DIVORCE - I
In no age other than ours has so much attention been paid to the danger of the disintegration of the family and its harmful consequences, and again, in no age other than ours has man been faced with the real danger of such a disintegration.
THE GROWTH OF DIVORCE IN MODERN LIFE
In the past much attention was not paid to the problem of divorce, its causes and its harmful effects, nor were any measures devised to prevent its incidence, yet the cases of divorce were few and far between. There is no doubt that the difference between the past and the present is due to the fact that now the causes, which lead to divorce, have increased. The social life has taken such a turn that now there are more chances of the disruption of the family bond, and that is why the efforts of the intellectuals and the public-spirited people have, so far, borne no fruit. Regrettably, the future bodes more danger.
The American magazine, 'Newsweek' in an interesting article under the heading, 'Divorce in America', writes that it is easier in America, to get a divorce than to get a taxi.
'Newsweek' further writes that two proverbs about divorce are better known among the American people than any other. One is that "the hardest conciliation between husband and wife is better than divorce". It is 400 years old. The other which represents a diametrically opposite view has gained currency during the second-half of the 20th century. It says that "the second love is more pleasant than the first".
The article shows that the second proverb is more operative in America. The illusion of divorce attracts to itself, not only the newly-wed, but even their mothers, and the couple who were married a long time ago. Since the Second World War onward, on an average, the number of cases of divorce has not been less than 400,000 per annum. Out of the dissolved marriages, 40% had remained intact for 10 years or more and 13% for more than 20 years. The average age of two million women divorces was 45 years. Some 62% of them had children under 18 at the time of the dissolution of their marriages. These women, in fact form a special generation.
Though the American woman feels quite free after divorce, yet the divorced, whether young or the middle- aged, are not happy. Their unhappiness can be gauged from the ever-increasing number of women who call on the psychiatrists or have recourse to alcoholism. Out of every four women divorcees, one is an alcoholic. The average cases of suicide among these women are three times more than among women having husbands. In short as soon as a woman comes victorious out of a divorce court she realises that life after divorce is not a bed of roses. The world can hardly have a good opinion of a woman who dissolves her marriage, the strongest form of human relationship. Society may respect such a woman and even envy her, but cannot look upon her as a person who entered the life of another and brought about happiness.
In the course of this article in Newsweek the question has been raised whether the ever-growing cases of divorce are mostly due to temperamental incompatibility between husband and wife, or some other causes. The writer of the article says that even if incompatibility is accepted to be the cause of separation among the newly-wed couples, how can one explain the cases of those who had been leading a married life for a long time. Taking into consideration the facilities which the American law provides in connection with divorce it may be said that incompatibility is not the reason of separation in the case of a marriage which has lasted out for 10 or 20 years. In the age of contraceptive pills, sexual revolution and improvement in their legal status, many women have come to believe that delight and pleasure are preferable to the stability of married life. You often see that a husband and a wife live together for years, have children, share each others' joy and grief and then suddenly the wife seeks a divorce, without any palpable change having taken place in the material or conventional position of the husband. The reason is that, till yesterday, the woman was willing to bear the boredom of life, but today she is not inclined to do so.
The increase in the cases of divorce is not confined to America. Wherever the modern Western ways have permeated to a considerable degree, the figures of divorce have gone up. Even in the East, divorce is far more common in the modernised big cities than in the small towns and the countryside.
THE DIVORCE-GENERATING ATMOSPHERE OF AMERICA
We have already quoted Newsweek as saying that the American woman gives preference to merry-making over the stability of domestic life. Now let us take a step forward and see why she has adopted such an attitude. It is certain that this attitude is not natural and inherent. It has certain social reasons behind it. It is the American atmosphere which has given this mentality to the American woman. Some Westerners are working hard to push the woman of the East to the way the American women have gone. If they succeed, the fate of the Eastern woman and the Eastern family will not be different from that of the American woman and the American family.
A prominent French daily writes that in more than 200 restaurants and cabaret houses in California waitresses work in topless outfits. The topless swimming costume has been recognised as the working-dress in San Francisco and Los Angeles. In the city of New York there are many cinema halls which show only sexy films and the nude pictures of women can be seen displayed in front of their entrances. The names of sexy films are of this kind: "The men who swap their wives", "The girls who are immoral", 'The dress which does not hide anything". ~ the libraries there are very few fiction books which do not bear a nude photo of a woman on their covers. Even the classical books are no exception. Such titles as "Sexual Behaviour of American Husbands", "Sexual Behaviour of a Man of the West", ' Sexual Behaviour of Young Men Below 20", "New Sexual Methods Based on the Latest Information", are very common. The writer of the article in the French daily asks with surprise and apprehension: "Whither America?"
In such an atmosphere, if the American woman has lost her balance and gives preference to pleasure-seeking over faithfulness to her husband and family she is not to blame. It is the social atmosphere which has struck at the very root of the sacred family system.
It is surprising that the leaders of our age give, on the one hand, an impetus to the causes of divorce and the disintegration of family life and, on the other, raise a hue and cry that the rate of divorce has gone up so high. This is just like putting a man to sweep a chimney and then asking him not to stain his clothes.
Now let us see whether, in principle, divorce is good or bad.
The question is whether it is good to keep the door to divorce wide open, even at the risk of the disintegration of family life? If it is good, there is no harm if the rate of divorce goes up. In case, however it is not advisable, should a total ban be imposed on divorce, and conjugal union be made eternal? The third alternative is that divorce should not be banned legally, for in certain circumstances it is unavoidable, but at the same time society should take every possible action to do away with the causes of friction and separation between the husbands and the wives, and save the children from becoming homeless. Obviously, the law can do nothing if society itself encourages the causes which lead to divorce.
If divorce is not to be totally banned, in what form should it be allowed? Who should exercise the right of divorce, should only man or only woman, or both? In the last alternative, should man and woman have the same procedure for severing the bond of marriage, or should each sex have a separate procedure?
In all, these are the five theories in respect of divorce:
(1) Free divorce without any legal or moral restriction. There are those who look at marriage only from a viewpoint of pleasure-seeking; who attach no sanctity to it; and who do not take into consideration the social value of home and family. They think that the sooner the bonds of marriage are removed and replaced, the more pleasure will be afforded to man and woman. He who says that the second love is more pleasant supports this theory. In this theory not only has the social value of the family been forgotten, but also the delight and satisfaction, which the stability of a conjugal union affords, has been ignored. So, this theory is the most puerile and immature.
(2) Marriage is a sacred undertaking. It is a union of hearts and souls which must be kept safe and intact. The word divorce should be expunged from the dictionary of human society. The woman and the man who marry each other should know that, except for death, nothing can separate them.
This is the same theory, which for centuries has been advocated by the Catholic Church, and is still being advocated.
The supporters of this theory are on the decrease in the world. Now only Italy and the Catholic Spain adhere to it. We often hear that, even in Italy, men and women are raising their voices against this law and efforts are being made that the law of divorce should be officially recognised. Many people are no longer willing to continue to suffer the boredom of their unsuccessful marriages.
Some years ago, the Daily Express published an article under the heading, "Marriage in Italy Means Bondage for Woman". This article said that, at present, owing to the non-existence of divorce, many people in Italy have to resort to unlawful sexual relations. More than five million Italians believed that their lives were nothing but sin.
An Italian daily wrote that the prohibition of divorce had created a big problem for the Italian people. Many of them had renounced their Italian nationality for that very reason. When an Italian agency organised an opinion-poll, 97% of the women replied in the negative to the question whether divorce was repugnant to the religious principles.
Still the Church sticks to its view and continues to adduce arguments in support of it.
There is no doubt that marriage is a sacred bond and it should be lasting and durable. But it can last only as long as both the spouses co-operate with each other. There are situations when a mutual understanding between a wife and her husband is not possible. In such circumstances the forces of law cannot be used to keep them attached to each other in the name of a conjugal bond. The theory of the Church has been a complete failure. It is not unlikely that the Church itself may be compelled soon to revise its views. Hence, we need not discuss this theory any further.
(3) Marriage is dissoluble by man and not by woman. In the ancient world many people held such a view, but now we do not think it has any supporters. So we need not discuss it also.
