The position of women in an Islamic marriage institution has always been a question among the critics outside Muslim world. Islam is accused for not giving the fair right to women as compared to their husbands, and this include in the matter of divorce. It is often claimed that the easy divorce procedure in Islam results in the oppression among Muslim wives, without realising the fact explained in a hadith by the Prophet Muhammad(P), who said that the halaal matter which is most hated by God is the talaaq.1 In short, a divorce is not encouraged in Islam for as long as a better solution can be obtained. This brief article is intended to outline the basic principles in the regulations concerning divorce in Islam, and at the same time tries to examine the view of the so-called “oppression” towards women with regard to this matter.2
Why a Divorce?
Islam considers a marriage institution is built based on mutual trust between husband and wife, and is for the benefit of both women and men. This is outlined in the following verse:
“And among His signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them and He has put love and mercy between your (hearts), verily in that are Signs for those who reflect.” (Qur’an, Sura’ Ar-Rum: 21)
It is essential therefore, for both husband and wife to try to fulfil the rights of each other, so as to make the marriage institution beneficial and more meaningful to both parties. However, it is sometimes the case where both parties are not able to come to an understanding and agreement in order to continue their marriage further. As a result, there often is the case where they lost their love and mercy previously existing in the marriage, and even worse, wives are left hanging by their husbands while their husbands enjoy their life with other women.
Islam however, specifically mentions that women are not to be left hanging, as indicated in the following verse:
“Ye are never able to be fair and just as between women, even if it is your ardent desire. But turn not away (from a woman) altogether, so as to leave her hanging. If you come to a friendly understanding, and practice self-restraint, God is Oft forgiving, Most Merciful.” (Qur’an, Sura’ An-Nisa’: 129 )
In the above verse, it is clearly indicated that the first step is to try to solve the problem between husband and wife in a friendly manner, so as to keep the marriage institution intact, and the husband and wife are not separated.
Another example whereby God prohibits a husband to leave his wife hanging is shown in verse 226-227 of Sura’ Al-Baqarah. These verses was sent down to abolished the jahiliyah tradition with relation to ila‘, whereby the husbands leave their wives hanging without the necessary provision for maintenance, but did not divorce them. This sort of tradition is oppressive towards women, and the Holy Qur’an provides the necessary solution for the women, in order to protect their rights to live in a happy manner as a human being.
In the case where there is no solution obtained to continue the marriage in a better manner, a fair solution on divorce is allowed as outlined in the following verse:
“But if they disagree (and must part), God will provide abundance for all from His all-reaching bounty: for God is He that careth for all and is wise.” (Qur’an An-Nisa’ :130)
The reason why a marriage can be terminated is to avoid unnecessary pain to either party, be it the husband or the wife, if a better solution cannot be found. Although a divorce is allowed in An-Nisa’ verse 130 whenever a friendly understanding cannot be reached between a husband and his wife, there is a further suggestion indicated via the Qur’an in an attempt to reconcile the marriage before the decision for a divorce is obtained:
“If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers, if they wish for peace, God will cause their reconciliation. For God hath full knowledge, and is acquainted with all things.” (Qur’an An-Nisa’:35 )
This verse shows that divorce is the very final solution. As far as possible, a marriage institution is to be maintained, and the couple should try every possible way to try to reconcile the marriage in order to avoid a divorce.
‘Iddah As a Means of Reconciliation
The regulation on iddah comes from the following verse :
“Divorced women shall wait concerning themselves three monthly periods. Nor is it lawful for them to hide what God hath created in their wombs, if they have faith in God and the Last Day. And their husbands have better right to take them back in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable. But men have a degree over them. And God is Exalting in Power, Wise.” (Qur’an Al-Baqarah: 228)
‘Iddah is the 3 cycles of monthly periods (or three months for women without menses) enforced on the wife after the divorce. During this period, the husband still has the responsibilities towards his wife as if they are still tied in a wedlock (except sexual intercourse), including her provision for maintenance. The reason for the ‘iddah on woman upon divorce is to ensure that she’s free from carrying anything in her womb. If she’s pregnant during the divorce, then the period of ‘iddah is extended until she gives birth to the baby, as required in Sura’ Al-Talaq verse 6. This regulation is to protect the woman, in which it guarantees that the needs of the wife will be provided fully by the husband throughout the period.
