From our previous discussions we hope it has become clear that Islam is opposed to divorce and the dissolution of the family home; it is her enemy in and Islam has resorted to various kinds of moral and social precautions to safeguard the environment of the family against the danger of its breaking up. Islam has used every means and every weapon to avoid the occurrence of divorce except force and the weapons of the law.

Islam is against the use of force and the weapons of the law to restrain man from divorce and to keep the wife in the house of her husband. It is considered incompatible with the position and the status which a wife should maintain within the family. The reason for this is that the main pillar and the foundation of home life are the affections and the sentiments; and the person who should be the recipient, the central object and the beneficiary of the kindness and love, and who should in her own turn transmit this love and affection to her children is the wife. Apathy and coldness in the affections of a husband towards his wife makes the family environment dark and dismal. The sentiments and the attitude of the husband towards his wife have much bearing even upon the motherly feelings of the wife towards her children. According to Beatrice Marbeau, whose extract we quoted in the previous section, motherly feelings are not instinctive in the sense that in all circumstances it follows that a mother will always have the same warmth of feeling, not more and not less. The kindness and affection of her husband towards her have a great effect on her maternal feelings.

The result is that wife should receive kindness and affection from her husband so that she may be able to feed her children at the bountiful springs of her love and affection.

The husband is like the highlands, the wife is like a spring and the children are flowers and plants. The spring receives and stores the rain from the highlands so that it may give rise to clean and limpid streams which will irrigate and cause flowers, plants and meadows to flourish. If rains do not fall on the highlands, or if they are of a kind that does not absorb anything, the springs will dry up, and the flowers and plants will fade and die.

So just as the main source of life for plains and fields are the rains, especially the rains of the highlands, the main source of family life is the kind and affectionate feelings of the husband towards his wife. It is from these sentiments that the wife’s life as well as that of the children is serene, bright and flourishing.

How can it be possible to have recourse to the law as a weapon and scourge against the husband, when the sentiments and affections of the husband towards his wife have this vital position and produce this animating effect in the very spirit of the life of the family.

Islam is completely against unmanly divorce, by which we mean that a man after undertaking to live with a woman as a husband, and after living together with her for a period, takes a fancy to a new woman, or indulges in some other aspiration, and drives away his former wife. However, the remedy, according to Islam is not to force the unmanly husband to keep his wife. This kind of keeping is intrinsically incompatible with the natural law of family life.

If the wife wants to return to the house of her husband by the power of the law and the administration, she can forcefully secure the occupation of that house, but she cannot regain the position of the woman of that family and be the intermediary in reviving the  affections of her husband and transmitting them to the children. She is also unable in this way to satisfy her own inward urge to receive the devoted affections of her husband.

Islam has endeavoured to do away with unmanliness and with unmanly divorces, and has advised men they should be generous towards their wives and behave towards them with affection and kindness. Nevertheless, in its capacity as law-giver, and bearing in view the position of the woman as the centre of the family system and as the intermediary in the receiving and transmitting of sentiments, Islam does not agree with forcibly and compulsorily retaining the woman in the home of an irresponsible person.

What Islam has done is exactly the opposite of what occidentals and worshippers of the west have done and are doing. Islam vehemently fights against the factors of unmanliness, faithlessness and promiscuity, but it is not willing to force a woman to stay with an unmanly and faithless person. Nevertheless, every day occidentals and those who worship the West add to the factors which cause waywardness, promiscuity and sensual gratification in men and then want the woman to remain with a promiscuous, faithless and irresponsible man.

We hope it will be acknowledged that, in spite of the fact that Islam has not forced wives to stay with undesirable persons and has set them at liberty; it has diverted all its endeavours towards enriching the human spirit and its decency. It has been able in fact to lower the number of unmanly divorces by its very noticeable sense of equilibrium, although others, who are unmindful of these matters, which resort to force and try to get everything they want at the point of the bayonet, have had very little success in this connection. With the exception of these cases of divorce which take place on the initiative of wives on the plea of incompatibility, and, in the words of Newsweek, because women are becoming more demanding of sexual gratification……those cases of divorce which have taken place and are still taking place there through the capriciousness of husbands to gratify their sexual whims far exceed in number the cases which take place in our midst.  