(4) Marriage is a sacred institution and the domestic system is respectable, but the way to divorce, with certain conditions, should be open to both the spouses and the procedure of dissolving a marriage should be the same for both of them.
The upholders of similarity of family rights, wrongly called equality of rights between man and woman, support this theory. According to these people the same conditions, the same limits and the same restrictions as exist in the case of woman, should also exist in the case of man and the same ways, to get out of the deadlock, as are open to man should be open to woman also. They reject any other solution, which is unjust and discriminating.
(5) No doubt the marriage institution is sacred, the domestic system is respectable, divorce is abominable and it is an essential duty of society to remove the causes which lead to divorce, yet divorce cannot be totally banned and the way out of a deadlock must be kept open to both man and woman. Anyhow, the procedure to be adopted for the dissolution of marriage should be different in their respective cases. Divorce is one of the instances of dissimilar rights of man and woman.
This is the theory which represents the Islamic point of view, and the Muslim countries are partially following it.
In our age divorce has become a world problem as all grumble and complain about it. Those whose laws prohibit divorce totally complain of the non-existence of a way to escape from unsuccessful and unsuitable marriages. On the other hand, those who have opened the door of divorce, equally for both man and woman, complain about the growing rate of divorce and the instability of domestic life, and its harmful effects. Those who have given the right of divorce to men only express their dissatisfaction on two accounts:
Firstly, some mean people, after years of married life, unexpectedly divorce their old wives who had spent the best part of their youth with them, simply because they suddenly feel eager to have a new wife.
Secondly, some unchivalrous people refuse to divorce a wife, with whom there is absolutely no possibility of a mutual understanding and a continued joint life.
It often happens that, for some reasons, the differences between a husband and a wife reach such a stage that no possibility of reconciliation is left, and they practically separate from each other. In such circumstances, the only sensible way is to sever, legally, the relations which have already been practically severed, and to allow both of them to choose new partners-in-life. But some men, to harass their wives and to deprive them of enjoying a conjugal life, decline to divorce them. They leave the woman, in the words of the Qur'an, "in a state of hanging".
Such people are far away from the teachings of Islam, though they use the authority of the Islamic law for their improper behaviour. Their conduct gives an impression to those who are not acquainted with the depth and the spirit of the teachings of Islam, that this is the way Islam wants divorce to be.
The critics ask sarcastically whether Islam has really allowed men to harass their wives as much as they like, sometimes by divorcing them and sometimes withholding divorce, and at the same time to have the mental satisfaction that they have only used their lawful and legal right.
The critics say that such an action constitutes a glaring example of injustice and cruelty. They ask "If it is true, as the Muslims claim, that the Islamic laws have been organised on the basis of justice and righteousness, what measures have Islam taken to prevent this kind of injustice?"
About the cruelty and injustice of such acts there can be no doubt. Islam, as we shall show, has taken cognisance of this situation and has thought of measures to counteract it. The important question is: What is the proper way of preventing this injustice and cruelty? Are the acts of injustice due to any inherent defect in the law of divorce, or should their real cause be looked for somewhere else? Can they be stopped by modifying the law or are some other measures required?
Islam has its own view as to the solution of the social problems. Some people think that they can be solved either by framing a new law or by changing the existing one. But Islam realises that a law has its own limits. It can be effective only within the range of the dry contractual relations. As for the sentimental relations, it alone cannot do much, and we should have recourse to other measures also.
As we shall show latter, Islam has fully utilised the force of law as far as it can be effective. It has not failed in this respect.
First, we take up the present day problem of ignoble divorces.
As a matter of principle, Islam is strongly opposed to divorce. It wants that it should not take place as far as practicable. It allows it only as a last resort in the cases where separation is unavoidable. Those who frequently take a new wife and divorce the old one are denounced by Islam as the enemies of Allah.
The well-known book of traditions, al-Kafi, narrates the following story:
The Holy Prophet asked a man: "What have you done with your wife?"
"I have divorced her", he said.
'Did you find her doing anything wrong?"
"No, I didn't"
The man married again. The Holy Prophet asked him:
"Have you taken another wife in marriage?
Some time later, the Holy Prophet asked him again:
"What have you done with the new wife?"
"I have divorced her".
"Had she done anything wrong?"
"No. She hadn't".
The man married a third time. The Prophet asked him again if he had taken in marriage a new wife. He replied in the affirmative.
After some time the Prophet asked him again:
"What have you done with this wife?"
"I have divorced her also".
"Did you find anything wrong with her?"
No, I didn't"
The Holy Prophet said that Allah dislikes and hates the man who regularly changes his wives, and the woman who regularly changes her husbands. Such people are the enemies of Allah.
It was reported to the Holy Prophet that Abu Ayyub Ansari had decided to divorce his wife. The Prophet knew the woman personally. He also knew that Abu Ayyub's decision was not justified. He said: "Divorcing Umme Ayyub (Abu Ayyub's wife) is a deadly sin".
The Holy Prophet said that Gabriel had exhorted and counselled him so much in respect of women that he felt that it was not permissible to divorce a woman, except when she was guilty of adultery.
Imam Sadiq (P) has reported that the Holy Prophet said:
"There is nothing more pleasing to Allah than the house where a marriage takes place, and nothing is more displeasing to Him than the house where it is severed by divorce"
Imam Sadiq (P) has also said that the word 'divorce' has been mentioned in the Qur'an time and again and its details have been given because Allah hates separation of couples.
AI-Tabarsi in the Makarim al-Aklaq has quoted the Prophet as saying: "Do marry but do not divorce, for divorce shakes the throne of Allah".
Imam Sadiq (P) has said: "No permissible act is more displeasing to Allah than divorce. Allah dislikes those who resort to divorce again and again".
Similar traditions are found in the Sunni books also. Abu Daud in his book, 'Sunan' has reported the Prophet as having said: "Allah has not permitted anything more hateful than divorce' . In other words, though Allah has permitted divorce, He dislikes it the most.
The great religious leaders (Imams) have abstained from divorcing, as far as possible. In their lives the cases of divorce were extremely rare. They resorted to such an action only when they had very solid grounds for it. For instance, Imam Baqir (P) married a woman. She became his favourite, but on one occasion he noticed that the woman was inimical to Imam Ali Ibn Abi Talib and cherished malice against him in her heart. He had to divorce her.
In reply to the question as to why he had divorced her when he liked her so much, the Imam said that he did not want to have a piece of the fire of Hell by his side.
A BASELESS RUMOUR
It is worthwhile to refer here to a baseless rumour fabricated by the unscrupulous Abbasid caliphs. It gained so much currency that it was recorded by a number of prominent writers in their books. According to this rumour, Imam Hasan Mujtaba (P), son of Imam Ali Ibn Abi Talib (P) was one of those who took many wives and divorced them. The rumour was spread nearly a century after the demise of the Imam. It was given currency so vehemently that even many of his devotees believed it, without paying attention to the fact that such an obnoxious act was not worthy of the great Imam and could not be expected of a person who used to go on pilgrimage on foot, and who, more than twenty times, distributed 50% of his entire wealth and property among the poor.
As we know, unlike the descendants of Imam Husayn (P) who were headed at that time by Imam Sadiq (P), the descendants of Imam Hasan (P) co-operated with the Abbasids, during their insurrection against the Umayyads. In the beginning the Abbasids acknowledged their fidelity and devotion to the descendants of Imam Hasan (P), but on becoming successful in seizing power, they betrayed them and put most of them out of their way, either by killing them or by imprisoning them. In pursuance of their policy, the Abbasids started a propaganda campaign against the descendants of Imam Hasan (P), in the course of which they invented many calumnies, one of them being the charge that Imam Hasan's grandfather and the Holy Prophet's uncle, Abu Talib (P), did not embrace Islam and died as an infidel. They wanted to bring out that they themselves, being the descendants of the Prophet's other uncle, who had embraced Islam, were more deserving of being the caliphs. To achieve their purpose they spent huge amounts of money and fabricated a number of stories. A section of the Sunnis, influenced by this propaganda, still believes that Abu Talib was a disbeliever. Though the latest research by some Sunni scholars have clarified the position to a great extent, yet some doubts still linger among a section of them.
