decision acceptable to both parties.

     For any arbiter to be successful, however, the husband and wife must also adopt the correct attitude. Here is an incident from the period of the four pious Caliphs, which will illustrate this point.

     When ‘Ali ibn Abi Talib reigned as fourth Caliph, a married couple complaining of marital discord came to him to request a settlement. In the light of the above-mentioned Qur’anic guidance ‘Ali ordered that a board of arbiters, one from the husband’s family and one from the wife’s family, be set up, which should make proper enquiries into the circumstances and then give its verdict. This verdict was to be accepted without argument by both sides.

     As recorded in the book, Jami’ al-Bayan, by at-Tabari, the woman said that she gave her consent, on the book of God, whether the verdict was for or against her. But the man protested that he would not accept the verdict if it was for separation. ‘Ali said, “What you say is improper. By God, you cannot move from here until you have shown your willingness to accept the verdict of the arbiters in the same spirit as the woman has shown.”

     This makes it clear that a true believer should wholeheartedly accept the arbiters and their verdict in accordance with the Qur’anic injunctions. Once their verdict is given, there should be no further dispute.

     Two Ways of Divorcing

     However, it has to be conceded that life does not always function smoothly, like a machine. Despite all safeguards, it sometimes does happen that a couple reaches a stage of such desperation that they become intent on separation. Here the Shariah gives them guidance in that it prescribes a specific method for separation. The Qur’an expresses it thus: “Divorce may be pronounced twice, then a woman must be retained in honor or allowed to go with kindness.” Qur’an, 2:229

     This verse has been interpreted to mean that a man who has twice given notice of divorce over a period of two months should remember God before giving notice a third time. Then he should either keep his spouse with him in a spirit of goodwill, or he should release her without doing her any injustice.

     This method of divorce prescribed by the Qur’an, i.e. taking three months to finalize it, makes it impossible for a man seeking divorce suddenly to cast his wife aside. Once he has said to his wife (who should not at this time be menstruating), “I divorce you,” both are expected to think the situation over for a whole month. If the man has a change of opinion during this period, he can withdraw his words. If not, he will again say, “I divorce you,” (again his wife should be in a state of “purity”) and they must again review the situation for a further month. Even at this stage, the husband has the right to revoke the proceedings if he has had a change of heart. If, however, in the third month, he says,“I divorce you,” the divorce becomes final and the man ceases to have any right to revoke it. Now he is obliged to part with his wife in a spirit of good will, and give her full rights.

     This prescribed method of divorce has ensured that it is a well-considered, planned arrangement and not just a rash step taken in a fit of emotion. When we remember that in most cases, divorce is the result of a fit of anger, we realize that the prescribed method places a tremendous curb on divorce. It takes into account the fact that anger never lasts -- tempers necessarily cool down after some time-¬and that those who feel like divorcing their wives in a fit of anger will certainly repent their emotional outburst and will wish to withdraw from the position it has put them in. It also takes into account the fact that divorce is a not a simple matter: it amounts to the breaking up of the home and destroying the children’s future. It is only when tempers have cooled down that the dire consequences of divorce are realized, and the necessity to revoke the decision becomes clear.

     When a man marries a woman, he has to say only once that he accepts her as his spouse. But for divorce, the Qur’an enjoins a three-month period for it to be formalized. That is, for marriage, one utterance is enough, but for a divorce to be finalized, three utterances are required, between which a long gap has been prescribed by the shari‘ah. The purpose of this gap is to give the husband sufficient time to revise his decision, and to consult the well-wishers around him. It also allows time for relatives to intervene in the hopes of persuading both husband and wife to avoid a divorce. Without this gap, none of these things could be achieved. That is why divorce proceedings have to be spread out over a long period of time.

     All these preventive measures clearly allow frayed tempers to cool, so that the divorce proceedings need not reach a stage that is irreversible. Divorce, after all, has no saving graces, particularly in respect of its consequences. It simply amounts to ridding oneself of one set of problems only to become embroiled in another set of problems.

