Before going into the details of the marital law, it is necessary to understand its objectives. The objectives of a law are its core.
The Rights and Duties of Spouses
Sayyid Abul A'la Maududi
MARKAZI MAKTABA ISLAMI PUBLISHERS
Human Welfare Trust Publication No7 I
© Human Welfare Trust (Regd.) New Delhi
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Name of the Book
The Rights and Duties of Spouses
(English Version of Urdu "Huqooq uz zaujein")
Pages: 152
Author
Maulana Sayyid Abul A'la Maudoodi
Third Edition May 2009 1,100
Price : Rs. 55.00
Published by
Markazi Maktaba Islami Publishers
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Printed at H.S. Offset Printers, New Delhi-2
"So take what the Apostle assigns to you, and deny yourselves
that which he withholds from you " [Al-Hashr: 7]
CONTENTS
1. Foreword
2. Objectives of the Marital Law - 8
Preservation of Morals and Chastity
Love and Compassion
Marital Ties with Non-Muslims
Compatibility
3. Principles of the Law
The First Principle
The Duties of Man
Injury and Oppression
Not Being Just to Wives
Rights of the Husband
Man's Powers
Counselling, Admonition, Punishment
4. The Second Principle
Conditions for Divorce
Khula
Khula Precedents from Early History
Mandates Concerning Khula
Basic Errors About Khula
Powers of the Court in Khula
The Shari'ah Tribunal
5. Fundamental Issues About the Shari'ah
The First Condition for the Court
Independent Thinking is Essential
Harm Done in India by the Absence of Shari'ah Bench
The First Step Towards Reform
Need for a Modern Legal Code
6. Fundamental Instructions
7. Corollaries
Apostasy of One of the Spouses
Discretion of Adulthood
Obligatory Guardianship
Conditions for the Exercise of Discretion
Dower
Living Expenses
Undue Oppression
Arbitration
Option of Dissolution for Serious Disability
Impotency
Madness
The Missing Husband
Maliki Rulings About Missing Husband
Return of the Missing Husband
Invoking Allah's Curse Three Simultaneous Divorces
8. The Epilogue
9. Appendix 1
A Very Important Question
Answers
10. Appendix 2
Divorce and Separation Laws in the West
1. FOREWORD
Two things are essential for the survival of a society, viz., a
comprehensive law framed to suit the peculiar needs of its cultural pattern
and, secondly, the leadership that can enforce this law exactly in the spirit
in which the law was framed. It is a pity that the Indian Muslims currently
lack both these things. True, they possess laws preserved in the books, a legal
code, which fully suits Islamic civilization and culture and encompasses all
social and cultural aspects. But in practice this legal code stands abrogated.
Instead, their social affairs are being governed by a code of law that is
totally un-Islamic, in most of its social and cultural aspects. And to the
extent to which it is Islamic, it falls short of the Islamic objectives. The
government, under which the Muslims are living today, has practically divided
their lives into two sections. In one section, it has subjected the Muslims,
along with other communities of India, to the laws that have no compatibility
with Islamic culture. And in the second section, the Muslims' right for the
enforcement of Islamic law has, in principle, been conceded. But, in practice,
even in this section the Islamic Shari'ah has not been rightly enforced. The
so-called Muhammadan Law enforced in this part is very different, both in
letter and spirit, from the genuine Islamic Shari'ah. The enforcement of this
law can in no way amount to the enforcement of the Islamic Shari'ah.
This regrettable state of affairs has done great harm to the
cultural life of the Muslims. The greatest harm done by it is the destruction
of our family life. The lives of a large part of our population have been
embittered and devastated. The marital relationship of man and woman is, in
fact, the cornerstone of human culture. No human being, whether a man or woman,
can step outside the ambit of the law designed to regulate the marital
relationship. From childhood to old age, at every stage of life, this law
influences human life. The rearing of a child is sure to bear the impress of
the relationship of his parents. When he grows up to be a man, he will have to
share life with a wife. When he reaches old age, his offsprings will have to be
tied down by marital relationships and his own peace of mind will be largely
determined by the happy relationship between his son and his daughter-in-law as
well as between his daughter and his son-in-law. In short, the marital law is
the most important and the most far-reaching of all social laws. Because of its
basic importance, Islam formulated this law on extremely sound principles. In
matters of marital relations the Muslims were given a clear, comprehensive and
perfect law that can, in every respect, be called the best marital law of the
world. But unfortunately, this was overtaken by the so-called Muhammadan Law
and was so badly deformed that it came to bear a very faint resemblance with
the real Islamic marital law. Currently, the marital affairs of Muslims are
governed by the so-called Islamic Shari'ah which is neither clean, nor
comprehensive nor perfect. Its defects have influenced the cultural life of the
Muslims perhaps more adversely than any other law. There is hardly a fortunate
family in India which is governed by this law, and life of someone of that
family has not been ruined by this particular law. But the devastation of a
life is a relatively minor thing. The great calamity is that this law has
played havoc with the honour and good name of most of the Muslims. It has
ruined their morals and their faith. It has let loose a flood of indecencies
and apostasy into Muslim families that were considered to be the safest
citadels of Islam and its culture.
The damages resulting from the shortcomings of this law and the
failures of the executive authority multiplied on account of two reasons:
First, the lack of religious education. This has led to a sort of
alienation of Muslims from the Muslim marital law that even well-educated
Muslims are not aware of the common issues involved in this law. 1
The second cause is the influence of non-Muslim cultures. Due to
this influence several customs and superstitious rites and rituals that are
alien to the Muslim marital law and its spirit, have found their way into the
marital relations of Muslims. Consequently, the true Islamic concept of marital
relationship has escaped the minds of a great majority. In many cases the Hindu
concept prevails, reducing the wife to the status of a slave-girl and elevating
the husband to the status of a deity or a god. The marriage tie is unbreakable
in practice, if not in principle. Divorce by the husband or by the wife is
looked down upon as a stigma, which is avoided even if it becomes imperative,
just to save face, though this may involve covert acts far worse than divorce.
To forestall a divorce, the dower has been raised to such heights that deters
the husband from thinking of a divorce. If mutual hatred happens to develop,
the man feels compelled to leave 'the woman in the lurch. Husband worship has
come to be regarded as a source of pride and moral duty for the woman. Fear of
social disapproval keeps her from dropping a hint of divorce even in the most
trying circumstances. Even in the event of the husband's death it is considered
to be her moral duty to live for the rest of her life, like Hindu woman, in the
name of her husband. The remarriage of a widow is considered to be shameful,
not only for her, but also for her family. The people of new generation, on the
other hand, who are under the spell of Western culture, go on quoting to suit
their whims the Quranic verse 'Women deserve the same kind of treatment as men
deserve from them." But if you quote the Quranic verse "Men are a
degree above women", their voices suddenly get hushed. And when they come
to the verse "Men are more powerful than women" they start hiding
their helplessness to delete this verse from the Quran. They come out with all
kinds of preposterous explanations of the verse. And their mode of explanation
exposes their shame that their Holy Book should contain such a verse. The
reason for this is that the equality of sexes publicized by Western culture has
captivated their minds. They have lost the ability to comprehend the solid and
infallible rational grounds on which Islam has based its social structure.
These different reasons have combined to drag the family life of
Muslims to depths that sadly contrast its former heights. The current laws and
the executive machinery enforcing these laws are simply incapable of ironing
out the complexities in the marital affairs of the Muslims, resulting from
ignorance and the influence of foreign cultures. If anything, the complexities
have increased. Because of ignorance a section of Muslims believes that these
evils have stemmed from deficiencies in the Islamic law. That is why they call
for the compilation of a new code of law. The truth is that Islam possesses a
perfect marital law that specifies clearly and equitably the rights of both
husband and wife. Full provision has also been made for the protection, and in
case of transgression (whether by husband or wife) for the restitution of these
rights. There is no problem that has not been equitably solved. So Muslims are
not in need of any law. All they need is that the Muslim marital law should be
enunciated in its true form and efforts be made to enforce it in the proper
manner. This is by no means an easy task. To begin with, it is the duty of the
Ulama to give up blindly following in the footprints of the past. They need to
take into consideration the present-day circumstances and needs, and in this
context, to compile the Muslim marital law in a way that fully solves the
current complexities of the marital problems facing the Muslims. Muslims in
general should also be educated in this law, so that they can rid their social
life of the unhealthy customs and concepts that have been borrowed from
non-Muslim cultures.
Only then they will understand the basis and the spirit of the
Islamic law and will deal with their affairs accordingly. In addition to this,
there must be a judicial system that has faith in this law; its judiciary
should have undergone the academic and moral training that enables it to
enforce this law in its true spirit, and not in the erroneous concepts of alien
laws. from thinking of a divorce. If mutual hatred happens to develop, the man
feels compelled to leave 'the woman in the lurch. Husband worship has come to
be regarded as a source of pride and moral duty for the woman. Fear of social
disapproval keeps her from dropping a hint of divorce even in the most trying
circumstances. Even in the event of the husband's death it is considered to be
her moral duty to live for the rest of her life, like Hindu woman, in the name
of her husband. The remarriage of a widow is considered to be shameful, not
only for her, but also for her family. The people of new generation, on the other
hand, who are under the spell of Western culture, go on quoting to suit their
whims the Quranic verse 'Women deserve the same kind of treatment as men
deserve from them." But if you quote the Quranic verse "Men are a
degree above women", their voices suddenly get hushed. And when they come
to the verse "Men are more powerful than women" they start hiding
their helplessness to delete this verse from the Quran. They come out with all
kinds of preposterous explanations of the verse. And their mode of explanation
exposes their shame that their Holy Book should contain such a verse. The
reason for this is that the equality of sexes publicized by Western culture has
captivated their minds. They have lost the ability to comprehend the solid and
infallible rational grounds on which Islam has based its social structure.
These different reasons have combined to drag the family life of
Muslims to depths that sadly contrast its former heights. The current laws and
the executive machinery enforcing these laws are simply incapable of ironing
out the complexities in the marital affairs of the Muslims, resulting from
ignorance and the influence of foreign cultures. If -anything, the complexities
have increased. Because of ignorance a section of Muslims believes that these evils
have stemmed from deficiencies in the Islamic law. That is why they call for
the-compilation of a new code oflaw. The truth is that Islam possesses a
perfect marital law that specifies clearly and equitably the rights of both
husband and wife. Full provision has also been made for the protection, and in
case of transgression (whether by husband or wife) for the restitution of these
rights. There is no problem that has not been equitably solved. So Muslims are
not in need of any law. All they need is that the Muslim marital law should be
enunciated in its true form and efforts be made to enforce it in the proper
manner. This is by no means an easy task. To begin with, it is the duty of the
Ulama to give up blindly following in the footprints of the past. They need to
take into consideration the present-day circumstances and needs, and in this
context, to compile the Muslim marital law in a way that fully solves the
current complexities of the marital problems facing the Muslims. Muslims in
general should also be educated in this law, so that they can rid their social
life of the unhealthy customs and concepts that have been borrowed from
non-Muslim cultures. Only then they will understand the basis and the spirit of
the Islamic law and will deal with their affairs accordingly. In addition to
this, there must be a judicial system that has faith in this law; its judiciary
should have undergone the academic and moral training that enables it to
enforce this law in its true spirit, and not in the erroneous concepts of alien
laws.
This treatise has been written to meet this very need. In the
following pages we plan to set forth a full sketch of the Islamic marital law.
The objectives of the law, its principles and its mandates, will all be
discussed in due course. For explanation, we will quote, where necessary, the
precedents handed down by the Holy Prophet (peace be upon him) and his
companions, as well as the opinions of the great scholars of our early history.
That will make the explanation of related issues easy. In the end, some
proposals will be made that will help solve, to some extent, the difficulties
faced by Muslims in their marital affairs. In fact, the right and effective
remedy for these difficulties lies in the establishment of an Islamic state and
an Islamic judiciary. But as the barest minimum, we want to discuss even the
skeletal forms which can, in a correct Islamic way, remove the evils plaguing
the marital affairs of the Muslims. That will enable people, who are striving
to solve these problems, to avoid moving in the wrong direction and to adopt a
way that is compatible with the Shari'ah.
References
1. It is, for example, the result of ignorance that Muslims in
general know only one mode of pronouncing divorce, i.e., pronouncing the three
divorces all at once. Even the person who writes down the divorce deed pens
down three simultaneous divorces. Islam looks upon this as a deviation and a
serious sin. This leads to a host of legal complexities. If people realize that
a single pronouncement of divorce serves the same purpose as three
pronouncements at a time, the possibility of reconciliation before the expiry
of the prescribed time remains and there remains the option of reunion after
the expiry of the prescribed time. That could save many homes from breaking up
and could also save countless people from indulging in falsehood, trickery and
violation of law.
2. OBJECTIVES OF THE MARITAL LAW
Before going into the details of the marital law, it is necessary
to understand its objectives. The objectives of a law are its core. In order to
achieve the objectives principles are prescribed and then mandates are
formulated to serve the principles. If mandates are given without comprehending
the objectives, there is a possibility of the mandate being applied to a
particular issue in a way that forfeits the very essence of the law. In the
same way, a person, who is unaware of the objectives of a law, will not be able
to follow it in the true spirit of the law. So, we begin with the explanation
of the objectives for which Islam has laid down its marital law.
PRESERVATION OF MORALITY AND CHASTITY
The first objective of the Islamic marital law is the preservation
of morality. Islam denounces fornication as illegal. It urges both sexes of
humanity to subject their relationship to a code of law which protects the
morality of man against indecency and immodesty and guards civilization against
chaos. That is why the marriage tie has been termed "fortification"
by the Quran; "Hisn" means fort in Arabic and "Ihsan" means
fortification. A person who marries gets fortified. In other words he builds a
fort for himself. The woman he marries is called "the fortified one".
Marriage provides her with a fort built for the satisfaction of her sexual
desires and the protection of her morality and chastity. This simile clearly
shows that in Islam the first objective of marriage is the preservation of
morals and chastity. The first step of the marital law is to strengthen the fort
built by marriage for the preservation of a priceless possession. Note the laws
of the Quran:
"(Excepting the women made unlawful for you), all other women
are lawful for you, provided you seek them, with your property, in marriage,
not for committing fornication". (4: 24). .
"Marry them with the permission of their guardians and give
them their dowers justly, so they become chaste women, not fornicating, nor
secretly receiving paramours." (4: 25).
"And so are the believing chaste women (lawful for you) -as
well as the chaste women from among those who have been given the Book before
you, when you give them their dowers, taking them in marriage nor fornicating,
nor taking them as paramours in secret."
(5: 5). A critical look at the above verses makes it clear that
from the Islamic point of view, the most important thing about the marital
relationship is the fullest and most effective preservation of morality and
chastity. This objective should be achieved even at the cost of any other
objective. No other purpose should be served at its cost. Husband and wife are tied
together simply with the sole aim of enabling them to satisfy their natural
passions within the limits set by Allah, the Almighty. However, if the marriage
tie leads to circumstances where the violation of the limits set by Allah is
feared it is far better to stick to these limits at the cost of the marriage
tie, rather than retain it at the cost of Allah's limits. That is why those who
declare an intention to abstain from their wives have been commanded not to do
so for more than four months. In case they overstep this limit, they lose their
right to retain the marriage tie. If they were allowed to keep their wives
suspended indefinitely, the inevitable outcome would be that the demands of
their inborn passions might force the women to violate Allah's limit. That is
something totally unacceptable to the Divine Law. In a like manner, men who
marry more than one wife, are warned by the Quran: "Do not lean
exclusively to one wife, leaving the other one in the lurch." This command
also warns men not to drive women into a desperate situation which forces them
to violate Allah's limits. In such a situation it is better to dissolve the
apparent bond of marriage rather than retain it, and the women should get the
freedom to marry someone else. The woman has been granted the right to demand
divorce only to cope with such situations. Forcing a woman to live with a man
with whom she is no longer happy or who cannot give her peace of mind, places her
in a situation that threatens to override Allah's limits. It is because of this
that a woman has been granted the right to get rid of the marriage tie, on
payment to her husband the dower she received or even something more or less,
as the two of them may agree upon. A detailed discussion of these clauses of
the Islamic law will be taken up later. The matter has been touched upon here
just to stress the supreme importance of morality and chastity in the eyes of
the Islamic law. This law does its best to strengthen the marriage tie in all
possible ways, but when the retention of this bond becomes a threat to morality
and chastity, Islam considers it necessary to save these precious values even
at the cost of the marriage bond. This point needs to be fully grasped if the
forthcoming clauses of the Islamic law are to be understood and enforced in the
spirit of the Shari'ah.
LOVE AND COMPASSION
The second objective is to base the marital relationship between
the two sexes on love and compassion, so that the two of them together can
promote the tasks that human civilization and culture seek to accomplish
through marriage. Love and compassion not only enable the spouses to lead a
happy and peaceful family life, but also give them the strength needed for the
promotion of higher cultural values. The Quran has described this objective in
a tone that suggests that in the eyes of Islam the very concept of marriage is
the concept of love and compassion. The spouses have been created that they may
enjoy peace in each other's company:
"And of His signs is that He created mates for you from yourselves
that you might find peace of mind in them and He put between you love and
compassion. Surely there are signs in this for a people who reflect." (30:
21)
In another chapter the Quran says:
"He it is Who created you from a single soul, and of the same
kind He made his mate that he might find comfort in her." (7: 189)
Still in another chapter the marital tie has been described thus:
"They are an apparel for you and you are an apparel for
them." (2: 187)
The last verse compares the spouses to an apparel for each other.
Dress is closer to the human body than anything else. It not only covers the
human body for modesty but also protects against inclement weather. The simile of
an apparel has been used to emphasise that in essence the marriage tie is just
like the relationship between the human body and the dress it wears. The minds
and souls of the spouses have to be so close a person that they provide a cover
for each other. They should fight of all evil forces that pose a threat to the
honour and morals of the mate. Such are the implications of love and
compassion. This is the real meaning of the marital relationship. And if this
is missing, the marriage tie is like a lifeless corpse.
This objective permeates all laws framed by Islam about marital
relationship. The spouses have to live together amicably and in an atmosphere
of love and harmony. They should generously respect each other's rights. In
case they are unable to do this, their separation is better than their union. A
marital bond which is devoid of love and compassion is like a dead body, which,
if left unburied, is sure to putrefy and pollute its surroundings. This
explains the Quranic verdict:
"And if you live in amity and are mindful of your duty,
surely Allah is Ever-Forgiving, Merciful. And if they separate Allah will
render both of them free from want, out of His ample resources."(4: 129,
130)
The point is stressed even more forcefully in other chapters:
"Then keep them in good fellowship or release them with
kindness". (2: 229)
"Retain them with kindness or release them with
kindness." (65: 2)
"And treat them kindly". (4: 19)
"Retain them in kindness or release them in kindness, and do
not retain them just to torment them and to rob them of their rights. And whoso
does this, he surely wrongs his own soul." (2: 231)
"And in your mutual dealings, do not forget to be
generous". (2: 237)
Islam does not want divorce to be a hasty and impulsive act. Hence
the provision for three pronouncements of divorce. Before the third
pronouncement, the husband has the right to retain his wife, provided he does
so in good faith. The marriage tie can stay intact only if it is sustained by
love and compassion. The husband is not allowed to retain his wife with a view
to tormenting her and keeping her suspended. The Quran is explicit on this
point.
"And their husbands have a better right to take them back if
they want this in good faith." (2: 228)
Muslims, both men and women, are forbidden to have marital
relations with non-Muslims who are not believers in the Scriptures. The simple
reason is that their religion, their thinking, their civilization and culture
and their way of life are so different from those of the Muslims that it is
impossible for a true Muslim to develop deep love and integration with them.
Even if, despite differences, the two are tied together in marriage, the
relationship will be only carnal. It will not be a truly cultural and
harmonious relationship. If it is not, the love and compassion are sure to do
more harm than good both to Islamic culture and to the Muslim partner of the
union. The Quran bears testimony to this:
"And do not marry the idolatresses until they believe, and
certainly a believing maid slave is better than an idolatress, even though you
like her. Nor give believing women in marriage to idolators until they believe,
and certainly a believing slave is better than an idolator, even though he
pleases you". (2: 221)
As for the Jews and Christians (people of the Scriptures) Islamic
law allows marriage with Jewish and Christian women because Muslims share some
cultural factors with them.
Despite this permission Islam has discouraged such marriages. Kaab
bin Malik wanted to marry a woman from among the people of the Book. The Holy
Prophet (peace be on him) forbade him from this. His reason was that the woman
would not be able to provide him with the required degree of love and
compassion, which is the essence of the marriage tie. The well-known companion
Huzaifah wanted to marry a Jewess. Omar, the second caliph, wrote to him to
drop the idea. Ali and Abdullah bin Omar openly denounced marriage with Jewish
and Christian women. In support of his opinion Ali quoted the Quranic verse:
'You will not find a people, who believe in Allah and the Last
Day, loving those who oppose Allah and His Messenger". (58: 22).
Ali clinched his argument by asking what is the use of marriage if
there is no love between husband and wife.
COMPATIBILITY
The intention of the Islamic Shari'ah is that the marriage tie
should be established between a man and a woman who, because of their social
background, are likely to develop a bond of love and compassion. Where this
likelihood does not exist, it is not desirable to arrange a marriage. That is
why the Holy Prophet (peace be upon him) declared it necessary or at least
advisable that, before marrying a woman, the man should take a look at her:
When someone from among you seeks the hand of a woman in marriage,
he should, as far as possible, take a look at her, so that he can be sure that
she has attraction for him. (Abu Dawood)
This accounts for Shari'ah's insistence on compatibility. It does
not approve of marriage between incompatible partners. If a man and a woman
belong to families that share close or partial similarities in their views on
morality, religion, social behaviour and the day-to-day household management,
they are more likely to develop and strengthen a bond of love and compassion.
Their marriage tie can be expected to bring the two families still closer. On
the other hand if the man and the woman come from families that have little in
common, the greater likelihood is that, both in their domestic life and in
their emotional response, the couple feels love for each other, there is little
hope of their families getting any closer. This is the essence of the compatibility
clause in the Islamic law.
All that has been said so far proves that after the preservation
of morality and chastity, the next most important thing in the Islamic marital
law is the bond of love and compassion between the husband and wife. As long as
there is hope that their relations will continue to be governed by this bond,
the Islamic law strives its most to protect the marriage tie. However, when
love and compassion have been replaced by apathy, frustration, hatred and
disgust, the law prefers to do away with the marriage tie. This point is worth
keeping in mind. People who lose sight of this pertinent point and seek to
apply the principles of the Islamic law to a particular case commit blunders at
each step that are incompatible with the real objectives of the law.
