..::Women’s Right of Divorce in Islam

..posted by Pakistani Law Firm…Free Legal Advice

Many Muslim countries are endorsing gradual yet distinguished measures towards progress in various areas such as economy, technology, education, health, etc. However, one finds few remarkable attempts to resolve intricate legal practices that continue to prevent Muslim women and children from basic rights.

Islam introduced its sacred book ‘The Quran’ to be applied to all nations at all times while embracing a notable level of lenity and mercy which have often been dismissed to permit profoundly prejudiced laws and practices furthering women’s inferiority. Our present times still witness frequent incidents of agonized Muslim women in courts seeking divorce and child custody despite the unambiguous teachings of a tolerant faith that established a fair treatment of wives and mothers.

This article will offer progressive outlooks responsive to women’s needs in an effort to revive the benevolent spirit of Islam. Let us first acknowledge that Quran and Hadith (Prophet’s sayings) have only been read through a masculine lens which discounted women’s needs in many instances. Present-day family laws in Muslim countries have been devised based on those inadequate ‘male-dominated’ interpretations, dating back to the 10th and 12th centuries, long after the Prophet’s death. Today’s family courts are crowded with exhausted Muslim women pleading for help in getting a divorce, and claiming child custody and/or alimony.

It is no surprise to anyone that countless Muslim women waste years in pursuit of their basic right to end a marital relationship while their male counterparts may terminate it with the mere utterance of an undisputed word “I divorce you.” Quranic verses and Hadiths that tackled divorce and child custody issues deserve a contemporary contemplation in an effort to propose equitable perspectives that could enhance the lives of women and children in Muslim societies.

I will reflect on the unorthodox insights by a number of researchers and scholars to challenge the current immature practices in quest for a just explanation of divorce and child custody laws in Islam. Allow me first to give a concise depiction of the existing procedures.

Current divorce laws vary among the major Islamic schools. Women’s rights to divorce differ significantly from nation to nation, and from one time period to another. According to all schools, men have an absolute and unilateral right to divorce, unless otherwise specified in the marriage contract.

Women can only seek divorce through court proceedings by convincing the male-dominated judiciary of their claim (court decisions can be appealed by husbands inclined to prolong the process for provocative reasons). The grounds for a woman’s entitlement to divorce are more or less limited to the cases where the husband is proved to be impotent, to have a contagious disease, or a serious defect, or to be abusing her with life-threatening conduct. Other dissonances when claimed by the wife may not be persuasive reasons for separation.

A wife can ask for divorce from her side, but that is generally only possible if she returns her dowry “mahr” and any supplementary property specified in the marriage contract to her husband. But when the husband demands a repudiation, the divorced wife keeps her dowry. It is worthy to note here that even in the case of a woman-requested divorce, the husband’s consent remains necessary, otherwise the divorce settlement can take years leaving the woman in legal limbo, oftentimes with no financial support, and unable to remarry until the case is decided.

Following divorce, the wife is given child custody (unless she re-marries) until the child reaches a certain age, at which point the matter will be settled by the couple or by the courts. In many instances divorce is revocable until the wife completes her “Iddah” – a waiting period a wife must observe after divorce where she is prohibited from marrying another man to determine whether she is pregnant and avoid doubts of paternity. Interestingly, during this period the husband may resume marriage without the wife’s acknowledgment or consent!

The verses discussing divorce are discussed in the Holy Quran (Surah: 2, Verses 227- 233):

(227) «And if they decide upon divorce (let them remember that) Allah is Hearer.

(228) Women who are divorced shall wait, keeping themselves apart, three monthly courses…and their husbands would do better if they desire reconciliation. And they (women) have rights similar to those (of men) over them in kindness, although men have a degree over them…

(229) Divorce must be pronounced twice and then (a woman) must be retained in honor or released in kindness. And it is not lawful for you that you take from women anything of that which you have given them; except (in this case) when both fear that they may not be able to keep within the limits imposed by Allah. And if you fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself…

(230) And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has wedded another husband. Then if he (the other husband) divorce her it is no sin for both of them that they come together again if they consider that they are able to observe the limits of Allah…

(231) When you have divorced women, and they have reached their term, then retain them in kindness or release them. Retain them not to their hurt so that you transgress (the limits). He who does that has wronged his soul. Make not the revelations of Allah a laughing stock (by your behavior),…

(232) And when you have divorced women and they reach their term, place not difficulties in the way of their marrying their husbands if it is agreed between them in kindness….» Looking at these extensive verses addressing divorce matters one would easily grasp that divorce is not explicitly deprived from women. There appears no clear-cut indication which sanctions a unilateral divorce by men without efforts for reconciliation. In fact, equality is clearly affirmed in verse 228, where women are granted similar rights to men.