Another calumny, fabricated by the Abbasids, was that Imam Hasan (P) succeeded to the caliphate after his father, but, being a licentious person, he could not acquit himself well and had to surrender the caliphate to his keenest rival, Mu'awiyah, from whom he took money, and made himself busy with marrying and divorcing.
Luckily, the research scholars of our age have exposed the source of this fabrication. The first known person who uttered this lie was a Qazi appointed by Caliph Mansur, and detailed by him to concoct and spread rumours against the Imam. A historian, commenting on this lie, observes that if it is true that Imam Hasan (P) took so many women in marriage, then where are his children? Why is their number so small? After all, the Imam was not sterile and contraception and abortion also was not customary at that time.
We wonder at the simplicity of some of the compilers of the Shi'ah traditions. How could they write that Imam Hasan (P) was in the habit of divorcing women, when they themselves report that the Holy Prophet and the Imams have said that Allah dislikes and denounces a man who habitually divorces their wives. It never occurred to these gentlemen that they had to choose one out of the following three alternatives: (i) Divorce is not a bad thing; (ii) Imam Hasan (P) was not a habitual divorcer or (ii) Imam Hasan (P) did not adhere to the teachings of Islam. But they, strangely, not only believe in the authenticity of the traditions, saying that divorce is detestable to Allah, but also, at the same time, despite being devotees of the Imam, quote the reports that he was a habitual divorcer. They skip over such reports without making any comments on them.
Some of the traditionalists have gone to such an extent that they have reported that Imam Ali (P) was not happy with the way his son behaved. In a public speech he asked the people not to give their daughters in marriage to him, for he was in the habit of divorcing them. But, it is said, the people replied that it was a matter of pride for them that their daughters could become the marriage-partners of a descendant of the Prophet even for a short time.
It appears that some people are of the opinion that divorce is not bad, if the woman concerned and her family consent to it. They think that divorce is loathsome only if the other party does not agree to it, but there can be no objection to it if the woman is content to pass only a few days with the man in whom she takes pride.
Anyhow, that is not the real position. The consent of the woman or her parents does not mitigate the detestableness of divorce. It is detestable because Islam wants marriage to be lasting and the family life to be stable. The consent of the couple concerned does not make the position any different. Islam does not consider divorce to be loathsome only for the sake of any particular class of women. It is a matter of principle.
We have dealt with the question of Imam Hasan (P), not only with a view to repeating a false historical charge against a historical personality, but so to warn those unconscientious people who may indulge in such acts and then to justify their behaviour, may try to cite Imam Hasan (P) as an authority.
There is no denying the fact that divorce as such is loathsome and detestable in Islam.
WHY ISLAM HAS NOT PROHIBITED DIVORCE
Here a few other questions arise. If divorce is so loathsome and so disliked by Allah, why has it not been totally prohibited by Islam? Islam could at least lay down certain conditions for its validity. In that case anybody who wanted to divorce his wife, would have been judicially bound to justify his intended action before a court of law.
The second question is: What does the sentence, "Out of all permissible things, divorce is most detestable to Allah" mean? If it is permissible, it cannot be detestable and, if it is detestable, it cannot be permissible. These are two contradictory terms.
Lastly, has the judiciary, which represents the society, the right to intervene in the matter of divorce to the extent of withholding its implementation till either the husband takes back his decision or it becomes clear that no reconciliation is possible, and hence there is no alternative but to sever the conjugal bond?
We have said that, from the Islamic point of view, divorce is absolutely detestable. Islam wants the marriage-union to be strong and lasting. At that stage we raised the question that if divorce is so detestable, why has Islam not banned it? Has not Islam prohibited every detestable act like taking wine, gambling, cruelty etc? If the reply is in the affirmative then why has it not totally prohibited divorce by law? It is basically illogical to say that divorce is permissible, but at the same time detestable. If it is permissible, how can it be detestable? If it is detestable, why should it be permissible? Islam, on the one hand, frowns at the man who divorces his wife and, on the other puts no legal obstacle in his way; why?
It is a very pertinent question, and is the key to all the secrets of the problem of divorce. In fact, marriage is a natural and not a contractual relationship. Nature has laid down special rules for it. Other social contracts like sale, hire, mortgage, peace, attorneyship etc. are mere social agreements. Nature and instinct have nothing to do with them. There exists no natural law in respect of them. In contrast, a marriage contract has a special mechanism. It is to be organised on the natural desire of the two parties.
Hence, it is not surprising that a marriage contract has special rules which are different from those of all other contracts.
NATURAL LAWS IN RESPECT OF MARRIAGE AND DIVORCE
In a civil society the only natural law is the law of liberty and equality, on the basis of which all social rules should be framed. But in respect of a conjugal contract, besides the general principles of liberty and equality, nature has prescribed certain other laws also, which must be adhered to in the case of marriage, dower, maintenance and the last stage of the process, that is divorce. It is of no use to bypass nature. As Alexis Carrel has pointed out, the biological and other laws of life are as hard, ruthless and irresistible as the astronomical laws.
Marriage means attachment and union, and divorce means separation.
Nature has designed the law of marriage in such a way that man acts with a view to appropriate woman, and woman withdraws with a view to fascinate and mislead man. Man wants to take possession of the body of woman and woman wants to captivate the heart of man. The foundation of marriage is laid on love, union and fellow-feeling, and not on mere co-operation and companionship. In the family structure, the fair sex occupies the central position, and her opposite sex the peripheral one. From all this it automatically follows that nature must have had special rules for the dissolution of family life also.
We have quoted earlier an intellectual as saying that mateseeking means an attack on the part of man for the purpose of appropriation and a withdrawal on the part of woman for the purpose of enchantment and deception. Man being instinctively a hunting animal, his action is offensive and for him woman is a trophy which he must win. Mate-seeking is a battle and a struggle and marriage is appropriation and domination.
A contract which is based on love and the feeling of oneness is not enforceable by compulsion. The law can compel two people to respect their contract on the basis of equality, and to co-operate with each other, but it cannot force them to love each other, to be sincere to each other, to make sacrifices for the sake of each other and to share each other's happiness.
If we want to maintain such a relationship between two people we have to adopt some measures other than legal.
According to the natural mechanism of marriage, on which Islamic laws are based, a wife occupies the position of a person deserving love and respect in the family order. If, for some reason, she loses that position and is deprived of the love and attention of her husband, the base of the family structure falls off and the natural order is deranged. Islam looks at such a situation with regret, but it cannot assume marriage to be alive and constant even after the disintegration of its natural basis.
Islam has taken special steps to ensure that the family life retains its natural form, which means that the wife should be loved and sought after, and the husband should feel attached to her and be ready to serve her.
Islam has urged woman to beautify herself to please her husband, to give a display of her accomplishments for his sake, to satiate his natural desires and not to annoy him by disobedience. It has also exhorted man to love his wife, to show kindness and attachment to her, and not to conceal from her his love for her. These steps have been taken to make the sexual enjoyment limited to the domestic atmosphere, and to keep the wider society a field of work and activities other than sexual. Islam wants that extra-marital contacts between man and woman should be pure and unpolluted. All these steps have been taken with a view to keeping the family organisation free from the danger of dissolution and disintegration.
NATURAL POSITION OF MAN IN THE DOMESTIC LIFE
From the Islamic point of view, it is extremely insulting to a woman that the law should force her to live with a husband who does not like her. The law can force a woman to live with a particular man, but it cannot secure for her the position of a beloved and central figure in the household, which she should have. The law can force a man to support his wife, but it cannot force him to be a devoted husband.
Hence, when man's love and attachment cools down the marriage becomes ineffective from the natural point of view.
Here another question arises. If the wife's love cools down, will the domestic life be affected? Will it continue as it is or will it come to an end? If it will remain intact, then how is it that the lack of love, on the part of the husband, terminates the domestic life and on the part of the wife it does not?
Is there any difference between man and woman? If the lack of love on the part of the wife also terminates the domestic life, then naturally women should also have the right of divorce like men.
