“And on that fateful Day, the Messenger will say: ‘O my Sustainer! These are my people who have kept the Qur’an behind their backs.”
We should be thankful to our Creator and should feel indebted to HIM that HE sent down such a Blessed Book on HIS servant, Muhammad, peace be upon him, which is totally free from any ambiguity and vagueness. Its commandments are clear and contents are transparent. Now it is for an individual who is seeking guidance that he should establish a connection between him and the Divine words and extract the messages which it contains. The Qur'an exhorts us to be in connection with the Divine Book of Almighty and acquire and obey its messages entirely, fully, eternally, and humbly.
The relationship between a husband and wife is the most delicate one among the human bonds. A rift on petty matters between them lead to divorce, something which is growing like a cancer these days in the Muslim society. Its origin is traceable to the distance growing between the Muslims and the Qur’an. It has therefore become imperative for us to become aware of what course or guidelines to follow if some couple arrives at the point of such a dangerous situation. It is necessary to know as to what procedure to be adopted and the two spouses observe what duties they owe vis-à-vis each other. The Book of ALLAH explains all these points in a very highly structured manner through its verses.
We have also been bestowed with the awareness by our LORD that we shall not be spared of HIS wrath if we had followed the advice of some Mufti, jurist or scholar and committed certain transgression, for we would be judged for our doings and discretion. No matter when those fatwas were issued or when these books that we followed were written. The historicity of the book will not be a defense against our misdeeds. These probable hazards only urge us to be cautious and make our own objective decision before following this scholar or that book of fatwas. We must make ourselves aware of what would be the spousal rights and duties and what steps to be followed if a discord happens to arise between a husband and a wife.
Let us bear in mind that we cannot escape ALLAH’s wrath if we fail to check a fact from the Book of ALLAH or abandon the wisdom or fail to hear the voice of our conscience. Even the Book of ALLAH urges us not to fall for the content of HIS Book without applying your own wisdom. (25:73)
“And true servants of the Most Merciful are those who, when reminded by the verses of their LORD, do not fall upon them deaf and blind.”
The Qur’an is revealed from the Kind and Compassionate Creator of the Universe. It should be understood that the Qur’an is more specific in laying down detailed provisions of the rights of the weak and the underprivileged sections with extraordinary emphasis. The verses pertaining to divorce are indicative of this basic characteristic. A Divorce case will essentially have two parties, husband and the wife. The Qur’an asks the dominant partner to be more conscious of his duties towards the subordinate partner. It also lays down minimum that is expected. One can be generous over and above what has been stated. The minimum dues must be paid. If it is not fulfilled, then the complete justice will be done on the Day of Judgment. The Qur’anic verses always exhort the faithful to do a bit more than what is minimum and continually motivate the believers to be conscious of the accountability on the Final Day.
Any statute is judged by its capacity to deliver justice to the weak and the poor. If one studies the Qur’an from this angle, he would find that this aspect informs and inspires the entire corpus of laws contained in the Book of ALLAH. It always safeguards the rights of the weak, the deprived, the have-nots and the underprivileged and lays down provisions that could ensure justice to them.
The marital life is balanced along an axis that includes the rights and duties of the spouses. The Qur’an deals with the subject of disharmony or discord between the marital partners from verse 226 of the chapter 2 and lays down the rights and responsibilities of the husband and the wife in such circumstances. It guides the believers as to how the serious issues of crisis in the marital life could be resolved. Evidently, these verses desire that the believers should rise above demanding extracting their own dues and rights and should care for the other partner. They should go beyond their own selves and contribute towards the other partner’s wellbeing, even though they are on the verge of separation or are separated. We shall look into the guidance pertaining to steps to be taken prior to approaching the process of divorce.
Before we approach the subject, it is useful to be reminded that the Book of ALLAH does not list out the rights of individuals. But persuade them to fulfill their duties towards each other in order that they pay out their dues in this worldly life, lest they face the Divine wrath in the life hereafter. ALLAH will take upon Himself to get the victim’s dues to the last farthing in the life hereafter. It is why a Muslim individual should be more conscious and concerned about discharging his obligations and paying out his dues. These verses draw the attention towards this aspect and this is the essence of the Qur’anic commandments.