The nature of peace in the family is different from all other forms of peace:

Peace and amity should definitely exist between wife and husband. Nevertheless, the peace and amity which should pervade family life are very different from the peace and amity that should obtain between two colleagues, two partners, two neighbors or two adjacent countries which have common frontiers.

The peace and amity in the life of the married couple is similar to the peace and amity that should subsist between parents and their sons and daughters; which means generous treatment, self-denial, concern with each other’s future, breaking down the barrier of duality, considering the happiness of the other to be his or her own happiness and the misfortune of the other to be his or her own misfortune. This is different from the peace and amity that holds between colleagues or partners, or neighbours or two countries.

The peace which we mean by the peace between colleagues and so on signifies non-intervention in, and non-encroachment on, the rights of each other. Between two enemy countries even ‘suspension of armed hostilities’ is sufficient. If some third power interferes and occupies the border-land between the two countries and hinders the armed confrontation between the two countries, peace subsists, because a political peace has no other meaning than non-intervention and non-interference.

However, the peace of the family is different from political peace. In the peace of the family, non-encroachment on the rights of one by the other is not sufficient. An armed peace is of no avail. Something both more advanced and more basic is needed. Unity, oneness and the union of spirits into a single whole should be established as in the case of the peace and amity between, fathers and sons, and something more exalted than non intervention is necessary. Unfortunately, because of certain historical reasons and possibly because of its geographical position, the west is stranger to sentiments (even within the environment of the family). In the thinking of westerner, the peace of the family has little difference from a political or social peace. According to the same pattern as the accumulation of strength on the border of two countries, he makes peace. He wants to make peace while focusing his strength on the frontier of the lives of the wife and the husband, and he is oblivious to the fact that the foundation of family life rests upon the dissolution of these frontiers, upon oneness and upon considering every other power as foreign.

Instead of diverting the attention of occidentals towards their mistaken conception of family life and their pride in their own impressive individuality, the worshippers of the west are so far lost in imbibing occidental ways of life that they are utterly confused and have even forgotten themselves. But this state of being lost to them cannot last for ever. The time when the east will discover her own personality, rend asunder this halter of worshipping the west, and rely on its own ways of thought and its own philosophy, is not far off.

At this stage, it is necessary to mention two points.

1. Islam welcomes any factor that will do away with divorce:

Some persons may possibly have got the impression from what we said so far, that we believe that there should he no obstacle for a man to divorce, and that as soon as a man makes up his mind to divorce, the way to it should be cleared for him in every respect and from all directions. No, we never meant such a thing. What we said concerning the Islamic view was only that there should be no recourse to compulsion and legal force as a deterrent to prevent a man from divorce. Islam welcomes everything which could be instrumental in dissuading a man from divorce, and has purposely laid down conditions and has ordained hard and fast rules which naturally have the effect of delaying, and may, in all probability, result in dispensing with, the divorce.

Besides advising the administrators of the marriage oath (sighah), the witnesses and others to make efforts to dissuade the man from divorce, Islam has ordained that the divorce should not be considered lawful and rightly administered except in the presence of two righteous witnesses. This condition is for the good reason that when a divorce is to be administered in their presence, because of their righteousness and piety, they will try their best and make an extreme effort to bring about reconciliation between the wife and the husband.

Despite this, the present practice is that the person carrying out the divorce pronounces the divorce before two righteous witnesses who have never seen the husband and the wife before and do not recognize them. Only the names of the wife and the husband are mentioned before them. However this is all a meaningless routine and it has nothing to do with the viewpoint and the purpose of Islam. In our midst the practice is that those carrying out the divorce gather two righteous persons and pronounce the names of the wife and the husband before them, for example, they say: “The husband is Ahmed and the wife is Fatimah; I, as a representative of the husband, divorce the wife.” However, who are that Ahmad and Fatimah? And have the righteous witnesses, who listen to the pronouncement of words of divorce, ever seen them. If there arises an occasion some day when evidence is required, could they bear witness that the divorce of these two particular persons was administered in their presence? Of course not I am quite sure.

In any case, one of the things which, tends to dissuade men from divorce is the presence of these two virtuous persons, provided that the right method is adopted. Islam has not laid down the presence of two righteous persons as a necessary condition for marriage, which is the beginning of the contract because it did not want to cause practical delay in a virtuous deed. But for divorce, in spite of its being the end of the contract, the presence of two righteous persons is laid down as a necessary condition.

