The answer is the supporting evidence for each ruling. There is no doubt that both have very valid evidence. We cannot dismiss either ruling out of hand, nor can we ignore its basis. Scholars of highest repute in our history subscribed to either one or the other. How can then a layman manage his own situation and which ruling he should follow? The simple advice is that he should go to a broad minded scholar and explain his case. He should make sure that the scholar does not strictly follow a particular school of thought but rather is one who gives a judgment on each case according to its merit, and as he deems most suitable to the people concerned, using any judgment given by different schools of thought as long as it has sufficient supporting evidence to keep the inquirer within the boundaries of what is acceptable from the Islamic point of view.
I do not think that much purpose can be served by a detailed discussion in a newspaper like ours of the different factors relevant to each of the two rulings. However, I can say very briefly that the one which makes a divorce pronounced three times on the same occasion count as three divorces came into operation during the time of Umar without disagreement by any of the learned companions of the Prophet. It was more in punishment for a degree of abuse of the Islamic process of divorce. There is no disagreement among scholars that to divorce one's wife three times or more on the same occasion is forbidden from the Islamic point of view because it is an abuse of a legitimate procedure.
When the Prophet was told by one of his companions that he divorced his wife one hundred times on the same occasion, the Prophet was very angry. He addressed his companions in such terms, "Is Allah's Book to be trifled with when I am still alive among you?"
However, the overwhelming majority of people who divorce their wives three times on the same occasion nowadays do so out of ignorance. They think that unless they pronounce the word of divorce three times, the divorce is not valid. Hence an explanation of the divorce process in Islam needs to be given time and again until people get to know how to approach divorce, which is disliked by Allah, should they ever need to resort to it. Perhaps I should add that divorce in Islam is a very simple process but well entrenched misconceptions tend to obscure it. Here it is in simple terms :
Essentially marriage is a verbal contract and its dissolution is normally made verbally. When a man intends to divorce his wife, he should make sure that she is not in her menstruation period and that the two of them have not had sexual intercourse during her current period of cleanliness from menstruation. If either case is there, i.e. if the woman is in the period or if sexual intercourse had taken place, then to effect a divorce at that particular time is forbidden. Thy should wait until the woman has finished her period or until she has had her next period. The divorce process is started with a simple utterance of the words "I divorce you," or "I divorce _"(naming one's wife). This should be done ONCE ONLY. This can also be done in writing and sent by post. From that moment, a woman starts her waiting period which lasts until she has completed three menstruation periods or three periods of cleanliness from menstruation. If she does not have the period either because she is too old or too young, then her waiting term lasts three months. If she is pregnant, the waiting term continues until she has given birth. During this time, she stays in her home, i.e. her family home where she has been living with her husband. He is not allowed to turn her out. He is required to maintain her through this period but may not share the same bedroom. She is not required to do any housework. The waiting period provides both divorcees with time to reconsider their situation. If they wish to be reunited in marriage, they may do so within the waiting period without any need to have a fresh marriage contract or to pay a fresh dower. If they do not resume their marriage until the waiting period is over, then the divorce process is complete and the woman returns to her parents' home and is entitled to get any deferred portion of her dower. She is not entitled to any maintenance for herself from her ex-husband. If, however, she has the custody of any young children, they are entitled to be supported by their father. Both are also entitled to maintain their normal relationship with their children. On the other hand, if the divorcees want to be reunited in marriage after the waiting period is over, they may do so provided they have a new marriage contract and the woman receives a new dower.
This whole process may be done twice. If a man and wife go through the divorce process for a third time, whether they were reunited each time during the waiting period or after it, their divorce this time is final, in the sense that they cannot be reunited again in marriage without an intervening marriage by the woman who must be married to another man in the normal course of events. This means that to all intents and purposes the divorce is final. If the woman receives a proposal from someone else and accepts it and marries him, her marriage must be intended for life. If, however, she gets divorced after a period of time, may be a year or may be ten years, or longer or shorter, she may return after the end of her new waiting period, to her first husband if both of them think that this time their marriage may be successful. I must emphasize here that this intervening marriage must not be arranged for this purpose, as many people unfortunately do. If it is specifically arranged for this period, and the man hired for the purpose agrees to go through it for one night or a week or whatever, everyone involved is committing a serious sin. Moreover, such an arrangement has no effect whatsoever. In other words, the woman cannot return to her first husband on the basis of such an 'arranged' intervening marriage.
