Inequality of the Two Sexes Regarding Divorce

Marriage being regarded as a civil contract and as such not indissoluble, the Islamic Law naturally recognizes the right of both parties to dissolve the contract under certain given circumstances. Divorce, then, is a naturally corollary to the conception of marriage as a contract, and it is regrettable that it may have furnished European critics with a handle for attack.

They seem to entertain the view that the Islamic Law permits a man to repudiate his wife “even on the slightest disgust.” Whether the law permits or favours repudiation on the slightest disgust, we shall presently see. But there is another point raised by these critics, namely the inequality of the two sexes in regard to the right of obtaining a divorce, which inequality is in fact more seeming than real. The theory of marriage, no doubt, points to a subordination of the wife to her husband, because of her comparative inferiority in discretionary powers; but in practice the hands of the husband are fettered in more ways than one. The theoretical discretion must not be understood as given a tacit sanction to the excesses of a brutal husband; on the other hand, it is intended to guard against the possible dangers of an imperfect judgment. The relation between the members of the opposite sex which marriage legalises are, however, so subtle and delicate and require such constant adjustment, involving the fate and well-being of the future generations, that in their regulation the law considers it expedient to allow the voice of one partner, more or less, predominance over that of the other.

Perhaps it is here worthy of notice that in Europe the two sexes are not placed on the equal footing in respect of the right of divorce. Lord Helier, P.C., K.C.B., who was president of the Probate, Divorce and Admiralty Division of the High Court of Justice, 1892-1905, observes on this point thus: “Much comment has been made on the different grounds, on which divorce is allowed to a husband and to a wife – it being necessary to prove infidelity in both cases, but a wife being compelled to show either an aggravation of that offence or addition to it. Opinions probably will always differ whether the two sexes should be placed on an equality in this respect, abstract justice being invoked, and the idea of marriage as a mere contract, pointing in one direction, and social consideration in the other. But the reason of the legislature for making the distinction is clear. It is that the wife is entitled to an absolute divorce only if her reconciliation with her husband is neither to be expected nor desired. This was no doubt the view taken by the House of Lords”[1]