Divorce (Talaq) is the topic of discussion of this paper. We will objectively discuss the issue of rights, duties, issues, liabilities and dues to be settled between husband and wife during the process of divorce. It is a widely held misperception among Muslims that Talaq or Divorce is an event while the Qur’an deals with it as a process. There are certain stages prior to its finality. But these have generally been kept unattended by Muslim society. Those who study the Divine Book daily know very well that just as wuzu (ablution) is obligatory before Namaz (Salah), similarly there are certain formalities to be completed before final divorce.
It is a good augury for a human society to develop awareness about the rights and duties. But if in a society the individuals are merely aware of their rights and do not know their responsibilities and duties, the society gets accustomed to only demanding its rights and ignores its duties and responsibilities. Such societies take to committing atrocities against others in order to secure their right. The Book of ALLAH frequently reminds its readers of their duties and trains them into accepting their responsibilities. Only a society that is raised on such healthy principles would be a society based on justice. Now let us proceed to the subject matter of this paper. It all starts from verse 226 of chapter 2:
“Those who abstain from associating in bed with their wives, waiting time for wife, is four months. And if they return to normal relations, then ALLAH is Much-forgiving, a Dispenser of Grace.”
It is evident from this verse that ALLAH does not approve of long term discord between spouses and advises them to reach some conclusion in a four-month period. If in a society, a woman is not aware of the whereabouts of her husband, it is for the society to help her find him out. How else she could do it, unless the society helps her. There should be effective laws at the State level in this regard. 2:227
“But if they are resolved on divorce - behold ALLAH is all-hearing, all-knowing.”
Even if the issue is not getting resolved, the deadlock should not continue for more than four months. It is not desirable in the sight of ALLAH that a marriage should remain in suspended animation—a situation in which they neither get separated nor are leading a conjugal life. It is desired that they should resolve their differences and get back to normal relationship or initiate the process of divorce. The process of divorce (Talaq) should progress as per the guidelines given in chapter 4 verses 34-35. We will mention it as we progress on the topic. 2:228
“And the divorced women shall restrain themselves from remarrying till completion of three monthly courses. And it is not lawful to hide what ALLAH may have created (child) in their wombs, if they truly believe in ALLAH and the Last Day. And during this period their husbands are entitled to take them back, if they desire reconciliation. And the wives have similar for themselves to that of husbands have on them according to what is just and reasonable. But the husband has a degree over them in responsibility and authority. And ALLAH is Exalted in Might and Wise.”
2:229
“Divorce (Talaq) is twice, whereupon the marriage must either be resumed in all decency or dissolved in a kindness. And it is not lawful for you to take back anything of what you have ever given to your wives, unless both partners have cause to fear that they may not be able to be within the bounds set by Almighty. But if you fear that they may not be able to abide by the bounds set by Almighty, there is no blame on either of them, if she gives up something. These are the bounds set by ALLAH; do not transgress them: for they who transgress the bounds set by ALLAH - it is they, they who are evildoers!”
It can be gleaned from the above verses that of the three Talaq (divorces) being mentioned, two are in the nature of notice. The first divorce will progress step by step. If the conjugal relationship is not restored after the first divorce, the second divorce will get applied automatically the next month. The reason for this automatic Talaq will be failure to restore conjugal relationship which effectively means inability to observe norms set by Almighty ALLAH. Now we refer verse 2:230
“And if he finally divorces her (third time), then she can never be lawful for him until she marries other one (with the intention of remaining married to him). If under any circumstance, he also divorce her, then there shall be no blame if first husband and she agree to remarry, provided that both of them think that they will be now able to be within the bounds set by ALLAH: for these are the bounds of ALLAH which HE makes clear unto people of innate knowledge.”