Like wise, Islam has not laid down that the woman’s monthly period of menstruation should be an obstacle in the performance of the marriage agreement, while it has laid down this thing as an obstacle to obtaining a divorce, even though, as we know, menstruation (as far as the Divine law is concerned) prevents the husband and wife having sexual intercourse and thus has relation to marriage but not to divorce which is the occasion of a final separation, from which time on the man and the woman will have nothing to do with each other. Normally speaking, Islam should have prohibited the marriage agreement taking place during the period of menstruation, so as to avoid the danger of an infringement of the necessary staying apart of a man and woman who are with each other for the first time. Divorce, on the other hand, results in separation, and menstruation is of no consequence in this connection. Islam for all its being in favour of ‘union’ as against ‘separation’, laid down the monthly period as an obstacle to the lawfulness of divorce, while Islam did not deem it necessary that this period should stand in the way of the lawfulness of the marriage contract. In some cases a period of three months during which no intercourse took place is required before it is permissible to divorce.

It is evident that all these obstacles and hindrances are meant to ensure that during this period the violence of passions and the displeasure which may have contributed to the decision to divorce should subside, that the man and the woman may have time to make amends, and thus the divorce may be dispensed with.

Besides that, when the cause of the divorce is the displeasure of the husband and the divorce takes place in the form of a revocable divorce, the man is allowed period of grace called ‘iddah, during which he can revoke the divorce and return to his wife.

Since Islam has laid down that the expenses of the marriage, the expenses of the period of iddah, and the expenses of the maintenance of the children should be the responsibility of the man, it has there by devised a practical obstacle to a man’s going to that length. A man who wants to divorce his wife and marry some other woman must pay for the maintenance of his former wife during the period of iddah, he must be responsible for the expenses of the children that he may have had by the wife he is divorcing, he must provide a dower for the new wife, and he must once more bear the burden of the living expenses of the new wife and the children that are born to her.

These things, in addition to the responsibility of the supervision of the motherless children, present an awful prospect for the man who would divorce. All these things are themselves a check on his determination to divorce.

Over and above all these things, where there is a fear of the dissolution and the break up of the family peace, Islam has required that a family “tribunal” be formed and set in motion. It should be arranged in this manner, that one individual arbiter representing the husband and another representing the wife be chosen to investigate and reconciliate.

The arbiters have to try their best to remove the hurdles and differences, and if then, after direct consultation with the wife and the husband, they discern that separation between them is the only remedy; they can carry out a separation between them. In the event that persons having the ability to arbitrate can be found in the families of the wife and the husband, they are to be preferred to the others; this is the actual saying of the Qur’an. In verse 35 of the chapter an-Nisa’ (The Women), the commandment comes in the following words:

And if you fear a breach between the two, bring forth an arbiter from his people and from her people an arbiter, if they desire to set things right; Allah will compose their differences; surely Allah is All-knowing, All-aware.

The writer of the commentary al-Kashshaf, commenting upon the word          ‘arbiter’ writes: “the person who is selected, should be trustworthy, influential and impressive in his talk, acceptable and capable of proper peace-making arbitration”. He afterwards says that the reason the arbiters should be selected in preference from among the members of the families of the husband and the wife is that closely related persons better know the actual position that exists between them. Besides that, since they are relatives, they are more interested in their reconciliation than strangers. Moreover, the wife and the husband will disclose their inner secrets better to relatives than to strangers. They will speak out secrets before their own kith and kin which they would not be prepared to speak out in front of strangers.

There is a difference of opinion amongst religious scholars as to whether the setting up of the arbitration tribunal is obligatory or merely recommended. Some eminent researchers believe that that is a duty of the government of the day, and is obligatory. Shahid ath-Thani, in al-Masalik [1] explicitly pronounced his legal decision that the matter of arbitration, in the manner we have mentioned, is obligatory and necessary, and that it is the duty if the ruler always to see that it happens.

