"Our Dialogue" 6th Edition Rev



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It is often the case that people who are concerned with a single issue do not take a broad view of what it may entail. In this case, people are keen to lift injustice that is often visited on a divorced woman. However, they do not consider the injustice that may result from what they advocate. What we should fall for is the lifting of all injustice and the provision of a reasonable standard of living for divorced women. That can best be achieved through the implementation of Islamic law, which makes the family of a divorced woman, i.e. her parents, brothers or uncles, responsible for her living. If she has no family support, then the state should provide her with a decent standard of living. That this is not the case in many Muslim countries means that legislation, based on these principles, is required in these countries.

It does not call for shifting of responsibility elsewhere, i.e. to the divorcing husband. It is beneath the dignity of women to rely for her living on a man with whom she no longer has any legal relationship.

• Divorce: Nullification of marriage — with or without benefits

A relative of mine got married to a young man working in a Gulf country. Although she stayed with her husband for nearly one month after the wedding, the marriage was never consummated. After he departed, he intimated to his parents that he wanted to divorce his wife. It transpired that he has an illegitimate relationship with a non-Muslim girl which has been going on before and after his marriage, and that he has a drinking problem. Considering all aspects of the problem, the girl's parents are thinking of having a frank talk with the husband before asking him to repent and mend his ways and have a proper married life with their daughter. Alternatively, they want to take steps to get the marriage nullified.

I have summarized the problem which the girl's family have explained to me in detail. I feel that the family has done every thing that could be expected of them to make the marriage a normal one, starting a family and hoping for the happiness of their daughter. However, all their efforts have so far made little headway.

My own reading of the problem is that this man has gone into this marriage unwillingly. He might have been pressurized into it by his parents, who might have not accepted his idea of marrying the woman with whom he had been having an illegitimate relationship. This is the only explanation of his total lack of enthusiasm and the fact that the marriage remains unconsummated. But this does not justify his behavior. When he went through with the marriage, he made certain pledges which he never intended to keep. That does not take any notice of the feelings of the woman he was marrying or her family whom he had cheated. Her parents are also to blame because he had made it clear to them that he intended to stay with his mistress. They might have acted with goodwill, hoping that their son would reform once he is committed to married life. Be that as it may, it does not justify going to another family and asking for their daughter in marriage to their son when they were not so sure of his willingness to carry out their plan. There is an element of ignoring what may happen to the girl and turning a blind eye to her expected misery. I feel that had the roles been reversed and the husband's parents were the girl's parents they would have been extremely angry at a family who would do to their daughter what they themselves have done to your relative. There is no excuse in saying that they hoped for different results. It is clear that the man never intended the marriage to work. Otherwise, why would he leave it unconsummated? How would he drag a Muslim girl into this dilemma without bothering what effects it would have on her?

It appears to me that the woman's parents are too simple, trusting and of good nature. I cannot imagine how would they trust the future happiness of their daughter to such a man. If they want to talk to him about repentance, he may turn a deaf ear. He has not shown my desire to change his ways. Repentance can only be real if it is based on conviction, not expedience. If the man listens to them and he agrees to declare repentance and does what they suggest of offering the pilgrimage, how can they trust that it is all genuine? They have no indication that the man has regretted anything he has done. On the contrary, he seems determined to carry on as he is, having an illegitimate relationship and abandoning his wife for a whore. That is not the sort of husband Muslim parents should accept for their daughter.

The other alternative they have been considering is probably not their best course of action either. They are thinking of applying for Khula, which is a nullification of the marriage at the wife's request. But this is the sort of action to which a woman may resort in cases where the husband is not at much fault. It means that the wife will forgo all her claim to dower and all other dues. Why should this woman lose all that when she is at the receiving end of carelessness and injustice?

I would suggest that the family contact a lawyer who may be able to give them legal advice on what they may do. On the face of it, the wife should apply for a nullification of her marriage on grounds of deception and ill-treatment. The lawyer may be in a better position to suggest the best method of presenting the case. But the wife should apply for a nullification with all her dues. It is the least that she should expect to get her dower and any gifts she might have received as compensation for being deliberately deceived by her husband. She should not hesitate to make such an application because men who do not consider the feelings and the reputation of the women they marry need to be taught a lesson that other people's feelings are not to be trifled with. May God guide this family to preserve the rights of their daughter.

• Divorce: Offered for neglect of prayers

I often have to force my wife to attend to her prayers, but she still neglects to do so. Will it be right if I offer her divorce?