     Despite all such preventive measures, it does sometimes happen that a man acts in ignorance, or is rendered incapable of thinking coolly by a fit of anger. Then on a single occasion, in a burst of temper, he utters the word “divorce” three times in a row, “talaq, talaq, talaq!” Such incidents, which took place in the Prophet’s lifetime, still take place even today. Now the question arises as to how the would-be divorcer should be treated. Should his three utterances of talaq be treated as only one, and should he then be asked to extend his decision over a three-month period? Or should his three utterances of talaq on a single occasion be equated with the three utterances of talaq made separately over a three-month period? There is a Hadith recorded by Imam Abu Dawud and several other traditionists which can give us guidance in this matter: Rukana ibn Abu Yazid said “talaq” to his wife three times on a single occasion. Then he was extremely sad at the step he had taken. The Prophet asked him exactly how he had divorced her. He replied that he had said “talaq” to her three times in a row. The Prophet then observed, “All three count as only one. If you want, you may revoke it.” Fath al-Bari, 9/275

     A man may say “talaq” to his wife three times in a row, in contravention of the shari‘ah’s prescribed method, thereby committing a sin, but if he was known to be in an emotionally overwrought state at the time his act may be considered a mere absurdity arising from human weakness. His three utterances of the word talaq may be taken as an expression of the intensity of his emotions and thus the equivalent of only one such utterance. He is likely to be told that, having transgressed a shari‘ah law, he must seek God’s forgiveness, must regard his three utterances as only one, and must take a full three months to arrive at his final decision.

     In the first phase of Islam, however, a different view of divorce was taken by the second Caliph, ‘Umar ibn al-Khattab. An incident that illustrates his viewpoint was thus described by Imam Muslim.

     In the Prophet’s lifetime, then under the Caliphate of Abu Bakr and also during the early period of the Caliphate of ‘Umar, three utterances of talaq on one occasion used to be taken together as only one utterance. Then it occurred to ‘Umar ibn al-Khattab that in spite of the fact that a system had been laid down which permitted the husband to withdraw his first, or even second talaq, men still wanted to rush into divorce. He felt that if they were bent on being hasty, why should not a rule be imposed on them binding them to a final divorce on the utterance of talaq three times in a row. And he proceeded to impose such a rule.

     This act on the part of the second Caliph, apparently against the principles of the Qur’an and Sunnah, did not in any way change the law of the shari‘ah. To think that this led to any revision of Islamic law would be to misunderstand the situation: the Caliph’s order merely constituted an exception to the rule, and was, moreover, of a temporary nature. This aptly demonstrates how the Islamic shari‘ah may make concessions in accordance with circumstances.

     Each law of the shari‘ah may be eternal, but a Muslim ruler has the power to make exceptions in the case of certain individuals in special sets of circumstances. However, such a ruling will not take on the aspect of an eternal law. It will be purely temporary in nature and duration.

     It is a matter of Islamic historical record that when any such person was brought before ‘Umar for having uttered the word talaq three times on one occasion, he held this to be rebellious conduct and would order him to be flogged on the back. Fath al-Bari, 9/275

     Perhaps the most important aspect of this matter is that when ‘Umar gave his exceptional verdict on divorce being final after the third utterance on a single occasion of the word talaq, his position was not that of a powerless ‘alim (scholar) but of a ruler invested with the full power to punish-as a preventive measure-anyone who went against Qur’anic injunctions. This was to discourage haste in divorce. By accepting a man’s three talaqs on the one occasion as final and irrevocable, he caused him to forfeit his right to revoke his initial decision, thus leaving him with no option but to proceed with the divorce.

     On the other hand, the Caliph had it in his power to fully compensate any woman affected by this ruling. For instance, he was in a position to guarantee her an honorable life in society and if, due to being divorced, she was in need of financial assistance, he could provide her with continuing maintenance from the government exchequer, baitul mal, etc.

     Today, anyone who cites ‘Umar’s ruling as a precedent in order to justify the finality of a divorce based on three utterances of the word talaq on a single occasion should remember that his verdict will remain. Unenforceable for the simple reason that he does not have the powers that ‘Umar, as Caliph, possessed. ‘Umar’s verdict was that of a powerful ruler of the time and not just that of a common man. It is necessary at this point to clear certain misunderstandings which have arisen about the extent of agreement which existed on ‘Umar’s ruling. Of all the Prophet’s Companions who were present at Medina at that time, perhaps the only one to disagree was ‘Ali. As a result of this, certain ‘ulama have come to the conclusion that the Prophet’s followers (Sahabah) had reached a consensus (‘ijma) on this matter. Rawai’ ai-Boyan, 1/334

     But the consensus reached was not on the general issue of divorce, but on the right of Muslim rulers to make temporary and exceptional rulings, as had been done by ‘Umar. It is obvious that the Companions of the Prophet could never have agreed to annul a Qur’anic injunction or to modify for all time to come a prescribed system of divorce. All that was agreed upon was that exceptional circumstances warranted exceptional rulings on the part of the Caliph. He was entitled to punish in any manner he thought fitting, anyone who digressed from the shari‘ah. This right possessed by the ruler of the time is clearly established in the shari‘ah. Many other instances, not necessarily relating to personal disputes, can be cited of his exercise of this right.