In fact, the success of the domestic life depends on the mutual attachment of both the husband and the wife. But as we mentioned earlier, there is a difference between the mentality of man and that of woman. We have already quoted the views of the scientists on this point. Nature has so arranged that woman's true and lasting love comes up only as a reaction of man's attachment to her. Hence, woman's attachment to man is the result of man's attachment to her. Nature has placed the key of their mutual love within the control of man. If man loves woman and is faithful to her, woman also loves him and remains faithful to him. Woman's faithlessness is definitely a reaction of man's faithlessness.
Nature has put the dissolution of marriage in the hands of man. It is man's apathy and faithlessness that cools down woman's love. On the other hand, woman's indifference and apathy does not affect man. Hence man's indifference to woman unlike the latter's indifference to him leads to woman's in-difference. Man's frigidity is the end of conjugal life, but woman's is not so. If man is sensible and faithful, he can always regain his wife's love by showing affection and kindness to her. It is not insulting to him to compel his annoyed sweetheart by force of law, to continue to live with him, and to pacify her gradually. But it is unbearable for a wife to resort to the force of law to retain her protector and the object of her love.
Of course, this is the case when woman's indifference is not due to the immorality or cruelty of man. If man shows cruelty, the case is different. He cannot be allowed to misuse his position and to harass or ill-treat his wife. We shall discuss this point separately.
Anyway man is in need of the body of woman and woman is in need of the heart of man. That is the difference between the two. Marriage is unbearable for woman if she does not enjoy her husband's genuine protection and sincere love.
VIEWS OF A LADY PSYCHOLOGIST
Recently an article has been published by a French lady psychologist, Beatrice Maryo, who holds a doctorate in psycho-logy and works as a psychiatrist in a hospital of Paris. She herself is a mother of three children.
In this article she has explained very well how a pregnant or a nursing woman needs the kindness and affection of her husband.
She says: "From the time a woman feels that she is going to be a mother soon, she begins to search her body. She repeatedly looks at it and smells it, especially if she is expecting her first child. She feels so inquisitive as if she were a stranger to herself and wants to discover herself for the first time. When she feels the first movements of her tiny little child in her womb, she begins to listen attentively to every sound of her body. The presence of another being in her body makes her so happy that she feels inclined to seclusion and retirement. She wants to be alone with her tiny little child, who has not yet come into this world
"Men, during the period of the pregnancy of their wives, have important duties to perform, but very regretfully they often shirk their responsibility. The future mother is in need of the feeling that her husband understands her, likes her, and protects her. Otherwise, when she finds that her belly has swollen up; her attractiveness has gone, the morning sickness has commenced, and she is afraid of childbirth pains, she would blame her husband, who had impregnated her, for all her troubles and discomforts. It is the duty of the husband to keep himself, more than ever, at the side of his wife during the months of her pregnancy. The whole family requires a kind and considerate father to whom the wife and the children may talk of their problems, their griefs and their joys. Even if their talk be meaningless or boring, it is still important."
"A pregnant woman very much wants others to talk to her of her child. A woman takes all the pride in becoming a mother. But when she finds that her husband is indifferent to the child, her sense of pride turns into a sense of contempt. She becomes sick of motherhood and pregnancy, and it becomes a sort of mortification to her. It is known that such women suffer a great deal on account of child-birth pangs The relation between mother and child is not a bilateral one. It is a trilateral relation: mother, child, and father. Even if the father is not present (as in the case of divorce), he has an important role in the internal life of the mother, that is in her thoughts and imagination, as well as in her sense of motherhood .
This is what a lady intellectual, who is both a psychologist and a mother, has said.
A STRUCTURE BUILT ON THE BASIS OF SENTIMENTS
A woman depends so much on the sincerity, kindness and protection of her husband that without his earnest co-operation even a child has little sense for her. She can endure the hardships of life only with his help. In such circumstances, how can it be possible to compel her, by the force of law, to remain attached to a man who is not willing to accept her?
Is it not ironical that, on the one hand, we create an atmosphere in which men pay little attention to their wives and sow their wild oats elsewhere and, on the other, we try to thrust their wives on them by the force of law? As a matter of policy, Islam wants that man himself should seek a woman and should like her. It does not want to thrust a woman on him.
As a general rule, where there is a question of love, devotion and sincerity, there can be no question of legal compulsion. If a husband dislikes his wife, it may be a matter of regret, but no force can be used to make him like her.
Let us give an example. As we know, in the congregational prayers there is a condition that the leader of the prayers can be only that person who is pious and in whose piety the followers have faith. In this case, the relationship between the leader and the followers is based on the piety of the former, and the faith and devotion of the latter. If the body of the followers loses faith in a particular leader, whether rightly or wrongly, this relationship is severed. The law cannot guarantee its continuity. As it is a matter of feelings and sentiments, nobody can be compelled legally to have faith in a particular person. Even if a leader of the prayers possesses the highest degree of piety and virtue, he cannot compel others to offer prayers behind him. It will be highly ridiculous to file a suit in a court of law in this respect. It is even derogatory to the position of the leader of the congregational prayers to try to force people to offer prayers behind him.
The same is the case with the relationship between the voters and the candidate for election. The people will vote for a candidate in whom they have confidence. If they do not elect a particular candidate, howsoever fit and suitable he may be, he cannot sue them.
The only thing which should be done in such cases is to train the people on the correct lines and to raise their intellectual level, so that when they perform their religious duty, they may find out the really righteous people to follow and, when they perform their social duty, they may select the really deserving people to vote for. If, by chance, the people change their opinion subsequently without any rhyme or reason, that can only be a matter of regret, but there can he no question of compulsion or legal action in the matter.
The domestic duty is exactly like the above-mentioned religious and social duties. Islam regards the family as a natural society, for the smooth running of which it has prescribed a particular procedure to be followed strictly.
It is the greatest achievement of Islam that it has prescribed this procedure, for the West has not so far been able to solve its family problems. Not only that, but problems are multiplying and new problems are being added daily to the old ones. Fortunately, as the result of scientific investigations, the position is gradually becoming clear. We are fully convinced that the Western world will gradually accept the Islamic principles and precepts regarding the family laws. Anyhow, we do not believe that the real Islamic teachings are identical with what is being practised today as such.
WHAT CONSOLIDATES THE FAMILY STRUCTURE IS MORE THAN EQUALITY
The present day Western world is enamoured of 'equality', not knowing that the question of relationship between man and woman was solved by Islam 14 centuries ago. As far as the family system is concerned, there exists something higher than equality. For civil society nature has laid down only the law of equality, but for the domestic society it has laid down other laws also. Family relations cannot be organised on the basis of equality alone. All other laws of nature, which govern these relations, should be recognised and adhered to.
EQUALITY IN CORRUPTION
Unfortunately the word 'equality' has been used so much and so often that its true sense has been blurred. It seldom occurs to anyone that equality means equality in rights. The principle of equality cannot be applied everywhere indiscriminately. It will be most ridiculous to say that everything has become all right, because in the past only men told lies to their wives and now women also tell lies to their husbands. Can we rejoice and proclaim that equality has been established, because in the past only 10% of the marriages ended in divorce and separation, and now, in certain parts of the world, 40% of the marriages end in divorce, and in 50% of the cases, it is the women who initiate the divorce action? In the past it was men who betrayed their wives and indulged in adultery, and women were mostly faithful to their husbands, but today women also betray their husbands and no longer observe chastity. Is this any improvement? Can this be called equality? In the past men often showed cruelty and callousness to their wives. They abandoned their wives and children and ran after mistresses. Now even mothers of several children, after having been married a long time ago, leave their homes to satisfy their lust, following a brief introduction to a stranger at a dance party. Does this mean the establishment of equality?
That is how, instead of seeking the cure of the social ills and consolidating the family life, we are weakening the domestic system and shaking its foundations. Into the bargain, we are happy that we are advancing on the path of equality. If this situation continues, woman will soon surpass man in corruption, perversion and callousness.
Now it is clear why Islam, though it considers divorce most detestable, has placed no legal bar on it. It is also clear how a thing which is permissible can, at the same time, be detestable and loathsome.