The essence of this verse lies in the fact that an individual should be fully aware of the severity of the divorce, final break-up with his wife and he will be deprived of this gift of ALLAH forever. Hence he should be aware of the repercussions. As a result of lack of awareness and seriousness of the issue and its resolution, our mohallas across the country, have countless houses having such cruelly divorced women. It raises umpteen questions with regard to our adherence to the Sunnah of the Prophet as described in 33:37 which will be mentioned in the foregoing paragraphs. Now we refer 2:231
“And when you divorced women and they reach their waiting-term, then either retain them in a fair manner or let them go in a fair manner. But do not retain them intending harassment to transgress. And whoever does that harms his own self by sinning. And do not take commandments of ALLAH lightly. And remember the blessings with which ALLAH has graced you and all the revelation and the wisdom which HE has bestowed on you from on high in order to admonish you thereby; and remain conscious of ALLAH and know that ALLAH has full knowledge of everything.”
This verse lays down the cardinal value of the verses pertaining to divorce i.e., to approach every issue in a proper manner, to be good towards the weak and to avoid anything that might constitute harassment to her. Now 2:232
“And when you divorced women and they reach their waiting-term, hinder them not from marrying other men if they have agreed with each other in a fair manner. This is an admonition unto every one of you who believes in ALLAH and the Last Day; it is the most virtuous way for you, and the cleanest. And ALLAH knows, whereas you do not know.”
A man who has divorced his wife is being instructed not to hinder the process of alliance of his divorced wife who wants to go for a second marriage. This is so because she should command the same respect from his former husband as would any other woman. Now 2:233
“And the (divorced) mothers may nurse their children for two whole years, if the father wishes to complete the period of nursing; it is the father to provide in a fair manner for their (mother and child) sustenance and shelter. No one shall be burdened with more than he or she is well able to bear: neither shall a mother be made to suffer because of her child, nor the father made to suffer because of his child. And the same duty rests upon the heirs. And if both decide, by mutual consent and counsel upon discontinuing of nursing with the mother, there is no blame upon either of them. And if you wish to let other women’s nursing to your child, there will be no blame upon you provided you pay in a fair manner (to the women) to which you are handing over. But remain conscious of ALLAH, and know that ALLAH is observant of anything you do.”
The verse talks about the post-divorce delivery or a child in lap of less than 2 years of age. Since, the divorce has come into effect but a child has been born or exists, it is incumbent upon the father of the child to engage his child’s mother for nursing by paying her maintenance of herself and child for the entire period of nursing for maximum 2 years from the birth of child. The mother and the child will also have to be provided accommodation for the entire period.
Now 2:236
“You will incur no sin if you divorce women while you have not yet touched them nor settled a dower for them; but (even in such a case) make provision for them- the affluent according to his means, and the straitened according to his means - a provision in an equitable manner: this is a duty upon all who would do good.”
In 2:237
“And if you divorce them before having touched them, and have settled a dower for them, then give them half of what you have settled - unless it be that they forego their claim or he in whose hand is the marriage-tie foregoes: and if you forego your claims on each other, it is near the God-consciousness. And forget not (that you are to act with) grace towards one another: verily, ALLAH sees all that you do.”
This verse pertains to divorce prior to consummation of the marriage. Perhaps no other statutes around the world make so merciful a provision for the women. Look at this! It talks about paying compensation (Mata’a) to even those women with whom one has entered into matrimony but has not consummated the same. Since such women might have undergone some emotional hurt, the Qur’an prescribes some compensation for them. If the Mehr (dower) has been paid, no single farthing will be taken back. But if the Mehr has not been paid, half of what has been pledged at the time of the nikah, will have to mandatorily be given. It will be quite a different thing if she forgives or decides to forego full or a part of it. Even if some money or any property has been given or willed in her name, no part of it will be taken back. If the Mehr has not been paid or decided, even then compensation or Mata’a will have to be given. Now for widows 2:240
“And if any of you die and leave widows behind, it is ordained for their widows, a year’s maintenance without expulsion. But if they leave the residence, there is no blame on you for what they do with themselves in a lawful manner. And ALLAH is Almighty, Wise.”
2:241
“And for divorced women is maintenance in a fair manner. This is a duty for all who are conscious of ALLAH.”
