The Form and Review of Separation

Status of Women in Islam (7)

The Form and Review of Separation

The Prophet imposed certain such conditions on the exercise of the power of divorce that while, on the one hand, they served as a powerful check on the injudicious and arbitrary use of this power, they afforded, on the other hand, many opportunities to the parties for an amicable agreement, if they so desired. Of the several forms of divorce recognised by Islamic law, the one that bears the impress of the Prophet’s sanction and approval is “Ahsan” type of “Talaq”. This form of repudiation involves the following conditions, each of which being intended to prevent a permanent breach.

1. The husband, in the first place, must pronounce only one repudiation, the object of this limitation being, that he may subsequently, when better sense prevails, revoke the repudiation–if he has pronounced it from caprice or in a moment of excitement– within the period of the wife’s retirement consequent upon that repudiation and that he may re-marry her, if the period expires without the right of return having been exercised by the husband. [1]
2. The repudiation must be pronounced when the wife is in a state of purity, and there is no bar to sexual intercourse, it being declared unlawful to pronounce repudiation when the wife is in menses, or when she is pure, but has already been approached.
3. The husband must abstain from connubial intercourse with his wife after pronouncing repudiation for the period of three months.” [2]

There is a tradition of accepted authenticity that throws considerable light on the wisdom underlying the last two restrictions. Abdullah Ibn Omar divorced his wife while she was in her menses; and the matter was reported to the Prophet who, much exasperated at the levity of his conduct, said: “Let him take her back and retain her; till she be pure and again have her courses and again gets pure. Then, if he thinks it prudent, let him divorce her, but he should do so when she is clean and has not been approached: and this is the period of retirement [iddat] which God has ordered for divorce.”

Some learned commentators observe in connection with this tradition that the purpose of this condition is, to avoid a rash and hasty procedure on the part of the husband, through aversion arising from the wife’s impurity, and by fixing a long period of abstinence to give him opportunities to reconsider his decision about the divorce, so that perhaps he may repent, and exercise the right of return before the expiry of the term.

During this period of probation, the marriage subsists between the parties, and the husband retains his marital authority over his wife. He may, therefore, have access to the wife even without her permission, and can treat her as his wife, but this would actually amount to his exercising the right of return. During ‘iddat’, the husband is under legal obligation to lodge the wife in his house, though in a separate apartment, and maintain her. The Qu’ran laws are quite clear on this point:- “O Prophet, when you divorce women, divorce them at their appointed time and compute the term exactly, and fear God your Lord. Oblige them not to go out of their apartments, nor allow them to depart, unless they be guilty of manifest uncleanness.” [65:1]

“House the divorced as you house yourselves, according to your means, and distress them not, by reducing them to straits. And if they are pregnant, then be at charges for them, till they are delivered of their burden; and if they suckle your children, then pay them their hire and consult among yourselves, and act generously.” [2:232]

“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of God. These are the limits of God, which He makes clear to a people who know.” [2:230]

It is obvious, that the very spirit of the prescribed traditional form of repudiation is towards a revocation of the divorce and a reconciliation between the parties concerned. If, however, the parties fail to take advantage of the prescribed interim, and are determined to break from each other, the husband may pronounce the repudiation for the third time and thus dissolve the marriage definitely. The divorced wife immediately turns into unlawful to him and he cannot remarry her, unless the wife marries first another person by a valid and binding contract, is divorced by this person, after an authentic consummation of marriage and completes the period of ‘iddat’ consequent upon such repudiation.[3]

This severe condition has been subject of much comment by the critics; but they forget that the very existence of such a condition demonstrates most strongly that the principles of Islam are entirely opposed to the alleged facility of divorce. The object of laying down such a rule was to prevent a definite dissolution of marriage, by appealing to the sense of honour of the people.

Sir W. Muir erroneously thinks that Islam positively sanctions the hiring of a temporary husband, to legalise re-marriage with a thrice–divorced wife.[4] The idea of getting the divorced wife married to a third person, on an express understanding that he would divorce her in favour of her former husband, was condemned by the Prophet in the most emphatic terms.

In the other form of divorce, three repudiations are pronounced in the period of purity, either on one occasion or on three separate occasions. This divorce is valid, but is an act of sin. This form of divorce is called “Talaq Bid-a,” i.e. and is not in conformity with pious practice.

It is to be remembered that the abuses, likely to arise from laxity of the laws, may conveniently be counteracted by other lawful impositions. The wife or her guardian for instance, may specify, at the time of marriage, against the arbitrary exercise of the power of divorce by the husband. The right of dissolution of the contract may be stipulated to be with the wife, instead of with the husband, if necessary. The same object may also be achieved indirectly, by fixing a dower at a large sum, beyond husband resources to liquidate. The wife may also, by condition reserve to herself the power of dissolving the marriage under certain legitimate circumstances, for example, if the husband marries a second wife.

In the event of a divorce the Islamic laws are very particular in providing for the protection of the wife’s property against the avarice of the husband: If the divorce is due to a cause imputable to the husband; he has to make over to her all her property, and pay off the dower that had been settled upon her. If, however, the divorce has been restored to at the request of the wife, without any justifiable cause, she has simply to abandon her claim to the dower. “The wife thus occupies a decidedly more advantageous position than the husband.”