What you feel is not unusual in the sense that you have had great hopes that you will share your life and future with this lady, and that the two of you will do every thing possible to ensure your mutual happiness. The fact that you were not able to realize your dreams still lingers with you causing you much pain. However, a Muslim must train himself to accept all life's eventualities and trust God to give him what is better than what he may choose for himself.
In the life of everyone of us certain wishes and hopes are frustrated and we find ourselves unable to take control of what seems to us to be of utmost importance. We, however, try to accept the new situation and make the best of it. As time passes we discover that we are much happier with the way things have turned out. If we are given the choice again we would certainly choose to continue with what we got rather than go back to our original preference.
In your case this is the attitude you should adopt. You should resign yourself to the fact that you have missed out on marrying that lady and you should include in your supplication a prayer that God may give you a better woman for a wife. When you have done that you should try to forget the matter completely, trusting that God will choose for you what is best. This is the proper attitude of a Muslim.
I realize that it is not easy to discard something that one has cherished as one's dearest hope, thinking that it is the be all and end all of one's own happiness, but then it is an essential aspect of being a true believer that one accepts what God has chosen.
The Prophet expresses this in his inimitable style as he advises everyone of us: "Accept what God has apportioned for you and you will be richest of people." It will certainly be very wrong of you to try to encourage this lady to seek divorce so that you could marry her. Try to think of the matter in a reverse order. What if you had married someone on the basis of a goodwill and then discovered that someone is trying to get her divorced? Is it not true that your discovery will cause a great deal of trouble within your home and family life?
The least that you expect from your wife in such a situation is to turn a deaf ear to whatever that man says and to boycott him altogether. The Prophet says: "No one of you is a true believer unless he loves for his brother what he loves for himself." If you do not like that any person encourage your wife to seek divorce from you, then you must not encourage another woman to seek divorce. You may protest that she is not happy with him, but that is irrelevant. It may be that all that they need to bring happiness into their home is to give themselves a little longer to understand each other better. Besides, how do you know that she will be happier with you, or that you will be happy with her? These matters can only be discovered by practice.
Let me tell you that it is forbidden for you to take any action to persuade that lady to divorce her husband. Islam does not allow that a man should put a proposal of marriage to someone who is only engaged to another man. It certainly does not approve of trying to get a married woman divorced in order to marry someone else.
• Divorce: Laws changed in India
Could you please comment on the attached article which appeared in "Indian Express" on changes proposed to the Muslim personal law concerning divorce. May I say that we always welcome any amendment which aims to safeguard the rights of divorced women. The proposed changes are based on a ruling given by the Jamait Ahle Hadith declaring the pronouncement of divorce three times at one sitting as invalid and ineffective. Hence, supporters of this ruling want triple divorce at one sitting to be abolished. This is enthusiastically supported by the All India Muslim Women's Organization.
The newspaper article which you have sent me speaks of pressure from the All India Muslim Women's Organization to try to reform the personal law affecting divorce to bring it in line with a ruling by the Jamait Ahle Hadith. It goes on to speak of the abolition of a triple divorce at one sitting in countries like Pakistan, Sudan, Turkey, and Egypt. It then refers to certain cases where hardship has resulted, particularly to the divorced woman and her children as a result of the enforcement of the present law which considers a triple divorce as a third divorce. Because this is a highly important subject, I will explain the matter in detail, although I have spoken about it on more than one occasion. It is often easy to misinterpret certain aspects of the question and then draw the wrong conclusions. In this particular instance, we have such a mistake in the newspaper article. For example, the ruling of Ahle Hadith is cited as "declaring the pronouncement of three talaqs (i.e. divorce) at one sitting as invalid and ineffective." I very much doubt that the ruling says so much. Most probably the ruling described the triple divorce as "forbidden", but certainly neither invalid nor ineffective. I will discuss this point further presently.
First, let me explain that according to the Islamic system, a divorce can be revoked and the marriage reinstated twice. In other words, a man may divorce his wife once and then be reunited with her in marriage under certain conditions. This whole process of marriage, divorce and remarriage may be done twice. If the marriage is re-established for the third time and then a third divorce takes place, then that divorce is final and no reinstatement of the marriage can be effected unless certain conditions are met. These provide for the woman to get married again first to another man. The marriage must be intended as permanent. When she has lived with her husband for some time and both of them fully intended to stay married for the rest of their lives, the woman is now in a new status. If it so happens in the normal course of life that she gets divorced by her new husband, or if he dies, then when her waiting period is completed, she may be reunited in marriage with her first husband provided that both of them think that they can make it this time. This marriage with another man is conditional after the third divorce. It must be approached as a full marriage intended to last. It cannot be arranged for the particular purpose of making that woman lawful for her first husband. If it is, then the marriage itself is not valid and it cannot produce any effect on her being unlawful to reunite with her first husband.