References
1. Muslim women are not allowed to marry men from among the people
of the Scripture. Feminine nature being sorter and .more supple, a Muslim lady
with a non-Muslim husband, in a non-Muslim society, is more likely to adopt
their way of life and less likely to influence their thinking. If she refuses
to be influenced by the surrounding culture, the marriage tie is sure to be
reduced to a carnal relationship. She will be unable to develop love and
compassion for her husband, nor can she build any useful cultural contact with
the non-Muslim family and the non-Muslim society.
3. PRINCIPLES OF THE LAW
Having discussed the objectives of the law, we now take a look at
the principles on which the Islamic marital law has been compiled. Unless the
principles are thoroughly grasped, it is difficult to apply correctly the
mandates of the law to particular cases.
THE FIRST PRINCIPLE
The first principle in the Islamic law, from which stem out many
of the mandates, is that in marital life man is placed a degree above the
woman. The following verse from the Quran elaborates the extent of the degree:
"Men are the maintainers of women with what Allah has made
some of them to excel others and because they spend out of their wealth. So the
good women are obedient (to their husbands) and guard their rights in their
absence". (4: 34)
It is out of place to discuss here why man has superiority over
the woman or why he has been made her maintainer (qawwam also means guardian,
protector, manager, supervisor). This discussion does not belong to law. It
belongs to sociology. Sticking to the limits of the topic under discussion, it
is enough to point out that for the smooth running of the household affairs.
One of the partners has, in any case, to be the manager or the executive head.
If both of them stand at an equal footing and possess equal powers, chaos is
sure to result. That is what is actually happening in nations that have tried
to grant practical equality to husband and wife. Islam has taken due account of
human nature. It has chosen one of the partners as the manager and the other
one as subordinate. For the ruling function it has chosen the one who is
naturally fit for the job.
THE DUTIES OF MAN
The code of married life promulgated by Islam assigns to man the
role of the head of the family. This role brings with it the following duties:
I. Dower: The husband has to pay the wife a dower. This is the
price of the marital rights he has on her. The Quranic verse quoted above makes
it clear that though man deserves, by his nature, to be the manager, in
practice he is elevated to this role as a reward for the money he spends in the
form of dower. Other verses also clarify this point:
"And give women their dower cheerfully." (4: 4)
"Excepting the aforesaid women, all other women are lawful
for you, provided you seek them in return for your property, taking them in
marriage and not for fornication. So in return for marital rights pay them
their dower according to the appointed time limits". (4: 24)
"Marry these maids with the permission of their masters and
pay them their dower in a proper manner." (4: 25)
"Lawful for you are the chaste women from among the believers
and chaste women from among those who have been given the Book before you,
after you have given them their dower". (5: 5)
It is binding upon the husband to abide by the agreement regarding
the dower, concluded at the time of marriage. In case he refuses to abide by
it, the woman has the right not to allow him to touch her. There is no way out
for the man. The wife, however, may, of her own free will, grant him some time,
or in view of his indigence, may remit a part of or the whole of the amount due
to her. She may even give up her claim as a token of compassion!
"But if they (wives) of themselves be pleased to give you a
part of the dower, take it cheerfully". (4: 4)
"And there is no blame on you about what you mutually settle
after the dower agreement has been made". (4: 24)
II. Livelihood: The second duty of the husband is to bear the
living expenses of the wife. Islam has clearly demarcated the sphere of work
for the husband arid the wife. A woman's duty is to stay at home and take care
of the household chores. "Stay in your homes", is the Quranic
commandment for women. The man is supposed to work for a living and provide the
necessities of life for the family. This is the second factor that elevates the
husband a degree above the wife. This duty is implicit in man's guardianship
status. Qawwam is a person who looks after and takes care of a thing and by
virtue thereof has an authority over it. The Quranic verse justifies man's
higher status on the ground that he spends money. The spending includes dower
as well as the living expenses. If the husband fails to discharge this duty,
the law will force him to do so. In case of refusal to comply with the legal
requirement, even if it is because of indigence, the court will dissolve the
marriage. As for the amount of ilving expenses, the assessment has to be based
on the means of the man, not on the demand of the wife. The Quranic commandment
in this regard is: "From the wealthy man according to his means and from
the poor man according to his means". A man of limited means cannot be
made to pay living expenses beyond his resources, nor can a man of ample means
be allowed to pay an amount below his financial status.
III. Abstention from Cruelty: The third duty of man is not to use
his superior position as a means of oppressing his wife. Oppression can take
several forms, like leaving alone. This means depriving the wife of sex, not on
grounds of health, but just to punish or torment her. The maximum time allowed
by the Islamic law for such punishment is four months. Before the expiry of the
four months, the husband must resume sexual relations. On the expiry of the
time limit, separation must take place. The Quran says: "Those who swear
to leave their wives alone, have to wait four months. If they resume sexual
relations, Allah is Forgiving, Merciful. But if they decide on a divorce, then
Allah is surely Hearing, Knowing". (2: 226)
Some jurists are of the view that taking a vow is a necessary part
of the case if it is to be covered by the above verse. If no vow is taken and
the husband is just angry with the wife, the case will not fall in this
category and the marriage tie will stay intact, even though the man may not
touch the wife for 10 years. I do not agree with this view. My reasons are:
First, when the Quran pronounces a commandment about a particular
case, it does not mean that it covers just that particular case. The point
becomes amply clear when we consider the Quranic commandment making the
stepdaughter unlawful for a man. The words used by the Quran are: "The
foster girls who have grown up in your lap". This would seem to suggest
that only those stepdaughters have been unlawful who were just babies when
their mothers married their stepfather. No jurist has even taken this position.
All agree that a stepdaughter is unlawful for a stepfather even though she be a
grown up woman when her mother married the man. In the same manner the Quranic
words, "Those who swear not to touch their wives", do not imply that
the verse is applicable only to cases where an oath has been taken.
Secondly, it is almost a unanimously accepted principle of Islamic
jurisprudence that when a case seems to be covered by no commandment, it should
be placed in a category where a commandment exists provided the basic reasons
behind this commandment are the same as the basic issues involved in the
uncovered case. Let us see why the Law-giver has prescribed a period of four
months for the man who has vowed not to touch his wife and why he has been told
that if he does not resume sexual relations within the prescribed time, he
shall have to dissolve the marriage tie. Can anyone give a reason other than
the fact that going without sex for more than four months is injurious for the
woman and the Law-giver wants to save her from ill-effect? This commandment is
followed, a little further, by the commandment "Do not retain them just to
do them injury, for then you exceed the limits." In another verse, quoted
in the previous chapter, the Law-giver commands: "Do not lean exclusively
to one wife, leaving the other one suspended". These broad hints clearly
indicate the Law-giver's disapproval of keeping a woman tied down by the
marriage and then leave her suspended just to torment her. No other reason can
be ascribed for the four-month time limit. So when a husband purposely cuts off
sexual relations with his wife, even without taking a vow, why should the case
not be covered by the verse which speaks of swearing by the husband? After all
the injury caused to the wife is the same whether the man swears or not. Can
any sensible person imagine that a husband who vows to refrain from sexual
relations causes injury to the wife but no injury will be caused if he does not
swear even though he may not touch her for the rest of his life?
Thirdly, the most important objective of the Islamic marital law
is the preservation of morals and chastity. If a man is disgusted with one wife
and marries another one and thus saves himself from evil ways and evil glances,
how can a woman, who has been permanently deprived of sex by her husband,
protect her morals? Does it stand to reason that the wise Lawgiver should provide
for the protection of her morals if the husband is under an oath not to touch
her, and if the man is not under any oath the threat of immorality should be
left hovering indefinitely over the woman's head?
On the above grounds I favour the ruling of the Maliki school of
thought which asserts: If the husband
withholds sex with a view to injuring the wife, the case will fall under
abstention because of an oath, even though the man be under no oath. That is
because the intention of the Law-giver in the latter case is to prevent injury
to the woman. This cause also exists in abstention with swearing.2
There is a difference of opinion about the implications of these
words "If they decide on a divorce". Osman bin Affan, Zaid bin Sabit,
Ibn Masood and Ibn Abbas are of the view that the expiry of the four months
period is proof of the husband's resolve to divorce. On the expiry of the
period he loses the option to restore marital relations. A saying of Ali and
Ibn Omar conveys much the same sense. But another saying of the last two
companions, that has the support of Hazrat Ayesha, too, states that a notice
has to be served on the husband either to restore the marital tie or to
dissolve the marriage. But a careful look at the words of the verse suggests
the plausibility of the first view. The verse clearly sets a four months
limits. That means that the right of restoration can be exercised only within
this limit. On its expiry there is no way left except divorce and separation.3
If the man is given the right to restore marital relations after four months,
it will amount to the extension of the time limit set by the Book of Allah.
INJURY AND OPPRESSION
If the husband develops a dislike for the wife, has no intention
to keep her and still retains her just to torment and oppress her; or if he
goes on divorcing her and after two pronouncements, keeps restoring the marital
bond, the Quran strongly condemns his behaviour as tyrannical:
"And do not retain them for injury so that you exceed the
limits. And whoso does this, he indeed wrongs his own soul. And do not take
Allah's commandments for a mockery". (2: 231)
As for the interpretation of the words of a law which runs
contrary to the objectives and the spirit of the law amounts to making a
mockery of the law. After the pronouncement of one or two divorces, the husband
has been given the right to restore marital relations only to facilitate
reconciliation, born after tempers cool.
This is a safety valve mercifully granted by Allah as a check on
the volatile human nature. However, if someone takes undue advantage of this
concession and indulges in the ugly game of pronouncing divorces and going back
on them again and again, it amounts to making the Divine concession a
plaything. He neither wants to keep her (the woman) nor wants to let her marry
another man. No true believer can ever think of making such a mockery of
Allah's commandments.
Anyone who retains a woman just to torment and oppress her may
concoct all kinds of ways to cause her mental and physical torture. If he comes
from the lower social strata, he may resort to filthy language and beating; if
from the upper strata, he may use more subtle ways of disgracing and torturing
her. All these acts, whether crude and subtle, amount to injury and oppression
and are forbidden by the Quran. A husband wh0 hands out such treatment to his
wife exceeds Allah's limits. His wife is entitled to get rid of him, with legal
help.
NOT BEING JUST TO WIVES
When there are several wives, it amounts to oppression to incline
exclusively to anyone of them, leaving the second wife or the rest of the wives
suspended. The Quran explicitly declares this as unlawful. "Do not lean
exclusively to one of them, leaving the rest of them suspended". (4: 129)
Polygamy has been permitted by the Quran on the condition that
justice be done to all wives. If a man is unable to do justice, he has no right
to avail of this conditional permission. The verse permitting polygamy clearly
warns that a man who fears that he will be unable to do justice should be
content with only one wife:
"But if you fear that you will be unable to do justice, then
have only one wife or the slave you possess. This is more equitable, lest you
should deviate from the path of truth". (4: 3)
Imam Shafi'i suggests that the implication in "Lest you
should deviate" is that more wives will mean too many children to be
looked after properly. But the meaning of the Arabic word "Awl" does
not lend support to this interpretation. "Awl" means to lean and the
word is used to indicate injustice and oppression. Ibn-e-Abbas, Hassan,
Mujahid, Sha'abi, Ikrimah, Qatadah and
others agree that the meaning of "La Taooloo" is: Do not
deviate from the path of truth. This verse of the Quran proves that if a man
does not do justice to his wives and leans towards one of them at the cost of
the rights of the others, he is an oppressor. He has no right to avail of the
permission for more than one wife. The law should force such a man to have only
one wife. The rest of his wives should have the legal rights to get rid of him.
Referring to justice, the Quran has made it clear that so far as
emotional attachment is concerned, it is beyond a man's nature to practice
equality in this regard -nor is he under obligation to do this. But he is
certainly under obligation to practice equality among his wives in the matter
of living expenses, social contact and other marital relations.
The law can intervene in the above-mentioned three forms of
oppressions by the husband. In addition to these, other problems arise in the
mutual relations of the spouses. They stem from the lack of love and compassion
and are outside the ambit of the law. For coping with such problems the Holy
Quran has given men sound, ethical advice. They are told to be kind, loving and
generous towards women folk. Islamic marital law frowns upon unhappy and broken
family life. As long as the marriage tie is there, the wife has to be
well-treated. In case the tie breaks, she should be released with kindness.
Good treatment cannot be enforced by law. The little problems of day-to-day
life are beyond the reach of law. However, the Islamic marital law seems to
place the greater burden of maintaining the climate of fair play, love and
compassion on the shoulders of the husband.
RIGHTS OF THE HUSBAND
The responsibilities placed on the man because of his role as the
guardian have been discussed above. Now we look at rights, stemming from this
role:
I. Vigilance in his absence: The first right the husband has on
the wife is that she should keep a firm vigil, in his absence, over everything
that belongs to him. In the words of the Quran: "Good wives are obedient,
and keep a vigil under Allah's protection, when the husband is absent."
(4: 34) During the husband's absence, a good wife keeps a watchful eye on
everything belonging to him and placed in her charge as a trust.
She has to protect not only his property and his secrets, but his honour, his
children and the purity of his lineage. Any failing on her part to discharge
this all-important function, entitles the husband to use powers that will be
discussed ahead.
II. Obedience: As stated in the above verse, good women have also
to be obedient to husbands. The details of this general commandment have been
given by the Holy Prophet (peace be on him): "Surely, you have right on
them not to let in anyone, whom you dislike".
"The wife has no right to give away anything from his home
without his permission. In case she does this, the man gets the reward for the
charity and the woman will bear the burden of sin. Nor can she leave the home
without his permission."
When the husband is not away, the wife should not keep even a
single day's optional fast without his permission. This does not apply to
fasting in Ramazan.
"The best wife is the one who is attractive in your eyes, who
carries out your instructions and when you are absent keeps a watchful eye on
your right to your property and your right on her".
The general mandate for obedience has only one exception, i.e., if
the husband tells her to sin, she can refuse to obey, rather should refuse to
obey him. If, for example, the husband tells her not to offer the obligatory
prayers, or not to keep the obligatory fasts, or to drink liquor, or to give up
the prescribed veil, or to indulge in indecencies, she is duty bound to reject
such orders. No one has the right to force anyone to violate the commandments
of Allah, the Almighty. With this exception, the wife must obey her husband in
all cases. In case of disobedience, the husband will have the right to use his
powers, as discussed below.
MAN'S POWERS
The Islamic marital law makes man the manager of the family
affairs. It places on him the obligation of paying the wife a dower and her
living expenses. It makes him responsible for her care and well-being. It is
only natural that he should be given powers for the orderly running of the
household, protection of its moral behaviour, social harmony of the home and
guarding against tresspass on his own rights. The Islamic law clearly
enunciates these rights and also defines the limits within which they can be
exercised.
I. Counselling, Admonition, Punishment: In case the wife disobeys
the husband, or does away with any of his rights, the man should first counsel
her. If this fails to be effective, he has the right to be reasonably stiff in
dealing with her. And if this too goes unheeded, he may give her light beating,
so that she sees reason to obey him. "As for the women from whom you fear
refusal to protect your rights, counsel them, and leave them alone in their
beds and chastise them. But if they obey you, take no stern action against
them". (4: 34)
In the above verse, leaving alone in beds means refraining from
sex as a punishment. But such punishment, as has already been discussed, cannot
be extended beyond the natural limit of four months. A woman who is so reckless
and wild-tempered that she angers her husband to the extent of not sharing the
bed with her, is certainly not a normal woman. And if even this punishment
fails to bring her to senses and she persists in her disobedience, knowing well
that at the end of four months her husband will be under legal obligation to
dissolve the marriage tie, she deserves to be divorced. The four-month period
is enough to reform a person. Persistence in hostility for four months is
evident that she is devoid of the ability to reform herself. She certainly is
unable to live in harmony with the present husband. The continuance of their
marriage tie threatens to kill the very objectives for which they were tied
together. Such a situation may drive the husband to seek satisfaction of the
sexual urge in extra-marital relations. The wife, too, could easily slip into
the same snare. Whenever one of the spouses is overly stubborn and
ill-tempered, the relationship of love and compassion is hard to sustain.
Imam Sufian Sori has given a different meaning to the words of the
sentence "Leave them alone in the beds". He suggests that the meaning
is: Tie them down in homes. But the words of the verse do not warrant this
meaning. The use of the word "bed" clearly indicates the exact
meaning the Quran wants to convey.
The second punishment that has been permitted only in very serious
cases is to give a beating, but for this the Holy Prophet (peace be on him) has
laid down the caution that the blow should not be severe.
"If she disobeys, some reasonable order of yours, give her a
beating that is not very painful. Do not strike on the face and do not use
filthy language". (Hadith)
The husband has been permitted to inflict these two punishments
but as cautioned by the Holy Prophet (peace be on him) punishment is
permissible only when a legitimate right of the man has been violated. It would
be foolish to insist that every order, whether reasonable or not, should be
carried out and in case of non-compliance the woman should be punished. Also
there should be some balance between the fault and the punishment. One of the
cardinal principles of the Islamic legal code is: 'He who wrongs you should be
wronged by you to the extent to which you have been wronged." It amounts
to injustice to inflict a punishment out of proportion to the wrong done to
somebody. Where counselling can suffice, it will be inadvisable to cut off
relations; where cutting off the relationship suffices, it will be injustice to
stop sharing the bed; and where withholding sex is enough, it will be cruel to
inflict beating. Beating is the severest of punishments and is permissible only
in very serious and unbearable misconduct. In this case, too, the limit
prescribed by the Holy Prophet has to be borne in mind. If the limit is
over-stepped, it will amount to cruelty on the man's part. That will give the
woman the right to get legal help against him.
II. Divorce: The second right given to the man is that he can
divorce the wife with whom he cannot pull on. Since he gets marital rights by
spending money on her it is he who has been granted the powers to give up these
rights.4 This right cannot be given to the wife. If she were to be given this
right, she would become fearless and over-bold and easily violate the man's
rights. It is evident that if a person buys something with money he tries to
keep it as long as he can and he parts with it only when he is left with no
options. But when a thing is purchased by one individual, and the right to cast
it away is given to another, there is little hope that the latter will protect
the interest of the buyer who invested the money. Investing man with the right
to divorce not only amounts to the protection of his legitimate rights but also
ensures to check the growth of the divorce rate.
References
1 This kind of an agreement to pay dower is termed as the deferred
dower. The current practice is that at the time of marriage a huge amount is
specified as the dower, in a document of marriage. The general comment is
"This is just a formality. Who is going to ask for the payment?" How
very unfortunate! In the light of the above quoted Quranic verses a marriage
solemnized with the ill-conceived intention of non-payment of the dower, is a
nullity in the eyes of Allah. A truly deferred dower must specify the time
within which the dower is payable. Where no time is specified, the dower is
payable on demand. Some ignorant jurists are of the opinion that such a dower
is payable on the death of the husband. This is, to say the least, strange
logic, unsupported by the Quran or the Sunnah.
2 Ahkam-ul-Quran by Ibne Arabi Vol. I, page 76.
Hidayat-ul-Mujtahidin by Ibne Rushd Vol. III, page 88.
3 It is controversial issue whether this should be just one
divorce or three divorces providing for restoration.
4 Some people who like Western ways, want to take away the right
of divorce from the husband and hand it to the court. This has been done in
Turkey. But this practice is contrary to the Quran and the Sunnah. In its
discussion on the law about divorce the Quran has consistently ascribed the act
of divorce to the husband. "If you divorce the woman, "If he divorces
her"."If he decides on a divorce", etc. Quranic verses provide
clear testimony that it is the husband who has been invested with the power to
divorce. In the second chapter the Quran unequivocally declares: The marriage
tie is in his hands (2: 237). In the face of this mandate, who is there to take
this right away from his hand and place it in the hand of a judge? There is a
Hadith on the authority of Ibn-e-Abbas in lbn-Majah to the effect that a man
came to the Holy Prophet and complained that his master had married his slave
to him and now wanted to separate her from him. At this the Prophet of Allah
delivered an address to the people: "O People. What is this happening
around us? One of you married his maid to his slave and now wants a separation
between them. The right of divorce belongs to the husband." This tradition
may not be very reliable but it has the strong support of the Quran. So, both
according to the verdict of Allah and his Messenger, it is not lawful to
deprive the husband of the right to divorce and "hand over this right to
the court. This step is wrong even on grounds of common sense. This can only lead
to exposing shameful domestic affairs in courts as is happening in Europe.
4. THE SECOND PRINCPLE
The second principle of the Islamic marital law is that the bond
of marriage should be strengthened as long as possible and utmost efforts
should be made to keep the marital union intact. However, when all hope of
containing the love and compassion between them is gone and the marriage
becomes a danger to the objectives of the law, no insistence should be made on
keeping the unwilling partners tied together, despite their mutual hatred,
dislike and distrust. In such a situation it is in their interest, as well as
in the interest of the society, that their separation be permitted. In this
matter, the Islamic law has maintained a balance between its concern for the demands
of human nature and its regard for the preservation of the social good. This
balance has no parallel in any other law of the world. Islam does seek to make
the marriage tie strong, but unlike Hindu or Christian law, it does not make it
unbreakable, even though the married life of the spouses may have degenerated
into intolerable misery. So Islam keeps the door of separation open but not so
wide open as it is in the present-day Russia, U.S.A. and most other Western
countries, where the marital tie is free from all restraints. In those
countries the weakening of the marriage bond is the source of all disruption in
family life. The three modes of separation allowed under this principle are:
i) Divorce ii) Khula or divorce claimed by wife iii) Decree of the
court.
