Limitations of Divorce

Status of Women in Islam (5)

Limitations of Divorce

A Muslim is not free to exercise the right of divorce “on the slightest disgust.” The law has put many limitations upon the exercise of this power. Then, again, the example and precepts of the Prophet in this particular have rendered divorce, most repellent to the Muslim mind. A Muslim is permitted to have recourse to divorce provided there be sufficient justification for such an extreme measure. The whole Qu’ran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, “If they [namely, women] obey you, then do not seek a way against them.”[1] The law gives to the man primarily the faculty of dissolving the marriage, if the wife by her offensiveness or her bad character, renders the married life unhappy; but in the absence of serious reasons, no Muslim can justify a divorce either in the eyes of religion or the law. If he abandons his wife or puts her away from simple caprice, he draws upon himself the divine anger, for ‘the curse of God’ said the Prophet, ‘rests on him who repudiates his wife capriciously’. [Ahmad]

Essentially, divorce is an evil, and must be regarded as such, wherever there is the least respect for the law of God and the precepts of the Prophet. The pagan Arab, before the time of the Prophet, was absolutely free to repudiate his wife or wives, whenever it suited his whim or purpose. He was not bound to offer any reasons for the exercise of the power of divorce. The mere expression of his will was enough to effect a separation. The wife was a mere plaything. Sometimes the husband would revoke the divorce and again divorce her, and again take her back, to divorce her again, and so on indefinitely. Sometimes, again she was divorced, but she was not free to marry. Women under such circumstances were in a perpetual state of suspense, as it were. At last the Prophet, the Mercy for the Universe, came. He declared divorce to be ‘the most disliked of lawful things in the sight of God. He was indeed never tired of expressing his abhorrence of divorce. Once he said: “God created not anything on the face of the earth which He loves more than the act of manumission, nor did He create anything on the face of the earth which He detests more than the act of divorce. On another occasion he said: Forbidden is the fragrance of paradise to her who demands divorce from her husband without unavoidable reasons. Nor is this all; The Prophet actually imposed many conditions on the exercise of the power of divorce, and so passionately did he protect women against the tyranny of their husbands, that there soon grew up a general feeling among women of the time, that the Prophet would defend their cause, whether it be just or unjust, and that his decision would be consistently in their favour. His defence of the cause of women, and of orphans and of children, had in fact passed into an excellent example.

In the Glorious Qu’ran, there is a most informative verse which is generally overlooked. “Associate with the wives”, so runs the verse, “with goodness; and if you dislike them, it may be that you dislike a thing and God may put abundant good in it.” [4:19]. Thus Qu’ran enjoins forbearance, even with a wife one does not like. One really wonders at the boldness of the critics who say that the law of Islam permits divorce “even on the slightest disgust.”

Many and various are the saying of the Prophet of Islam that teach love, untiring patience, a forgiving disposition and, above all, fear of God in the treatment of women. “O’ my people!  You have certain rights over your wives and so have your wives over you. They are the trust of Allâh in your hands, so you must treat them with all kindness.” [Muslim 15:19]

A great Muslim commentator observes that divorce is allowable when the object is not to trouble the wife by divorcing her without just grounds, as refractory or unseemly behaviour on her part, or extreme necessity on the part of the husband.

It is clear thus, Islam discourages divorce in principle, and permits it only when it has become altogether impossible for the parties, to live together in peace and harmony. It avoids, therefore greater evil by choosing the lesser one, and opens a way for the parties to seek agreeable companions and, thus, to accommodate themselves more comfortably in their new homes. For, under Islam, a divorced woman, like the husband who divorces her, acquires the right of marrying any person she or he likes, the moment the separation is recognised by the law.[2]

Fully recognizing the arise from divorce, the Prophet of Islam took very cautious steps in framing the laws; and the ruling idea seems to be, that divorce should be permitted only when marriage fails in its effects, and the parties cease to fulfil the duties that spring from the marriage relation. There is in fact no justification for permanently yoking together two hostile souls, who might make themselves quite comfortable in new homes, if they were permitted to effect a separation. To compel them to live together “in pursuance of a most vexatious law under an oppression of the heaviest slavery, -for such is marriage without love- would indeed be a hardship more cruel than any divorce whatever. God, therefore, gave laws of divorce, in their proper use, must equitable and humane.”[3]

For, most dreadful consequences sometimes follow, unless divorce is permitted where it is desirable. Justinian, the great Roman emperor, had to repeal the prohibition of his predecessor on divorce by mutual consent, despite of the clergy opposition, and the ground stated by the enactment was, that it was difficult “to reconcile those who once came to hate each other and who, if compelled to live together, frequently attempted each other’s lives” “He yielded” writes Gibbon, “to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent, the civilians were unanimous, the theologians were divided, and the ambiguous word[4] which contains the precepts of Christ, is flexible to any interpretation that the wisdom of a legislature can demand.”