The process of revocable divorce is an aspect of God's grace which He bestows on us in abundance. Problems may arise in any marriage, and if the couple are not careful, a break may take place and a divorce is initiated. When the two of them separate, they might realize that their loss by divorce is too great. They might have a special attachment to each other. They may have young children and they may realize that the divorce is going to have a highly negative effect on them. They may reflect and conclude that with an extra effort on the part of each of them, they could make their marriage successful. Hence, God has allowed a reinstatement of the marriage. This can be done without the need of a fresh marriage contract, if the reinstatement of the marriage takes place within the woman's waiting period. If the waiting period has lapsed, then a fresh marriage contract and a fresh dower are needed.
Now if a person divorces his wife three times in one sitting, or on the same occasion, then he is actually trying to override certain provisions of Islamic law which make a remarriage possible. I understand that many people do not realize that divorce is initiated by a single pronouncement of the word of divorce. They mistakenly believe that they have to say it three times. The fact is that a triple divorce on the same occasion, or in quick succession, is an affront to Allah's law. It seeks to reach the position of "no marriage" at one stroke. That is not open to anyone. A man divorced his wife three times in the same session and came to the Prophet to tell him of what he did. The Prophet was very angry. He addressed his companions saying: "Is God's book to be trifled with when I am still living among you?" He then made it clear that the triple divorce be counted as a single divorce, which meant that it was revocable. The Prophet's attitude and his description of the triple divorce as "trifling with God's book" make it clear that such an action is forbidden.
Most people in India and Pakistan, as well as in other countries, take the view of the Hanafi school of thought, which is shared by others as well. This view considers that a triple divorce in the same place and on the same occasion counts as three divorces. The scholars who share this view base their arguments on the action of Umar ibn Al-Khattab who felt that people were increasingly resorting to a triple divorce at the same time. He said: "People are precipitating something concerning which they have been given respite. It may be wise to impose it on them." He proceeded to make that imposition. In other words, Umar wanted to punish those people who resorted to a triple divorce at the same time by making it binding. He did not initiate a new ruling. He simply committed people to what they said. He made their words binding on them. It is open to a ruler to impose such a punishment. That is the reason why the Prophet's companions who were alive at the time did not object to Umar's action. They understood it as a punishment which would be valid for a limited period of time. It was the acquiescence by the Prophet's companion that made the scholars like Abu Hanifah adopt Umar's view as binding. They treated it as a verdict unanimously supported by the Prophet's companions.
We come now to the conclusion of this discussion by saying that if a man divorces his wife three times on the same occasion, he violates God's law and commits something that is forbidden. His words count as a single divorce. Revoking the divorce and reinstating the marriage requires a fresh marriage contract if the woman's waiting period is over. In any case, it requires a minimum of two witnesses.
Practically speaking, it is impossible to effect three divorces at the same time. A man can only divorce a woman who is his wife. When a man says to his wife, "I divorce you", once, he starts a process which gives his wife a new status. She is no longer his wife. Although the divorce process is only at the beginning, the woman is not married to him. How can he, then, divorce her a second time? That is impossible.
I need to see the ruling given by Jamait Ahle Hadith in order to comment on it. I believe that it is given on the same lines I have mentioned in this answer. Women's organizations in India may campaign for a reform of the personal law on the basis of Islamic principles. They will find that a number of Muslim countries have adopted the view I have outlined. This is certainly a great step forward.
• Divorce: Laws clashing with Qur’an & Sunnah
A tendency to reinterpret the Islamic law of divorce can be noticed in several Muslim countries. According to the personal status law of Tunisia, equality of treatment of wives is a legal condition of the right to polygamy, and since such equality of treatment is impossible to practice in modern times, polygamy is prohibited. Moreover, divorce can only be effected through a court of law, and no matter what happens between a man and wife, their marriage continues until the court issues a decree of divorce. In Indonesia, a husband is required to apply to the marriage official when he desires a divorce to be effected. In South Yemen, divorce can only be effected judicially on the basis of a petition submitted by either spouse. In Pakistan, a husband is required to give written notice of his divorce both to his wife and to the chairman of the Arbitration Council. Would you kindly comment on these provisions.
There are two sources of Islamic legislation: the Qur'an and the Sunnah. Whatever is stated in the Qur'an or by the Prophet, peace be upon him, and whatever action the Prophet, peace be upon him, did or endorsed are part of Islam. Whatever clashes with that is not Islamic. This is a simple general rule which is both logical and reasonable. Islam is a religion revealed by Allah and conveyed to us by the Prophet, peace be upon him. We accept only what Allah has told us and what the Prophet, peace be upon him, has conveyed to us. What is in conflict with that cannot be Islamic.