CONDITIONS FOR DIVORCE
In the technical language of the Shari'ah, divorce means the
separation which the husband wants as a matter of right. He is free in the
exercise of this right. He may, whenever he likes, relinquish the marital
rights obtained in exchange for the dower. However, the Shari'ah strongly
disfavours divorce. In the words of the Holy Prophet: "In the eyes of
Allah it is the most hateful of the lawful things." Another saying is:
"Marry and do not divorce, for Allah does not like men and women whose
only aim is the satisfaction of their sexual lust." Though the husband is
free to exercise the right to divorce, he has been placed under checks which
allow him to use this right only as a last resort. The verdict of the Quran is
that a man should do his best to pull on with his wife even though he does not
like her:
"Treat them (women) well, though you dislike them. Maybe you
dislike a thing and Allah has placed in it great good for you." (4: 19)
However, if it becomes impossible to pull on together, the right
to divorce can be exercised. But it should not be a head-long plunge. There
should be three divorces, spaced by three periods of menstruation. By the time
of the third cleansing, there will be plenty of time for second thoughts. Some way
of reconciliation may, after all, be found. A pleasant change may come in the
attitude of the woman or the man may change his mind. But if even at the end of
three periods of waiting and cool thinking the husband feels convinced that he
must leave the woman, he may divorce her at the end of the third period, or he
may let the period pass by, without restoring conjugal relations. 1
"Divorce is to be pronounced twice. Then either keep them in kindness or
release them in kindness." (2: 229)
"And the divorced women should keep themselves in waiting for
three menstrual courses. And their husbands have a better right to take them
back during this period, if they desire reconciliation". (2: 228)
Another significant Quranic injunction is that during the period of
waiting the woman should not be sent away but should be retained, in the hope
that living together might unite hearts:
"O Prophet, when you divorce women, divorce them for their
prescribed period, and calculate the period, and fear Allah, your Lord. Do not
turn them out of their homes, nor should they themselves leave; unless they
commit an open indecency. And these are the limits set by Allah. And whoso goes
beyond the limits of Allah, he indeed wrongs his own soul. You do not know that
Allah may, after this, bring about reconciliation. So when they have reached
their prescribed period, retain them in kindness or release them in
kindness". (65: 1, 2)
Divorce is not permissible during the course of a menstrual
discharge. Ifdivorce becomes a necessity, it should come during the period of
purity. There are two reasons behind this injunction.
First, during the course of menstrual discharge women generally
become glum and ill-tempered. Changes in their body chemistry provoke them to
do things which they would not do in normal days. This is a medically proved
fact. That explains why disputes arising between husband and wife during the
course of a menstrual discharge are not considered a sufficient ground for
divorce.
Secondly, during this period the bodily contact, which is an
important factor in the mutual attachment of the spouses, is suspended. This
can breed estrangement between them. But when the temporary barrier is no more,
the serene intimacy of conjugal relations is likely to brush off from the mind
any lurking thoughts of separation; the spouses are united together once again
into an integral whole.
It was on these grounds that the Holy Prophet (peace be on him)
disapproved of divorce during the course of menstrual period. Abdullah bin Omar
divorced his wife during menstruation period. Hazrat Omar reported the case to
the Holy Prophet. He felt upset and told Omar to direct his son to retain his
wife and divorce her after she was cleansed. Another report states that the
Holy Prophet (peace be on him) reprimanded Abdullah for this act of his and
explained to him the right procedure thus:
"Ibn-e-Omar! You adopted a wrong procedure. The right way is
to wait for the period of cleansing. Then let there be a pronouncement of
divorce at the beginning of the next cleansing. When she gets cleansed the
third time, you may divorce her or retain her."
At this Abdullah asked: "Messenger of Allah, if I had made
the three pronouncements of divorce simultaneously, could I still have the
right to retain her"? The reply was: "No, she must be separated and
you have sinned".
This ruling of the Holy Prophet conclusively proves that the
simultaneous pronouncement of three divorces is a sin. The simple reason is
that this act runs counter to the values of the Islamic law. It oversteps the
limits of Allah, respect for which has been strongly stressed by the Quran in
Verses one and two of Chapter 65.2
It is reported of Omar bin Khattab that if someone came to him
with the report that he had made three simultaneous pronouncements of divorce,
he would give the wretch a beating and would declare that he and his wife stood
separated.
Ibn-e-Abbas was asked what he thought of the man who had made
three simultaneous pronouncements of divorce. His reply was:
"He has disobeyed Allah, his Lord. His wife stands
separated."
Hazrat Ali summed up his views on the problem, thus:
"If people had fully kept in mind the limits set by Allah for
divorce, no one could have any cause to repent after the separation of his
wife."
On top of all the hurdles for pronouncing divorce, there is the
last and the toughest in which a man, who stands separated from his wife by an
irrevocable divorce, cannot remarry her. If she marries any other man, has
conjugal relations with him and then the man, of his own free will, divorces
her, only then can she remarry her former husband.
"So if a man makes the third pronouncement of divorce, the
woman is no longer lawful for him, unless she marries another man." (2:
230)
This condition is so hard that it will make a man think a hundred
times before he makes the third pronouncement of divorce. He will divorce her
only if he is fully convinced that he can never pull on with the woman.
To get around this tough condition, some people have devised a
trick. If after pronouncing an irrevocable divorce someone regrets the decision
and wants the woman back, a spurious marriage is arranged between her and
another man, who, in return for the money he is given, undertakes to divorce
her, without touching her. But this trick cannot escape the clear ruling of the
Holy Prophet (peace be on him):
"A divorced woman is not lawful for the first husband unless
she marries another man and he has shared bed with her."
The Messenger of Allah cursed the man who gets his divorced wife
married to another man, only with the purpose of making her lawful for him. He
also cursed the man who solemnizes such a marriage. He likened both of them to
hired bulls. As a matter of fact such sham marriages are only a flimsy cover
for fornication. It is surprising that some of the Ulama provide legal
justification for such marriages.
KHULA
Man has been granted by the Shari'ah the right to divorce his wife
whom he dislikes and with whom he can in no way pull on. In the same way the
Shari'ah has given the woman the right to demand separation from her husband
whom she dislikes.
The mandates of Shari'ah on this matter have two aspects, namely,
the moral aspect and the legal aspect.
The moral aspect of khula, like the moral aspect of divorce, is
that it has to be used as a last resort, and not for the fulfilment of carnal
desires. Khula and divorce should not be made playthings. The point has amply
been made clear by the Holy Prophet (peace be on him):
"Allah does not like sex-hungry men and sex-hungry women.
Allah's curse falls on the sex-hungry man who is prone to divorce women."
"A woman who obtains a separation from her husband, without
any misbehaviour on his part, stands cursed by Allah, by the angels and by
humanity."
"Women who make khula a plaything are hypocrites. "
However, the law which is concerned with the demarcation of
people's rights does not discuss this aspect. Just as it gives man the right to
divorce as a husband, much in the same way it gives woman the right of khula.
This makes it possible for both of them to get rid of the marriage tie, if such
a need ever arises. The purpose is to forestall a situation where there is
hatred in the hearts, the objectives of marriage remain unfulfilled, the
marriage tie has become a curse but still the two spouses are under compulsion
to stay together because they feel that there is no way out. As for the
improper use of rights by either one of the spouses, all that the law can do is
to lay down reasonable and workable restraints. However, the proper or improper
use of a right depends, for the most part, on the discernment, integrity and
the piety of the person exercising the right. Only the person concerned or
Allah knows whether the right is being exercised to meet a real need or just
for sensual pleasure. The law grants natural rights and hedges them round with
necessary restraints to check improper use. In the discussion on divorce you
have noticed that a man is given the right to divorce his wife but at the same
time several checks have been placed on him.
He has to forgo the dower he gave her; he is not to divorce her
during the menstrual course; he should give three divorces during three periods
of cleansing; he should keep her with him during this period of waiting and
when at last the three divorces have been pronounced he should not remarry her
unless she has had conjugal relations with and divorced by another husband. In
the same way a woman has been granted the right to get a separation but some
restrictions have also been placed on her:
"And it is not lawful for you to take any part of what you
have given them; unless both spouses fear that they cannot keep within the
limits set by Allah. Then if you fear that the spouses cannot keep within the
limits of Allah, there is no blame on the two of them for what she gives up to become
free thereby." (2: 229)
The following mandates follow from this verse:
I. Khula demands a situation in which there is a fear that the
limit set by Allah may be violated. The words 'There is no blame on the two of
them' suggest that though khula is undesirable like a divorce, when there is a
fear that the limits of Allah might be violated, there is no harm in obtaining
a khula.
II. If a woman wants to break the marriage tie, she should part
with money just as a man has to forego the dower when he chooses to divorce the
wife. In case of divorce by the husband, he has to forgo all that he has given
to the wife. But if the wife wants separation, she is entitled to it on giving
back part or all of what she received from the husband.
iii. The mere wish of the wife to repudiate the marriage tie by
returning what she has been given is not enough for obtaining a khula. The
husband, too, should be willing to accept payment and let the wife go. In other
words the woman cannot part with some money and leave the husband. Separation
will be legally effective only when the husband accepts the money she offers
and divorces her.
iv. Khula becomes final when the woman demands separation on
payment of a part, or the whole, of the dower, and the man accepts the payment
and divorces her. The words of the Quranic verse show that khula needs only the
mutual agreement of the spouses. This verse contradicts the view of those who
feel that khula has to be supported by a decree of the court. Islam does not
like dragging into courts things that can be settled at home.
v. In case the wife offers to buy freedom from the marriage life
and the husband turns down the offer, she has the right to go the court. The
words of the verse "Then if you fear that the spouses cannot keep within
the limits of Allah" clearly indicate that the word "you" refers
to the men of authority among Muslims. It is their foremost duty to protect the
limits set by Allah. They are duty bound to look into the woman's case and if
they are convinced that there is the fear of Allah's limits being violated they
ought to let her exercise the right she has been granted to respect Allah's
limits. These brief mandates give no details of the circumstances which amount
to the fear of overstepping Allah's limits. Nor is there any hint as to what
should be the reasonable amount of ransom money or what the judge is to do if
the husband refuses to accept a reasonable amount being offered. However, these
details can be ascertained from the khula cases brought to the Holy Prophet (peace
be on him) and to the four caliphs who succeeded him.
KHULA PRECEDENTS FROM EARLY HISTORY
The ·most well-known khula case is the one in which the wives of
Thabit bin Qais got separation from him. Fragments of this case lie scattered
in the books on Hadith. Pieced together, these fragments shed a good deal
oflight on the various aspects of khula.
Thabit had two wives. One of them was Jamilah, the sister of the
infamous hypocrite leader, Abdullah bin Ubayy. Jamilah did not like the looks
of Thabit. She approached the Holy Prophet (peace be on him) with a khula
petition. She said:
"Messenger of Allah! Nothing can keep the two of us together.
As I lifted my veil, I saw him coming, accompanied by some men. I could see
that he was the blackest, the shortest and the ugliest of them all.
"By Allah I do not dislike him for any blemish in his faith
or his morals. It is his ugliness that I dislike. Had the fear of Allah not
stood in my way, I must have spat on him when he came to me. Messenger of
Allah, you can see how good-looking I am. But Thabit is an ugly man. I find no
fault in his faith or his morals. But I am afraid my desperation might drive my
Islam closer to disbelief. "3
In reply to her petition, the Holy Prophet (peace be on him) asked
'Will you give back to him the garden he gave you?" Her reply was,
"Certainly, O Messenger of Allah. I am prepared to give even more."
"No, nothing more. Only give him back his garden," said the Messenger
ofAllah. He summoned Thabit and told him to accept the garden and divorce the
woman.
Thabit's second wife was Habibah. Her story has been narrated by
Imam Malik and Abu Dawood as under:
One morning as the Holy Prophet (peace be on him) stepped out of
his house, he found Habibah standing by the door. He asked her what she wanted.
She burst out "Messenger ofAllah! Thabit and I cannot pull on
together." Thabit was summoned. Habibah repeated her petition.
"Messenger of Allah, I have with me all that Thabit gave me." The
Holy Prophet (peace be on him) told Thabit to take back what he had given and
to divorce the woman.
Reporting from the Hazrat Ayesha, Abu Dawood and Ibn-e-Jarir state
that Thabit had given Habibah a severe beating, breaking a bone. She complained
to the Holy Prophet (peace be on him) who told Thabit to take back part of what
he had given to Habibah and divorce her.
However, Habibah's words, as reported by Ibn-eMajah, show that
Habibah said nothing about the beating. Her only complair,t was about the man's
ugly looks and she too expresse her disgust, declaring that but for Allah's
fear she must have spat on Thabit's face.
In another case, a man and wife were brought before Caliph Omar.
The woman pleaded for khula. Omar counselled her to patch up and try to pull on
with the man. She was adamant. Omar ordered that she be kept alone in a cell
for three days. On the fourth day she was produced before him. Asked how she
felt, she declared on oath that those were the three nights of peace she had
known in years. Omar was moved by the depth of her misery. Summoning the husband
he delivered his judgement "Grant her separation, even though it be in
return for her earrings."
Rubay'ah, daughter of Muawwiz, sought separation from her husband
in return for all her property. The husband did not accept the deal. The case
was brought to Caliph Osman, who accepted the woman's plea and allowed the
husband to take, in return for separation, all that belonged to the woman, even
her head covering.
MANDATES CONCERNING KHULA
The above quoted precedents highlight the following points:
i. The complaints made by the two wives of Thabit bin Qais provide
an illuminating commentary on the Quranic Verse, "So if you fear that the
two spouses will not be able to keep with the limits of Allah." The
ugliness of the husband was considered by the Holy Prophet (peace be on him) a
sufficient cause for khula. No comments were made by the Holy Prophet (peace be
on him). He had his eye on the objectives of the Shari'ah. Feeling convinced
that the women had deep dislike for the man, he decreed their separation, knowing
full well that keeping them tied to the man will only add to their bitter
hatred and could lead to far more undesirable results, both morally and
culturally, than khula. Such results could deal a death blow to the objectives
of the Shari'ah. The clear deduction from this precedent is that for enforcing
the decree of khula all that is needed is the proved evidence of the woman's
deep dislike for the husband-and her refusal to live with him.
ii. The precedent set by Caliph Omar shows that the judge can take
suitable steps to establish, without a shadow of doubt, the woman's hatred and
dislike for the husband, so he can be sure that there is little hope left for
the couple to pull on together.
iii. Omar's action also shows that it is enough for the judge to
gauge the intensity of a woman's hatred and disgust. He need not dig into the
causes that generated hatred and dislike. It is reasonable to presume that a
woman can dislike her husband for reasons she cannot disclose to others. Maybe
she dislikes him on grounds that may appear insufficient to others but which
are unbearable for her, because of their cumulative effect. So the only
business of a judge is to make sure that the woman bears hatred towards the
man. It is none of his business to weigh the reason she is giving and to see
whether or not they are sufficient to generate hatred.
iv. The judge is free to counsel the woman and persuade her to
pull on with the husband. But he cannot force her against her will to do so.
Khula is a right granted to her by Allah. If she expresses the fear that she
will not to be able to keep within the limits of Allah, in case she stays tied
to the man, no one has the right to tell her that she must pull on with the
man, no matter what happens to the limits of Allah.
v. In khula cases the judge does not have to find out whether the
woman's request for separation is based on a genuine need or whether it is
actuated by sex-hunger. That explains why the Holy Prophet (peace be on him)
and the caliphs did not touch upon that point when dealing with khula cases. As
a matter of fact a thorough probe into this problem is beyond the power of a
judge. Moreover, the woman has been granted the right of khula to match the
man's right to divorce. In both cases the likelihood of sex-hunger is there.
But the man's right to divorce is not postulated on the condition that it shall
not be used for sex-hunger. So, as a legal right, khula should also be free
from all restraints.
The third point to be borne in mind is that a woman may demand
separation either on genuine grounds or just for sex-hunger. In the first case
it will be unjust to turn down her demand. In the second case, the refusal to
grant khula will destroy the important objectives of the Shari'ah. A woman, who
is sex-hungry by temperament, is sure to devise ways for the satisfaction of
her passions. Finding the rightful ways blocked, she will resort to illegal
ways which will certainly be worse. A woman who marries fifty husbands, one
after another, is better than the one who marries only one husband but commits
a single fornication.
vi. If a woman makes a demand for khula and the husband turns it
down, the judge would tell him to let her go. All precedents show that in such
cases the Holy Prophet (peace be on him) and the caliphs ordered the man to
accept money and leave the woman. In any case, the decree of the judge is
binding on the parties seeking legal help. In case of default the judge can put
the defaulters in jail. In the Shari 'ah, the role of the judge is not that of
an adviser. His decree is not an advice to be accepted at will. Relegated to
such a position, the court becomes meaningless for the people.
vii. The separation resulting from khula, as explained by the Holy
Prophet (peace be on him), amounts to an irrevocable divorce. It takes away
from the husband, once for all, the right to revive marital relations. The
survival of this right obviously nullifies the very purpose of the law (khula).
Moreover, the payment made by the woman to the man is the price paid for
freedom from the bond of marriage. In case she is denied this freedom after
making the payment it will amount to cheating on the husband's part, which the
Shari'ah cannot allow. However, if the woman wants to remarry the man, she can
do so; but only after she has had marital relations with another man and has
been divorced by him.
viii. No limit has been set by Allah on the amount to be paid as
the price of khula. It is up to the spouses to agree upon any price. However,
the Holy Prophet (peace be on him) did not approve of anything beyond the dower
given by the husband. His view on this point was:
"The man granting khula should not take from the woman more
than what he has given her". Ali, too, considered it undesirable that a
price higher than the dower should be demanded. This view has received the
support of all leading jurists. It has even been suggested that if it is the
cruelty of the husband which is goading the woman to demand khula, it is
undesirable that the man should receive anything.
The standard handbook of Shari'ah law, "Hidaya" states:
Ifseparation is the result of his ill-treatment, it is undesirable that he
should receive from her a price. These comments and observations lead to an
obvious conclusion, viz., if a woman demanding khula can prove her husband's
cruelty, or can show other reasonable grounds for khula, she should be granted
khula on giving back half the dower or even less. However, if she cannot prove
either of the two things, she should be called upon to return the whole of the
dower or the greater part of it. In case the woman's behaviour betrays
sex-hunger, the judge can punish her by making her pay more than the dower.
BASIC ERRORS ABOUT KHULA
The discussion of khula has made it clear that Islamic law
maintains a balance between the rights of the man and woman. It is an error on
our part that we have, in actual practice, deprived women of the right of
khula. Contrary to the principles of the Shari'ah we have left khula to the
will of the husband. This has led to and is still evident in the denial of
justice to women for which the law promulgated by Allah and his Messenger is
not to blame. If this right of women can be rehabilitated even today, many of
the problems plaguing our marital affairs will be solved. In fact, most of them
will not arise at all.
The element that has practically robbed women of the right of
khula, is the mistaken belief that the Lawgiver has left khula entirely to the
spouses and the court has nothing to do with it. The result is that it is only
up to the man to grant or deny the woman a khula. If the woman wants khula and
the husband, out of selfishness or sheer mischief, does not grant this, the
woman is left with no option and solution. This situation is contrary to the
intention of the Law-giver. The Law-giver had no intention whatsoever to make
one of the parties to the marriage bond helpless and place all powers in the hands
of the other party. Had it been so, the lofty moral and cultural objectives
associated with marriage would have been meaningless.
It has already been explained that the Islamic Shari'ah bases the
marital bond on the principle that as long as this bond can be maintained with
moral purity, love and compassion it is laudable and imperative to strengthen
it and reprehensible to break it or have it broken. When this bond becomes a
source of moral transgression for both or one of the spouses or in place of
love and compassion it gets permeated with hatred and disgust, its dissolution
becomes necessary and its continuance runs counter to the objective of the
Shari'ah. To serve this basic principle, the Shari'ah has equipped both parties
to the marriage bond with a tool with which they can solve their problems, in
case the marriage tie becomes unbearable. The tool given to the husband is the
divorce, which he is free to use, and the woman is equipped with the legal tool
known as khula. The procedure laid down for the use of this tool is that in
case she wants to do away with the marriage bond, she must first put the demand
before the husband. If he turns it down she must have recourse to the court.
That is how a balance, enjoined by Allah and His Messenger, can be
maintained between the rights of husband and wife. But this balance was upset
by doing away with the powers of the court. The elimination of the court made
the legal tool given to the woman worthless. In actual practice the law got
corrupted to mean that in case the marriage bond gives man the fear of breaking
Allah's limits or it becomes unbearable for him, he can snap it off. But if a
similar fear grips the wife or marital life becomes unbearable for her, she has
no way of doing away with the marriage bond. So long as the husband himself
does not let her go, she is obliged to remain tied down any way, though it may
be impossible for her to keep within Allah's limits and the lofty objectives of
the marriage bond may go to the winds. Does anyone have the courage to place
the blame for such glaring injustice on the law given by Allah and his
Messenger? If anyone has the audacity to say so, he shall have to prove on the
authority of the Quran and the Sunnah, not on the authority of quotations from
jurists, that Allah and His Messenger gave no powers to the court in khula
cases.
POWERS OF THE COURT IN KHULA
Read again the verse of the Quran stating the law on khula:
"If you fear that they (the spouses) will be unable to keep
within the limits of Allah, there is no blame on the two of them, if she (the
wife) gets separation on payment of ransom". (2: 229)
This verse speaks of the spouses in the third person -(They). So
the pronoun "you" cannot refer to them. Inevitably it has to be
conceded that it is the people invested with authority by the Muslims who have
been addressed. The Divine mandate means that in case the spouses cannot arrive
at an agreement in a khula case, the matter should be referred to the people of
authority.
This interpretation of the verse is supported by the khula
precedents already quoted. The mere fact that women came to the Holy Prophet
(peace be on him) and to the caliphs with khula petitions and they decided
these cases, conclusively proves that in case of disagreement between the
spouses on khula, the wife should have recourse to the law. If the judge can
only hear such cases and has no power to enforce his decisions on an unwilling
husband, recourse to the court will be an exercise in futility. Do the
traditions prove that the judge has no power in khula cases? Khula cases
decided by the Holy Prophet (peace be on him) and his caliphs quote commands
like "Divorce her". "Get separated from her", "Let her
go" or as the reports say: He ordered the man to..... The report from
Ibn-e-Abbas quoted by Ibn Jurair is: He separated the two of them. The same
words have been used in the reports from Jamilah herself (the woman who got
khula). These facts leave no room for doubt about the courts' powers in khula
cases.
Now, can a judge impose his decision on the husband who may look
upon the court's decision just as an advice and may ignore it? We come across
no such precedent, in the time of the Holy Prophet or in the time of the
caliphs who succeeded him. Of course, Ali did have to tell a head-strong
husband: "You shall not be let off unless you accept the verdict of the
two arbiters as your wife has done". If Ali, as judge, could put a husband
in prison for not complying with the verdict of the two arbiters, he would
certainly have jailed him if he had ignored his verdict. Moreover, there is no
sense in depriving the court, in khula cases, of powers which it normally
exercises in other cases. In books on law cases one comes across situations
where the judge is given the powers to separate the spouses, in case the
husband ignores his verdict to divorce the woman. Then why should the judge not
have this power in khula cases.
