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Islamic Sharia Laws ( 12 Aug 2014, NewAgeIslam.Com)

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On Marriage and Divorce



By Maulana Wahiduddin Khan

Islam allows for only one sort of physical relationship between men and women, and that is in the form of marriage which is announced and publicly known. It is but inevitable that differences will arise between the spouses. According to Islam, the way out is not by seeking to wipe out these differences but to accept them, or seek to reconcile them or for the spouses to continue to live together despite them. Yet, it sometimes happens that the spouses are unable to properly manage their differences and so decide to go in for a divorce. Divorce has been accepted in Islam as something that can be resorted to in extreme circumstances. At the same time, Islam frowns upon divorce. According to a Hadith, although divorce is permissible, God does not like it

Very often, divorce is resorted to in anger, and this is why Islam has devised a method to control it. The Quran says that a man can give two revocable utterances of divorce, after which he can retain his wife and stay together on equitable terms or else leave her in kindness (2: 229). This is the prescribed method of divorce as laid down in the Quran. Accordingly, a man who intends to divorce his wife should issue the first utterance of divorce in the first month at a time when his wife is not undergoing her monthly menstrual cycle, and the second utterance in the next month when she is in a similar state. After this, the husband can revoke his divorce pronouncement if he wants. But in the third month if he issues the third utterance of divorce, it is irrevocable and the two can no longer be considered husband and wife.

This method of divorce over a period of three months was devised so that if the husband, in a fit of anger, wants to divorce his wife but later, when his temper cools down, changes his mind and wants to carry on with the marriage, he can do so. If he still wishes to divorce his wife, then he has to wait till the third month in order for it to take place. This pragmatic method of divorce was followed in the early period of Islam. But towards the end of the period of the first Caliph, Hazrat Abu Bakr (r.a.), some men, out of anger, began issuing three utterances of divorce in one sitting. At this time, this practice was an exception, but by the time of the latter half of the period of the Caliphate of Hazrat Umar (r.a.), the second Caliph, it had become increasingly common.

In the face of this, and in his capacity as Caliph, Hazrat Umar (r.a.) decided to take action against this misuse of the law. Hence, in the case of some men, he accepted their issuing three utterances of divorce in one sitting as constituting an irrevocable divorce. But, along with this, he also arranged for these men to be physically punished by being whipped. This practice of Hazrat Umar (r.a.) was not based on any divine revelation. Rather, it was his own executive order, the intention behind which was to reduce, through stern punishment, such a form of divorce. And this is precisely what happened as a result.

However, this method of divorce remains fairly widespread today, especially in the Indian subcontinent. Men arbitrarily utter the word Talaaq three times in one breath, often in anger. This is a misuse of Shariah laws, and is a grave sin on the part of the husband. This practice has become very common today, and it urgently demands that the position of the shariah on the matter be clarified.

I believe that there are two possible ways out of this dilemma. One way is to consider that the utterance of the word Talaaq three times by the husband in a fit of excess emotion or anger to be equal to just one utterance. If the husband was not serious about the divorce, then he can revoke it soon after. And, if he actually wishes to divorce his wife, then he should do it according to the method prescribed by the Quran, over a period of three months, as explained above.

Another possible solution of this vexed issue is to accept the method that the Caliph Umar (r.a.) allowed for by recognizing the utterance of the word Talaaq by the husband three times in one sitting to constitute an irrevocable divorce. But in this case, following the method used by the Caliph Umar (r.a.), the husband should be sternly punished. It may not be possible under the present legal system to have the husband whipped, as Hazrat Umar ordered, but an alternative is possible. And that is, just as in the well-known Shah Bano case, the Indian Ulema pressurized the Government of India to pass a special law for Muslim divorcees, in this matter, too, they should get the Indian Parliament to agree to a new law, according to which if a Muslim man utters the word Talaaq in one sitting, the divorce does take place, but for this anti-Shariah act of the husband, he must be sternly punished. He must be forced to pay a hefty penalty, the entire sum of which should be given to his divorced wife. If he is unable to pay this sum, he must be punished with rigorous imprisonment for an extended period. In this matter strict deterrent punishment is vital, and no punishment lighter than this can serve this purpose.

This is a translation of a chapter titled Nikah Aur Talaq ('Marriage and Divorce') in Maulana Wahiduddin Khan's Urdu book Hikmat-e Islam (Goodword Books, New Delhi, 2008)