It is evident from the discussion so far made that Islam is opposed to divorce and the dissolution of family life. It has taken every moral and social step to save it from the danger of dissolution, but it has not resorted to compulsion and has not used the force of law. It is opposed to the use of legal force for preventing man from divorcing his wife and to constrain woman to continue to live with her husband. Islam considers such steps to be unsuited to the position of woman in the family, for sentiments and emotions are the cornerstone of family life.
It is woman who receives the warmth of the tender feelings of her husband and passes them on to her children. If the husband loses interest in his wife, the domestic atmosphere becomes cold and dingy. Even woman's motherly feelings towards her children largely depend upon her husband's attitude to her. According to an eminent psychologist, motherly affection is not an instinct in the sense that it is not subject to increase or decrease. The love and consideration which a man shows to his wife has a considerable impact on her motherly feelings.
In short, woman is to be inspired by man's sentiments and tender feelings to be able to extend her feelings to her children.
Man can be compared to a mountain, woman to a spring and children to plants. The spring must receive rain from the mountain and absorb it to be able to put it out in the form of pure life-giving water for the irrigation of flowers and plants. If rain does not fall on the mountain or it is not absorbed by the earth the spring will become dry and the plants will wither.
Just as rain is vital for the fertility of the soil, and for the thriving of vegetable life, the sentiments and feelings of man towards his wife are vital to the prosperity and happy life of the children as well as for their mother.
When the feelings and sentiments of the husband are so important for the success of family life, how can the force of law be used as a weapon against him?
Islam is strongly opposed to the ignoble action of those who divorce their old wives to have new ones. But, in the opinion of Islam, it is no remedy to force an unchivalrous man to keep his wife against his will. Such an action is not in keeping with the natural law of family life.
If the woman tries to return to the house of her husband by force of law and with the help of the executive authority, her occupation of the house will be tantamount to a military occupation. In such a case she cannot become the lady of the household, nor can she become the sentimental link between her husband and her children. She also cannot satisfy her own emotional need for love and attention.
Islam has taken steps to eliminate cases of divorce, but, as a law-giver, it does not like to force the woman, who is the centre of the family system, to live with an unchivalrous man who does not want her.
The action taken by Islam is just the opposite of what the West has done and is doing. Islam fights against the factors which lead to faithlessness and licentiousness, but it is not willing to force woman to live with a faithless husband. In contrast, the West encourages the factors leading to faithlessness and, at the same time, wants to force the woman to continue to live with a faithless and licentious husband.
Islam has utilised all its efforts to keep alive the spirit of humanity and chivalry, and though it does not force an unchivalrous man to keep his wife, it has succeeded practically in reducing the cases of unchivalrous divorce to a considerable extent. Others do not pay attention to these points and seek happiness by force and at the point of a bayonet and they have seldom succeeded.
Apart from the cases of divorce, which take place in the West on the demand of women because of incompatibility and, as described by Newsweek, love of pleasure, the number of cases, which have occurred there and are occurring there and are occurring because of the licentiousness of men, is far higher than the number of similar cases in the East.
THE NATURE OF DOMESTIC PEACE IS DIFFERENT FROM THAT OF OTHER KINDS OF PEACE
There is no doubt that there should be peace and harmony between the husband and wife, but the peace and harmony which should prevail in conjugal life is very different from the peace which should exist between two colleagues, two partners, two neighbours and two neighbouring countries. Peace and harmony in conjugal life is similar to the peace and harmony which should exist between the parents and the children. It is equivalent to tolerance, sacrifice, interest in the destiny of one another, breaking the barrier of duality and sharing the happiness and grief of each other. In contrast, peace and harmony between two colleagues, two partners, two neighbours or two neighbouring countries simply mean non-encroachment on the rights of each other. Between the two disputing countries even armed peace is enough. Should a third power intervene and set up a buffer zone between two countries to prevent a direct clash between their armed forces, peace is secured, for political peace means only non-aggression and no clash.
But domestic peace is different from political peace. In this case non-encroachment on the rights of each other is not enough. Armed peace is of no use. What is required is the union of souls, which is something higher and more basic. The same is the case with the peace and harmony between the parents and the children. In that case also something higher than non -aggression is necessary. Unfortunately, for historical and sometimes even regional reasons, the West does not realise the importance of the sentiments. For it, there is no difference between domestic peace and political or social peace. The people of the West think that as peace between two countries can be ensured by the concentration of the forces of a third power on their common border, similarly peace between a husband and a wife can be established by concentrating judicial force on the border of their life. They forget that the success of the domestic life depends on the complete disappearance of all borders.
The Westernised people of the East, instead of taking pride in their own system and pointing out to the people of the West the defects and shortcomings of their (the Westerners') family system, are so absorbed in imitation that they are unable to distinguish between right and wrong. But it will not be too long before the East gets rid of the yoke of the West completely, rediscovers its own personality and learns self-reliance. Here it is necessary to mention two points.
ISLAM WELCOMES EVERY FACTOR WHICH HELPS CHECKING DIVORCE
From what we have written some people may wrongly conclude that we are in favour of allowing men to divorce their wives at their will and pleasure. Of course, that is not the idea. What we mean is that Islam does not want to use legal force against the husband. Otherwise, Islam welcomes every action which may dissuade him from divorce. Islam has intentionally prescribed such a procedure and has laid down such conditions for the validity of divorce that they automatically delay the dissolution of marriage and, in many cases, persuade the husband to give up the whole idea of separation.
Islam has advised those who pronounce the divorce formula, and the witnesses and others, to do their best to dissuade the husband from the idea of divorce. Furthermore, a divorce is not valid unless it is pronounced in the presence of two qualified 'Adil" (Just) witnesses, who are expected to make their utmost efforts to reconcile the couple.
The present day custom that the divorce formula is often pronounced in the presence of two just persons, who may not even know the couple concerned except their names, is totally un-Islamic.
Anyhow, the necessity of the presence of two qualified witnesses is one of those factors which may dissuade the husband from divorce, provided this condition is observed strictly in its true sense. Islam does not regard the presence of two qualified witnesses as an essential condition for the validity of marriage, which is the beginning of the marital contract, because it does not want to delay a good deed. But it regards the presence of two qualified just witnesses necessary for divorce, which is the end of the contract.
Similarly, according to Islam, divorce is not effective during the woman's menstrual period, though there is no objection to the solemnisation of marriage during that period. Apparently menstruation, being a hindrance in sexual intercourse, should affect marriage and not divorce. But as Islam encourages union and discourages separation, it has allowed marriage during the monthly period and has disallowed divorce during that period. In certain circumstances, it is necessary to wait for three months before a divorce is allowed.
All these hindrances and obstacles are meant to allow enough time for the tension, which had led to the decision of divorce, to subside, and to enable the husband and the wife to resume their normal life.
Furthermore, in the case of revocable divorce, the husband is permitted to resume conjugal relations during the period of probation iddah (waiting period).
Islam has placed another obstacle in the way of the husband, by imposing on him the expenses of marriage as well as those of the period of post-divorce probation for wife and of the care of children. If a man wants to divorce his wife and marry another woman, he has first to pay the maintenance of the first wife, to undertake the responsibility to bear the expenses of the children, and to fix the dower of the new wife. Furthermore, he has to shoulder the responsibility of supporting the second wife and the children which may subsequently be born.
Apart from the responsibility of looking after the children, their woeful plight offers the husband a fearful prospect and prevents him from taking a decision to resort to divorce.
In addition to all this, Islam regards it necessary that in the case of the apprehension of breach and dissolution of family life, a family court consisting of two arbiters, one representing the husband and the other representing the wife, is constituted to arbitrate between them.
The arbiters should do their utmost to settle the dispute between the husband and the wife and, if necessary, they should consult them for this purpose. They can dissolve the marriage only if they find that reconciliation is impossible. As far as practicable, the arbiters should be selected from among the relatives of the couple, provided suitable people are available among them.
The Holy Qur'an says: "If you fear a breach between the two, appoint an arbiter from his relatives and another from hers. If they both desire compromise, Allah will afford harmony between them. Surely Allah is Ever-Knowing, Aware', (Surah an-Nisa, 4 : 35).