This applies to every system on earth. Indeed, no regime or system of government will be willing to relinquish such an important principle. Take, for example, the British law. The legal authorities in Britain will say that every act of parliament and every judgment made by the British courts is part of the British law. What contradicts with that cannot be considered part of the law. To my mind, that is fair and reasonable. If the principle is applicable to human laws, it is more so to divine law. If countries will not accept anything which may be different to what their lawmaking institutions, be they parliaments, presidents or other legislative councils, decree, would anyone dare to place himself in an equal position to Allah and start issuing decrees which approve certain Islamic laws and abrogate others? For, to make such a judgment is to claim an equal right with Allah. Far be it from any Muslim to do so.
Islam has its own system of marriage and divorce. A Muslim government may issue certain rules to regulate how this system is implemented, but these regulations cannot withdraw a right Allah has given or allow something which Allah has withheld. Otherwise, they would be claiming the power to legislate, which, according to Islam, belongs to Allah alone.
The Islamic system of marriage and divorce allows a Muslim man to marry up to four wives at any one time. It is a requirement that he should extend equal treatment to all of them. What we must understand is that Allah does not require us to do something with which our nature cannot cope. Do we need any reminder that it is Allah who created us and He knows our ability and what lies beyond that ability. He would not have allowed us to marry four wives making this condition on equal treatment, had He known that we would not be able to fulfill that condition. It is needless to say that He knows all about His creation. He indeed makes it clear that if we fear that we cannot maintain such an equal treatment, then we must contain ourselves to marrying one wife. The matter is clearly left to us to determine.
If the law of any Muslim country forbids polygamy on the basis of man's inability to treat his wives equally, that law is making a premise about human nature which is in conflict with what Allah has said about it. We obviously take what Allah says and not what the lawmaking authorities in any country say, if the latter differ with Islam.
Again, the right to divorce is granted to a Muslim man as a step to which he may resort, within certain constraints. It is very highly regulated and once divorce is made, there are certain duties and rights which become applicable to the separating couple. From Islamic teachings, we know that a man may divorce his wife without resort to a court, while a woman has to apply to the judge for a nullification of her marriage. To take away that right given by Islam to a man is to amend Allah's laws. This cannot be done by any human being or any legislative body.
Of the examples you have mentioned, some are obviously contrary to Islamic teachings while others appear to be only procedural. For example, what you have quoted from the Pakistani Muslim family law appears to be of the latter type. It is only a requirement of the law that a man who divorces his wife should give a notice to his wife and to the authorities. Islam certainly requires a man who had divorced his wife to notify her so that she can observe her waiting period and she may claim her rights. If an additional requirement of notification to the authorities is made, this is only procedural and it is acceptable. It is within the power of a Muslim ruler to issue a regulation which is not in conflict with Islamic laws, if he determines that such a regulation is beneficial to the Muslim community. When he makes such a regulation, it must be obeyed.
A procedural matter is different from introducing an amendment to the substance of an Islamic law. If Allah says that divorce can be effected verbally by a husband, then to say that the marriage continues after the husband makes such a verbal divorce, and to require him to effect a divorce only through a court which may refuse him his request, is to restrict what Allah has not restricted. That is not acceptable from any legislative body or institution. The authority to legislate or amend the law belongs to Allah.
Some governments which make such changes argue that changes are necessary because the Islamic law has been abused by men over the centuries. Without trying to disprove their claim, let me say that every law is open to abuse. Can they guarantee that the law they issue will not be abused? In fact, divine law is less open to abuse because it derives its authority from believing in Allah and the day of judgment. A Muslim knows that he will stand alone in front of Allah to answer for his deeds. If he abuses Allah's law and denies his divorcee her rights, Allah will punish him for that. He cannot get away from Him. But he can get away from the watchful eyes of the legal authorities in his country, if he tries hard enough. It is a universal fact that religious laws have more sway on people's minds than any state law.
The fact is that amendments to Islamic law, especially in as far as it relates to the family and the status of women, have been brought about by governments which have been highly influenced by the colonial powers. In some countries, governments are composed of people who have been educated and highly influenced by the Western civilization. On the other hand, they have but scanty knowledge of Islam. They think that they are doing a service to their community. Indeed, they are doing a disservice. Only when they bring their people closer to Islam and Islamic life, they truly look after their interests.
As far as we are concerned, we take our laws from Islam, as they are stated in the Qur'an or the Sunnah. We do not take Islamic laws from any other source. That is a requirement implicit in the declaration which we make to signify that we are Muslims. When we state that there is no deity save Allah, we acknowledge that He alone has the authority to legislate. When we declare that Muhammad is His messenger, we acknowledge that he alone conveys to us Allah's message and how He wants us to conduct our lives.
• Divorce: Maintenance of divorced women
An article in magazine called “She” speaks of maintenance of divorced women being applicable in accordance with verse 242 of Surah 2. Could you please explain whether this is correct and whether it applies in the waiting period only, or for a longer time?