We are blessed by Almighty ALLAH for having been bestowed with the guidance of the Qur’an. We know it for sure that the Book of ALLAH lays down the most minimum for charity and making ease for other party. It has been said here by way of norms to be observed upon divorce are most minimum. But the believers who are conscious of ALLAH and the Life Hereafter are being induced to provide for their divorced wives more than what has been prescribed.
Now we come upon those verses of the chapter 4 that talk about norms to be observed prior to the divorce. Though these verses are very much part of the Qur’an, unfortunately the society has totally abandoned them. At least we have not seen any Nikahnama that talks about these steps and norms. It is 4:34, 35 here.
“Husbands are the protectors and maintainers of wives because ALLAH made them more responsible than other, and because they take financial responsibility. So the virtuous women, obedient who guard the intimacy which ALLAH has ordained to be guarded. And as for those women whose haughtiness you have reason to fear, admonish them first; then (if they persist), leave them alone in bed; then warn them sternly; and if thereupon they pay you heed, do not seek to harass them. Behold, ALLAH is indeed most High, Great! And if you have reason to fear that a breach might occur between a married couple, appoint an arbiter from among his people and an arbiter from among her people; if they both want to set things aright, ALLAH may bring about their reconciliation. Behold, ALLAH is indeed all-knowing, aware.”
According to Arab lexicon, the word wadaribuhunna in the above verse is derived from the source word da-ra-ba which is used for three different meanings, i.e., 1- to beat, 2- to explain, and 3- to walk. The wordings wadaribuhunna are preceded by actions viz; to counsel in first step, than to leave them alone in beds. It is therefore implied that the discord till then had remained confined between the husband and the wife in 4 walls. It is then followed by wadaribuhunna. If even this does not lead to resolution of differences, comes third parties in between. Two arbiters, one from the side of each spouse. It implies that the dispute is now moving out of the private domain to social domain. Since two arbiters are going to be involved, the wordings wadaribuhunna in all likelihood does not refer to ‘beating’ as any kind of use of violence is all likely to aggravate the differences and harden the stand against each other. It is therefore more reasonable to adopt the second meaning i.e., ‘to explain’. While the lexicon provides the full scope for this and the sequence also justifies use of this meaning, we can safely presume that this implies the husband explaining to his wife that the issue is going out of private domain, hence there may not remain much scope for any resolution of the dispute. If both arbiters fail to bring solution, the only alternative in hand would be Talaq or Divorce.
The Book of ALLAH advises the believers to seek out ways to retain the marital ties and continue to follow the norms set by HIM instead of rupturing the relationship which provides the main bulwark for a family, the basic unit of the society. It suggests the avenue of arbitration by involving one person from each side. It does not suggest taking this to any larger body like a panchayat, lest the private affairs become public. We quote below three verses of the Qur’an which specifically address the women asking them to make compromises in order to save the marital ties at any cost.
Now 4:128
“And if a wife has reason to fear ill-treatment or desertion from her husband, there is no blame on both of them if they do reconciliation between themselves, and reconciliation is far better, and selfishness is ever-present in human souls. But if you do good and are conscious of HIM - behold, ALLAH is indeed aware of all that you do.”
4:129
“And it will not be within your power to treat your wives with equal fairness, however much you may desire it. So do not incline completely towards one and leave another hanging. But if you put things to right and are conscious of HIM- behold, ALLAH is indeed much-Forgiving, a Dispenser of Grace.”
4:130
“And if the spouses do separate, (after all efforts for reconciliation have been exerted) then ALLAH will make each one of them independent of the other by HIS vast resources, and ALLAH is indeed Infinite, Wise.”
Husband and wife are like two wheels of the wagon carrying the married life forward. If any conflict, tug-of-war or constant friction threatens to rob their life of peace, the spouses are being advised to be patient and strive to amicably reconcile their differences through some compromises. The verses however take due cognizance of the inherent character of human individuals and point to the basic human tendency to be egoistic and self-centered. But in the end, it suggests that the men as well as women should exercise self-restraint and work out compromises in order to seek pleasure of ALLAH.