The benefit for the ‘iddah is for the husband and wife to rethink and reconcile their marriage. The fact that the husband and the wife need to be together during the period of ‘iddah often helps to reconcile the marriage. There will always be space for the couple to do things together and talk to each other, and this might help to regain love between each other and the couple could be reunited. That is the beauty of the law of God, and the reason why a couple is given two chances to reconcile their marriage as can be seen from Sura’ Al-Baqarah verse 229.
Are Women Abandoned or Oppressed Upon A Divorce?
Often, a woman is the victim as a consequence of divorce. The Holy Qur’an however provides regulation that should be followed by the couple following a divorce, in order to protect the women from being oppressed.
“When ye divorce women, and they fulfil the term of their (iddah) either take them back on equitable terms or set them free on equitable terms, but do not take them back to injure them or to take undue advantage, if any one does that, He wrongs his own soul. Do not treat God signs as a jest, but solemnly rehearse God’s favours on you, and the fact that He sent down to you the Book and Wisdom, for your instruction. And fear God, and know that God is well acquainted with all things.” (Qur’an Al-Baqarah: 231)
The above verse outlines the regulations set by God binding the husband:
-A husband is allowed to take his wife again on equitable terms
-A husband is allowed to set the wife free from him on equitable terms
-The husband is not allowed to cause injury to the wife, nor can he abuse her, nor can he take advantage of her out of her weaknesses.
This regulation protects a wife from being abused by her husband upon divorce. Apart from that, Islam guarantees the right of the wife with regard to her maintenance.
“Let the women live (in ‘iddah) in the same style as ye live, according to your means, annoy them not, so as to restrict them. And if they carry (life in their wombs) then spend on them until they deliver their burden. And if they suckle your offspring, give them their recompense, and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves in difficulties, let another women suckle the child on behalf.” (Qur’an Al-Talaq: 6)
According to the sharia’regulation, a woman in ‘iddah is still considered as the responsibility of the husband, and therefore still has the right to get the provision for her maintenance throughout the period. This is the period whereby the wife will be able to prepare herself for her future life.
In addition, a husband is not allowed to take back anything that has been given to his wife as a gift throughout their marriage upon a divorce, as has been outlined in the Holy Qur’an in Sura An-Nisa’, verse 20-21 as follows:
“But if ye decide to take one wife in place of another, even if ye had given the latter a whole treasure for dower, take not the least bit of it back. Would ye take it by slander and manifest wrong? And how could ye take it when ye have gone in unto each other, and they have taken you a solemn covenant?”
A husband is also required to give a settlement or gift (mut’ah) to his wife upon divorce for her future use, as shown in Sura’ Al-Baqarah 241:
“For divorced women mut’ah (should be provided) on a reasonable (scale). This is a duty on the righteous.”
Concerning the children, Islam protects the right of both husband and wife to have the right to take care of their children, although the mother has an advantage over the father to take care of the children, so long that she is still not remarry. This is explained in the hadith, “From Abdullah bin Amar, who said, a woman asked Prophet Muhammad ‘O Apostle of God, I am the one who carried my son in my womb, and gave him protection on my lap and I suckled him with my breasts, and now his father wants to take him away from me’. Then The Apostle said, ‘You have greater right over him, so long that you are not remarry’.” (Abu Dawud)
However, both father and mother still have the right over their children, and this right is protected in Sura’ Al-Baqarah verse 233:
“No soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child. Nor father on account of his child, and heir shall be chargeable in the same way.”
As can be seen from the above facts, the rights of both husband and wife are protected in Islam, in a manner in which the divorce can be done peacefully, without resulting any unnecessary pain to any party.
Can A Wife Divorce her Husband?
Often, it is argued that Islam gives the exclusive right for a husband to divorce his wife , but similar right is not given to a wife. Therefore, the claim continues, this gives a wide space for the husband to misuse the power given to him which results in unnecessary pain to his wife. This is definitely a lie created by the ignorant critics, when the fact is that Islam gives equal rights for a wife to divorce her husband in order to protect her from any misconduct by her husband.
And how is done in Islam? There are two methods for such a divorce, namely the fasakh and the khulu’.
