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Power to Divorce is with the Husband

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Power to Divorce is with the Husband

Post by Ithar Ghada Faied on Tue Jan 18, 2011 1:44 pm


Bismillaah, wal-hamdulilaah, was-salaatu was-salaamu 'alaa rasoolillaah, As Salaamu 'Alaykum wa Rahmatullaahi wa Barakatuh

In pre-Islamic times divorce was a weapon used against the woman solely in a man's hands; when he wanted to harm the wife he would seek to divorce her and then take her back as he pleased. There were no set rules and the woman had no rights in the matter. So Allah (The Almighty) invalidated this injustice by revealing the verse which says:

Divorce is two times: then one may retain with goodness (and reasonable terms), or let go with goodness (and reasonable terms). [2:229]

As a way to help preserve the marriage even when some differences occur, a Muslim man following the Sunnah (way) of the Prophet (Peace be upon Him) may only divorce his wife while she is clean from menses wherein he has not had sexual relations with her in that month. Since this requires some waiting period before the pronouncement of divorce, this allows time for any anger to subside or misunderstandings to be cleared up, and gives time to other family members or mediators to help in reconciliation. If they continue on the path towards divorce, then she must wait three menstrual periods. During this time, he may take her back honorably into marriage. This will be counted as the first divorce and return. If the time lapses and he lets her go her way, she will be fully divorced for the first time, and is free to marry another man.

Her first husband may remarry her with a new contract, if they both choose that option. If he does, and he then again divorces her, he may take her back her within the three menstrual periods, and this will be two divorces and returns. After two divorces and returns, if he divorces her a third time this is called the final and separating divorce wherein they are not allowed to remarry unless she waits the specified time of three menstrual cycles and then freely marries a different man with no intention of availing herself to this means in order to be able to lawfully marry her previous husband . If, for any reason, she becomes divorced from that man, only then, and on the condition that no shady pre-arranged dealings were made to circumvent this rule, can she re-marry her first husband. All these measures are designed to help protect the family and sanctity of the marriage bond, and the rights of the man and the woman. The waiting period is to determine that she is free from pregnancy. In case of pregnancy, the woman has to wait until after delivery before she marries a second husband.

Divorce is ultimately allowed in Islam to escape from any harm caused by the irreconcilable differences. It may become necessary in certain cases. There are strict rules about divorce to protect the interests and rights of the parties involved: the husband, wife and children. Some of them have been mentioned above. Divorce might be forbidden in the case where it would not solve the problem and cause undue harm to one of the two marriage partners, without achieving a needed benefit.

Islamic jurisprudence obligates that in order to avoid divorce, solutions should be sought when critical disputes and differences occur between husband and wife; Allah, the Exalted, states in the Glorious Qur'an:

(And if a women fears cruelty or desertion from her husband, there is no sin on both of them if they make terms of peace between themselves; and making peace is better.) [4:128]

Allah, the Exalted, also says:

(If you fear a breach between them appoint two arbitrators, one from his family and the other from her family: if the two of them both wish for correction, Allah will cause their reconciliation. Indeed Allah is Omniscient and Well-Acquainted with all things.) [4:35]

One of the most natural and logical ways to help maintain a successful marriage is to let the man have more control over the divorce process than the woman because it is the man who is financially obliged to take care of his wife, household and family, and has ultimate responsibility of their welfare. Therefore, he must rationally assess the situation, grave consequences, and huge financial and emotional loss that will result from a divorce. The husband will lose the dowry he spent for the marriage, and will have to pay the alimony and child support, as well as any newly acquired expenses from a new marriage on top of that. Thus, with all these considerations, he will not act just out of quick anger, fickleness or passing emotion.

A man is more capable - at least theoretically - of controlling his flitting emotions and personal reactions when upset about the smaller issues in life, especially in terms of disputes with his wife. Divorce should never be a quick reaction for some suffering, misunderstandings, or differences of viewpoints, but only as a last resort and final solution when life becomes dangerously problematic and intolerable, wherein both spouse are afraid that they will not be able to abide by the limits set by Allah and His Prophet about respectable behavior with one another.

Islamic jurisprudence permits the wife to have her marriage nullified upon her request if the husband abuses her physically or verbally. She is also entitled to have the marriage nullified for the following general reasons:

  • if the husband is impotent and cannot perform his marital duties,

  • or if the husband for any reason, refuses to have sexual relations with his wife and fulfill her lawful needs,

  • or is afflicted with a disabling terminal illness after the marriage,

  • or contracts any type of venereal or reproductive disease that may harm the wife or make her lose her desire to be with her husband. Thus, we see that the woman is given the right to seek separation from her husband for legitimate reasons in many situations, exactly as the man has the right to seek divorce. If a wife reaches the extreme limits of patience and abhors her husband, feeling that life is unbearable, then she has the right to divorce. This form of divorce is called annulment, or "Khula", wherein she pays compensation by returning her dowry or some other property. A competent Muslim judge will look into the individual case if the husband refuses to accept the wife's request and if the request is considered sound and valid, will pass a judgment in favor of the woman.
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