A study of the above three verses reveals that the husband-wife duo parting with each other are being advised to be magnanimous towards each other. But if they are not able to keep aside their differences, both are being advised to not to create difficulties for one another. And the husband, on his part, should try to deal justly with the wives. Even though it is almost certain that an individual cannot be cent per cent even-handed between the two, it has been advised that he should keep on striving towards this goal. And even while making compromises, all parties should remain conscious and concerned about their well-being in the hereafter. If all well-meaning efforts come to a naught and distances remain between the spouses, the two should decide to separate honorably. It is in this context that the Qur’an assures that ALLAH would bountifully shower HIS blessings and makes them self-sufficient.
Divorce is the ultimate parting of a husband from his wife and is the final point of the relationship. They arrive at it only when they realized that they cannot safeguard the boundaries set by ALLAH and would not be able to fulfill their duties towards the other.
Moreover it is in the Sunnah (tradition of the Prophet) to try to avoid divorce between wife and husband and admonish them in the name of ALLAH. The reference is from The Holy Qur'an 33:37
“And O Prophet, you said to one who had received the Grace of ALLAH and your favor: ’Retain your wife in wedlock, and remain conscious of ALLAH.....”
It is advised that if we observe disharmony between a husband and a wife, we should counsel them against breaking their ties. The husband should be advised to be fearful of GOD. This is the lesson we can draw from the Book of ALLAH. Generally, it is seen that people would chip in between spouses and would ask them to have divorce and separate from each other. To the contrary, the Qur’an urges the third party intervention to heal cleavages and patch up differences rather than aggravating them. Those who have studied the Qur’an and have not given up their social responsibilities should spare time to counsel the husbands to work out compromises.
In the verse following this paragraph, the Book of ALLAH talks about the responsibilities that accrue to the husband in the eventuality of a divorce. Let us be reminded that the commandments contained in the Book of ALLAH are obligatory (Farz). Few of our clerics dwell upon these obligations in their speeches and sermons. Any Deen without the Book of ALLAH, cannot constitute guidance.
Now 33:49
“O you believers, when you marry believing women and then perchance you have to divorce them before you touched them, no Iddat period (of waiting for lady for remarrying) you have to for them, but make provision for them also, and let them go gracefully.”
The above-mentioned verse lays down that a woman divorced without a marriage being consummated, need not undergo the term of Iddah (waiting period for another marriage). It implies that the Iddah or waiting period has been made obligatory only with a view to ascertain if the woman is carrying, and if it is so, to decide the parentage of the child to be delivered and expenses on his nurturing.
What is evident from the entire study so far is that the verses in Surah 2 Al-Baqrah talk about rights of women upon divorce and the men are exhorted to fulfill their duties towards their divorced partners. These do not talk about rights of husband upon divorce. The verse 2:229 makes it clear that the first two divorces are in the nature of notice. The verse 2:230 clarifies that the third time divorce would finally end a relationship. But the procedure to be followed in administering the three Talaq has been mentioned in verses 34 and 35 of the Surah 4. Here is the beginning verse of the Surah 65 At Talaq.
“O Prophet! When (your followers) intend to divorce wives, let them divorce them according to their periods, and count the periods carefully, and be conscious of ALLAH who is your Sustainer. Do not expel them from their homes; and neither shall they be made to leave, except it is proven that they have committed immorality. These are the bounds set by ALLAH - and he who transgresses the bounds set by ALLAH, indeed does sin against himself: you know not, perhaps ALLAH may bring about after that a different situation.”
In fact, Muslims are totally unaware of the procedure to be followed prior to the Divorce. No one talks about this in our society. It seems Muslims have nothing to do with the Book of ALLAH. They have completely deserted it. One has to fulfill the four conditions mentioned in Surah 4/34-35 referred above before final Talaq, just as one goes through wuzu (ablution) prior to offering namaz. It is then followed by appointing a mediator (Hakam) between the husband and the wife for mediation. Even if they fail to heal the differences, the marital bond does not get dissolved. This is the model of a society that is desired by the Glorious Qur’an. Now that the two spouses proceed for Divorce, the three Talaqs should be administered one after another with observance of the intervening periods in between.