In the pages that follow, we will look at the remedial measures
prescribed by noted jurists, in case the husband turns out to be impotent,
eunuch, leper or feeble-minded. In a like manner, fresh ground has been broken
in the form of legal clauses giving the spouses married in infancy, the option
to retain or dissolve the marriage tie. In this background, it becomes all the
more necessary that in granting khula to the woman, the court should be given
full powers. Unless this is done the helpless women who are refused khula,
would either resign themselves to life-long misery or would be driven to commit
suicide. The other alternatives before them are to satisfy their natural
passions through sin or to get rid of the marriage bond through apostasy. An
example will make the point clear:
In case of the husband's impotency, the verdict of the jurists is
that the man should be given a year's time limit for medical treatment. After
the treatment if he is able to have even a single sexual intercourse, the woman
loses her right to get the marriage dissolved, even though the intercourse may
not have been to her full satisfaction. If the woman was aware of the man's
impotency at the time of marriage and still gave her consent to be tied to him
by marriage, she is debarred from seeking a legal remedy. If she had even a
single intercourse with the husband after marriage and then he turned impotent,
she loses her right to go to the court. In case the woman learns about the
husband's impotency after marriage and still agrees to live with him, she gets
debarred from getting the marriage dissolved. In these cases, the woman stands
debarred from demanding the dissolution of the marriage bond. The only legal
course for her to get rid of the worthless husband is to demand khula. But
unfortunately she finds this door also closed. The husband is not willing to
leave her even if she is ready to pay him more than the dower he had given. She
seeks help from the court but is told that it is not empowered to force the man
to divorce her, or to separate the two of them by a decree.
Just contemplate the fate of this luckless woman. The options
before her are suicide or the killing of her passions like a Christian nun by
undergoing soul chilling privations in secluded life. The two other options
are, a life of sin within the bonds of marriage life or bidding farewell to
Islam. But is this the intention of the Islamic law to confront women with
options like these? Can marital relations of this type achieve the objectives
which inspire the Islamic marital law? Can such spouses have love and
compassion for each other? Can they render any service to society? Can the
angels of happiness and bliss ever step into their home? Can such a bond of
marriage have the remotest claim to be called a shield against sin? Can it hope
to defend faith, morality and chastity? If the answer is no then who is to
blame for ruining the life of an innocent woman; driving her into a life of sin
or goading her out of the pale of Islam? Surely, Allah and His Messenger are
not to blame because there are no blemishes in the law they gave.
THE SHARI'AH TRIBUNAL
The foregoing discussion on divorce and khula makes it clear that
Islamic marital law is based on the postulate that the marriage bond as long as
it endures, should be a symbol of respect for the limits of Allah and for
mutual love and compassion. The Quran calls this the retention of the tie in
the proper way. If such a union becomes
impossible, the spouses should separate in a nice manner. In other
words, the spouses either live together in harmony or separate in kindness.
Their differences should never be allowed to develop into situations which
embitter their lives, trigger disputes among families, spread indecencies in
society, encourage immorality and hand down evil traditions to the coming generations.
It is to forestall these evils that Islam has given man the right to divorce.
The woman has been given the right to demand separation so that she may, if she
wants, act upon the Quranic mandate of separating in peace.4
References
1. The best thing is not to pronounce the third divorce but to let
the third period pass by. That will leave the possibility of remarriage between
the spouses, if they so desire. But with the pronouncement of the third divorce
the separation becomes irrevocable. The two of them cannot become spouses again
until the woman marries another man and he divorces her in the same manner. The
sad thing is that most people are unaware of this legal point. When a man wants
to divorce, he hastily pronounces three divorces at a time. Most of them later
regret and run after jurists for advice. 2. The point has already been
emphasised that the intention of the Islamic law is to protect the marriage
tie. Once a man and woman have been tied together by marriage, the bond should
stay as long as possible. It can be dissolved only when all possibilities of
their relationship have been fully explored. That is why the law wants that one
should decide on divorce only after long and careful consideration. Even after
the first pronouncement of divorce, the door for reconciliation should be kept
open for three menstrual courses. A man making three simultaneous
pronouncements of divorce, throws to the winds all these considerations so
essential for the Islamic law. 3. Fear of Islam being driven closer to disbelief
means that if despite her deep dislike and disgust she kept herself tied down
to Thabit, she was afraid she might fall short of some of her duties as wife,
laid down by Allah and His Messenger. As a true believer, she looked upon this
shortcoming as disbelief. Compare this with the thinking of some of the Maulvis
of today. They insist on regarding a person a believer, even though he discards
daily prayers, fasting, payment of Zakat, the Hajj and openly indulges in gross
indecencies. They assure such people of the heavenly bliss and condemn their
critics as Khariji'ites.
4. It should be clearly understood that the Islamic law does not
like family disputes reaching the court, in full public gaze. That is why it
has provided legal remedy for both the spouses so they may, as far as possible,
settle their disputes at home. Recourse to the court is in the last resort,
when settlement at home becomes impossible. However, some people are
quarrelsome by temperament. They can neither live together in harmony nor can
be persuaded to part decently. Moreover, problems arise in conjugal relations
where differences arise between spouses regarding their rights. They find it
impossible to live together in peace or to separate in peace. That is why the
Shari'ah has provided, in addition to divorce and khula, a third remedy for
settling mutual rights and for protecting the limits of Allah. And that is the
Shari'ah tribunal.
5. FUNDAMENTAL ISSUES ABOUT THE SHARI'AH
Before taking up the issues relating to the Shari'ah tribunal some
fundamental points need to be clarified.
THE FIRST CONDITION FOR THE COURT
The first condition for the Shari'ah tribunal is that it has to be
an Islamic court. The judge must be a Muslim. The first reason for this has
been clearly stated by jurists in matters relating to Islamic Shari'ah, the
decree of a non-Muslim may apparently be enforced on Muslims but in reality it
does not get enforced. For example if a non-Muslim officer dissolves the
marriage of a Muslim couple, it does not get dissolved even though the verdict
be in conformity with the law of Shari'ah and even though the spouses have been
practically separated. In reality, the marriage tie stands intact and the woman
is not free to marry another man. If she marries, the marriage will be nullified
in the eyes of the Shari'ah. Children born of this marriage will be
illegitimate. The second reason is that, on grounds of principle, the Quran
does not accept the verdicts of a non-Muslim court. In the affairs of Muslims,
in particular, its definite stand is that Allah does not approve of non-Muslim
court's decisions on Muslim issues. I have fully discussed this issue in an
article under the heading "A very important query" which appears as
an appendix at the end of the book.
INDEPENDENT THINKING IS ESSENTIAL
There are always problems the solution of which is left to the
judgement of the court. It is true that the Shari'ah contains detailed law, but
in personal dealings, the particular circumstances of each case have to be kept
in mind for interpreting and enforcing the law. Moreover, suitable corollaries
have to be drawn and the spirit of the law has to be maintained, while
conforming to the conditions given in the chapter on disputes. These functions
cannot be discharged unless the judge is capable of independent thinking and
possesses, at the same time, a deep faith in and respect for the law he has to
enforce. Obviously, these qualities can only be possessed by a judge who is a
Muslim by faith, has a full grasp of the Islamic law and its all aspects, fully
understands the spirit of this law, is conversant with the sources of this law
and has intimate knowledge of the structure of the Muslim society. A non-Muslim
judge can never combine all these traits. So it cannot be hoped that he can
deliver a sound judgement in cases of Muslim personal law.
HARM DONE IN INDIA BY THE ABSENCE OF SHARI'AH BENCH
Even after the establishment of the British Rule in India, affairs
involving the personal law of the Muslims were, till 1864, settled by Muslim
Qazis, who were selected and, like common civil suits, cases involving Muslim
personal law were also handed over to the civil courts established by the
British. The first harm resulting from this was that the issues falling under
Muslim personal law, according to the principles of the Shari'ah, were nearly
wiped out. It became impossible for the Muslims to get from the courts a
verdict in Shari'ah cases which could be looked upon as a legitimate verdict
from the point of view of their religion. The second harm, which is in no way
less injurious than the first one, was that the office of these courts neither
had the means to develop an insight into the principles and branches of the
Muslim law, broad enough to ensure independent thinking, nor did they possess a
respect for this law that could stop them from overstepping its limits. Their
knowledge was drawn from books written by authors like Hamilton, who did not
know Arabic. He translated Hidaya with the help of a Persian book. He was
simply incapable of understanding Hidaya. He committed so many blunders in
translating the common technical terms of Muslim jurisprudence that one has to
refer to Hidaya again and again to understand Hamilton. In the same way
Ballie's Digest of Muhammadan Law consists of the translation of portions from
Fatawa-i-Alamgiri.
Macnaughton's book Principles of Muhammadan Law is a jumble of
defective material, concocted and misconceived notions, distorted facts and
misinterpretations. Some British judges themselves have confessed their lack of
knowledge. Justice Markbee remarks in one of his judgements:
"The means at the disposal of the court for understanding
Muslim law are so meagre and narrow that I am gladly willing to adopt every
device to avoid deciding cases involving this law."
With such limited knowledge on their part, these courts have the
audacity to set new precedents in Islamic law and going beyond its limits
without hesitation because their faith requires no respect for this law nor
does the judicial system of the ruling power place any restrictions on them to
keep within the limits of the Islamic law. The following remarks of Chief
Justice Garth, occurring in the judgement of a case, are enough to underscore
the position of these courts:
"Islamic law, to which our attention has been drawn, exists
in ancient books. It was enforced centuries ago in Baghdad and other Muslim
countries where the legal and cultural background was very different from that
of India. In deciding disputes arising among Muslims, we try, as far as
possible to follow Islamic law. But in the first place it is very difficult to
find out the mandates of this law. It is still more difficult to reconcile
differences in the views of the top jurists like Imam Abu Hanifa and his
pupils. So we should try, as far as possible, to find out the right principles
on which a decree is to be based. Then we should enforce it, keeping in mind
the requirements of justice, goodwill and the legal and cultural background of
the country."
These remarks clearly show that a judicial officer, who concedes
his ignorance of the Islamic law and declares his inability to reconcile the
conflicting views of the top jurists, openly considers it right that despite
his defective knowledge of the Islamic law he should set new precedents. In one
of his decisions, he unhesitatingly declares that in the enforcement of Islamic
law among Muslims, he is not bound to keep himself within the limits of this
law. He has also to keep in mind the legal and cultural background of the
country, the principles of justice as well as his own convictions. The
so-called Muhammadan law being enforced by the courts of this country is the
product of this independent thinking, which is rooted neither in faith nor in
knowledge. Even this defective law is not rightly applied to our Shari'ah cases
and the situation is deteriorating day by day.
THE FIRST STEP TOWARDS REFORM
The minimum workable arrangement at present for reaching correct
decisions of cases involving marriage, divorce, and other Shari'ah matters is
that the Muslims should have their cultural autonomy. They should be empowered
to set up their Shari'ah courts where pious religious scholars should be
appointed as judges. They should be men of insight and deep knowledge in
Islamic law. This need has to be met if it is going to be made for Muslims to
lead their lives as Muslims in this country. In case they cannot be granted
this right, the minimum which can be perforce accepted as a last resort is that
in each district there should be a council of three Muslims, commanding the confidence
of the Muslims of the district. The council should have at least one
acknowledged religious scholar and it should decide cases in accordance with
the Maliki code of law. The government should then be pressed to concede that
in matters of Muslim marriage and divorce, the decisions of the council will
have the force of the court decisions and no appeal against them shall lie in
any other court. Cases of Muslim marriage and divorce that come to law courts
should also be transferred to the councils.2
Besides British India, in the Indian states too, (both Muslim and
non-Muslim), the setting up of these councils should be the first step towards
reform. Following the examples of the British government, even some states have
abolished the courts of Qazis and replaced them with common civil courts, which
have been empowered to hear even Shari'ah cases. These states must either
revive the Qazis or should set up Shari'ah councils. Unless this legal
structure is provided, it will be useless to present in the legislatures a bill
for the enforcement of Islamic law and get it passed.
NEED FOR A MODERN LEGAL CODE
In addition to the arrangements for Shari'ah courts, what is also
needed is the compilation of a manual containing mandates concerning the
Shari'ah affairs of the Muslims. The mandates should be in the form of clauses
with explanations. The manual should replace the so-called Muhammadan law in
the Shari'ah courts and councils. When mixed courts were set up in Egypt need
for such a code was felt, which could put together the necessary laws from
authoritative sources. At the instance of the Egyptian government a committee
of scholars from the Al-Azhar University under the chairmanship of Qadri Pasha
accomplished this work. The code compiled by the committee was approved by the
Egyptian government and was introduced into the courts.3
In India too, there is need for the appointment of such a
committee. It should consist of selected religious scholars from each school of
thought and some law experts. They should compile a detailed code with
annotations. Its manuscript should first be circulated among the Ulama of
various schools of thoughts and then be revised in the light of their reactions
to it. On finalization, it should be declared to be the standard compendium of
Shari'ah law in the light of which the Shari'ah affairs are to be settled in
future. The so called Muhammadan law resulting from the precedents set by
British judges or judges devoid of knowledge and faith should be declared as
void.
It may be asked as to why a new code be compiled when our books on
jurisprudence have discussed all problems in detail. This is not just a
possibility but a certainty that a section of people, because of their peculiar
mentality, will oppose the suggestions. So we briefly state reasons which in
our opinion make this task essential.
A cursory glance through the old books on jurisprudence will
convince anyone that various problems have been discussed at random, in an
outmoded style and sequence. They are couched in a language so obtuse and
obsolete that the fine shades of its technicalities are often beyond the grasp
of even those who teach these books. But now, the book publishing system is
easier and more comprehensive. In such books, the laws are discussed clause by
clause. Under each clause one finds the explanation of important terms,
clarification of objectives, details of the corollaries that follow it,
precedents set by notable judges and interpretations by various experts.
Moreover, the list of contents and indices facilitate the location of issues.
No sensible man will deny that the compilation of modern books on Islamic
jurisprudence must benefit from the advances made in the art of compilation and
clarification as a result of continuous human endeavour. After all the ancient
style of compilation was not based on the Divine command or the mandate of the
Islamic law. It is not obligatory to adhere to it nor is it sinful to depart
from it.
A more important reason than this is the fact that the mandates
discussed in the old books on Islamic jurisprudence are predicated on general
human situations. It is wrong to apply them off-hand word for word in every
case. Their right application depends on the follow considerations:
The moral, cultural, social and economic conditions of the Islamic
society, in which the law is going to be enforced, must be kept in mind. Their
national habits, characteristics and customs as well as their environments and
the effects of the environments should also be taken note of. We need also to
note how strong or weak is the influence of Islam on their nature and their
affairs and to what extent their Islamic characteristics have been changed by
foreign influences; and as a result of general cultural conditions what changes
have occurred in the legal aspect of their affairs.
Secondly, the individual circumstances of each particular case
need scrutiny. The personalities of the parties, their ages, education,
physical health, their economic and social status, their previous history,
family traditions, the general condition of the group to which they belong, are
the. factors that have to be weighed before forming an opinion as to how the
law should be applied to them, in a particular aspect of the matter, so that
the objective of law is realised and the principle of the law is established.
If someone finds an old book on Islamic jurisprudence and tracks
down the corollary of a law, then by blindly following the considerations
listed above, he starts applying this corollary to each case that falls under
it, he will be like a physician who has got the prescription of any illustrious
Greek physician, but he deals with the prescription without taking into account
the climate, the weather, the temperaments of the patients and the different
stages of the disease. The medication prescribed by .ancient physicians may be
absolutely right and sound, 'but it was not meant to be handled by quacks. Its
proper use requires knowledge, experience, intelligence and common sense. In
the same manner the corollaries deduced by our great thinkers from the
principles of Shari'ah and from the basic mandates are absolutely correct, but
those great men could never have imagined that the results to their reflective
thought were going to be used without comprehension and reasoning just as an
ignorant post office person goes on mechanically stamping each letter with the
same seal.
Islamic law was framed with such consummate wisdom that it was
almost impossible for a man or a woman governed by this law to fall a prey to
immorality and become a source of corruption for society. It was just
impossible that the law should cause hardship that forces a man or a woman to
flee out of the pale of Islam. But we witness today not only endless domestic
disputes but also moral turpitude and even apostasy among Muslims only because
in most cases people find it impossible to get a correct just decision under
the Islamic law. Unfortunately, the Muftis as well as the judicial officers
equally lack insight and reflective thinking. They care little for the country,
the society and the nature of the particular case in which a general mandate is
being enforced although the principle of Shari'ah demands that a general
mandate needs to be particularized, according to the nature of the aforesaid
factors. The Islamic law emphasises this point so that none of its principles
is overlooked. As for the government officials, their handicap is
self- evident. As for the religious scholars, all that they are capable of
is to locate and quote various rulings from old books on Muslim jurisprudence,
exactly as they find them written. Some of them have been granted by Allah
breadth of vision and insight into the faith, but not a single one of them has
the courage to examine critically an old corollary and alter even a word of it.
This is because they are afraid of making an error on the one hand. There is
the fear of being dubbed an innovator by the other Ulama, on the other. The
only solution to this problem is that outstanding and influential Ulama of each
state should jointly address themselves to the task and should compile a code
for Shari 'ah affairs suiting to the existing moral, cultural and economic
conditions of the Indian Muslims. The code should be flexible enough to make
necessary changes in its sub-clauses, to suit the particular features of
individual cases.
If someone brands this course of action as innovation, we must
explain to him that he is in error. He should be made to see the difference
between following the great leaders of thought and following the prophets. He
does not understand the meaning of following a particular school of Islamic
jurisprudence. To him following a particular school means to elevate this
school to the status of faith, to raise its founder to the position of a
prophet and to regard his rulings immutable like the verses of the Quran. To
him it is an article of faith that the rulings of his school of jurisprudence
need no correction, modification or addition; and it is a serious sin to
subject them to research or criticism. It is his belief that it was permissible
till the fourth century A.H. to feel free, while deciding cases, to ignore a
corollary from another school of jurisprudence. But such course of action
stands debarred now. Such blind following cannot be traced among the scholars
of the past; nor is there any proof of it in the Shari'ah. The pupils of Imam
Azam differed with their master on hundreds of problems and still they remained
his followers. The later-day scholars of Hanafi jurisprudence made their choice
from the conflicting views of Imam Azam and his pupils, preferring one view and
rejecting the others and basing their verdicts on the view of their choice.
Despite this research and criticism, no one can accuse them of innovation. From
the fourth century of Hijrah to the eighth and ninth century, the Hanafi Ulama
constantly amended, according to the needs of their times, the corollaries and
precedents of the ancient scholars. Their independent judgement was never
regarded as innovation. No one has the courage to declare that Hanafi jurists
like Abul Laith Samarqandi, the great Imam Sarkhasi, the author of Hidaya, Qazi
Khan, the author of Kanz, Allama Shami and other scholars of their standing
were innovators, just because they introduced flexibility into Hanafi
jurisprudence, to cope with the circumstances and needs of their times. They
based their verdict on the laws of other schools of jurisprudence, if they
found the Hanafi jurisprudence harmful or impracticable. They made it a clause
of Hanafi legal system that in case of need, it is permissible to base a
verdict according to other schools of jurisprudence, provided this step is not
taken for selfish ends.
It is true that if the people were free to follow other school of
jurisprudence, just to suit their needs or if they took undue advantage of the
concessions allowed by their own jurisprudence, there is the danger of using
the law for selfish ends. Each school has allowed concessions from its own
point of view to cope with special situations. If these concessions are
exploited for personal gain, religion becomes a mockery and social life becomes
chaotic. But if this step is taken by pious scholars of religion, in good
faith, and by mutual consultation, to meet the current needs of Muslims, there
is no fear of any harm, materially or spiritually. Even if these people
unwittingly commit a mistake, the Quran declares them free from blame and
worthy of Divine reward. The greatest hazard in this way is that a section of
Ulama will start opposing it vehemently and their followers will develop
ill-will against its pioneers. But a greater danger lies in avoiding this
course of action. Hard pressed by their needs, Muslims will ignore Islamic law
and will start following their carnal lusts. Religion will become a mockery and
Allah's limits will be openly infringed, leading to the spread, in an epidemic
form, of moral turpitude, disbelief and sin. Like Christian nations, Muslims,
too, will reject their religious code and adopt man-made laws. On the Day of
Judgement, the religious leaders of these sinners will also be answerable to
Allah, the Almighty. He will ask them, "Did We bless you with knowledge
and wisdom that these gifts should not be used? Were you given the Book and the
Sunnah of our Prophet that you should keep sitting over them and the Muslims
should become lost in the darkness? We made the faith easy. What right did you
have to complicate it? We commanded you to follow the Quran and Muhammad (peace
be on him), who made it obligatory on you to place your forefathers above them?
Our Quran embodied the solutions to all problems. Who told you not to touch the
Quran and consider books written by men enough for yourselves?" It is too
much to hope that in the face of this interrogation, books like Kanz-ud-Daqaiq,
Hidaya and Alamgiri will be of any value to a religious scholar.
All these issues are necessary and important. Their detailed
discussion being inevitable, this much space had to be given to them. We will
now turn to the real topic of our discussion.
References
1 I want to re-emphasise the point that I do not believe in true
worth of the Shari'ah bench set up by the orders of a non-Muslim government.
But I am discussing here, the minimum feasibility of a procedure by which, till
such time when an Islamic government is established, affairs involving the
personal law of the Indian Muslims can at least be straightened out.
2 According to the Hanafis, the verdicts of these councils cannot
be a substitute of the judgement of the Qazi. But in case the councils are
granted the power to enforce their verdicts and their powers do not end just at
the hearing of cases as arbiters but extend to the authority of enforcement,
then even for the Hanafis their verdicts will be as good as the verdicts of the
Qazis.
3. The code was rendcrcd into French under the name
''Droit-Mussalman''. Besides Egypt it is also used in the court of other Muslim
countries.
6. FUNDAMENTAL INSTRUCTIONS
Since the Holy Quran is a book dealing with all the fundamentals
and principles of life, secondary problems relating to marital relations have
not been discussed by it in detail. However, some broad principles have been
stated which encompass almost all secondary problems and offer the best
guidance for deducing corollaries. So before taking a look at the details of
the law, it is necessary to understand fully the principles and rules laid down
by the Quran. Consider the following verses:
1 "Do not marry idolatresses until they believe in
Islam." (2: 221)
2 "Do not give believing women in marriage to idolators until
they believe in Islam." (2: 221)
3 "Lawful for you are the chaste women from among those who
have been given the Book." (5: 5)
4 "Do not marry idolatresses. Do not give your women in
marriage to idolators." (2: 221)
These verses state the rule that a Muslim male cannot marry an
idolatress. However, chaste women from among those who have been given the Book
are lawful for him. But a Muslim woman can neither marry an idolator nor a man
from among those who have been given the Book.
