DIVORCE
Introduction:
According to a tradition of the Prophet, “Of all permitted things, divorce is the most reprehensible” (Abu Dawood). However, divorce was permitted because forcing unwilling or unhappy spouses to stay together may lead to various forms of zina. Divorce in Islam is possible under a number of ways.
I.) Talaq:
Islamic law, according to all the schools and sects, gives to the husband the right to unilaterally terminate the marriage at will without recourse to the court. Sunni law requires neither the presence of the wife nor witnesses for a valid talaq. In Sunni law a talaq may either be in accordance with the Sunna (i.e. the Quranic verses on talaq) or it may be in the bid’a form. A divorce in accordance with the Sunna has two categories:
• Talaq Al-Ahsan – The most approved form, where the husband pronounces a single talaq during the wife’s purity period. The wife then starts idda during which the husband may revoke the talaq to take back his wife. Revocation may also be implied e.g. resumption of intercourse. The repudiation becomes irrevocable, if the idda expires, but it is of lesser degree and the parties may remarry without an intervening marriage.
• Talaq Al-Hasan – It is the good form, where the husband pronounces three repudiations during three successive purity periods. Once he has pronounced three talaqs, his wife is irrevocably repudiated to the greater extent; she can only remarry after an intervening marriage to another man.
The Ithna Ashari's sect of the Shia only recognises Talaq Al-Sunna. This sect also requires that a precise set of words must be used, and two adult male Muslim witnesses of good character must be present.
Sunni law, however, also recognises Talaq Al-Bid’a. The most prevalent form of talaq al bid’a is where the husband pronounces three talaqs at the same time. Other forms include repudiations suspended on a condition e.g. the wife is forbidden from leaving the house. If she does, the marriage is dissolved. In Hanafi law a divorce pronounced when drunk, or by mistake, or by jest, or under duress is valid. The justification for this rule under Hanafi law is that this looks to the act rather than the intent.
II.) Khula:
A marriage may also be dissolved by mutual agreement between the parties under the Quranic ruling of
Surah Al-Baqara, Verse 229. This form of dissolution is called khula. Khula is concluded by an offer and acceptance. It is usually the wife who makes the offer, offering to pay a certain sum of money, usually the dower, in consideration for the husband releasing her from the marriage. Compensation in khula may, with the exception of the Shafi School, be anything that is of value; in Shafi law the compensation must be monetary.
III.) Judicial Divorce:
There are two forms of judicial divorce:
(1) Lian; and
(2) Faskh. Lian denotes the grant of a divorce on the ground that the husband has accused his wife of adultery. Such an allegation, if made by affirmation, inevitably leads to a divorce even if the husband cannot adduce any evidence to prove his claims. Lian divorces are irrevocable, and the parties cannot remarry.
Faskh is judicial dissolution of marriage. In classical
Hanafi law, the only ground for judicial divorce was where the woman could prove that her husband is impotent. The
Ithna Ashari School recognises further grounds e.g. where the husband is suffering from insanity, leprosy or venereal disease.
The Shafi School, in addition to these grounds, considers wilful refusal to maintain as a sufficient reason for a judicial divorce.
The Hanbali School recognises various physical and mental defects, as well as the following: failure to maintain, desertion, and failure to comply with a condition in the marriage contract. Even more liberal than the Hanbalis is the
Maliki School where physical and mental defects, failure to maintain, desertion, absence for more than one year, and ill-treatment are all valid grounds for divorce.
Maliki law, therefore, is the only classical school which permits a divorce on the basis of cruelty or ill-treatment by the husband.
IV.) Reforms:
1.) Talaq:
The triple talaq has been a prime target for reforms in the Muslim world. In Egypt, the provisions of Hanbali law were placed which stated that any divorce uttered in intoxication or under compulsion is henceforth invalid. So, the Hanafi doctrine which had looked to the act of the talaq ignoring its intent was silently repealed.
In many Muslim countries, reforms provided that the triple talaq shall only take effect as a single talaq, thus adopting the Sunna methods of talaq and effectively abolishing talaq al-bid’a. In Egypt, a repudiation coupled with words or gestures indicating a number is equivalent to a single repudiation. In Jordan, the law derecognises a talaq which is not intended, as well as talaq al-bid'a. In Yemen, the law also turned a triple talaq into a single talaq. In Syria, if a divorce is coupled with a number, expressly or impliedly, still not more than one divorce shall be deemed to have taken place.
In Tunisia alone, divorce can only be obtained by judicial means. The rationale being Surah Al-Nisa, Verse 37 which states: “Where discord arises between spouses, then appoint arbitrators”.
A very significant reform was that divorce compensation (Mutat) was payable to every divorcee for an arbitrary talaq. This was the first real attempt to control the husband’s unilateral power of repudiation in that his motive for exercising this power was subjected to scrutiny and the wife’s position was at least to some extent protected in the event of abuse of this power. (Note: See the section on Mutat in the chapter of maintenance).
In India, DMMA 1939 introduced some reforms incorporating provisions from Maliki law. S.2(8) of the Act provides a number of examples of cruelty by the husband, e.g. assault or treating more than one wives inequitably, which could be used as grounds for divorce. In the leading case of “Itwari v. Asghari”, where the husband had taken a second wife against the wishes of his first wife, cruel conduct was defined as “conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health”. Thus, the court supported the wife’s case.
A number of reforms have been effected in this area, in both Pakistan and Bangladesh, by S.7(1) MFLO 1969. According to it, a husband has to give notice to the Chairman of the Union Council about the fact that he has given talaq to his wife. S.7(3) postpones the legal validity of talaq for 90 days. Furthermore, in S.7(6), it is said that unless the termination of marriage is for the third time, the wife can marry the same husband without an intervening marriage.