Having explained the process of divorce, I should say to my first reader that his nephew may consider his divorce to be a single divorce. He can be reunited with his former wife after having a new marriage contract, since her waiting period is over. He should tell his nephew that to divorce his wife three times on the same occasion is forbidden. Perhaps I should add that the family law of several Muslim states adopts this ruling as the standard one. By doing so, the scholars who have codified the family have given due consideration to what serves the interests of the Muslim community and the fact that many people pronounce three divorces at the same time out of total ignorance. His nephew should not be confused by the two rulings and let him not think that to follow Fiqh is different from following the Qur'an and the sunnah.
• Divorce: Consent of the wife
A man in India wants to divorce his wife but she objects. He left home to work abroad and during a period of 2 years he sent no letters or money home. Will this attitude help him to get the divorce? If not, what should he do to get the divorce? May I ask also about a man who wants to divorce his wife in six months time, but does not want to disclose the reason for that? Will this be acceptable?
I think this man is confusing certain aspects of the Islamic method of divorce with the civil requirements for divorce. In Islam, it is not necessary for a husband to obtain his wife’s consent to be able to divorce her. The Islamic law and way of life makes the husband the one to lose more as a result of divorce. Hence, he can divorce his wife without her agreement. If this man wants to divorce his wife, he may do so at any time he wants, but he must observe the Islamic legal provisions in this case, and give her whatever is due to her. It is not necessary either that a husband should disclose to his wife his reasons for divorcing her. What is most important is to deal with her fairly in all situations.
This man has not observed this last point over the last two years when he was working abroad. He did not send letters or money to his wife. He is indeed responsible for her living expenses, but he left her in a terrible position, hanging in the air without any support, not even the psychological one of writing regularly. He does all this in order to make his divorce easier. In fact he makes it harder, because by neglecting his responsibility, he generates feelings of injustice and abuse on her part. Such feelings can only cause attitudes to be hardened.
I am concerned about the second case where a man says that he wants to divorce his wife after six months. It seems a cool and callous decision, as if the man feels that he can make use of his wife for the time being, but will divorce her when he no longer has any use for her. That seems to be too cruel. If things are so bad between him and his wife, why wait for six months?
• Divorce: Custody of children
I have been married for over 9 years and I have four children, the eldest of whom is a boy of 7. My relationship with my wife has not been particularly smooth. Having reflected on the matter for awhile I have come to the conclusion that divorce is inevitable. Who shall have the custody of our children? What do I have to do to keep my children in my custody?
Children's custody is defined by scholars as taking care of a young boy or girl, or one who is mentally irresponsible, and to look after it for its own benefit and to spare it what may cause it physical or mental harm until it is capable of looking after itself. Custody is a duty of adults and a right owed to the child, because neglecting a young child may cause its death or make it suffer irreparable damage.
Moreover, a child is in need of someone to take good care of it, look after it and bring it up. The child's mother has the right to its custody because the Prophet, peace be upon him, said to a mother of a young child: "You have more right to him." On the other hand, if there is no one other than the child's mother to take care of the child, the mother may be compelled to take it in her custody. If the mother declines and the child's grandmother agrees to take it, the mother's right is forfeited and the grandmother is given custody.
Needless to say that a child needs to be brought up in family, where both father and mother look after him. Should the couple separate and a young child is part of the family, the mother has a stronger claim to his custody, because she is better capable to look after him. She is more patient and kinder. Therefore, the mother takes him, unless there is a valid reason to prevent her from discharging her responsibility, or the child is able to choose between her and its father. The Prophet, peace be upon him, told one mother who complained to him that her divorcing husband wants to take the child away: "You have a stronger claim to the child, unless you get married." Umar divorced an Ansari woman after she had given him a son called Asim. One day Umar saw his son playing in the mosque, and he tried to take him away. The child's grandmother tried to prevent him, and they went with the dispute to Abu Bakr, who was the caliph. Both claimed him, but Abu Bakr ruled in the grandmother's favor. Umar did not dispute his ruling, although at the time he had a different view. When be became the ruler, he followed Abu Bakr's ruling and implemented it in other people's cases. One report suggests that Abu Bakr said to Umar: "A mother is kinder, more tender, and compassionate and far better for the child. She has a stronger claim unless she gets married."
Scholars have made a clear order of which relatives are given custody, giving priority to women, and starting with the child's mother, or grandmother, then the order goes to the child's father's mother, then to his full sister, then to his sister on his mother's side, then to the one on his father's side, and so on.