These verses also lay down the rules that a man is free to seek
the hand of a woman, but a woman is not absolutely free in this matter. To give
her in marriage to someone is the business of her guardians. True, there is the
ruling of the Holy Prophet (peace be on him) that a woman's consent is
necessary for marriage to a man and no one has the right to give her in
marriage against her will. But a woman's marriage is closely related to family
interests, since the Quran wants that a woman's choice alone should not settle
the affair; her guardians must also have a say in the matter.
"In return for the benefit you draw from them, give them
their dower as an obligation." (4: 24)
"And how will you take back the dower you gave them, after
you have enjoyed each other's companionship?" (4: 21)
"And if you divorce them before you touch them and the dower
has been settled, you shall have to pay half of what has been settled."
(2: 237) These verses show that dower is in return for the benefit
a man draws in the form of sexual intercourse. So it becomes payable after the
first intercourse and cannot be nullified. Of course, the wife may, of her own
free will, remit the whole or part of it. She may also give it up in return for
khula.
"If you have given anyone of them a lot of money do not take
back anything from it." (4: 20)
This verse indicates that Islamic Shari'ah places no limit on
dower. No other law can place a limit on it.
"Men are the guardians for women. It is so because Allah has
given them superiority over women and because they spend their money on them."
(4: 34)
This verse makes living expenses the right of the wife. This money
is in return for the conjugal rights the man has on her. This right of hers can
in no case be nullified, unless she herself gives it up or she is guilty of
desertion.
"And let him, who has abundance, spend out of his abundance;
and whoever has limited means, let him spend out of what Allah has given
him." (65: 7)
This verse lays down the rule for the assessment of living
expenses. The financial position of the husband is to determine the amount of
living expenses. A wealthy man will pay according to his means and a poor man
according to his means.
"As for the women on whose part you fear rebellious
behaviour, counsel them, and leave them alone in their beds; then give them a
beating. So if they obey you, do not find excuses to be unjust to them."
(4: 34)
This verse gives the husband the right to punish the wife, in case
she starts disobeying him and rebelling against him. Even in this case, only
two forms of punishment have been permitted. The first one is to cut off sexual
relation. The second one is light physical beating, which is permissible only
in cases of outrageous misbehaviour. If punishment exceeds limits, e.g.,
beating without outrageous behaviour or beating badly for moderate misbehaviour
or going beyond light punishment even for outrageous behaviour, it will amount
to cruelty on the part of the husband.
"And if you fear a breach between the two spouses, appoint an
arbiter from his people and an arbiter from her people. If they both want
improvement in relations, Allah will bring about harmony between them."
(4: 35)
This verse lays down the rule that in case of a dispute between
the spouses and their inability to arrive at a mutual compromise, let two
arbiters be appointed, one to represent the man and the other one to represent
the woman. The two of them should join hands and settle the dispute amicably.
The verse is addressed to people of authority among the Muslims.
It is they who are to appoint the arbiters. And if the dispute cannot be
settled by the arbiters, it is the responsibility of the authorities, as a last
resort, to settle the dispute.
"Then if you fear that the two spouses will fail to keep
within the limits of Allah, there is no blame on the two of them, if the woman
gets separation in return for ransom." (2: 229)
The verse cautions the judge that in deciding marital disputes the
crucial factor to guide him should be to see if both of them will be able to
keep within the limits of Allah, relating to the discharge of conjugal duties.
If the probability is that these limits are going to be violated, then nothing
can justify their union. The most important thing is the strict adherence to
the limits set by Allah. No price is too high for the discharge of this duty.
In the words of the Quran: "And whoso goes beyond the limits of Allah, he
indeed wrongs his own soul." (65: 1)
"And do not retain them just to torment them, so that you do
them injustice." (2: 237)
This verse warns men not to make the marriage tie a means of
tormenting women and depriving them of their legitimate rights. The Islamic law
wants the spouses to share a happy life. As long as a woman is retained, she
must be retained in kindness and if the union becomes impossible to remain
intact and there is the fear of torment or injustice for the wife, separation
becomes essential. But it should come about in a decent manner. Islamic law
abhors harm and permits no one to harm another person.
"And do not incline with total inclination to one wife,
leaving the other one in suspense." (4: 129)
This verse lays down the general rule that a man with more than
one wife should treat all wives equally. It will amount to injustice on his
part if he totally disinclines from one of them. Depriving her of his own company
and debarring her from marrying someone else, is a veritable torment for the
poor woman.
"Those who, swear not to touch their wives, the prescribed
limit for them is four months." (2: 226)
This verse specifies maximum limit to which a woman can be left
alone in bed. She can stand this much period of separation without feeling
oppressed and without over-stepping the limits of Allah. Beyond this period
there is danger that either one of the aforesaid things might happen. The verse
was revealed to meet a particular situation, but it serves as a guide in all
similar situations.
"Those who accuse their wives and have no witnesses except
themselves, let the testimony of one of them be four testimonies, swearing by
Allah that he speaks the truth. And a fifth testimony, invoking the curse of
Allah if he be a liar." (6, 7: 24)
This verse deals with the case of a man who accuses his own wife
of adultery but has no witnesses. He must declare on oath, four times that the
accusation is true. He shall have to declare on oath, the fifth time that
Allah's curse may fall on him, if the accusation be false. The solemn statement
of the husband renders the wife liable to punishment, which can be averted only
if she declares four times on oath, that the accusation is false and also makes
the fifth declaration on oath, that the wrath of Allah be upon her if the man
has spoken the truth. If both spouses make these solemn declarations, the court
has to separate them.
"Unless they (the women) agree to forgo it (dower), or he
agrees to forgo it in whose hand is the marriage tie." (2: 237)
This verse unequivocally declares that the marriage tie is in the
hands of the husband. It is he who can retain it or break it. Wherever the
Quran speaks of divorce, it ascribes the act to the man. This is a conclusive
proof that it is the husband who has been given full power to divorce the wife
or to retain her. No law can be enacted to divest the husband of this power.
But in Islam all powers are subject to the universal condition
that they have to be exercised with the fullest regard for fair play and within
the limits of Allah. "He who violates the limits of Allah, wrongs his own
souls," is the ever-present warning for the husband. In fact this Divine
warning overshadows the entire legal system of Islam. The power granted to the
husband is no exception to this all-pervading principle. If a woman feels
aggrieved, the Quran tells her to refer her case to Allah and His Messenger,
i.e., the court of law. If her complaint is proved valid, the court will take
away the man's power, as provided by the Islamic law, and use it to separate
the spouses.
A section of jurists argues that the right of divorce granted to
the husband by the Quran is absolute and free from all restraint. If the
husband is unwilling to divorce, the court has no authority to strip him of the
power and use the power itself on his behalf. The Quran, however, does not lend
support to this view. According to the Book ofAllah, even man's right to life
is subject to the will of the Lord of Truth. How can the Quran arm the husband
with a power that remains unchallenged even though it is maliciously used to
trample' all the rights of the wife and to flagrantly violate the limits of
Allah?
"Divorce must be pronounced twice and then the woman must
either be retained in honour or allowed to depart in kindness." (2: 229)
"And if he divorces her the third time, she is not lawful to
him thereafter until she has wedded another husband." (2: 230)
These verses explain the right mode of divorcing a woman. The
three pronouncements of divorce have to be spaced, as described earlier. The
first two pronouncements are provisional, leaving the option of mending and
resuming conjugal relations. The third pronouncement irrevocably breaks the
marriage tie.
References
It was on the basis of this principle that Hazrat Omar issued
orders that no married soldier should be kept away from home on military duty,
for more than four months.
7. COROLLARIES
The fundamental principles of the Islamic marital law have been
discussed in the previous chapter. Important corollaries following from these
principles are now being taken up in the same order. No attempt will be made to
encompass all corollaries. Attention is being focussed only on the peculiar
problems that need the restatement and elucidation of the mandates of the
Shari'ah, in the light of the needs and circumstances of present times.
1. APOSTASY OF ONE OF THE SPOUSES
In modern times apostasy has assumed a special importance. The
apostasy of the husband makes no actual problem because there is general
agreement on the fact that the bond of marriage cannot tie a Muslim woman to a
non-Muslim husband. But difficulty arises when a wife turns an apostate. Mostly
women have turned to apostasy and are still turning to it on the pretext of
releasing themselves from husbands who are cruel or whom they dislike. In such
cases the courts set up by the British follow the ruling of Imam Abu Hanifah as
quoted in Hidaya and other books. The ruling states that the apostasy of either
one of the spouses automatically separates the two of them, without a divorce.
To check the practice of apostasy the Indian Ulama want to follow
the ruling of the Ulama of Balkh, Samarqand and some other Ulama of Bokhara.
Their ruling is that apostasy does not dissolve the marriage tie; the woman
remains the wife of the man despite her apostasy. The ruling is based on the
fact that apostasy is being resorted to only as a device to get rid of the
marriage tie. The only way to counter this trick is to let the marriage tie
remain unaffected by apostasy. However, the acceptance of this ruling is going
to create problems which have not probably been foreseen by our Ulama.
The first difficulty is that in the eyes of the law of the land,
as well as the Shari'ah law, a person is a Muslim or non-Muslim on the basis of
verbal profession. There is no way of proving that a woman is actually a Muslim
at heart but she is feigning apostasy in order to be separated from her
husband.
Secondly, if a woman leaves Islam to become a Christian or a
Jewess, her marriage tie, according to the Quran, stays intact. But if she
accepts the Hindu, Sikh or the Parsi faith or some other faith, it will be
against the clear mandate of the Quran to retain the marriage tie.
Thirdly, how are you going to apply Islamic law to a woman, who
has left the fold of Islam to embrace another faith? Indian Muslims live under
a non-Muslim government, which gives equal treatment to the Muslims, the Hindus
and the Sikhs. If a woman goes over to the Sikh faith or the Arya Samaj, how
can we expect the government to force the woman, against her will, to retain
the marriage tie that was solemnized under Islamic law when she was a Muslim?
These reasons force us to conclude that Indian Ulama can draw no
benefit from the rulings of the Ulama of Balkh and Samarqand. The thing that
should engage our attention is what drives married women out of the fold of
Islam. It can be stated with certainty that no more than two to four percent of
the women leave Islam because of a change in their beliefs. And they are driven
to apostasy because they find no legal remedy for the oppression and tyranny to
which they are subjected by their husbands. The husband may indulge in the
worst kind of cruelty but the wife is unable to get a khula. The husband may be
worthless, he may be afflicted with a dangerous or loathesome disease, he may
be a slave to wayward habits, but the wife cannot leave him. These factors make
the wife hate his very name and might bring about a total break down of mutual
relations. Despite all this the wife finds no way of ridding herself of the
marriage bond. Or maybe, the whereabouts of the husband have not been known for
years which has made life of the wife intolerably miserable. But she can see no
way out of this calamity. Circumstances like this force women to step out of
the bond of Islam and seek a sanctuary in disbelief. Searching out legal
corollaries to block the path of these unfortunate women from falling into
disbelief, is also not a right remedy. This step would rather drive the women
to commit suicide. The right course is that we take a critical look at the
Shari'ah law and amend it, in the light of modern needs and circumstances. The
legal hurdle that forces our sisters and daughters to forsake Islam and go into
disbelief, can thus be .done away with. The authentic mandates of Allah and His
Messenger have not laid down any constraint that may cause harm and injury to
anyone, let alone drive anyone to apostasy. This shortcoming exists only in
some of the rulings of the jurists. Such rulings can be replaced by other
rulings that can effectively check the apostasy of Muslim women.
2. DISCRETION OF ADULTHOOD
The Quran lays down the rule that the guardian of a woman must
have a say in the matter of her marriage. This mandate, as interpreted by the
Messenger of Allah's word and his practice, makes it clear that it does not
seek to give the woman no say in deciding this vital affair of her life. On the
contrary, the Holy Prophet (peace be on him) made the consent of the woman an
indispensable condition of marriage. Collections of Hadith compiled by Abu
Dawood, Nasa'i, Ibne-Majah and Imam Ahmad report the case of a girl who
approached the Messenger of Allah with the complaint that her father had
married her against her will. His reply was that she had the option of
accepting or rejecting her father's choice. Nasa'i reports the case of Khansa,
the daughter of Khaddam. She, too, made the same complaint to the Messenger of
Allah and received the same reply. Qutni narrates a report from Hazrat Jabir
that the Holy Prophet separated a couple because the girl had been married
against her will. Nasa'i also narrates a report from Hazrat Ayesha saying
"A woman came to the Holy Prophet (peace be on him) complaining that her
father had married her to his nephew against her will. He told her that she was
free to accept or reject her father's choice. At this she exclaimed Messenger
of Allah, I accept my father's choice. I just wanted to make it known to other
women that their fathers did not have the final say in this matter."
Collections of Hadith compiled by Muslim, Abu Dawood, Tirmizi,
Nasa'i and Imam Ahmad all quote the rulings of the Holy Prophet (peace be on
him), which say that a woman who has already had a husband, has a greater right
than her guardian to decide about her marriage. But a virgin woman's consent
must be obtained. Abu Hurairah reports from the Messenger of Allah:
"A woman who has had a husband before, should not be married
without her permission and a virgin should not be married without her
consent."
3. OBLIGATORY GUARDIANSHIP
All the precedents cited above show that one of the principles of
the Shari'ah law is that the consent of a woman is an indispensable condition for
marriage. The application of this principle poses a question in the marriage of
a minor girl who is incapable of giving her consent. Is she going to lose her
right to exercise consent, if her father has given her away in marriage? The
ruling given by the jurists is that if a minor girl is given away in marriage
by someone other than the father or the grandfather, she shall have the right,
on attaining adulthood, to accept or reject the marriage tie. In case she was
given away by her father or grandfather, she shall have no such right, except
when the father or grandfather is known for leading a life of immodesty, and
reckless behaviour. The ruling that a minor girl is living under the inexorable
will of the father or the grandfather and has no right, on attaining adulthood,
to disapprove of the marriage tie, solemnized by her father, has no support
from the Quran or from any Hadith. Its only basis is the argument of the
jurists that the father and the grandfather can have no ill-will against the
girl; so the marriage solemnized by them should be binding on her.
The ruling given in Hidaya is:
They (the spouses married in infancy) have no discretion of
approval after attaining adulthood because they (the father or grandfather)
have mature judgement and great affection. So the marriage tie will be binding
for their marital relations, as if they had consented to it on attaining
adulthood.
This view is entirely based on conjecture and lacks the authority
of the mandates of Allah and His Messenger. Moreover, it is open to all kinds
of objections.
1 A confirmed Hadith of the Holy Prophet (peace be on him) states
that he married the minor daughter of Hazrat Hamzah to Amar bin Abi Salma and
said that she had the discretion to accept or reject the marriage on attaining
adulthood. This clearly establishes the right of minor spouses to exercise
discretion on attaining adulthood. No comment was made by the Holy Prophet
(peace be on him) to the effect that since he was not the girl's father but
only her cousin, the marriage was not binding on her.
2 Islam does not give the father or the grandfather a final say in
the marriage of a woman. The final say belongs to woman herself. She cannot be
married to anyone without her free consent. It is really surprising that a
minor girl should be deprived of this precious right. A woman has been given
the right to assert her discretion because marriage is a matter intimately
related to her life-long happiness. Looked at from this point of view, a minor
girl stands as much in need of this right as a grown up woman. If maturity of
judgement and great affection can entitle the father or grandfather to overrule
the discretion of a minor girl, the discretion of a grown up daughter can also
be overruled on the same ground.
3 The maturity of judgement and depth of affection ascribed to the
father and the grandfather are only an act of empiricism, not a universal law.
There is no dearth of exceptions where there is little affection and still less
maturity,
4 Even in cases where the father and grandfather are men of
insight and have deep affection for the minor girl, it may well be that their
expectations do not come true. The boy may grow up into a young man contrary to
their expectations. This is all the more likely in these days of galloping
social changes sweeping across the globe. Age-old concepts and practices that
had been sacrosanct for generations are being brushed aside as symbols of
backwardness. In such circumstances the course of prudence is to discourage
child marriage, as far as possible. An irrevocable tie is likely to become an acute
problem in future for the father or the grandfather who arranged the marriage.
5. In case the father or grandfather giving the minor girl in
marriage' is evil-living, immodest and reckless, the girl on attaining
adulthood, though she gets the right of exercising her discretion, will have to
prove in the court the moral blemishes that disqualify the father or the
grandfather. This will be too embarrassing a task for her to undertake. The
above factors make it imperative that this ruling of the Shari 'ah law should
be revised. Public interest demands that it should be so amended that the minor
spouses (the girl as well as the boy) get the right of exercising their
discretion on attaining adulthood.
4. CONDITIONS FOR THE EXERCISE OF DISCRETION
Another ruling of the jurists on this issue also demands a
critical look. In case minor girl is given away in marriage by someone other
than the father or the grandfather, she has the option to exercise discretion
on attaining adulthood. But the condition is that she should declare her
disapproval immediately on the beginning of the first sign of puberty. If she
does not declare disapproval on the first discharge of the menstrual course,
she shall lose the right of discretion. The amazing thing is that this
condition applies only to a virgin. The ruling for a girl touched by a man and
for a minor boy is that as long as they do not declare their consent they shall
have the discretion to dissolve the marriage tie.
The condition laid down for the minor virgin finds no support from
the Quran or the Hadith. This is a judicial ruling and needs amendment. The
discretion to dissolve the marriage has been conditioned by the beginning of
puberty only because puberty brings in its wake maturity and the ability to
distinguish between good and bad. Mature judgement enables one to act with
responsibility. This does not imply, however, that the first sign of puberty
brings about an instant mental revolution, making the individual capable of
independent judgement. Even if such a sudden change does come about, why is the
minor virgin placed on a footing different from that of the minor boy and a
minor girl touched by a man? The latter two have been granted the discretion,
after attaining adulthood to dissolve marriage as long as they have not
expressed their consent to it. On what grounds, after all, has the minor virgin
been denied sufficient time to make up her mind after careful thought? An
inexperienced virgin certainly needs more time to think and weigh things than
does a young man and a young girl of her age, who has been touched by a man.
The minor virgin is much more inexperienced and immature than these two.
5. DOWER
As for the amount of dower no limit has been set on it by any
mandate of Allah and His Messenger. Hazrat Omar once planned to set a limit.
Learning of this, a woman came to him and cited the Quranic verse "Even if
you have given one of the women a huge amount of dower, do not take back
anything."
Hearing this Hazrat Omar exclaimed:
'The woman was correct and the man mistaken."
No legal limit can be imposed on dower. However, the verdict of
the above saying is that it is undesirable to fix a dower which is beyond the
means of the husband. The advice given in this \matter by the Holy Prophet was:
"Try to enable men to pull on with women. Do not get beyond limits in
fixing the dower."
Abu Amr al-Aslami married a woman for a dower of two hundred
pieces of silver. The Holy Prophet remarked:
"Even if you were to find silver pieces washed down by brooks
and streams, you would not have fixed a dower higher than this." Anas
married a woman for one hundred and sixty silver pieces. The Messenger of Allah
remarked: "It seems you are digging silver out of this mountain.
Hazrat Omar summed up his views on the issue thus: "Do not
exceed the limits in fixing dower. Had this been something conferring merit in
this world or in the Hereafter, the Messenger of Allah must have outdone all of
you. But the dower of none of his wives and daughters exceeded four hundred and
eighty silver pieces."
These comments shed light on the undesirability of fixing
excessively high dower. But the current practice in our country is far more
deplorable. Deeds specifying hundreds of thousands of rupees as deferred dower,
are drawn up. But neither is the payment of these sums within the means of
those making the commitment, nor does the intention of payment ever cross their
minds. This sorry state of affairs is not only disgusting but also corrupting.
The ruling of the Holy Prophet in this matter is:
"A man, who marries a woman in return for an amount of money,
but has the intention of never paying it, is in reality an adulterer. One, who
borrows money with the intention not to pay it back, is in reality a thief.
This is the spiritual demerit of high dower. The material demerit
is in no way less serious. The purpose of a huge amount of dower is to debar
the husband from divorcing the woman. But on the contrary, in case the spouses
cannot pull on together, the unusually heavy rate of dower becomes a millstone
round the woman's neck.
Inability to pay a huge amount deters the man to divorce her and
she remains suspended for years, may be for the whole of her life. Excessive
dower is one of the factors which is causing hardship to our women. If the
dower is kept within reasonable limits, a large number of the marital problems
will not get bad to worse.
The existing situation can be solved without contravening the
Shari'ah laws. If the dower is made immediately payable, the parties may be at
liberty to fix any amount they please. In case the dower is deferred, the deed
for its payment should be drawn up on a regular stamp paper, bearing stamps for
at least fifty
percent of the amount of the dower. A marriage deed which does not
fulfil these requirements should not be legally admissible. Such a law, if
enforced, will easily put an end to the rotten type of deferred dower prevalent
now-a-days. This law will force people to fix dower according to their means.
It will also compel them to stop wasting money on stupid customs and pay the
dower at the time of marriage, either in cash or in the form of property. When
healthy traditions have struck firm roots, the legal requirement can be done
away with.
6. LIVING EXPENSES
Disputes arising on this count can be of two kind:
i.The husband can afford to pay living expenses but does not pay.
ii. He simply cannot afford to pay.
For defaulter of the first type,
agreement that the court should take all possible measures to
force him to pay. There is a difference of opinion as to what should be done if
the man fails to comply with the orders of the court. The Hanafi view is that
nothing can be done in the matter. It is for the woman to think of the ways of
meeting her living expenses. She may borrow on the security of her husband; she
may take up work and earn a living; or she may get help from her relatives. The
Maliki view is that in such a case the court has the right to separate the
spouses, by pronouncing a divorce. Some of the Hanafi jurists have approved of
the Maliki ruling, with the proviso that the woman be incapable of fending for
herself or even if she is capable, there lies the danger of her overstepping
the limits of Allah. But evidently this proviso seems to be out of place. The
Quran has granted the wife living expenses as a matter of right. It is in
return for this right of hers that the husband gets the conjugal rights on her.
When the husband is deliberately denying her this basic legal right there is no
reason why she should be forced to stay bound by the marriage tie. If someone gets
a commodity and gives nothing in return or receives goods and refuses to pay
the price, how can he claim possession of that commodity or those goods? As
long as a woman is bound in the marriage tie, her husband is responsible for
her maintenance. What rule of justice can require her to earn her own living or
to become a burden on her relatives or to borrow in the name of a cruel
husband.
In the second case, too, the Hanafi ruling is that the woman
should be advised to put up with the situation with patience and
self-restraint; and to borrow or seek help from the relatives. The ruling of
Imam Azam is that her living expenses have to be borne by the person, who must
have been responsible for her maintenance, in case she had stayed unmarried.
