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Islamic Ideology ( 4 Jan 2009, NewAgeIslam.Com)

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RECLAIMING WOMENS’ RIGHT TO DIVORCE IN ISLAM

By Hasan Mahmud,

Director, Sharia Law

Muslim Canadian Congress, Canada

 

“If our religious leader didn't grant the divorce, then under Sharia I could not remarry", she said. Under Sharia law her husband had to consent to the divorce, even though he had abandoned the family four years earlier and married another woman. The imam had to “negotiate” with the husband’s demand for $100,000 and all her jewellery in exchange for his consent to end the marriage. The best that [give her name] could do was to borrow $5,000 to pay her husband, agree to give up child-support payments and alimony, and not to take legal action against him in the future. This time he was “generous” and agreed to release her.

 

This case happened not centuries ago in the Middle East, Pakistan or Somalia, but recently, and in Canada. It represents the centuries-old “Muslim woman's Sharia ordeal”.<[i]  But Europe is no better. In the UK, the Islamic Sharia Council in the London district of Leyton has dealt with more than 7,000 divorce cases, ninety-nine percent of which were initiated by women “seeking relief”.<[ii] Parvin Ali, founding director of the Fatima Women's Network in Leicester said, "There is no outside monitoring, no protection, no records kept, no guarantee that justice will prevail." Such dire lack of accountability may be someone’s interpretation of Islam but can hardly be called a court of justice.

Under Sharia Law, only husbands have the right of a quick and simple divorce - as simple as releasing an animal bound with a rope. For a wife, seeking a divorce means a struggle through the courts using the law of “Khul”, described as: “For the purpose of dissolving a connubial connexion in lieu of a compensation paid by the wife to her husband out of her property…….A release for payment means separation in return for remuneration given to the husband….”.<[iii]    

 

Historically this law has resulted in grave injustices to women; we will look at some documents from 17th century Sharia Courts later. It does not take a rocket scientist to realize how much agony and torture a woman must go through before she decides to break up her home. A few years ago the Egyptian government passed a law that, if a wife was willing to repay the bride-money, the court could dissolve a marriage without husband’s consent. In only six working days a staggering 3,000 women applied in Cairo alone. 

 

Believers will willingly follow religious laws even when they suffer. That is why a call for justice and humanity is not enough to end these violations of human rights. We can however show that the Prophet gave women the absolute right to end an unwanted marriage even if it went against the Prophet’s plea and a loving husband:

 

Narrated Ibn 'Abbas: Barira's husband was a slave called Mughith, as if I am seeing him now, going behind Barira and weeping with his tears flowing down his beard. The Prophet said to 'Abbas, "O ‘Abbas! are you not astonished at the love of Mughith for Barira and the hatred of Barira for Mughith?" The Prophet then said to Barira, "Why don't you return to him?" She said, "O Allah's Apostle! Do you order me to do so?" He said, "No, I only intercede for him." She said, "I am not in need of him".<[iv] 

 

It could not be clearer. On the other hand we cannot find a single case where the Prophet forced a wife to stay in an unhappy marriage. A girl reported to the Prophet that her father had forced her into a marriage without her consent. The Prophet in clear words gave her the independent and absolute right to continue or end the marriage. Sahi Ibn Majah. Even the Prophet’s wives had the right to leave him without any middle-man:

 

Narrated Aisha: Allah's Apostle gave us the option (to remain with him or to be divorced) and we selected Allah and His Apostle. So, giving us that option was not regarded as divorce.<[v]

 

There are other examples.

 

Narrated Ikrima: The sister of Abdullah bin Ubai narrated (the above narration, 197) with the addition that the Prophet said to Thabit's wife, "Will you return his garden?" She said, "Yes," and returned it, and (then) the Prophet ordered Thabit to divorce her……. Narrated Ibn 'Abbas: The wife of Thabit bin Qais came to Allah's Apostle and said, "O Allah's Apostle! I do not blame Thabit for any defects in his character or his religion, but I cannot endure to live with him." On that Allah's Apostle said, "Will you return his garden to him?" She said, "Yes."<[vi].