The author of the Kashshaf, explaining the word, 'arbiter' says that the person selected to arbitrate should be trustworthy, eloquent and capable of bringing about a reconciliation and doing justice to both the parties. He further says that it is preferable to select the arbiters from among the relatives of the couple because they are expected to know the causes of the dispute better and both the parties can talk to them freely and repose confidence in them.
The jurists differ on the question whether arbitration is obligatory or only desirable. The most eminent among them are of the view that it is the job of the government to appoint the arbiters. Shaheed Thani in his book, 'Masalik' has formally expressed the legal opinion that arbitration is obligatory and it is to be arranged by the government.
Sayyid Muhammad Rashid Riza, the author of the Qur'anic Commentary, 'Al-Manar', after giving the opinion that arbitration is obligatory, refers to the difference of opinion among the jurists on this question and says that, practically, the Muslims do not follow this wise rule and thus are deprived of its unlimited benefits. The scholars unnecessarily waste their energy on arguing whether arbitration is obligatory or only desirable, while nobody takes steps to implement it. If a rule is not to be implemented, then what difference does it make whether it is obligatory or desirable?
Regarding the conditions which the arbiters can impose on the husband to secure a reconciliation, Shaheed Thani says that they can for example bind him to keep his wife in a particular town or a particular house; not to accommodate his mother or his other wife in the same house not even in a separate room; to make prompt cash payment of the dower fixed at the time of marriage; or to make immediate payment of any loan he might have taken from his wife.
In short, any suitable action to dissuade the husband from repudiating the marriage bond is valid and desirable.
This is the answer to the question we raised earlier i.e. whether or not, the judiciary which represents society has the right to intervene and prevent the dissolution of marriage.
The judiciary can intervene because the husband's decision to divorce his wife is not, in all cases, a sign of the final collapse of the conjugal bond. Such a decision may be taken in a fit of rage or may be the result of some misunderstanding. Any action taken by the society to prevent the implementation of such a decision is welcomed by Islam.
A court of arbitration, being the representative of the society, can direct the divorce offices not to finalise the action on a divorce case, till the court intimates them of its failure in bringing about peace and harmony between the husband and the wife.
THE WIFE'S PREVIOUS SERVICE TO THE HOUSEHOLD
The unchivalrous divorce, besides dissolving the sacred family life, creates such other positive problems for the wife that they cannot be ignored. Suppose a woman lives in the house of her husband for years, takes his house to be her own and most sincerely works hard to build it up and give it a shape. She, as is the case with most of the women with the exception of those belonging to the modern urban society, cuts down the expenses on food and clothing, sometimes even to the annoyance of her husband, and hesitates to engage a servant to help her in the household work. She sacrifices her youth, energy and health for the sake of her husband and her household. Now, if the husband of such a woman, after years of a joint life, wants to divorce her to marry another woman, he not only wants to bring to nought all the efforts and aspirations of his wife, but also wants to indulge in sexual pleasure at her expense.
This is not simply a case of the dissolution of mental life, and hence, it cannot be said that it is below the natural position and dignity of woman to thrust herself on a man who does not want her.
Here other questions are also involved the question of becoming homeless for the wife, the question of handing over one's house to a rival and the question of the wastage of all her efforts and services in the past.
Every human being wants a home of his or her own and feels attached to the home built by his or her own hands. If you try to turn a bird out of the nest it has built, it will certainly resist and defend itself.
In our opinion, the problem is fully worth considering. In such cases, divorce not only means the dissolution of marriage, but also brings women to complete ruin.
Anyhow, the question of home is distinct from that of divorce, and the two questions should be considered separately. From the Islamic point of view, normally this problem should not arise. It arises owing to the ignorance of Islamic rules and regulations and the exploitation of women's goodwill and faithfulness, by men.
Most of the people suppose that all the fruits of woman's labour belong to her husband. They even think that the husband can force his wife to work for him and she has to obey all his orders like a slave. This wrong notion is the root-cause of all the trouble. As we have repeatedly pointed out, woman has full freedom as regards her work and activity. Whatever she earns belongs exclusively to her. Islam has given her economic independence. In addition, it has made the husband responsible to bear the expenses of his wife and children. Thus, Islam has provided woman enough opportunities, from the financial point of view, to lead a respectable life independent of man. Divorce and separation should not cause her any anxiety in this respect. All the things which she might have collected to build up her home belong to her and her husband has no right to seize them. Such apprehensions are justified only in the systems, which force woman to work in the house of her husband and regard the fruits of her labour as belonging to him. The misgivings which exist among our people are probably due to their own ignorance of the law.
Another cause of the trouble is the exploitation of the faithfulness of woman by man. Some women make sacrifices, not because they are unaware of the law of Islam, but because they are over confident of the sincerity of their husbands. They want that there should be no question of 'my money and your money'. They do not care to take advantage of the opportunity given to them by. Islam. They are suddenly disillusioned and find that they have wasted their lives in making sacrifices for an unfaithful man and have lost the opportunity given to them by their religion.
If a wife is expected to give up her legal right of keeping a separate account of her money and her earnings, the husband is also expected that, in consideration of her sacrifice and the service rendered by her, he should make presents to her and offer her gifts. The Qur'an says: "When you are greeted with a greeting, greet with one better than it or at least as kind"
(Surah an Nisa, 4:86). It has always been customary among the good people to present the wife with valuable articles, like a house or other property, as a gift.
Anyhow, what we mean is that the problem of becoming homeless is not related to divorce and that it cannot be rectified by changing the concerned law. This problem is related to the question of economic independence of woman and that question has already been solved by Islam. This problem has arisen because of the ignorance of some women, and the simplicity of others, and will automatically be solved if women know the teachings of Islam on this point and do not show too much simplicity while dealing with their husbands.
We have said earlier that there are two aspects of divorce which cause all the hardships. One of them is that there are cases of divorce, which are due to the unfaithfulness, and unchivalrous attitude of some husbands. The other aspect is that, even when there is no chance of harmony between a husband and a wife, some husbands withhold divorce, not with a view to living with the wife but with a view to harassing her.
We have mentioned before that Islam welcomes every means of preventing unchivalrous divorce and has taken its own measures to eliminate it as far as possible. Anyhow, Islam is opposed to the application of force for the purpose of maintaining conjugal relations.
Islam regards the family as a living unit, and endeavours to keep it alive. But if it dies, Islam's verdict is that it should be buried. Islam does not like it to be mummified and kept active artificially.
We have learnt that the reason why man has the right of divorce is that the conjugal bond is based on a natural relationship which has its own natural rules. Nature has put the key of its consolidation or destruction into the hands of man. The husband and the wife, each has, by nature, a specific position, which cannot be changed, nor can their positions be unified. This specific position gives rise to certain rights and obligations, the right of divorce being one of them. In other words this right is due to the special and specific role which man and woman, each plays in seeking a partner in life.
RIGHT OF DIVORCE IS DUE TO MAN'S SPECIAL ROLE AND NOT TO ANY PROPRIETARY RIGHTS
Now you can easily assess the value of the propaganda which is carried out by anti-Islamic elements. They allege that Islam has given the right of divorce to man, because it does not recognise woman to have free will, or to possess any desires or aspirations. They say that Islam includes woman in the category of non-living objects, and not in that of living people. That is why it has given man proprietorial rights over woman. Naturally such rights include the right of emancipation.
We have shown that the Islamic family law is not based on the masterhood of man and the serfdom of woman. Islam's philosophy is more subtle and far higher than the intellectual level of these writers. Through divine inspiration Islam has grasped the very essence of the basis and structure of the family system. Science is now unravelling some of the mysteries solved by Islam 14 centuries ago.
DIVORCE IS RELEASE IN A SENSE
The anti-Islamic elements say that divorce should definitely have a judicial form and not that of a release or relief. The fact is that divorce has an aspect of release, because marriage has an aspect of appropriation. It is not possible to change the law of mate-seeking, according to which male and female have separate roles, and the natural state of marriage apparently resembles appropriation. As far as sexual relations are concerned, nature has prescribed distinct roles to a male and a female, both in the case of human beings and animals. Divorce could have been deprived of its aspect of release only if it had been possible to change the law of nature.
