Question: What can a wife do if the husband
refuses to give her a divorce? She can no longer live with him and he does
not give her rights. In Islam, does only the man have the right to
divorce? What if the woman is very unhappy? Is they any way out for her or
will she have to suffer all her life?
Answer: In the Name of Allah, Most Compassionate, Most Merciful,
In Islam, divorce is considered to be the worst of the lawful things. The
Messenger of Allah, (Allah bless him & give him peace) said:
“Divorce is the most hated of all lawful (halal) things in the sight of
Allah” (Sunan Abu Dawud, no. 2178).
Although Islam emphasises the importance of marriage, it is a humane and
practical religion which recognises the fact that there may be situations
in which dissolving the marriage bond may be in the better interests of
the individuals concerned and of society at large. Divorce is allowed as a
last resort, rather as amputation or major surgery may be the unpleasant
but a necessary step needed to save a person's life. If divorce was
forbidden, then animosity and adultery may become rampant. To save
individuals and society from the greater evils, divorce has been
permitted. However, it is not a step to be taken lightly or hastily.
Sincere attempts at reconciliation are to be made first and - as in the
case of marriage - the rights and welfare of women are to be upheld.
Imam Abu Hamid al Ghazali (Allah have mercy on him) states:
“The greatest care should be taken to avoid divorce, for, though
divorce is permitted, yet Allah disapproves of it. If divorce becomes
essential then the woman should be divorced kindly, not through anger or
contempt, and not without a valid reason. After divorce a man should give
his former wife a present and not announce to others any of her
shortcomings”
Due to this spirit of Islam, Allah Most High granted the right of divorce
to the husband and not the wife or any other third party. If one was to
look at the verses in the Qur’an that deal with divorce, one will see that
the address of divorce is directed to the husbands and not the wives.
For example, Allah Most High says:
“O Prophet! When you divorce women, divorce them at their prescribed
periods, and count their prescribed periods, and fear Allah your Lord” (Surah
al-Talaq, 1).
It should be remarked here that in the first instance the Messenger of
Allah (Allah bless him & give him peace) is addressed individually, as the
teacher and representative of the community. Then the actual directions
are addressed to the community collectively.
Allah Most High says:
“So if the husband divorces his wife (irrevocably), he cannot, after
that, remarry her until after she has married another husband and he has
divorced her” (Surah al-Baqarah, 230).
And:
“When you divorce women, and they fulfil the term of their Idda, either
take them back on equitable terms or set them free on equitable terms, but
do not take them back to injure them or take undue advantage” (Surah al-Baqarah,
231).
And:
“There is no blame on you if you divorce women before consummation or
the fixation of their dower” (al-Baqarah, 236).
And in one verse, it is quite clear:
“And him whose hands is the marriage tie” (al-Baqarah, 237).
The above verses are just some of the examples which indicate that the
right to divorce has been given to men. There is not one verse in the
Qur’an where divorce has been attributed to the wives. The same can be
understood from the Traditions.
One must always remember that Shariah injunctions are fully in conformance
with logic, wisdom and are prescribed for the betterment of the society as
a whole. We as Muslims believe that nothing has been ordained by Allah
Almighty except that there is benefit in it for us. We are not from those
that attempt to twist the rulings of Shariah in order to appease ourselves
and the so called ‘modern world’.
Wisdoms behind the right of divorce being given to men
There are many reasons and much wisdom in giving this right to the
husbands, just to mention a few:
1) As mentioned previously, divorce is the most detested of the lawful
things in Shariah. Therefore, in order to prevent unnecessary divorces,
there was a great wisdom in giving the right of divorce to men.
The reason for this is that, in the case of a divorce, although both the
husband and wife suffer as a result (psychologically for instance), a man
encounters many financial disadvantages and has the additional burden of a
heavy responsibility. He loses the dowry (mahr) that was paid to the
woman, he will have to pay Mahr for the second time if he marries again,
the wife is entitled to financial support and maintenance (nafaqa) whilst
in the waiting period (idda), she is entitled to child maintenance if
young children are in her custody, etc…
The husband has so much to lose financially if he divorces his wife and
this acts as a natural deterrent from abusing his right of divorce. If
women had such a right, however, there would be no such check on them
because they do not have any financial responsibilities towards their
husbands.