However, the ruling of Imam Malik, Imam Shafi'i and Imam Ahmad bin Hanbal is
that if the woman cannot pull on with the husband and asks the court for
separation, she ought to be separated. Imam Malik recommends one or two months
notice to the husband, Imam Shafi'i thinks that a notice of three days is
enough, whereas Imam Ahmed favours immediate separation.
The Quranic verse granting the husband conjugal rights in return
for the money he spends supports the position taken by the last three imams.
The Hadith and other evidence are also on their side. Qutni and Baihaqi quote
the decision of the Holy Prophet (peace be on him) that in case of non-payment
of living expenses, the spouses should be separated. The same ruling was given
by Hazrat Ali, Hazrat Omar and .Hazrat Abu Hurairah. Among the later-day
authorities, Saeed bin Museb and Omar bin Abdul Aziz also acted on this
precedent.
On the other hand the Hanafi argument is based on the Quranic
verse: "He whose provision is limited, let him spend of that which Allah
has given him. Allah asks naught of any soul except that which He has given
it." (65: 7)
The implication of this verse is that no specified amount can be
fixed for living expenses. The amount depends on the means of the husband. But
it does not mean that in case the husband is absolutely without means, the wife
should be forced to suffer miserable life with him. It would indeed be a heroic
deed if she could do it and Islam expects its daughters to develop such rare
quality. Women of good breeding do rise to such moral heights. All the same,
morality is one thing and a legal right is another thing. Maintenance is the
legal right of the wife. If she willingly forgoes it, and enjoys her husband's
company even without it, it is highly laudable. But if she does not want to
forsake it, or is unable to do so, there is no provision in the Islamic law
that can force her to be content with her miserable lot as an act of heroism.
The foregoing discussion points to the conclusion that the best
solution to the problem is the one suggested by Imam Malik, viz., separation
between the spouses after a reasonable notice to the husband.
7. UNDUE OPPRESSION
"As for those from whom you fear rebellion, admonish them and
leave them alone in their beds and give them a beating. Then if they obey you,
seek not a way against them." (4: 34)
This verse does not give the husband the right to be harsh on the
wife, either verbally or physically without a genuine cause. In case he does
this, the woman is entitled to legal protection. No precedent, however, can be
cited to explain the details of procedure in such a case. But the Islamic law
is humane enough to permit the court to provide relief Spouses to the aggrieved
woman, in unbearable cases, by separation between the spouses. In some sections
of our society illtreatment of the wife seems to have become a common practice.
Being a husband is looked upon as a licence to inflict unbridled injury and
injustice. There seems to be a need to include in the Islamic law suitable
clauses to check this cruel practice. The best that can be done is to include
the habitual use of filthy language and the frequent resort to beating among
the legitimate grounds for demanding khula. Women who can prove such treatment
on the part of the husbands should be granted separation without making any
payment.
8. ARBITRATION
"Appoint an arbiter from among his people and an arbiter from
among her people." Where differences between the spouses become a threat
to the marriage tie, the above verse of the Quran provides the right solution.
That is what Hazrat Ali did. A case is reported in Kashf-ul-Ghumma. A man and
his wife, who were on very bad terms, came to Hazrat Ali. He told each of them
to choose an arbiter. This done, he summoned the two arbiters and said:
"If you feel that union between the two of them is the right thing, keep
them united. But if you feel their separation is the right thing, separate
them."
Then turning to the woman Hazrat Ali said: 'Will you accept the
verdict of the arbiters'? Her reply was: 'Yes, I will." When the same
question was put to the man, he replied: "If they retain the union I will
accept the verdict. If they separate, I will not accept."
At this Hazrat Ali gave his verdict: 'You do not have such a
right. You shall not leave unless you promise to accept the verdict of the
arbiters, as the woman has promised."
Such arbitration is a suitable device for settling family
disputes, which do not involve complicated legal issues. To make arbitration
still more serviceable, it is necessary to add a few more clauses to the law.
The clauses should clarify the procedure of arbitration, the powers of the
arbiters, the mode of the enforcement of their agreed decision, and the course
of action, if the arbiters disagree. The attempt of the Islamic law to settle
most of the family squabbles at home, instead of dragging them into the court,
is very precious feature of this law. Even when a case reaches a court, the
judge is required, before making a probable himself, to get help from the
responsible members of the two parties for solving this problem. This, too, is
a blessing for social life.
9. OPTION OF DISSOLUTION FOR SERIOUS DISABILITY
Great differences exist between jurists on the question of the
dissolution of the marriage when one of the spouses discovers after marriage
that the other spouse is suffering from a serious disease or loathesome
physical defect. A section of jurists is of the view that neither of the
spouses has the option of dissolving the marriage on the ground of a handicap
or a shortcoming of the other spouse. The ruling given in the Durr-e-Mukhtar
is: Neither the husband nor the wife has the right to get the marriage
dissolved on account of the handicap of the other, however serious the handicap
may be, like madness, leprosy, leukoderma, hernia, etc. This view has been held
by Hazrat Ali and Ibn-e-Masood from among the companions and by Ata Nakhai,
Omar bin Abdul Aziz, Ibn Abi Laila, Auzai, Thauri, Abu Hanifah and Abu Yusuf.
The other section of jurists holds the view that handicaps which
are a barrier to conjugal relations give both spouses the right of dissolving
the marriage. The handicaps listed are madness, leprosy, leukoderma,
foul-smelling mouth, venereal diseases. Imam Malik is the propounder of this
view. In his book Al-Qawanin, Abu Ejaz lists these handicaps and states that if
either one of the spouses has any of these handicaps the other spouse has the
option to live together or to separate.
According to Imam Shafi'i both spouses have the right of
dissolving marriage, in case one of them is suffering from madness, leprosy or
leukoderma. But venereal disease, foul-smelling mouth and itch are no grounds
for the option of dissolution. But if the woman has a sexual disease that rules
out intercourse or the man is impotent or he is a eunuch, the deprived spouse
has the option of dissolution.
According to Imam Muhammad, no handicap of the woman gives the
husband the option of dissolution; but his madness, leprosy, and leukoderma
give option to the woman.
Of all these views, the second one is closest to the teachings of
the Quran. In the eyes of the Quran, the two most important objectives of the
marital relationship are the preservation of chastity and the bond of love and
compassion between the spouses. These objectives get lost if either one / of the
spouses is afflicted with a disease or a handicap, which disgusts the other or
renders him or her incapable of satisfying the natural urge of the other.
Another principle of Islamic marital law is that the marriage tie should not be
a source of causing harm to the spouses or a cause of forcing them to
transgress Allah's limits. If there is no option for dissolution on the ground
of the above mentioned afflictions, this principle is certain to be violated.
The aforesaid disease and handicaps certainly cause harm to the normal spouse.
And there is also the ever-present danger that hatred or the lack of sexual
drive may prompt the normal spouse to violate Allah's limits. Thus it appears
necessary that these afflictions should give the spouses the option to dissolve
the marriage.
The discussion has thus far been restricted to cases where the
spouses did not fully know each other's personal conditions before marriage and
they expressed their disgust as soon as the true picture of the other spouse
became known. But there can also be cases where the spouses fully knew each
other before marriage and they knowingly entered into the marriage tie. It
could also be that they were not aware of the defects before marriage. But when
they came to know of it, they did not use the option to dissolve marriage.
Another possibility is that of the disease or the handicap developed after the
marriage. In all these cases the man has an alternative. He can divorce.
Another alternative for him is to have second wife. But in certain cases, the
jurists have suggested no remedy for the woman. Some jurists have in some cases
devised a way out for the woman but others have not approved of it. The rulings
given on this issue will be taken up and discussed one by one.
10. IMPOTENCY
All agree that if the husband's private part has been amputated,
the woman has the right to ask the court to separate her and, if the fact is
established, separation shall be made forthwith.
If the husband is impotent and the woman demands separation, the
husband, according to the precedent set by Hazrat Omar, will be given a year's
time for medical treatment. If he is still impotent, separation will be made.
However, jurists have laid following conditions:
i. This ruling is applicable only in cases where the woman was
unaware of the man's impotency at the time of marriage. If she was aware and
still willingly married the man she cannot demand separation.
ii. In case she was unaware beforehand and discovered the fact
afterwards, but still declared her consent to retain the marriage tie, she
loses her right to demand separation.
iii. Separation will be effected only if the man has not had a
sexual intercourse even once. If there has been even a single intercourse, and
that too an unsatisfactory one, the woman loses the right of separation.
These conditions find no support from the Quran or the Hadith and
they are unjustified. If a woman is foolish enough to marry a man whom she
knows to be impotent, it is both unfair and unreasonable that she should be
irrevocably condemned to share life with him. The evils stemming from such a
union are too evident to be discussed. It will be enough punishment for her if
she is separated and deprived of the dower.
If a woman comes to know of her husband's impotency after marriage
and she initially consents to live with him, she has committed no serious crime
for which she should be forced to spend the rest of her life in misery. An
inexperienced virgin at the threshold of married life, can hardly imagine what
hardships await her in her union with an impotent husband. Maybe because of her
good nature, she takes a light view of the matter and thinks she will be able
to carry on any way. But, if later she comes across hardships, too formidable
to bear and perplexed with the fear of ill- health or slipping into sin, she
demands separation, how is it permissible to snub her and tell her either to
pine away the rest of her days or to compromise with sin? The more you think
the more strongly you feel that hurling a woman into such a situation is diametrically
opposed to the teachings of the Quran. The situation can explode into more
harmful scenario that will not be restricted to the individual person of the
woman, but will also infect the whole society and the infection will be
transmitted to coming generations. Rather than running such a grave risk, it is
far better to take a humane view of the mistake made by a woman. Separation
will do her no harm. If at all she is to be punished, let her lose the whole or
part of the dower. As a matter of fact even this punishment will be unfair.
More deserving of punishment is the man who married a woman despite his
impotency.
The third condition is also very harsh. This type of conjugal
relationship does not measure up to the Islamic objective of marriage. Islamic
law has not been designed for heavenly beings but for the humanity. It is
extremely difficult, if not impossible, for an average woman to have only one
or two or few intercourses throughout life and feel happy and satisfied,
keeping her chastity intact. Even if it is assumed that fifty percent of the
women can rise up to this standard, what will happen to the remaining per cent,
who do not come up to a very high level of patience, self-restraint, morality
and chastity? Will the responsibility of their licentious living not rest on
the law that closed for them the lawful way, pushing them into a life of sin
and corruption? The inevitable conclusion from these stark facts seems to be
that in every case of impotency, whether it existed before marriage or developed
later, the woman should have the right to go to the court. If after a reasonably long medical treatment,
the maximum limit for which should be a year, the defect persists, separation
must be made.
The view of the jurists is that if, after the year-long treatment,
the man is able to have intercourse, even partially, the woman loses the right
to separation for good. This view again is unduly harsh. The correct course of
action will be to rely on medical opinion. If the expert opinion is that medical
treatment has failed to restore his potency enough to fully discharge his
conjugal rights, separation must be made.
The jurists have placed the castrated and the impotent in the same
category and have allowed the former a year for medical treatment. The reason
given is that there is hope of his developing ability for intercourse. But it
has been proved by medical research that there is no difference between the
castrated and the man whose private parts have been amputated. A man's private
parts may have been cut off or his testicles may have been destroyed; in both
cases he is equally unfit for sexual intercourse. No medical treatment can
restore potency to such handicapped males. The castrated belongs to the
category of the amputated private parts, not the impotent.
11. MADNESS
The ruling given by Hazrat Omar is that a year's time should be
allowed for the medical treatment of the mad man. If treatment fails to cure
him in a year, the wife should be separated. The ruling has been accepted by
jurists, with the addition of sub-clauses:
Imam Abu Hanifah's view is that this ruling applies to the man who
was mad before marriage and was unable to have an intercourse after marriage.
In this respect he is as good as impotent. That is why he gets a year for
medical treatment.
According to Imam Muhammad, if madness is fit-ful, a year's
medical treatment will be allowed. But if it is perennial, the fellow is as
good as the man without private parts requiring immediate separation.
Imam Malik is of the view that the medical treatment of madness,
whether fitful or perennial, should get a year, if there is no cure at the
year's end, separation should be made. Maliki jurists have added conditions:
1. If the man was mad before marriage and the woman knowingly
married him, she cannot demand separation.
ii. If she gets to know of his madness after marriage and declares
her consent to live with him, she cannot demand separation.
iii. In case madness affiicted the man after marriage, the woman
can demand separation only if she did not declare her consent to live with him,
nor allowed him, of her own free will, to have intercourse with her.
These conditions are of the same nature as the conditions
discussed in impotency. They find no support from the Quran and Sunnah and are
open to serious objections. If a woman is kept forcibly tied to a mad man, the
objectives of the Shari'ah, the civilization and morality can never be
realized. If she knowingly married him, relinquishing the dower is enough
punishment for her. If she came to know of his madness after marriage and
consented to live with him, but later the resultant physical and mental agony
became unbearable, she committed no crime for which she should be condemned to
life-long union with a mad man, exposed to sorrow, misery and great hazards. In
case the man was affiicted with madness after marriage and the wife, out of
loyalty and noble feelings of fellowship, did not abruptly leave him but chose
to look after him and share life with him, this should not be made a ground for
denying freedom to her when the madness of the man becomes unbearable for her.
Such a ruling can only put an end to all humane feelings between the spouses.
The intention of the law will seem to be that the moment a woman notices
symptoms of madness in her husband she should forthwith forget all previous
love and compassion and curtly leave the husband to his fate, knowing full
well,that if the madness assumes an intolerably perennial form, the feelings of
loyalty and fellowship now welling up in her heart will ultimately spell
disaster to her putting her to untold agony.
The imposition of such conditions projects an exaggerated image of
the man and metes out a harsh treatment to the woman. If a woman becomes good
for nothing, becomes mad or contracts a loathesome or dangerous disease, the
man can divorce her. Or he can marry a second wife and lead a happy life. But
if the husband becomes affiicted with any of these handicaps the woman can
neither divorce him nor marry another man during his lifetime. Separation is the
only remedy for her. When this sole remedy is hedged round with restraints
which, in most cases, leave no way out for her, it offends the justice and
balance that are characteristics of the Islamic law. In all such cases the
guiding light for us should be the Quranic verses which assert that marriage
should be a relationship of kindness. The bond of marriage should be free from
insulting behaviour and excesses which threaten the violation of the limits of
Allah. A marriage bond that is devoid of these characteristics should end in
decent separation. Who can say that anything can cause a greater harm and
injustice to a woman than to forcibly keeping tied down, against her will, to a
man afflicted with madness, venereal disease or leprosy? Is there anyone who
does not realize what evil temptations surround a woman forcibly pushed into
such desperation and how hard it is for an average woman to spurn these
temptations?
12. THE MISSING HUSBAND
There is no definite mandate in the Holy Quran regarding a missing
husband, about whom nothing is known. Qutni has reported a Hadith:
"The Messenger ofAllah said: 'The wife of the man who is
missing and about whom nothing is known remains the wife of that man till facts
about him have come to light.".
The Hadith has been reported by Siwar bin Musab and Muhammad bin
Shurjail Hamdani, both of whom are not very reliable.
Ibn-e-Abi Hatim's comment about Shurjail is: He reports from
Mughira things that are unreliable and false. Ibn-ul-Quttan's remarks about
Siwar are: He is even more unreliable than Ibn-e-Shurjail. Thus this Hadith is
not to be relied upon. Moreover, the divergent views held on this issue by
notable luminaries like Hazrat Omar, Hazrat Usman, Hazrat Ali, Ibn-eAbbas,
Abdullah bin Masood and Abdullah bin Omar are further evidence that neither
they nor any other companions had any knowledge of the above quoted Hadith. Had
any of the companions known the ruling of the Holy Prophet (peace be on him) on
this issue, he must have come forward to clarify the difference of opinion.
Shurjail has reported this Hadith from Mughira bin Shuba, who was a well-known
figure in the days of Hazrat Omar and Hazrat Usman and occupied the high office
of a governor. If Mughira had known this Hadith, how would he have allowed
Hazrat Omar and Hazrat Usman to decide cases contrary to this Hadith? This
solves the point that there is no mandatory law on this issue. Scholars have to
be guided by their best judgement to decide the case about a missing husband.
Differences exist on this issue in the opinions of the companions,
their successors and the leading jurists. In the opinion of Hazrat Omar, Hazrat
Usman, Ibn-e-Omar and Ibn-e-Abbas, the wife of the missing husband must wait
for four years. The same view has found favour with Saied Ibn-e-Musayyab,
Zuhrie, Nakha'i, Ata, Makhool, and Shaabi. Imam Malik also adopted the same
view. Imam Ahmad also leans towards this view.
On the other hand, Hazrat Ali and Ibn-e-Masood are of the view
that the wife of the missing husband must wait until he is found or his death
is confirmed. This view has been adopted by Sufyan Sori, Imam Abu Hanifah and
Imam Shafi'i. Concerning the period of waiting, Hanafi jurists suggest that the
wife of the missing man should wait till the other men of his age living in the
community are alive. Some have fixed the period of waiting making the maximum
age expectancy as their yardstick. For example, if a man was missing when he
was thirty, his wife should wait, according to some for 90 years, according to
others 70 years, according to still others 60 and according to some others 50
years and according to the most considerate 40 years. The difference in the
length of period is the result of the difference in the life expectancy of man
assumed by different jurists. So if the woman was 20 when the man disappeared,
according to-the most lenient view, she will have to wait till she is 60. She
will then be free to marry a man of her choice.
After taking a look at the matter in the light of the Quranic
principles we feel that the view adopted by Hazrat Omar and his followers
sounds correct. It is in keeping with the spirit and the nature of the Islamic
law as well as with its concern for justice and balance. Take for example the
permission to marry four wives. It is also accompanied by the warning: "Do
not totally lean to one of them, leaving the rest suspended." The warning
highlights the Quran's abhorrence of leaving a woman suspended. When such is
the case in the existence of the husband, how can the Quran approve of keeping
a woman suspended indefinitely, when the husband is missing? Discussing the
case of women left alone in their beds as punishment, the Quran puts the
maximum limit at four months. Beyond this limit, divorce becomes a necessity.
This mandate underlines the fact that Islamic law does not approve of depriving
a woman of sex to the extent that causes her harm or drives her to transgress
Allah's limits. Another Quranic mandate warns: "Do not retain them to
cause them harm." The clear implication is that marriage should not become
a source of affront and injury. If the wife of the missing husband has to wait
for the rest of her life, the harms inflicted on her can well be imagined. In
this background take a look at the mandate: "If there is a danger that
Allah's limits will be transgressed there is no harm if they separate."
This amounts to observing Allah's limits above the retention of the marriage
tie. Who can deny that a woman, whose husband has been missing, will find it
increasingly hard to stay within the limits of Allah? Having a sharp glance at
these mandates and their implications for the social good, one can easily
understand that it is wrong to keep the wife of a missing husband in suspense
for an indefinite period.
13. MALIKI RULINGS ABOUT THE MISSING HUSBAND
The foregoing discussion explains why Hanafi jurists have
preferred to follow Maliki rulings in their verdicts on cases of missing
husbands. Let us take a look at the details of Maliki ruling.
Malilki jurists have divided these cases into three categories,
with different rulings for each:
i. In case the missing husband has not left behind enough property
for the wife to live on, the court will not tell her to wait but, after a
probe, the court will forthwith use its powers to grant her divorce or it will
tell her to make divorce self-imposed. This Maliki ruling is followed by
Shafi'i and Hanafi jurists as well, the reason being that, according to them,
the absence of living expenses is in itself a sufficient ground for separation.
ii. If the husband has left behind property on which the woman can
live, the court will look into the material details of the case, and if the
woman is youthful and keeping her suspended for long can expose her to sin, the
court will tell her to wait for some months or for a year, as it may deem fit.
This stand is endorsed by the Hambali jurists as well. In extreme cases, the
jurists of both Maliki and Hambali schools consider immediate separation also
permissible. They also agree that to determine the exposure to sin, it is not
necessary that the woman should declare bluntly that the retention of the
marriage tie was sure to drive her into sin. It is for the court to take a
probing look into the circumstances of the woman. Her age, her upbringing, her
social environment and the period she has already spent in waiting, and other
allied factors should guide the court to form its opinion as to how long she
can wait without any danger to her morals.
iii. In case the missing husband has left behind living expenses,
and there is no fear of the woman getting exposed to sin, the case can belong
to anyone of the following clauses.
a) If the man is missing in a Muslim country or in some other
civilized country, where a search for him can be made, the woman will have to
wait for four years.
b) In case he was lost on the battlefield the woman will have to
wait for a year, after every possible search has been made for him.
c) If lost in a local riot or a fight, every possible search should
be made for him, when the rioting ends. If no trace is found, the woman will
immediately begin the appointed term of waiting that follows the death of
husband.
d) In case he has been lost in the wilderness where it is
impossible to make a search for him, the woman will have to wait till such time
when her husband was to reach the normal life expectancy. Normal life
expectancy has been placed at 70, 75 and 80 years by different jurists. But as
clarified above the wait can last only as long as the living expenses last and
also only as long as the woman is not exposed to sin.
The trend among Hanafi jurists is to ignore these conditions and
to give a ruling of four years' wait in all cases of this category. This is not
right, especially in the present age which has generated and spread a host of
demoralising entertainments. To insist that every woman with a missing husband
should wait for four years, runs counter to the objectives of the Shari'ah.
Modern Muslim society has lost the cohesion of its early days. Restraints
imposed by Islam to tame carnal lusts of the flesh have been swept away by the
adoption of anti-Islamic customs and practices. Pornographic literature and
pictures, vulgar film songs, obscene and disgusting T.V. programmes disguised
as cultural shows, all of them exude, round the clock, torrents of lurid stuff
shows. Originating from overcrowded, busy cities and towns these soul-killing
currents rush, unobstructed to the remotest parts of the country, engulfing and
demoralising everybody within reach. The law of the land permits prostitution.
The veil, prescribed by the Shari'ah, is almost gone. The free intermixing of
the sexes naturally excites passions. But it has become almost a routine and
one finds it hard to lead a life of piety and restraint. In such a social
setting, if a young woman whose husband is missing approaches the court after a
wait of two or three years, how far will it be advisable to tell her to wait
for another four years? This is a hardship, the evil consequences of which will
not only afflict one individual woman but also infect the whole society. So the
right thing is to adopt the Maliki ruling with all its stipulations. That will
enable the court to take into account the age, the social environment and the
waiting period she has already spent. The decision thus arrived at will be in
keeping with the spirit of the Shari'ah.