A critic says that generally the Shiah jurists describe the marriage contract as a binding contract, but it appears that according to Islamic law it is binding only in the case of the wife, for the husband can annul it at his will and pleasure. He adds that it is disgraceful to give the husband the right of divorce during this age of the atom, artificial moons and democracy.
It appears that this gentleman and others, who think on similar lines, do not differentiate between annulment of a marriage and divorce. When it is said that the contract of marriage is a binding contract, it means that neither the husband nor the wife has the right to annul it. If a marriage is annulled (as it happens in certain exceptional cases) it is treated as if it was never contracted and no legal effects flow from it. The woman cannot claim her dower. The man has no responsibility to support her during the period of probation. On the other hand, in the case of divorce, the marriage bond is dissolved, but its legal effects are not totally nullified. For instance, if a man divorces his wife after even one day's conjugal life, he has to pay the full dower and has to maintain her during the period of probation. In case he divorces after contracting the marriage, but before its consummation, he will have to pay half the dower. As in this case woman has no period of probation and the question of maintenance does not, therefore, arise. Thus, it is clear that divorce does not nullify all the legal effects of a marriage contract. It is also clear that divorce is different from the annulment of a marriage and that the right of divorce is not contradictory to the fact that a marriage contract is binding. There are two aspects specified in Islam annulment of marriage and divorce. A marriage may be annulled owing to a serious physical defect being discovered in either husband or wife. In this regard, both of them have equal rights. Only the right of divorce belongs exclusively to man.
The fact that there are separate rules for divorce and the annulment of marriage shows that Islam has not accorded the right of divorce to man because it wanted to give him any preferential treatment.
PENALTY FOR DIVORCE
With a view to preventing divorce, certain legal systems prescribed a penalty. We do not know whether any such law still exists anywhere in the world. Anyhow, the historians say that the Christian Emperors of Rome imposed a fine on those who divorced their wives without any valid reason.
Obviously it is another form of the use of force for the maintenance of family life, and hence cannot be of much avail.
DELEGATION OF THE RIGHT OF DIVORCE TO WIFE
We have so far dealt with the natural right of divorce which belongs exclusively to the husband. But he can confer the power of divorce on the wife. This delegation of power can either be general or limited to certain specified circumstances. To make it irrevocable it is included in the marriage contract as a binding clause, according to which the wife is empowered to dissolve the marriage in the specified circumstances already agreed upon.
It has been customary since the olden days that the women, who feel, in any way, apprehensive of the conduct of their husbands, insist on the inclusion of such a clause in the marriage contract and exercise the power delegated to them, if necessary.
Thus, according to the Islamic law, though woman does not have the natural right of divorce, she can have the contractual right of the dissolution of marriage.
Hence, it is not correct to say that the right of divorce is unilateral and Islam has given it only to man.
Judicial divorce means the dissolution of marriage by a judge and not by the husband. In a large number of countries only a court is competent to effect divorce and to dissolve marriage. According to this system, every divorce is a judicial divorce. We have already made it clear that, in view of the spirit of marriage, the aim of the formation of a family and the position held by woman in the family, a divorce, which runs its normal course, cannot depend upon the decision of a judge.
Now we would like to see whether, from the Islamic point of view, a judge has no power to effect a divorce or there are any circumstances, howsoever exceptional, in which he can do so.
Divorce is the natural right of the husband, provided his relation with his wife run their normal course. Normally, if he wants to live with her, he should look after her, discharge all the rights belonging to her and treat her kindly. If he finds it impossible to live with her smoothly, he should pay up all her dues and part with her. Besides her dues, he is also required to pay her an additional sum as a token of goodwill and gratitude. The Holy Qur'an says: "Provide for them, the rich according to his means, and the strained according to his means, a fair provision', (Surah al-Baqarah, 2 : 236)
But there may be cases when the conjugal life does not run its normal course. There may be a man who neither wants to live happily with his wife nor would he agree to divorce her.
Natural divorce may be compared to a natural child-birth, which automatically takes its normal course. But the divorce by a man, who is not willing to discharge his duty and does not agree to divorce, of his own accord, is comparable to an abnormal delivery which requires a caesarean operation by a surgeon.
ARE CERTAIN CASES OF MARRIAGE INCURABLE LIKE CANCER?
In such cases divorce does not depend on the will and pleasure of the husband. If such a man is not willing to divorce, the woman cannot be allowed to endure the agony without having a remedy. Islam does not play the role of a silent spectator in such cases.
Many people are under the false impression that from the Islamic point of view, such a situation is incurable. They think that it is a sort of cancer which afflicts some unfortunate people, but cannot be cured and so the woman has no alternative but to continue to suffer patiently till she dies.
In our view this mode of thinking is repugnant to the principles of Islam. Islam is a religion which always upholds justice. The establishment of a just society has been the basic aim of all the Prophets. The Holy Qur'an says: Certainly we sent Our Messengers with clear proofs and sent down with them the Book and the Balance, so that humankind may conduct itself with equity. (Surah al-Hadid, 57:25) Islam cannot tolerate such a flagrant injustice, nor can it be imagined that it would formulate a law which may cause a malady comparable to cancer.
It is regrettable that some people, who admit that Islam is a religion of justice, still hold such a view. If one 'black law' can be attributed to Islam and accepted as a cancer, there can be no valid objection to regarding some other 'cruel' laws as tetanus, tuberculosis, paralysis etc.
Such an allegation is against the principle of justice, which is a cardinal principle of Islamic law.
Further, if it is possible to remove the cancer by a simple operation, will it not be wise to take prompt action and relieve the patient of his disease?
Take the case of a woman who joins a man in all earnestness as his partner in life, but subsequently the man ceases to take interest in her. If the man misuses his powers, does not divorce her and keeps her, in the words of the Qur'an, 'hanging', not because he wants her to live with him as his wife, but just to prevent her from seeking another suitable husband, such a woman is really afflicted with a cancer. But this cancer is easily operable, and after one operation the patient is expected to recover fully. This operation can be performed by a qualified judge only.
As stated earlier, it is a big problem of our society that some callous husbands refuse to divorce, and thus perpetrate a grave injustice. They use religion as a pretext to justify their highly objectionable conduct. When they say that woman should bear patiently their high-handedness as an incurable cancer, they certainly bring a bad name to Islam.
Though the subject is rather technical, yet we propose to discuss it briefly, to remove the doubts of the evil-minded persons and to elucidate the teachings of Islam in this respect.
Some deadlocks are not peculiar to the questions of marriage and divorce. They appear in other spheres also, such as those related to the financial problems. Let us first see how Islam has dealt with the deadlocks in these areas. Has it removed them or accepted them as an irremediable phenomenon?
Suppose two people, through inheritance or some other way, come to own an indivisible article such as a diamond, a ring, a vehicle or a painting and they are not willing to use it jointly or by turns. Neither of them is also ready to sell his share to the other partner. They also do not agree on any other formula for its use. The article is being wasted, because obviously neither of them can use it without the consent of the other. What is to be done in such a case? Should the problem be left unsolved and the article be allowed to remain un-utilised? Has Islam found a way out of such an impasse?
The fact is that Islamic law does not regard such questions as insoluble. It does not admit that the right of ownership can lead to the non-utilisation of any property. It allows the courts of law to intervene in such cases and put things right. Even if the parties concerned do not want to submit the matter for adjudication, the court can still order the article in question to be let out or sold. The hire charges or the sale price will, of course, be divided between the owners, but the court can take action with or without their consent.
In such cases the right of ownership is not taken into consideration because of the involvement of another principle, namely, the. prevention of wastage. The right of ownership is to be waived in such cases, because it is to be respected only so far as it does not lead to the total loss and sheer wastage of the property.
Suppose two persons own a diamond, a sword, or something else of that sort. Neither of them is willing to sell his share to the other, but both of them agree to divide it into two pieces so that each of them may take one-half of it. Obviously a diamond, a sword or a car, when divided into pieces, becomes useless and loses its value. Islam does not allow such wastage.
A great jurist, Allamah Hilli, says that the legal authorities should not allow anyone to resort to such an action. The fact that an agreement exists between the owners of the article concerned will not do in such cases.