2) There is no doubt in the fact that the Almighty Creator created men
and women differently in many ways, physically, psychologically, mentally
and emotionally. Both men and women have been given certain qualities,
features and characteristics and according to these characteristics, Allah
Most High divided their responsibilities.
Men and women have been given certain duties and responsibilities that
suited them and that it conformed to the way they were created. The
responsibility of providing the daily bread was placed on the shoulder of
the husband, as it requires physical strength and men were naturally
created with more physical power than women. Similarly, the responsibility
of looking after the household affairs (to a certain degree) was given to
the woman, as that was more suited to her.
This is not a question of injustice or sexual discrimination. Let me give
you an example: I had two friends that were ready to help and assist me
due to seeing me overloaded with work. Now, I had two things that needed
to be done, one was to thoroughly clean my office with the moving of heavy
furniture, and the other job was to calculate my accounts. One of my
friends was physically stronger and had a well-built body, whilst the
other was not so quite fortunate in this regard, but had a great brain. It
will only be from common sense that I hand the job of calculation to the
one who was more able mentally and the lifting of heavy furniture to the
one who had more strength, might and power. If the contrary was done, it
would be condemned by everybody.
Similar is the case with Allah Almighty in that He distributed the
responsibilities and rights between men and women in a way that was suited
to them. Women naturally have been created with this great quality of
compassion, warmth and sensitivity. They are easily pleased and made
angry. This is something that they have naturally been created with. If
the husband becomes upset, it may take months in order to overcome his
stubbornness and please him, whilst the wife can be pleased very easily no
matter how displeased she was. This is one of the great qualities women
possess and we as men should definitely learn from it.
Due to women being more sensitive then men, it was natural (keeping in
mind the dislike of divorce in Islam) that the right to divorce was not
given to them. If it was, then there would be many divorces and break up
of marriages. They would issue divorces in the heat of the moment and
regret it later. Ask married couples how many times the wife divorces her
husband during the day, but from the heart she truly and genuinely loves
him and could not consider a moment of her life without him. A man due to
his doggedness and generally having more ability to reflect and ponder was
duly given this right of divorce.
These are just two of the wisdoms behind the right of divorce been given
to the man.
This does not in any way mean that the husband may abuse this right and
harm, abuse and mistreat the wife without her having any means to end the
marriage. Islam is a complete religion and respects the rights of all.
There are various grounds on which a woman may seek the annulment of her
marriage.
1) The following are the grounds on which the wife may seek a divorce
from her husband at a court of an Islamic country or in the absence of an
Islamic Court (as in western countries) from a committee of a few
religious people that consists of at least one scholar of Islamic law:
a) Inability or refusal of the husband to financially support his wife
(even if she happens to be rich, it is still the full responsibility of
the husband to maintain her).
b) Abuse and mistreatment of the wife (which includes beating and
swearing, cursing and attempting to force her to do wrong).
c) Impotence or any other illness that prevents the husband from
fulfilling the wife’s sexual needs (in recognition of the wife's
legitimate instinctive needs).
d) Incurable, repulsive disease in the husband like leprosy (or aids
according to the contemporary scholars).
e) Insanity in the husband
f) Extended absence or desertion of the husband
g) The husband deceiving and concealing information regarding himself at
the time of marriage
h) The relationship becoming severely damaged in that there is allot of
hatred between the spouses and it is impossible for them to live a
peaceful life
The above are brief examples in which a woman can seek a divorce. There
are certain rules, regulations and principles with regards to the
procedure and one should consult a reliable scholar before taking any
action.
2) There are certain situations where a woman may get a divorce even
without the intervention of an Islamic court:
a) Delegating of the husband the right to divorce to the wife after
marriage
b) Delegating this right at the time of contracting the marriage
c) Delegation of this right before the marriage and the marriage is
attributed to this delegation.
d) Conditional delegation, where at the time of signing the marriage
contract, the wife stipulated certain conditions to her husband, the
breach of which would result in a divorce.
There are certain rules for this also. For more details, see a post on the
Fiqh forum with regards to stipulating conditions in marriage.
In conclusion, Shariah primarily gives the unilateral right to divorce to
the husband. However, under certain conditions, the wife also has a right
to seek for the annulment of the marriage. This is the ruling that was
chosen for us by our Creator and it is totally in accordance with logic,
common sense and the betterment of the society as a whole.
And Allah Knows Best
Muhammad ibn Adam
Darul Iftaa
Leicester, UK
Article taken (with
Thanks) from Darul Ifta
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