If your wife rejects prayer altogether and denies that it is an Islamic duty, then she cannot continue to be married to you, because in this case, she will be denying a part of Islam which is essentially known to all people.

If, on the other hand, she is simply negligent of her duty, then it is your responsibility to remind her and to make her aware of the importance of attending regularly to her prayers. You should not force her to pray, because Islamic obligations cannot be discharged by force. You must not forget that prayer is her duty as much as they are your duty. You are not responsible for her, nor is she responsible for you. Everyone will be accountable to Allah for his or her actions or omissions.

Before you contemplate offering her divorce, you should try to educate her in Islamic principles and practices. Try to get her to understand how important it is for her to lead an Islamic life.

Most probably, her negligence is due to lack of such awareness. The right approach, therefore, is to strengthen her faith. Try to use different methods, and combine persuasion with a reminder of the different aspects of Allah's grace you and she enjoy. If you have children, you may remind her that they need Allah's protection and care. Like all parents, you pray Him to take care of your children. How can she or anyone else pray Allah to grant her wishes if she does not discharge the duties He has imposed on her?

Before offering her divorce, you should consider your situation from all angles. This could be the last resort for you. It may awaken her to the difficulty of her situation. It may persuade her that you view her negligence very seriously. If you do offer her divorce, you should know that if she acknowledges the duty of prayer, you need not divorce her. It is only if she denies that prayer is a duty binding on her that you cannot continue to be man and wife. In this last case, she would not be a Muslim.

• Divorce: Question raised on equality of men & women

Islam recognizes the equality of men and women. Why, then, does a man have the right to divorce his wife merely by saying three words in presence of witnesses, whereas the same right is not granted to women? Where is the equality? I know a few Muslim women who are always in fear of being divorced this way. This becomes a source of tension, particularly when it is very difficult for a woman to earn her living independently and lead the same sort of social life, while a man is totally unaffected. I do not find any apparent equality on this aspect, despite the repeated claims by scholars. To my understanding, any reasoning to prove equality on this aspect is no more than forced justification, which is so often practiced by the legal profession to which I belong. Would you please convince me on this aspect, or do you find my question too provoking to answer or to publish?

I am privileged to receive this letter from a lady lawyer who is genuinely interested in a very important aspect of Islamic law. I would assure my reader that I am not in business or seeking 'forced justification.' It is clear that I do not consider her question too provoking, and I would certainly not duck the issue involved. I am, however, a firm believer in the Islamic system and in the true equality it establishes between men and women.

Before answering her question, I seek to establish two points. The first is that 'true equality does not necessarily mean 'absolute equality.' There are certain differences between men and women, some of which are physical, and others psychological, while still others relate to the roles which they play in life and society. Hence equality must take these differences into consideration. If we were to treat men and women without consideration to these differences, we may easily commit injustice to either sex.

The second point is that the Islamic system must be considered as it is applied to the Muslim community. We cannot take the Islamic system in isolation from the community in which it is meant to apply. That community is a believer community in which God-fearing is a quality of ordinary people. It affects their behavior in all situations. This is not to say that all people in a Muslim community would be role models for a perfect Muslim. It simply says that in a Muslim community an individual has certain social and legal pressures to bear on his behavior and bring it, as far as possible, within the Islamic code.

From the Islamic point of view, marriage is a contract between two parties who are considered equal. Yet men are given a point of privilege with regard to termination of this contract. This is stated clearly in Verse 228-229 of Surah 2 in the middle of a long passage on the legislation that concerns divorce.

"Divorced women must wait for three monthly courses. And it is not lawful for them to hide what Allah has created in their wombs, if they sincerely believe in Allah and the Last Day. Their husbands are best entitled to take them back as their wives during this waiting period, if they desire reconciliation. Divorce may be pronounced twice; then either keep the wife with honor or let her leave gracefully. And it is not lawful for you to take back anything out of what you have given them. There is, however, an exception to this; if you fear that they might not be able to keep within the limits imposed by Allah, there is no harm if both agree mutually that the wife should obtain divorce by giving something as compensation to the husband. These are the bounds set by Allah; therefore do not violate them, for those who violate the bounds of Allah are the transgressors."

How is this possible? The answer lies in the nature of the roles assumed by men and women in Islamic society and their respective responsibilities. In a Muslim family, the man must look after his wife. She need not provide even a very small share of the family expense, although she may be better off than her husband. He has still to maintain her, [even] if she earns an income double his own. If the marriage breaks up, he must provide for her during the waiting period, and pay her any outstanding portion of her dower. If they have young children, he must pay for their upbringing, even though they may remain with their mother. So meeting all the expenses of the family living remains his own in addition to the payments due to the divorced wife. If he is to marry another woman, he must pay her a dower. If he wishes to be reunited with his divorced wife after her waiting period is over, he must pay her a fresh dower.

