Divorce Under Islamic Law
Discuss the different methods by which a marriage may be dissolved under Islamic law, analyzing the consequences of each method on the parties, referring to relevant juristic views.
In Islamic law, the notion of dissolving a marriage is known as ‘talaq, which as per Doi (1984) translates as “to set an animal free.” As the Prophet says, Divorce is Allah’s most dreaded of all permissible things. Islamic law allows that a man may dissolve a marriage unilaterally without demonstrating a cause or seeking recourse in a court of law; this is referred to as unilateral talaq (Hinchcliffe). An unfortunate state of affairs it is, as Jeffrey points out, a woman does not have this luxury.
As per Abd-Al Ati, for a divorce to be initiated, the husband must be of legal age and capable of “discrimination”, sane, mindful, devoid of rage and external pressure, and he must intend to end the marriage. Finally, the wife must also be of legal age and in a state of “fresh purity” (Tuhr) before a divorce may be granted.
Hanafi law recognized two types of talaq; talaq al Sunnah, which offers an opportunity of revocation, and talaq al bida, which is irrevocable and most commonly instantly effective.
Talaq al sunnah (Ahsan form) is the most often accepted form of repudiation (Nasir). In the Ahsan form, a repudiation occurs when the husband makes a single repudiation within the tuhr term (purity). This type of divorce does not entirely dissolve the marriage. Any earlier declaration made by the spouse must be retracted in words or actions. If the probationary period expires without revocation, the divorce is final and she can remarry or reconcile. He must also provide for her as though no divorce occurred. Unless the wife is pregnant, there is a three-month probationary period. Following talaq, the wife will have an iddah period of three menstrual cycles. Until the idda ends, the husband can reconcile and regain his wife. No more formality is required for the husband to withdraw talaq. During idda, the husband is accountable for his wife. To ensure a final divorce, the husband must refrain from sexual activity throughout the idda period. The unilateral talaq three months earlier dissolves the marriage.
The ahsan style of talaq is also known as the “little method” and has a shorter or less conclusive time (Sughra). According to Nasir, if a single talaq is pronounced and the divorce is finalized after the iddat time, the man may remarry his wife by marrying her again without an intervening marriage.
While talaq al sunnah (hasan form) is allowed, it is not as acceptable as ahsan. This talaq is for partners who are determined to divorce. The spouse says three talaqs in three successive periods of purity. After the third talaq, the divorce is irreversible (Hinchcliffe) and he cannot see his wife. He can’t remarry her unless she’s had an interim marriage and been bereaved or divorced within that time. This is not as good as the Ahsan form since it has “greater finality” (Nasir). This talaq is also reversible till the third declaration. After the third talaq, neither party inherits from the other, and only the Hanafis think the husband must still support his wife. Immediate triple divorce is legal and common among Sunni Muslims. Even so, it’s called talaq al bidat (innovative divorce) (Nehaluddin).
Additionally, talaq al bida, or contra sunnah divorce, is the least preferred technique according to abd al ati. Bida is a deviant conduct in an unapproved direction. This is a religious prohibition and, according to certain schools of law, a legal void. Sunni Islam regards talaq al bida as legal and effective, but morally repugnant. Tayyibi asserts that despite being the least preferred form, it is favored by law. This kind of talaq is legally valid. Shia law, on the other hand, does not recognize this procedure. The most common method of talaq al bida is for the husband to pronounce talaq al hasan three times in a row (husband pronounces talaq at the same time). This results in an immediate and irreversible termination. The partners are not permitted to marry again unless an intervening marriage has been consummated and properly dissolved.
According to imam abu hanifa and imam malik, three divorces on the same day constitute bidat, which is not permissible. It is, nevertheless, still effective. Imam Shafi agreed that this form of divorce is lawful and in the best interests of the husband. Three simultaneous talaqs are not considered unlawful by the shafi school (Nehaluddin).
Talaq al bida is if a husband repudiates his wife during menstruation, it is reversible; alternatively, if he does it with some statement of finality, it is irreversible. This type of repudiation is suspended on a condition. Suspended talaqs can be used by men to deter their wives from doing anything in the future.
Classic Sunni law does not specify how repudiation is to be expressed. No witnesses are required, and the wife need not be present when the talaq is pronounced. There are no restrictions on the terms used in it (oral or in writing) (Hamid Ali v Imtiazan). Talaq al bida is not recognized by Shia law (Ali Nawaz v Mohammad Yusuf).
In most of the Muslim world today, a new legislation of personal status provides that a triple talaq only takes effect as a single talaq. Sadly, only Tunisia has made divorce by spouse a court process (Hinchcliffe). Although not a Quranic method of divorce, it is an awful invention that permits husbands to permanently end a wife’s life by saying “talaq.”
Divorce with mutual consent (khul or mubara’a) is also recognized. Khul is when the woman has aversion and mubara’a is when both parties choose to separate ways. Khul is another type of permanent divorce that the woman initiates. If she chooses to end the marriage for personal reasons, she is responsible for returning the gifts and dower. Additionally, he may consent to divorce her and waive his right to compensation. Talaq is not necessary in cases of khula or mubara’a, according to Hanafi law. Shias anticipate the imposition of talaq.