Sayyid Muhammad Rashid Rida, [2] the writer of the Qur’an commentary al-Manar, after putting forth his view that the convening of the arbitrating body is obligatory, refers to the controversy of religious scholars concerning whether it is obligatory or recommended says:  “If there is one thing that does not exist among the Muslims it is the taking of action according to this commandment and benefiting from its infinite advantages. Discords and disputes take place every day. Discords and disputes make their way into homes, but not the slightest use is made of the principle of arbitration which is commanded by the actual text of the Holy Book. All the energy of religious scholars is being spent in debates and disputes as to whether it is obligatory or recommended. None came forward to ask why, if it is obligatory or recommended, whichever it may be; no practical steps are taken to comply with this clear commandment? Why should all your energies be spent in debates and quarrels? If it has been decided that no action is in actual fact to be taken, and that people are not to benefit from its advantages, what is the difference in its being obligatory or recommended?”

Shahid ath-Thani [3] says concerning the powers and the authority which the two arbiters have that they may, for example, oblige the husband that he should put up the wife in such and such house, or that he should not keep his mother or his other wife in that house, not even in a separate room, or, for example, that he should pay any dower money to his wife which he had promised to pay in cash, or in case he had borrowed money from her, that he should pay it back.

The purpose is that every strategy which can bring about a reconciliation, or at least delay the divorce, is right and desirable in view of Islam.

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Here it is necessary to answer the question which can be put in this form: Has society, that is, the body, whether it is called a department or whatever, which is the representative of society, the right to interfere in the matter of divorce, which, in the view of Islam is detestable and disliked, with a view to preventing or delaying the decision of the husband to divorce?

The reply is that of course it can do such a thing. The reason is that all decisions which are taken to divorce are not indications of a real death of the union of marriage. In other words all decisions which are taken to divorce the wife are not due to the complete extinction of the fire of love of the man, or the falling of woman from her natural position, or, finally, the inability of the husband to maintain the wife. Most decisions are taken under the influence of emotion and rashness, and in error. By all means society may take steps to any extent to see that decisions arising from hastiness and rashness should not come to fruition. This is a proper step and is a thing which Islam would welcome.

The departments who represent society should prevent the persons in charge of the divorce court from carrying out a divorce until the department has informed them of its failure in its attempts to bring about reconciliation between the husband and the wife. The department should try to make the husband and wife return to amity and goodwill, and only if it has evidence that there is no possibility of reconciliation and adjustment between the husband and wife, should it issue a certificate of the non-feasibility of reconciliation and inform the divorce court accordingly.

2. The wife’s past services to the household:

The other point is that in unmanly divorces, over and above the dissolution of the sacred peace of the family, there arise special difficulties for the wife which should not be overlooked. The wife conducts herself sincerely while she lives for years in the house of her husband. As she has no idea of any duality between herself and the husband, and considers the house to be her own house and her own refuge, she does her best and strains every nerve to furnish, equip and improve the facilities of the home. Most women (with the exception of the modern town woman) work hard, and take pains to economise in food, dress and the other expenses of the house to such an extent that their husbands disagree with them. They very often refuse to employ a home-help for economic reasons; they sacrifice their energy, their youth and their health for the home, their abode, their refuge, and, in reality, they do all this for the sake of the husband. Now, suppose that the husband of a wife like this, after years of life as a partner, takes a fancy to a new wife and divorces the previous wife, and wishes to bring the new wife into the refuge and home of the first wife, which was created at the price of her life-blood, her youth, her health and her frustrated aspirations. He wants to live in luxury with the second wife on the product of the labours of the first wife. What is the proper course to pursue in cases like this?

In such, situations, as mentioned above, the matter to be looked into is not only the question of the upsetting of the peace and tranquility of family, and the breaking up of the tie of conjugality. It is not the place here to say that the disgraceful behaviour of the husband is the cause of the death of the union of marriage, and that forcing a woman to remain with an irresponsible man is below the natural dignity of the wife.

Here, there is another problem to be tackled. Here the matter of evacuation and of being homeless and of handing over one’s own place of refuge to an intruding rival comes in. The thing to be considered here is a situation in which taking pains; toiling, enduring hardships and being of service come to nothing.

Forget about the husband, the peace of the family and the cooling down in family affections. Every human being needs a shelter, a place of refuge, and then with the shelter and the home, which one builds up with one’s own hands for one’s own use, one has affection and attachment. If you turn out a bird from its living-place, the nest that it has built for itself will naturally defend itself. Has the wife no right to defend her refuge and home? Is such a thing not severe cruelly in the part of the husband? What remedy has Islam provided for this aspect of the situation?