In fact, a number of Hadiths indicate women’s equal right to divorce. In one instance the wife of Thabit bin Qais, Habibah bint Sahil, told Prophet Mohammad (Peace be Upon Him) ` Thabit and I cannot pull together.’ When Thabit approached the Prophet he told him: «this is what your wife says about you, so leave her.»

Common arguments supporting women’s disqualification for the right to initiate divorce are generally based on women’s emotional nature. However, it is believed that the Prophet himself perceived a wife’s reluctance to himself as a valid reason for separation. John Esposito of Georgetown University suggests that the evidence from the Quran and Hadith should be used as a base for legal reform to advance a vision of Islam in which men and women enjoy equal rights to divorce.

May Yamani, a Saudi scholar resident at London’s Royal Institute for International Affairs, asserts that under most Islamic family laws (for both Sunnis and Shiites), a woman cannot obtain a divorce if her husband does not give his consent, thereby violating the divine command «Do not retain them (your wives) by force, to transgress (against their rights).» Another misapprehension of divorce laws originates in the common understanding which empowers a man to unilaterally divorce his wife without providing her or anyone with any justification. This violates the Prophet’s saying which depicts divorce as abhorrent to God.

Certain Islamic schools allow the woman to stipulate her right to initiate divorce in the marital agreement. Some grant this option to be realized only when the husband decides to take up another wife. Maysam al-Faruqi of Georgetown University, interprets verse (2:228) by confirming that the «degree» that men have over women in this verse is of a socioeconomic nature. Al-Faruqi says that the «degree» or “precedence» in this verse relates to and is clarified by the subsequent verse (2:229). Allah in verse (2:229), according to Al-Faruqi, allows divorced women to keep their dowry, but “if the woman, too, wants the divorce or initiates it because she (alone or along with her husband) cannot keep within the bounds prescribed by God for proper marital behavior, then it is only fair that she should return the dowry to the husband because the divorce was not (or not entirely) his fault.» God does not force the woman to return her dowry but simply suggests that she should do so. The «precedence» that men have over women in this particular case makes them eligible to receive back the property which they had given to their wives who are now seeking separation. Al-Faruqi concludes that the verse does in no way restrict women from divorce and does not force them to return their property, rather it prompts them to embrace a courteous behavior.

As for child custody, most schools designate the age of seven for boys and nine for girls to move from their mothers’ to their fathers’ custody. Family codes in Islamic countries differ on the appropriate age of transition, but in any case they do not exceed the age of nine for boys and eleven for girls. Many jurists and religious scholars are failing to notice central teachings of the Quran and the Hadith with respect to child rearing. Verses 4:35, 17:23,24, and 31:14 contain serious emphasis on the rights of both parents over their children, while verses 46:15 and 31:14 describe mothers’ pain in carrying their children to term and in nursing and nurturing them. Moreover, one of the most famous sayings by our Prophet gives motherhood three times the recognition as fatherhood with respect to compassion and kind treatment. Hence, the priority given by Islam to mothers in what concerns their children is clearly manifested throughout various teachings. But our man made laws came to manipulate such fair and divine principles.

The pathetic and troubled status of Muslim women deserves serious reform commitments particularly in what concerns their most personal right to freedom from an unhappy marriage and their natural right to nurture their children. Contemporary divorce and custody laws in Muslim countries are first and foremost offensive to Islam’s original essence and are remarkably stacked against women requiring a complete overhaul of the current system. Two years ago, a Syrian TV series aired during the holy month of Ramadan called Asi al-Dame (Tearless). It was directed by Hatem Ali and written by his wife, Dala al-Rahbi. The series spoke about the hardships that Syrian women face in courts when iling for divorce or child custody. It also addressed the very important issue of polygamy. Readers interested in knowing more about real life scenarios should watch the series. It would mirror a truly comprehensive and realistic understanding of how difficult it is to be a woman standing before Islamic courts in the Arab World.

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