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A BRIEF SURVEY OF THE LAW OF DIVORCE
In Islam divorce, when not absolutely necessary, is strongly disapproved of and discouraged. This has been done in two ways, namely, condemning divorce except in certain circumstances and commending forbearance and the continuation of marital relationship even in the case of disagreement and some suffering. The Prophet (peace be one him) has said, 'Of all the permitted things divorce is the most abominable with God". Even when a man is not satisfied with his wife, the Quran enjoins forbearance. It says, "And retain them (the wives) kindly. Then if you hate them, it may be that you dislike a thing while God has put abundant good in it. 4 :19. The Prophet (peace be on him) has said, "That man is better amongst you who is better to his wife.
RIGHT TO DISSOLVE MARRIAGE
A Muslim marriage is ordinarily a relationship for life based on mutual consent of the parties. But under the Islamic law, unlike some other systems of law, marriage is special type of civil contract. It follows that the parties to it have a right, as in other contracts, to continue the contract of marriage or to discontinue it on reasonable ground.
WHO CAN DISSOLVE MARRIAGE
The Qadi or the Arbitrator can dissolve by either the husband or wife or by their mutual consent or by the Qadi or the wife or by their mutual consent or a marriage. It can also get terminated automatically on the happening of certain contingencies. The cause that constitutes a ground for dissolution of marriage can be the conduct or the physical or mental condition of the husband or of the wife. The marriage can also be dissolved when it is ill-assorted.
DISSOLUTION OF MARRIAGE BY THE HUSBAND
The husband through divorce, la or zihar can dissolve a marriage.
- Divorce
The present Muslim practice allows the husband full powers to dissolve the marriage at his sweet will without assigning any reason or without even there bring a reasonable ground for the divorce. All the Muslim sects, with the exception of the Mu'tazilites, concede this absolute power to the husband. Some of them do admit that marriage being commended, it can be terminated only incase of urgency for its dissolution and that when there is no valid necessity for its termination then the husband is not justified in dissolving it. But, in spite of it, they do not hold a divorce without justification to be legally invalid; they only consider it to be sinful.
- Ila' and Zihar
These are two other methods of dissolving the marriage by the husband,
- Dissolution of Marriage by the wife
A wife can herself dissolve her marriage by the exercise of khiyar al-bulugh (option of puberty) or under tafwid, that is, when the power of divorce has been delegated to her by the husband. She can also have recourse to khul.
- Dissolution of Marriage by Mutual Consent
It is always open to the spouses to mutually agree to the termination of their marriage for a consideration or without it. This they can do by Khul, mubarah, or talaq.
MODES OF DISSOLUTION OF MARRIAGE
Sets out below, in good details, are five Methods by which a Muslim Marriage can be Dissolved. A Muslim marriage may be dissolved before the death of one of the spouses by:
- Repudiation of the marriage contract by one of the parties when he or she has the khiyar or option to do so,
- The unilateral act of the husband or his agent.
- The Court at the instance of the wife, and
- Mutual consent of the parties,
- Automatically by the operation of law.
DESCRIPTION
Talaq al-Sunnah is regarded as the regular or orthodox form and Talaq al-Bid'ah as the irregular or unorthodox form of Talaq. The latter has become the more common and prevalent method of dissolving a marriage.
- Talaq aI-Sunnah Talaq al-Sunnah is again subdivided into two classes, namely:
- Ahsan meaning very proper, and
- Hasan meaning proper.
These two forms of Talaq al-Saanah are described below:
- Talaq al-Ahsan
Talaq al-Ahsan means the more proper divorce. The words "more proper" do not denote any intrinsic merit of this kind of divorce. What is meant is that this kind of divorce is the least disapproved of its various forms. The reason for the preference of this form of divorce over others is that it does not immediately sever the marital relationship but allows an opportunity to the spouses to continue the marriage if they so choose and in pursuing this method, the husband can still exercise his right without the necessity of an intermediary marriage to retain his wife by a reversal of the divorce during the period of her iddaht, if he be so inclined. This rule is based on an injunction in the Quran, which says "Divorce may be pronounced twice, then keep them in good fellowship or let (them) go in kindness". It is laid down at another place, "so, if he (the husband) divorces her (the third time) she shall not be lawful to him afterwards until she marries another person". Also because this method is the one lawful method of divorce unanimously agreed upon.
How effected:
The method for this kind of divorce is to repudiate an enjoyed wife by a single sentence within a Tuhr, or term of purity, that is, the period of time which intervenes between two successive menstrual discharges, during which he has not had sexual intercourse with her, and then leave her to the observance of her idduht, unless revoked in the meantime. The repudiation becomes final on the expiry of the prescribed period of iddaht, which in case of divorce consists of three periods of purity, or if it cannot be ascertained, then on the expiry of three months. The rule is clearly laid down in the Quran wherein it is stated "And the divorced women should keep themselves in waiting for three courses'. Should the husband be intimate with his wife during this period then the divorce is cancelled and the relationship of husband and wife is maintained.
- Taluq al-Hasan
Tataq al Hasan means proper divorce. All the Sunni Schools of law do not unanimously accept it as a lawful divorce. Malik considers it to be Bid'ah or an innovation. He says that divorce is meant to serve as a prohibition and it is secured by one pronouncement and so, according to him, a divorce would no doubt be effected in this way but the husband would be guilty of sin in pronouncing it. Other Sunni Jurists accept it as a lawful divorce in the form of Tataq al Sunnah.
How effected:
The method for this kind of divorce consists in the husband's giving his enjoyed wife one repudiation in a Tuhr, or period of purity, in which he has had no sexual intercourse with her, and then to give her another repudiation in the next Tuhr in the same way as adopted before. It can thus be seen that in this form of divorce it is necessary to repeat the declaration of divorce three times and to abstain from sexual enjoyment with the wife during the whole of this period.
- Talaq aI-Bid'ah or Talaq al-Bid'i
The other method of divorce considered from a religious point of view is Tataq al-Bidi or Tataq al-Bidah unorthodox divorce. It is so called because it is not approved by Muslim Jurists and is considered an undesirable innovation. Any divorce which does not conform to Tataq al-Sunnah is deemed to be an innovation or bidah and is called Talaq at-Bid' ah. ISis the most disapproved form of divorce. It is highly condemned and even declared sinful, but nevertheless it is considered legally effective. Moreover, it assumed many other forms in the second century and came to be recognized as an effective divorce.
How effected:
Talaq al Bidi is effected in one of the following ways:
- Repetition of three pronouncements of divorce either at the same time or in the same meeting or on different occasions in the same period of Tuhr.
- Pronouncement of divorce in a period of purity in which the husband has had sexual intercourse with his wife.
- Pronouncement of divorce during the period of menstrual course provided the marriage has been consummated actually or under the Hanafi, Maliki and Hambali laws impliedly, that is when there has been a valid retirement. If the marriage has not been consummated and there has not even been a valid retirement, under the Hanafi, Maliki and Hambali laws, then such a pronouncement of divorce shall take effect as Talaq al Hasan.
- Pronouncement of divorce in one single sentence.
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