     The Meaning of Provision

     In Islamic jurisprudence, the material arrangements that a man makes for his divorced spouse are termed “divorce provision.” There is a consensus among Muslim scholars that this provision in no way means life-long maintenance, there being absolutely no basis for this in the divine scriptures. The concept of maintenance for life is, in fact, a product of modem 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 quite commensurate with his means.

     But the Qur’an makes it explicit that the parting must above all be humane and that justice must be done: “Provide for them with fairness; the rich man according to his means, and the poor according to his. This is binding on righteous men. Do not forget to show kindness to each other... reasonable provision should also be made for divorced women. That is incumbent on righteous men.” Qur’an, 2:236.

     When divorce takes place before the settling of the dowry and the consummation of the marriage, even then the man must give the woman money or goods as a gesture of goodwill. In this instance the question of his repaying dowry money does not arise. The Qur’an is also quite explicit on this,

     “Believers, if you marry believing women and divorce them before the marriage is consummated, you have no right to require them to observe a waiting period. Provide well for them and release them honorably.” - Qur’an, 33:49.

     This “waiting period” (iddah) 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 Qur’an seeks a natural solution to all human problems. It would, therefore, be wholly against the spirit of the Qur’an for a woman to be entitled to life maintenance from the very man with whom she could not co¬exist. Such a ruling would surely have created a negative mentality in society. The Qur’an again has the answer: “If they separate, God will compensate each of them out of His own abundance: He is Munificent, Wise.’’ - Qur’an, 4:130

     The munificence of God refers to the vast provision that 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 more success.

     After Divorce

     The question that arises immediately after divorce is of ways and means to meet one’s necessary expenses. . One’s 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 a 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 they could do so, this would be more than enough to meet such emergencies.

     However, Islam has not just left women’s financial problems to the vagaries of inheritance, because parents are not invariably in possession of property that 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. Here we shall briefly describe 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 Path al-Qadir (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 period of confinement 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. Ibn ‘Abidin, Ramal-Mukhtar ‘ala ad-Durr al-Mukhtar, 2/733

     3. In the case of the 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 shari‘ah holds the State Treasury (baitul mal) 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.

     Indian columnist, Khushwant Singh has remarked that we do not hear of Muslim women committing suicide or being tortured like Hindu women, 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.

     A new dimension has been added to the issue since the women of this day and age can leave their homes to work, and are therefore not as entirely dependent on men as they used to be in the past: there is no need then to make laws which provide for them at the expense of their men folk. When they are earning like men, what is the point in making such a law? Only in exceptional cases, surely, do they need to be looked after, and ways and means of doing so can generally be worked out quite satisfactorily on a personal level.
    By Molana Waheed ud Din Khan: http://cpsglobal.org

     Notes
    1.  Encyclopaedia Britannica (1984), vol. 7, pp. 163Q64.
    2.  Ibid.
    3.  Ibid.
    4.  Bertrand Russell, Autobiography, (London, 1978), pp. 563-564.
    5.  The Hindustan Times, (New Delhi), October 12, 1985.
    6.  Abu Dawud, Sunan, Kitab at-Talaq, 2/255.
    7.  Qur’an, 2:236.
    8.  Qur’an, 33:49.
    9.  Qur’an, 4:130.
    10.  Ibn Majah, Sunan, Kitab an-Nikah, 1/636.
    11.  Qur’an, 4:21.
    12.  Ibn Majah, Sunan, Kitab an-Nikah.
    13.  Abu Dawud, Sunan, Kitab at-Talaq, 2/255.
    14.  Muslim, Sahih, Kitab ar-Rada’, 2/1091.
    15.  Qur’an, 2:229.
    16.  Fath al-Bari, 9/275.
    17.  Fath al-Bari, 9/275.
    18.  Rawai’ ai-Boyan, 1/334.
    19.  A standard book on Islamic Law.
    20.  AI-Shaokani, Fath al Qadir, 3/344.
    21.  Ibn ‘Abidin, Ram al-Mukhtar ‘ala ad-Durr al-Mukhtar, 2/733.
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