This shows that the man stands to incur a heavy financial loss if the marriage breaks up. Hence a man must think very carefully before he decides to terminate his marriage. If the women is given the same right to terminate the marriage at any moment, she would impose on the man financial commitment which he may not be able to undertake and which are not allowed for in the marriage contract. How is it possible that action is taken by one party and the consequences are borne by the other?

When the woman is divorced, she need not worry about her living. She goes back to her family which is responsible for her living. If her father is alive, he is responsible for her in the same way as before her marriage. If he is not alive, then her brothers or uncles assume that responsibility. If she has no relatives, the state should provide her maintenance.

Yet Islam is aware that a marriage may go wrong and there may be genuine reasons for the women to wish to terminate it. Hence, it provides a fair way for her to obtain the termination of her marriage without difficulty. She may apply for this termination known as Khula. She does not provide any justification for her request other than that she does not want to stay married to her husband. Certain rules apply in this case, which require her to refund the dower she received from her husband at the time of marriage. So, it is not true that a man is the only partner to be able to terminate the marriage easily. Termination is easier in this case, but she also may obtain that result without difficulty.

Having said that, I must add that what is practiced nowadays in Muslim countries may be at variance with Islamic law. There is much abuse of the law of divorce, which results from two main causes — people's life has become far removed from that envisaged by Islam, and the prevailing ignorance of their privileges and obligations under Islamic law. Hence a return to Islamic life would bring justice to all concerned.

• Divorce: Regretted before actual transmittal of advice

Because of differences with my wife, I divorced her by letter three times, but after posting the letter I realized my mistake. I informed my brother to intercept the letter and not to disclose its contents to my wife, which he did [not disclose.] However, he disclosed the matter after a few weeks. Now she is pregnant. Is she still my wife, or is she divorced?

The interception of the letter and the non-disclosure of its contents to your wife does not affect the status of your marriage one way or the other. What it does is simply to keep your wife aware of the event or ignorant of it. She should be informed. When you wrote the divorce, it actually took effect. The sending of the letter is to inform your wife of the development which brings your marriage to a break.

When you regretted your action, you needed to reinstate your marriage by a new action. If this is the first or second time you divorce your wife, then you are entitled to return her as your wife, with her consent. If this takes place within the waiting period, which extends normally until she has had three menstruation periods, or three periods of cleanliness from menstruation, then the remarriage does not require a new marriage contract. If it takes place after the waiting period has lapsed, then you need to have a new marriage contract and you must pay her a new dower, or mahr.

May I explain here that the three times you have written the divorce in your letter count as one divorce. It is forbidden to divorce three times at the same time, but they have the effect of one divorce. What you need to do now is to actually reinstate at once. Since your wife is pregnant, her waiting period lasts until she has given birth. If she has not delivered yet, all you have to do is to declare that you are returning her as your wife after she agrees on that with you. You should have two witnesses to the reinstatement of the marriage.

May I add a little word of advice” Marriage is a very serious matter. So is divorce. Marriage must never be ended at a moment of anger. Divorce should never be pronounced on the spur of a moment. That is not how it is meant to be.

• Divorce: Reinstatement of marriage after single divorce

After arriving here to take up my job, I then wrote to my wife several letters but she did not answer. I then wrote to her informing her that I had divorced her once. Sometimes later I wrote to her again stipulating certain conditions and saying that I would withdraw the divorce if she accepted them. She wrote apologetically expressing her acceptance of my conditions. I wrote back saying that I have withdrawn the earlier divorce in the presence of three witnesses who all signed the letter. May I ask whether my marriage to her is back in force? If not, what should I do now?

As the divorce was single, and I understand a first time one, it is revocable. This means that you can marry your former wife again if both of you agree to this marriage. However, a divorce is a complete act, which has certain effects that cannot be erased in the way you have suggested.

There are two possibilities for the reinstatement of your marriage, depending on the time when this is to take place. As you know, when a woman is divorced she has to observe a waiting period extending until she has had three menstruation periods, or three periods of cleanliness from menstruation, or until she has given if she is pregnant.

Women who do not have the period wait for three months. If the marriage is to be reinstated within the waiting period, it does not require anything more than the agreement of both parties, and witnesses to ensure publicity. No fresh marriage contract is needed, nor is there any need for a new dower to be paid. This means that what you did was sufficient to reinstate your marriage if that was within your wife’s waiting period.

