Divorce (3/5)

The EeIa'

• The eela', the husband swearing by Allah, or by any of the names of Allah that he would not go to his wife[1] for over four months. Such decision is unlawful, for it signifies swearing to neglect an obligatory deed.

• A man during the Ignorance Era would swear not to touch his wife for a year or two in order to spite her leaving her in limbo having a status of neither a wife nor a divorcee. To put an end to such injury, Allah, the Exalted, has limited the eela' to four months.

• lf a man swears that he would never touch his wife, or that he would not do so for a certain pIriod of time, he becomes mouli.[2] If he reapproaches his wife within a period of four months eela' would thus be terminated, but he would have to expiate by feeding ten needy people, or outfitting them, or by freeing one slave. If he cannot afford it, he would observe fast for three days. But if the four months elapsed before copulating with her, the wife may demand him to sleep with her, or to divorce her. If he insists, the judge would pass a single divorce term to protect the wife against injury.

• The iddah of a woman in eela' is like that of a divorcee.

The Dthihar

• The dthihar, the saying of a husband to his wife: "You are to me like the back of my mother." Or "You are unlawful to me like my mother is," or the like.

• Dthihar is unlawful. It was a type of divorce during the Pre-Islamic Era. Islam has nullified this type of divorce, but rendered the wife unlawful to the husband until he expiates what he has committed.

• When a man pronounces dthihar at his wife, she becomes unlawful for him to have sex with until he expiates his dthihar.

• Expiation for drhihar would be confirmed only when the husband had an intercourse with his wife after uttering the dthihar term to her.

•  If a woman says to her husband: "You are to me like the back of my mother", although such would not be considered as dthihar, yet she has to expiate as though she made an oath.

•  The expiation of dthihar has multiple choices in the following order:

1- Freeing a Muslim slave.

2- The observance of fast for two months. There is no harm if the two months were interrupted by the two Eeds or menstruation.

3- If the husband cannot afford the two preceding choices one may feed sixty needy people from the average food common in his area (1.5 kg) each it would do if he gives a lunch or dinner each.

• The husband must expiate before having an intercourse with his wife. If he does so before expiation, he would commit a sin.

The Li'aan

An announcement form of divorce which is nonetheless possible in Islamic Law, when the husband accuses his wife of infidelity. He supports the accusation by taking an oath four times, and by calling imprecations upon himself in case of falsehood on his part. The wife then denies the accusation by taking four oaths, and calls imprecations upon herself in case of falsehood on her part. The marriage is thereby dissolved and the two can never be remarried to each other.

• Wren the husband accuses his wife of infidelity and she denies the accusation, and he does not withdraw his accusation, when there are no four witnesses, Allah has made li'aan a lawful form of divorce. It is commended to exhort the couple to make them fearful of Allah before they commence the li'aan.

The Procedure of Li'aan

1- The saying four times by the husband: "I swear by Allah I am truthful in imputing infidelity to her". He adds: "and that the curse of Allah be upon him if he is a liar".

2- The wife responds by repeating four times: "I swear by Allah he is a liar in accusing me of infidelity." She adds: "and that the wrath of Allah be upon her if he is truthful".

• Once the li'aan is completed, the following four rulings are confirmed:

1- Waving of castigation punishment applicable to adultery.

2- Separation between the spouses involved in li’aan.

3- The couple becomes permanently unlawful for each other.

4- The children, if there is any, would be related to the mother, rather than to both parents.

• If the husband refrains from the Li'aan, he would receive the legal punishment for false accusation, which is flogging with eighty lashes. If the wife refrains from li'aan and admits the accusation, she would receive the legal punishment of the rajm, or stoning to death. 

• A woman separated from her husband by li'aan, would not be entitled to alimony during her iddah, nor lodging from the husband.

 (Continued)