14. RETURN OF THE MISSING HUSBAND
An important question relating to the issue is the return of the
missing husband after the expiry of the waiting period fixed by the court.
Hazrat Omar's ruling on this point is that in case the man is
back home before the woman has remarried he shall get his wife.
But if she has already remarried another man the former husband shall have no
right on her even if she might have had no intercourse with the second man.
This ruling was upheld by Imam Malik and is followed by Maliki jurists.
Hazrat Ali's ruling is that a woman will remain the wife of the
first husband even if she has already married another man and has borne
children. Not only this, the second husband shall also have to pay dower to the
woman, even if he has not had a single intercourse with her. Imam Abu Hanifah
accepted this ruling. His argument is that Omar himself came round to Ali's
view towards the end of his caliphate. However, Imam Malik asserts that no
change in Omar's views on this point has been proved.
The ruling of Hazrat Usman is that on the return of the missing
husband, the first husband should be asked whether he wants the wife or the
dower. If he chooses to return the dower he paid, or if he gets the dower
remitted (if it is yet to be paid), the second husband shall retain the wife.
If the first husband insists on having the woman back, the woman will have to
get a separation from the second husband and complete the period fixed for a
divorced woman. Then she will be handed over to the first husband and will get
dower from the second husband. There are some reports purporting to Hazrat
Omar's approval of this course of action but Imam Malik rejects these reports
as untrustworthy.
A careful look at the different points of view seems to suggest
that the ruling of Hazrat Omar followed by Imam Malik is the best solution to
the problem. The weighty argument in its favour is that no sensible man will
care to marry a woman when there is the constant fear of her first husband coming
back and taking her away, leaving his children motherless. In addition to this,
he will have to pay the dower. The imposition of such conditions is sure to
cause great harm to the woman. The ruling actually boils down to a lingering
misery, which does not end even after the long period of waiting. The freedom
of action won after spending the agonising period of waiting becomes erroneous
if the threat of the sudden appearance of the first husband still hovers over
the woman's head.
15. INVOKING ALLAH'S CURSE
If a husband accuses his wife of adultery or declares that her
offsprings have not been sired by him, in both cases, he has to invoke Allah's
curse on himself if the charge be false. A case of this nature was brought
before the Holy Prophet (peace be on him). Addressing the two spouses, he
repeated thrice:
"Allah knows full well that one of you is in the wrong. Will
anyone of you come out with repentance?"
Both stood speechless. So acting on the Quranic mandate, he told
the husband to declare on oath four times that the charge he had made against
the woman was true. This done, he told him to invoke Allah's curse and wrath on
himself if he be a liar. In a like manner the woman was made to declare on oath
four times that the charge against her was false. The fifth time she was made
to invoke Allah's curse and wrath on herself if she had lied. At this the Holy
Prophet observed: "This is the procedure to follow, till the Last Day, to
separate a couple each one of whom invokes Allah's curse. There can never be a
union between them after this separation." The husband submitted that the
woman be told to return the dower she has received. The reply he got was: 'You
cannot get back the dower. If your accusation is true, the dower is the
compensation for the good times you have spent with her. If the accusation be
false, the right to get back the dower recedes still farther."
This precedent yields the following corollaries:
The invoking of the curse should be in the court. The spouses
cannot go through this legal requirement between themselves or in the presence
of relatives. Nor can such a private function bring about separation.
Before calling upon the couple to invoke curses, the court will
give them time to express repentance, if anyone of them chooses to do so. If
both of them stick to their stands, Allah's curse shall have to be invoked.
i. After both spouses have solemnly gone through the act of
invoking Allah's curse, the Qazi would declare that they stand separated. The
popular view is that the act of invoking curses automatically brings about the
separation. But Imam Abu Hanifah's opinion is that the verdict of the Qazi is
essential. All reliable reports reaching us from the Holy Prophet
(peace be on him) support Abu Hanifah's view. In all such cases decided by him,
the Messenger of Allah announced separation between the spouses after they had
invoked curses upon themselves. This implies that he did not consider the
invoking of curses just by itself sufficient to bring about separation.
ii. The separation resulting from invoking of curses is
everlasting and the man and woman cannot remarry. Even though the woman gets
married to another man and is later divorced by him, she can never become
lawful for the man who invoked a curse to prove his charge against her.
iii. Invoking of a curse does not affect the dower. It has to be
paid irrespective of the truth or falsehood of the husband's charge. If it has
been paid, the husband cannot get it back.
If a man withdraws a charge after bringing it against his wife, the
popular view is that he should receive the punishment prescribed for slander.
In the opinion of Abu Hanifah the man should not be scourged but receive a
prison sentence. On the other hand if the woman, after invoking a curse,
confesses her guilt, according to Imam Malik, Shafi'i and Hambal, she should be
stoned to death. According to Imam Abu Hanifah she should be put in prison,
which is more reasonable point of view. However, in the existing circumstances
any of these punishments for a person going back on his solemn invoking of
Allah's curse stand ruled out. For the time being the practicable
Shari 'ah law for such cases should be as follows: If the man
withdraws the charge, the woman should have the right to sue him for slander.
If the woman confesses her guilt, she should be deprived of dower. This should
continue as long as we are under a non-Muslim government and are unable to
enforce the Shari'ah.
16. THREE SIMULTANEOUS DIVORCES
Separating a woman instantly by the simultaneous pronouncement of
three divorces is a sinful act, on the basis of explicit Quranic mandates.
There exists some difference of opinion among jurists as to whether the three
simultaneous divorces amount to a single reversible divorce or to three
irreversible divorces. But all agree that this act amounts to an innovation and
is a sin. All declare that this mode of divorce runs contrary to the mode
prescribed by Allah and His Messenger (peace be on him). This practice strikes
at the root of the social welfare which the Shari'ah seeks to promote.
According to a Hadith a man came to the Holy Prophet (peace be on him) and told
him how he had pronounced three instantaneous divorces. The Prophet got upset,
stood up in anger and said: "Is the Book of Allah, the Almighty, being
made a plaything, while I am still among you?" Other reports make it clear
that the Messenger of Allah declared the act a sin. It is reported of Hazrat
Omar that if someone informed him that he had pronounced three instantaneous
divorces, he scourged him with his whip. This is a proof that the act is not only
sinful but also punishable.
In our times three instantaneous divorces, under the stress of an
emotion, have become a widespread practice. As the emotion subsides, shame and
regret grip the guilty conscience of the man and a search starts for some
excuse to undo what has been done. Someone takes cover behind false oaths to
deny having divorced; another one arranges a spurious second marriage of the
wife, followed by divorce and remarriage with himself. Still another one
suppresses the report of his divorce and carries on conjugal relations with the
wife as before. In this way the attempt to avoid the consequences of one sin
leads to the commission of many more sins. To put an end to these evil
practices, it seems necessary that effective restrictions be placed on the
three simultaneous divorces so that people find themselves restrained from this
hasty act. One way could be to give the woman, thus divorced, the right to
claim damages amounting to at least 50 per cent of the dower. The Ulama and
legal experts can also devise other preventive measures. In addition to this
wide publicity needs to be given to the fact that three simultaneous divorces
is a sin. This knowledge alone can deter a good many men from being hasty in the
matter of divorce.
References
1. This means that the woman becomes unlawful for her Muslim
husband but the separation does not give her the right to marry another man.
2. In his book Mabsool Imam Sarkhasi has advanced only one
argument in support of this ruling. He argues that Hazrat Aycsha was married to
the Holy Prophet (peace be on him) when she was a minor. When she attained
adulthood and came to the home of the Holy Prophet (peace be on him) he did not
ask her whether she approved of the marriage lie or not. This question must
have been asked if Ayesha had possessed the right to approve or disapprove.
When the Quranic verse 'Takhyeer" was revealed, she was asked to exercise
her right and she did it. One can say that despite all his frantic search, this
incogent argument is all that Imam Sarkhasi has been able to cull from the
Quran and the Hadith to bolster his ruling. It is simply amazing that a scholar
of his stature should treat so tightly an important issue affecting the Jives
of generations of women. He seeks to prove that Ayesha had forfeited her right
to exercise consent because her father had given her in marriage, when she was
a minor. On the face of it, this plea is not warranted by facts. It could have
been valid if Aycsha on attaining adulthood had disapproved of the marriage
solemnized by her father, or at least if she had demanded her right to exercise
approval and the right had been denied on the ground that she was married by
her father when she was a minor. There is not the slightest hint from Ayesha
throughout her life that she had been denied the right to exercise her consent.
The mere fact that there is no hint anywhere that Ayesha was given the right to
express her approval has been made the basis of the entire argument and the ruling
has been given that no minor girl married by her father or grandfather has the
right, on attaining majority, to exercise the option of retaining the marriage
tie.
Sarkhasi overlooked his logical snag that if an event is not
reported it does not mean that it did not take place. A still greater fallacy
is the non- cognizance of the patent fact that on attaining adulthood Ayesha
was not only pleased with but very proud of being the wife of the Messenger of
Allah. Her approval of her father's choice was too evident to miss. So even if
the formality of exercising the right of approval was not gone through, how can
it be concluded that Aisha did not possess the right and so no other girl, who
has been given in marriage by her father or grandfather, possesses the right to
express approval or disapproval on attaining adulthood. Sarkhasi supports his
strange logic by observing that in case Ayesha had possessed the right of
expressing approval, the Holy Prophet (peace be on him) must have told her to
exercise this right even without her asking for it, as he did when the
'Takhyeer" verse was revealed. The fact is tacitly blinked that in the
latter case, the Messenger of Allah carried out a definite Divine command,
whereas he was under no such obligation in the former case.
The Ulema choose to follow such Faulty reasoning for fear that
whoso dares to reject it will be branded a non-conformist and an innovator.
3. This Hadith sheds very significant light on the true nature of
dower. Gentlemen, those of you whose dower is fixed, according to the current
practice, far above their means are requested to persuade their wives to reduce
them to an amount easily payable right away, or in instalments. Pious wives are
also advised to agree to the reduction. Every God-fearing Muslim should hasten
to get rid of the excesses of dower as soon as possible. Dower is a debt. If it
is not paid, whether deliberately or through neglect, and you pass away, the
burden of debt remains on you. The Holy Prophet refused to offer funeral
prayers for such a man.
4. Instead of the court using its power to separate the woman, it
is preferable that the court should tell the woman to separate herself from
him. The well known case of Bareerah is the precedent. The Holy Prophet's reply
to her was: You are the mistress of yourself. If you like, you may live with
your husband, or if you like, you may separate yourself from him.
8. THE EPILOGUE
This book has explained in detail the legal objectives and
principles of marriage in Islam. An effort has been made to solve, in the light
of the teaching of the Quran and the Sunnah, the problems that cause trouble
and frustration to the Indian Muslims. There is no pretension that the
exposition of the Islamic law in these pages is perfectly correct, nor any
insistence that the solutions suggested for various problems should be accepted
as they are. No human opinion can be free from error and no one can claim his
plan to be as perfect and acceptable as the word of Allah. The purpose behind
the lengthy discussions in the foregoing pages was nothing beyond a clear
exposition of the Islamic marital law, as propounded in the Holy Quran and the
Sunnah. The corollaries drawn from these sources of law by the leading
companions of the Prophet (peace be on him) and jurists have been examined and
in their light, rulings have been deduced from them to serve the needs of the
present times. It is now up to the people of learning and insight to take a
look at our proposals with a broad vision and with the inspirational guidance
from the Book and the Sunnah. Any errors, wherever they be, should be
corrected. If any merit is found, it should not be ignored solely on the ground
that the writer was born, by ill luck, in the 14th century A.H., instead of the
4th century A.H.
In the end, we want to make brief comments on some law bills
prepared by some gentlemen from Hyderabad (Deccan) and from British India.l
From our point of view, all these bills are inadequate and fall short of our
modern needs. They are too limited to eradicate the evils born of the faulty
Anglo-Muhammadan law, the precedents set by non-Muslim courts over a century
and of the existing judicial system. Even if it is laid down that some matters
should be settled according to the Maliki School in place of the Hanafi School
of Jurisprudence or for the solution of some problems even if the corollaries
are briefly explained, it will afford little guidance to judicial officers who
have no breadth of vision about the Shari'ah law and our schools of
jurisprudence. Their minds are still in the grip of the spirit of the
Muhammadan law. To set this chaotic situation right, it is particularly
necessary that a comprehensive code of the Muslim marital law should be
compiled. The point has already been hinted at. This is not an easy job. It needs
the time and labour of many scholars. To accomplish the task a select group of
scholars will have to put in collective efforts for quite some time. They
cannot discharge this duty by quoting verbatim from the books of the ancients.
As caretakers of the destiny of the Ummah, they are under obligation to come
forth with an interpretation of the Shari'ah law, which not only realises the
objections of the Shari'ah but also effectively protects the faith, the morals
and the worldly interests of the Ummah.
References
It is only the content of these law bills that is being taken into
account.
Whether these legislative bodies are competent to pass an Islamic
law is under discussion. From the Islamic point of view, any law passed by
these legislatures, even though in conformity with the Shari'ah to the letter,
cannot be accepted as an Islamic law.
9. Appendix 1
A VERY IMPORTANT QUESTION
A very important printed question has been received from Delhi.
The point at issue in the query has assumed all the importance because our
leaders seem inclined to solve the issue in an un-Islamic way.
The question and the reply to it are given below:
Experts in Islamic learnings and the jurists of the Shari'ah law
are requested to give well reasoned replies to the following questions in the
light of the Quran, the Sunnah and Islamic jurisprudence.
i. If a non-Muslim officer or a non-Muslim arbiter dissolves the
marriage of Muslim spouses according to the Islamic law, or a non-Muslim
officer or a non-Muslim arbiter in a case of the proved cruelty of the husband
to the wife, divorces the woman on behalf of the husband just as a Muslim Qazi
can do this in certain cases, will the marriage tie be dissolved and will the
divorce take place? Will the woman get the right under Islamic law to look upon
the dissolution of marriage and the separation made by a non-Muslim as
legitimate divorce under Islamic law and marry a Muslim husband, on the expiry
of the fixed period of waiting?
ii. If the answer to the above question is in the negative, it
means that according to the Shari'ah the dissolution of marriage and the
pronouncement of divorce by the verdict of a non-Muslim, is void according to
the Shari'ah and the woman remains tied to the marriage bond, with the first
husband. In such a case if the woman marries another man and he knows that she
got her divorced through a non-Muslim officer or a non-Muslim arbiter, will
that marriage be void or not? And will it not be sinful for her, despite her
marriage to the second man, to have conjugal relations with him? Will not the
Shari'ah look upon both of them guilty of fornication?
iii. In case the marriage with the second man be void will not the
children born of this marriage be illegitimate? Will not these children be
disentitled to be heirs to the property of this second husband?
ANSWERS
A fundamental error in this question is that it relates only to a
non-Muslim officer or a non-Muslim arbiter. It should have related to a
judicial system arbitrarily set up by man, entirely shutting out God. This is a
system that bases its decisions on manmade laws. It should have been asked
whether Divine law recognises this judicial system or not. Another error is
that the question concerns only the dissolution of marriage and separation.
Basically the nature of these issues is in no way different from any other
issues. The decisions of non-Muslim court, in the eyes of the Shari'ah, about
not only cases involving marital problems but cases of all kinds are un-Islamic
decisions. Islam does not recognize a government arrogating to itself absolute
sovereignty, cut off from Allah, the Almighty, Who is the real Lord of the
universe. Islam does not also recognize a law enacted by a human being or a
group of human beings, entirely on their own. A court set up in a dominion of
Allah Who is the true Lord and the Ruler, without His permission and by people
who are in revolt against Him is not competent in the eyes of Islam, to hear
and decide any cases. In the eyes of Islam the status of these courts is the
same as the status of courts set up in the British Empire without the
permission of the British Crown. The British law will look upon the judges and
the functionaries of such courts as rebels. The lawyers appearing in these
courts and the people bringing their cases to them will also be guilty of
rebellion. In much the same way, Islamic law looks upon the entire judicial
system existing in the country as criminal and rebellious, because it has been
established without a charter from Allah Who is King of the earth and the heavens,
and because it enforces a law enacted by someone else instead of Allah. Such a
judicial system is an embodiment of sin whose judges, functionaries, lawyers
are criminals; people bringing their cases to these courts are criminals. And
all the decisions made by these courts are void. If any of their decisions in a
case happens to be in keeping with the Shari 'ah, it is still wrong because
revolt lies at its root. Even if these courts cut off the hands of thiefs,
scourge adulterer or stone him to death, inflict Islamic punishment on the
drunkards, in the eyes of the Shari'ah, these so-called Islamic decisions will
not cleanse these criminals of their guilt. On the other hand, these courts
will be declared guilty of cutting off hands and other punishments without any
authority. It is because they subjected the servants of Allah to powers that
Allah's law had not conferred on them.
The nature of these courts remains unaltered, even if a so-called
Muslim occupies the chair of the judge. Anyone who derives his judicial powers
from a government in revolt against Allah, hears cases and enforces manmade
laws, is not a Muslim, at least in his capacity as judge. He himself is a
rebel. How can his decisions be immune from being nullified.
The same legal position remains unchanged even if the system of
government is democratic and Muslims are associated with it, as a minority or a
majority; the entire population may be Muslim and may have adopted a secular
and democratic system of government. But any government based on the doctrine
that its people are sovereign and possess the right to make laws for
themselves, discarding the Laws of Allah, is, in the eyes of Islam, a rebel
government. It is as good as a government set up by people in revolt against
their king, since such a government can never be recognized as a legitimate
government by the king, in the same way, a democratic government of this type
can never be acceptable to Allah's Laws.
Views expressed above are fully supported by the Quran. In
compliance with the demand of the correspondent, some of the Quranic verses are
quoted below:
i. According to the Quran all sovereignty belongs to Allah. He is
the Lord of all creation. He alone has the legitimate right to rule. It is
fundamentally wrong for anyone, except Him, to have the right to rule in His
dominions and enforce the mandates of someone else. "Say: O Allah! Owner
of Sovereignty, You give sovereignty to whom You please and You withdraw
sovereignty from whom You please." (3: 26)
"Such is Allah, Your Lord; His is the sovereignty." (35:
13) "He has no partner in the sovereignty." (17: 111) "But the
command belongs only to Allah, the Sublime, the Majestic." (40: 2)
"And He makes none to share in His government." (18: 26)
"Beware! His verily is all creation and commandment" (7:
54). "They ask: Do we have a part in the conduct of the matter? Tell them
that the power to conduct an affair wholly belongs to Allah." (3: 154)
ii. On the ground of the above stated principles man has been
totally deprived of the power of lawmaking. Being a part of creation, man is
only a servant and a subordinate worker. His main duty is to carry out the
mandates issued by the Sovereign Lord. If an individual or an institution,
himself or itself, makes laws by ignoring Allah's Laws, or adopts some other
manmade laws and enforces it, he is a rebel and an infidel. Anyone who seeks
his verdict and acts on it is also guilty of rebellion.
"And the things that you talk about, do not fabricate
falsehood about them and say: This is lawful; this is unlawful." (16: 117)
"Follow that which has been sent down to you from your Lord
and follow no false protecting friends beside Him." (7: 3)
"Whoso does not judge by the law that Allah has revealed:
such are disbelievers." (5: 144)
"Have you not seen those, who claim that they believe in that
which has been revealed to you and in what which was revealed before you. Then
they go for judgement in their disputes to false deities, although they had
been ordered to reject them." (4: 60)
The right form of government and the right judicial system for
mankind can only be the one which is based on the law revealed through the
prophets. This is the Khilafat, the Kingdom of God.
"And each messenger that We sent, was sent that he should be
obeyed in obedience to Allah's Commandment." (4: 64)
"Lo! We have revealed to you the Scripture with the truth
that you may judge between mankind by the light that Allah has shown you."
(4: 105)
"So judge between them by the light Allah has revealed, and
do not follow their desires. And beware of them lest they lead you astray from
some part of what Allah has revealed...... Is it a judgement of the times of
pagan ignorance that they are seeking?" (5: 49, 50)
"O David! We have made you a viceroy in the earth. Therefore,
judge aright between mankind and do not follow base desire, lest it should
beguile you from the way of Allah." (38: 26)
Any government and all courts which rest on a law other than the
one revealed by Allah, through His prophets, are seditious, despite differences
in their nature. All their acts are baseless and spurious and their commands
and decisions are without a legitimate ground. How can they claim to be
legitimate governments or legitimate courts without being granted a charter by
the true Sovereign Lord?2 In the eyes of Allah's Law, all their acts and
verdicts are void. Faithful believers in Allah can accept their de facto
existence, but cannot accept them as de jure means of administration. They
should in no way obey the rebels of their true Lord and have their affairs settled
by them. Those of them who do so, are outside the fold of believers despite all
their claims to Islam and the faith. It is simply irrational that a government
should declare a group of people as rebels and then also recognise the
jurisdiction of these rebels over its subjects and order them to carry out the
rebels' commands.
"Say: Shall We inform you who will be the greatest losers
with regard to their deeds? It is the ones whose efforts went utterly waste
(because all their efforts related to this world) and they consider that they
are doing good. They are the people who disbelieve in the revelation of their
Lord and in the meeting with Him. So all their achievement has become void and
shall carry no weight on the Day of Resurrection." (18: 104, 105)
"And such were Aad; They refused to obey the mandates of
their Lord, disobeyed His Messenger and followed the command of every stubborn
tyrant." (11: 59)
"And verily We sent Moses with Our Revelation and a lucidly
clear warrant to Pharaoh and his chiefs. But they followed the commands of
Pharaoh, although Pharaoh's command was no right guidance." (11: 96, 97)
"And do not obey him whose heart We have made heedless of Our
rememberance, who follows his own lust and who is lost to all sense of
truth." (18: 28)
"Say: My Lord forbids only indecencies, such of them as are
apparent and such as are hidden within, and sin and wrongful oppression, and
that you associate with Allah those (deities or rulers) for which Allah has
revealed no authority." (7: 33)
"Those whom you worship beside Him are only names which you
have named, you and your fathers. Allah has revealed no sanction for them. All
authority belongs to Allah alone. He has commanded you that you worship none
except Him." (12: 40)
"And whoso disputes with the Messenger after the guidance of
Allah has been made clear to him and follows other than the believers' way, We
push him on to the path to which he himself has turned, and hurl him into Hell,
a hapless journey's end." (4: 115)
"But nay, by your Lord, they will not believe in truth until
they make you judge of what is in dispute between them." (4: 65)
"And when it is said to them: Come to that which Allah has
revealed to the Messenger, you see the hypocrites turn away from you in
aversion." (4: 61)
"And Allah will not give the disbelievers any way of success
against the believers." (4: 141)
These are self-explanatory verses of the Holy Quran, free from any
ambiguity. If the central article of faith on which the moral and cultural
structure of Islam has been raised, had any ambiguity in it, the very
revelation of the Quran would have been without any purpose. That is why it has
been so explicitly and definitely stated that no room is left for forming two
opinions about it. This lucid exposition eliminates the need for turning to
Hadith or Islamic jurisprudence.