The leading case on this subject is
“Ali Nawaz Gardezi v. M. Yusuf”, where a German woman claimed to have been divorced by her previous Shia husband and married another person after conversion to Islam. However, the former husband, Mr. Gardezi, claimed that he had not divorced her wife. Regarding S.7, it was established that Mr. Gardezi had not given notice to the Chairman. It was held that the effect of S.7 was to prevent hasty dissolution of marriages by talaq and therefore the marital status of the parties does not change for a certain period of time. Thus, the new husband was found guilty because the woman was still the wife of the complainant as the divorce had not been effective.
In
“Inamul Islam v. Hussain Bano”, the court held that under S.7(1), there are three essential requirement: (1) giving of talaq in accordance with Muslim law; (2) giving notice to the Chairman; and (3) giving notice to the wife. If any of these is not fulfilled then the talaq is not valid even after 90 days.
A good illustration of the effectiveness of the 90 days was given in
“Muhammad Latif v. Hanifa Bibi”, where the husband, married polygamously only after eight days of serving the notice to the wife and the Chairman. The wife filed a suit against the husband’s polygamy arguing that the divorce became effective only after expiration of 90 days while the husband argued that under the Sharia it was effective instantly. However, the High Court found against the husband holding that the divorce remained ineffective until 90 days and the husband should have sought permission of the Arbitration Council before marrying polygamously. It was stated that the effect of S.7 MFLO is to replace talaq al-bid’a with talaq al-ahsan referred to in Surah Al-Talaq of the Quran. Thus, this section is not against the spirit of Islamic law and its sanctity is more enhanced, being nearest to the injunctions of the Quran and the Sunna.
However, during the past few years the argument has gained strength that the serving of the notice of talaq may not be essential to achieve legal validity. In
“Maqbool Jan v. Arshad Hassan”, it was held that a talaq which has not been notified to the Chairman within 90 days and which has not been revoked, may be presumed to have become legally valid for all intents and purposes.
Thus, it is quite evident that the notice requirement is used for the benefit of the divorced woman and this requirement is waived in situations: (1) where the parties are unaware of S.7; (2) where it would otherwise be disadvantageous to the women; or (3) if there is a lack of reliable evidence to support the woman’s claim.
2.) Judicial Divorce:
This area has been a subject of considerable reforms. A number of grounds were provided for the wife to seek judicial dissolution of marriage. In Syria, firstly, on the basis of husband’s cruelty, the judge can order a divorce, if reconciliation fails. If the injury is not proved, arbiters should be appointed to investigate the facts and decide on an irrevocable divorce. Secondly, if a defect is found on the husband’s part, then there are two specific cases:
(1) if the husband is impotent, and the wife neither knew nor consented to the defect; and
(2) if the husband becomes insane after the contract, the judge shall order an irrevocable divorce forthwith if such a defect is incurable. Thirdly, if a husband fails to pay maintenance, the wife can also seek divorce, provided that the husband has no known means and fails to prove his insolvency. Proving his insolvency, would grant him a period of three months after which, if he still fails to pay maintenance, the judge would order a “revocable” divorce i.e. the husband can resume matrimony during the idda if he proves his solvency and is willing to pay maintenance. Fourthly, if the husband is absent or received a sentence for 3 years, the wife can seek divorce after one year of the absence or imprisonment, even if she is still maintained from the husband’s property.
In Egypt, according to the Hanafi doctrine, the husband’s impotence can be a ground for judicial divorce. But reforms placed Maliki provisions to add further defects to the wife's aid, if three conditions are satisfied:
(1) the defect is of long standing;
(2) that the injury shall affect her e.g. leprosy; and
(3) she neither knew nor consented to the defect. Secondly, a wife could also seek an irrevocable divorce on basis of her husband’s cruelty. If she was unable to prove her case, the arbiters would investigate the facts in an attempt to reconcile the parties. However, if they find against the husband, then an irrevocable divorce would be granted. Thirdly, failure to pay maintenance can also be a valid ground for divorce. If the husband has no known property, and refuses to declare his means and insists on abstaining from maintenance, the judge shall order a “revocable” divorce. If he proves insolvency, the judge shall grant him a delay of one month after which, a divorce decree shall be issued. Fourthly, on the basis of husband’s absence, if the husband is away for a year or received a sentence for three years, the wife may seek irrevocable divorce after one year of the husband’s imprisonment/absence. If it is possible to send messages to the absent husband, the judge would warn him to return living with his wife within a fix time, failing to comply with would result in an irrevocable divorce.
In Jordanian law, firstly, on grounds of injury, the court will appoint arbiters to investigate the matter. If they find against the husband, they shall award an irrevocable divorce, reserving all the wife's rights as if it was the husband himself who effected the divorce. Secondly, on the basis of a husband’s defect, e.g. mutilation, impotence, leprosy or tuberculosis, that makes consummation impossible or an injury to the wife, the judge shall order a divorce if the disease is incurable. Insanity of the husband after the marriage shall also entitle the wife to sue for a divorce. Thirdly, on failure to pay maintenance, if the husband has no known property, and insists on refusing to pay maintenance, the judge shall order a divorce. If he proves his insolvency, he shall be given a period between one and three months, after which the judge shall order a divorce. Such a divorce shall be revocable. Fourthly, regarding the husband’s absence, Jordan has incorporated the Egyptian provisions within her statutes.
In Algeria, the wife has the right to apply for a divorce on the ground that the husband is incapable of consummating the marriage. Secondly, on grounds of failure to pay maintenance, the wife has the right to sue for a divorce, unless the woman knew of his insolvency at the time of the marriage. Thirdly, on grounds of the husband’s absence, if the husband is in prison of over a year for an offence that is a disgrace to the family, or is absent for a year without an excuse or maintenance, the wife has the right to sue for judicial divorce.