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Divorce

"Out of all lawful things, divorce is the most hateful to God. "  The prophet (Abu Dawood; Al-Hakim)

The similitude of divorce in surgery is the operation of amputation. It should never be undertaken except as a last resort. Islam enjoins tolerance and good companionship in the family. The Quran enjoins men towards their wives:

"And live with them on a footing of kindness and equity. If you take a dislike to them it may be that you dislike a thing and God brings about through it a great deal of good." (4: 19)

Every serious attempt at reconciliation should be made, and the husband and wife are recommended to each choose a representative to look into the matter and try to patch up the rift.

"If you fear a breech between them twain, appoint arbiters one from his family (side) and the other from hers; if they wish for peace, God will cause their reconciliation. For God has full knowledge and is aquainted with all things." (4:35)

But if the rift between them proves to be beyond reconciliation, then divorce is a lawful option. To deny them that option is a cruelty, and marriage becomes both a prison and a hypocricy. No law or institution can enforce the compassion and mutual regard so essential to family life. Some churches allow dissolution of marriage only under horrendous circumstances such as adultery and what a high price it is if either party is forced to secure freedom by committing or phaking adultery.   Many countries following a no-divorce doctrine at last saw that it might be a compelling necessity and legislated for divorce inspite of the stand of the church.

Divorce is accessible to both husband and wife. To the husband access to divorce is direct, on the assumption that on the whole man is less emotionally inflammable than woman, besides being subject to the deterrant of the financial loss inevitably incurred by the husband if divorce occurs. The woman's access to divorce is insured by any of three ways. The first is to put a clause in the marriage contract putting the right of divorce in her own hands whenever she wills, or attaching it to a specific condition such as the marriage of the husband to another woman. The second is through the procedure of 'Khul', securing the consent of the husband in lieu of an agreed compensation for financial losses her marriage cost him. Usually this entails exempting him from the postponed portion of the dower, and giving back any valuables he had given her. If the husband is non-responsive, the judge would overrule him. The third path is resort to the court and filing divorce case. Needless to say that outside these three methods, mutual consent remains the basic and most peaceful first line.  The fact that Islamic divorce is not the monopoly of the court, obviates the hateful necessity of having to disclose family secrets and having to hurt one another during the attempt to prove to court their divergent points of view.

Divorce, to be religiously recognized, should not be carried out while the wife is menstruating (or in the puerperium) but during her clean period and providing no sexual intercourse has takne place in that particular cycle.   The man should be acting upon his free will, and not compelled or threatened.   He should be in his normal senses and not overtaken by psychological shock or anger.

Some men unfortunately abuse their right of direct divorce, thus committing a sin and targeting themselves to the prophet's prayer: "May God curse every oft-taster (marrier) oft-divorcer."

After divorce the marriage is not immediately dissoluted. A 'waiting- period' (idda) tallows, during which the woman's residence and sustenance remain the responsibility of the husband. This waiting period subserves two functions. The one is to give a chance to acertain whether or not she carries a pregnancy from her husband. The other is to give a chance to review their positions, and perhaps they then regret the divorce and change their opinion about it. During the span of the waiting-period (idda) the divorce is revokable and the husband can declare that he is reclaiming her again as his wife.

The duration of the waiting-period (idda) varies in accordance with certain considerations. If marriage had not been consummated, no waiting-period (idda) is necessary:

"O you who believe: When you marry believing women and then divorce them before you have touched them, no period of idda (waiting) have you to count in respect of them: so give them a present and set them free in a graceful manner." (33:49) If the divorcee is in her child-bearing period of life, then her idda is three complete menstrual cycles:

"Divorced women shall wait concerning themselves for three menstrual courses. Nor is it lawful for them to hide what God has created in their wombs if they have faith in God and the Last Day. And their husbands have the better right to take them back in that period if they wish for reconciliation', (2:228)

If the wife proves pregnant, then she should remain in idda until the pregnancy is concluded. If she is not at menstruating age (menopausal or has not attained menarche yet) then the idda is three months.

"Such of your women as have passed the age of monthly courses, for them the prescribed period, if you have any doubts, is three months, and for those who have as yet no courses (it is the same). For those who carry (life within their wombs), their period is until they deliver their burden (pregnancies); and for those who fear God, He will make their path easy." (65:4)

It is to be noted that a pregnancy may be concluded in childbirth or in miscarriage. In the latter case, care must be taken lest only one of twin fetuses is miscarried and another remains in utero, as happens on few occasions. Resort may be made to examination by ultrasound if available and if there is such suspicion.

A final type of idda remains that is appropriate to be mentioned although not a divorce idda. This is the idda of the widowed woman who is not pregnant, and its duration is four months and ten days.

What if a man revoked the divorce during the idda took his wife back, but after some time he divorced her for the second time? The same procedure is followed again and he has a chance to revoke the second divorce and reclaim his wife a second time. But this is his last chance, or else divorce becomes a matter of play. If he divorces her a third time then he cannot at all go back to her. Not unless she happened to marry another man, and happened by true reason and not by fabricated planning to be divorced. Then her first husband may propose to her again afresh, as if he never married her. If she consents, a marriage contract will be established anew. It is sinful to solicit a man to marry and then divorce her.  It should be a serious honest marriage, with the intention of durability, and the marriage must be consummated.

"A divorce is only permissible twice: after that the parties should either hold together on equitable terms or separate with kindness" (2:229)

"Then if he divorces her (irrevocably), he cannot after that re-marry her until after she has married another husband and he has divorced her..."  (2:230)

A divorce has the right of custody of her children, who are to be supported by their father, until they grow up to an arbitrary age defined by legistlation in various communities.

Both divorce and polygamy have been traditionally popular topics to attck Islam by western communities.  At the present time the incidence of divorce in leading western countries is much higher than it is in Muslim communities.   As for polygamy, it is not within the sacred institution of marriage but in the context of social acknowledgement of sexual lisence for married and unmarried men and women.  A mistress (or many) is acceptable but a second wife is not.  One of the practical jokes of westernized life was reported in a so called Muslim country that outlawed bigamy.  A man was accused of having a second wife, and his defense counsel at court tried in every way to prove that the other woman was a mistress and not a wife, in which case there would be no offense.  But the court was not convinced that the woman was a mistress, and the husband was convicted.