There are certain conditions for granting custody to any relative. The woman having custody must be of sound mind, having attained puberty, and able to bring the child up. She must also be a Muslim, unmarried to someone who is a stranger to the child. Moreover, the woman who has custody of a child is entitled to have maintenance while the child is in her custody, in addition to the expenses of bringing the child up which are naturally borne by the father. Custody lasts until the child is able to attend to his own needs such as cleaning himself, eating and dressing, etc. There is no specific age for this; what determines it is the actual ability of the child.
One school of thought rules that custody is over at the age of 7 for a boy and 9 for a girl, but a judge may extend custody beyond that if he determined that such an extension is in the child's interest. When custody is over, the child is given a choice to join either his father or mother, unless they agree to some arrangement between them.
When a woman complained to the Prophet, peace be upon him, that her husband wanted to take their child away, the Prophet, peace be upon him, said to the child: "This is your father and this is your mother: You may take the hand of either of them." The child took his mother's hand. This was the Prophet's ruling, which was followed by the early Muslim rulers and judges like Umar, Ali and Shareeh, may Allah be pleased with them. It is the one endorsed by the Shaf'ie and Hanbali schools of thought.
There is no statement in the Qur'an or the Sunnah which gives priority to one parent over the other when the child is able to make a choice. All scholars agree that the child's interest is paramount. Hence, the child should be given to the parent who is better able to protect the child and bring him up properly. Should the father be negligent, or unable to fulfill his duty properly, the mother is given priority.
The child's choice is of no consequence in this case. A report by Ibn Taimiyah mentions a case of a child given choice between parents. When the child indicated his preference to go with his father, the mother requested the judge to ask the child the reason for his preference. The child said: "My mother sends me to school every day, where the teacher is hard on us, while my father allows me to play with the kids." The judge ruled that the child should be given to his mother.
These are the main guidelines on the question of custody of young children, and which parent they join when they are able to make a choice.
The family laws in Muslim countries follow mainly the Islamic principles, with emphasis on what the predominant school of thought may prefer. Therefore, my advice to this reader is to try to keep his marriage so that his young children are brought up by both parents together. If he fails, he should always maintain an amicable arrangement with his divorcee with regard to looking after the children.
• Divorce: Husband’s refusal to divorce
After a few months of marriage, I realized that every thing was going wrong, and we were having serious problems. I asked my husband to divorce me, but he has not responded. We are living in two different countries: he lives in India, his country, and I live in the US where, I am a citizen. How can I ask for khula’; if he refuses to divorce me?
Islam allows the dissolution of marriage at the request of the wife in two ways: a divorce ordered by the judge if she proves that she is being subjected to harm in her marriage and khula’, which does not require any proof.
The latter does not need to have any particular reason to be freed of her marriage bond. Khula’ is a termination of the marriage contract at the woman’s request because she feels that her interests lie elsewhere. Since in Islamic marriage the husband bears more of the cost, the woman is required to refund to her husband all the dower he had paid her at the time of marriage.
On the other hand, divorce preserves the wife’s right that she is subjected to harm in her marriage for a judge to order her divorce.
You need to study your situation carefully to determine whether you can resort to either option to terminate your marriage. If your husband has abandoned you to live in his home country, and he does not support you, you can also apply for divorce. On the other hand, you might have been the one to choose to live apart. Your husband might be willing to take you if you would agree to live with him in his own country. In this case, your living apart would not be a valid reason for divorce at your request.
Since both of you are living in countries where the law is different from Islamic law, it is much better that you come to an agreement on your future relationship. What you have to do is to try to resolve the matter amicably. You should write to your husband asking him to dissolve the marriage in a proper Islamic way.
If he refuses or turns a deaf ear, you write to him again saying that he is forcing you to resort to the American law for a termination of the marriage, and that you consider any nullification of the marriage by an American court to be a khula’. I hope that he will save you asking this final resort by being cooperative and settling the matter in an amicable way.
• Divorce: Ill-treatment as the basis for divorce
After one and a half years of being married, a woman obtained a ruling from an Islamic court nullifying her marriage. The basis of the ruling was the ill-treatment she received from her husband who used to beat her up and demand money from her. Her former husband was sent several notices with at least one of these notices published in the local paper, but he failed to appear in court. The court then granted her the nullification. The woman is now married to another man, but recently that husband was told by a scholar that such a Khula is not valid, without the consent of the first husband, which means that the woman is still married to the first husband and her second marriage is null and void. That caused the couple no end of distress, particularly since they have had a child recently. Please comment.
Sometimes I get very angry when I receive a question like this. My anger is not directed at the parties concerned but at the outsider who voices an opinion which has a far-reaching effect on the lives of several people without paying due regard to the circumstances of the case or studying the problem in depth.
