Limitation of Divorce

A Muslim is not free to exercise the right 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 that there is adequate justification for such an extreme measure. The Qu’ran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remain faithful and obedient to him in matters recommended by the law:

“If women obey you [i.e. in lawful matters], then do not seek a way against them,” that is seek not a pretext for separation.

The law gives 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.”

In the Qu’ran, there is most edifying verse which is generally overlooked by the critics of Islam: “Associate with your wives,” so runs the verse, “with goodness; and if ye dislike them, it may be that ye dislike a thing and God may put abundant good in it.” [4:19].

Thus the Qu’ran enjoins forbearance, even with a wife the husband does not like. One really wonders at the boldness of the critic is who presume that the Islamic Law permits divorce on “even on the slightest disgust.”

Many and various are the sayings of the Prophet of Islam that teach love, untiring patience, forgiving disposition and, above all, fear of God in the treatment of women.

 “It is to be rightly observed that divorce in Islam is allowable only when the object is not to trouble the wife by divorcing her without just grounds, such as refractory or unseemly behaviour on her part, or extreme necessity on the part of the husband.

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 them-selves more comfortably in their new homes.

If a woman is chaste and mindful of her duties as wife, the Islamic Law makes it obligatory upon the husband to associate with her on the best terms, and with kindness and courtesy. But if she proves refractory in her behaviours, the law confers on the husband the power of correction if exercised in moderation.[1]        

          

Finally, it is to be remembered that the abuse likely to arise from the laxity of the laws, may conveniently be contracted by other lawful impositions. The wife or her guardian or attorney may stipulate, at the time of marriage, against the arbitrary exercise of the power of divorce by the husband. The right of dissolution of the marriage contract, which is in all cases a civil 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 the dowry at a large sum payable to the wife in case of a divorce by the husband, such as may be beyond the means of the husband to liquidate. The wife may also, by stipulation, reserve to herself the power of dissolving the marriage under certain legitimate circumstances, for example, if the husband marries a second wife.

Again, in the event of a divorce, the Islamic Law is very particular in providing for the protection of the wife’s property against the greed of the husband: if the divorce is due to a cause related 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 resorted to at the instance 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.

The Islamic Law institutes also a procedure known as tafriq, which legally means dissolution of the status of marriage by a judicial verdict. Here are some causes for which the wife can demand a divorce by authority of the court: -

1) Habitual ill-treatment of the wife.

2) Non–fulfillment of the terms of marriage contract. 

3) Insanity.

4) Incurable Incompetency.

5) Quitting the conjugal domicile without making provision for    

6) the wife.

7) Any other causes which in the opinion of the court would justify a divorce.