The article you have sent me is concerned with the lot of divorced women and the prospects they face after divorce, particularly in cases where the divorce takes place after many years of marriage, during which the woman would have helped in the establishment of the family home and in the family life generally. It argues for maintenance to be established as a rightful claim for divorced women beyond the expiration of the waiting period, which lasts, as the article claims, for 90 days. If we take this point as an example, we can have an idea of the lack of accuracy the article betrays when it speaks of Islamic law and its provisions.
The waiting period for a divorced woman is not counted by days in the first place. It also differs according to circumstances and conditions applicable to the divorced women herself. If the woman is pregnant at the time of divorce, her waiting period lasts until she has delivered her baby, whether this takes place the following day or after nine month. If she is not pregnant, her waiting period lasts until she has completed three menstruation periods or three period of cleanliness from menstruation. If she is too old or too young to have the period, the waiting period shall last for three lunar months. In this last case, the waiting period is close to 90 days, but not quite, because a lunar month is either 29 or 30 days, and it never happens that three consecutive lunar months are of 30 days each. If the woman has her period normally, then her waiting period may last, in averse cases, for any number of days between 48 and 82, while some scholars speak of even a much shorter period as also possible. If the article is so wrong on this very simple matter, its accuracy on more important issues is certainly called into question.
When we consider the injustice which the divorced women suffer, either at the hands of their husbands or as a result of the lack of legal provisions, we should look for ways and means to remove this injustice in accordance with Islamic provisions, rather than to try to impose something which is borrowed from other societies or other laws. The article is seeking to impose on the divorcing husband a duty to pay maintenance to his divorced wife. It cites a verse in the Qur’an in support of this claim, quoting three translations and claiming that its reference to “post-divorce maintenance is crystal clear in its meaning.” Now let us look at these translations, as quoted in the article itself:
(1) “For divorced women a provision in kindness: A duty for those who ward off (evil).” (Pickthall);
(2) “For divorced women maintenance (should be provided) on a reasonable scale. This is a duty on the righteous.” (Yousuf Ali);
(3) “Likewise the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the Allah-fearing people.” (Maulana Maududi).
May I add here a fourth translation by N. J. Dawood, which is the only one handy to me at the moment of writing. It renders the meaning of the verse in question as follows:
“Reasonable provision shall also be made for divorced women. That is incumbent on righteous men.”
In four translations, only one uses the term “maintenance” to give the meaning of the verse. In fact the Qur’anic verse does not use this term at all, which in Arabic is “nafaqah.” It uses a different term, which is mita’ah. This is a word that has a general meaning and connotations of enjoyment, comfort and provision. Hence, the other translations have used the term “provision” or “something to be given” in order to convey its meaning. Furthermore the verse speaks that it should be given “bilma’roof,” which is translated in the four quoted translations as “in accordance with the known fair standard”, and “reasonable”. All these translations are acceptable. Together they tell us that whatever provision or “mita’ah” is given, it should be determined in a reasonable and fair manner. Hence we conclude with Islamic scholars that this verse is not referring to a legal right of maintenance which lasts over any specified period of time. It is concerned with the alleviation of the pain of divorce by urging divorcing husbands to make a reasonable gift to their divorcees. That it refers to this as a duty shows its concern that divorce need not leave the two families of the divorcing couple in a position of hostility. In fact divorce can take place in an Islamic society with the families of the divorcing couple maintaining a good relationship. In the Islamic view, divorce may take place without aggravation or lasting hostility. Its reason may be only the incompatibility of the husband and wife, not any fault with either of them.
What the article is advocating is to impose on the divorcing husband for the rest of the woman’s life, or until she married someone else. This is further demanded by a number of organizations concerned with women’s rights in Muslim countries. That women should have provisions for their welfare after divorce is certainly needed. Whether this should be provided by their divorcing husbands is another matter altogether. If a man realizes that divorce should impose on him a duty of paying the living expenses of his divorcee for life, he may prefer not to divorce her, but he would keep her, ill-treat her until she demands divorce or khula’, absolving him of all her rights, or he would marry another woman and leave his first wife uncared for. Is this what the advocates of women’s rights are after? I feel if the law in Muslim countries endorses their present claims, they would soon be demanding further provisions to ensure that women are not ill-treated as a result of this endorsement. Why should her divorcing husband maintain a woman for the rest of her life when the divorce has brought their relationship to an end? Is it a punishment to be enforced on the husband for daring to divorce his wife? What if the blame for the divorce lies with wife? After all, marriage is a relationship that may be rendered unworkable by either party. Why make the blame for it lie always with the man? Moreover, if a divorced woman is given maintenance until she has married again, does not that encourage divorced women not to marry again? Does this not lead to encouraging immorality and irresponsibility? Is that what we are after?