Our view is that this complicated matter requires full attention and careful thinking out. Most of the difficulties that result from unmanly divorces are of this nature. It is in cases like this that divorce is not only the dissolution of conjugality, but is rather the break down and complete annihilation of the woman.

Nevertheless, as it was suggested in the posing of the problem itself, the matter of housing and shelter is distinct from the matter of divorce. These two difficult matters should be differentiated and considered separately from each other. According to the Islamic view and its laws, this difficulty has already been solved. It is due to an ignorance of Islamic laws, and the taking of advantage of the good intentions and faithfulness of wives by husbands, that this difficulty presents itself.

The source of this difficulty is that most husbands and wives imagine that the work and the services that a wife renders in the house of her husband and the gains that accrue from them, belong to the man. They believe that a husband has a right to give orders to her as if to a slave or a labourer, and that it is obligatory on her to carry out his orders in all and sundry matters. As we have repeatedly said, a wife has independence in connection with household work and activities, and any work that she does is for the benefit of herself. The husband has no right to pose as an employer. With the full economic independence that it has granted to woman, and, besides that, with the laying down of the responsibility of her expenses and the expenses of her children on the husband, Islam has given her enough leisure and the complete opportunity to make herself economically independent of man and to obtain the means of a respectable living. This she should be do to such an  extent that, in this regard, the divorce and the separation cannot create any problem for her existence .All those things which a woman may contribute to the house and her home should be considered by her to be her own property, and the husband should have no right to take those things from her. This kind of anxiety exists in the system of the family, because the husband considers his wife to be obliged to work in the house, and also imagines that the results of his wife’s work belong to himself and not to his wife. The anxieties which exist amongst our men too are also due to ignorance and being unaware and unmindful of Islamic law.

The other cause of these discomforts is that husbands take undue advantage of the faithfulness of wives. Some women, not because of ignorance of Islamic law, but rather because they place their confidence in their husbands, make sacrifices in their homes. They wish there to be no question of ‘mine’ or ‘yours’ in between them and their husbands. On these grounds, they take no notice of their rights and do not care to take advantage of the opportunity which Islam has granted to them. Sometimes it so happens that they are disillusioned, and they come to know one day that they sacrificed their life for a faithless being, and that they missed the chance to avail themselves of the right which Islam has guaranteed them.

Such women should take care from the beginning:

How fortunate it is that affection arises on both sides. [4]

If a woman rises above making use of her legal right to save and keep money and wealth in her own custody, to make arrangement for residence in her own name, and instead makes a gift of the energy of her work to her husband, the husband also, according to:

And when you are greeted with a greeting, greet with a fairer than it or return it; (Qur’an, 4: 86) should make a present of a reciprocal amount or more to the wife as a gift. Amongst thoughtful and considerate men, it has always been a practice, and still is, that in return for the sacrifices and sincere services of their wives, they give something of value, a house, or some other landed property, as a gift to their wives.

However what we want to say that the difficulty of the wife being shelterless has no connection with the law of divorce. Any amendment in the law of divorce will not reform or improve things in this connection. This difficulty is related to the question of the economic independence and non independence of the wife, and Islam has completely solved it. This difficulty in our society arises from the unawareness of number of women of Islamic teachings and the negligence and naivety of the others. If women are aware, take notice, and make use of the opportunity is granted to them in this connection, and are not so simple as to sacrifice and waive their rights in favour of their husbands, this difficulty is solved by itself.

[1]   See note #1 under “Freedom in determining one’s future”

[2] Muhamnad Rashid Rida (1865-1935), Muslim scholar who spearheaded an intellectual response to the encroachment of western values in Muslim countries. He published the newspaper al-Manar which published his Tafsir al-Manar in installments and which promulgated the views of the new Islamic reformist perspective of himself  and his intellectual predecessors Muhammad ‘Abduh and Jamalu’d-Din al-Afghni. His commentary was published in twelve volumes (incomplete, up to surah Yousuf) in Cairo (Tr.)

[3] See note #1 under “Freedom in determining one’s future”

[4] Quotation, from the quatrains of the famous Iranian poet Baba Tahir Hamdani