The reader speaks of a scholar telling him that such a Khula is not valid without the consent of the first husband. What he did was to look at the question from the specific point of view of Khula, and then he voiced his opinion on the basis of his school of thought. This means that there are two limiting factors in how he has dealt with the problem which involves the legitimacy or otherwise of a marital relationship. That is very bad indeed. I do not know the man or the country where he comes from, but I can guess his school of thought and I feel that he might not have studied anything outside it. That is not the way a good scholar should look at a problem like this with all its practical implications. This is not a case of Khula in the first place. Khula is the nullification of the marriage at the request of a wife, which may not have a reason other than the wife feeling that life with her husband does not give her the fulfillment a woman expects from a happy married life. In Khula the woman pays back her dower to her husband and her waiting period lasts only for one menstruation period, according to the weightier opinion, to ensure that she is not pregnant. When the Khula takes place, it does not count as a divorce.
Here the case is one of divorce by the judge on the basis of ill-treatment. In such cases, the judge has to make sure that there is undoubtedly ill-treatment which makes life with the man intolerable. The judge determined what sort of proof to demand in order to satisfy himself that the claims of the wife are true. Here we are told that the man beats up his wife. If he acknowledges that, then that is the best proof, but this could also be proven by other means, such as witnesses who may be neighbors or relatives. We are also told the man used to demand money from his wife. He sent her to her parents frequently to get him that money. This is again another form of ill-treatment which could make life intolerable. The judge in this case has done what is required when he sent repeated notices to the husband to attend the hearing, and when he published an announcement in the local newspaper. If the husband does not attend the court after all this and the judge is satisfied that the ill-treatment is a fact, then the judge is within his jurisdiction to order the nullification of the marriage. That nullification is considered a divorce by the judge, which is a single divorce. This is another difference between this sort of nullification and Khula.
The second husband of this lady may rest assured about the validity of his marriage. He need not worry or ask any one's opinion since the nullification is ordered by a court of Islamic law. What is the purpose of asking anyone when no one would give the case the sort of in-depth study and consideration as the court would do?
• Divorce: In anger
On discovering that his wife has visited her parents against his express instructions, a husband was very angry. During their subsequent quarrel he said to her "I divorce you. I divorce you. I divorce you." Later on, he repented and started asking about ways and means to reinstate his marriage. Please comment.
I invite you to reflect on the Hadith which states: "It is not a mark of strength to be able to overcome an opponent in a physical fight. The mark of strength is to control one's anger." This man has proved himself to be too weak according to the standard set by the Prophet, peace be upon him, which is the best and most accurate standard. He certainly should have known better. Why should he have allowed himself to divorce his wife in a flight of anger? Why could he not deal with the matter in a cool, deliberate way, as Islam recommends? Besides, marriage is not something to trifle with so that divorce could be brought about in the extreme circumstances of anger. That is not the way Muslims should deal with one another, let alone a Muslim man with his wife.
Besides, if this man is so furious as to divorce his wife during an angry quarrel, simply because she visited her parents, then he should re-examine his whole attitude. Unless there are very valid and compelling reasons for his attitude toward his parents-in-law, a man must not adopt the unhealthy attitude of arbitrarily ordering his wife not to visit her parents. Indeed, a Muslim is always kind to his relatives. A Muslim man should be the one who encourages his wife to maintain a good relationship with her family and facilitate her in showing her dutifulness to her parents. If he, instead, orders her to boycott them, then he is wrong and he does his wife an injustice.
Scholars mention that divorce in anger does not take effect. But that means that the divorcing man should be in a state of blind anger which does not enable him to realize what he is actually saying. To judge whether this ruling applies to any particular case, the man should be asked after he has divorced his wife. If he says no, then the divorce does not take effect. If he was aware of it, then the divorce is valid.
The fact that he has mentioned the word of divorce three times on this occasion is immaterial. This is a single-time divorce which is revocable. The divorced wife should observe a waiting period which is normally around three months. During that time she stays in her husband's home and they can reinstate their marriage by mutual agreement and having witnesses. If the waiting period is over, they can remarry again with a new marriage contract and a fresh dower to be paid by the husband to his wife.
• Divorce: Inducing a woman to get divorced to marry again
I knew a young woman whom I dearly loved to marry. I talked to her mother and brother, but they did not take my proposal seriously. They arranged her marriage. I still feel the same toward her. Is it all right if I try to persuade her to get divorced so that I can marry her?