 

The Quran nowhere says that women do not have the right to divorce. Rather it instructs men to release wives whenever they so wish it:

 

“Ye are forbidden to inherit women against their will. Nor should ye treat them with harshness, that ye may take away part of the dower ye have given them, - except where they have been guilty of open lewdness”.<[vii] 

 

The word “inherit” does not mean inheriting a woman like property. It was a cultural linguistic expression of that desert society where only slaves could actually be inherited in the modern sense. “Dower” (bride-money) cannot be given to anyone except wives. That is why many Islamic scholars including leaders of Sharia Law agree that this verse talks about wives.<[viii]  Many of them translate the verse as: - ‘It is not lawful for you to try to hold your wives against their will”<[ix] or “it is not lawful for you to take women as heritage against (their) will”.<[x]

 

Nevertheless, we see that Sharia Law stipulates: “A husband has the authority to take his wife back after one or two divorces, even if she does not want to come back”.<[xi]

 

This, then, is the attitude of Sharia Law to women. These laws, which are called “Allah’s Law”, not only torture Muslim women but are a violation and affront to the Quran and the Prophet. 

 

There is another aspect to Khul. If the husband applies his authority of instant divorce he does not have to pay alimony. If he divorces in three progressive steps he has to pay the unpaid amount of the bride-money, child-support and alimony (wife-support, for 3 months only). So he tortures the wife to push her to initiate Khul so that he doesn’t have to pay child-support or alimony and he is also paid for giving consent of divorce. This is happening today just as it happened in olden times in the Islamic Caliphate.<[xii] Many court cases have been recorded which show that the wife was required to sign a form from the Sharia court giving up child-support and alimony and paying more money. This is happening today to Muslim women not only in the Muslim world but in the West.

 

This is mockery of justice and of Islam. Muslim women believe that these laws as Allah’s Laws, submit to them willingly, and yet suffer unnecessarily. Muslim societies will never progress until they realize that these Sharia laws are un-Islamic in both spirit and content – and abandon them.

 

Muslim societies are slowly evolving on women’s issues. Some rebel Muslim women defied the All India Muslim Personal Law Board for not addressing women-issues of Sharia Law. They created their own All India Muslim Women's Personal Law Board and new Nikahnama and even conducted “All Women Marriage Ceremony” with no man was present except the groom. It raised many eyebrows and even fury of clergies but the women were not daunted. Modern Nikahnama (Marriage Document) has an added line where it is written that the husband “gives” the wife the right to divorce. In that case the wife does not have to go through Khul and can divorce on her own. It seems a compromise between orthodox and progressive forces of Muslim societies. If by any chance the marriage is conducted without the husband’s signature in that the particular clause then the wife has no right to initiate divorce but has to go through Khul. The latest Marriage Contract proposed in the UK gives the wife the same right to divorce as the husband.

 

The good news is that it is entirely possible to do so by following the Quran and the Prophet.

 

<[i] <http://www.theglobeandmail.com/servlet/story/RTGAM.20050908.wxsharia08/BNStory/National/

<[ii] <http://www.iht.com/articles/2008/11/19/europe/19shariah.php

 

<[iii] Shafi’i law Reliance of the Traveler – n.5.0, Hanafi Law Hedaya page 112, Codified Islami Law Vol 1

 

         Law#355, Sharia the Islamic Law – Dr. Abdur Rahman Doi page 192 etc.

 

<[iv] Sahi Bukhari< Vol 7 – 206 – Dr. Muhsin Khan, Medina University

 

<[v]  Sahi Bukhari  Vol 7-188

 

<[vi] Sahi Bukhari Vol 7-198

 

<[vii] Yusuf Ali– 4:19 - http://www.usc.edu/dept/MSA/quran/004.qmt.html

 

<[viii] Gender Equity in Islam – Dr. Jamal Badawi –

 

       <http://www.scribd.com/doc/4931814/Gender-equity-in-islam -By-Jamal-Badawi, The daily Inqilab 04

 

       January 2006 etc.

 

<[ix] http://www.crescentlife.com/thisthat/feminist%20muslims/4_34.htm

 

<[x] <http://www.aaiil.org/text/hq/trans/ch4.shtml

 

<[xi] Codified Islamic Law Vol 1, Law # 352

 

<[xii] Women, the Family and Divorce Laws in Islamic History – Amira El Azhary Sonbol 

 

URL: http://www.newageislam.com/islamic-ideology/reclaiming-womens’-right-to-divorce-in-islam--/d/1097


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