A wife may propose to pay her husband a set amount (typically dower) in exchange for release from the shackles of matrimony. Only the shafi school needs monetary recompense. According to Hanafis, a woman can seek divorce only if her husband is unable to consummate the marriage. Moreover, the offer may come from the husband and is valid if accepted by the wife. He can’t retract it till it’s approved or denied. The woman might withdraw her offer before it is accepted. The parties can remarry without the wife having to marry first (intervening marriage). For judicial divorce, only Maliki school accepts darar (injury, prejudice). The holy prophet changed the existing divorce procedure by granting a woman divorce based on incompatibility. But, according to Islam, divorce should only be utilized in “extreme cases of necessity” (Nehaluddin). Hanafi law regards mubaraat as an irreversible talaq. Mubaraat is a divorce with mutual consent, therefore the woman pays no compensation (Doi).
Other kinds of divorce include faskh, a Muslim matrimonial repudiation (Nasir). In Islamic law, either party may end certain contracts without causing a breach (Hinchcliffe). To end a marriage unilaterally requires the husband’s consent, according to all schools and sects. This is a “annulment” under Indian law (Bharatiya). If a wife is unhappy in her marriage, she must apply the court for divorce.
In the Hanafi school, the wife must establish impotence, but if she was unaware of her husband’s condition at the time of marriage, the court will give her divorce. The Shafi school enables a court to issue a faskh to a husband who refuses to support his wife. If the spouse is insane, has leprosy, or venereal disease, a qadi is appointed (Ithna Ashari). The Hanbali recognizes different physical and mental consequences, desertion for more than 6 months, or failing to comply with a requirement in the marital contract as grounds for divorce. Maliki law enables a woman to divorce for dharar (prejudice). When a maliki qadi awards a divorce, he does so by way of exercising the power of talaq on behalf of the husband, therefore perpetuating the legal fiction of the exclusive right of the husband to renounce his wife. If the wife cannot prove that living with her husband is harmful to her, an arbitrational tribunal will be formed with an arbitrator from each spouse’s family whose first and foremost attempt would be reconciliation. If that fails, they must listen to both parties and determine who is to blame. if the husband is to blame the courts will pronounce an irreversible talaq. A khula is granted if the wife is at fault.
There are various procedures to dissolve a marriage, including ila, which is essentially irrelevant. A husband must swear not to have sexual intercourse with his wife for four months or more. This is equivalent to a single irrevocable divorce decision under Hanafi law. If he does not resume sexual relations with her, the marriage ends without a court decree. He must pay kaffara if he breaks his vow and resumes sexual relations after the expiration date. According to Shia law, a woman can ask a court to either force her husband to resume sexual relations or divorce her. Zihar is also one way to dissolve a marriage. In this case, the husband compares his wife to any of his female relatives who are related to him in forbidden degrees. This method prevented the husband from having sexual intercourse with his wife until he paid a substantial fine, but it is not a divorce. According to Maliki law, it only results in divorce if no expiation is done and no sexual relations are reestablished. Not Hanafi, but Maliki law recognizes zihar as a cause for divorce.
In traditional law, a husband who suspected his wife of cheating on him but couldn’t prove it may accuse her of adultery and dispute the paternity of a child she was carrying or had just given birth to. If a man accuses his wife of adultery but has no witnesses, he must swear four times by God that he is telling the truth and a fifth time that he will be cursed if he lies. Averting punishment requires her to declare him a liar four times, and to declare her subject to God’s wrath the fifth time. The marriage is then irreversibly dissolved. As a result of li’an, husband-wife sexual relations are forbidden. This occurs when a husband questions the validity of a child by alleging adultery. The Prophet ended such marriages under ancient law (Fyzee). A qadi intervenes and urges the husband to talaq his wife. If the husband retracts his charge before the qadi has dissolved the marriage, the marriage continues, but the husband is guilty of “qadhaf,” which carries an 80-lash sentence. A li’an automatically terminates a marriage. For refusing to take an oath or retracting his testimony, the judge will imprison the spouse until he takes an oath or retracts his statement. Li’an usually results in a permanent divorce with no remarriage.
Suspended talaq automatically occurs after a specified occurrence, for example a clause regarding a second marriage is placed in the marriage contract which would trigger a suspended talaq. The delegated talaq (talaq e tafwid), is also recognized by the schools of law when the husband delegated it to his wife to liberate herself if a specified occurrence happens.
One of the most contentious questions in Islamic legal history is whether the intended triple divorce will have the same impact as the third and final repudiation or if it should be interpreted as a single declaration regardless of the announced number. Triple talaq, which is endorsed by the majority of schools of thought, is not preferred but is legal and effective, while some depicts this with an act of murder of the wife. However, the Indian Supreme Court has prohibited the idea of talaq al bida, holding in Mohammad Naseem v Bilquees that this kind of talaq was intended to mitigate the threat of serial divorces but ended up being more fatal than the disease it was intended to alleviate. Muslim jurists usually agree on the khul system, believing it is legitimate since sharia enables men to divorce their spouses, women have an equal recourse in the form of khul (Dawoud el Alami). A look at this illustrates how the law is evolving and granting women a significant status.
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