Divorce (Islamic)

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In Islam there are separate rules for divorce for men and women under the terms of Islamic law (sharia). When a man has initiated a divorce the procedure is called ṭalāq (Arabic: الطلاق‎). When a woman has initiated a divorce it is called khula (Arabic: خلع‎).

The rules for Islamic divorce vary among the major Islamic schools of jurisprudence. Most importantly Shia and Sunni Muslims have different rules for performing an Islamic divorce. Sunni practice requires no witnesses, and allows a husband to end a relationship by saying the one, two or triple talaq. Shi'a scholars view the triple talaq (in one sitting or at one time) as a pagan pre-Islamic custom,[1] forbidden by Muhammad, but reinstated by Umar ibn al-Khattab, and thus sinful (haraam).

In some Sunni schools of jurisprudence, for example Shafi'i, it is possible for a woman to petition a qadi ("judge of Muslim jurisprudence") for a divorce under certain conditions.[clarification needed]

Shi'a practice requires two witnesses[2] followed by a waiting period[3] where the couple are supposed to try to reconcile with the help of mediators from each family. If the couple breaks the waiting period, the divorce is voided.

Since Shi'a view Islamic divorce as a procedure stemming from a conflict rather than a decision, they do not use the procedure to end a temporary marriage.[4] The Shi'a annul the temporary marriage at the end of the period, without any divorce being involved, since there is not necessarily a conflict to resolve.

After the waiting period is over, the couple is divorced and the husband is no longer responsible for the wife's expenses.

Contents

Talaq

The husband may initiate the divorce process by pronouncing the talaq, the formula of repudiation, three times. The first two times the talaq is pronounced, it may be withdrawn. But the third time it is pronounced, the divorce is irrevocable. There are a range of systems specifying the requisite formalities to complete an irrevocable divorce, i.e., whether some period of time must elapse between each pronouncement of talaq, whether there must be mediation, or the need for witnesses. In countries where polygamy is permitted, there is no waiting period before the husband can remarry. The wife must usually wait three months after the third talaq has been spoken before remarrying (this period is known as iddah).[5][6][7][8]

The Talaq is endorsed by several scholars of the Sunni theology, and some in the Zaydi theology. It consists of the husband saying the phrase "I divorce you" (in Arabic talaq) to his wife, three times.[9]

Shīʻa and Sunnī have different rules to engage a talāq. The talāq has three steps:

Initiation

This is the stage where the talāq process is initiated.

According to most Sunnī scholars it consists of:

According to most Shīʻa scholars:

The Triple Talaq in one sitting doesn't find any place in Quran and is termed as unIslamic.

Reconciliation

"And if you fear a breach between the two, then appoint judge from his people and a judge from her people; if they both desire agreement, Allah will effect harmony between them, surely Allah is Knowing, Aware."
— Qur'an, Sura 4 (An-Nisa), ayat 35[11]
"O you who believe! when you marry the believing women, then divorce them before you touch them, you have in their case no term which you should reckon; so make some provision for them and send them forth a goodly sending forth."
— Qur'an, Sura 33 (Al-Ahzab), ayat 49[12]

It is also said in the Quran that during that waiting period the wife must not be forced to leave her husband's home nor should she leave it herself unless the wife has committed indecency of some sort, in which case it is permitted for her to leave the house.

"O Prophet! when you divorce women, divorce them for~ their prescribed time, and calculate the number of the days prescribed, and be careful of (your duty to) Allah, your Lord. Do not drive them out of their houses, nor should they themselves go forth, unless they commit an open indecency; and these are the limits of Allah, and whoever goes beyond the limits of Allah, he indeed does injustice to his own soul. You do not know that Allah may after that bring about reunion. "
— Qur'an, Sura 65 (At-Talaq), ayat 1[13]

Completion

After the completion of the talāq procedure, the couple are divorced, the husband is no longer responsible for the wife's expenses and she becomes non-mahram for him and so they must observe the hijāb rules.