The instrument of three utterances of Talaq at one go is admissible only when a woman commits a lewd act and the husband’s self esteem cannot tolerate it. He can dissolve it at once. He has no other evidence than he only; to put stop over it he cannot blame her openly. Even for gradual Talaq he cannot tolerate it, he may use this instrument to minimize much risk ahead. Had this not been provision, it is quite possible that the husband might resort to some unpleasant measure, especially when he cannot produce any evidence other than himself. And he does not want to call others for witnessing the act, lest he and his wife have to incur a stigma. He is not even keen to enter the process of Liaan (public disavowal of committing adultery). It is to be resorted only in the event of a lewd act witnessed by husband getting rid of her immediately.
Now 65:2&3
“And when divorced women reach their waiting-term, either retain them in decency or let them go in decency. And make witness two impartial persons from among you, and establish the evidence for the sake of ALLAH. This is instructed to whoever believes in ALLAH and the Last Day. And whoever is conscious of ALLAH, HE will make for him a way out, and will provide for him where he does not expect, and whoever relies upon ALLAH, then HE will be sufficient for him. Indeed ALLAH always attains to HIS purpose: surely ALLAH has already set for everything a decreed extent.”
The Glorious Qur’an pleads for witnesses in all worldly transaction and affairs. Nikah requires witnesses as an essential requisite. But we often meaninglessly plead that Talaq does not require any witness, although it is a serious matter as two partners are ending their mutual bond and dissolving their marriage. Rather people chip into the affair and strive to bring the bond to an end. The very provision of bringing two mediators for the arbitration is in the nature of witnesses as they would have the ringside view of the mediation proceedings and would be witness to the failure of the efforts. Unless one is not totally averse to the Qur’anic directives, this stage cannot be overlooked. It is therefore essential that we accord primacy to the procedure in the Qur’an.
65: 4&5
“For such of your women who had crossed the age of monthly courses, as well as for such who do not have any courses, their waiting-period for remarrying - if you have any doubt - shall be three calendar months. And for those who are pregnant, their waiting-term for remarrying until they deliver the child, and whoever is conscious of ALLAH, HE will make things easy for him. It is command of ALLAH, which HE has bestowed upon you from on high. And unto everyone who is conscious of ALLAH will HE remove his bad conditions and will grant him reward.”
65: 6&7
“Provide the divorced women residence and provisions according to your circumstances and do not harass them in order to make life difficult for them. And if they are pregnant, provide provision for them until they deliver the child, and if they nurse your child for you (after the divorce), give them their allowances. And set the matters amicably. And if you find it difficult (from both), let another woman nurse the child on behalf of father. (In allowances and payments to another women), let a man of wealth spend according to his capacity and one whose resources are limited, let him spend according to what ALLAH has provided him. ALLAH does not burden any human being with more than HE has given him. After hardship, ALLAH will grant ease.”
It specifically means that in the case of divorce accommodation has to be provided for the lady for the period Iddah to reside. And if the residence is not big enough for both to reside separately, the husband has to go elsewhere for his accommodation. In the narrative regarding the procedure of Talaq, how easily Muslims have given up these directives regarding the divorced woman, her maintenance, her dues and her residence!!!
The Muslim women are often at the receiving end in the matters of divorce. The spirit of the Book of ALLAH is missing from our society and women have to bear the brunt of it. It is not within our capacity to set right the distortions that have crept into the Muslim society over centuries. However, we supplicate to Almighty ALLAH to provide us courage to accept the commandments of The Qur'an in all our social matters. We should study the Holy Scripture in its true spirit and in its original without the biased commentaries.
However, the homes, may the ownership belong to anybody, but The Qur'an says that it belongs to women for residing in, till particular period in the case of divorce and in the case if she becomes widow. The Qur'an says this more than one place under different circumstances, we quote above one verse 65/1 and here another one is verse 34 of chapter 33 is following.
“And bear in mind (O you ladies) all that is recited in your homes of ALLAH's messages and (HIS) wisdom: for ALLAH is unfathomable (in HIS wisdom), all-aware.”
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Mr. A. Ghafoor Parekh
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