The entire edifice of Islam rests on the rock foundation that a
thing for which Allah has revealed no sanction is groundless and anything that
has been established without caring for Allah's sanction is void according to
the Shari'ah. So there is no need to question as to whether or not the
decisions of secular courts on a particular matter are enforceable according to
the Shari'ah. If a child is born illegitimate, it is pointless to ask if its
hair are also illegitimate. Since the pig is unlawful, every hit of its flesh
is unlawful. It amounts to ignorance of Islam to ask if the decree of secular
courts on matters like the dissolution of marriage, separation of spouses,
declaring a divorce, are enforceable or not. The ignorance is all the more
serious when the question is about non-Muslim judges. It implies that the
decision would have been enforceable if the secular courts had been headed by
the so-called Muslim judges in place of non-Muslims. Pork cannot become lawful
by labelling it mutton.
The acceptance of this fundamental doctrine of Islam certainly
makes the lives of Muslims living in a secular state very hard. But you cannot
modify the basic doctrine of Islam to make the lives of Muslims easy. If Muslims
want to enjoy the ease of living in secular states, it is up to them. But they
have no right to alter the fundamentals of Islam or changing Islam into
something else. The opportunity of apostasy is there; nothing can stop one from
it. It is easy to give up Islam and adopt some easier way of life. But if they
mean to stay within the pale of Islam, the right Islamic way for them is not to
seek excuses for amending the fundamentals of Islam so that they can live in
ease in a secular state. There is just one way open to them: wherever they may
be, they must strive with all their might to change the views of the state and
to reform the principles of government.
Tarjman-ul-Quran
August, 1940.
References
1 Deducing judicial details from Allah's mandates, adhering
strictly to the spirit of the law, is a different matter. It is not under
discussion here. Moreover, believers have the right to formulate laws or
matters on which there exists no mandate in the Quran and the Sunnah. But this
task has to be accomplished strictly in keeping with the spirit of Islam and
the Islamic law. The fact that there exists no Quranic mandate for the solution
of a problem grants the believers the authority to draw up the necessary
rulings.
2 Where there is a government which believes in Allah to be the
Sovereign Lord; looks upon itself as His viceroy (not independent), believers
in the Holy Prophet and the Quran and agrees to function in accordance with the
Shari'ah, such a government or such a court shall be regarded as the holder of charter
from the Lord of the worlds. This character is there in the Quran: Judge
between them by the law revealed by Allah.
10. Appendix 2
DIVORCE AND SEPARATION LAWS IN THE WEST
"Things are distinguished through their opposite," is a
popular saying. The foregoing pages have given details of the Islamic marital
law. However, the beauty of this law cannot be fully appreciated without a
comparative study of other marital laws of the world, which claim to be
progressive. The study will also show what blunders are made by man when he
ignores Allah's guidance and becomes his own law-maker.
An important characteristic of the Islamic law is its extreme
concern for moderation and balance in its principles and basic mandates. On the
one hand it is guided by a lofty moral ideal, and on the other it makes due
allowance for human weaknesses. On the one hand it seeks to promote the
cultural and national welfare, on the other, it protects the rights of the
individual. It keeps its gaze fixed on factual positions but does not lose
sight of possibilities that might develop any time into realities. In fine, it
is such a moderate law that does not allow any of its principles and mandates
to overdo or to fall short.
Islam gives full consideration to all the necessary aspects of law-making,
theoretically as well as practically. The balance between its various aspects
is so accurate that no undue leaning toward one side or an unjust neglect of
the other side can be cited. That explains the secret of its success over a
span of fourteen centuries, in different times, in different cultural
environments and with peoples of different intellectual levels and varied
temperaments. No individual or collective experiment has found any of its basic
mandates wrong or needing an amendment. Not only this. The human mind, despite
all its efforts, has been unable to suggest for this law a substitute which, in
moderation and balance, could even partially match it.
This quality of the Islamic law can only be the product of Divine
wisdom and insight. Because of his inevitable handicap and natural limitations,
man can never have the power to encompass all aspects of a problem or take an
equally searching look both at the present and the future. Nor can he
simultaneously take a look at the actual and potential or make a probe into the
apparent and the hidden traits of his own self, or of mankind. He cannot fully
rise above the influence of his environments, his passions, his physical
aptitudes, his mental handicaps and scholastic shortcomings. So, he is incapable
of making a rule which can hold good with all fairness and balance, in all
circumstances, at all times and for all needs. That is why all manmade laws
lack balance; the theoretical aspect may get over-emphasis, or the various
aspects of human nature may not get due attention. The rights and duties of
individuals may not be justly specified or the rights and limitations of the
individual and society may be unjustly demarcated. The failings of manmade laws
get exposed in every new experiment, with the changing circumstances and
changing times. This forces man either to amend the laws or to pay lip service
to them but discard them in practice.
This basic difference between Divine law and manmade law is today
too glaring to miss, except by the blind or the myopic. Some principles of
Islamic law which were under bitter attack till recently because of prejudice
and ignorance, and some theories and rules of manmade laws were extolled to
counter the Islamic principle, the testimony of actual facts proves irrefutably
today that Islam's verdict is infallible. As against this all manmade laws
turned out to be wrong and impracticable. In the imaginary world they dazzled
the eye, and even today they are not openly disowned, but in practice, people
are violating these laws, which till recently were looked upon as sacrosanct
and beyond amendment. The world is slowly swinging towards the principles and
rules prescribed by Islam, but only after a very bitter experience.
Take, for example, the problem of divorce. Till very recently the
Christian world has heaped ridicule on Muslims on this issue. Several of the
awe-stricken Muslims had failed to provide any answer. However, facts have
proved that it was not wise on the part of Christianity to make the sacred tie
of marriage unbreakable, and make no provision in the law for divorce, khula,
dissolution of marriage and separation. This error was the product of
immoderation of the human mind. Instead of promoting morality, humaneness and social
welfare, the Christian marital, law started breeding forces of disruption.
"Let man not pull apart those whom God has joined."
(Mathew 6: 19)
The Christian world misinterpreted this sage advice of Christ. In
place of making it a basis of moral guidance, it was made the basic principle
of the marital law. And what was the outcome? For centuries the Christian world
clung to this impracticable law, violating it under various pretexts and
tricks. Ultimately the evil habit of law-breaking grew so strong that the moral
scruples that were more sacred than the marriage bond began to be violated
openly and quite frequently. At last people felt compelled to make some faulty
amendments in the law which had been mistaken for a Divine law. But by the time
this reform was made, the habit of law-breaking had taken such firm roots in
the Christian mind that it had lost all respect for things enjoined by God.
Consequently, the faulty amendments in the marital law triggered off a spate of
divorces, dissolutions and separations in the Christian world. And such was its
intensity that the sacred institution of the family has been threatened. In
England there were just 166 separations in 1871. In 1933 the number soared
above four thousand. It meant that out of every 79 couples united by God, one
had been separated by man. In the U.S.A. there were 35 thousand separations in
1886. In 1931 the number of sacred ties torn asunder has risen to over 183
thousand. Almost the same situation prevails in other Western countries.
The advice given by Christ has a parallel in the Quran too:
"Those who break the covenant of Allah after ratifying it,
and tear apart what Allah ordered to be joined, and who make mischief in the
earth, they are the ones who are losers." (2: 27)
To warn the Jews against their hard-heartedness and their frequent
resort to divorce, Jesus had to declare:
Whoso divorces his wife for any reason other than adultery, and
marries another wife, commits adultery. (Mathew 9: 19)
For the same reason, the Holy Prophet (peace be on him) declared
divorce to be the most hateful of the permissible things. He also warned that
the curse of Allah falls on the man who divorces only for the gratification of
his lust.
However, these lofty moral ideals were meant only for men aspiring
to moral heights; they were not meant to transformed in a law. The Holy Prophet
(peace be on him) was not only a teacher of morality but also a law-giver. So
he enunciated moral laws and also explained the extent to which they should
influence law, so that balance may be maintained between morality and human
nature. On the contrary, Jesus was not a law-giver. His mission in this world
ended before he could enforce any law. So we find nothing in his sayings except
the basic moral precepts. If these precepts were to be applied to practical
problems of life, it could only be done in the light of the Mosaic law. But the
Christians came to think or were led to think by St.Paul that the moral
teachings of Jesus nullified the Mosaic law and the law-making was the business
of the Church and not the business of God and His Messenger.
This was the colossal error that drove the Church and its
followers into perpetual abyss. The two thousand year history of Christianity
bears witness to the fact that the Church never succeeded in making even a
single sound law on the basis of the fundamental principles of the faith
enunciated by Jesus. At last Christian nations were forced to abandon these
principles .
In his denouncement of divorce, Jesus had made adultery a
justifiable reason for it. This exception was a hint that divorce was not an
absolutely evil thing. It was an evil in the absence of a legitimate cause. The
Christians did not take the hint and some of them even came to look upon the exception
as a later addition. Their argument was that the exception contradicted the
warning of Jesus: Let man not pull apart those whom Allah has joined. Some even
deduced from this warning the fantastic conclusion that in the event of the
wife's unfaithfulness, the spouses should be separated but the marriage tie
should stay i.e. neither one of them should be free to have a second marriage.
For centuries Christians remained bound by this law. This law along with other
laws was responsible for the spread of immorality in the Christian world.
Advanced countries of the West now base their laws on rational
principles, quite free from the influence of the Church. Interestingly, even in
England and the United States, judicial separation means that the spouses
should part company but should not be free to have a second marriage. Such is
the manifestation of the failings of the human mind! The canon laws of the
Roman Catholic Church were framed on the basis of the aforesaid principle. They
totally ruled out divorce or the dissolution of marriage which could enable the
spouses to remarry. However, six reasons for separation were proposed:
1 Adultery or Homosexuality.
2 Impotency
3 Cruel treatment
4 Disbelief
5 Apostasy
6 Detection of some extra-legal blood relationship between
spouses.
The legal remedy suggested in all these cases was that the spouses
part company and live as celibates. No sane man can look upon this as a
sensible remedy. Actually this was not a remedy but a punishment that deterred
most of the people from taking separation cases to the court. If some
unfortunate couple was separated, the spouses had either to spend their lives
as monks and nuns or to submit to a life of sin.
To avoid this harsh and impracticable law the Christian clergy
invented several legal tricks with which the church dissolved the marriage of
miserable spouses. One of the tricks used was that the life-long promise of
union made at the time of marriage should be declared to have been made
unintentionally. The real intention was stated to be companionship only for a
part of life. Under the cover of this excuse, thus the marriage was annulled.
That meant that their marriage never took place, their conjugal relationship
thus far had been unlawful and their children were illegitimate. So the remedy
was more humiliating than the malady.
Compared to the Roman Catholic Church, the law made by the
Orthodox Eastern Church, which had had more opportunities of contact with the
Islamic Law, is a better and more practicable law. According to it the marriage
tie can be dissolved on the following grounds:
1. Adultery.
2. Apostasy.
3. Dedication of life by the husband as monk.
4. Rebellion.
5. Desertion.
6. Impotency.
7. Madness.
8. Leprosy.
9. Long imprisonment.
10. Intense mutual hatred or incompatibility.
But this law is unacceptable to the Western countries. They
believe in the rulings of the Roman Catholic Church, which categorically
declares that nothing but death can break the marriage tie. This ruling leaves
no room for independent thinking or even taking a critical look at another
Christian school of thought. Speaking to the Royal Commission in 1912, Bishop
Gore opposed the borrowing of some rulings from the Orthodox Eastern Church on
the ground that the Anglican Church was a follower of the Roman Catholic
jurisprudence. In the Lambeth Conference of 1930 it was unequivocally declared
that the marriage of a man or a woman whose former spouse was still alive,
could not be solemnized. The last reform that was accepted by joint committee
of Convocation in 1935 was that a marriage could be dissolved if one of the
spouses had been suffering from a venereal disease before marriage, or if the
woman was pregnant at the time of marriage but concealed, this from the
husband. This implies that in case of any such contingency arising after
marriage there is no way out for either one of the spouses.
This was the chaotic picture of the marital law of the followers
of the faith which has given the world a long chain of scholars and jurists.
However, its earliest leaders misinterpreted the meaning and legal implication
of a saying of Jesus Christ. That fact left an indelible mark on the Christian
faith and its jurisprudence. The march of centuries, changes in environments,
the intellectual and mental evolution, the studies of human nature, centuries
of experience, the clear verdicts of reason, the records of better legal
systems, and, in short, the cumulative effect of all these factors has failed
to erase the indelible mark on the Christian faith. Despite all their efforts
spread over a millennium, the best minds of the Roman Catholic Church have not
been able to give their law the right balance and moderation.
Now let us take a look at the achievements of the enlightened
Western law-makers of vast learning and experience, who, unfettered by
religious restraints, have framed laws for their people.
Before the French Revolution most of the European countries were in
the grip of the law made by Roman Catholic Church. This law, combined with
other laws of similar nature, had given birth to a host of moral and social
evils. During the revolutionary period, free thought and free criticism gained
momentum. Their first target was the sorry state of the law. Feeling that the
clergy could, in no way, be persuaded to accept reform, people threw off the
yoke of the Church. This took place in France in 1792. By and by the movement
spread to other countries. England, Germany, Austria, Belgium, Holland, Sweden,
Denmark, Switzerland, all turned their back on Church laws and framed their own
marital laws. These laws provided for legal separation and dissolution of
marriage and also for divorce.
This widespread revolt of Christian nations against the canon law
was the direct result of the narrow-mindedness, ignorance and prejudice of the
clergy. They insisted on oppressing the people, with their religious authority
and impracticable, unnatural and harmful laws. The law was not Divine. It was
the product of the independent judgment of the clergy. But the priests declared
it sacrosanct and beyond amendment as though it were God-made. They simply
refused to see or comprehend its glaring errors, harms and irrational aspects
because they were scared of forfeiting their faith, even by a shadow of the
possibility of ascribing error to the rulings of St. Paul and other giant
figures of early Christianity. They were opposed even to borrowing useful
elements from the jurisprudence of another Christian sect. The reason for this
was not the superiority of their own law, but the fact that they were the
followers of the Western Christianity. This unreasonable attitude of the clergy
left no option for the Western nations except to break away from the canon law
which was considered above reform, despite its apparent errors and harmfulness.
This mentality of the clergy is not just limited to the marital
law. The truth is that it is this mentality that has driven European nations to
atheism, secularism and hedonism.
Having got rid of the canon law, marital laws formulated by the
Western countries over a century were the fruit of the best efforts of hundreds
and thousands of minds. Again and again amendments have been made in these laws
in the light of experience. In spite of all this, their law lacks the balance
and moderation of the law gifted to the world by the unschooled Prophet of
Arabia (peace be on him). The strange thing is that even after doing away with
the canon law, the people of the West have not been able to erase from their
minds the concepts inherited from the early founders of the Roman Catholic
Church.
Let us take the example of England. Before 1857, adultery and
cruelty were the only two grounds on which legal separation could be made.
Divorce, freeing the spouses to remarry, was forbidden. In 1857, desertion or
suspension of conjugal relations was also made a ground for separation provided
the desertion lasted two years or more. This law also legalized divorce,
freeing the spouses to remarry. But the husband could not use the right of
divorce on his own. He had to use it through the court. In the same way if the
woman wanted divorce, she too had to have recourse to the court. But there was
just one way of getting a decree of divorce. If the husband wanted to divorce,
he had to prove the unfaithfulness of the wife. In case the wife wanted
separation, she had to prove the man's unfaithfulness and cruelty or desertion.
This provision of law forced men and women desiring to get a divorce, to accuse
the other spouse of unfaithfulness, no matter what the actual motives were.
Proving allegations in the court, easily led to fabrications of charges and the
undeserved defamation of innocent people. The court became the centre for
washing dirty linen. The press reports of divorce cases amounted to the
publicity of obscenity. The law permitted husbands, if they so wanted, to
receive damages from the paramours of their wives. Such damages, of course,
amounted to the price for illicit relations with the wife.
In 1896 the court was given the power to make the erring husband
pay his divorced wife alimony. In 1907 the court was given unconditional power
to make a husband liable for alimony to the divorced woman, if it thought fit.
Of course, this amounts to partiality toward women. It upsets the balance of
the law. In the absence of any existing relationship, it is clearly unfair to
burden a man with the living expenses of a woman on the basis of a previous
relationship.
The law of 1895 declared that in case of a woman leaving her
husband because of his cruelty and taking up separate residence, the court
would debar the husband from visiting her. She would be entitled to alimony and
to keep her children with her. The law also said that in case the cruelty and
the negligence of a husband drove a woman into illicit relations, the man's
plea against her for a divorce would not be admissible. The implications of the
law are ridiculous. It boils down to this: A woman proves the cruelty of her
husband, takes up separate residence along with her children, is free to
receive paramours, and the husband is debarred from visiting her. All the same
the poor man has to pay alimony of this merry-making wife and has no way of
getting rid of her. This was the law framed by some of the best minds of
England after half a century of labour.
A Royal commission was set up in 1910 to deliberate on the marital
relations. The commission submitted its report at the end of 1912, after three
years of deliberations. Some of its recommendations were:
1. The husband and the wife should be at par regarding the grounds
for divorce. The grounds on which. a man can be granted divorce should also be
the ground for the woman to get a divorce. For example, adultery, even if
committed just once by either one of them, should lead to a divorce.
2. The following were added to the previous grounds for divorce:
3 Desertion for three years. Ill-treatment. Incurable madness for
five years. Hopeless drunkenness, punishment resulting from the commutation of
the death sentence.
4. On the ground of drunkenness the spouses should be separated
for three years. If the addiction still persisted, the aggrieved spouses should
be entitled to a decree for divorce.
5. If one of the spouses is afflicted with madness or a venereal
disease and the fact has been hidden from the other spouse or the woman is
pregnant and has hidden the fact, it should be considered a sufficient ground
for the dissolution of marriage.
6. Reports of divorce cases could not be published during their
proceedings. Later the court may permit publication of only those parts of the
proceedings which it deems fit.
Out of these proposals only the first one, which is most
irrelevant and uncalled for, was accepted and published in the Matrimonial
Cases Act, 1923, and the rest have never been given legal shape or sanction
simply because they did not find favour with the chief priest of the Canterbury
and some other influential figures there. The bankruptcy of the mental
faculties of the best brains of England can well be imagined from the fact that
they were just unable to understand and distinguish the legal and natural
aspects of adultery. The faulty system of law-making led to the manifold
increase in cases of divorce claims from women which disturbingly alarmed the
courts of England. As a result, Lord Merziville had to take strong preventive
measures in 1928.
In European countries where the Roman Catholic Church is quite
influential, the marriage bond is still considered unbreakable with the
exception of only a few cases where the separation can take effect after legal
proceedings but with the condition that the spouses will neither be able to
reunite or have second marriages. The laws of Italy and Ireland are made
according to this system. France has also passed through many ups and downs
with regard to the marriage laws. The divorce has been made extremely easy and
simple after the French Revolution. A few restrictions were promulgated under
the Code of Napoleon which were totally banned in 1816 only to be restored in
1884. But several laws were enacted in 1886, 1907 and 1924 according to which
following conditions were laid for granting divorce:
They were, adultery or fornication by any of the spouses, cruel
behaviour, any objectionable act on the part of anyone of the spouses which
reflected on the honour of the other, refusal by anyone of the spouses to
fulfill the marriage rights, drunkenness and punishment by the court which
caused dishonour.
Besides, the court-effected divorced woman was also liable for
300-day iddat, waiting period, which was fake imitation of the Islamic ruling
on the subject. The laws of divorce in other European countries are not in consonance
with one another either. The only common factor among them are that they are
faulty and imbalanced. The spouses in Austria,Belgium, Switzerland and Norway
can secure divorce only after mutual consent and agreement. And this type of
divorce is the faulty model of the Islamic way of divorce from woman,
i.e.,khula. In Germany, the separation of the spouses, or living apart without
any reason, does not amount to invoking divorce as long as this separation
continues for a year. This kind of separation is a faint reflection of Eila or
leaving alone for a specified period. The waiting period for separation in
Switzerland is three years and five years in Holland, while the marriage laws
of other European countries are silent on this subject.
Sweden has fixed six years waiting period for the missing husband,
and ten years in Holland, while other countries are still silent on this topic
too. On madness of the husband, Germany, Sweden and Switzerland have granted
three years each but other countries have given no legal ruling on this
subject. While Belgium has granted ten months as waiting period for the
divorced woman, and apart from France and Belgium, no other country has fixed
any waiting period for second marriage for the woman.
In Austria, five years of imprisonment of anyone of the spouses is
enough for claiming the divorce. But in Belgium the condition is life
imprisonment for such a claim.
Such are the laws and rules of marriage and divorce among those
nations of the world which are considered most civilized. A cursory glance at
these legal systems indicate that none of these countries has been successful
in devising complete but balance and moderate legal system regarding the
marriage bond. On the contrary, whoever looks dispassionately and honestly at
the Islamic laws of marriage and divorce he would agree and endorse the fact
that the Islamic laws have reached the pinnacle of uprightness, total balance,
have consideration of man's nature, uphold safety of social system and acquire
full control of the regulations of the various issues and problems relating /to
marital life. As against this, the laws of the Western countries, individually
or collectively, come nowhere near the Islamic laws. Interestingly, the laws of
the European countries were devised by the best of the brains of those
countries in the nineteenth century, whereas the Islamic laws were formulated
and devised by an unlettered and simple man, the Prophet (peace be upon him),
who never consulted any parliament, legislature, law-making body, any
commission or body of experts or legal luminaries for formulating or
promulgating them. And if anybody, despite this prominent difference,
challenges and dares to say that the Islamic laws are not made by God but purely
man- made, we would opine that such a person should have proclaimed godhead for
himself. But there can be no clearer proof of truthfulness of the Prophet than
that he never took credit for the noble and miraculous achievement which is
beyond even man's comprehension. Rather he declared openly and repeatedly that
he did not invent or present anything of his own; whatever he has presented to
the world was given to him by God through Divine revelation. If a man continues
to deny the necessity of Divine guidance and insists on being his own leader
and torchbearer, stupidity is the most suitable term fitting him.
COMMENTS