The provision for fasakh is explained in the following verse:
“If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves, and such settlement is best, even though men’s soul are swayed by greed. But if ye do good and practice self restraint, God is well acquainted with all ye do.” (Qur’an An-Nisa’:128)
This right is also given to a wife to get a divorce through the power of judges, or qadhi to separate the wife from her husband. A wife is given right to request for fasakh if any of the following (to mention a few) problems occur in the marriage:
a) The husband failed to provide for the maintenance of his wife for four months, or any of his responsibilities towards his marriage.
b) The husband abused his wife by way of the following:
- physical abuse to the wife resulting in unnecessary oppression in her daily life.
- to force the wife to live in unhealthy manner, e.g. by forcing his wife to be a prostitute.
- prevent his wife from doing her responsibility towards her religion.
- the husband failed to be fair and just to his wives (in the case of polygamy) according to the requirement in sharia’ that will cause a wife to be abandoned.
The Holy Qur’an outlined the problem in the following verse:
“O ye who believe! Ye are forbidden to inherit women against their will. Nor should ye treat them with harshness, that ye may take away part of the dower ye have given them, except where they have been guilty of open lewdness, on the contrary, live with them on a footing of kindness and equity. If ye take a dislike of them it may be that ye dislike a thing, and God brings about through it a great deal of good.” (Qur’an An-Nisa’:19)
c) The wife did not give her consent to their marriage, or her permission is not valid as she was forced, or she has a mental problem at the time of the marriage. This is to be in line with the following hadith:
Narrated Abu Hurairah r.a, that the Prophet(P) said, “A divorcee cannot be forced to marry before she agrees, and a virgin cannot be forced to marry before her permission is obtained. The Sahaba’ asked “How can we obtain her permission?” The Prophet(P) said, “Her permission is when she keeps quiet.” (Muslim)
d) The condition of husband, such as being impotent or having a mental problem in which is not known to the wife prior to the marriage, if such a problem can affect the condition of the marriage.
Khulu’ is a settlement made by a wife to the husband in order to get a divorce. This provision is allowed in the following verse:
“A divorce is only permissible twice, after that the parties should either hold together on equitable terms or separate with kindness. It is not lawful for you to take back any of your gifts (from your wives) except when both parties fear that they would be unable to keep the limits ordained by God. If ye do indeed fear that they would be unable to keep the limits ordained by God, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by God, so do not transgress them if any do transgress the limits ordained by God, such persons wrong.” (Qur’an Al-Baqarah: 229)
Khulu’ is the provision for the woman to get a divorce, but is not able to do it by way of fasakh. This provision is explained in the following hadith, “The wife of Tsabit bin Qais came to meet the Prophet of God(P) and said ‘O Prophet of God, I am not downgrading his behaviour and his religion, but I do not want to belittle the teachings of Islam’. The Prophet(P) asked: ‘ Do you want to return his farm?’ and she answered ‘Yes’. Therefore, the Prophet(P) said ‘ Accept the farm, Tsabit, and give her one talaaq’.” (Abu Dawud)
The above case happened when the wife wanted Tsabit to divorce her, when in actual fact there was nothing wrong with Tsabit. She was not able to keep the marriage intact because she feared that she will not be able to fulfil her responsibilities as a wife which will give rise to further problems within the marriage, and therefore she requested for khulu’ as a settlement. The farm was originally owned by Tsabit, but was given to her as a gift during their marriage.
The settlement for khulu’ is limited to the amount given by the husband to the wife during their marriage, as a gift or dowry. This is explained in Sura’ Al-Baqarah, verse 229 as stated above.
Islam has provided clear guidance with regard to marriage and divorce, in which both parties are treated equally and a clear solution is provided to avoid any misconduct by any parties, and to protect the rights of both men and women alike. Regardless, Islam does not encourage divorce, so long as a better solution can be found to keep the marriage intact.
And only God knows best!
- See Ahmad ibn Naqib al-Misri (transl. Nuh Ha Mim Keller), The Reliance of the Traveler: A Classic Manual of Islamic Sacred Law, Amana Publications, 1997, p. 556. Although the status of this hadith is itself mursal and cannot be soundly attributed to the Prophet, its meaning is sound as commented upon by Ibn ‘Uthaymeen, Liqa at al-bab il-Maftooh, no. 55, question no. 3 [↩]
- See also our article: Divorce and Reconciliation of Marriage in Islam [↩]