If the reinstatement of the marriage does not take place within the waiting period, then the divorce is complete and the woman moves out to her parents’ home. If she and her former husband want to marry again, this is done in the normal way of marriage.

A new marriage contract is needed and the husband must pay her a new dower. This means that if your wife had completed her waiting period prior to your action of “withdrawing” the divorce, as you have described it, then your letter to her is of no effect and your divorce remains effective. You should arrange for a new marriage ceremony to be conducted. You can do so by giving your father or brother, or indeed any other person, power of attorney to attend to this marriage in your absence. This means that a new nikah or marriage contract is needed. [Show of consent or authority by telephone is not the appropriate course — as discussed elsewhere.]

• Divorce: Remarriage after divorce — a comprehensive view

1. I divorced my wife about seven years ago, when I sent her a letter explaining the reasons which led me to take this decision, finishing with writing the word "divorce" three times. My seven-year-old daughter still lives with her mother who did not marry anyone else in this period. Recently she wrote to me apologizing and expressing her desire for a reconciliation which I welcome, but would like to ask whether we can be remarried again. Was our divorce a single divorce?

2. A friend of ours sent a letter to his wife divorcing her three times. The court appointed a reconciliation counsel, but no reconciliation took place and the court duly ruled the marriage to have dissolved and issued certificates to that effect. The man applied for custody of his children but he was denied that by the court and he married another woman. Four years later he threw his second wife out and started with his first wife anew. Is this marriage valid and legal, or is this a sinful relationship?

3. Most scholars in Pakistan argue that a divorce pronounced or written three times in succession counts as a triple divorce, which means that the divorced couple cannot be reunited in marriage unless the woman marries another man (i.e. halalah) who then divorces her, maybe after one night. Please explain.

4. I follow the Hanafi school of thought. Due to continued marital arguments I divorced my wife once only in a court in Jeddah. The judge explained to us that we had three months to reconcile, after the expiry of which the divorce would be final. Now nearly two years after that the family of my former wife insist that I should divorce their daughter once again repeating the word of divorce three times. Their argument is that the divorce ruling was given in accordance with the Hanbali school of thought, while according to the Hanafi school of thought no divorce has taken place. Please clarify.

These are some of the letters we often receive asking about divorce and concentrating on the specific point of divorce repeated three times in succession, either verbally or in writing. This indeed is a very sore question and people often have certain preconceived ideas about it. You only need to think of the last of our four letters to realize the effects of these ideas on people's lives. Here is a woman who has been divorced for two years and her family thinks that she is still married only because the divorce took place in a country where the Hanbali school [of thought] is predominant. The effects of such an error of judgment are so far-reaching as to make a divorcee a lawfully wedded wife. In order to make things clear, I will explain the process of divorce in full detail.

Let me say at the outset that there are no differences between schools of thought on the main issues in this process. Schools of thought may differ on points of detail, but not on basic issues. When a man wishes to divorce his wife, he should approach the matter with the seriousness it deserves. I often wonder why people give so much thought and time to marriage but they are often so hasty when it comes to divorce. Indeed divorce should be considered very seriously, particularly when the marriage has already produced children.

Be that as it may, a man who wishes to divorce his wife should choose the appropriate time for divorce. God commands the Prophet, peace be upon him, to make it known that divorce should take place at a time when a woman can start her waiting period, which means that a divorce may not be pronounced when the woman is in her period or in a period of cleanliness from menstruation during which her husband has had sexual intercourse with her. It is indeed forbidden to start the process of divorce in either of these situations, i.e. during menstruation or a period of cleanliness in which an intercourse has taken place. The process of divorce starts with the man saying to his wife, "I divorce you." He may say this to her in her presence or absence, mentioning her name or not, verbally or in writing. Whichever way he chooses this phrase must be said or written ONCE ONLY. To say it or write it three times in succession is indeed forbidden.

A man came to the Prophet, peace be upon him, and told him that he divorced his wife. The Prophet, peace be upon him, asked him how many times and the man said, "three." The Prophet, peace be upon him, was very angry. He stood on the pulpit and, addressing his companions, he said: "Is God's Book to be trifled with when I am still alive among you?" Consider for a moment how seriously the Prophet, peace be upon him, viewed the three divorce being joined together in the same session, to the extent that he described it as trifling with God's Book. Yet so many people imagine that this is the norm! In the first letter we are told that the man wrote to his wife the word of divorce three times, when the second reader asks whether the marital reunion is sinful after such a divorce, which we have clarified to be forbidden.

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