DILEMMA OF DIVORCE
Now let us see what is to be done about the question of divorce. If a husband is uncompromising and does not discharge all or some of his financial (maintenance), moral (good-fellowship) and sexual (right of co-habitation and intercourse) duties and obligations, enjoined upon him by Islam, and at the same time, is not willing to divorce his wife, what action is to be taken? Does there exist sufficient cause to allow the judicial authority to intervene?
VIEW OF AYATULLAH HILLI
A great jurist of recent times, Ayatullah (Shaykh Husayn) Hilli of Najaf (Iraq) has dealt with this point in his treatise, 'Conjugal Rights'. Here is the summary of his views:
Marriage is a sacred contract and at the same time a sort of partnership between two persons who make certain commitments to each other, the execution of which ensures their happiness. That is not all. In fact, the felicity of the whole society depends upon the success of their relations.
The main rights of the wife consist of maintenance, cohabitation and good fellowship.
If the husband avoids carrying out his commitments and also abstains from divorcing his wife what should a woman do and how should she behave towards her husband? There are two possible alternatives. Either a Muslim judicial authority should intervene and pronounce the divorce ex parte, or the wife should also refuse to carry out her commitments.
The first alternative is supported by the following verses of the Holy Qur'an: Divorce may be pronounced twice: then either a woman must be retained in good fellowship or released in kindness. (Surah al-Baqarah, 2 : 229). In other words, the right of divorce and its revocation can be exercised twice only. Thereafter, there are only two alternatives, either magnanimous retention or release in kindness.
Again in the Surah al-Baqarah, (2 : 232) the Qur'an says:
When you have divorced your wives, and they have reached their prescribed term, either retain them with honour or release them in kindness; Do not retain them by force to harm them. Whoever does that wrongs himself
From these verses, a general rule can be deduced. A husband has either to retain his wife and carry out all his duties and obligations magnanimously, or to release her and sever the conjugal bond. From the Islamic point of view there is no third alternative. The words, "do not retain them by force to harm them" deny the third alternative of neither divorcing the woman nor retaining her justly or magnanimously. These words, in a more general sense, include the cases of both doing harm to the woman intentionally and simply ignoring her rights and interests by not divorcing her.
These verses expressly refer to the question of the revocation of divorce and lay down that the revocation should be on a solid basis, with a view to keeping the woman as a partner in life and not with a view to doing harm to her. But, in their scope, the verses are not limited to this question only. They lay down a general rule applicable to the rights of wife at all times and in all circumstances. As a general rule, the husband has to choose one of the above two alternatives throughout his married life. There exists no third alternative for him.
Some jurists have wrongly limited the scope of these verses. They are of the view that they are applicable only to those husbands who want to revoke their divorce during the period of probation (iddah). In fact, this view is not correct. Apart from the context of these verses, the Holy Imams, as authority, have quoted them in other cases also. For instance, Imam Baqir (P) has said that a husband who swears that he has nothing to do with his wife and in pursuance of such an oath (ila') abstains from her society, has only two alternatives at the expiry of a period of four months. Either he should break his oath and make atonement (kaffarah) for his improper behaviour, or he must immediately divorce his wife, for Allah says: Either retain her (the woman) in good fellowship or release her in kindness. (Surah al-Baqarah 2 : 229)
On another occasion, when a man had appointed an agent to contract a marriage and fix the dower on his behalf, and later the principle denied the delegation of such powers, Imam Sadiq (P) said that the woman could choose another husband for herself. When the man knew in his heart that he had appointed an agent and delegated him the power to contract a marriage, but later denied it, then he must pronounce divorce, so that his conscience might be cleared, for Allah has said: "Either retain a woman in good fellowship or release her in kindness". These instances show that the Imams believed the verse to constitute a general principle.
In case a husband neither carries out his conjugal obligations nor does he divorce his wife the religious court should summon him and call upon him to pronounce divorce. If he declines, the court itself can declare the marriage to be dissolved. According to a tradition, Abu Basir has reported that Imam Sadiq (P) said: "If a husband does not maintain his wife, it is the duty of the court to dissolve their marriage, by enforcing a divorce." This in a nutshell is the view of a jurist of the first rank of the present age. He who wants to know its details should consult the book Huquq-uz-Zawjiyyah" which consists of the lessons of the grand author.
As you must have observed, the verse, 'Either retain in good fellowship or release in kindness' constitutes a principle, within the framework of which Islam has prescribed the rights of the wife. According to this principle and the strict order contained in the sentence: 'Retain them not for injury, 'Islam does not allow any wicked man to misuse his powers and to keep any woman in straits to prevent her from marrying any other person.
Besides the above arguments quoted from the treatise, 'Conjugal Rights', there exist other arguments also, which support the view that the verse, 'Either retain in good fellowship or release in kindness' is from the Islamic point of view, a general rule which covers all the rights of the wife. The more one looks at the various aspects of this rule, the more he realises the soundness of the teachings of Islam.
In al-Kafi, Vol. V, Imam Sadiq (P), is reported to have said that when a man wants to marry a woman, he should say:
"I acknowledge the pledge taken by Allah 'Either retain in good fellowship or release in kindness'."
The Holy Qur'an says: How can you take it (the dower) back, when you have intimated with each other, and they (wives) have taken from you a strong pledge (of making a full payment of dower to them). (Surah an-Nisa, 4:21) The commentators of the Holy Qur'an, both the Shiah and the Sunni, admit that here a 'strong pledge' denotes the verse, 'Either retain in good fellowship or release in kindness.' This is the pledge to which Imam Sadiq (P) referred, when he called on the people to acknowledge the pledge of Allah at the time of marriage.
Both the Shiah and the Sunni sources report that on the occasion of the Farewell Pilgrimage (his last pilgrimage) the Holy Prophet said: "Fear Allah in respect of women, for you hold them in trust for Allah, and you have been allowed to enjoy them by His word."
The well- known historian - theologian, Ibn al-Athir, writes that the 'word of Allah' in this saying of the Prophet refers to the Qur'anic verse - "Either retain them in good fellowship or release them in kindness."
VIEW OF SHAYKH TUSI
Shaykh Tusi, expressing his views regarding the cases of impotence, says that after it is proved that the husband is sexually impotent, the wife has the option of dissolving the marriage. He says that all the jurists are unanimous on this point and in support of their view they cite the verse: Retain in good fellowship or release in kindness. An impotent man, being unable to perform his conjugal duties, cannot keep his wife in good fellowship and should, therefore, release her.
The views quoted above, on the whole, prove that Islam does not allow any man to misuse his right of divorce and keep his wife as a prisoner. Anyhow, it should be noted that every judge is not competent to intervene in such matters. Islam has laid down very hard and fast qualifications for a judge (Qazi).
It is worth noting that the cases of judicial divorce should be exceptionally rare, because Islam is anxious to preserve the family life as far as practicable. Islam cannot allow the divorce to take the form that it has taken in Europe and America, the instances of which we daily read in the newspapers. For example, a woman demanded a divorce because her husband did not like the film she liked. Another woman wanted a divorce on the plea that her husband did not kiss her beloved dog. Many other similarly ridiculous and flimsy pleas are advanced daily. They only reflect the decline of humanity.
In a preceding chapter we mentioned, in the following order, five theories regarding divorce:
(1) There should be no moral or social restrictions on divorce;
(2) Marriage constitutes an eternal bond. Divorce should be totally banned; (View of the Catholic Church)
(3) Marriage is dissolvable by man and not by woman;
(4) Marriage is dissolvable both by man and woman but with certain conditions. The procedure of its dissolution is the same for both of them; (View of the supporters of equality of rights).
(5) The way to divorce is open for both man and woman, but their way out is separate.
As we said in the above mentioned chapter, Islam supports the last theory. From what we have said about the possibility of the delegation of the power of divorce to the wife, as an integral condition of the marriage contract and the possibility of judicial divorce, it is evident that though Islam does not recognise that woman has any natural right of divorce, yet it has not completely slammed the door of exit to her.
The question of judicial divorce can be discussed further, especially with reference to the views of the jurists of various schools of law, but we think that for our present purpose we need not go into further details.