The relevant parts of the Qur'an are:

Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah. Such is the admonition given to him who believes in Allah and the Last Day. And for those who fear Allah, He (ever) prepares a way out."
— Qur'an, Sura 65 (At-Talaq), ayat 2[15]
"And when you divorce women and they reach their prescribed time, then either retain them in good fellowship or set them free with liberality, and do not retain them for injury, so that you exceed the limits, and whoever does this, he indeed is unjust to his own soul; and do not take Allah's communications for a mockery, and remember the favor of Allah upon you, and that which He has revealed to you of the Book and the Wisdom, admonishing you thereby; and be careful (of your duty to) Allah, and know that Allah is the Knower of all things."
— Qur'an, Sura 2 (Al-Baqara), ayat 231[16]

Aftermath

In practice:

And when you have divorced women and they have ended-- their term (of waiting), then do not prevent them from re-marrying their husbands when they agree among themselves in a lawful manner; with this is admonished he among you who believes in Allah and the last day, this is more profitable and purer for you; and Allah knows while you do not know."
— Qur'an, Sura 2 (Al-Baqara), ayat 232[17]
"And there is no blame on you respecting that which you speak indirectly in the asking of (such) women in marriage or keep (the proposal) concealed within your minds; Allah knows that you win mention them, but do not give them a promise in secret unless you speak in a lawful manner, and do not confirm the marriage tie until the writing is fulfilled, and know that Allah knows what is in your minds, therefore beware of Him, and know that Allah is Forgiving, Forbearing. "
— Qur'an, Sura 2 (Al-Baqara), ayat 235[18]
"For divorced women Maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous."
— Qur'an, Sura 2 (Al-Baqara), ayat 241[19]

After divorce, Qur'an specifies responsibilities on divorcee and divorcer on behalf of their children.[20][21] Qur'an also prohibits interventions from the previous husband in the divorced woman's life.[22]

Following are some of the cases regarding child custody decided by Muhammad:

Khula

Khula is the right of a woman in Islam to seek a divorce or separation from her husband. A Muslim woman may petition a qadi to grant her divorce if the husband refuses. The waiting period (iddah) of a woman who seeks a divorce is one menstrual cycle or one month if she is post-menopause i.e. ceased menstruating. This is to ensure she is not pregnant.[23] If the woman is pregnant, then the waiting period is until she gives birth. There is still the need for witnesses when seeking a khula as in a talaq.

See also

Notes

  1. ^ jahiliyya
  2. ^ 'Aalim Network QR Witnesses for Marriage ]
  3. ^ iddah
  4. ^ nikah mut'ah
  5. ^ Freeland, R, "The Use and Abuse of Islamic Law", Volume 73, The Australian Law Journal, 130
  6. ^ Hasan, A, "Marriage in Islamic Law - A Brief Introduction", (March, 1999) Family Law, 164
  7. ^ Hinchcliffe, D, "Divorce in the Muslim World", (May, 2000), International Family Law, 63
  8. ^ South African Law Commission, Islamic Marriages and Related Matters, Project 59. July, 2003. [1]
  9. ^ http://www.irfi.org/articles/articles_151_200/triple__talaq.htm
  10. ^ Quran 65:1
  11. ^ Quran 4:35
  12. ^ Quran 33:49
  13. ^ Quran 65:1
  14. ^ ref
  15. ^ Quran 65:2
  16. ^ Quran 2:231
  17. ^ Quran 2:232–233
  18. ^ Quran 2:235
  19. ^ Quran 2:241
  20. ^ Amin Ahsan Islahi, Tadabbur-i-Qur'an, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 545
  21. ^ "And the mothers should suckle their children for two whole years for him who desires to make complete the time of suckling; and their maintenance and their clothing must be-- borne by the father according to usage; no soul shall have imposed upon it a duty but to the extent of its capacity; neither shall a mother be made to suffer harm on account of her child, nor a father on account of his child, and a similar duty (devolves) on the (father's) heir, but if both desire weaning by mutual consent and counsel, there is no blame on them, and if you wish to engage a wet-nurse for your children, there is no blame on you so long as you pay what you promised for according to usage; and be careful of (your duty to) Allah and know that Allah sees what you do." Qur'an, [Quran 2:223]
  22. ^ "And when you have divorced women and they have ended-- their term (of waiting), then do not prevent them from marrying their husbands when they agree among themselves in a lawful manner; with this is admonished he among you who believes in Allah and the last day, this is more profitable and purer for you; and Allah knows while you do not know. Qur'an, [Quran 2:232]
  23. ^ Divorce laws in Pakistan

External links